Opinion

Russell G. Johnson v. Thomas C. Reed, Secretary, United States Air Force, and United States of America

  • 609 F.2d 784
  • 1980 U.S. App. LEXIS 21458
Court
Court of Appeals for the Fifth Circuit
Filed
Jan 10, 1980
Status
Published
Author
Rubin
On the bench
Fay, Rubin, Hatchett
Cited by
6 cases
Authority
More cited than 25.2%

the Appeals Court upheld the District Court’s decision that consideration of plaintiff for promotion based on incorrect and incomplete records was arbitrary and capricious; the Fifth' Circuit also upheld the relief ordered of reinstatement, correction of the promotion records, $10,000 in damages, and requiring that the selection board meet within a specified time to reconsider the plaintiff for promotion

How later courts described this case

  • the Appeals Court upheld the District Court’s decision that consideration of plaintiff for promotion based on incorrect and incomplete records was arbitrary and capricious; the Fifth' Circuit also upheld the relief ordered of reinstatement, correction of the promotion records, $10,000 in damages, and requiring that the selection board meet within a specified time to reconsider the plaintiff for promotion
  • Federal court will not interfere with discretionary rating of officer’s performance

Written by the judges who cited it.

The opinion

ALVIN B. RUBIN, Circuit Judge,

dissenting:

Respectfully, I must dissent from a decision that I consider to have been carefully and conscientiously made. While Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971), after remand 501 F.2d 175 (5th Cir. 1974), determines when we may review air force personnel decisions, it does not explicitly set forth the standard to be applied once we undertake that review. I believe that the standard is whether the Air Force Board for Correction of Military Records acted arbitrarily or capriciously, see Knehans v. Alexander, 184 U.S.App.D.C. 420 , 566 F.2d 312 (D.C.Cir.1977), and my brethren appear to agree with this test. Our paths part, however, in its application: I find it easy to say that reasonable persons might conclude that the Air Force Board was wrong, but I cannot agree that they were so aberrant in decision or had so far departed from reason in their result as thus to stigmatize what they did. The Board may have erred but there was method in its approach and neither madness nor caprice in its decision.

The majority opinion, therefore, adopts what I agree is a correct standard, and even if it has been erroneously applied here, the result is no great tear in the fabric of the law. My brethren reinstate an officer who appears to have been a good one. But in essence application of what purports to be an arbitrary-or-caprieious standard in this manner puts the district courts (and us, on review) in the position of evaluating the basis for promoting or passing over officers. We do not belong there; we lack the necessary expertise and we surely lack constitutional or statutory warrant.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.