737 F2d 1038 Walters v. Secretary of Defense a

737 F.2d 1038

237 U.S.App.D.C. 333

SECRETARY OF DEFENSE, et al., Appellants.
Richard A. Gusimano.

No. 82-2089.

United States Court of Appeals,
District of Columbia Circuit.

March 15, 1984.

John D. Bates, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Washington, D.C. (at the time the brief was filed), Royce C. Lamberth, R. Craig Lawrence and John Oliver Birch, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellants.

Barton F. Stichman, Washington, D.C., with whom David F. Addlestone, Washington, D.C., was on the brief, for appellees.

Joseph M. Hassett, John C. Keeney, Jr., Sue A. Kaplan, and Katherine A. Schoff, Washington, D.C., were on the brief, for amicus curiae urging affirmance.

Before ROBINSON, Chief Judge, WRIGHT, TAMM, WILKEY, WALD, MIKVA, EDWARDS, GINSBURG, BORK, SCALIA and STARR, Circuit Judges, and MacKINNON, Senior Circuit Judge.



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The suggestion for rehearing en banc of Appellees Walters, et. al., filed February 13, 1984, has been circulated to the full Court and no member has requested the taking of a vote thereon. On consideration of the foregoing, it is


ORDERED by the Court en banc that the suggestion is denied.


WALD and MIKVA, Circuit Judges, concurring in the denial of the motion to rehear en banc:


We want to emphasize the limited reach of the holding in this case. As we read Walters, the panel opinion, 725 F.2d 107 (D.C.Cir.1983), merely holds that, in independent civil actions brought to correct a serviceman's record, the six-year statute of limitations found in 28 U.S.C. Sec. 2401(a) applies. Walters explicitly does not speak to the altogether distinct question of what time period governs when review is sought of administrative discharge decisions. See at 115 ("Nor do we address the reviewability of such an administrative decision in federal court.") (emphasis added). Congress has granted discharged service members 15 years from discharge to petition a review board for an upgrade, 10 U.S.C. Sec. 1553(a), and this court has expressly held that Congress did not intend to preclude judicial review of decisions reached by those review boards. Van Bourg v. Nitze, 388 F.2d 557, 564 n. 14 (D.C.Cir.1967). As a result, we do not believe Walters in any way limits jurisdiction to review a correction board's treatment of a petition for a discharge upgrade that is timely filed, under 10 U.S.C. Sec. 1553(a), with the relevant administrative body.