Unpublished Disposition Notice: Federal Circuit Local Rule 47.8(B) States that Opinions and Orders Which Are Designated as Not Citable as Precedent Shall Not Be Employed or Cited as Precedent. this Does Not Preclude Assertion of Issues of Claim Preclusion, Issue Preclusion, Judicial Estoppel, Law of the Case or the Like Based on a Decision of the Court Rendered in a Nonprecedential Opinion or Order. Michael C. Yerxa, Plaintiff-Appellee, v. the United States, Defendant-Appellant., 824 F.2d 978 (Fed. Cir. 1987)

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

PER CURIAM.

DECISION

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.

OPINION

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.

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