366 F.2d 634 (D.C. Cir. 1966), 19793, Powell v. Zuckert

Docket Nº:19793.
Citation:366 F.2d 634
Party Name:Robert I. POWELL, Appellant, v. Eugene M. ZUCKERT et al., Appellees.
Case Date:July 28, 1966
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 634

366 F.2d 634 (D.C. Cir. 1966)

Robert I. POWELL, Appellant,


Eugene M. ZUCKERT et al., Appellees.

No. 19793.

United States Court of Appeals, District of Columbia Circuit.

July 28, 1966

Argued March 25, 1966.

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Mr. David I. Shapiro, Washington, D.C., for appellant. Mr. Sidney Dickstein, Washington, D.C., also entered an appearance for appellant.

Mr. Henry J. Monahan, Asst. U.S. Atty., with whom Messrs. David G. Bress, U.S. Atty., and Frank Q. Nebeker and Gil Zimmerman, Asst. U.S. Attys., were on the brief, for appellees.

Before DANAHER, WRIGHT, and LEVENTHAL, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge:

Appellant was employed as a supervisory electronic engineer by the Department of the Air Force at Fuchu Air Station, Japan. On being advised by the Air Force that he would be removed from his position for various alleged violations of regulations, appellant, a veterans preference eligible, 5 U.S.C. §§ 851, 863, elected to contest his removal under the Air Force grievance procedures. The Ad Hoc Grievance Committee conducted a hearing, sustained the removal notice, and appellant appealed to the Twelfth Civil Service Region, San Francisco, California, where the removal was again sustained after a hearing before an appeals examiner at which appellant was present but unrepresented by counsel. The Board of Appeals and Review

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affirmed the decision of the regional office, and the Civil Service Commission denied appellant's petition for discretionary review on April 25, 1963. Appellant filed this action in the District Court seeking judicial review of his discharge on August 26, 1964. The District Court granted summary judgment on the ground of laches.


The defense of laches stems from the principle that 'equity aids the vigilant, not those who slumber on their rights, ' and is designed to promote diligence and prevent enforcement of stale claims. 2 POMEROY, EQUITY JURISPRUDENCE § 418 (5th ed. 1941). To establish the defense the evidence must show both that the delay was unreasonable and and that it prejudiced the defendant. Duncan v. Summerfield, 102 U.S.App.D.C. 185, 251 F.2d 896 (1957). Although appellant's delay of sixteen months in filing suit since exhaustion of his administrative remedies is not generally considered enough time to warrant a finding of laches, 1 the District Court concluded that the time period was inadequately explained and caused prejudice to the Government by requiring it to hire and pay another employee.

Appellant's explanation of his delay in filing suit is inability to secure legal assistance and advice because of his uncontroverted poverty. The District Court considered this 'not a judicially cognizable excuse against a claim of laches, ' citing cases from the Supreme Court and from other federal courts which state generally that poverty is no excuse for postponing assertion of rights. 'In an era when the greatest effort in history is being made to neutralize financial disparity in litigation, ' the court continued, 'there is little reason why a suitor should have to meet frustration because he permitted his limited means to influence too late a start.' In fact, the court concluded: 'To afford an impecunious litigant the privilege of delayed action denied his wealthier counterpart would be an invidious mistake, ' and 'A principle that would recognize as an excuse for a stale lawsuit the amount of time every discharged public employee expended in preparation to meet litigation needs through inadequate personal resources would wreak havoc upon the operations of government.'

The relationship of poverty to laches is a muddy little subject. The germinal case is Hayward v. National Bank, 96 U.S. (6 Otto) 611, 618, 24 L.Ed. 855 (1877), where Justice Harlan Observed that plaintiff's 'poverty or pecuniary embarrassment was not a sufficient excuse for postponing the assertion of his rights.' Actually, Hayward offered no proof whatever of poverty. He had left some stock with the National Bank as security for some loans, and the stock was sold, after notice to Hayward, because he failed to pay his notes when due. For four years he remained silent. Then, when the stock's market price made an 'extraordinary advance, ' he brought suit to nullify the sale. The only evidence on Hayward's financial status revealed in the opinion is that the stock was sold for over $35, 000, and that Hayward had been on familiar terms

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with his bank's officers during the four-year period. There was no claim that Hayward had tried during the four-year period to institute litigation.

The Hayward dictum has been cited by number of courts. But, as in Hayward, the broad pronouncements regarding poverty have invariably been unnecessary. These cases involved periods of delay far longer than eighteen months 2 and plaintiffs who either failed to demonstrate that their delay in bringing suit was related to poverty, 3 or who failed to demonstrate diligence. 4 Obviously a plaintiff cannot explain his lack of diligence simply by claiming he was poor. But it is equally clear that poverty may cause special difficulties which a plaintiff must labor to overcome in order to bring suit. Courts have recognized that special circumstances may intervene and make the institution of litigation more difficult, and have judged the question of laches in terms of the particular plaintiff's diligence in overcoming the resulting barriers.

Thus the Supreme Court excused a delay spent in an attempt obtain reinstatement through Congress, Myers v. United States, 272 U.S. 52, 106-107, 47 S.Ct. 21, 71 L.Ed. 160 (1926) (14 months), and this court has excused delays caused by reasonable mistakes as to the proper procedure, Ritter v. Strauss, 104 U.S.App.D.C. 301, 306, 261 F.2d 767, 772 (1958) (14 months), and as to the applicable rule of law, Duncan v. Summerfield, supra (32 months). It would be anomalous to give any less consideration to the diligent poor. In fact, this court has recognized that a litigant's poverty may create difficulties justifying his delay in bringing suit. In Gurley v. Wilson, 99 U.S.App.D.C. 336, 239 F.2d 957 (1956), plaintiff improperly brought suit in California to secure reinstatement. A year later, the suit was dismissed on the ground that jurisdiction was in the District of Columbia. Another year went by before suit was filed here, and the Government claimed laches. The District Court granted summary judgment on that ground, and we reversed, relying exclusively on plaintiff's uncontroverted affidavit that he had no money when his California suit was dismissed, 'but as soon as he could save enough money to travel to Washington he did so and worked here until he...

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