United States Department of Labor Office of Administrative Law Judges Law
Library
UNITED STATES DEPARTMENT OF LABOR *
OFFICE OF THE SOLICITOR * CIVIL RIGHTS DIVISION
INDEX TO ADMINISTRATIVE DECISIONS UNDER SECTION
503 OF THE REHABILITATION ACT OF 1973
TOPIC 130: LACHES
NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS
DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR
INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES,
AND WAS LAST REVISED IN NOVEMBER, 1996.
The doctrine of laches generally does not apply to the enforcement of public rights by
Government agencies. OFCCP v. E.E. Black, Ltd. 77-OFCCP-7R, ALJ Rec.
Dec. and Order, September 13, 1978, slip op. at 9, aff'd, Assistant Secretary for
Employment Standards Dec. and Order February 26, 1979, slip op. at 11, aff'donothergrounds, E.E. Black v. Marshall, 497 F. Supp. 1088 (D. Hi.
1980), E. E. Black v. Donovan, 26 FEP Cases 1183 (D. Hi. 1981).
Where OFCCP offered no excuse for the lapse of more than two years between the end of
conciliation and the filing of an administrative complaint, the first element of the laches doctrine,
inexcusable delay, was met. However, the second element of the laches doctrine, substantial
prejudice to the defendant, was not met where the defendant was able to introduce key
documents
at the hearing and was able to put on testimony from crucial witnesses. OFCCP v.
East Kentucky Power Cooperative, Inc., 85-OFC-7, ALJ Rec. Dec. and Order, March 17,
1988, slip op. at 11-13.
Laches applies to a federal agency suing on behalf of others, but does not apply to an agency
suing to enforce a public right to assert a public interest. Whether laches may be applied to the
OFCCP in a Section 503 enforcement case has never been raised in court and is unclear as 503
enforcement is a hybrid of individual and public interests. In this case, laches certainly does not
bar enforcement since neither inexcusable delay nor substantial prejudice to the defendant has
been shown. OFCCP v. PPG Industries, Inc., 86-OFC-9, ALJ Rec. Dec., May
17, 1988, slip op. at 11-12, aff'donothergrounds, Deputy
Assistant Secretary for Employment Standards Final Dec. and Remand Order on Remedy,
January
9, 1989; dismissedonAPAreview, PPG v. United
States, C.A. No. 89-0757 JGP (D.D.C.); reversed and remanded, 52 F 3d. 362 (D.C.
Cir. 1995); Consent Decree, September 24, 1996.
The seven year delay between the filing of complainant's claim with the OFCCP and the
filing
of an administrative complaint was not inordinate nor inexcusable delay. It is not irrational for
OFCCP to defer action for three years until final agency review in OFCCP v.
Western
Electric [citation omitted] clarified whether OFCCP had jurisdiction over the defendant.
Id. at 13-14, aff'donothergrounds, Deputy Assistant
Secretary for Employment Standards Final Dec. and Remand Order on Remedy, January 9, 1989;
dismissedonAPAreview, PPG v. United States,
C.A. No. 89-0757 JGP (D.D.C.); reversed and remanded, 52 F 3d. 362 (D.C. Cir. 1995);
Consent Decree, September 24, 1996.
The record does not support a finding that OFCCP acted with "inexcusable"
delay or took an "inordinate" time to respond to PPG's conciliation initiatives.
OFCCP's wish to discuss the settlement offers with the intervenor and OFCCP's insistence on
full
back pay and reinstatement are not perse unreasonable. In light of 41 CFR
60-741.26(g)(2), which requires the OFCCP to attempt to secure compliance through informal
conciliation and persuasion before initiating suit, OFCCP's conciliation efforts were not
unreasonable. Id. at slip op. at 13, aff'donothergrounds, Deputy Assistant Secretary for Employment Standards Final Dec. and Remand
Order on Remedy, January 9, 1989; dismissedonAPAreview,
PPG v. United States, C.A. No. 89-0757 JGP (D.D.C.); reversed and
remanded, 52 F 3d. 362 (D.C. Cir. 1995); Consent Decree, September 24, 1996.
