author: GIBSON, Chief Judge.

text:
    LINNEMAN CONSTRUCTION, INC., formerly F. H. Linneman, Inc., a Colorado corporation, and Ira James Gentle, Trustee, Appellant, v. MONTANA-DAKOTA UTILITIES CO., INC., a Delaware corporation, Appellee.
    No. 73-1923.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 12, 1974.
    Decided Nov. 8, 1974.

      Holmes Baldridge, Denver, Colo., for plaintiff-appellant.
    William P. Pearce, Bismarck, N. D., for defendant-appellee.
    Before GIBSON, Chief Judge, BRIGHT, Circuit Judge, and SMITH, Senior District Judge.

       The Honorable Talbot Smith, United States Senior District Judge, Eastern District of Michigan, sitting by designation.

   GIBSON, Chief Judge.

Linneman Construction, Inc., brought this diversity action against Montana-Dakota Utilities Co., Inc., for monies allegedly due under a written contract for “extra work” involved in the construction of gas distribution and service lines in six North Dakota towns. Linneman’s complaint sought recovery for three claims: (1) failure to pay contract unit price for installation of mains and service line footage that were power tamped and for some “boring” and “rock removal”; (2) location of gas mains behind the curb rather than in streets and alleys; and (3) installation of additional service lines. The jury returned a verdict against Linneman on claims (1) and (3). The District Court, however, foreclosed plaintiff from introducing all its evidence regarding the second claim, the laying of mains behind the curb, and directed a .verdict on that claim for defendant. This order of the District Court, as well as the subsequent taxation of costs against Linneman, is asserted as error on this appeal. No appeal was taken on claims (1) and (3).

Linneman is a Colorado corporation engaged in the construction of gas, water, telephone and electric lines. Montana-Dakota is a Delaware corporation and a regulated public utility engaged in supplying gas and electric service in North Dakota, South Dakota, Montana, and Wyoming, and gas service only in Minnesota. As part of Montana-Dakota’s “Progress 70” plan to extend its gas service in North Dakota to an additional 12 towns, defendant issued invitations to bidders in February, 1970, inviting bids for the construction of gas distribution lines and service lines in the 12 towns. Bidders were allowed to bid on all 12 towns, or on the six steel towns or six plastic towns only.

Provided to the bidders was a list of estimated total pipe footages to be laid and an estimate of the number of service lines to be installed, a copy of the proposed contract and specifications, and maps of each town showing where the distribution mains were to be located within each town. The specifications and the maps were expressly made a part of the contract to the extent not inconsistent with the contract provisions. Linneman’s bid for the six steel towns was accepted by Montana-Dakota and the contract was signed March 16, 1970.

Linneman began construction of the gas distribution systems May 5, 1970, m Jamestown, North Dakota. During the course of construction of the project, completed in November, 1970, in excess of 766,000 feet of gas mains were laid in the six towns. All of the footage laid was paid for at the unit price specified in the contract for the laying of mains. The present dispute _ arises from a demand for payment by Linneman of an additional $460,000 above the contract price for the laying of gas distribution mains outside the paved portion of the streets. The above amount is based upon Linneman’s computation of the cost of laying some 160,145 feet of mains behind the curb, plus 15 percent for profit and overhead .as called for by the “extras” clause of the contract.

In the alternative Linneman asserts a right to quantum, meruit or implied contract recovery. We reject at the outset the quantum, meruit theory advanced by Linneman as without any foundation in the record. It is clear’ that the laying of distribution mains behind the curbs is governed by the contract between the parties, either the specific unit price provision or the “extras” clause.

We turn to the consideration of plaintiff’s claim for additional compensation under the “extras” clause, predicated upon an alleged change in the terms and conditions of the contract respecting location of the lines. Linneman attempted to show that at the beginning of construction all the lines were being located in the paved portion of the streets where it was much faster and cheaper for Linneman to lay the mains. However, Linneman contends that after Montana-Dakota received a bid for repaving the streets in an amount much greater than it had estimated, it began moving as much of the construction as possible out of the paved portion of the street and behind the curbs in order to save itself substantial repaving costs. This saved Montana-Dakota the contract prices for cutting and removing the old pavement in addition to the cost of repaving, while increasing threefold the cost to Linne-man of laying the mains behind the curbs. To further buttress its contentions that the location of mains behind the curbs was not contemplated by the contract, Linneman contends the maps attached to the contract show that the mains were to be located within the paved portion of the streets.

The District Court during trial foreclosed Linneman from offering all of its evidence in support of its claim, and directed verdict for the defendant as a matter of law. While we would have preferred the allowance of all of plaintiff’s evidence on this claim, the trial court, as well as we, considered the offer of proof, and we find no error in the circumstances of this case. Construction of the contract is a matter for the court under North Dakota law. Anderson v. First National Bank, 6 N.D. 497, 72 N.W. 916, 920 (1897), aff’d, 172 U.S. 573, 19 S.Ct. 284, 43 L.Ed. 558 (1899). Construction of the contract reveals that plaintiff has no cause of action for the extra compensation claimed. This conclusion is necessitated upon either of two grounds.

First, even if we could accept plaintiff’s theory that the laying of mains behind the curb was an extra under the contract, the clear and unambiguous terms of the “extras” clause were not complied with. The “extras” clause provides for a written order for any extra work performed and in addition requires claims to be submitted within 30 days of completion of the extra work. It is undisputed that no written orders were prepared, nor was any claim made until some 10 months after completion of the job. Non-compliance with this “extras” clause bars recovery for alleged extra work performed under the contract. Goodwin, Inc. v. City of Lafayette, 418 F.2d 698, 701 (5th Cir. 1969); Alden v. Central Power Electric Cooperative, 168 F.Supp. 19, 21 (D.N.D.1958). Although waiver of the contractual requirements is possible, United States v. Henke Construction Co., 157 F.2d 13, 20-21 (8th Cir. 1946); Alden v. Central Power Electric Cooperative, supra, 168 F.Supp. at 21-22, a definite agreement to pay is required to establish a waiver. United States v. Henke Construction Co., supra, 157 F.2d at 21. Here there is no evidence even indicating a definite agreement to pay. The conduct of Linneman during the performance of the contract will not support a conclusion of waiver. No demand for extra compensation was made during the performance of the contract, nor until 10 months after the completion of the job. This is a strong indication that the laying of mains behind the curbs, while more costly, was not regarded by Linneman as an extra under the contract. See Old Colony Trust Co. v. City of Omaha, 230 U.S. 100, 118, 33 S.Ct. 967, 972, 57 L.Ed. 1410 (1913), wherein the Court stated:

Generally speaking, the practical interpretation of a contract by the parties to it for any considerable period of time before it comes to be the subject of controversy is deemed of great, if not controlling, influence.

Accord, Craig v. Thompson, 177 F.2d 457, 460 (8th Cir. 1949); Elkan v. Sebastian Bridge District, 291 F. 532, 550 (8th Cir. 1923), cert. denied, 268 U.S. 690, 45 S.Ct. 510, 69 L.Ed. 1159 (1925).

There is an additional ground upon which the trial court's action in directing a verdict must be sustained. The trial court was bound to apply the law of North Dakota in this diversity action. The North Dakota Supreme Court has recently held regarding claims for extras that :

“[E]xtra work,” as used in connection with building contracts, means work which arises outside of and independent of the original contract; that is, something not required in the performance of the original contract, not contemplated by the parties, and not controlled by the terms of such contract.

