Brundage v. United States

• Citation: 504 F.2d 1382
• Decision Date: 23 October 1974
• Docket Number: No. 442-72.,442-72.
• Parties: James W. BRUNDAGE v. The UNITED STATES.
• Court: Court of Federal Claims

504 F.2d 1382

James W. BRUNDAGE v. The UNITED STATES.

No. 442-72.

United States Court of Claims.

October 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 reapplication 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.¹ 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 cases. 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.² 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 (1962), 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:

* * * If, 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...