A defense based on laches is generally of no avail against the U.S. Government. The
application of the doctrine of laches is discretionary and in the absence of a showing of prejudice
as to the liability aspect of the case the ALJ recommends it not be applied. The defense can be
reasserted in connection with damages. OFCCP v. Yellow Freight System, Inc.,
79-OFCCP-7, ALJ Rec. Dec. on Remand, August 26, 1988, slip op. at 66, remandedonothergrounds, Special Assistant to the Assistant Secretary for
Employment Standards, August 24, 1992; ConsentDecree, February 2, 1993.
The general rule is that laches is not a defense to government actions brought to vindicate a
public right. OFCCP v. Norfolk and Western Railway, Co., 84-OFC-4, ALJ Rec.
Dec. and Order, June 28, 1989, slip op. at 17, stipulateddismissal, November 13,
1991.
The contractor was not prejudiced in its defense where there was no indication that any of
the
physicians testifying were unable to make an informed judgment on the central issues based on
the
available medical records. Id.
Contractor's claim that Assistant Secretary's seven-year delay in issuing a final decision and
order violates 5 U.S.C. §555(b), which requires agencies to conclude matters before it
"within a reasonable time," is not an appropriate ground for reconsidering the merits
of the case. OFCCP v. Texas Industries, Inc., 80-OFCCP-28, Assistant Secretary
for Employment Standards Order of Remand and Stay of Enforcement, September 27, 1990, slip
op. at 3, n.2., ALJ Dec. and Order on Remand, March 11, 1991; remanded on other
grounds, Assistant Secretary for Employment Standards Decision and Order of Remand,
January 27, 1995, ConsentDecree, June 21, 1996.
In case involving seven-year lapse between ALJ recommended decision and Assistant
Secretary Final Order, contractor's request for tolling of back pay six months after the ALJ issued
his decision is denied. Id. at 4; ALJ Dec. and Order on Remand, March 11, 1991;
remanded on other grounds, Assistant Secretary for Employment Standards Decision and
Order of Remand, January 27, 1995, ConsentDecree, June 21, 1996.
The length of time a Section 503 case is pending does not relieve a discriminating employer
of
its obligation to assume the full cost of the back pay due. Id. at 5; ALJ Dec. and Order
on Remand, March 11, 1991; remanded on other grounds, Assistant Secretary for
Employment Standards Decision and Order of Remand, January 27, 1995, ConsentDecree, June 21, 1996.
The cost of delay should not be borne by the employee because the wronged employee is at
least as much injured by delay in collecting back pay as is the wrong-doing employer and
because
the employer knowingly created the risk by his our wrong-doing. Id. at 5; ALJ Dec. and
Order on Remand, March 11, 1991; remanded on other grounds, Assistant Secretary for
Employment Standards Decision and Order of Remand, January 27, 1995, ConsentDecree, June 21, 1996.
Assistant Secretary's seven-year delay in issuing final decision does not constitute grounds
for
denying pre-judgement interest on back pay for the same reasons that delay does not constitute
grounds for tolling back pay. Id. at 6-7; ALJ Dec. and Order on Remand, March 11,
1991; remanded on other grounds, Assistant Secretary for Employment Standards
Decision and Order of Remand, January 27, 1995, ConsentDecree, June 21,
1996.
Contractor's claim that OFCCP action should be dismissed because of the age of the case is a
laches defense. OFCCP v. Yellow Freight Systems, Inc., 79-OFCCP-7, Special
Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand,
August 24, 1992, slip op. at 9; ConsentDecree, February 2, 1993.
It is questionable whether laches can be applied against OFCCP because of its status as a
Federal agency. Ibid.
Contractor's laches defense which was based on factors including death of one of the
complainants, the unknown whereabouts of the others, and the unlikelihood that OFCCP or
contractor would still have records regarding coverage is merely speculative and conclusory and
does not demonstrate the existence of the two elements necessary to establish the defense: 1)
plaintiff's inordinate and inexcusable delay and 2) prejudice the defendant occasioned by that
delay. Ibid.
Generalized allegations of irreparable harm from the passage of time do not constitute a
showing of prejudice sufficient to establish a laches defense. Id. at 9-10.
If records sought regarding coverage are now unavailable, they need not be produced; if they
are available no prejudice has been suffered. Id. at 10.
As a general rule, actions by the government to protect the public interest are not subject to
the defense of laches. OFCCP v. First Federal Savings Bank of Indiana,
91-OFC-23, ALJ Recommended Decision and Order, June 29, 1994, at 6; affirmed,
Secretary of Labor, Final Decision and Order, October 26, 1995, at 5.