UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) JOHN J. BREEN, ) ) Plaintiff, ) ) v. ) Civil Action No. 78-2222 (RBW) ) HERBERT L. TUCKER, et al., ) ) Defendants. ) ) MEMORANDUM OPINION I. Introduction. In 1977, the District of Columb ia (the “District”) terminated plaintiff John J. Breen from his temporary employment with a former agency of the District government, and then when forced to reinstate him, failed to convert the pos ition from temporary to permanent. Mr. Breen brought suit against the District under Title VII of the Civil Ri ghts Act, 42 U.S.C. §§ 2000e to 2000e-17, and ultimately prevailed on February 27, 1981. The Court then ordered that Mr. Breen be reinstated into a permanent positi on and awarded him pay and benefits, including retirement contributions, for the period dur ing which Mr. Breen had been unemployed. Mr. Breen now alleges that the District failed to comply with the Court’s 1981 order by not including the time during which he was unemp loyed in its calculation of the retirement benefits he is now entitled to a nd he requests that the Court hold the District in contempt. The District makes two arguments in response: First, the District points to th e Court’s denial of an earlier similar motion by Mr. Bree n, claiming that, as with this first motion, the Court cannot discern what Mr. Breen claims, what relief he seeks, or whether he is entitled to whatever that relief might be. Second, the Dist rict argues that the doctrine of laches prevents the Court from2 enforcing the 29-year-old judgment due to inexcu sable delay by Mr. Breen in pressing his claim and prejudice to the District if it were required to defend it. The Court disagrees with both arguments. As to the first District argu ment, the 1981 order clearly requir es that the District pay Mr. Breen retirement benefits for the time during which he was unemployed and Mr. Breen clearly seeks to enforce that requirement. As to th e second, Mr. Breen only disc overed that the order had apparently been violated when he received a letter in January of this year, and the District would face no undue prejudice by being required to explain whether and why it is allegedly failing to make proper retirement payments to Mr. Breen. The Court wi ll not, however, hold the District in contempt, at least no t yet. Instead, the Court will or der the District to explain why, based on Mr. Breen’s allegations, it is not in violation of the Court’s 1981 order. II. Mr. Breen’s Efforts to Enforce the Court’s 1981 Order. Beginning in 1974, Mr. Breen, a white male, was employed by the District of Columbia Department of Environmental Services (the “Department”). February 27, 1981 Memorandum Opinion (hereinafter “Mem. Op.”) at 1. A lthough he had previously been employed as a permanent employee by the Department in anothe r position, his employment in 1977, as a result of a promotion, was in a temporary position that “had a not-to-exceed . . . date of August 28, 1977.” Id. “It was the practice of the Personnel Office at [the Department],” however, “to convert qualified employees whose temporary pos itions were about to expire[] to permanent positions at [the Department], especially when the employee had been a permanent employee.” Id. at 1–2. In 1976, following an argument and physical al tercation with several black coworkers, Mr. Breen was suspended and, on February 27, 1977, fired. Id. at 2. Mr. Breen administratively3 complained that his termination was racially motivated and was awarded reinstatement. Id. at 2– 3. However, after his temporary position ended on August 28, 1977, Mr. Breen’s position was not converted to a permanent position. Id. at 3. Instead, the District improperly “referred to his removal in evaluating” Mr. Breen for the several vacancies to which he applied, resulting in him “not [being] selected alth ough imminently qualified.” Id. Mr. Breen again administratively challenged his non-selection base d on racial discrimination, id. at 4, which eventually led to him filing two suits against the District, this case and Breen v. District of Columbia , No. 80-cv-709, alleging violations of Title VII of the Civil Rights Act. The two cases were jointly tried and, on February 27, 1981, the Court rendered judgment in Mr. Breen’s favor. See Mem. Op. The Court ordered, among other things, that the District reinstate Mr. Breen, pay him “back pay equal to the difference betw een his salary if he had not been discriminatorily terminated and that whic h he has received since August 28, 1977,” the date his temporary position ended; that the District provide Mr. Breen with “all fringe benefits” to which he would have been entitled absent his disc riminatory termination; and that the District pay his “reasonable attorney’s f ees and costs.” Order, ECF No. 2-1. The Court specified that fringe benefits include, among other th ings, “retirement contributions.” Id. Mr. Breen now alleges that the District “did not make such retirement c ontributions.” Second Motion for Enforcement of Judgment (hereinaft er “Pl.’s Mot.”) ¶ 2, ECF No. 7. This is not the first time that Mr. Breen has ma de such allegations. In March of this year, Mr. Breen filed his first motion advancing the same allegations, which the Court denied for noncompliance with several Local Rules of this Court. Order, May 11, 2010, ECF No. 5. In denying the earlier motion, the Court noted that “on the