Trinity Builders, Inc. v. Schaff, 199 N.W.2d 914, 918 (N.D.1972).

To find that Linneman was entitled to recover for its claim for extra work, the trial court would have had to determine that the claim was for “labor and materials not contemplated by or embraced in the terms of the original contract.” Trinity Builders, Inc. v. Schaff, supra at 918. The trial court was convinced after reading the contract, as are we, that the claim is based upon work required by and covered within the contract and thus the claim for extras must fail.

The contract was a unit price contract. The pertinent unit price provision provides for a single unit price based upon the diameter of the main:

For unloading and hauling millcoat-ed steel pipe, fittings, wrappers and other materials, clearing right-of-way, ditching, coating, laying, construction, welding, connecting, cleaning, testing, repairing, backfilling, roll packing, and grading * * *.

The contract provision which underlies this disputed claim provides:

Distribution mains in general shall be approximately 5-10 feet from the property line in the street and 5 feet from the property line in the alley. Where more specific information is required it will be furnished by the Company.

The specifications provide:

2. Location of Lines

The lines shall follow the locations as shown on maps furnished by the Company or staked by the Company engineers. The Company reserves the right to make any changes in location which it deems necessary and such changes shall in no manner alter the terms of this contract except as to Un-ear measurements. (Emphasis supplied.)

In a nutshell, resolution of whether the claimed work was an “extra” requires determination of the meaning of the contract expression “5-10 feet from the property line in the street.” Both parties contend the language is clear and unambiguous, yet each interprets it differently. Linneman argues that “street” means the paved portion of the dedicated right-of-way between the curbs. Montana-Dakota contends “street” refers to the entire dedicated public right-of-way. However, as the contract provides that the lines will be located 5-10 feet from the property line in the street, Linneman is forced to argue that we should interpret “property line” as being synonymous with “curb”, a position as novel as it is untenable. We think it is clear that property line, as used in the contract, as well as in its legal and popular sense, can have only one meaning; that being the line where the fee interests of the various lot owners abut the dedicated public right-of-way.

Every lot, of course, has as many property lines as it has sides. * * * The ordinary rectangular city lot therefore has four property lines, two dividing it from the street and alley at front and rear and two dividing it from the neighboring lots on each side.

Ujka v. Sturdevant, 65 N.W.2d 292, 294 (N.D.1954).

As should be clear from the North Dakota Supreme Court’s statement in Ujka, a street begins at the property line, and would include sidewalks and grassy parking areas as well as the paved portion of the right-of-way. Accord, Stockdale v. Lester, Iowa, 158 N.W.2d 20 (1968); City of Beatrice v. Williams, 172 Neb. 889, 112 N.W.2d 16, 21 (1961). We therefore must agree with the trial court that the contract language clearly and unambiguously provided that the laying of the gas distribution mains beneath the grassy parking area as well as within the paved portion of the street, subject to the 5 to 10 foot limitation from the owner’s property line, was “included within” the unit price for the laying of mains and that plaintiff was not entitled to any additional compensation as a matter of law. It was therefore not improper for the trial court to direct a verdict for defendant on that issue.

Plaintiff also attacks the District Court’s approval of the full amount requested by defendant as costs, $3,781.-00 for witness fees and expenses of subsistence in accordance with 28 U.S.C. § 1821. We begin with the proposition that “ [i] terns proposed by winning parties as costs should always be given careful scrutiny.” Farmer v. Arabian American Oil Co., 379 U.S. 227, 235, 85 S.Ct. 411, 416, 13 L.Ed.2d 248 (1964). The allowance of costs is a matter within the sound discretion of the trial court. Farmer v. Arabian American Oil Co., supra. See generally 6 J.Moore, Federal Practice f[ 54.77 [5.-1] (2d ed. 1974) [hereinafter cited as Moore]. The decision of the trial court will only be reversed for an abuse of discretion. Farmer v. Arabian American Oil Co., 324 F.2d 359, 361 (2d Cir. 1963) (en banc), rev’d on other grounds, 379 U.S. 227, 85 S.Ct. 411, 13 L.Ed.2d 248 (1964); Spiritwood Grain Co. v. Northern Pac. Ry., 179 F.2d 338, 344 (8th Cir. 1950); see Moylan v. AMF Overseas Corp., 354 F.2d 825, 829 (9th Cir. 1965); Grogan v. United States, 341 F.2d 39, 43 (6th Cir. 1964); cf. Purer & Company v. Aktiebolaget Addo, 410 F.2d 871, 880 (9th Cir.), cert. denied, 396 U.S. 834, 90 S.Ct. 90, 24 L.Ed.2d 84 (1969). Contra, St. Paul Fire & Marine Insurance Co. v. Lack, 476 F.2d 583, 586 (4th Cir. 1973).

Plaintiff presents two major areas of disagreement with the award of costs: (1) that mileage beyond 100 miles was allowed for witnesses from outside the district, and (2) that witness and subsistence fees were allowed for days that defendant’s witnesses were not necessarily present at trial.

Linneman argues that the “100-mile rule” limits the taxation of costs for mileage for witnesses outside the district to 100 miles each way. The effective territorial limit of a subpoena is 100 miles from the place of trial for witnesses outside the district. Rule 45(e), Fed.R.Civ.P. The 100-mile rule was developed by the courts in recognition of the limited distance a witness could be compelled to travel to testify. The rule has had a long history in the federal courts. See Spiritwood Grain Co. v. Northern Pac. Ry., supra, 179 F.2d at 344; Kirby v. United States, 273 F. 391, 396 (9th Cir. 1921) (and cases cited therein). But see United States v. Sanborn, 28 F. 299, 302-303 (2d Cir. 1886).

In Farmer the Court rejected an argument that federal district courts can never tax as costs expenses for transporting witnesses more than 100 miles.

However, it added with respect to the 100-mile rule:

That rule, we think, is a proper and necessary consideration in exercising discretion in this field. The century- and-a-half-old special statutory provision relating to service of subpoenas more than 100 miles from the courthouse is designed not only to protect witnesses from the harassment of long, tiresome trips but also, in line with our national policy, to minimize the costs of litigation, which policy is strongly emphasized in the Federal Rules of Civil Procedure.

Farmer v. Arabian American Oil Co., supra, 379 U.S. at 234, 85 S.Ct. at 416 (footnotes omitted).

This court has not had occasion to consider the proper application of the 100-mile rule since the Supreme Court decision in Farmer. We think the proper application of the rule, in light of Farmer, is to limit travel expenses for witnesses outside the district to 100 miles absent special circumstances. See Sperry-Rand Corp. v. A-T-O, Inc., 58 F.R.D. 132 (E.D.Va.1973); Kaiser Industries Corp. v. McLouth Steel Corp., 50 F.R.D. 5 (E.D.Mich.1970); Vorburger v. Central of Ga. Ry., 47 F.R.D. 571 (M.D.Ala.1969); Erving Paper Mills v. Hudson-Sharp Machine Co., 271 F.Supp. 1017 (E.D.Wis.1967); cf. Grogan v. United States, supra; Morgan v. Kight, 294 F.Supp. 40, 42 (E.D.N.C.1968). But cf. Purer & Company v. Aktiebolaget Addo, supra; Electronic Specialty Co. v. International Controls Corp., 47 F.R.D. 158 (S.D.N.Y.1969). See generally 6 Moore 54.77 [5.-1] at 1726-29; Annot., 13 L.Ed.2d 1036 (1965).

