Goeppner v. United States

3 Cl. Ct. 345, 1983 U.S. Claims LEXIS 1633
CourtUnited States Court of Claims
DecidedSeptember 14, 1983
DocketNo. 271-82C
StatusPublished
Cited by4 cases

This text of 3 Cl. Ct. 345 (Goeppner v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Goeppner v. United States, 3 Cl. Ct. 345, 1983 U.S. Claims LEXIS 1633 (cc 1983).

Opinion

AMENDED OPINION PARTIALLY VACATING OPINION OF JULY 27, 1983

MARGOLIS, Judge.

This Court entered an Opinion on July 27, 1983 holding that Plaintiff’s claim was barred both by laches and by the statute of limitations. On August 2, 1983 the defendant filed a motion to partially vacate the Court’s decision. A supplement to the motion was filed by the defendant on August 22, 1983. The defendant’s motion is granted, and the Opinion is partially vacated to the extent of the holding that plaintiff’s claim was barred by the statute of limitations. Accordingly, the Opinion is amended to provide as follows.

This case is before the Court on cross motions for summary judgment, submitted with oral argument. Plaintiff, Chief Warrant Officer Joe Goeppner, brings this military pay action against the United States seeking retroactive promotion from the rank of Major to Lieutenant Colonel for the period of December 1971 to June 1972, and from the rank of Chief Warrant Officer to Colonel for the period of December 1974 to the present. Additionally, plaintiff seeks to recover back pay. Plaintiff alleges that but for an administrative delay in recommending him for promotion from Major to Lt. Colonel in 1971, he would have been eligible for promotion to full Colonel prior to his mandatory retirement in April 1975. Plaintiff further alleges that the refusal of the Army Board for the Correction of Military Records (Correction Board) to backdate his promotion to Lt. Colonel, and the Board’s subsequent refusal to reconsider his petition were arbitrary and capricious. This Court finds that the plaintiff’s claims are barred by the doctrine of laches and, therefore, holds for the defendant.

Plaintiff, a career serviceman who enlisted in 1940, is currently serving on active duty as a Chief Warrant Officer, United States Army Reserve at the United States Army Medical Research and Development Command, at Fort Dietrich, Maryland. Plaintiff’s service record indicates that he is an exemplary officer who has served his country with dedication and loyalty for many years.

In early December 1971 plaintiff, who then held the rank of Major, was reassigned to Headquarters, 361st Medical Lab in Chicago, Illinois, where there was a unit vacancy in the rank of Lt. Colonel. Although plaintiff’s unit commander recommended that plaintiff be considered by the December 1971 Unit Vacancy Promotion Selection Board (Vacancy Board), plaintiff was not considered because the request was not received prior to the Board’s adjournment date of December 13,1971. Plaintiff subsequently was recommended for consideration by the March 1972 Vacancy Board but again was not considered for promotion due to administrative delays.

In April 1972 the United States Army Reserve Components Personnel and Administration Center (USARCPAC) determined that plaintiff should have been considered for promotion to Lt. Colonel by the January 1971 and January 1972 Mandatory Promotion Selection Boards (Mandatory Board). Using the selection criteria of the January 1971 Mandatory Board, the May 1972 Standby Advisory Board did not recommend plaintiff for promotion.

Plaintiff later was promoted to the rank of Lt. Colonel by the June 1972 Vacancy [347]*347Board on June 16, 1972. Army regulations required a positive promotion recommendation by a Mandatory Board before promotion by a Vacancy Board. As a result, the defendant claims that the plaintiff effectively was promoted thirteen days earlier than the date on which he would have been eligible for promotion had he been selected by either the January 1971 or January 1972 Mandatory Boards.

On June 4, 1974 the Commander, 361st Medical Lab, requested that USARCPAC correct plaintiff’s records and backdate plaintiff’s date of rank as a Lt. Colonel from June 1972 to December 1971. This backdating would have given plaintiff the required time in grade to be eligible for a Vacancy Board promotion to Colonel prior to his mandatory retirement date as a Lt. Colonel. On June 18, 1974 plaintiff submitted an application requesting that his date of rank as a Lt. Colonel be backdated to make him eligible for promotion. Plaintiff based his application on the administrative delays by his superiors that precluded his consideration for promotion to Lt. Colonel by the December 1971 Vacancy Board. On June 20, 1974, USARCPAC forwarded the two requests and recommended that the Correction Board grant the request and backdate plaintiff’s date of rank as a Lt. Colonel.

The Correction Board denied plaintiff’s request on August 14, 1974 without a hearing. The Correction Board ruled that because plaintiff had been promoted thirteen days earlier than he should have been, no injustice occurred due to the alleged administrative delays.

On October 30,1974 USARCPAC requested that the Correction Board reconsider its denial of plaintiff’s request and grant relief on equitable grounds. On January 13, 1975 the Correction Board sustained its August 14,1974 decision. Thereafter, on March 29, 1975 the plaintiff vacated his commission as a Lt. Colonel and accepted an appointment as a Chief Warrant Officer in order to avoid mandatory retirement in April 1975.

Plaintiff applied to the Correction Board on July 1,1981 requesting that it reconsider its decision of August 14, 1974 on the ground that the Correction Board might not have reviewed letters from USARCPAC, dated August 1, 1974 and October 30, 1974, supporting his petition. Plaintiff stated that he was unaware of these recommendations until he discovered them in his military personnel records in September 1979. On March 9, 1982 the Correction Board refused to reconsider its August 14,1974 decision denying plaintiff’s petition on the ground that plaintiff had presented no evidence that had not been previously considered. On May 27,1982 plaintiff brought the instant action.

Plaintiff’s claim is barred by laches. The doctrine of laches bars relief to one who unreasonably and inexcusably delays the assertion of his claim. Brundage v. United States, 205 Ct.Cl. 502, 505, 504 F.2d 1382, 1384 (1974), rehearing denied, 206 Ct.Cl. 823 (1975), cert. denied, 421 U.S. 998, 95 S.Ct. 2395, 44 L.Ed.2d 665 (1975). This Court has held that the doctrine of laches is applicable to military pay cases. Neumann v. United States, 219 Ct.Cl. 591, 592 (1979); Brundage v. United States, 205 Ct.Cl. at 507, 504 F.2d at 1385. To establish the defense of laches, the defendant must show undue delay by the plaintiff resulting in prejudice to the Government. Neumann v. United States, 219 Ct.Cl. at 592; Brundage v. United States, 205 Ct.Cl. at 509, 504 F.2d at 1386.

Claims against the government first accrue when all events have occurred which fix the government’s liability and entitle the claimant to institute an action. Kirby v. United States, 201 Ct.Cl. 527, 532 (1973); Oceanic Steamship Co. v. United States, 165 Ct.Cl. 217, 225 (1964). Plaintiff’s claim is premised upon the government’s failure to consider him for promotion due to the administrative delay of his superiors. Accordingly, plaintiff’s claim first accrued when the Vacancy Board adjourned on December 13,1971 without considering him for promotion. Plaintiff’s petition before this Court was filed ten years and five months after his claim accrued. Plaintiffs charged with far less delay have been barred from recov[348]*348ery by laches where sufficient prejudice was present. See, e.g., McGahey v. United States,

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3 Cl. Ct. 345, 1983 U.S. Claims LEXIS 1633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goeppner-v-united-states-cc-1983.