Blair v. Page Aircraft Maintenance, Inc.

• Decision Date: 01 December 1972
• Docket Number: No. 72-1129.,72-1129.
• Citation: 467 F.2d 815
• Parties: Curtis R. BLAIR et al., Plaintiffs-Appellees, v. PAGE AIRCRAFT MAINTENANCE, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

467 F.2d 815 (1972)

Curtis R. BLAIR et al., Plaintiffs-Appellees, v. PAGE AIRCRAFT MAINTENANCE, INC., Defendant-Appellant.

No. 72-1129.

United States Court of Appeals, Fifth Circuit.

September 28, 1972.

Rehearing and Rehearing Denied December 1, 1972.

Edward E. Soule, Oklahoma City, Okl., for defendant-appellant.

Ira De Ment, U. S. Atty., Montgomery, Ala., Richard F. Schubert, Solicitor of Labor, U. S. Dept. of Labor, Washington, D. C., Beverley R. Worrell, Regional Solicitor, Roger J. Martinson, Atty., Dept. of Labor, Atlanta, Ga., Alan S. Rosenthal, Greer S. Goldman, Dept. of Justice, Civ. Div., Washington, D. C., for plaintiffs-appellees.

Before TUTTLE, COLEMAN and CLARK, Circuit Judges.

Rehearing and Rehearing En Banc Denied December 1, 1972.

COLEMAN, Circuit Judge:

The appellees are five reemployed veterans who brought separate suits against their employer, Page Aircraft Maintenance, Inc., seeking back pay for alleged violation of reemployment rights under 50 U.S.C.A. App., § 459.¹ The heart of the complaints was that Page had, in contravention of that statute, refused to count the time spent in military service as time worked on the job for the purpose of determining each veteran's rate of pay. Page moved to dismiss the complaints on the ground that the actions were barred by the Alabama statute of limitations, Code of Alabama, Title 7, § 26. The motion was denied by the court, which concluded that the Alabama statute was not controlling. Subsequently, the district court, 336 F.Supp. 1011, entered judgment for each plaintiff for the entire amount sought. From that judgment Page appeals. We reverse.

Curtis Blair

After completing his military service, Blair returned to work at Page on June 29, 1964. On October 28, 1965, sixteen months after his reemployment date, Blair requested assistance from the Office of Veterans Reemployment Rights, Department of Labor, to intercede on his behalf to obtain certain progressive wage increases. The Regional Director of Office of Veterans Reemployment Rights, after failing to reach an agreement with Page, referred the case to the Department of Justice for its review on September 23, 1966.

Delma Johnson

Johnson returned to work on June 21, 1965. On February 11, 1966, eight months after his reemployment, Johnson requested assistance from the Veterans Reemployment Office. The Regional Director referred the case to the Department of Justice on September 23, 1966.

Roger Wilson

Wilson returned to work on September 8, 1965. On June 9, 1967, twenty-one months after his reemployment, Wilson sought aid from the Veterans Reemployment Office. The case was referred to the Department of Justice on September 12, 1967.

Ronald Burns

Burns returned to work on June 13, 1966. Slightly less than a year later, on June 9, 1967, he requested assistance from the Office of Veterans Reemployment Rights. On September 12, 1967, Burns' file was referred to the Department of Justice.

W.M. Giles

Giles returned to Page on November 7, 1966. Three months later, on February 16, 1967, he requested Labor Department assistance in pursuing his claim. Giles' case was referred to the Justice Department on September 12, 1967.

On April 9, 1971, the Justice Department instituted suits on behalf of the five employees against Page.

During the period covered by these actions collective bargaining agreements were in force between Page and the International Association of Machinists Union, Local 2003. These contracts provided for certain "progressive wage increases" after every "four (4) months of work" or "sixteen (16) weeks of work"² until an employee reaches the maximum rate of his job classification. Leaves of absence of five days or more were not to be considered in computing the progressive wage increases.³ The contracts were silent as to how leave for military duty was to be counted in computing the wage increases. Because of the disposition of this case on another point, it is unnecessary to consider Page's contention that leave for military duty is excluded for purposes of computing the time for wage increases.

