denial, although a review procedure was available under the plan.
12. In March, 1980, plaintiff again requested in writing through his supervisor a service bridge. This request was denied by the Manager of Employee Benefit Programs in a memorandum dated May 27, 1980. Again, no review of the decision was specifically offered or requested.
13. In September, 1980, plaintiff again requested that he be granted a "service bridge," this time through the offices of the United States Department of Labor. In a letter dated October 21, 1980, to the representative of the Department of Labor, the Manager of Personnel again denied this request.
14. On August 25, 1981, plaintiff received a lump sum pension estimate and general lump sum information, which reflected a February 1, 1956, continuous service date. At that time, no objection was made to the utilization of this service date, and no review was requested.
15. Plaintiff retired from Bethlehem Steel on January 31, 1982, and having met the eligibility requirements contained in the plan took his pension as a lump sum payment based on continuous service date of February 1, 1956. The amount of the lump sum was $84,765.50. At that time, plaintiff reserved in writing his request for a service bridge.
16. If five and one-half years were added to his continuous service date, the lump sum would have been $101,731,74, an addition of $16,966.24.
17. Plaintiff filed suit on March 4, 1982.
Defendant's initial argument is that the Act is not retroactively applicable to veterans serving prior to the Viet Nam conflict, specifically those serving in World War II. However, defendant cites no case law in support of its proposition. In contrast, several courts have applied the Act to veterans of World War II. See, e.g., Bunnell v. New England Teamsters, 655 F.2d 451 (1st Cir. 1981), cert. denied, 455 U.S. 908, 71 L. Ed. 2d 446, 102 S. Ct. 1253 (1982); Tennyson v. Babcock & Wilcox, 105 L.R.R.M. 2927 (S.D. Ind. 1980); Miller v. White Engines, Inc., 100 L.R.R.M. 2146 (N.D. Ohio 1978). Thus, in light of the liberal construction courts have given to the Act and its predecessor legislation, this threshold argument is rejected.
Defendant's next contention is that the action is barred by Pennsylvania's statute of limitations or, alternatively, by the equitable doctrine of laches. Under the Act, state statutes of limitations are not applicable. See 38 U.S.C. § 2022. They may, however, provide some guidance by analogy in determining the application of laches. See, e.g., Gruca v. U.S. Steel Corp., 495 F.2d 1252, 1258 (3d Cir. 1974).
The appropriate approach for determining the application of laches here is to separate the reinstatement-related claims from the pension-based claims. See, e.g., Tennyson v. Babcock & Wilcox, supra; cf. Armstrong v. Baker, 394 F. Supp. 1380 (N.D. W.Va. 1975). The reinstatement-related claim, dating back some 36 years from the two times that the plaintiff unsuccessfully presented himself for reemployment, falls well beyond the analogous six-year statute of limitations. Based on the circumstances of this case, the essential elements of unreasonable delay and prejudice to the defendant would seem to be met. See, e.g., Southern Pacific Co. v. Bogert, 250 U.S. 483, 490, 63 L. Ed. 1099, 39 S. Ct. 533 (1919). Whether one views the statute of limitations as creating a rebuttable presumption of delay and prejudice, e.g., Churma v. U.S. Steel Corp., 514 F.2d 589, 593 (3d Cir. 1975), or as having no evidentiary effect, e.g., Banks v. U.S. Steel Corp., 105 L.R.R.M. 2770, 2771 (N.D. Ind. 1980), the extremely lengthy delay here, during which time the plaintiff first achieved alternative employment and later secured another position with the defendant corporation, offered him ample opportunity to commence court action, and he has shown no excuse for not doing so. Further, the turnover in relevant records and personnel after such a long period prejudices the defendant's -- and the plaintiff's -- case.
In contrast, the pension-based claim did not accrue until the plaintiff's retirement, although he could have elected to start the clock running when the anticipatory breach occurred at the time that the earlier decisions were rendered. See, e.g., Alabama Power Co. v. Davis, 383 F. Supp. 880, 892 (S.D. Ala. 1974), aff'd on other grounds, 542 F.2d 650 (5th Cir. 1976), 431 U.S. 581, 97 S. Ct. 2002, 52 L. Ed. 2d 595 (1977). Having retired in 1982, plaintiff is still well within the analogous six-year statute of limitations, and he cannot be said to have inexcusably delayed his pension claim resulting in prejudice to the defendant. See, e.g., Tennyson v. Babcock & Wilcox, supra, at 2930.
Defendant's argument that the proper defendant is the pension plan, not the corporation, is unavailing. The amendment to Section 2022
in effect removed the corporation's right to dismiss for failure to join the pension fund; they both fall under the umbrella of the Act's reference to "employer," albeit that the primary liability is on the pension fund. See, e.g., Bunnell v. New England Teamsters, supra at 452.
Defendant's final argument that plaintiff is required to exhaust the pension plan's internal remedies has merit.
It is well settled that the exhaustion doctrine is applicable to pension and benefit claims. See, e.g., Amato v. Bernard, 618 F.2d 559 (9th Cir. 1980); Wolf v. National Shopmen Pension Fund, 512 F. Supp. 1182 (E.D.Pa. 1981); Scheider v. U.S. Steel Corp., 486 F. Supp. 211 (W.D. Pa. 1980); Lucas v. Warner & Swasey Co., 475 F. Supp. 1071 (E.D. 1979). There has been no showing that any of the exceptions to the exhaustion doctrine -- e.g., futility or lack of meaningful access -- is applicable in this case. The two principal advantages of applying this doctrine here are administrative expertise and judicial economy. With regard to the expertise aspect, one court cogently commented as follows:
[A] primary reason for the exhaustion requirement, here as elsewhere, is that prior fully considered actions by pension plan trustees interpreting their plans and perhaps also further refining and defining the problem in given cases, may well assist the courts when they are called upon to resolve the controversies.
See Amato v. Bernard, supra, at 568.
With regard to judicial economy, it may be that a review of the matter by the General Pension Board, as provided by § 7.1 of the defendant's Plan, may well solve the matter to the mutual satisfaction of the parties. The Board's consideration of the arguable nullity of plaintiff's intervening status
and its possible application of the continuous service exceptions
may serve as the basis for a settlement.
Thus, while the reinstatement-related claim is dismissed with prejudice, the pension-based claim is dismissed without prejudice for failure to exhaust the plan's internal remedies, with leave to be re-filed in this court if the result of such remedies is unavailing.
I reach the following:
CONCLUSIONS OF LAW
1. This court has subject matter jurisdiction under provisions of 38 U.S.C. § 2021 et seq., formerly 50 U.S.C. App.§ 459.
2. This court has in personam jurisdiction over the parties who have appeared here through counsel.
3. Venue lies properly in this court.
4. Plaintiff's reinstatement-related claim is barred by laches and will be dismissed with prejudice.
5. Plaintiff's pension-based claim will be dismissed without prejudice for failure to exhaust internal pension plan remedies.
6. For the reasons set forth in the DISCUSSION, an appropriate order will be entered implementing the CONCLUSIONS OF LAW set forth herein.
AND NOW, this 25th day of August, 1983, IT IS ORDERED that the plaintiff's claims are DISMISSED. The reinstatement-related claim is barred by laches and thus is DISMISSED with prejudice. The plaintiff's pension-based claim is DISMISSED without prejudice for failure to exhaust internal fund remedies.