Blake v. City of Columbus, C-2-83-31.

• Decision Date: 28 December 1984
• Docket Number: No. C-2-83-31.,C-2-83-31.
• Citation: 605 F. Supp. 567
• Parties: Richard A. BLAKE, Plaintiff, v. CITY OF COLUMBUS, Defendant.
• Court: U.S. District Court — Southern District of Ohio

605 F. Supp. 567

Richard A. BLAKE, Plaintiff, v. CITY OF COLUMBUS, Defendant.

No. C-2-83-31.

United States District Court, S.D. Ohio, E.D.

December 28, 1984.

Albert R. Ritcher, Asst. U.S. Atty., Columbus, Ohio, for plaintiff.

Guy L. Reece, II, Asst. City Atty., Columbus, Ohio, for defendant.

MEMORANDUM AND ORDER

DUNCAN, District Judge.

Plaintiff filed this action on January 5, 1983, under Section 404(a) of the Vietnam Era Veterans Readjustment Assistance Act of 1974, 38 U.S.C. § 2021 et seq. Plaintiff alleges that defendant, City of Columbus, violated 38 U.S.C. § 2024(d) by refusing to reinstate plaintiff to his pre-service position with the Division of Police with such seniority, status, pay and vacation as plaintiff would have had if he had not been absent for military service. Defendant denies committing any violations of the Act and claims that plaintiff has received all re-employment benefits to which he is entitled. Defendant further claims that this action is barred pursuant to the doctrine of laches. This action is presently before the Court on plaintiff's motion for summary judgment. In addition, by agreement of the parties, the case was submitted to the Court upon the joint stipulation of facts, other evidence of record, and briefs for decision on the merits. The Court's findings of fact and conclusions of law are set forth below.

I

The essential facts as they appear in the joint stipulation of facts, the depositions, and other matters of record are as follows.

1. Plaintiff was hired by the City of Columbus on May 1, 1967, as a full-time police patrolman in the Division of Police, Department of Public Safety.

2. On August 11, 1967, plaintiff was ordered to active duty for training in the Army National Guard for a period of duty from August 12, 1967 to September 2, 1967.

3. During the course of his military duties plaintiff suffered a severe injury to his right hand and arm when he was loading a mortar on August 22, 1967.

4. From August 1967 to February 1968 plaintiff received surgery and treatment for his injury on an inpatient and outpatient basis at military hospital facilities.

5. In February 1968, plaintiff returned to Columbus and applied for reinstatement with defendant Division of Police.

6. Defendant's chief physician determined that because of his injury plaintiff was not qualified to perform the duties of a police patrolman in the Division of Police and would not be so qualified in the foreseeable future. Although a physician with the Walter Reed Army Medical Center issued his opinion that plaintiff would regain improved use of his hand over several months and that plaintiff was presently qualified to perform light duty work, defendant refused to reinstate him.

7. On April 18, 1968, plaintiff was transferred to the Department of Services, Division of Airport, based upon his inability to operate a firearm in accordance with the Division of Police standards as determined by the City Chief Physician.

8. Plaintiff served as a full-time Airport Police Officer with the Division of Airport from April 16, 1968 until April 13, 1969. On April 13, 1969, plaintiff was restored to the Division of Police as a Patrolman pursuant to the Chief City Physician's determination that plaintiff was qualified to perform the duties of a police patrolman.

9. The airport police were uniformed and they were authorized to use a .38 caliber revolver. Their duties included making felony and misdemeanor arrests.

10. From 1968 through 1971 plaintiff, acting alone and through counsel, sought to be returned to the Division of Police and after his transfer back to the Division of Police sought to regain police department benefits lost while plaintiff was with the Division of Airport.

11. On July 15, 1971, the City of Columbus Civil Service Commission determined that plaintiff had continuous service from May 1, 1967. The period of continuous service is the period of the employee's service, uninterrupted by resignation, retirement, or discharge for cause, excluding leaves of absence without pay except military leave.

12. Plaintiff has been on active service with the Division of Police since April 13, 1969. Active service is defined as "being present for the performance of duties to which an officer ... of the City of Columbus has been assigned." In this case, active service has been construed by the defendant to mean that time actually spent in service with the Division of Police.

13. Plaintiff has been denied advancement on the Division of Police administrative seniority list to May 1, 1967, his original date of appointment to the Division of Police. Plaintiff's current adjusted appointment date on the seniority list is May 11, 1968. The seniority list is based on total active service with the Division of Police, including periods of active military service. This seniority list is used as an administrative tool to determine priorities for transfers, days off, and vacation time. The date plaintiff is considered to have begun "active" service also determines his eligibility for pension benefits.