There is no federal statute of limitations applicable to actions brought under 50 U.S.C.A. App., § 459. In such a situation the federal court must rely on the limitation period prescribed by the state where the controversy originated, O'Sullivan v. Felix, 233 U.S. 318, 322, 34 S.Ct. 596, 598, 58 L.Ed. 980 (1914); Balkam v. Woodstock Iron Co., 154 U.S. 177, 187-188, 14 S.Ct. 1010, 1014, 38 L.Ed. 953 (1894); Moviecolor Ltd. v. Eastman Kodak Co., 2 Cir., 1961, 288 F.2d 80, cert. den. 368 U.S. 821, 82 S.Ct. 39, 7 L.Ed.2d 26, 90 A.L.R.2d 252. In the situation now before us the Alabama statute of limitations controls. To determine which Alabama limitation statute is applicable to a Section 459 right, we must first ascertain under federal law the nature of the right and then decide which statute of limitations Alabama would have enforced if the action seeking similar relief had been brought in the state court. Sewell v. Grand Lodge of International Association of Machinists and Aerospace Workers, 5 Cir., 1971, 445 F.2d 545, 549, cert. denied, 404 U.S. 1024, 92 S.Ct. 674, 30 L. Ed.2d 674 (1972); Beard v. Stephens, 5 Cir., 1967, 372 F.2d 685, 688.

The applicable Alabama statute establishes a one year period of limitation for which an action of this kind must be brought.⁴ However, the district court, after considering this statute, overruled appellant's motion to dismiss on the ground "that the relief sought by the appellees is equitable in nature, and that the Alabama statute of limitations is, accordingly, not controlling". The court was obviously basing its holding that equitable relief was involved on the appellees' original bill of complaint which sought, in addition to a recovery of lost wages, job security, seniority, and other benefits. Apparently the district court did not have its attention directed to the written stipulation in which appellees stated that they sought "only to recover for alleged loss of pay". Since the only relief requested was the recovery of money, equitable relief will not lie, 27 Am.Jur.2d Equity § 112. This was a case at law and not in equity. The matter therefore properly fell within the ambits of the Alabama statute of limitations.

Even if the relief prayed for had been of an equitable nature, appellees would confront Code of Alabama, Title 7, § 18, which provides:

"All other civil actions, in law or equity, must be commenced after the cause of action has accrued within the period prescribed in this chapter and not afterwards, unless otherwise specifically provided for in this Code."⁵ Emphasis added.

Code of Alabama, Title 7, § 31, also provides:

"This article shall apply to and govern both courts of law and courts of equity, whether the claim asserted be legal or equitable debts or obligations."⁶ Emphasis added.

Finally, this Court, in Hart v. First National Bank of Birmingham, Ala., 373 F.2d 202, 204-205 (1967), laid to rest any doubt as to the applicability of the statute when it held that it applied to both legal and equitable cases.

The dates of reemployment of the five appellees-employees range from June 29, 1964, to November 7, 1966. Assuming, without deciding, that pursuant to 50 U.S.C.A. App., § 459(c) each of the appellees were entitled to one year of mandatory reemployment, this one year period expired for the last appellee on November 7, 1967. The limitation period began to run on each employee's time from the day his right to action accrued. The last day of mandatory reemployment constituted the final day on which the cause of action accrued. The cause of action for the last employee to be reemployed accrued on November 7, 1967, and he had one year from that date in which to file suit. However, no suit was filed until almost two and one half years later, April 9, 1971. Therefore, the Alabama one year statute of limitations bars the action.

Much emphasis is made of the fact that the delay in bringing suit was not the fault of the employees but instead was due to the tardiness of the Departments of Justice and Labor. Appellees contend that the delay is the result of governmental bureaucratic procedure and therefore they would be unjustly penalized if they are precluded from bringing suit. But delays by counsel do not toll limitations. To hold otherwise is to defeat the very purpose of limitational statutes. As was quite succinctly stated in another Alabama case before this Court:

"It is of course unfortunate for the plaintiff to be barred from enforcing what may be a meritorious claim, but that is always the consequence when a statute of limitations applies. It is a statute of repose, designed to compel suit within a reasonable time in the interest of society, serving to prevent perjuries, frauds, and mistakes. Its purpose is to force a litigant to get moving, and to get moving fast — to pursue every avenue of relief promptly, while the evidence is fresh and the witnesses available." Dedmon v. Falls Products Incorporated, 5 Cir., 1962, 299 F.2d 173, 178.

In his partially dissenting opinion, Judge Tuttle expressed the view that

"The majority penalize the veteran for this inevitable delay occurring after his complaint is filed with the Labor Department but before the Government subsequently files suit against the employer. This would disembowel the Act."

The majority respectfully disagrees. The proceedings with reference to Blair and Johnson were referred to the Department of Justice on September 23, 1966. The proceedings on behalf of Wilson, Burns, and Giles were referred to the Department of Justice on September 12, 1967. The Department did not file suit until April 9, 1971. This was 4½ years after the Department got the case as to the first two men and 3½ years after the Department got the case as to the last three claimants.

We have held, page 7 ante, that the last date for the filing of suit as to any of the men was November 7,...