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THOEN v. UNITED STATES

Appeal No. 85-672.

765 F.2d 1110 (1985)

Richard L. THOEN, Appellant, v. The UNITED STATES, Appellee.

United States Court of Appeals, Federal Circuit.

June 26, 1985.

Attorney(s) appearing for the Case

Dale C. Nathan, Nathan, Baska & Lerman, Eagan, Minn., argued for appellant.

Stephen R. Bergenholtz, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for appellee. With him on the brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director and Sandra P. Spooner, Asst. Director; Major Thomas G. Bowe, Office of the Judge Advocate Gen., Dept. of the Army, Washington, D.C., of counsel.

Before DAVIS, BALDWIN and KASHIWA, Circuit Judges.

DAVIS, Circuit Judge.

The main issue is whether the United States Claims Court erred when it (1) entered summary judgment dismissing a portion of Thoen's complaint without notice of its intention to do so at a point in the proceeding when only a partial motion to dismiss on jurisdictional grounds was pending, and (2) entered summary judgment sua sponte as to the remainder of Thoen's complaint. 5 Cl.Ct. 823 (1984) (Lydon, J.). We hold that the applicable...

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