until the institution of the action here.
The plaintiff's counter to this proposition is that the defendant had sought to agree to the reinstatement if the action in the Court of Claims for back pay was favorable to the plaintiff. Since the defendant so stipulated it would appear that there is no longer an issue of reinstatement for any court. Reinstatement would follow as a matter of course based upon the defendant's written stipulation as well, as will hereinafter appear, as upon the defendant's use of the stipulation to support its motion for a general continuance.
Under all the circumstances it would appear that there were laches in this case since the defendant suffered prejudice by being put to the defense of two suits, and since the plaintiff filed his action belatedly as far as reinstatement is concerned.
However, the case need not be decided as on a motion to dismiss in view of the fact that the motion for a general continuance is pending. As will appear hereinafter a granting of the latter motion will protect both parties.
An action for reinstatement is equitable in nature and even if there is a clear legal right a court of equity will not grant relief if in its sound discretion it would be improper to do so. Kay Ferer, Inc. v. Hulen, 160 F.2d 146 (8th Cir., 1947). Relief should not be granted unless the case is clear and the reasons are compelling. United States ex rel. Jump v. Ickes, 73 App.D.C. 141, 117 F.2d 769 (1940); cert. den., 313 U.S. 575, 61 S. Ct. 1088, 85 L. Ed. 1533 (1941).
The rule is that an action will be stayed in a court of concurrent federal jurisdiction which receives the case after another court already has the same action filed on its docket. National Equipment Rental, Ltd. v. Fowler, et al., 287 F.2d 43 (2d Cir., 1961). It is also the rule that a court will not order a stay in an action because another action is pending unless the issues and the parties are substantially identical. National Equipment Rental, Ltd. v. Fowler et al., supra. In this case the parties are, of course, different since here the plaintiff sues the Deputy Commissioner, whereas in the Court of Claims plaintiff sues the United States for a money judgment. However, since defendant has stipulated that reinstatement would follow as of course upon the awarding of a money judgment then it would seem that the variance in parties is one of form only. The same reasoning would apply to the issues. The issues here really are the same for it may readily be seen that if reinstatement follows by stipulation upon an award of a money judgment in the Court of Claims, then there is no need for the action in this District for reinstatement. The action here then adds absolutely nothing to the plaintiff's claim on the merits.
Turning to the other rules involving whether or not a stay may be proper, it may be seen that usually stays are granted where the convenience of the parties is best served by trying the action in a certain court. National Equipment Rental, Ltd. v. Fowler et al., supra. Here it may be seen that the Government is a party in both cases. It would serve no convenience on the part of the Government whether the action is tried here or in the Court of Claims. On the contrary, it would serve the convenience of the plaintiff if the action is tried here for the reason that the plaintiff's residence is in Philadelphia and the Court of Claims is in Washington. However, this reason alone will not sustain the denial of the defendant's motion for a stay for there are other considerations.
It is also the rule that where the propriety of the stay is in question the court will look to see where the action was first begun for it is then and there that the plaintiff chooses his forum. Forum-hopping is not encouraged. National Equipment Rental, Ltd. v. Fowler et al., supra. It appears in our case that the plaintiff could have instituted an action in the District Court for the District of Columbia, Borak v. United States, supra, even though at that time he could not have instituted the action in any other District Court. The plaintiff did not choose to do this. Presumably then he was satisfied with the efficacy of his action in the Court of Claims.
Here we find the plaintiff seeking relief which he could have sought in the District of Columbia more than two years ago. His reason for the delay is that it was not convenient to sue there before and it is convenient for him to sue here now. There is no doubt that it is more convenient now. Nevertheless, this is not a case where a litigant justifiably seeks a more convenient forum. If the Government had known that it would have had to eventually defend the claim in two courts, it would have had no motive for stipulating to reinstatement. Moreover, the plaintiff received the benefit of a narrowing of the issue to the question of back pay and now has taken back the consideration the Government received for the stipulation by filing the second suit. This is not equitable conduct and should move a court of equity to deny discretionary relief.
In addition, a court of equity should not be asked to grant relief where the remedy at law is adequate. Because of the stipulation the remedy is adequate in the Court of Claims.
Also, equity abhors a multiplicity of suits and, as well, will not act if action may be unnecessary. Until the Government defaults upon its contingent promise to reinstate there is no need to seek relief in this Court. In order, however, that plaintiff be fully protected, the action will be continued generally until further order of this Court. Thus, the plaintiff may apply for an order in the nature of mandamus should the unlikely event occur and the defendant fail to abide by the stipulation.
In view of the above discussion it is unnecessary to pass upon the remaining contentions and motions of counsel.
And now, this twenty-fifth day of September, 1963, in accordance with the foregoing memorandum opinion, it is ordered that the motion of defendant Robert S. McNamara, Secretary of Defense, for a general continuance be and the same is hereby granted, pending further order of this Court.
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