July 13, 1987

APPEAL OF

PASCAL REDFERN

UNDER CONTRACT NO. HCR 59833

PSBCA NO. 1512

 

APPEARANCE FOR APPELLANT:

Pascal Redfern

 

APPEARANCE FOR RESPONDENT:

Charles T. Jackson, Esq.

 

OPINION OF THE BOARD ON MOTION TO RECONSIDER

 

            Appellant has filed a Motion to Reconsider of the Board’s decision, Pascal Redfern, PSBCA No. 1512, 87-1 BA ¶ 19,646, which denied his appeal.  The Motion sets forth eight bases for reconsideration.  Appended to the Motion is an “Affidavit of Facts” which Appellant would have the Board receive as additional evidence on his behalf.  Respondent opposes the Motion, contending it to be without merit, but does not address the issue of the Board’s consideration of the Affidavit of Facts.  The latter issue will be addressed first.

            The hearing in this appeal was concluded on September 24, 1986.  This Board’s Rules of Practice provide that “[e]xcept as the Board may otherwise order in its discretion, no proof shall be received in evidence after completion of an oral hearing. . . .” (39 C.F.R. § 955.14(b)).  Appellant was given an opportunity to testify on his own behalf at the hearing and in fact did so.  Thus, to the extent Appellant is seeking the introduction of additional factual evidence the contents of the affidavit will not be considered.  Earl L. Love, PSBCA No. 589, June 8, 1979; P. T. Sarana Daya Taruna, ASBCA No. 26240, 87-2 BCA ¶ 19,696.  To the extent it is additional argument it has been considered as material supplementing his brief in support of the Motion.[1]

            Appellant’s first, third and eighth grounds for reconsideration contend that Appellant was not responsible for the altercation which occurred on March 4, 1986, and which resulted in the termination of his highway transportation contract.  This issue was carefully considered in the Board decision and, contrary to Appellant’s arguments, the evidence of record supported the conclusion that Appellant contributed materially to the disturbance, made the first substantial physical contact, and commenced the violence.

            Appellant’s second ground for reconsideration alleges the Board did not consider that he was an inexperienced contractor and was not fully aware of Postal regulations.  This argument was addressed in the Board decision where it was noted that the regulations were published in the Federal Register and that Appellant thus had notice of them, citing Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 (1947).

            Grounds four and six of Appellant’s Motion raise a discrimination argument, i.e., that other contractors were not terminated for unauthorized entry into the workroom area, while he was terminated for such action.  The argument was considered and rejected in the original decision, as was his argument which constituted ground five – that the violation committed did not relate to the performance of service.  In regard to the latter point the decision stated:

“They [Appellant’s unauthorized entry on the workroom floor and the fistfight] are of a serious nature.  The orderly conduct of postal operations was impeded.  These actions . . . constitute grounds for termination. . .” (87-1 BCA at 99,461)

 

            Finally, Appellant contends the Board’s decision failed to address the issue of laches.  The basis for any reliance by Appellant on laches is unclear[2].  Laches is generally defined as follows:

“Laches is a purely equitable doctrine which is frequently termed the doctrine of stale demand.  The doctrine of laches may be defined generally as a rule of equity by which equitable relief is denied to one who has been guilty of unconscionable delay, as shown by surrounding facts and circumstances, in seeking that relief.  Laches has been defined as such neglect o omission to assert a right, taken in conjunction with lapse of time and other circumstances causing prejudice to an adverse party, as will operate as a bar in equity.” (27 Am Jur. 2d § 152).

 

Thus, laches is an equitable doctrine, ordinarily asserted as a defense only in an equitable action, with no usual application in government contract matters.  Kaiser Alumium & Chem. Corp. v. United States, 181 Ct. Cl. 902, 388 F.2d 317 (1967).  But see LaCoste v. United States, 9 Cl. Ct. 313 (1986).  Additonally, it ordinarily is not a defense to a claim by the government.  Thompson v. United States,, 312 F.2d 516 (10th Cir. 1962).  In any event there appears to be no action (or inaction) on the part of any Postal officials involved in Appellant’s contract which would support a laches defense to the termination of Appellant’s contract.

            In summation, Appellant’s Motion contains little more than reiterations of its prior arguments and obvious disagreement with the Board’s decision.  Appellant has shown no factual or legal errors which would require the Board to change its decision.  There is no basis for granting the Motion.  F.C.F. Company, Opinion on Reconsideration, PSBCA No. 1353, 87-1 BCA ____, March 17, 1987, and cases cited there in.  The Motion for Reconsideration is denied.

James D. Finn, Jr.

Administrative Judge

Vice Chairman

 

I concur:

James A. Cohen

Administrative Judge

Chairman

 

I concur:

James E. Lemert

Administrative Judge

Board Member


            [1] The legal arguments in the affidavit primarily address the issue of responsibility for the March 4, 1986, altercation.  These are addressed in the body of this Opinion.  The affidavit also raises a procedural argument of prejudice suffered at the hearing due to the absence of testimony from a Postal Service witness, Mr. Sears.  The initial Opinion fully explained why no prejudice was suffered.  Moreover, Appellant did not request that Mr. Sears be present to testify until after the hearing commenced.

            [2]   Appellant does refer to a “selective enforcement” or regulations by Postal personnel.  Presumably such regulations are those which prohibit unauthorized entry to the workroom area.  The prior decision found, contrary to Appellant’s contention, that enforcement of such regulations was uniform, not selective.