As stated by Judge Smith in his dissent in Farmer v. Arabian American Oil Co., 324 F.2d 359, 365 (2d Cir. 1963) (en banc), rev’d 379 U.S. 227, 85 S.Ct. 411, 13 L.Ed.2d 248 (1964):

It has not been accident that the American litigant must bear his own cost of counsel and other trial expenses save for minimal court costs, but a deliberate choice to ensure that access to the courts be not effectively denied those of moderate means.

In the present case the testimony of the witnesses residing outside the district appears merely cumulative to that given by the substantial number of witnesses for defendant from within the district. We do not find any special circumstances to justify an allowance of mileage greater than 100 miles in the present case. The bill of costs will therefore be reduced by $189.40, the amount of excess mileage taxed against plaintiff.

We are disturbed, as is the plaintiff, by the amount of witness and subsistence fees taxed against plaintiff. We first note that there is duplication of fees within the defendant’s itemized bill of costs. In addition to the duplicated mileage noted at note 14, supra, defendant billed 10 days fees for Lawrence Armstrong and 9 days fees for Albert Mayer, both residents of Bismarck, the place of trial. Because the trial lasted only 8 days it is difficult for this court, as we believe it is for the defendant, to justify these additions.

We intimate no disagreement with the general rule that witness and subsistence expenses are not limited to the day the witness testifies but include those days in which the witness necessarily attends trial. See 6 Moore, [[ 54.77 [5.-1] at 1728-29 (and cases collected at n. 10). This rule, however, does not operate as an open invitation to fill the courtroom with witnesses during the entire trial. It has long been the practice in this circuit to allow expenses for only such number of witnesses as the court deems reasonable. Kane v. Luckman, 131 F. 609, 621-622 (8th Cir. 1904). They will also only be allowed expenses for the number of days the court deems reasonable.

We have no difficulty in finding that duplicate billing of fees is patently unreasonable. These expenses in the amount of $120.00 will be disallowed. We also think it unreasonable for defendant to retain 19 witnesses in court upon the possibility that their testimony might be needed for rebuttal of the rebuttal testimony of a lone plaintiff’s witness, the substance of whose testimony defendant was informed of in advance. After reduction for duplication, witness fees and subsistence allowances amounting to $3,104 were requested. We are convinced that a substantial percentage of this amount is for witnesses not necessarily in attendance at trial. We therefore are ordering a reduction of $1,500 in this amount. We have thus approved defendant’s bill of costs in the amount of $1,971.60. The remainder of the $3,781.00 taxed as costs to plaintiff is hereby disallowed. In all other respects the judgment of the District Court is affirmed.

      . Subsequent to the decision in the District Court, Linneman was adjudged a bankrupt in the District of Colorado. Upon application by the appointed Trustee, this court by order of March 18, 1974, allowed the Trustee, Ira James Gentle, to intervene and be substituted on behalf of Linneman on this appeal.

      . The Honorable Bruce Van Sickle, United States District Judge for the District of North Dakota.

      . “Steel” towns were those where the distribution mains were to be of steel pipe. “Plastic” towns were those where the distribution mains were to be of plastic pipe.

      . The “extras” clause of the contract provided :
      Contractor shall be allowed no additional compensation for any extras or any work performed by the Contractor not contemplated by this agreement or. by said plans and specifications, except under written order signed by the Company’s representative, which order shall specify the amount payable to the Contractor on account of such extra work. Where no specific amount is agreed upon for extra work and for which no unit price is set forth in this proposal, the Contractor agrees to execute such work on the basis of cost plus 15% for overhead and profit. Contractor to furnish hourly cost rates to be charged for any extra work. In no event will bills or claims for extras or extra work so ordered be allowed unless submitted to the Company within thirty (30) days from the date of furnishing or completion of extra work.

      . On May 18, 1971 (six months after completion) Linneman wrote stating the total balance due under the contract was $43,510.65. The defendant had retained some $40,000 as permitted by the contract pending completion and satisfaction of all claims for labor and material utilized on the project.

      . Although not directly apposite, North Dakota statutes indicate that the definition of street used by the trial court was the proper one. N.D.Cent.Code § 39-01-01(63) (1972), provides:
      “Street” shall mean the entire width between boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.
      And in N.D.Cent.Code § 39-01-01(56)
      “sidewalk” is defined as a “portion of the street.”

      . We have studied the maps made a part of the contract and find that they provide no support for plaintiff’s contention. The maps show only that the gas distribution lines were to be laid within the' entire public right-of-way, not between the curbs as contended by plaintiff. The maps closely resemble and were prepared from city maps which show only the entire dedicated right-of-way. It is almost incredible that Linne-man, an experienced utility contractor, could actually have misinterpreted these maps in the manner asserted at trial.

      . That section provides:
      A witness attending in any court of the United States * * * shall receive $20 for each day’s attendance and for the time necessarily occupied in going to and returning from the same, and 10 cents per mile for going from and returning to his place of residence. * * * Witnesses * * * who attend at points so far removed from their respective residence as to prohibit return thereto from day to day shall be entitled to an additional allowance of $16 per day for expenses of subsistence including the time necessarily occupied in going to and returning from the i)lace of attendance.

      . The Fourth Circuit in Lack, held that the trial court’s determination of costs would not be reversed on appeal. We believe that the prevailing view that such determinations are reviewable is the better approach as it recognizes the discretion vested in the trial court to determine costs but preserves an avenue of redress in those cases where there has been an abuse of discretion.

      . Rule 45(e), Fed.R.Civ.P. lias its origins in 1 Stat. 335 (1793) which provided:
      Sec. 6. And be it further enacted, That subpoenas for witnesses who may be required to attend a court of the United States, in any district thereof, may run into any other district; Provided, That in civil causes, the witnesses living out of the district in ■ which the court is holden, do not live at a greater distance than one hundred miles from the place of holding the same.

      . In Kemart Corp. v. Printing Arts Research Laboratories, Inc., 232 F.2d 897, 905 (9th Cir. 1956), the Ninth Circuit altered its formulation of the 100-mile rule to provide:
      [M]ileage allowable to a witness brought from outside the district should correspond to the distance from the place of trial to which the witness would have been amenable to service of the subpoena (i. e., any place within the district or 100 miles from the place of trial, whichever is larger).

      . Farmer v. Arabian American Oil Co., supra, 379 U.S. at 232, 85 S.Ct. 411.

      . We recognize that payment of mileage for witnesses outside of the district from their point of entry into the district, as was done in this case, may be justified when the witness is a necessary and material witness in the proceedings and does not give merely redundant or cumulative testimony. Rather than approving this practice as a proper exercise of discretion in every case, we feel it is better to leave the determination in each case to the discretion of the district court as it is in the best position to determine the necessity and materiality of the witness’ testimony.

      . The excess mileage charged taking into account the 100-mile rule was $130.60. However, defendant also charged mileage twice for two of its witnesses. This amounted to the extra $58.80 included in the above total. We will have more to say regarding this duplication infra.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Raul Ramos OLVERA, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
    No. 74-2655
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 13, 1974.

