United Klans of America v. McGovern

The United Klans of America, Knights of the Ku Klux Klan (hereinafter referred to as Klan or KKK), filed a complaint on August 26, 1977, against Clarence M. Kelley, individually and in his official capacity as Director of the Federal Bureau of Investigation, James L. McGovern, former special agent in charge of the Birmingham office of the FBI, and others (hereinafter collectively referred to as FBI). The complaint alleged violation of the Klan’s First, Fourth and Fifth Amendment rights resulting from the FBI’s counterintelligence program (COINTELPRO), which was designed to expose, disrupt and otherwise neutralize certain organizations, including the Klan. The district court, 453 F.Supp. 836, granted the FBI’s motion for summary judgment, holding that the action was barred by the applicable Alabama one-year statute of limitations. The Klan appeals. We affirm.

There is no federal statute of limitations applicable to this constitutionally based civil suit. We therefore look to the law of Alabama, the forum state, to determine the appropriate statute of limitations.1 See, e. g., Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975); McNeal v. Paine, Webber, Jackson & Curtis, Inc., 598 F.2d 888, 891 & n. 4 (5th Cir. 1979); Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975). The parties agree that the pertinent Alabama statute of limitations provides for a one-year limitations period. Ala. Code § 6-2-39(a)(5) (1975).2 The COINTELPRO activities which form the basis of the Klan’s complaint allegedly occurred between 1960 and 1972. The complaint was filed on August 26, 1977. Thus, unless the statute of limitations was somehow tolled at least until August 26, 1976, this action is barred. The Klan claims that the statute was tolled until October 13, 1976, the date it first received documents from the Department of Justice concerning COINTELPRO’s KKK related activities.3 Until then, the Klan contends, the FBI fraudulently concealed its cause of action.4 We disagree.

Fraudulent concealment tolls the statute of limitations. To rely on this tolling doctrine, “plaintiff must show that the defendants concealed the conduct complained of, and that he failed, despite the exercise of due diligence on his part, to discover the facts that form the basis of his claim.” In re Beef Industry Antitrust Litigation, 600 F.2d 1148, 1169 (5th Cir. 1979).5 *154“ ‘Once plaintiff is on inquiry that it has a potential claim, the statute can start to run.’ ” Prather v. Neva Paperbacks, Inc., 446 F.2d 338, 341 (5th Cir. 1971). In this case, a combination of factors lead us to conclude that in the exercise of due diligence, plaintiff should have known that it had a potential claim against the FBI prior to August 26, 1976.

First, on November 18, 1974, then Attorney General William Saxbe held a press conference at which he revealed the existence of the COINTELPRO program to the public. At the conference, Saxbe distributed a Department of Justice press release which indicated that “White Hate” groups were a target of the COINTELPRO program.6 The release summarized the techniques used by COINTELPRO against White Hate groups,7 techniques which the Department of Justice conceded, in some instances, to be “abhorrent in a free society.” In oral remarks at the conference, Saxbe spoke specifically about FBI counterintelligence activities against the Klan. He said that some of these activities may have been improper.

The Attorney General’s press conference was attended by the three major networks, the wire services, and many of the leading newspapers in the country. On the following day, November 19, 1974, articles reporting the substance of the press conference appeared in at least two newspapers with a circulation in the Northern District of Alabama, Western Division, where this suit was filed. One of these articles expressly named the KKK as a COINTELPRO target. Where events receive such widespread publicity, plaintiffs may be charged with knowledge of their occurrence. See In re Beef Industry Antitrust Litigation, 600 F.2d at 1169-71; Smith v. Nixon, 606 F.2d 1183, 1190 n. 42 (D.C.Cir. 1979), petition for cert. filed, 48 U.S.L.W. 3404 (Dec. 7, 1979) (No. 79-882).

Second, the report of a United States Senate inquiry into the COINTELPRO pro*155gram was published in April, 1976, over fifteen months before this suit was filed. Select Committee to Study Governmental Operations, Intelligence Activities and the Rights of Americans, S.Rep. No. 94-755, 94th Cong., 2d Sess. (1976). The report catalogs COINTELPRO’s operations concerning the Klan; it cites evidence of FBI involvement in, among other things, wire tapping, thefts, and break-ins directed at the Klan, and the use of Klan members’ federal tax returns to discredit the organization. Id. at Book II, pp. 93,105, 110 & n. 526. The Klan is chargeable with knowledge of the Senate report. See In re Beef Industry Antitrust Litigation, 600 F.2d at 1170 (“Plaintiffs are chargeable with knowledge of the contents of public records.”). “[T]he congressional proceedings should have aroused [plaintiff’s] suspicions, and its failure to investigate further at that time was not the exercise of due diligence required in order to employ the fraudulent concealment doctrine to avoid the bar of the statute of limitations.” Dayco Corp. v. Goodyear Tire & Rubber Co., 523 F.2d 389, 394 (6th Cir. 1975).

Third, a year and two days prior to the day this action was brought, the president of the plaintiff corporation, Robert Shelton, was notified by the Department of Justice that he may have been affected by the COINTELPRO program. Letter from Michael E. Shaheen, Jr., Counsel, U.S. Dept. Justice, Office of Professional Responsibility, hand delivered by a U.S. Marshal, to Robert Shelton on August 24, 1976.

We conclude that the Klan should have known of its potential claim against the FBI before August 26,1976. The judgment of the district court holding that the Klan’s action is time barred is, therefore,

AFFIRMED.