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SMITH v. SECRETARY OF ARMY

No. 03-1623.

384 F.3d 1288 (2004)

Robert G. SMITH, Plaintiff-Appellant, v. SECRETARY OF THE ARMY, and Army Board for Correction of Military Records, Defendants-Appellees.

United States Court of Appeals, Federal Circuit.

DECIDED: September 17, 2004.

Attorney(s) appearing for the Case

Victoria J. Franklin-Sisson, Emond, Vines, Gorham & Waldrep, P.C., of Birmingham, AL, argued for plaintiff-appellant. On the brief was Victor Kelley.

Robert E. Kirschman, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendants-appellees. With him on the brief were Peter D. Keisler, Assistant Attorney General and David M. Cohen, Director. Of counsel on the brief were Lieutenant Colonel Vanessa Crockford and Major Gary P. Corn, Attorneys, United States Army, Army Litigation Division, of Arlington, VA.

Before LOURIE, RADER, and BRYSON, Circuit Judges.

BRYSON, Circuit Judge.

Robert G. Smith, a former officer in the United States Army, filed this action in the United States District Court for the Western District of Wisconsin, challenging the Army's decision not to promote him to the rank of colonel. The district court ruled that it lacked jurisdiction over Dr. Smith's claim under the Administrative Procedure Act and that Dr. Smith could have brought his action in the United States Court of Federal Claims under the...

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