488 F2d 521 Malony v. Schlesinger H

488 F.2d 521

Major Ronald L. MALONY, Plaintiff-Appellant,
v.
Honorable James SCHLESINGER Honorable Howard H. Callaway,
and General Creighton Abrams, Defendants-Appellees.

No. 73-3286 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Jan. 14, 1974.

Vincent P. McCauley, Columbus, Ga., for plaintiff-appellant.

William J. Schloth, U. S. Atty., Charles T. Erion, Asst. U. S. Atty., Royce C. Lamberth, Captain, JAGC, U. S. Army, C/O U. S. Atty., Macon, Ga., for defendants-appellees.

Before BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

PER CURIAM:

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1

After being advised that he was to be released from active duty as a commissioned officer in the U. S. Army, Appellant Malony sought a Court declaration regarding his right to retain his status as a commissioned officer or in the alternative to be accepted for reenlistment. At a hearing held by the District Court on May 7, 1973 the appellee, through a member of the Adjutant General's Office, informed the Court that the Department of the Army offered to enlist Malony under the provisions of 10 U.S.C.A. Sec. 3258. Since appellant's alternative relief had been granted, the Court dismissed the suit as moot. We affirm.

2

The Department of the Army's action in granting the appellant the relief which he requested in his complaint, removed the case and controversy thereby rendering the law suit moot. The District Court followed the correct procedure in dismissing a case by reason of mootness. Troy State University v. Dickey, 5 Cir., 1968, 402 F.2d 515, 516-517; Lebus, Regional Director v. Seafarers' Int'l Union, 5 Cir., 1968, 398 F.2d 281, 283.

3

Affirmed.

*

Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I