John S. Austin, Appellant, v. United States of America et al., Appellees, 412 F.2d 1187 (9th Cir. 1969)

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U.S. Court of Appeals for the Ninth Circuit - 412 F.2d 1187 (9th Cir. 1969) July 31, 1969

Appeal from the United States District Court for the Southern District of California; James M. Carter, Judge.

William F. Gavin (argued), San Diego, Cal., for appellant.

Raymond F. Zvetina (argued), Asst. U. S. Atty., Edwin L. Miller, U. S. Atty., San Diego, Cal., for appellee.

Before CHAMBERS and KOELSCH, Circuit Judges, and WHELAN* , District Judge.

PER CURIAM:


The Chief of Naval Personnel, following the recommendation of an Administrative Discharge Board made after a hearing, directed the Commanding Officer of the U. S. Naval Air Station at San Diego, California, to give John Samuel Austin an undesirable discharge by reason of misconduct. Before the order was executed Austin commenced suit in the United States District Court for a declaratory judgment that he be retained in the Navy and moved for a preliminary injunction prohibiting his discharge.

On defendant's motion, the District Court denied Austin injunctive relief and dismissed his complaint. Decision was rested upon the respective grounds that Austin had failed to exhaust administrative remedies available to him and to show the likelihood that he would prevail on the merits of an appeal from the administrative process to the courts.

We are satisfied that on this record neither ruling of the district court constituted an abuse of discretion. Craycroft v. Ferrall, 408 F.2d 587 (9th Cir. 1969); Nelson v. Miller, 373 F.2d 474 (3rd Cir. 1967).

The judgment is affirmed.

 *

Hon. Francis C. Whelan, United States District Judge, Los Angeles, California, sitting by designation