While this rule originated with the notion of royal privilege, twentieth century courts attribute it to the policy of preserving public rights and property against the negligence of public officers. Guaranty Trust Co. v. United States, 304 U.S. 126, 132, 58 S.Ct. 785, 788, 82 L.Ed. 1224 (1938); S.E.R., Jobs For Progress, Inc. v. United States, 759 F.2d 1, 7 (1985). The Ninth Circuit recently applied the Summerlin rule to bar the defense of laches in a student loan collection case.

"The identical policy has been uniformly stated as the sole reason for the traditional rule which immunized the Federal Government from statutes of limitations." S.E.R. Jobs for Progress Inc. v. United States, 759 F.2d 1, 7 (Fed. Cir. 1985). In the context of student loan collection actions brought by the United States, some courts have applied the traditional sovereign immunity doctrine and held that the laches defense is precluded.

Finally, the district court held that the Government's fraudulent conveyance defense was barred by laches. In its summary disposition of the issue, the district court relied on S.E.R., Jobs for Progress, Inc. v. United States, 759 F.2d 1 (Fed. Cir. 1985) and 11 U.S.C. § 546 (2002). This reliance was misplaced.

Congress enacted section 2415 "to promote fairness . . . notwithstanding whatever prejudice might accrue thereby to the Government as a result of the negligence of its officers." S. E.R., Jobs for Progress, Inc. v. United States, 759 F.2d 1, 8 (Fed. Cir. 1985) (citations omitted). The government's interpretation would not encourage Customs to bring actions for collection of unpaid claims promptly, and it would allow Customs to collect stale claims far beyond the ability of any private marketplace actor, which is how Customs portrays itself.

[If section 2415 passes, t]he Government will be barred from asserting old and stale claims in the courts and the necessity for the early assertion of claims will require increased efficiency in Government claims proceedings.S.E.R., Jobs for Progress, Inc. v. United States, 759 F.2d 1, 7 (Fed. Cir. 1985) (emphasis added) (citations omitted). Based upon its consideration of the enactment history, the Federal Circuit went on to conclude:

[T]he clear purpose of Congress in passing [section 2415] was to promote fairness to parties defending against stale Government contract and tort claims notwithstanding whatever prejudice might accrue thereby to the Government as a result of the negligence of its officers. S.E.R., Jobs for Progress, Inc. v. United States, 759 F.2d 1, 8 (Fed. Cir. 1985) (footnote omitted). An interpretation of § 2415 permitting federal agencies to avoid the limitation period by utilizing administrative orders to collect monies owed under contract obviously would thwart this purpose.

Therefore, we hold that 28 U.S.C. § 2415 is inapplicable on its face. S.E.R., Jobs for Progress, Inc. v. United States, 759 F.2d 1, 5 (Fed. Cir. 1985). Since section 2415 does not apply to Government claims under the CDA, we reject Motorola's argument that FASA was intended to clarify existing law, e.g. section 2415. Because the contract falls under the terms of the CDA, the six-year limit in section 2415(a) does not bar the Government's claim.

In "extraordinary circumstances," laches may be asserted before limitations has run. Of course, this sidesteps the issue of whether laches can bar a legal claim filed within the statute of limitations and the only relevant Fifth Circuit precedent we are pointed to involved claims that the Court characterized as "essentially equitable" in nature. See, e.g., Franks, 495 F.2d at 406. The appellants do gain some support from S.E.R., Jobs For Progress, Inc. v. United States, 759 F.2d 1, 8 (Fed. Cir. 1985), where the Court stated that laches is not inapplicable in contract cases per se. Instead, the Federal Circuit stated that laches cannot be asserted against legal claims where a statute of limitations is available to preclude recovery-on stale claims "unless the offended party has been unmistakably prejudiced by the delay." Id. at 9.

The Board's action to recover the overpayment is not an action for money damages within the meaning of § 2415. See S.E.R., Jobs for Progress, Inc. v. United States, 759 F.2d 1, 5 (Fed. Cir. 1985) (agency action disallowing costs to government contractor is not an action for money damages). Further, Congress has otherwise provided that the Board may recover erroneous payments "at any time."

Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir. 1984). Under federal law, a purported agreement with the United States is not binding unless the other party can show that the official with whom the agreement was made had authority to bind the United States. S.E.R., Jobs for Progress, Inc. v. United States, 759 F.2d 1, 4 (Fed.Cir. 1985). The appellee filed an affidavit that the army surgeon had no such contractual authority.