basis of the pa pers filed, the Court cannot discern what is at issue in the motion” and thus cannot “d iscern what relief the plaintiff4 seeks to be enforced or . . . conc lude that the relief the plaintiff seeks this Court to enforce was in fact granted” in the 1981 order. Id. at 2. The District now seizes on that language, arguing that Mr. Breen “has provided no new information in his renewed motion to satisfy the Court’s concerns” and that the Court therefore cannot identify what Mr. Breen seeks or whether he is entitled to it. Defendant District of Columbia’s Memorandum in Opposition to Plai ntiff’s Second Motion for Enforcement of Judgment (hereinafter “Def.’s Mem.”) at 2–3, ECF N o. 8. The Court disagrees. What is at issue in the current motion is whether the District comp lied with the Court’s 1981 order with respect to making retirement contributions on the plaintiff’s be half. Pl.’s Mot. ¶ 1. Mr. Breen now clearly alleges that the District has not made the contri butions that it was requi red to make under the 1981 order. Pl.’s Mot. ¶ 2. As a result of the alleged failure to make the court-ordered contributions, Mr. Breen is alleging that the United States Office of Personnel Management (OPM) is not currently providing him with the a ppropriate amount of retirement benefits he is entitled to receive. See Letter from J. Blanks, Retirement Services Program, OPM, to John J. Breen (Jan. 19, 2010), ECF No. 2-1 (hereinafter the “OPM Letter” ). Mr. Breen also clearly states the relief he is seeking: that the Court hold the District in contempt for violating the order to induce the District’s compliance. See Pl.’s Mot ¶ 3. 1 The Court is therefore now satisfied that

1 Mr. Breen recommends a novel means by which he thinks the Court can “help the defendant’s attorney have her c lient obey the Court’s order”: havi ng the District make designated responses to specified questions submitted by the OPM. See Plaintiff’s Memorandum in Support of his Second Motion for Enforcement of Judgment (hereinafter “Pl.’s Mem.”) at 1–2, ECF No. 7. Although Mr. Breen offers this creative solutio n, the Court’s contempt power is not so broad as to permit it to order, with such specificity, another party to engage in such a colloquy.5 the plaintiff has adequately artic ulated the nature and basis for why he believes the District has not complied with the Court’s 1981 order. 2 III. The Applicability of the Doctrine of Laches to Mr. Breen’s Motion. The doctrine of laches applies to a party asserting a claim on which action was not taken with diligence and where the pa rty opposing the claim would be prejudiced if made to defend against it. Here, the Court finds, for the followi ng reasons, that Mr. Breen has pursued his claim diligently and that the District would not be prejudiced if made to defend against it. Accordingly, the Court will order the District to respond to the me rits of Mr. Breen’s allegations. A. The Applicability of Laches Depends on Diligence and Prejudice. The District of Columbia Circuit recently de scribed the doctrine of laches as follows: The equitable defense of laches “is designed to promote diligence and prevent enforcement of stale claims” by those who have “‘slumber[ed] on their rights.’” Gull Airborne Instruments, Inc. v. Weinberger , 694 F.2d 838, 843 (D.C. Cir. 1982) (quoting Powell v. Zuckert , 366 F.2d 634, 636 (D.C. Cir. 1966)). Laches “applies where there is ‘(1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.’” Pro Football, Inc. v. Harjo , 565 F.3d 880, 882 (D.C. Cir. 2009) (quoting Nat’l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 121–22 (2002)). Menominee Indian Tribe v. United States , 614 F.3d 519, 531 (D.C. Cir. 2010). Concerning lack of diligen ce, the Court explained: “[L]aches is not, like limitati on, a mere matter of time,” Holmberg v. Armbrecht , 327 U.S. 392, 396 (1946), but “attach es only to parties who have unjustifiably delayed in bringing suit.” Pro-Football, Inc. v. Harjo , 415 F.3d 44, 49 (D.C. Cir. 2005) (per curiam) (emphasis added). The doctrine is equitable in nature, and its application “turns on whether the party se eking relief ‘delayed inexcusably or

2 Mr. Breen additionally alleges that the retirement authority has improperly calculated his retirement benefit because th e authority’s records indicate an incorrect date of separation in 1985. See Pl.’s Mem. at 1–2. Mr. Breen claims that he separated on June 21, 1985, whereas OPM indicates that he separated on June 12, 1985. See OPM Letter. Because this dispute does not relate to any components of the Court’s 1981 order, the Court will not address it, as this case is not the proper vehicle to challenge the accuracy of District’s record concerning the date of Mr. Breen’s 1985 separation.6 unreasonably in filing suit,’” not si mply whether the party delayed. Id. (quoting Rozen v. District of Columbia , 702 F.2d 1202, 1203 (D.C. Cir. 1983) (per curiam)). Menominee Indian Tribe , 614 F.3d at 531–32. Concerning prejudice, the Cour t has stated: “Two kinds of prejudice support a laches defense. Plaintiff’s delay in filing suit may ha ve resulted in a loss of evidence or witnesses supporting defendant’s position or the defendant ma y have changed its position in a manner that would not have occurred but for plaintiff’s delay.” Gull Airborne , at 694 F.2d at 844 (citing Concerned About Trident v. Schlesinger , 400 F. Supp. 454, 