Unpublished Dispositionmichael C. Yerxa, Plaintiff-appellee, v. the United States, Defendant-appellant, 824 F.2d 978 (Fed. Cir. 1987)

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US Court of Appeals for the Federal Circuit - 824 F.2d 978 (Fed. Cir. 1987) May 29, 1987

Before MARKEY, Chief Judge, and DAVIS and NEWMAN, Circuit Judges.



The decision of the United States Claims Court (Gibson, J.), holding that plaintiff-appellee should recover from the defendant-appellant, and that his records should be corrected to show that he continued as a military officer, is affirmed.


The facts are set forth in Yerxa v. United States, 11 Cl.Ct. 110 (1986). The only issue contested before us is whether plaintiff-appellee's claim is barred by laches. On that question we agree with Judge Gibson that Yerxa was not barred by laches from pursuing his claim that his passovers resulted from the actions of illegally constituted selection boards. Contrary to defendant-appellant, there are no binding precedents compelling or suggesting a different result. Deering v. United States, 620 F.2d 242 (Ct. Cl. 1980)--cited by defendant-appellant as such--took pains to point out expressly (id. at 246) that Deering had already delayed five years and eight months ("usually sufficient to constitute laches") before the decision in Sidoran v. United States, 550 F.2d 636 (Ct. Cl. 1977), was announced. That is not at all appellee's case.

MARKEY, Chief Judge, dissents.