Russell

The complaint is for declaratory relief.

It is predicated upon the alleged wrongful discharge of the plaintiif in September or October, 1951. The precise date upon which the plaintiif claims he was finally separated from service as a Civil Service employee of the United States Navy is not clear from the complaint. It appears that he was suspended on September 13, 1951, which suspension was thereafter made permanent by separation.

The defendants have filed a motion to dismiss on the ground that the Court lacks jurisdiction of the defendant, Charles Thomas, as Secretary of the Navy of the United States, and on the ground that the complaint fails to state a cause of action for the reason that it appears from the face of the complaint that plaintiif is guilty of laches.

While Rule 8(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides that laches shall be set forth as an affirmative defense, nevertheless where the elements of laches are apparent on the face of the complaint, it may *606 be asserted on a motion to dismiss for failure to state a claim upon which relief can be granted. Sullivan v. Portland & K. R. Co., 1876, 94 U.S. 806 , 24 L.Ed. 324 ; United States v.…