      Albert Armendariz, Sr., El Paso, Tex., for petitioner.
    William B. Saxbe, Atty. Gen., U. S. Dept, of Justice, Rex Young, Atty., Government Regulations, John L. Murphy, Chief Criminal Div., Washington, D. C., William S. Sessions, U. S. Atty., San Antonio, Tex., Ralph Harris, Ronald F. Ederer, Asst. U. S. Attys., El Paso, Tex., Troy A. Adams, Jr., Dist. Dir., Immig. & Nat., New Orleans, La., for respondent.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

         Rule 18, 5th Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Deportation proceedings against petitioner commenced on July 10, 1973 when he was served with a notice of hearing and order to show cause why he should not be deported as an alien who had entered the United States without inspection in violation of 8 U.S.C. § 1251(a)(2). Petitioner appeared at the hearing on July 16, 1973 in the company of an attorney who made a motion for a thirty-day continuance on the basis that counsel of record, his father and law partner, was unable to attend because of participation in another trial; and that further time was needed to gather evidence to support petitioner’s claim of citizenship. Counsel explained that he intended to establish citizenship through petitioner’s mother, who had been born in the United States and had resided here until her marriage shortly after her nineteenth birthday. After reviewing some of the documentary evidence, the Special Inquiry Officer noted that it appeared unlikely that petitioner’s mother had been a resident for the necessary length of time. In light of substitute counsel’s apparent unfamiliarity with the case, the SIO granted a three-day continuance so that counsel could confer with his father to determine how to proceed. He cautioned, however, that at that time petitioner would need to “come up with some very convincing reason” to justify further delay.

Upon resumption of the hearing on July 19 substitute counsel again moved for a continuance based upon the una-vailablity of his father as well as the need for additional time to research and obtain witnesses to support a new claim that petitioner was an illegitimate child and hence a United States citizen under section 205 of the Immigration and Nationality Act of 1940. In opposition to the motion the government offered petitioner’s birth certificate, in which his mother had declared him to be legitimate, and his parents’ marriage certificate which disclosed that his birth was within the marriage period. The SIO ruled that in light of the evidence of legitimacy these documents supplied, petitioner’s claim of illegitimacy was not shown to have any “prima facie merit”. He denied the motion for continuance, observing that the issues presented were uncomplicated.

At the close of the hearing, the SIO held that petitioner had not met his burden of proving that he acquired United States citizenship under either his initial theory that he was the legitimate child of an American citizen mother who met the residency requirement or that he was her illegitimate offspring. The SIO concluded that petitioner was de-portable for the reasons charged in the order to show cause. The Board of Immigration Appeals affirmed. Petitioner now seeks review of the order under 8 U.S.C. § 1105a.

Petitioner’s lone allegation of error is that the denial of his motion for a continuance was an abuse of discretion that denied him the opportunity to prepare and present evidence to prove his citizenship. He first asserts that the ruling abridged his right to counsel of his choice. That right is clearly not without limit, however. See United States ex rel. Baskerville v. Deegan, 428 F.2d 714 (2d Cir.), cert. denied, 400 U. S. 928, 91 S.Ct, 193, 27 L.Ed.2d 188 (1970). Here, the legal and factual issues were not complex and substitute counsel had an opportunity to and did confer with counsel of record before the hearing. Moreover, petitioner has neither claimed nor demonstrated any deficiency in the representation afforded by substitute counsel. In these circumstances, the refusal to delay the hearing until counsel of record could attend did not constitute an abuse of discretion.

The SIO’s refusal to grant a continuance did not deprive petitioner of a right to gather evidence. Petitioner was warned at the July 16 hearing that no extended delay would be granted absent his demonstration of a “convincing reason” to doubt the government’s tangible evidence. At the reconvened hearing petitioner offered only his opinion that relatives could be found to testify to his illegitimacy. With probative evidence of petitioner’s legitimacy before him, the SIO was justified in concluding that a continuance to gather evidence of uncertain value was not warranted.

Petitioner also asks we transfer the case to the district court for a de novo hearing pursuant to 8 U.S.C. § 1105a(a) (5) (B). Because he has not shown a “genuine issue of material fact as to [his] nationality” to exist, as required by that section, we decline to do so.

The order of the Board is affirmed and the petition for review is dismissed.

      . The applicable law, section 201 of the Immigration and Nationality Act of 1940, 54 Stat. 1138-1139, provides in pertinent part: Sec. 201. The following shall be nationals and citizens of the United States at birth: * ❖ $ * ❖
      (g) A person born outside the United States and its outlying possessions of parents one of whom is a citizen of the United States who, prior to the birth of such person, has had ten years’ residence in the United States or one of its outlying possessions, at least five of which were after attaining the age of sixteen years, the other being an alien

      . Section 205 provides, in pertinent part:
      . . . the [illegitimate] child, whether born before or after the effective date of this Act, if the mother had the nationality of the United States at the time of the child’s birth, and had previously resided in the United States or one of its outlying possessions, shall be held to have acquired at birth her nationality status.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Daniel Salazar HESSBROOK, Jr., Defendant-Appellant.
    No. 74-1491
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 16, 1974.
    Lewis T. Tarver, Jr., San Antonio, Tex. (Court appointed), for defendant-appellant.
    William S. Sessions, U. S. Atty., Wayne F. Speck, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Appellant Daniel Salazar Hessbrook was convicted by a jury on two counts of falsely representing himself to be a federal officer and, arresting two persons, in violation of 18 U.S.C. § 913, and two counts of taking money from the same two persons under the same circumstances, in violation of 18 U.S.C. § 912. The district court imposed a sentence of three years on each count, to be served concurrently. This appeal raises two issues which we discuss. We affirm.

Hessbrook represented himself to Gregorio Quintana Barron and Ruben Moreno Ledesma, two poorly educated Mexican aliens who had entered this country illegally, as an F.B.I. agent looking for the Mexican murderer of an Anglo male. Hessbrook “arrested” Barron and Ledesma, drove them down to a deserted area along the Medina River near Macdona, Texas, threatened to kill them, then took most of their money and let them go. The general outline and implementation of Hessbrook’s gambit, his self-identification as a government agent, and his intent to defraud were incontrovertibly established by the testimony of Barron, Ledesma, and one Brown, Hessbrook’s aceomplice-turnedGovernment-witness. Hessbrook argues, however, that the evidence did not sufficiently identify him as a federal agent. We disagree. Barron and Ledesma speak only Spanish: their testimony was given through an interpreter, and Hessbrook had addressed them in Spanish while arresting and robbing them. Because of the language problem, and Ledesma’s difficulty in reproducing the sounds F-B-I, there was some confusion at trial as to whether the victims recalled Hessbrook as having identified himself as an agent of the “F.B.I.” or the “S.B.I.” or the “S.P.I.” After a thorough review of the testimony, taking the evidence in the light most favorable to the government, we cannot conclude that a reasonably-minded jury must have doubted that Hessbrook falsely represented himself as an employee of the Federal Bureau of Investigation. See Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680, 704; United States v. Warner, 5 Cir. 1971, 441 F.2d 821, 825, cert. denied, 404 U.S. 829, 92 S.Ct. 2040, 30 L.Ed.2d 58.

