Petition for Writ of Certiorari — Smith v. United States Air Force

EILED

JUN 7 1990

90-3 62

-

RECORD NO. | . JOSEPH F. SPANIOL, up,

gE. LERK

IN THE

SUPREME COURT OF THE

UNITED STATES

JUNE TERM1990

AIS J. SMITH

PETITIONER

U.S. AIR FORCE

Respondent

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETTION FOR WIT OF CERTIORARI

AVIS J. SMITH, PETITIONER

380 COZINE AVE.#4A

BROOKLYN, N.Y.11207

(718)257-4534

PETITION FOR WRITE OF CERTIORARI

TO THE CHIEF JUSTICE AND ASSOCIATE

JUSTICES OF THE SUPREME COURT OF THE

UNITED STATES:

The Petitioner, Avis J. Smith

petition for writ of certiorari

to review a judgement of the United

States Court of Appeals for the

Second Circuit as follows:

QUESTIONS PRESENTED

The questions presented by this

petition are:

(1) Does the use of Air Force

mental health clinic based on

Race, religion, harassment, mental

torture for the purpose discriminating

while a person was an active duty

member and after being relieved from

active duty constitute denial do

process of law for which there is

relief under the Civil Rights Act

1964- prohibiting discrimination based

on race and religion, etc.

(2) Does denial of due process for

which there is relief under the

Administrative Procedure Act, 6-11,

1972; S U.S.C.A. S51 et. seq., 31905,

3344, 5371, 7521, comply with after

petitioner has proven that he has

exhausted all administrative

remedies.

(3) Does the denial of the right

for the petitioner to have his case

heard after proving with witness

gross mis-treatment comply U.S.C.

Sec. 1332, 42 U.S.C. Sec. 1981, 42

U.S.C. Sec. 1983 and 5 U.S.C.

Sec. 7902, providing for equal

rights for all persons in every

state and territory within the

jurisdiction of the United States.

(4) Does not allow non-homosexuals

as opposed to allowing homosexuais

to have their cases heard in the

courts of the United States

aa

7 oe ae ee

II. NAME OF PARTIES

The names of all parties are listed

in the caption. The respective

counsel is stated in the proof of

filling and service.

III. TABLE OF CONTENTS AND TABLE

OF AUTHORITIES

TABLE OF CONTENTS PAGE

I. Questions Presented 4

Ii. Names of Parties 3

III. Table of Contents and 3

Table of Authorities

IV. REFERENCE TO REPORTS AND OPINIONS

V. STATEMENT OF GROUNDS TO INVOKE “+

JURISDICTION

VI. CONSTITUTIONAL AND STATUTORY 9

PROVISIONS INVOLVED

VII. STATEMENT OF CASE q

A. Procedures in case "

B. Facts of this case “

beoof Of Servie iTA

constitute reverse discrimination,

as racial quotas, affirmative

action.

Point 1- The Petitioner has been

denied due process of law tor which

there is relief under the Adminis-

trative Procedure Act 6-11, 1972; 5

U.S.C.A. S51 et. seq., 3105, 33944,

39371, 7521.

Point 2- Petitioner has been denied

due process of law in pursuant of

U.S.C. Sec. 1332, 42 U.S.C. Sec.

1981, 42 U.S.C. Sec. 1983 and 5

U.S.C. Sec. 702, providing for

equal rights for all persons in

every territory and state within

the United States.

Point 3- Anti-Discrimination Acts

prohibited the harassment imposed

on Petitioner.

Point 4- Medical Practice Act

Prohibits the treatment Petitioner

ee _ es fe ie) ale) teeta ee ae hl a Ae a es ld

IV.

received from the Air Force.

Point S- Reverse Discrimination

President set in the Allen Bockey

case, would consider it discrimina-

tory for the court to hear cases of

Homosexuals and not Heterosexuals

who were in the military.

Point 6- The Civil Rights Act of

1964 prohibiting discrimination

based on race, religion, handicap

etc. of which the Petitioner was

put through while on and cff active

duty by the Air Force.

REFERENCE TO REPORTS AND OPINIONS

Petitioner was denied the right to

heave his case heard based on alleged

failure to exhaust administrative

remedies, as shown in lower court

decisions. This lead to the court

to claim lack of jurisdiction over

subject matter.

