Sidoran v. United States, 425-74.

• Decision Date: 23 February 1977
• Docket Number: No. 425-74.,425-74.
• Citation: 550 F.2d 636
• Parties: Paul SIDORAN v. The UNITED STATES.
• Court: U.S. Claims Court

550 F.2d 636

Paul SIDORAN v. The UNITED STATES.

No. 425-74.

United States Court of Claims.

February 23, 1977.

David McGoldrick, Tacoma, Wash., atty. of record, for plaintiff. Bonneville, Viert & Morton, Tacoma, Wash., of counsel.

Julie P. Dubick, Washington, D.C., with whom was Asst. Atty. Gen., Rex E. Lee, Washington, D.C., for defendant.

Before DAVIS, NICHOLS and KASHIWA, Judges.

ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

PER CURIAM.

Plaintiff is now an Air Force Major in the reserves, and is retired. His claim for back pay is based on the following facts:

In 1967 plaintiff, then a Captain, had been passed over twice for promotion to Major and was subject to release from active duty. He was notified that a Central Continuation Board had designated him as an officer who might request continued active duty. He executed under date of November 3, 1967, a paper reciting the foregoing and stating that he did so request. He further stated therein:

I understand that:

1. This signed certificate cannot be changed or withdrawn.

2. I will be continued on active duty until the Secretary of the Air Force determines that the Southeast Asia Mission is such that my services are no longer required.

3. The period of continuation will in no event expire before 30 June 1969 and that I will be given at least six months' notice prior to my being released from active duty.

There were other stipulations not here immediately relevant. Lieutenant Duane L. Conques signed what was designated an "Authentication" as "Unit Personnel Representative," after plaintiff's signature.

Plaintiff served in Southeast Asia until separated December 3, 1970, having been since June 27, 1970, in hospital after surgery. As early as September 22, 1969, the Secretary determined that officers of plaintiff's status were no longer required to support the Southeast Asia mission. He fixed on or before June 30, 1970, as the date for those having under 18 years active duty service to be separated. It is not denied that plaintiff on October 2, 1969, received notice that he would be separated on or before March 31, 1970, but this time was extended at his request until June 30, 1970, and the hospitalization effected the further extension.

On February 1, 1971, plaintiff voluntarily enlisted in the Air Force as a Sergeant and in 1973 retired into the reserve rank of Major, having thus completed his 20 years. He made various unsuccessful applications to the Air Force Board for Correction of Military Records (BCMR) to void his passovers and to obtain disability retirement. Those issues are not litigated here.

The instant claim is for back pay from the December 3, 1970, separation date to the retirement date, with general damages for injury to professional reputation and emotional distress. Plaintiff filed the suit on December 12, 1974. The gravamen of the suit may be said to be that the Secretary of the Air Force breached a contract, the document of November 3, 1967, by decreeing the separation of officers in plaintiff's class for budgetary reasons and not for the state of the Southeast Asia Mission, wherein, says plaintiff, his services were still required.

Defendant moves for summary judgment and relies chiefly on laches, but we cannot sustain its position on that ground. In Cason v. United States, 461 F.2d 784, 198 Ct.Cl. 650 (1972), we determined that defendant could plead laches in military pay cases, relying both on reason and on some rather venerable authority. In the same case, 471 F.2d 1225, 200 Ct.Cl. 424 (1973), we reconsidered and vacated the previous judgment, on the facts of that particular case, pointing out, among other things, that the laches doctrine could not be transplanted wholesale from the litigation to civilian employees, without regard to the many differences in military life and law.

We note herein that...