the cause of action accrues. The government points out that this claim was filed almost ten years after discharge. Even if limitations are tolled for the twenty-month period during which plaintiff exhausted his administrative remedies, the statute ran for over eight years five years before the BCNR appeal, and three years after. Thus, defendants conclude that plaintiff bears the burden of showing that his delay is excusable and did not prejudice the defendants.
Plaintiff offers no response to defendants' statement that six years is the analogous limitation period. Instead, citing Cason v. United States, 471 F.2d 1225, 200 Ct.Cl. 424 (1973), he argues that laches are inapplicable to military-pay cases. Furthermore, he contends (without citation) that his cause of action accrued in 1975, when he was "counselled as to his rights." Plaintiff's Memorandum at 12. Finally, he argues that his delay is excused by his own ignorance, and by his deliberate postponement of filing pending the outcome of Neal.
Plaintiff misreads Cason. There, the en banc Court of Claims refused to apply laches because it would have been inequitable "to revive an apparently dead rule, and to give it retroactive effect." 471 F.2d at 1229. The court, however, also warned that "parties before this court will take this case as notice that military pay cases are not per se exempt from application of the doctrine of laches." Id. Furthermore, the Court of Claims noted that the four-year delay in bringing the Cason action was "entirely too long. With a minimum showing of injury, it would have mandated application of laches except for the desuetude factor." Thus, Cason stands for the proposition that laches would be prospectively applied.
More important, plaintiff's argument that laches has no applicability is unconvincing. His position necessarily implies that suits for improper discharge can never be time barred. This position is wrong, both as a matter of equity, see generally H. McClintock, supra, § 28, and comity between military and judiciary. See generally Neal, 639 F.2d at 1037 (quoting district court). Equity and comity both counsel the application of laches, in order to encourage discharged military personnel to bring their grievances promptly to the attention of the boards of corrections and the courts. Otherwise, long delays may result (as in this case), with a great possibility of prejudice to the government.
Plaintiff could have brought this lawsuit in 1971.
His cause of action accrued, and the running of time started then.
Tolling time for two years to allow for his BCNR appeal,
plaintiff has waited eight years to bring this action. Because this period is longer than the analogous limitation statute,
plaintiff has the burden of excusing his delay and showing lack of prejudice to the government.
Plaintiff has explained his delay, but none of his explanations constitutes a legal "excuse."
Furthermore, plaintiff has not met his burden of showing lack of prejudice. Indeed, in responding to the prejudice which results from difficulty of locating witnesses, plaintiff appears to concede prejudice. He argues only that this difficulty can be surmounted through consumption of the government's "virtually inexhaustible resources." Plaintiff's Memorandum at 12. Although plaintiff is correct to observe that his service record is in the government's possession, witnesses also are important to the resolution of his problem; their credibility is in issue, and if plaintiff were entitled to a new EPB, their presence would be vital. Accordingly, plaintiff has not met his burden of explaining delay and demonstrating lack of prejudice.
Therefore, plaintiff's action is barred by laches and shall be dismissed with prejudice.