Lieutenant Commander, United States Coast Guard, sought to avoid retirement for having been passed over; the court sought to avoid difficult constitutional issues by staying the case pending the completion of ongoing proceedings before the Board for Correction of Military Records to resolve complex and technical factual issues.
How later courts described this case
- Lieutenant Commander, United States Coast Guard, sought to avoid retirement for having been passed over; the court sought to avoid difficult constitutional issues by staying the case pending the completion of ongoing proceedings before the Board for Correction of Military Records to resolve complex and technical factual issues.
- exhaustion of administrative remedies might well avoid necessity of constitutional adjudication
- district court not required to dismiss suit while correction board proceeding was pending
Written by the judges who cited it.
The opinion
DANAHER, Circuit Judge
(dissenting).
This appellant by 1959 had twice failed of promotion to the rank of commander. Two successive Selection Boards had passed, upon, his record. On June 12, 1961, he was notified that for the' third time he had failed of promotion. Thus, no less than fifteen different officers acting under oath in the performance of their duty, had considered the possibility of the appellant’s entitlement to promotion. All of them in performance of that duty had ruled against him.
The appellant brought suit in the District Court seeking to enjoin the Secretary of the Treasury from retiring the appellant from active duty. Relief was denied. Sohm v. Dillon, 231 F.Supp. 973 (D.D.C.1964). He asked the District Court to order his retirement declared a nullity and that an order be issued directing his restoration to line of promotion. He asked for summary judgment, obviously thus representing that there was no genuine issue of material fact. The Government sought summary .judgment which was granted. Sohm v. Dillon, 235 F.Supp. 450 (D.D.C. 1964). The appellant had failed to set forth specific facts in refutation of the Government’s statement which had been filed under District Court Rule 9(h).
From 1961 down to October 1964, the Board for Correction of Military Records had repeatedly advised the appellant that *920 the Board was ready to hear him. He did not appear. 1
I suggest that the selection and promotion of officers can not be and should not become judicial functions. When the District Court granted summary judgment for the Government, it was clearly following our established rule. 2
My review of this record satisfies me that the District Court correctly interpreted our decisional law, and moreover, the action taken was strictly in accord with the provisions of Fed.R.Civ.P. 56 (e). In my view the judgment of the District Court should, without more, be affirmed.
. Incidentally, in an affidavit attached to his complaint he represented that he already had exhausted his administrative remedies.
. Payson v. Franke, 108 U.S.App.D.C. 368, 371 , 282 F.2d 851, 854 (1960), cert. denied sub nom. Robinson v. Franke, 365 U.S. 815 , 81 S.Ct. 696 , 5 L.Ed.2d 694 (1961).
Said in another connection, but no less apt, the Supreme Court noted: “Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.” Orloff v. Willoughby, 345 U.S. 83, 94 , 73 S.Ct. 534, 540 , 97 L. Ed. 842 (1953).