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

> Court of Appeals for the Fifth Circuit · January 10, 1980 · 609 F.2d 784

URL: https://www.frixlaw.com/law-library/cases/9466271

## Case

- **Full name:** Russell G. JOHNSON, Plaintiff-Appellee, v. Thomas C. REED, Secretary, United States Air Force, and United States of America, Defendants-Appellants
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** January 10, 1980
- **Citations:** 609 F.2d 784; 1980 U.S. App. LEXIS 21458
- **Precedential status:** Published
- **Opinion:** Dissent by Rubin
- **Judges:** Fay, Rubin, Hatchett
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9466271

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9466271. Public record. Not legal advice.