Ronald J. Cornetta v. The United States of America and John Lehman, Secretary of the Navy

MICHEL, Circuit Judge,

concurring.

I commend the court’s willingness to revisit, revise, and limit the laches doctrine as applied in military back pay cases, and its success in clarifying both prongs of the laches defense. Most importantly, inquiries as to delay and prejudice are now clearly established as distinct. Contrary to some intimations in our precedent, a delay cannot be unreasonable simply because prejudice to the defendant resulted, nor can prejudice to the defendant result solely because unreasonable delay occurred. Lach-es requires both elements, independently proven.

Despite my general agreement with the majority’s statement of the applicable law, I write separately to explain my disagreement on two seemingly minor, but nevertheless significant points. First, I would conclude that Mr. Cornetta has had his chance to justify his delay in bringing this action and therefore believe that only the prejudice inquiry should be reopened on remand. Second, for the reasons expressed herein, I would modify the majority’s section II-E-1 to hold explicitly that the potential liability for back pay cannot be used to show prejudice to the government under any circumstances. Since I would categorically reject potential back pay even as an element of prejudice, I also *1384 do not join section II-E-2 of the majority opinion.

I.

In my view, the sole issue with respect to laches on remand should be whether, as a result of Mr. Cornetta’s unreasonable delay in bringing suit, the government suffered any actual prejudice other than of the types rejected in the majority opinion. I would not now allow Mr. Cornetta to offer any justification for his delay in bringing suit because, in my opinion, he has already had a full chance to do so. By neither offering any such reasons, nor explaining why he was precluded from doing so, he should now rely solely on an absence of prejudice to the government as a means of avoiding application of laches.

As the majority points out, although brought more than 6 years after his separation from the Marine Corps, Mr. Cornet-ta’s suit was nevertheless not barred by the applicable statute of limitations, due to its tolling under the Soldiers’ and Sailors’ Civil Relief Act, 50 U.S.C.App. § 525, during his 3-year Coast Guard service. Where, as here, a suit is brought after the period stated in the applicable statute of limitations has passed, I believe that such delay should create a rebuttable presumption that the delay itself was unreasonable. A rebuttable presumption of unreasonableness with respect to the claimant’s delay is very different from a conclusive presumption of prejudice to the government based on that delay. The latter presumption is soundly rejected by the majority. In contrast, however, shifting the burden to the claimant to justify his delay through use of a presumption of unreasonableness where the claimant has delayed beyond what would have been the statutory limitations period, but for tolling, seems both appropriate and useful to me.

Unlike the evidence of governmental prejudice, which the majority properly recognizes is normally held entirely within the control of the government, the evidence which would serve to justify or excuse the delay in bringing suit is peculiarly within the knowledge of the one who delayed, i.e., the claimant. See Panduit Corp. v. All States Plastic Mfg. Co., 744 F.2d 1564, 1581 , 223 USPQ 465, 476 (Fed.Cir.1984). Furthermore, a valid excuse or justification for plaintiff’s delay prevents a finding of laches only because the claimant’s delay cannot be considered unreasonable, not because the excuse for the delay negates a finding of prejudice. The two prongs of the laches test are separate and must be independently satisfied. Thus, even if the delay is not or cannot be justified, the government still must show actual prejudice in order to satisfy the second prong of the laches test, and must do so without reliance on the unreasonableness of the delay.

Actually, a rebuttable presumption that the delay was unreasonable would be applicable only in suits like the one at bar which have been untimely filed but for a tolling of the statute of limitations. Generally, an action brought within the time period for the applicable statute of limitations (before tolling) will not be considered unreasonably delayed, except upon a showing of special facts making the delay culpable. See Shouse v. Pierce County, 559 F.2d 1142, 1147 (9th Cir.1977); see also United States v. Olin Corp., 606 F.Supp. 1301, 1309 (N.D. Ala.1985). Thus, in most situations where suit is brought against the United States government, since Congress has explicitly consented to suit within a 6-year period, then the delay resulting from a suit against the government brought before 6 years have elapsed would seem to be reasonable without explanation or analysis. Of course, it is undisputed that a suit brought after the expiration of the time allowed by the statute of limitations is barred through operation of the statute. See Holmberg v. Armbrecht, 327 U.S. 392, 395 , 66 S.Ct. 582, 584 , 90 L.Ed. 743 (1946).