Hessbrook argues additionally that the trial court erred in failing to charge the jury, in accordance with his proposed instructions, that the Government must prove beyond a reasonable doubt that the victims Barron and Ledesma believed that Hessbrook was “an officer or employee of the United States, as opposed to an officer or an employee of some other level of government.” The able trial court charged the jury that in order to convict it must find beyond a reasonable doubt that Hessbrook falsely pretended to be an officer and employee of the Federal Bureau of Investigation, but the trial court did not accept the proposition that the victims’ belief or understanding regarding the statutory roots of the F.B.I.’s authority constituted an element of the offenses charged.

It may be true that if a victim is aware that a pretended federal official is actually a state, and not a federal, employee, then there could be no violation of §§ 912 or 913, since there would be no arrest or taking of property under the assumed character of a federal agent. See Ferguson v. United States, 8 Cir. 1923, 293 F. 361, 363. Cf. Massengale v. United States, 6 Cir. 1957, 240 F.2d 781. In the matter at bar, however, the appellant has never suggested that the victims believed that he was a state or city official: Hessbrook seeks to rely simply on the possible and untested inability of his victims to be sure that the Federal Bureau of Investigation was an exclusively federal operation.

We hold that the district court’s instructions were ample. We think such a result is required by the omission in the statute of any language supporting the appellant’s interpretation, and by the construction placed on the predecessor legislation by the Supreme Court in United States v. Barnow, 1915, 239 U.S. 74, 80, 36 S.Ct. 19, 22, 60 L.Ed. 155, 158, in upholding a conviction for obtaining money through false representation of a nonexistent federal office: “it is the aim of the [legislation] not merely to protect innocent persons from actual loss through reliance upon false assumptions of Federal authority, but to maintain the good general repute and dignity of the service itself.” We refuse to sacrifice these aims by precluding application of these statutes to those who, while expressly identifying themselves as agents of a federal agency, may prey on victims insufficiently sophisticated to assure themselves of the distinctly federal character of that institution.

Affirmed.

      . Section 913 provides :
      Whoever falsely represents himself to be an officer, agent, or employee of the United States, and in such assumed character arrests or detains any person or in any manner searches the person, buildings, or other property of any person, shall be fined not more than $1,000 or imprisoned not more than three years, or both.

      . Section 912 provides:
      Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States of any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined not more than $1,000 or imprisoned not more than three years, or both.

      . Appellant raises ten additional issues on this appeal: admissibility of certain testimony of witness Ledesma; characterization of a government witness as an agent of the “Federal Bureau of Investigation,” not “F.B.I.”; appellant’s timing of his self-identification to his victims; introduction of a map into evidence ; photographic identification; non-severance of the two counts on which appellant was acquitted; denial of appellant’s motion for a bill of particulars; jury voir dire; bail pending appeal; admissibility of one government witness’ self-characterization as a felon. After careful consideration, we find no merit in appellant’s arguments on these points.

      . See United States v. Randolph, 5 Cir. 1972, 460 F.2d 367.

      . This conclusion is fully consistent with the holding in Heskett v. United States, 9 Cir. 1932, 58 F.2d 897, 902. In that case, the pretended immigration officials had not identified themselves as representing the federal government. Nevertheless, where there was
      ample testimony to show that [the defendants] represented themselves as immigration officers, with authority to inquire as to whether their intended victim was in possession of a passport, [the court concluded that] they held themselves out as acting under the authority of the United States .... Inasmuch as the federal government has exclusive jurisdiction over the question of passports, it was not necessary that they expressly represent themselves as “United States” immigration officers.
      Hessbrook relies here on a jury instruction recited in Heslcett to establish a requirement that the victim believe the pretended official to have acted under distinctly federal authority. This reliance is misplaced. First, as we read it, so much of that instruction as goes to the victim’s belief regarding the pretender’s authority is relevant only to making out an implied showing of impersonation in the absence of an express claim by the pretender to his federal office. Second, a review of the full discussion in Heslcett reveals that the appellate court merely concluded that a jury finding in accordance with the trial court’s instruction was ample to establish that the defendants “represented themselves as immigration officers with authority to inquire as to whether their intended victim was in possession of a passport.”


text:
    CANTON RAILROAD COMPANY, a body corporate, Appellee, v. The AMERICAN SMELTING AND REFINING COMPANY, INC., Appellant.
    No. 74HL248.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 2, 1974.
    Decided Oct. 29, 1974.

      Phillips L. Goldsborough, III, and Theodore B. Cornblatt, Baltimore, Md. (Smith, Somerville & Case, Baltimore, Md., on brief), for appellant.
    Robert L. Ferguson, Jr., Baltimore, Md. (Donald C. Allen and Allen, Thie-blot & Alexander, Baltimore, Md., on brief), for appellee.
    Before BRYAN, Senior Circuit Judge, and BUTZNER and WIDENER, Circuit Judges.
   PER CURIAM:

In seeking contribution or indemnity for a monetary settlement it had made under the Federal Employers’ Liability Act for the death of its conductor, September 18, 1970 in Baltimore, the Canton Railroad Company sued The American Smelting and Refining Company, Inc. The accident occurred on a siding of the railroad owned by the ASARC. With the reasonableness of the amount paid agreed upon, the only issue was the question of the defendant’s joint or concurrent negligence. The District Court, trying the action on a jury-waiver, found the defendant guilty thereof and assessed it with one-half of the damages. This apportionment derived from the railroad’s and ASARC’s outstanding contract to bear equally any liability resulting from “the joint or concurring negligence of both parties hereto” while on or about the sidetracks.

Perceiving that the findings of the District Court are not clearly erroneous and observing no errors of law at trial, we affirm on the District Judge’s opinion. Canton Railroad Company v. American Smelting and Refining Company, Inc., 384 F.Supp. 1181 (D.Md.1974).

Affirmed.


text:
    Alta Oveta MIMS et al., Plaintiffs-Appellants, v. The DUVAL COUNTY SCHOOL BOARD, etc., et al., Defendants-Appellees.
    No. 74-2852.
    United States Court of Appeals, Fifth Circuit.
    Dec. 2, 1974.
    Rehearing Denied Jan. 8, 1975.
    Deitra Micks, Jacksonville, Fla., Norris D. Woolfork, III, Orlando, Fla., Norman J. Chachkin, New York City, for plaintiffs-appellants.
    Kent Spriggs, Tallahassee, Fla., for James Washington.
    Yardley D. Buckman, Thomas E. Crowder, Harry L. Shorstein, Jacksonville, Fla., for defendants-appellees.
    Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
   PER CURIAM:

The district court approved the location of an interim relocatable vocational education facility after an evidentiary hearing and over the protest of plaintiffs. Courses would be offered in carpentry, plumbing, sheet metal, air conditioning and heating, machine shop, and welding as compared to a total of seventy courses, including these, available at two other vocational educational facilities in the system.

All enrollment in vocational education in the system is voluntary and the need for the interim facility was established. Students attending the interim facility would be on a half day basis from the schools to which they are regularly assigned, with transportation being provided. The matter of approval of the permanent location of a Career Education Center is pending in the district court.

We denied plaintiffs’ motion for injunction pending appeal. We now affirm on the merits for the reasons stated in the memorandum opinion of the. district court 385 F.Supp. 585 Which we find amply supported in the record.

