Braude v. United States

585 F.2d 1049, 218 Ct. Cl. 270, 1978 U.S. Ct. Cl. LEXIS 293
CourtUnited States Court of Claims
DecidedOctober 18, 1978
DocketNo. 451-77
StatusPublished
Cited by63 cases

This text of 585 F.2d 1049 (Braude v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Braude v. United States, 585 F.2d 1049, 218 Ct. Cl. 270, 1978 U.S. Ct. Cl. LEXIS 293 (cc 1978).

Opinions

Skelton, Senior Judge,

delivered the opinion of the court:

This case is before the court on cross-motions for summary judgment. It is a civilian pay case, and the petition was filed September 12, 1977. Plaintiff, a former employee of the United States Information Agency, sues to recover back pay from the date of her discharge (effective December 31, 1953, but providing for her to receive a [272]*272temporary appointment beginning January 1, 1954, not to exceed thirty days from the date of the letter informing her of her discharge which was dated December 30, 1953) until such time as she is reinstated to her former position.

Plaintiff began her career as a federal employee in 1943. For the next 10 years she worked in various government offices and always received favorable ratings for her work.

In 1951, while employed by the State Department, plaintiff became the subject of an investigation conducted pursuant to the Loyalty and Security Program.1 In the course of that investigation she answered written interrogatories containing questions about two people whom she was alleged to have known and about certain organizations to which she was alleged to have belonged. After reviewing all of the information in its possession, including plaintiffs answers to the interrogatories, the Loyalty and Security Board voted unanimously to give plaintiff a complete clearance in regard to both loyalty and security.

On December 31, 1953, plaintiff was informed by letter from the Director of the United States Information Agency (USIA) that pursuant to Public Law 2072 her employment by the USIA was being terminated. The reason for the termination was said to be large-scale reduction-in-force (RIF), stemming from a reduced budget.

After leaving her federal employment, plaintiff engaged in an almost continuous campaign to be rehired by the federal government, although she was never successful. After the passage of the Privacy Act of 1974, plaintiff acquired certain documents from her governmental records which she asserts establish that her dismissal was not an ordinary RIF, as she had been told, and reveal that she was actually discharged for security reasons. Thereafter, on September 12, 1977, plaintiff filed this suit contending that the Government deliberately concealed the true reason for her discharge in an illegal attempt to deny plaintiff the due process rights possessed by one discharged for security [273]*273reasons and thereby sought to circumvent the Government’s own regulations applicable to security terminations. The plaintiff claims that the regulations provided that prior to such a termination the plaintiff must be given a written notice of the charges and reasons for the discharge; that a hearing must be held wherein she could be represented by counsel, present witnesses on her own behalf, and cross-examine the witnesses against her; and that she could not be discharged by the Director of the USIA unless he had received a recommendation from the hearing board, had reviewed the record, and had found that a discharge was warranted.

We first consider the limitations issue, as we lack jurisdiction to hear any claim which is not filed within six years after such claim first accrues.3 To facilitate discussion of this issue we will assume that all factual allegations in the petition are true.4

We held in Japanese War Notes Claimants Ass’n. v. United States, 178 Ct.Cl.630, 634, 373 F.2d 356, 358-59 (1967):

In certain instances the running of the statute will be suspended when an accrual date has been ascertained, but plaintiff does not know of his claim. Ignorance of rights which should be known is not enough. Art Center School v. United States, 136 Ct.Cl.218, 227, 142 F. Supp. 916, 921 (1956); Thomas v. United States, 125 Ct. Cl. 76,80 (1953); Dion v. United States, 137 Ct. Cl. 166 (1956); Navajo Freight Lines, Inc. v. United States, 176 Ct. Cl. 1265 (1966). Plaintiff must either show that defendant has concealed its acts with the result that plaintiff was unaware of their existence or it must show that its injury was 'inherently unknowable’ at the accrual date. An example of the latter would be when defendant delivers the wrong type of fruit tree to the plaintiff and the wrong cannot be determined until the tree bears fruit. See 1 Williston on Sales, §212(a) (Rev. ed. 1948). In this situation the statute will not begin to run until plaintiff learns or reasonably should have learned of his cause of action. Dawson, Fraudulent Concealment and Statutes of Limitations, 31 Mich.L. Rev. 875 (1933); Harv. L.Rev. supra. But cf. Pickett v. Aglinsky, 110 F.2d 628 (4 Cir. [274]*2741940); Kennedy v. Johns-Manville Sales Corp., 135 Conn. 176, 62 A. 2d 771 (1948).

The plaintiff has the burden of proof to establish either that "defendant has concealed its acts with the result that plaintiff was unaware of their existence or [she] must show the [her] injury was 'inherently unknowable’ at the accrual date.”

In the case at bar, plaintiff does not contend that the injury was inherently unknowable at the accrual date. The injury resulting from a termination of employment is obviously "knowable.” Plaintiff asserts, however, that the Government concealed the true reason for her discharge and thereby caused her to be unaware of the existence of her claim.

In Japanese War Notes Claimants Ass’n. v. United States, supra, 178 Ct.Cl. at 634-5, 373 F.2d at 359 we said:

* * * Once the statute of limitations has been tolled [by the concealment], it is not necessary that plaintiff obtain a thorough understanding of all the facts to halt the suspension. Defendant is not required to wait until plaintiff has started substantiating [her] claims by the discovery of evidence. Once plaintiff is on inquiry that [she] has a potential claim, the statute can start to run. See, Mich. L. Rev., supra, at 912. This standard is in line with the modern philosophy of pleading which has reduced the requirements of the petition and left for discovery and other pretrial procedures the opportunity to flesh out claims and to define more narrowly the disputed facts and issues. See Ct. Cl. Rules 13-18, 38-46.

We find from the following facts that plaintiff was on inquiry that she had a potential claim at a date prior to six years before she filed her petition.

In her affidavit in support of her motion for summary judgment, plaintiff made the following statement concerning her thoughts near the time of the termination:

While I was puzzled and felt that I might not have been told the entire story behind Mr. Streibert’s action, I had no alternative but to believe * * *

In a letter of February 22, 1956, iron plaintiff to her attorney, Byron Scott, plaintiff stated that she called her old boss at the USIA seeking employment, and that he admitted that her old job was open but said he was trying [275]*275to fill the position with someone in the agency. He advised plaintiff, however, "to speak with the Security Chief of the USIA, a Mr.

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Bluebook (online)
585 F.2d 1049, 218 Ct. Cl. 270, 1978 U.S. Ct. Cl. LEXIS 293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/braude-v-united-states-cc-1978.