748 (D.D.C. 1975). B. Mr. Breen’s Diligence. The District first argues that laches should bar Mr. Breen’s motion because he did not act diligently in bringi ng to the Court’s a ttention the alleged violation of the 1981 order, stating that “because [t he] plaintiff has waited twenty-n ine years to assert his rights to enforce the Court’s order, it would be . . . unfair . . . to allow [the] plaintiff to now proceed.” Def.’s Mem. at 4–5. As support fo r its position, the District cites several cases where laches has been applied to “much shor ter periods of delay,” concluding therefore that “a 29-year delay is unconscionable.” Id. at 4. But the Distri ct fails to consider whether that delay is reasonable, justifiable, or excusable. Mr. Breen alleges that he only discov ered the violation of the 1981 order—the failure to make the ordered retirement c ontributions—when he r eceived a letter on January 25, 2010, from the OPM. Plaintiff’s Memorandum of Points and Authorities in Reply to the Defense of Laches ¶ 3, ECF No. 10. That letter informed Mr. Breen, allegedly for the first time, that the retirement authority had no record of his service, and thus no retirement contributions, for the time between his discriminatory firing and his7 court-ordered reinstatement. Id. ; OPM Letter. Far from sleeping on his rights, when Mr. Breen realized that the Court order had al legedly been violated, he promptly—within approximately one month—filed his first motion to enforce it. See Motion for Enforcement of Judgment, Mar. 1, 2010, ECF No. 2. What the District characterizes as a 29-year delay is therefore more appropriately characterized as a one-month delay, which is hardly of the duration to which laches should apply. C. Prejudice to the District. The second argument advanced by the Dist rict is that lach es should bar Mr. Breen’s motion because it “would be severely pr ejudiced should it be made to defend this action.” Def.’s Mem. at 3. Specifically, the District bemoans that the “agency which the plaintiff purportedly worked for has been reorganized [to the degree] that it is no longer part of the District governme nt, thus creating the substant ial likelihood that information has been lost,” and that “persons working w ith [the] plaintiff during the time the Order was issued or those responsible for complyi ng with the Court’s Order are, more likely than not, no longer available to assist the District in its defense.” Id. at 3–4. The District thus relies on the first sort of prejudice as jus tification for applyi ng the doctrine of latches: the lack of evidence or witnesses to defend against the plaintiff’s claim. This argument is unpersuasive for the following reasons. First, the District only argue s that there is a “substantial lik elihood” and that it is “more likely than not” that evidence and witnesses wi ll be unavailable to it. The District does not say, however, that evidence and witnesses are actually unavailable. Th e Court is not convinced by the District’s unsupported contentions as to the me re likeliness of unavailability, made without any apparent attempt to verify actual unavailabi lity, that laches should bar Mr. Breen’s motion.8 Moreover, even if the Court were certain that evidence or witnesses from 1981 are now unavailable, the District still woul d not be prejudiced if made to defend the merits of Mr. Breen’s allegations. As the basis for paying proper benefits to retirees, the District must maintain some records concerning periods during wh ich retirement contributions we re made. In this situation, the Court ordered more than 29 years ago that th e District make retirement contributions on the plaintiff’s behalf for the time betw een his firing and his reinstatement. If today, the District fails to count these court-ordered contri butions in its calculation of th e plaintiff’s retirement benefits, then the District is in violati on of the Court’s 1981 order. Whet her the District made the ordered contributions and is now therefore making the pr oper benefits calculation, is not seemingly a question that needs to be answered by hard-t o-find employees of the no-longer-extant agency from which the plaintiff was illegal ly discharged. It is a question for whatever agency calculated and has the responsibility for currently paying Mr. Breen’s retirement. The Court finds it implausible that evidence from these s ources is not available to the District. IV. Conclusion. The Court now appreciates what Mr. Breen is alleging—that the District failed to make court-ordered contributions into his retirement annuity—and what he wants—for the District to make the required contributions so that he receives proper retirement payments. And the doctrine of laches does not forbid the Court from considering the merits of Mr. Breen’s motion, because he has pursued his claim diligently and because the District woul d not be prejudiced by being made to defend against the relief he is s eeking. However, the District has not yet provided the Court with a defense to the merits of Mr. Br een’s allegations. The C ourt desires to consider any such defense, if the District chooses to raise one, before it rule s on Mr. Breen’s motion.9 Therefore, in a separate order to issue this date, the Court will or der the District to respond to the merits of the plaintiff’s allegations.
/s/ REGGIE B. WALTON United States District Judge Date: January 20, 2011