Bethke v. Stetson

• Decision Date: 29 October 1979
• Docket Number: Civ. A. No. C78-2171A.
• Citation: 521 F. Supp. 488
• Parties: Floyd E. BETHKE, Plaintiff, v. John C. STETSON, Secretary of the Air Force, Defendant.
• Court: U.S. District Court — Northern District of Georgia

521 F. Supp. 488

Floyd E. BETHKE, Plaintiff, v. John C. STETSON, Secretary of the Air Force, Defendant.

Civ. A. No. C78-2171A.

United States District Court, N. D. Georgia, Atlanta Division.

October 29, 1979.

Beverly B. Bates and Benjamin Landey, Bates, Baum & Landey, Atlanta, Ga., for plaintiff Bethke.

Robert J. Castellani, Asst. U. S. Atty., Atlanta, Ga., and Robert E. Sutemeier, Captain, U. S. Air Force, Washington, D. C., for defendant Stetson.

ORDER

SHOOB, District Judge.

This matter is before the Court on defendant's motion to dismiss or in the alternative for summary judgment. The original complaint was filed in this Court on December 19, 1978.

A determination as to whether the claim is barred by the statute of limitations is dispositive of the issues in the case. Defendant contends that plaintiff's claim is barred by the six-year statute of limitations which applies to suits against the United States. See 28 U.S.C. § 2401(a). Plaintiff's position on this issue is that he was required to exhaust administrative remedies before resorting to the action in this Court, and that the six-year period had not run when this action was filed.

On May 29, 1967, plaintiff, a former Air Force enlisted man, filed a second application with the Air Force Board for Correction of Military Records (AFBCMR) in which he requested that he be reinstated in the Air Force as a master sergeant with back pay, or that he be placed on the appropriate retirement roll. (An earlier application by plaintiff to the AFBCMR on January 22, 1975, requesting a promotion which had been withheld, was denied.) The AFBCMR denied the May 29, 1967 application on December 14, 1967. On January 6, 1969, plaintiff filed a third application with the AFBCMR requesting reconsideration of its December 14, 1967 decision. This request was denied by the AFBCMR on February 4, 1969. The denial included a statement to the effect that plaintiff was privileged to submit new and material evidence for the consideration of the AFBCMR. On September 2, 1975, plaintiff filed a fourth application with the AFBCMR for reconsideration and included additional evidence which plaintiff contended was new and material. This application was denied on October 16, 1975. Plaintiff's final application to the AFBCMR for reconsideration was filed on July 19, 1976, and that application was denied on December 7, 1976. The relief sought by plaintiff in his second, third, fourth and fifth applications to the AFBCMR was essentially the same.

Plaintiff contends that if the six-year statute of limitations is applicable, it requires that administrative remedies be exhausted before resorting to the courts; that there was no final administrative exhaustion until the AFBCMR denied his fourth application on October 16, 1975; and that the six-year statute ran from that date. Defendant contends that the six-year statute of limitations runs from the date of discharge, and that the action is now barred (defendant's brief at 6-7).

Defendant's contention as to this issue is clearly wrong under the authority in this Circuit. The Court agrees with plaintiff's contention that he was required to exhaust his administrative remedies before resorting to this Court, Hodges v. Callaway, 499 F.2d 417 (5th Cir. 1974), and that the six-year limitation period commenced with the final administrative action on plaintiff's claim. 28 U.S.C. § 2401(a) provides:

Every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues ... (Emphasis supplied.)

It is clear, however, that plaintiff has exhausted his administrative remedies. (See Sherman, Judicial Review of Military Determinations and the Exhaustion of Remedies Requirement, 55 Va.L.Rev. 483 at 502, n. 103 (1969) for a succinct description of the two review boards established by 10 U.S.C. §§ 1552 and 1553.) Fifth Circuit cases indicate that it has adopted a "functional" approach to the exhaustion of remedies requirement. That is, the Court will require a plaintiff to exhaust only that avenue of administrative appeal within the military which will lead to the relief sought. McCurdy v. Zuckert, 359 F.2d 491 (5th Cir. 1966); Tuggle v. Brown, 362 F.2d 801 (5th Cir. 1966); Stanford v. United States, 413 F.2d 1048 (5th Cir. 1969). Plaintiff herein seeks reinstatement, back pay, and such other remedy as only the Air Force Board for Correction of Military Records can grant. Plaintiff has appealed to the AFBCMR no less than five times, seeking substantially the same relief the last four times. There is no question that plaintiff has exhausted his administrative remedies.

Plaintiff urges the Court to hold that his fourth appeal, based on what he claims is new and material evidence, and the AFBCMR's denial of that appeal, constituted a final administrative action which initiated a new six-year period. This Court declines to so hold. Plaintiff's cause of action in this case arose either on December 14, 1967, when his second application was denied by the Board, or on February 4, 1969, when his motion for reconsideration of that denial was itself denied. In either case, the claim is now barred by the statute of limitations. Certainly, plaintiff had the right, on receipt of the February 4, 1969 AFBCMR order, to bring his action in this Court. Crown Coat Fronts Co. v. United States, 386 U.S. 503, 87 S.Ct. 1177, 18 L.Ed.2d 256 (1967). See also Walker v. United States, 438 F.Supp. 251 (N.D.Ga. 1977); Mobley v. Murray County, 178 Ga. 388, 173 S.E. 680 (1934). Pl...