14. Plaintiff asserts he first learned that he did not have the same status on the administrative seniority list as that of his continuous service when he did not receive some benefits that such status would have entitled him to in 1975. Prior to 1975 plaintiff states that he had no reason to believe that his seniority status based on active service was not equal to his continuous service.

II

This case is before the Court on plaintiff's motion for summary judgment. A motion for summary judgment should be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. There are two issues in this case. The first issue presented is whether the doctrine of laches bars plaintiff from asserting in a lawsuit filed in 1983 his claim under the Vietnam Era Veterans Readjustment Assistance Act of 1974, 38 U.S.C. § 2021 et seq., regarding a cause of action which accrued in 1968.

Congress did not provide a federal statute of limitations to limit the period of time in which a suit may be brought under this statute. Under the enforcement procedures of 38 U.S.C. § 2022 Congress specifically states that "no State statute of limitations shall apply to any proceedings under this chapter." Courts will apply the equitable doctrine of laches to determine whether plaintiff has unduly delayed the filing of his claim. In determining whether the doctrine of laches applies in a case brought pursuant to 38 U.S.C. § 2022, "a court should focus upon the length of the delay, the reasons therefor, how the delay affected the defendant, and the overall fairness of permitting the assertion of the claim." Goodman v. McDonnell Douglas Corp., 606 F.2d 800, 806 (8th Cir.1979). See Stevens v. Tennessee Valley Authority, 712 F.2d 1047, 1056 (6th Cir.1983). If both elements are met, the doctrine of laches bars the lawsuit.

Defendant argues that there was inordinate and inexcusable delay when plaintiff asserted a claim in 1983 which had accrued about 15 years earlier in 1968. Plaintiff counters this argument by asserting that except for a five-year period of time from 1976 to 1981 when plaintiff did not press his claim, the delay is excusable because of plaintiff's continuous efforts from 1968 to 1976 to have his full status with the Division of Police restored and plaintiff's efforts at negotiating a settlement with defendant through the United States Attorney's office from 1981 until this lawsuit was filed in 1983.

The facts presented do not fully support this contention by plaintiff. Although it appears that plaintiff actively pursued his claim to regain full status with the Division of Police from 1968 to 1971, it is equally clear that from 1971 to 1975 plaintiff did nothing because he was under the mistaken belief that he had achieved his goal in 1971.

At first blush the United States Court of Appeals for the Sixth Circuit appears to subscribe to the view that laches is rebuttably presumed if suit is commenced after the most analogous state statute of limitations has run. Thereafter plaintiff has the burden of persuasion to show excusable delay and absence of prejudice to defendant. This is the substance of the Court of Appeals holding in TWM Mfg. Co. v. Dura Corp., 592 F.2d 346, 348-49 (6th Cir.1979), a case involving federal patent law and a patent infringement action. In Greathouse v. Babcock & Wilcox Co., 381 F.Supp. 156, 163 (N.D.Ohio 1974) the court used similar reasoning in deciding a case under the Vietnam Veterans Readjustment Assistance Act. However, dicta in a recent case strongly suggests that the Sixth Circuit has abandoned this view and would now follow the Eighth Circuit's approach in Goodman v. McDonnell Douglas Corp., 606 F.2d 800 (8th Cir.1979) whereby a state statute of limitations is only one element to be considered in determining whether the length of the delay was unreasonable and whether the potential for prejudice was great.

In Stevens v. Tennessee Valley Authority, 712 F.2d 1047 (6th Cir.1983), plaintiff brought an action under 5 U.S.C. § 3551, the Veterans Preference Act, seeking reinstatement with full seniority to his pre-service position with the TVA. The defense of laches was raised by defendant. Congress did not specifically provide a statute of limitations for that Act so the Court looked to 38 U.S.C. § 2022 as an analogy for guidance on the effect of the running of a state statute of limitations.

After noting the rule which had been applied in TWM Mfg. Co., supra and Greathouse, supra, the Sixth Circuit stated:

Whatever may be the wisdom of that rule generally, it is in our view one which ought not be applied rigidly here where Congress has so clearly eschewed any reliance on state statutes of limitations with respect to claims of veterans for reemployment. We do not have a comparable or analogous statute of limitations for

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