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DESIGNATIONS OF JUDGES FOR SERVICE ON THE

UNITED STATES COURT OF CLAIMS

The Chief Justice of the United States, the Honorable Earl Warren, pursuant to the authority vested in him by Title 28, United States Code, designated and assigned the following judges to perform the duties of a judge of the United States Court of Claims on the dates indicated below:

June 2, 1959-Honorable Charles Fahy, Judge, United
States Court of Appeals for the District of Columbia
Circuit.

June 3, 1959-Honorable John A. Danaher, Judge,
United States Court of Appeals for the District of
Columbia Circuit.

November 2-6, 1959-Honorable Alfred D. Barksdale,
Retired Judge, United States District Court for the
Western District of Virginia, Fourth Circuit.

November 30, 1959-June 30, 1960-Honorable Stanley
F. Reed, Retired Associate Justice of the Supreme
Court of the United States.

XII

CASES DECIDED

IN

THE UNITED STATES COURT OF CLAIMS

January 1, 1960, to January 31, 1960, and other cases not heretofore published. Opinions are not ordinarily published until final judgment is rendered. Cases in which motions have been filed are not published until disposition of such motions.

JOSEPH F. O'BRIEN v. THE UNITED STATES

[No. 146-58. Decided January 20, 1960]

ON DEFENDANT'S MOTION TO DISMISS PETITION

Civilian pay; dismissal; estoppel by judgment; laches.—In an action by plaintiff to recover back pay lost because of an allegedly illegal removal from his civilian Government position as an attorney in the Department of Justice, the defendant moved to dismiss the petition on the ground that plaintiff was estopped by a judgment of the District Court, affirmed on appeal by the Court of Appeals for the District of Columbia, wherein plaintiff's claim for restoration to his position was held barred by laches. The court herein held that inasmuch as laches is an equitable defense and plaintiff's claim in the District Court was not decided on its merits, and also because the policy considerations underlying the application of the doctrine of laches differ in a suit for salary from those in a suit for restoration, the Court of Claims is not precluded from considering the question of whether the doctrine of laches should be applied to plaintiff's suit for back pay and the motion to dismiss is accordingly overruled.

Judgment 715(3)

Judgments; estoppel by judgment; District Court judgment in reinstatement of civilian Government employee suit-not on merits. A plaintiff who brings suit in the Court of Claims to recover back pay lost because of an allegedly illegal dismissal from his Government position is not estopped by a prior judgment of dismissal of his suit for restoration to his job in the District Court where the dismissal is not based on the merits of his claim but rather on the ground of laches. Edgar v.

1

Opinion of the Court

148 C. Cls.

United States, 145 C. Cls. 9, Larsen v. United States, 145 C. Cls. 178, and Green v. United States, 145 C. Cls. 628, distinguished. Since the reasons for applying the doctrine of laches to a claim for reinstatement are different from the reasons for applying the doctrine in a suit for back pay, the Court of Claims is not precluded from considering the question of laches in a claim in this court.

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Laches; prejudice-necessity for proof of—in general.-Laches is an equitable defense and its application in each case must be considered in the light of the particular facts of the case and the relief being sought. Where a claim is brought within the statutory period of limitations, it is only where some great injustice would be done to the defendant by delay in bringing the suit that the doctrine of laches will be held to preclude consideration of the claim on the merits.

Equity 69

Mr. Keith L. Seegmiller for plaintiff.

Mr. Edward L. Metzler, with whom was Mr. Assistant Attorney General George Cochran Doub, for defendant.

WHITAKER, Judge, delivered the opinion of the court: Defendant moves to dismiss plaintiff's petition on the ground that plaintiff is estopped from seeking relief in this court because of the judgment of the United States District Court, affirmed on appeal by the Court of Appeals for the District of Columbia Circuit.

Plaintiff in this court sues for his salary, of which he alleges he has been illegally deprived because he was removed from his position as an attorney in the Department of Justice, without compliance with the required procedure and for causes other than the good of the service. In the District Court he sought restoration to the position from which he had been discharged.

Plaintiff's petition in the District Court was dismissed on a motion for summary judgment. The District Court did not give its reasons for granting the motion. On appeal to the United States Court of Appeals for the District of Columbia Circuit, the Court of Appeals entered a per curiam opinion reading as follows:

Appellant's dismissal from a position in the Department of Justice was sustained by the Civil Service Commission's Board of Appeals and Review on March 4,

1

Opinion of the Court

1955. On June 29, 1955, the Commission declined to reopen the matter. On March 27, 1958, appellant filed a complaint "for illegal separation from government service. The District Court granted appellee's motion for summary judgment. The claim was barred by laches. We need not consider appellee's other contentions. [269 F.2d 227]

Defendant pleads estoppel by judgment, relying on the decisions of this court in Edgar v. United States, 145 C. Cls. 9; Larsen v. United States, 145 C. Cls. 178; and Green v. United States, 145 C. Cls. 628. There is, however, a substantial difference between those cases and this one. In both Larsen and Green the District Court and the Court of Appeals for the District of Columbia decided the controversy on the merits. In Edgar, the District Court decided that that plaintiff's suit was barred because she failed to exhaust her administrative remedy. Since this is an absolute legal defense, plaintiff was barred from relitigation in this court. In the instant case, however, the merits of the controversy were never reached, nor was a legal defense raised as a bar. The District Court and the Court of Appeals precluded plaintiff's right to enforce its remedy in their forum on the sole ground of laches.

Laches is an equitable defense, and in its operation it fulfills the same function as the statute of limitations at law. However, laches, unlike the statute of limitations, is a flexible concept based on fairness and applied in the discretion of the court. The cause of the delay, the hardship to the defendant, the nature of the relief, and other factors must all be considered in determining its application.

The determining factors in this court are different from what they were in the District Court. There the suit was for restoration to his position, and the suit here is only for the salary of his position. The hardship on defendant from a tardy assertion of a claim might be much greater in one case than in the other. Plaintiff waited about three and onehalf years to bring his suit in the District Court for restoration to his position. In the meantime, no doubt, another attorney had been appointed in his place and had a number of cases on which he was working. Were plaintiff restored and the substitute attorney displaced, defendant would lose the

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