belief that plaintiff, because of his representation in June 1977, should be precluded from asserting that he is now able to work, and that his disability was brought about by defendants' wrongful acts. These arguments misconstrue the law.
The doctrine of judicial estoppel, as defendants note, prohibits a party from "assert[ing] contrary positions in the same or related proceedings. It is, more properly, a rule which estops a party from 'playing fast and loose' with the courts." Selected Risks Insurance Co. v. Kobelinski, 421 F. Supp. 431, 434 (E.D. Pa. 1976). The implication in plaintiff's November 1980 complaint that he was at that time able to perform a job other than his old ICC job is not necessarily contrary to his June 1977 statement that he could not perform "the vigorous activities required by [his old ICC] position," nor is it contrary to the statement in his June 1983 affidavit that he "[had] been at all times since [his] retirement . . . physically healthy and able and willing to work except at heavy manual labor jobs or at any job in the Philadelphia Office of the Interstate Commerce Commission." (Plaintiff's Exh. "2") Nor is it contrary to his October 5, 1978 declarations that he resigned from employment as a parking lot attendant because he was "physically unable to keep up," or that he resigned from an automobile salesman position because he "could not take the pressure," and that, therefore, he was not sufficiently recovered to earn a livelihood.
(Defendants' Exh. "4") It is entirely possible that plaintiff's condition had improved when he filed suit, and for the purposes of this motion, it must be so assumed.
Furthermore, on this particular issue, plaintiff is not necessarily playing "fast and loose with the courts." In Selected Risks, the U.S. Small Business Administration (SBA) initially succeeded in having a claim filed in federal court dismissed for lack of subject matter jurisdiction.
When plaintiff refiled the same action in state court, the SBA removed the case to federal district court, and opposed a motion to remand to state court. The court permitted remand, ruling that the SBA, having once opposed district court jurisdiction, was judicially estopped from reasserting it. Not only has plaintiff here stopped short of making contrary arguments, he has not necessarily assumed contradictory positions before this court on this issue. Scarano v. Central R. Co. of New Jersey, 203 F.2d 510 (3d Cir. 1953) can also be distinguished. Plaintiff in Scarano sought reinstatement less than thirty days after a jury awarded him damages on his Federal Employers' Liability Act claim of permanent disability. Here, even if plaintiff's representations were contradictory, they were made twenty-two months apart, giving rise to the possibility that he recovered.
In addition, I cannot agree with defendants that "Lawrence's present stance is also at odds with his current acceptance of disability benefits." A retiree's acceptance of a disability annuity should not affect his attempt to redress an alleged violation of his constitutional rights. Nor should the mere receipt of civil service disability benefits prevent an individual from seeking a new job with the government. This practice would frustrate the government's efforts, evidenced by the BRI questionnaire sent to Lawrence nearly fourteen months after his retirement, see supra, n.2, to curtail disability payments to annuitants who are no longer disabled.
Defendants' equitable estoppel argument is based on U.S. ex rel. K&M Corp. v. A&M Gregos, Inc., 607 F.2d 44 (3d Cir. 1979), where the court stated that "among the more important requirements of [equitable] estoppel are that the party to be estopped has misrepresented or wrongfully concealed some material fact and that this party acted with the intention that the asserting party rely to his detriment on his misunderstanding." Id. at 48. Under this test, defendants' argument fails.
First, plaintiff's failure to assert on his application that the government and its agents had caused his retirement does not necessarily constitute a wrongful concealment of a material fact giving rise to equitable estoppel. In any event, these matters are factual issues that cannot be decided on a motion for summary judgment.
Defendants' assertion of "collateral estoppel" also misses the mark. The doctrine of collateral estoppel provides that a
. . . judgment in [a] prior action [between the same parties, but upon a different cause or demand] operates as an estoppel, not as to matters which might have been litigated and determined, but 'only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.' . . . Since the cause of action involved in the second proceeding is not swallowed by the judgment in the prior suit, the parties are free to litigate points which were not at issue in the first proceeding, even though such points might have been tendered and decided at that time. But matters which were actually litigated and determined in the first proceeding cannot later be relitigated.
