Monte M. Olenick, Appellant, v. Wilbur M. Brucker, Secretary of the Department of the Army, Appellee, 273 F.2d 819 (D.C. Cir. 1959)Annotate this Case
December 3, 1959
Mr. Victor Rabinowitz, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Mr. Leonard B. Boudin, New York City, was on the brief, for appellant.
Mr. George B. Searls, Atty., Dept. of Justice, with whom Miss Doris H. Spangenburg and Mr. Leo J. Michaloski, Attys., Dept. of Justice, were on the brief, for appellee. Messrs. Raymond A. Westcott and Kevin T. Maroney, Attys., Dept. of Justice, also entered appearances for appellee.
Before BAZELON, WASHINGTON and BASTIAN, Circuit Judges, in Chambers.
The above case came on for hearing, and was argued by counsel on the briefs and joint appendix.
At argument, it appeared that the record before this court does not include the text of any "approved findings of a board of officers," pursuant to § 1163(c) (1) of Title 10 of the United States Code, and that counsel do not know whether any such findings were in fact made. In particular, it is not clear whether, and if so how, the provisions of paragraph 3(b) of Section I, and of paragraph 13 (d) of Section II, of Army Regulation 604-10 were applied in appellant's case. Under these circumstances, this court cannot properly exercise its function of judicial review. In a case of this kind, the fact that appellant makes no point regarding the matter is not controlling, cf. Peters v. Hobby, 1955, 349 U.S. 331, 75 S. Ct. 790, 99 L. Ed. 1129. We accordingly set aside the order of the District Court entered May 22, 1959, granting defendant-appellee's motion for summary judgment, and order that the case be reopened for further proceedings not inconsistent with law. Such proceedings shall include opportunity to plaintiff-appellant to request copies of the findings, if any, and an opportunity to the appellee to supply them. Cf. Coleman v. Brucker, 1958, 103 U.S.App.D.C. 283, 257 F.2d 661; Coffey v. Jordan, 1959, ___ U.S. App.D.C. ___, 275 F.2d 1. If it appears that no approved findings were made, or that new findings are being offered nunc pro tunc, the District Court should consider the bearing of the cases herein cited, together with Vitarelli v. Seaton, 1959, 359 U.S. 535, 79 S. Ct. 968, 3 L. Ed. 2d 1012. Any resulting order or judgment of the District Court may be appealed in the usual course by any party aggrieved, subject to applicable law.
BASTIAN, Circuit Judge, concurs in the remand, but not in the form of the order.