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Wilson v. United States

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT


Decided: December 14, 1990.

LIEUTENANT COLONEL ALBERTIS WILSON, PLAINTIFF-APPELLEE,
v.
THE UNITED STATES, DEFENDANT-APPELLANT

On petition for rehearing. Appealed from: U.S. Claims Court; Judge Merow. {Counsel}{Q}Counsel{/Q}{/Counsel}

John W. Toothman, Shulman, Rogers, Gandal, Pordy & Ecker, P.A., of Rockville, Maryland, argued for plaintiff-appellee. With him on the brief was Alan B. Sternstein. Also on the brief was John D. Grad, Grad & Logan, P.C., of Alexandria, Virginia, of counsel.

John S. Groat, Attorney, Commercial Litigation Branch, Department of Justice, of Washington, D.C., argued for defendant-appellant. With him on the brief were Stuart E. Schiffer, Acting Assistant Attorney General, David M. Cohen, Director and Thomas W. Petersen, Assistant Director. Also on the brief were Lieutenant Colonel Mark A. Steinbeck and Major Robert C. McFetridge, Department of the Army, of counsel.

Nies, Chief Judge, Rich, Markey, Circuit Judges, Bennett, Senior Circuit Judge, Newman, Archer, Mayer, Michel, S. Jay Plager, Lourie, and Clevenger, Circuit Judges. Circuit Judge Archer continues to concur in the result; Circuit Judge Mayer's dissent is unaffected.

Plager

Order

Lieutenant Colonel Albertis Wilson ("Wilson") petitions for rehearing of the Court's opinion and judgment in this appeal, decided October 19, 1990. The Court having considered the petition,

IT IS ORDERED THAT:

(1) The petition of Wilson is denied.

(2) The majority opinion of the Court in this appeal is clarified by the following modification:

The final paragraph, entitled "IV. Conclusion" and the statement of the Court's decision ("REVERSED ") are deleted, and replaced by:

"IV. Conclusion

We hold that the phrase 'on active duty' in 10 U.S.C. ยง 1163(d) does not include active duty for training. Assuming, as did the trial judge, that, for purposes of Wilson's summary judgment motion on the question of sanctuary, Wilson's status was active duty for training, it follows that he was not, on that basis, entitled to sanctuary.*fn7

The grant of summary judgment in Wilson's favor is vacated, and the case is remanded to the Claims Court for further proceedings consistent with this opinion.

VACATED AND REMANDED.


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