Affirmed.


author: BY THE COURT:

text:
    Eloise INGRAHAM, as next friend etc., et al., Plaintiffs-Appellants, v. Willie J. WRIGHT, I, Individually, etc., et al., Defendants-Appellees.
    No. 73-2078.
    United States Court of Appeals, Fifth Circuit.
    Nov. 27, 1974.
    Alfred Feinberg, Miami, Fla., for plaintiffs-appellants.
    Frank A. Howard, Jr., Thomas G. Spi-cer, Leland Stansell, Jr., James A. Smith, Miami, Fla., for defendants-ap-pellees.
    ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
    Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORN-BERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.
   BY THE COURT:

A member of the Court in active service having requested a poll on the .application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc.

It is ordered that the cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.


text:
    John L. REEDY, Sr., et al., etc., Plaintiffs-Appellants, v. The TRAVELERS INSURANCE COMPANY, Defendant-Appellee.
    No. 74-2100.
    United States Court of Appeals, Fifth Circuit.
    Nov. 27, 1974.
    William H. Roundtree, Cocoa, Fla., for plaintiffs-appellants.
    . John G. Rooney, Jon E. Johnson, Lawrence 0. Sands, Cocoa, Fla., for defendant-appellee.
   ON PETITION FOR REHEARING

Before GEWIN, GODBOLD and CLARK, Circuit Judges.

PER CURIAM:

It is ordered that the summary calendar opinion in this cause, issued September 19, 1974, 500 F.2d 1117, be and the same is hereby vacated, and this cause shall be removed from the summary calendar.

The appellants shall file an additional brief within 20 days on these issues, where appropriate citing references to the Appendix in this case and to case authority: (1) Whether the exclusion of overtime pay referred to in the “Division Procedure” memo dated May 14, 1970 was in effect prior to that date; (2) Whether the decedent was informed of the contents of the May 14, 1970 memo and, if so, when and by whom; (3) With respect to entries made on decedent’s time cards after February 1, 1970 showing overtime, who made such entries and what was their purpose; (4) Are fringe benefits included in base annual salary, and if so which'fringe benefits; (5) Is the one month’s salary paid after decedent’s death a part of base annual salary.

Appellee shall have 15 days in which to file a reply brief.


author:
IRVING R. KAUFMAN, Chief Judge.
      MULLIGAN, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Francisco TOSCANINO, Defendant-Appellant.
    No. 746, Docket 73-2732.
    United States Court of Appeals, Second Circuit.
    Sept. 27, 1974.
    Dissenting Opinion Oct. 8, 1974.
    David G. Trager, U. S. Atty., for petitioner; Edward R. Korman, Chief Asst. U. S. Atty., of counsel.
   IRVING R. KAUFMAN, Chief Judge.

A poll of the judges in regular active service having been taken at the request of such a judge as to whether this action should be reheard en banc and there being no majority in favor thereof, it is

Ordered that rehearing en banc is denied.

MULLIGAN, Circuit Judge

(dissenting) :

I am compelled to dissent from the denial of the petition for a rehearing en banc in this ease and to state my reasons, albeit briefly. The majority opinion here holds, for the first time and without any discernible authority, that the fourth amendment protects a foreign national while residing on alien soil against “unlawful” searches and seizures; and, further, that the exclusionary rule (although it is presumably of judicial and not constitutional stature, see United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974)) bars the use on trial of the fruits of the alien’s electronic surveillance abroad. The intent or even the power of the Founding Fathers to endow foreign nationals while resident in foreign climes with American constitutional rights is, in my view, a question at least worthy of en bane consideration.

The court further holds that the kidnapping of the foreign national by American agents would, if proven at a hearing, deprive the district court of jurisdiction to "try him. This controverts the holding of the Supreme Court in Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), where Mr. Justice Black wrote for a unanimous Court. While the majority argues that Frisbie has been eroded by, inter alia, law review articles, the scholarly petition for rehearing submitted by the Government casts serious doubts upon the erosion process. In any event, the question is worth en banc discussion.

Finally, the majority holds that Toscanino, the foreign national, was personally clothed with the protection of the Charter of the United Nations and the Charter of the Organization of American States. This is not only unprecedented but, if it is not contrary to our holding in United States v. Sobell, 244 F.2d 520 (2d Cir.), cert. denied, 355 U.S. 873, 78 S.Ct. 120, 2 L.Ed.2d 77 (1957), it is at least fissiparous.

While the indignation of the majority with kidnappings abroad is understandable and commendable, the widespread importation of dangerous drugs by foreign nationals has also created horror and havoc here. Sanctions against kidnappers are, I think, the appropriate remedy and not the unprecedented exoneration of the narcotic conspirator, who, the majority says, “does not question the sufficiency of the evidence or claim any error with respect to the conduct of the trial itself.” 500 F.2d 267 at 269.

For these reasons, I think the case is that rara avis, one of “exceptional importance,” and should be en banced.

I am authorized to state that Judge Timbers concurs in this dissenting opinion.


author: DURFEE, Senior Judge:

text:
    James W. BRUNDAGE v. The UNITED STATES.
    No. 442-72.
    United States Court of Claims.
    Oct. 23, 1974.

      Maurice F. Biddle, Sperryville, Va., attorney of record, for plaintiff. Thomas H. King, Washington, D. C., of counsel.
    John W. Showalter, Washington, D. C., with whom was Asst. Atty. Gen. Carla A. Hills, for defendant. Raymond B. Benzinger, Washington, D. C., of counsel.
    Before DURFEE, Senior Judge, and NICHOLS and KASHIWA, Judges.
   ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT

DURFEE, Senior Judge:

Plaintiff served on active duty in the United States Air Force as a commissioned officer until he was discharged on March 31, 1969, as a result of having twice been passed over for promotion to the grade of permanent Major. By this action he asserts a claim for the pay of a Major with over fifteen years of service, to be computed from the date of his discharge. Plaintiff also prays for an order directing the Air Force to amend its records to show that he was promoted to permanent Major.

Plaintiff was chosen for promotion to the grade of temporary Major by a selection board (hereinafter “Temporary Major Board”) which met on July 8, 1968. One month later, on August 5, 1968, another selection board (hereinafter “Permanent Major Board”) was convened to consider the promotion of eligible officers. Plaintiff’s records were considered by the Permanent Major Board, but he was not selected for promotion to permanent Major.

On October 11, 1968, prior to his discharge, plaintiff applied to the Air Force Board for the Correction of Military Records seeking to have expunged from his files the August 5, 1968 non-selection to the grade of permanent Major. It was plaintiff’s contention that, due to administrative error, the permanent Major Board had not been apprised of his selection to the grade of temporary Major, one month earlier, by the Temporary Major Board. Plaintiff maintained that if the Permanent Board had been informed of this “significant factor,” it would have in all probability promoted him to permanent Major. By letter of November 19, 1968, the Correction Board denied plaintiff’s application for failure to establish a showing of probable error or injustice. Plaintiff’s August 5, 1968 non-selection for promotion, coupled with a previous deferral of promotion on November 19, 1966, resulted in his discharge from the Air Force on March 31, 1969.