Mr. Cornetta has made no allegation nor offered any evidence to justify his delay. He complains only that the district court’s grant of summary judgment prior to his receiving discovery denied him access to documents which he nakedly asserts are relevant to his unstated justification for delay. In my view, Mr. Cornetta’s argu *1385 ment requires an implicit acceptance of the premise that something unknown to Mr. Cornetta during his delay could possibly constitute his reason for that delay. However, examination of - his unfulfilled discovery request in this case reveals no basis on which to conclude that the requested information possibly relates to Mr. Cornet-ta’s own reasons for not bringing his suit earlier. Furthermore, despite explicit inquiry, counsel for Mr. Cornetta was unable at oral argument to provide any indication of how the requested information was relevant to that prong of the laches test. In short, Mr. Cornetta has made no showing with respect to delay other than his assertion that discovery may provide some unspecified information relevant to that issue.

One opposing a summary judgment motion must do more than simply repeat the assertions in his complaint or make conclu-sory statements in opposition to the motion. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 , 106 S.Ct. 2548, 2552 , 91 L.Ed. 2d 265 (1986); Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1562-63 ,- 4 USPQ 2d 1793, 1795-96 (Fed.Cir. 1987). Here, Mr. Cornetta’s complaint was silent with respect to his delay of nearly 7 years and, despite several opportunities to fill that void, Mr. Cornetta has been unwilling or unable to provide any justification or to offer any reasons why his justification would be unknown to him. Therefore, I would conclude that the majority improperly allows Mr. Cornetta “a second bite at the apple” on remand with respect to providing an excuse for his delay in filing this suit and I do not join the portion of the majority’s opinion that permits further consideration of that issue.

II.

I believe that section II-E-1 of the majority’s opinion makes a convincing case that potential receipt of back pay in any amount cannot establish prejudice to the government under any circumstances. However, rather than reach the logical conclusion which follows directly from its own analysis, the majority merely holds that “potential receipt of back pay alone is insufficient to show prejudice to the government.” While I fully concur in the majority’s result under section II-E-1, I do not agree that the court’s holding should be so qualified. Presumably, under the majority’s view, an otherwise deficient showing of defense or reliance prejudice coupled with a large potential back pay liability could be sufficient to show prejudice. In my opinion, potential receipt of back pay should no more be used to establish sufficient prejudice to the government in combination with other factors than standing “alone.”

As a result of that conclusion, I also do not join section II-E-2 of the majority opinion. In my view, if the government cannot use the large size of the potential back pay recovery to demonstrate its prejudice, the claimant should also be prohibited from using the small size of the potential back pay recovery to demonstrate a lack of prejudice to the government. To me, the majority’s discussion in section II-E-2 is unnecessary and contravenes what I view as the rationale of the preceding section: that the potential recovery of any amount of back pay by the claimant should not be a factor with respect to prejudice.

As the majority opinion itself makes clear, Congress must have contemplated an award’s potential size when it created the back pay remedy, the corresponding 6-year statute of limitations, and the tolling provisions of the Soldiers’ and Sailors’ Civil Relief Act. The majority further recognizes the incongruity of a claimant having to waive a portion of his recovery in order for a court to reach the merits of his case. I therefore would conclude, as the majority almost does, that a claimant should, if otherwise entitled, be able to get a full recovery for an illegal separation from military service. Since a full recovery cannot occur if a waiver of most or some of a claimant’s potential recovery is necessary in order to reach the merits of the claim, it follows that making the amount of back pay part of the prejudice inquiry will often rob the claimant of his chance to receive a full remedy.

