                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 March 21, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-30437



PHILIP LAWRENCE,

                                                Plaintiff-Appellant,

versus


CHARLES DAVIS,

                                                 Defendant-Appellee.

                       --------------------
          Appeal from the United States District Court
              for the Eastern District of Louisiana
                         (2:03-CV-3118-E)
                       --------------------

Before JONES, WIENER, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Philip Lawrence, a Major in the United

States Marine Corps Reserve (“Reserve”), appeals the district

court’s dismissal of his defamation action against Defendant-

Appellee Charles Davis, a Lieutenant Colonel in the Reserve.

Lawrence’s claim for money damages implicates testimony that Davis

provided to a military Board of Inquiry (“BOI”).     The action was

filed in state court in Louisiana, then removed to federal court

under 28 U.S.C. §§ 1442 and 1442a.    Recent submissions show that,


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
although the BOI’s recommendation has been acted on since this

appeal was filed and briefed, at least two potential additional

steps remain before the military administrative remedies in this

matter are completely exhausted and the decision of the ultimate

military authority is final, executory, and subject to no further

appeals.

                                        I.

     In light of the action that was pending in the military forum

at the time, the district court dismissed Lawrence’s action without

prejudice under the abstention doctrine of Younger v. Harris, 401

U.S. 37, 43-44 (1971).          See Schlesinger v. Councilman, 420 U.S.

738, 754, 761 (1975) (Younger precluded injunction against military

proceeding). Younger does not apply to actions such as Lawrence’s,

however, in which only monetary damages are sought.              Alexander v.

Ieyoub, 62 F.3d 709, 713 (5th Cir. 1995).                 Moreover, even if

Younger had been applicable, a stay rather than a dismissal would

have been proper because the military forum cannot award Lawrence

the money damages that he seeks in the action now pending in

federal court.     See Deakins v. Monaghan, 484 U.S. 193, 202 (1988);

Ballard    v.   Wilson,   856    F.2d   1568,   1571-72   (5th   Cir.   1988).

Dismissal was thus improper.

                                        II.

     As Davis argues on appeal, the district court could have

abstained pursuant to Colorado River Water Conservation Dist. v.

United States, 424 U.S. 800, 817 (1976).           In Colorado River, the

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Supreme Court recognized that a federal court’s decision to decline

to exercise its jurisdiction can “rest on considerations of ‘[w]ise

judicial administration, giving regard to conservation of judicial

resources   and    comprehensive          disposition       of    litigation.’”      Id.

(citation omitted); see also Moses H. Cone Mem’l Hosp. v. Mercury

Const. Corp., 460 U.S. 1, 14, 15 (1983); Allen v. Louisiana State

Bd. of Dentistry, 835 F.2d 100, 105 (5th Cir. 1988).                     We therefore

vacate the district court’s judgment of dismissal and remand the

case to that court with instructions to stay the proceedings until

the   ultimate     decision       of     the    Secretary    of    the     Navy    (“the

Secretary”),     based     on    recommendations      of     the    BOI,    is    final,

executory, and no longer appealable.

      Factors supporting our decision to order a stay include:                       (1)

The BOI’s deliberations began and proceeded before the instant

action   was      filed,        albeit     additional       administrative         steps

potentially remain to be taken there, see Colorado River, 424 U.S.

at 817; (2) the Secretary’s final, executory decision might obviate

federal court action, or the results in federal court might be

inconsistent with those in the military proceedings, see id.;

Schlesinger, 420 U.S. at 756-57; (3) the timing of the filing of

the defamation action —— a mere five days after Davis testified ——

and Lawrence’s evident hostility toward Davis support an inference

that Lawrence filed the defamation action against Davis with a

vexatious purpose, see Allen, 835 F.2d at 105; (4) traditional

exhaustion principles favor exhaustion of military remedies prior

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to proceeding with court action, see Schlesinger, 420 U.S. at 756-

57; Von Hoffburg v. Alexander, 615 F.2d 633, 641 (5th Cir. 1980);

(5) under Louisiana law, a defamation claim based on occurrences

during litigation, such as witness testimony, “does not arise until

the termination of the particular action,” Young v. City of New

Orleans, 751 F.2d 794, 801 (5th Cir. 1985); and (6) a stay is

permissible under Colorado River. See Allen, 835 F.2d at 103, 105.

                                III.

     For the foregoing reasons, the district court’s judgment of

dismissal is   VACATED and this case is REMANDED with directions to

STAY the proceedings in that court pending final resolution of all

military proceedings.




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