The letter from petitioners lawyer at

that time explains the Judges Decision

at that time which the Air Force

(Respondent) agreed to at that time.

The letter dated, Feb. 1983 was

advising petitioner not to appeal

Judge Bramvells decision (82-Civ. 2128)

That Petitioner must wait until the

Air Force makes a final disposition of

his TDRL evaluations.

February 1, 1983

Mr. Avis J. Smith

932 Williams Avenue, #2B

Brooklyn, N.Y. 11207

RE: Smith v. United States

Air Force,et al

Dear Mr. Smith:

I have received your note indica-

ting your determination to appeal in

the above case. Please let me repeat

my warning in my letter to you of Jan.

27, 1983, that in all likelihood any

appeal would fail.

Let me quote the final paragraphs

of the Judge’s decision:

"Finally, the Court notes that

since the Air Force has yet to

make a final disposition of this

matter, plaintiff’s resort to this

Court is premature under the dis-

ability retirement enabling

statutes, which hold that the

a

right to sue does not accrue until

the Air Force makes a final

determination.

Of course, any applicable Statute

of Limitation would not commence

running until then.

Accordingly, the defendant’s motion

to dismiss is hereby granted.

Settle an order on notice on or

before January 28, 1983."

Since an appeal would require the

printing of a rather voluminous record

the cost to you would be $5,900, to be

os Ne Le ger tien, Ce a ae

SN eR nee Ld

paid in advance. You only have until

February 25, 1983 to file an appeal.

I strongly urge that you get a

second lawyer’s opinion on your possi-

bility on appeal, and any lawyer that

you name I will be glad to let him see

your file.

Sincerely,

Conrad J. Lynn

CJL/sad

Vv.

STATEMENT OF GROUNDS TO INVOKE

JURISDICTION.

Jurisdiction grounds sought to in-

voke are Administrative Remedies

Act. Civil Rights Act 1964 pro-

hibiting discrimination race,

religion and handicap: Reverse

Discrimination Law.

Also U.S.C. Sec. 1332, 42; U.S.C.

Sec, 1981, 42 U.S.C. Sec. 1983 and

5S U.S.C. Sec. 7902, providing for

asco Lashes TSE AG A RRIING CB ti

MC Riess 0 hate Paes

equal rights for all persons in

every state and territory within

the jurisdiction of the United

States.

VI. CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.

The Constitutional and Statutory

Provisions involved are the same as

item V.

STATEMENT OF CASE

Plaintiff (Petitioner) has shown

that his military record was one of

exemplary character and that never

was he denied the right to extend

or reenlist. Further he has proven

that he was attacked and arrested

and charged with trespassing while on

military orders to he there for TDRL

education illegally at Andrews Air

Force Base, MD. Petitioner was

accused of threatening the life of

a

AD Sa Rei ONT BADD 8 Nghe 8 we pO AL LEIS eh Ble

AD Nt aP DORIA TRENAN LE

President Ronald Reagan in 1982, by

the C.I.A. as part of extended

harassment from the Air Force. The

rest of the information below vill

further explain the true facts of

what was done to the Petitioner.

(1) Plaintiff enlisted in U.S.

Air Force 7 Apr. 76. While in

basic training at Lackland Air

Force Base, Texas, Plaintiff took

a by-pass exam scoring 90% and was

Given a direct duty assignment.

The Air Force did not have to train

Plaintiff because of the Plain-

tiff’s previous training which

included the following:

a) High School Diploma in Dental

Technology.

b) Two year degree in Dental Tech-

nology (A.A.S. )

c) A certified Dental Technician

d) Passed all exams for his

atte

ee ee i See eee ee |

teaching license to teach Dental

Technology

e) Plaintiff had worked 9 1/2 years

in the Dental Technology field,

before entering the Air Force.

