compelling the merits would need to be to justify a full review.
The plaintiffs in this case offer their lack of knowledge concerning the statute of limitations as the reason for the delay. Indeed, eight different senior officers advised plaintiff Allen not to seek review of his disputed OER's. Allen Record ("AR") at 19. The Court finds that the BCMR should not have refused to perform any review of the merits based solely on what the BCMR perceived to be the inadequacy of these reasons. Rather, these are factors that should have been analyzed along with the potential for success on the merits in determining whether the interest of justice would be served by waiving the statute of limitations.
Plaintiff Allen argues that the doctrine of laches was not an appropriate basis to bar his claim. Allen first argues that laches does not apply in the non-adversarial setting of the BCMR. He concedes, however, that Baxter strongly suggests otherwise. Baxter, 652 F.2d at 186, n. 4. Further, Mai explicitly holds that laches can be raised in an action challenging a BCMR decision. If laches can be raised in the court reviewing a decision of the BCMR, it follows that laches can be asserted before the BCMR.
In order for the defendant to prevail on the issue of laches, there must be evidence that the defendant has been prejudiced by the plaintiffs' delay. Mai, 22 Cl. Ct. at 670 ("the court must also consider, as part of the laches determination, whether the government has been prejudiced by the plaintiff's delay.") The government bears the burden of proving its affirmative defense of laches; therefore, it must prove not only delay, but also prejudice to the government. Cornetta v. United States, 851 F.2d 1372, 1378 (Fed.Cir. 1988)("Delay alone does not constitute laches. . . . We reject the notion that the government can rely on a presumption of prejudice, or shift the burden to the plaintiff to show lack of prejudice if the delay is long, to support the affirmative defense of laches."); accord Mai, 22 Cl. Ct. at 670.
The BCMR appears simply to have presumed that there was prejudice to the government: "The Coast Guard was prejudiced by the delay because the long time interval made it very difficult for it to determine the veracity of the statements of the rating chain more than five years ago." AR at 8. The government has failed to cite any concrete assertion by the Coast Guard in the record as to how it suffered any specific prejudice from the delay. Thus, there is no substantial evidence in the record to support the BCMR's conclusion regarding prejudice.
The plaintiffs seek a remand to the BCMR only as alternative relief. Their primary request is for the Court to grant substantive relief. They argue that they have offered substantial evidence of the errors in the OER's and that despite the opportunity afforded to the Coast Guard to rebut this evidence before the BCMR, the Coast Guard has failed to offer any evidence to contradict the plaintiffs' evidence. The plaintiffs assert that but for the erroneous OER's, they would not have been passed over for promotion.
Relief in this Court is more appropriate than a remand, the plaintiffs argue, since the plaintiffs have already exhausted their administrative remedies. In each of their cases, the BCMR exceeded the regulatory ten-month period in which the Board is supposed to render a decision. 33 C.F.R. § 52.68 (promulgated pursuant to Section 212 of the Coast Guard Authorization Act of 1989, Pub. L. 101-225, 103 Stat. 1914). Further delay would be caused by requiring the plaintiffs to go back to the BCMR.
The next promotion board convenes in August, 1992. The plaintiffs assert that the challenged OER's and passovers should be expunged before that board convenes. Another promotion board will not convene for another year, by which time plaintiff Allen, and possibly plaintiff Detweiler, would be discharged if relief has not yet been granted. Thus, the plaintiffs argue that they will suffer prejudice if they cannot obtain relief in time for the August, 1992 promotion board.
The Court cannot agree that the plaintiffs have demonstrated that they would be prejudiced by a remand to the BCMR. While it may be true that the plaintiffs might miss the opportunity to be promoted by the August, 1992 board because they are waiting for a final resolution of this matter from the BCMR, there is no evidence that the harm that this would cause them is irreparable. The BCMR has the authority to order retroactive promotion, back-pay, and back-seniority, as well as to expunge erroneous passovers. See Chappell v. Wallace, 462 U.S. at 303. Thus, if the BCMR were ultimately to determine that complete review on the merits is appropriate and were the plaintiffs to prevail on the merits, the BCMR could provide relief that would make the plaintiffs whole.
The Court does agree with the plaintiffs, however, that the BCMR has failed to process their claims within the regulatory time-frame and that the BCMR's failure to analyze the issues in a more complete fashion has necessitated this action before the Court and caused further delay. Thus, while the Court will remand this matter to the BCMR, the Court requests the BCMR to give the matter expedited consideration.
On remand, the BCMR is to determine whether it is in the interest of justice in this case to waive the statute of limitations pursuant to § 1552(b). The BCMR should consider the reasons for the delay and the plaintiffs' potential for success on the merits, based on a cursory review, as factors in the interest of justice analysis.
In addition, in plaintiff Allen's case, in assessing whether the doctrine of laches precludes granting relief, the BCMR should address the prejudice to the government caused by the delay in bringing Allen's claim. The BCMR cannot presume such prejudice; rather, the burden of proof is on the government to demonstrate that it has suffered undue prejudice as a result of the delay.
For the reasons set forth above and upon careful consideration of the entire record herein, it is by the Court this 28th day of July 1992
ORDERED that this matter be, and hereby is, remanded to the BCMR for further proceedings consistent with this Order.
Thomas A. Flannery
UNITED STATES DISTRICT JUDGE