Stewart v. United States

7 Citing cases

  1. Bockoven v. Marsh

    727 F.2d 1558 (Fed. Cir. 1984)   Cited 6 times
    In Bockoven v. Marsh, 727 F.2d 1558 (Fed. Cir. 1984), this court determined that it had exclusive jurisdiction of an appeal from the United States District Court for the District of Columbia where the complaint named the Secretary of the Army as defendant and requested reinstatement, reconsideration of promotion, correction of records, and back-pay not to exceed $10,000.

    Compare ยง 266(a) with Reserve Officer Personnel Act of 1954, ch. 1257, ยง 203(b), 68 Stat. 1147, 1150 (codified at 10 U.S.C. ยง 3362(b) (1982)) (providing that at least one-half the members of any board considering reservists for permanent promotion must be reservists). The appellants also rely on Stewart v. United States, 611 F.2d 1356, 222 Ct.Cl. 42 (1979), where the Court of Claims held that one Reserve officer on an Air Force board of 25 officers was not "an appropriate number" under section 266. The court quoted the "roughly equal" language in the Senate committee report and stated that "one out of 25 is not even close to being proportionate to the number of Reserve officers being considered for promotion (30 percent)." 611 F.2d at 1359.

  2. Sargisson v. U.S.

    913 F.2d 918 (Fed. Cir. 1990)   Cited 55 times
    Holding that plaintiff's challenge to the Air Force's decision to release him was nonjusticiable because there were no standards that the court could apply to review the decision

    By way of implementation, the Secretary issued a Letter of Instructions convening a ROSB to review the performance records of all active duty reserve officers, align them in a relative order of merit using the best qualified method of selection, and recommend the least qualified for release from active duty. In convening this ROSB, the Secretary was also required to comply with section 266(a). See, e.g., Stewart v. United States, 611 F.2d 1356, 222 Ct.Cl. 42 (1979). Thus, the Claims Court had jurisdiction to determine whether the Air Force complied with AFR 36-12 ยถ 71, the Letter of Instructions and 10 U.S.C. ยง 266(a) (1970) (amended 1981).

  3. Hary v. United States

    618 F.2d 704 (Fed. Cir. 1980)   Cited 30 times
    In Hary v. United States, 618 F.2d 704 (Ct.Cl. 1980), the officer was passed over for promotion in the Air Force and separated from active duty. He sought relief from the Air Board, alleging that certain OERs in his record were erroneous, requiring their removal from his record and resubmission of his case to other selection boards.

    See also Borgford v. United States, supra. In Stewart v. United States, 222 Ct.Cl. ___, 611 F.2d 1356 (1979), we held that plaintiff's allegation that OERs were inaccurate because his raters intentionally downgraded his ratings in order that he would show job progression was an insufficient ground for our voiding the OERs. Id., at ___, 611 F.2d at 1358.

  4. Willcox v. United States

    769 F.2d 743 (Fed. Cir. 1985)   Cited 2 times

    In each case appellant's claim is based on allegations that the board or boards that considered him for promotion were not properly constituted in that they did not contain an "appropriate" number of reserve members as required by 10 U.S.C. ยง 266. See Stewart v. United States, 611 F.2d 1356, 222 Ct.Cl. 42 (1979). Appellants allege that the Air Force deliberately concealed this fact from them and this wrongful action tolled the statute of limitations so that their claims are not time barred.

  5. Maier v. Orr

    754 F.2d 973 (Fed. Cir. 1985)   Cited 45 times
    In Maier, the district court issued a writ of mandamus to the Secretary of the Air Force and granted full relief to petitioner.

    Maier having chosen not to challenge her discharge at the time it was issued, by formal hearing or otherwise, the district court could properly have held that she had waived any right, if one existed, to challenge that military determination in a judicial forum and could have properly dismissed Maier's petition. See Stewart v. United States, 611 F.2d 1356, 1361, 222 Ct.Cl. 42 (1979); Doyle v. United States, 599 F.2d 984, 1000, 220 Ct.Cl. 285 (1979), cert. denied, 446 U.S. 982, 100 S.Ct. 2961, 64 L.Ed.2d 837 (1980). CONCLUSION

  6. Bailey v. United States

    721 F.2d 357 (Fed. Cir. 1983)   Cited 17 times
    Remanding for consideration of whether failure to settle promptly is a litigating position not substantially justified where government liability seemed clear

    Bailey alleged that the selection boards were not lawfully constituted in that each did not contain "an appropriate number" of Reserve officers as required by 10 U.S.C. ยง 266 (1976) and AFR 36-89 (1971). Bailey's petition was filed 5 months after the Court of Claims decision in Stewart v. United States, 611 F.2d 1356, 222 Ct.Cl. 42 (1979), where the court held that it was legal error for the 1975 selection board to have only one Reserve officer on a 25-member selection board. Bailey sought back pay, reinstatement to active duty, and correction of his military records.

  7. Gant v. United States

    No. 03-1911C (Fed. Cl. Dec. 20, 2004)

    See United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952) ("[O]rderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has opportunity for correction in order to raise issues reviewable by the courts.");Stewart v. United States, 222 Ct. Cl. 42, 52, 611 F.2d 1356, 1361 (1979) ("[A]gencies and departments should first be given a chance to correct their own errors and to permit the Government to mitigate or avoid claims that might otherwise be created and have to be litigated in the judicial system."). Allowing plaintiff to maintain a claim after waiving it earlier would render the waiver meaningless.