James C. Tuggle, Appellant, v. Harold Brown, Secretary of the Air Force, Appellee, 362 F.2d 801 (5th Cir. 1966)

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U.S. Court of Appeals for the Fifth Circuit - 362 F.2d 801 (5th Cir. 1966)

June 28, 1966
Rehearing Denied August 11, 1966


William A. Harmening, Orlando, Fla., for appellant.

Edward F. Boardman, U. S. Atty., Tampa, Fla., for appellee.

Before BROWN and COLEMAN, Circuit Judges, and DAWKINS, District Judge.

PER CURIAM:


This appeal is from the denial of Airman Tuggle's motion that the Secretary be temporarily enjoined from granting him an undesirable discharge from the Air Force and from the dismissal of his complaint seeking both a temporary and permanent injunction. Because it appears that Appellant has yet to exhaust available post-discharge administrative remedies, following our recent decision in McCurdy v. Zuckert, 5 Cir., 1966, 359 F.2d 491 [Apr. 14, 1966], we hold that resort to the District Court was premature. See Beard v. Stahr, 1962, 370 U.S. 41, 82 S. Ct. 1105, 8 L. Ed. 2d 321; Michaelson v. Herren, 2 Cir., 1957, 242 F.2d 693. But see Covington v. Schwartz, 9 Cir., 1965, 341 F.2d 537; Ogden v. Zuckert, 1961, 111 U.S.App.D.C. 398, 298 F.2d 312; Reed v. Franke, 4 Cir., 1961, 297 F.2d 17. The District Court properly dismissed the complaint.

Affirmed.