Cornetta v. U.S.

• Decision Date: 20 October 1987
• Docket Number: No. 87-1121,87-1121
• Citation: 831 F.2d 1039
• Parties: Ronald J. CORNETTA, Plaintiff-Appellant, v. The UNITED STATES of America and John Lehman, Secretary of the Navy, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1039

831 F.2d 1039

Ronald J. CORNETTA, Plaintiff-Appellant, v. The UNITED STATES of America and John Lehman, Secretary of the Navy, Defendant-Appellee.

No. 87-1121.

United States Court of Appeals Federal Circuit.

Oct. 20, 1987.

George S. King, Broadhurst, Brook, Mangham & Hardy, Baton Rouge, La., argued, for plaintiff-appellant. Also on the brief, was Louis R. Davis, Broadhurst, Brook, Mangham & Hardy, Lafayette, La., of counsel.

John S. Groat, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued, for defendant-appellee. With him on the brief, were Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director and Thomas W. Petersen, Asst. Director. Also on the brief, was LCDR Michael Lawlor, Dept. of Navy, of counsel.

Before BISSELL, Circuit Judge, MILLER, Senior Circuit Judge, and ARCHER, Circuit Judge.

ARCHER, Circuit Judge.

The judgment of the United States District Court for the Western District of Louisiana, Civil Action No. 86-1080, granting summary judgment to the appellees (government) on the basis of laches, is affirmed.

FACTS

Ronald J. Cornetta (Cornetta) brought this action for reinstatement, back pay, and correction of personnel records nearly seven years after he was separated from the Marine Corps. Cornetta was discharged on May 31, 1979 and thereafter served a three year tour of duty in the United States Coast Guard, which tolled the six year statute of limitations under 28 U.S.C. Sec. 2401(a) (1982) for filing suit. See 50 U.S.C.App. Sec. 525 (1982). Commencement of this action on May 20, 1986 was therefore timely. Upon motion by the government, the district court granted summary judgment against Cornetta based on laches. It found that there was an inexcusable delay in filing this action and that the government was prejudiced by the delay because, if Cornetta were successful, he would receive pay for work he did not perform and which "possibly was performed by another officer," and would receive "some credit toward his retirement for time not spent in the Marine Corps or Coast Guard." Although the government suggested defense prejudice concerning witnesses and documents, the district court's decision was based solely on economic prejudice and the government does not argue defense prejudice on appeal.

Cornetta's separation resulted from being passed over for promotion from the rank of captain to major by two selection boards. 10 U.S.C. Secs. 8299(h) and 8303(d) (1976). Included in Cornetta's military service record at the time of the first promotion consideration was an unfavorable fitness report issued by Cornetta's rating officer in May 1977 (Sims report). Before his second consideration for promotion, Cornetta applied to the Board for Correction of Naval Records (Corrections Board) requesting that his record be corrected by removing the Sims report and clearing his record of the first non-selection for promotion. The Corrections Board recommended that the relief be granted and that Cornetta be presented to the next selection board as if he were for the first time being considered for promotion to major. The Corrections Board also recommended, however, that a second passover by the selection board should continue to be regarded as a second valid failure of selection for promotion for purposes of mandatory separation from the Marine Corps. These recommendations were adopted by the Secretary of the Navy. Cornetta was passed over for a second time and thereafter honorably discharged from the Marine Corps.

OPINION

The affirmative defense of laches generally requires that the defendant demonstrate (1) inexcusable delay on the part of the claimant, and (2) prejudice to the defendant as a result of such delay. Pepper v. United States, 794 F.2d 1571, 1573 (Fed.Cir.1986). In the absence of a lengthy delay, the defendant asserting laches bears the burden of going forward with evidence to establish that the delay was unjustified. Where the length of the delay is clearly unreasonable, however, the burden of going forward with evidence to justify the delay shifts to the party who delayed. Id. at 1574-75; Adkins v. United States, 228 Ct.Cl. 909, 912 (1981). In Pepper this court held that a delay of six years and four months from the receipt of a challenged fitness report constituted inexcusable delay, despite efforts by the claimant there to justify his delay. See also Leinoff v. Milona & Sons, 726 F.2d 734, 742 (Fed.Cir.1984) (delay exceeding six years is presumptively injurious).

Cornetta has not attempted to justify his delay in commencing this action. Instead he asserts that his outstanding discovery request and his response under Fed.R.Civ.P. 56(f) to the summary judgment motion showed that additional information was needed for him to be able to oppose the government's laches defense and motion for summary judgment. Continuing, he contends that a party invoking Rule 56(f) need not present proof raising a material issue of fact that would preclude summary judgment and that he should not have been cast with the burden of responding to the laches defense prior to receipt of the requested discovery.

Rule 56(f) provides that a court may deny a motion for summary judgment, grant a continuance or make such other order as is just, if the party opposing the motion cannot present facts necessary to justify his opposition. The district court concluded that, even based on a liberal interpretation of that rule, and considering Cornetta's complaint and the affidavit of his counsel in a light most favorable to appellant, no genuine issue of material fact existed over inexcusable delay. Cornetta did not, according to the district court, indicate what information was sought concerning delay. Cornetta disputes this finding but in his brief he states only that the discovery might be "a partial excuse for the first three years of delay." We cannot say under these circumstances that the district court erred in finding the first prong of the laches defense satisfied.

Cornetta also had the burden of demonstrating that his delay did not prejudice the government. This court explained in Pepper that:

"The longer the delay by plaintiff in filing suit, the less need there is to search for specific prejudice and the greater the shift to plaintiff of demonstrating lack of prejudice." Deering v. United States, 223 Ct.Cl. 342, 620 F.2d 242, 246 (Ct.Cl.1980). If a plaintiff fails to meet this burden in a meaningful way, it may be presumed, in a proper case, that prejudice is manifest from undue delay. Wilmot v. United States, 205 Ct.Cl. 666, 685 (1974). We said in Leinoff v. Milona & Sons, 726 F.2d 734, 742 (Fed.Cir.1984), that a delay exceeding 6 years is presumptively injurious and therefore prejudicial. A delay under our precedents need not be that long but the key to these situations is to remember that laches is an equitable defense that aids the vigilant, not those who slumber on their rights, and it is designed to promote diligence and to prevent enforcement of stale claims. The prejudice to be presumed from undue delay may involve such problems as difficulty in finding witnesses and documents, difficulty in reviving fading memories, or, in some situations, the paying of two salaries for one position or the paying for services not performed. Adkins v. United States, 228 Ct.Cl. at 912-13.

794 F.2d at 1574-75. Under this precedent, Cornetta's delay warranted a presumption of prejudice to the government.

Cornetta contends, however, that because he waived back pay in excess of $10,000 to obtain district court jurisdiction under the Little Tucker Act, 28 U.S.C. Sec. 1346(a)(2) (1982), the economic prejudice could not be substantial. As authority, he relies on decisions of our predecessor court indicating that approximately three months and one week of back pay, which the $10,000 claimed herein would...