Kelly v. Warminster Township Board of Supervisors, 512 F. Supp. 658, 663-64 (E.D. Pa. 1981), aff'd mem., 681 F.2d 806 (3d Cir.), cert. denied, 459 U.S. 834, 103 S. Ct. 76, 74 L. Ed. 2d 74 (1982), quoting Sea Land Services v. Gaudet, 414 U.S. 573, 593, 39 L. Ed. 2d 9, 94 S. Ct. 806 (1973). Defendants contend that because the Civil Service Commission (CSC) determined in 1977 that plaintiff was totally disabled, he is barred "from now contending that he was not disabled" (Defendants' Motion for Summary Judgment at p. 20). This argument, however, fails to consider that the claim raised in plaintiff's complaint was not actually litigated and determined by the CSC in the first proceeding. The question decided by the CSC was whether plaintiff was permanently disabled. The question raised in plaintiff's complaint is whether defendants caused the disability. Since there is no identity of issues, there is no collateral estoppel. Donegal Steel Foundry Co. v. Accurate Products Co., 516 F.2d 583, 588 (3d Cir. 1975); Cf. Covington v. Department of Health & Human Services, 750 F.2d 937, 943-944 (Fed. Cir. 1984); Gonzalez v. Department of Transportation, 701 F.2d 36 (5th Cir. 1983) (both noting the importance of holding a hearing on the issue of voluntariness of a civil servant's retirement).
Defendants also contend that plaintiff's failure to file suit until more than three years after his application for disability gives rise to the equitable defense of laches. Defendants note that plaintiff was aware of all the alleged facts surrounding this action when he filed his application and that the ICC would suffer particular prejudice if plaintiff were reinstated with back pay, since the agency, inter alia, has made "significant personnel changes" since plaintiff's departure, including hiring someone to fill his position. Accordingly, reinstatement of plaintiff would effectively force the ICC to pay two civil servants for one job. In addition, defendants argue that any trial today would be hindered by the failure of witnesses to remember the incident.
It is well established that two elements are necessary for the defense of laches: "'(1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.'" Equal Employment Opportunity Commission v. The Great Atlantic & Pacific Tea Co., 735 F.2d 69, 80 (3d Cir.), cert. dismissed, 469 U.S. 925, 105 S. Ct. 307, 83 L. Ed. 2d 241 (1984), quoting Costello v. United States, 365 U.S. 265, 282, 5 L. Ed. 2d 551, 81 S. Ct. 534 (1961). Although there may be some instances when laches can be weighed by the court on a summary judgment motion, e.g., Walker v. McCollough, 257 F. Supp. 560 (E.D. Pa. 1966), the "length of delay and existence of prejudice are questions of fact." Minnesota Mining & Manufacturing Co. v. Berwick Industries, Inc., 532 F.2d 330, 334 (3d Cir. 1976); see GAF Corp. v. Amchem Products, Inc., 570 F.2d 457 (3d Cir. 1978), rev'd 399 F. Supp. 647 (E.D. Pa. 1975).
Both parties have filed affidavits
raising issues of fact that cannot be decided here. See Metropolitan Wire Corp. v. Falcon Products, Inc., 528 F. Supp. 897, 902 (E.D. Pa. 1981); Anaconda Co. v. Metric Tool & Die Co., 485 F. Supp. 410, 427 (E.D. Pa. 1980); Morgan v. Sharon Pennsylvania Board of Education, 472 F. Supp. 1157, 1160 (W.D. Pa. 1979); Cf. Webster v. Great American Insurance Co., 544 F. Supp. 609, 610-611 (E.D. Pa. 1982).
Defendants' final argument is that plaintiff is barred by the doctrine of exhaustion from seeking a judicial remedy. Defendants argue that plaintiff should have pursued the administrative relief available through either the ICC or the Civil Service Commission.
In particular, defendants note that at the relevant time period, there were three administrative procedures by which plaintiff should have sought relief: written ICC procedures for bringing employee grievances, written ICC procedures for effecting and challenging employee disciplinary and adverse actions
and CSC provisions for appealing "adverse actions."
Plaintiff counters that (1) there is no point in requiring exhaustion since neither plaintiff's retirement nor his former colleagues' harassment was the type of event that implicates the "adverse action" provisions of the ICC manual or the CSC regulations; (2) exhaustion does not apply to the ICC grievance procedures; and (3) any failure to pursue administrative relief was for good cause, since plaintiff's doctor advised for health reasons against Lawrence's pursuit of either a judicial or administrative remedy. (Plaintiff's Exh. "1" - June 20, 1983 affidavit of Frederick A. Furia, M.D.). For the reasons outlined, I find defendants' exhaustion arguments persuasive.
The Supreme Court has long held that there may be no judicial relief until the prescribed administrative remedy is exhausted. E.g., Myers v. Bethlehem, 303 U.S. 41, 50-51, 82 L. Ed. 638, 58 S. Ct. 459 (1938). Three policy concerns underlie this judicially-fashioned doctrine:
First, adherence to the doctrine shows appropriate deference to Congress' decision, embodied in statute, that an independent administrative tribunal, and not the courts, should serve as the initial forum for dispute resolution. [citations omitted]