We’ve been following the federal lawsuit brought by Gary Stein, the former Marine separated with an OTH after posting comments about the President on a Facebook page.  On Friday, his counsel filed this opposition to DOJ’s motion to dismiss.  On 11 Feb at 1030 a.m. PST, the United States District Court for the Southern District of California will hold a hearing on whether to allow the case to go forward.

4 Responses to “Latest developments in Stein v. Mabus”

  1. Charlie Gittins says:

    Another example of counsel refusing to recognize the exhaustion of administrative remedies doctrine.  I hope he isn’t paying these guys.

  2. Bill C says:

    Charlie:  In Rodriquez (I think that is the name of the case,) the government argued, and the court agreed, that one was not required to file with the BCMR before going into the Court of Claims.  Therefore, the six year period of limitation was not tolled (my memory may be fading but that is essentially the ruling as I recall.)  So can’t one make the same argument here?

  3. Charlie Gittins says:

    Bill:  Different court.  They are in U.S. District Court and the pretty much uniform rule in USDC is that exhaustion is required.  I have used the “exhaustion would be futile” argument and lost, uniformly.   In the CFC, if you don’t exhaust, the CFC is likely to remand the case to the agency for review of the claim prior to deciding the case.  At least that has been my experience.  

  4. Bill C says:

    Ah.  I don’t do much district court work, as you can tell.  So the government gets to argue you must exhaust at one court and you don’t have to exhaust at another court.  Well, that seems fair.  Thanks.