*1386 In my view, the size of the potential recovery should not be a factor in the prejudice inquiry, regardless of whether the potential recovery is large or whether it is small. The majority seems to recognize the former, but fails to recognize that it is equally incongruous to suggest that a claimant can avoid or limit economic prejudice to the government by reducing his potential recovery through “waiver.” Surely, a plaintiff should not be allowed to manipulate the cost to the government simply by waiving some back pay recovery since that waiver fails to limit the amount of time creditable to his retirement. It is shortsighted to focus only on the dollars involved in the potential back pay recovery since it would appear that gaining eligibility for military retirement, not recovering back pay, is the primary reason for many of these suits. Mr. Cornetta would surely object if we held that his waiver served to limit the amount of time creditable to his retirement to three months and one week.

On the last point, it should be noted that, under the circumstances of this case, Mr. Cornetta did not restrict his claim for back pay to three months and one week of active duty pay. What he did was restrict his net recovery to less than $10,000 to make it clear on the face of his complaint that the district court had jurisdiction to hear the case. There is a significant difference between limiting the amount of back pay and limiting the net recovery after offsets. Because of the likely offsets to his back pay recovery due to his other jobs and payments, Mr. Cornetta likely was going to receive less than $10,000 net recovery anyway, so his “waiver” gave up nothing and allowed the district court to assume jurisdiction. Thus, while waivers of potential back pay recovery may be relevant to determining the jurisdiction of the trial court, in my view such waivers should be irrelevant to the prejudice inquiry once jurisdiction is properly determined. If potential back pay liability is simply not an element of prejudice at all, a claimant would not need to and would not be able to affect the prejudice inquiry through waiver of complete monetary recovery.

Furthermore, the majority’s final conclusion in section II-E-2 that the potential recovery of an amount of back pay corresponding to the post-filing time necessary to establish entitlement cannot count as prejudice misses the mark. In my view, finding no prejudice from the amount of back pay associated with the time it would otherwise take to establish entitlement is incorrect for several reasons. First, I disagree with its implicit suggestion that at least some potential liability for back pay, that from the period determined not associated with the time needed to establish entitlement, could be considered as an element of prejudice. Second and more fundamentally, the period after the filing of the suit cannot be relevant to the prejudice inquiry since the laches determination only focuses on the time and events taking place until suit is filed. In fact, the government expressly conceded that the amount of back pay accruing between filing the suit and payment of the claim cannot be considered as prejudice since the filing of the claim puts the government on notice of the alleged improper separation. Finally, since the laches inquiry is made prior to the merits of the claim being considered, trying to decide how long a timely filed suit would take to resolve results in as speculative, burdensome, and unnecessary an inquiry as determining the likely amount of recovery before the merits are decided. The majority justifiably decries the former, but apparently not the latter.

The best way to avoid such speculative inquiries is also the simplest: hold that the potential recovery of back pay may not be considered at all with respect to prejudice. Back pay itself only operates to remedy the wrong caused by the improper discharge. Furthermore, the size of the final back pay award derives arithmetically from the amount of time that the claimant has been discharged, the salary of the claimant, and the presence of offsets. None of these factors, however, should affect the inquiry into the government’s prejudice. To conclude otherwise would cause a wrongfully-discharged captain to run afoul of laches sooner than a wrongfully-discharged private or would allow one who gets another *1387 job in the interim to avoid laches longer than one unable to find employment. Finally, since the amount of back pay is directly related to the length of time that the military claimant has been discharged, the prior determination of the unreasonableness of the delay implicitly takes the length of the delay into account. Time should not be a factor in both prongs of the laches analysis.

For the above reasons, I cannot join section II-E-2 of the opinion and would simply hold that potential receipt of back pay regardless of amount cannot be used at all in showing prejudice to the government.