Stuart Sargisson v. The United States

854 F.2d 1327

Unpublished Disposition
NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Stuart SARGISSON, Plaintiff-Appellant,
v.
The UNITED STATES, Defendant-Appellee.

No. 87-1440.

United States Court of Appeals, Federal Circuit.

July 14, 1988.

Before ARCHER, Circuit Judge, BALDWIN, Senior Circuit Judge, and MAYER, Circuit Judge.

PER CURIAM.

DECISION

1

The judgment of the United States Claims Court, dismissing, because of laches, Sargisson's claim for reinstatement and back pay stemming from his involuntary release from active duty as a reserve officer in the United States Air Force, see 12 Cl.Ct. 539 (1987); No. 39-80C (opinion of Sept. 5, 1985), is vacated and remanded for reconsideration in light of Cornetta v. United States, No. 87-1121 (Fed.Cir. June 20, 1988). No costs.

OPINION

2

Sargisson brought suit in the Claims Court challenging his release from active duty on the grounds that (1) the Reserve Officer Screening Board that recommended his release did not contain the "appropriate number" of reserve officers required by 10 U.S.C. Sec. 266(a), and (2) his record, as presented to the board, contained a defective Officer Efficiency Report (OER). The Claims Court held that both claims were barred by laches, but it nevertheless went on to consider the merits of Sargisson's contention that the board's decision was based on a defective OER.

3

After reviewing the record, it is unclear whether the Claims Court fully appreciated that this was a case involving an involuntary release from active duty, see 10 U.S.C. Sec. 681(a), rather than a discharge for nonselection for promotion, see 10 U.S.C. Sec. 632. Further, the court did not explain its summary conclusion that Sargisson had "failed to prove that his nonselection for promotion [sic: release from active duty] was a result of the adverse OER...." 12 Cl.Ct. at 544. Accordingly, if on remand the court determines that laches does not apply, it should reconsider the merits of Sargisson's claims.