Plaintiff filed suit in this court on December 8, 1972. Thereafter, on January 26, 1973, he moved the court to suspend the proceedings to permit his reap-plieation to the Air Force Board for the Correction of Military Records. By letter of February 1, 1973, plaintiff requested the Correction Board to reconsider his case. He alleged, once again, that the records considered by the August 5, 1968 Permanent Major Board were incomplete in that they did not reflect his previous selection for promotion to temporary Major. Plaintiff’s Officer Selection Brief, a document which was before the selection board, had been annotated with the printed word “SELECTED,” under the column headed “PROMOTION STATUS,” after the term “TEMP.” According to plaintiff’s theory, however, this entry was made by one Colonel Worthington, who was in charge of the Selection Board Secretariate, after the Permanent Major Board had made its selections, and thus the Board was unaware of plaintiff’s previous promotion to temporary Major.

On August 6, 1973, the Air Force Correction Board denied plaintiff’s application for reconsideration. Plaintiff thereupon moved to lift the suspension of proceedings in this court, and he filed a supplemental pleading alleging, once again, that the action of the Air Force Correction Board in denying his application without a hearing was arbitrary and capricious.

The United States, in support of its motion for summary judgment, argues, inter alia, that plaintiff’s claim for promotion to the rank of permanent Major is barred by the doctrine of laches, and it fails to state a claim upon which relief may be granted, and that the actions of the Air Force Board for the Correction of Military Records were not arbitrary or capricious.

Since it is our conclusion that plaintiff’s claim is barred by laches, we shall not discuss or pass upon its merits.

Laches is a “fairness” doctrine by which relief is denied to one who has unreasonably and inexcusably delayed in the assertion of a claim. Failure to act promptly will operate as a bar to recovery where the delay results in injury for prejudice to the adverse party. The doctrine of laches is based upon considerations of public policy, which require, for the peace of society, the discouragement of stale demands. It recognizes the need for speedy vindication or enforcement of rights, so that courts may arrive at safe conclusions as to the truth. As an equitable defense, laches is applied apart from, and irrespective of, statutes of limitations.

The doctrine of laches has long been given recognition and effect in this court. Numerous Court of Claims cases have applied the bar of laches where plaintiffs have asserted demands for back pay or for reinstatement because of illegal discharge from civilian Federal service. See e. g., Grisham v. United States, 183 Ct.Cl. 657, 392 F.2d 980, cert. denied, 393 U.S. 843, 89 S.Ct. 125, 21 L.Ed.2d 114 (1968); Jackson v. United States, 179 Ct.Cl. 29, cert. denied, 389 U.S. 985, 88 S.Ct. 468, 19 L.Ed.2d 478 (1967); Gersten v. United States, 364 F.2d 850, 176 Ct.Cl. 633 (1966); Bovard v. United States, 160 Ct.Cl. 619, cert. denied, 374 U.S. 830, 83 S.Ct. 1872, 10 L.Ed.2d 1053 (1963); Alpert v. United States, 161 Ct.Cl. 810 (1963).

The judgment in a recent military pay case holding plaintiff’s claim barred by laches, Cason v. United States, 461 F.2d 784, 198 Ct.Cl. 650 (1972) (hereinafter Cason I), was subsequently vacated at 471 F.2d 1225, 200 Ct.Cl. 424 (1973) (hereinafter Cason II). The decision in Cason I that plaintiff’s claim was defeated by the doctrine of laches relied upon two old cases of this court, Plunkett v. United States, 58 Ct.Cl. 359 (1923), and Chamberlain v. United States, 66 Ct.Cl. 317 (1928), cert. denied, 279 U.S. 845, 49 S.Ct. 342, 73 L.Ed. 99 (1929), as authority for the proposition that the defense of laches was applicable to military, as distinguished from civilian, pay eases. On plaintiff’s motion for reconsideration, the court held in Cason II that laches should not apply because defendant therein had made no attempt to substantiate that it was in any specific manner prejudiced by plaintiff’s delay. In addition to this, the court considered decisive the unfairness to plaintiff of dismissal on the ground of laches in reliance on precedents which were obscure and more than 40 years old. “However,” it was advised, “parties before this court in the future will take this case as notice that military pay cases are not per se exempt from application of the doctrine of laches.” Cason II, 471 F.2d at 1229, supra, 200 Ct.Cl. at 431. The court further observed in Cason II that plaintiff’s delay of four years before bringing suit was entirely too long, and that with a minimum showing of injury, it would have mandated application of laches except for the desuetude factor.

There can be no dispute after Cason I and II that the doctrine of laches is applicable to military pay suits. This much plaintiff concedes. It is his contention, however, that neither of the constituents of laches, lack of diligence on plaintiff’s part or resulting prejudice to defendant, is demonstrated by the facts of this case. We disagree.

A period of three years and eight months elapsed between plaintiff’s discharge, at which time his claim accrued, (Mathis v. United States, 183 Ct.Cl. 145, 391 F.2d 938 (1968)), and the filing of suit herein. This and other courts have sustained the defense of laches for far shorter periods of delay in cases where civilians in government service have sought to challenge the legality of their removals. See authorities, with parenthetical delay periods indicated, cited in Alpert v. United States, supra, 161 Ct.Cl. at 820-821. A period of only eleven months delay was deemed sufficient to preclude plaintiff’s recovery in Norris v. United States, 257 U.S. 77, 42 S.Ct. 9, 66 L.Ed. 136 (1921).

In Cason II the court indicated that certain differences between civilian and military pay cases must be taken into account when applying the principle of laches. One relevant difference revealed was that a civilian’s administrative relief is mandatory, while military personnel have available only administrative remedies which are permissive in nature. Noting that the pursuit by a civilian employee of mandatory administrative remedies defers the running of both limitations and laches (citing Friedman v. United States, 310 F.2d 381, 159 Ct.Cl. 1 (1S62), cert. denied, 373 U.S. 932, 83 S.Ct. 1540, 10 L.Ed.2d 691 (1963); Keeney v. United States, 150 Ct.Cl. 53 (1960)), but that the pursuit by military personnel of optional or permissive administrative relief will not serve to defer or toll the running of limitations (citing Mathis v. United States, 391 F.2d 938, 183 Ct.Cl. 145 (1968); Kirk v. United States, 164 Ct.Cl. 738 (1964)), the court in Cason II, 471 F.2d at 1229, supra, 200 Ct.Cl. at 432, opined:

* -x- jfj as our original opinion intimated, [permissive administrative remedies] do not suspend laches either, resort to them is discouraged, perhaps penalized. Yet they were created with the object of providing remedies less costly to both sides, and more expeditious than litigation is. The military should have a fair chance to correct their mistakes themselves. We think that in military cases it would be improper and erroneous for us to apply laches in a way that would spur the commencement of suit as soon as discharges become final, before the results of seeking administrative relief are known. * * *

Plaintiff asks us to be mindful of the above-stated considerations, and he urges us to excuse his procrastination for a period of more than three years and eight months because during that time (1) he sought Congressional assistance to no avail, (2) he employed an attorney, who corresponded with the Air Force in an effort to obtain pertinent documentary material considered necessary for the prosecution of this case, and (3) he submitted an application for reconsideration to the Air Force Correction Board on February 1, 1973, after filing suit in this court.

