delivered the opinion of the court:
This is a suit by plaintiff to recover the salary of his position as a firefighter at the Andersen Air Force Base. He sues only for the period during which he was pursuing his administrative remedy and for 17 months thereafter, during which time he says he could not secure positions paying as much as his salary as a firefighter at the Andersen Air Force Base. At oral argument plaintiff’s counsel stated that at the end of the period for which he sues, plaintiff started his own business and, notwithstanding any allegation in his petition to the contrary, he is now claiming no backpаy after 17 months from the date of the exhaustion of his administrative remedy on August 1,1957.
Defendant moves for summary judgment on the ground, first, that plaintiff is estopped by the decision of the District Court for the District of Columbia dismissing his petition for restoration to his position on the ground of laches, and, second, even if collateral estoppel does not apply, on the ground of laches in bringing suit in this court.
The facts as set out in the pleadings and the exhibits filed in connection with the motion for summary judgment show
It was indeed a “temporary” appointment, because plaintiff was removed from the position the next day because, in a reduction in force, the position to which he had been assigned was abolished.
He contested the action and exhausted his administrative remedy on August 1,1957. His first appeal to a judicial tribunal for redress was on June 17, 1960, when he filed suit in the Distriсt Court for the District of Columbia seeking restoration to his position. (According to the statement of his counsel at oral argument, hе no longer wishes restoration.) His petition was dismissed for laches, the Court of Appeals affirmed, and the Supreme Court denied сertiorari on May 26, 1962, in Chappelle v. Sharp, et al.,
Defendant’s position that plaintiff is estopped by the decision of the District Court, affirmed on appeаl, dismissing his case because of laches, cannot be sustained, on the authority of O'Brien v. United States,
But, defendant also says that, even though collateral estoppel may not apply, plaintiff was nevertheless guilty of laches in bringing his suit in this court. It says nearly three yeаrs elapsed after the exhaustion of his administrative remedy before he first sought redress in any judicial tribunal, and that ten more months passed between the end of his suit for restoration and his suit in this court for lost pay.
Of course, the only justification for cutting down the period аllowed by Congress for bringing suit in this court,
In this case, however, defendаnt will not be required to pay double salary for the position nor will its service be disrupted by the recovery of a judgment by plaintiff; this is for thе reason that plaintiff’s position had been abolished and for the additional reason that plaintiff now forswears any demand for restoration to his old position and for any salary accruing after the date of the judgment in this case. Furthermore, plaintiff is not suing fоr all the salary that has accrued from the date of his discharge to the date of judgment; he is suing only for the period of time during which he was pursuing his administrative remedy and for 17 months thereafter. Presumably, plaintiff could not maintain a suit thereafter because what he was receiving from private employment or from his own business equalled the salary of which he had been deprived, or for some reason he was unable to serve in his old position.
Such being the case, defendant is no more prejudiced by the institution of suit by plaintiff in 1963 thаn it would have been had he sued immediately after the period for which he now asks to be paid. Since his suit was brought within the six-year pеriod allowed by statute, it is in time. As we said in O'Brien v. United States, supra, at 3:
* * * 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*367 оther factors must all be considered in determining its application.
The court has held that under the doctrine of laches, the рlaintiff’s suit was barred in quite a number of cases, the latest of which are Bovard v. United States,
Wha't we said in Simon v. United States,
* * * Plaintiff’s claim is for his salary only during the three months and five days between the dates of his discharge and reinstatement. It seems to us that plaintiff promptly took the proper steps to establish his right to his position, which steps brought about his reinstatement. The аmount of plaintiff’s claim for salary was fixed as of the date of his reinstatement and any subsequent delay in bringing this action could not impоse any additional burden upon the Government. In these circumstances the defense of laches is not applicable.
Here also the amount of plaintiff’s claim for salary is fixed.
Defendant’s motion for summary judgment is overruled and the case is remanded to the commissioner for trial.