The pronouncement by way of considered dictum in Cason II, 461 F.2d 784, supra, 198 Ct.Cl. at 432, that it would be improper and erroneous to apply laches in military pay cases so as to discourage resort to permissive administrative remedies, can give no consolation to plaintiff herein, for we fail to see how the enforcement of laches in the instant case would in any way have the ef-feet of inhibiting or deterring military-personnel from pursuing optional administrative remedies. Plaintiff’s first attempt to nullify his non-selection for promotion to permanent Major was by submission of an application, on October .11, 1968, to the Air Force Correction Board. That application was denied on November 19, 1968, before plaintiff was discharged from the service. Plaintiff had thereby availed himself of the opportunity to pursue administrative relief even before his claim in this action accrued. It was not until more than four years after the Correction Board’s denial of plaintiff’s application and not until after he filed suit in this court, that plaintiff again requested the Correction Board, on February 1, 1973, to reconsider his case.

Plaintiff tries to justify his tardiness, but his explanations fail to excuse either the protracted interval between applications to the Correction Board (a period of more than four years), or the delay in filing suit once his claim in this action accrued (a period of more than three years and eight months). The seeking of Congressional assistance is not a suitable sanction for delay; and, of course, an appeal for help to a member or members of Congress is not the pursuit of a permissive administrative remedy which the court in Cason II, 471 F.2d 1225, supra, 200 Ct.Cl. at 432, sought to encourage. The hiring of an attorney, who corresponded with the Air Force in an effort to obtain documents pertinent to the prosecution of this case, is likewise an insufficient ground or reason to justify plaintiff’s lack of diligence. Even if this kind of activity could suffice as a warrant for delay, plaintiff’s attempt to thereby establish diligence would nevertheless be utterly inadequate. He tells us that “it was not until August 16, 1971 that the Air Force released the requested material.” But, as the Government points out, and as the record substantiates, plaintiff’s request for this information to the Secretary of the Air Force was not made until July 16, 1971, more than two years after his discharge. Having obtained the requested documents, plaintiff then waited another fifteen months before filing his petition in this action.

Plaintiff has established no extenuating circumstances sufficient to render his claim invulnerable to the defense of laches. We are compelled to the conclusion that he unreasonably and inexcusably delayed for a period of three years and eight months before asserting his rights in the commencement of this litigation. Of course, delay alone does not constitute laches. Some showing of prejudice by defendant should be made for it to prevail under the doctrine, although “ * * * the longer the delay the less need there is to search for specific prejudice and the greater the shift to plaintiff of the task of demonstrating lack of prejudice. * * Cason II, 471 F.2d at 1229, supra, 200 Ct.Cl. at 431; accord, Grisham, 392 F.2d 980, supra, 183 Ct.Cl., at 663; Gersten, 364 F.2d 850, supra, 176 Ct.Cl., at 636.

Prejudice to the Government manifestly results when a claimant for back pay unreasonably delays in the assertion of his rights, thereby obliging the Government to pay two salaries, over a long period of time, when it has received the services of only one person. This court has held, in numerous civilian pay cases, that such prejudice is sufficient for the enforcement of laches. See e. g., Grisham, supra; Gersten, supra; Alpert, supra, Albright v. United States, 161 Ct.Cl. 356 (1963); Bovard, supra, Miner v. United States, 143 Ct.Cl. 801 (1958); Dion v. United States, 137 Ct.Cl. 166 (1956). There appears to be no reason why the principle enunciated in these civilian pay cases should not be applied with equal force in military pay suits. See Plunkett, supra; Chamberlain, supra. It is reasonable to presume that another officer or officers have held plaintiff’s position since he left the service, discharging the duties formerly performed by him, and drawing the salary plaintiff claims should have been paid to him. See Blackmar v. United States, 354 F.2d 340, 347, 173 Ct.Cl. 1035, 1046 (1965); Bovard, sur pra, 160 Ct.Cl. at 622. However, even if no one was selected to replace plaintiff, or to perform the tasks that once were his, a recovery by plaintiff would require the Government to pay him the salary of a Major for a period of over five and a half years, during which time no work was done, and during which time he had ample opportunity to fully assert his claim.

There is also some indication that the Government’s defense has been impaired by the belated prosecution of plaintiff’s claim. The search for truth is always imperiled with the passage of time. Memories fade and documentary evidence is sometimes lost or destroyed. Plaintiff’s theory, which he fully expounded for the first time in his February 1, 1973 reapplication to the Correction Board was that the Permanent Major Board was unaware of his prior promotion to* temporary Major, and that Colonel Worthington, in an effort to cover up an administrative error, annotated plaintiff’s Officer Selection Brief subsequent to the selection board’s consideration of that document. All of this, of course, is denied by the Government. By the time plaintiff reapplied to the Correction Board, Colonel Worthington was totally unable to recollect the specific facts surrounding plaintiff’s case, and plaintiff’s scoring ballot, another document that was before the Permanent Major Board, had been routinely destroyed. Although this case is before us on the parties’ cross motions for summary judgment to review the administrative record, plaintiff requested at oral argument the opportunity to go to trial for the resolution of what appears to be material issues of fact. The loss of memory of Colonel Worthington and other witnesses, and the destruction of pertinent documentary evidence — both occasioned by plaintiff’s delay — prejudices the Government by hindering its presentation of an effective . defense. Defendant is now unable to establish with certitude, as perhaps it once could have, that the Permanent Major Board had been apprised of plaintiff’s prior promotion to temporary Major.

Writing for the majority in Cason I Judge Nichols indicated a further policy consideration distinctly apposite in eases such as this, where plaintiff, after a long period of delay, challenges the procedural regularity of the actions of Government officials:

* * * others have interests the court needs to consider, even though not parties nor-represented by counsel. These are the officials whose procedures were allegedly defective. Their impartiality, competence, or devotion to law are impugned more or less, and they are subjected to some harassment that interrupts their performance of public duty. Some peace and serenity they must surrender as a price of being in public employment, but at least they are entitled to this: that they should be allowed to defend and explain their acts when their recollection is fresh and relevant evidence has not disappeared, for their own reputations as well as to protect the public fisc. [Cason I, supra, 461 F.2d at 788, 198 Ct.Cl. at 658.]

Plaintiff’s allegations call into question the competence and veracity of Air Force officials. It is manifestly unfair to them, and disruptive- of the orderly process of Air Force operations, to require them to explain and justify actions taken several years ago. Plaintiff waited until it was too late in the day for a speedy, fair and exact determination of the truth.

For these reasons, defendant’s motion for summary judgment is granted, and plaintiff’s cross-motion for summary judgment is denied. The petition is dismissed.

      . It will T5e observed that laches is an affirmative defense to be pleaded under the Rules of this court. See Rule 37 (b).

      . See Bender v. United States, 201 Ct.Cl. 865, cert. denied, 414 U.S. 1022, 94 S.Ct. 444, 38 L.Ed.2d 312 (1973), (Order), a military pay case in which plaintiff’s claim was dismissed on grounds of laches.

      . Plaintiff seeks active duty pay from his discharge date, March 31, 1969, until the date of judgment entered herein.

      . On July 11, 1972, plaintiff’s counsel wrote to Colonel Worthington for information as to his involvement in annotating plaintiff’s Officer Selection Brief. In reply, by letter of July 17, 1972, Colonel Worthington stated : “As you must realize, it is almost impossible to recall such an event as you describe in your letter four years later.” (Plaintiff’s Exhibit 5).