(2) Plaintiff was given a direct

duty assignment to Chanute Air

Force Base, Illinois, date of

arrival 3 June 76. The following

sequence of incidents occurred:

a) Plaintiff was asked by White

Airman at the base dental clinic if

he was on an Air Force

minority program to get into Dental

lab. technology, because some of

them wanted dental lab. and could

not get it.

b>) Plaintiff wes asked by a group

of White Airmen, "Why did you come

into the Air Force, with so much

experience." Plaintiff stated, "I

hed four brothers in the Air Force,

=

my father was in the Navy for

twenty years, so I joined the Air

Force." Immediately after the

Plaintiff said that, a White Full

Bird Colonel Kenny L. Willarson

said, "I’m going to have this guy

checked out.”

c) After this Plaintiff was being

harassed and followed on the base

and off the base. Plaintiff vas

kept under surveillance in his

room and was followed by persons

who knew what he was doing in his

room when absolutely no one would

have known. A Mexican male, who

drove a silver Trans Am (Pontiac)

with Arizona license plates was one

who followed the Plaintiff on

numerous amount of White males who

harassed Plaintiff on and off base.

qd) After persistent racist harass-

ment, Plaintiff sent a certified

letter to his Squadron Commander

Lt. Aker complaining about the

harassment, the Squadron Commander

stated, * I was raised White-Anglo

Saxon Protestant, and can’t relate

to you and your ghetto experiences

but I will send you to the mental

health clinic. *

—_

Plaintiff was ordered to go to the

mental health clinic only for

racist reasons. This racism

inspired more of the racist

harassment, and a Full Bird

Colonel Kenny L. Willarson, came

at the Plaintiff with an Ax, and ;

called him Blackie. This same Full

Bird Colonel, after a result of

back-ground checks, came at the

ee fee A re Pt ae OP tte OR ee

Plaintiff in a harassing manner and

stated, “It’s those Black Muslims,

isn’t it Avis. *

3) The Air Force Inspector General,

treated the Plaintiff as if the Plain-

tiff had done something wrong for

making the complaint of the Colonel

coming at the Piaintiff with an Ax and

calling him Blackie.

4) Air Force Department of mental

health, lied in a Congressional

Inquiry concerning the first mental

evaluation which was never done by a

doctor, and is totally against good

medical practice in an evaluation that

was done based on race only.

S> Plaintiff attempts to have the

first evaluation removed from his

records, lead to a C.I.A. investi-

gation because of Plaintiff’s dis-

covery of classified information

electronics surveillance equipment

being used for illegal purposes.

6) The C.I.A. assisted in making

sure that the Full Bird Colonel

(Willargon) got away with his part

i ti tsa

in the harassment of Plaintiff, which

included the use of electronics equip-

ment used for tampering with the

brain.

7) The C.I.A. tried to force Plaintif

into working for the C.I.A., and

Plaintiff disagreed with certain

things and was tortured with electro-

nics surveillance equipment. The C.

I.A. (Air Force Intelligence) conduc-

ted an extremely long investigation of

of Plaintiff which consisted of un-

necessary harassment with help from

certain top officials from the Origi-

nal Nation Of Islam, who were named in

the Amsterdam News in 1981 and on

WLIB, in the same year.

8) In order to cover-up the C.I.A.

(Air Force Intelligence) increased

their harassment to force the Plain-

tiff out of the U.S. Air Force because

of the information the Plaintiff has

—_

on the use of surveillance.

9) The harassment against the Plain-

tiff was continued after he left the

Air Force, and forced to go to TDRL

evaluations, in order to have his

case heard by the court.

Plaintiff has exhausted every possible

possible legal means to resclve this

case. Plaintiff has produced total

evidence that he has exhausted every

legal administrative remedy. Plaintiff

finds that the Air Force demonstrated

"Breach of good medical practice," as

in Steeves v U.S. 294 F. Supp. 466

(D.C.S.C. 1968) in attacking the

Plaintiff and taking him out of the

hospital Psych-ward and arresting him

and charging him with trespassing when

he was admitted to the hospital and

Secretary cf the Air Force for him to

had orders carrying the stamp of the

be exactly where he was.

— *

The Petitioner requested in

writing to the Air Force Board

For Correction of Military

Records in 1981, for All five

mental evaluations to be

removed from his records. The

Air Force Board For

Corrections of Military

Records was negiigent in

refusing to correct all

evaluations before the

diagnosis of Schizophrenia

Paranoid Type, which had

nothing to do with the five

year TDRL evaluation period.

The only diagnosis which

caused the Petitioner to be

put on TDRL was Schizophrenia

Paranoid Type, no other

diagnosis. The Air Force Board

For Correction Of Military

422

——-

Records reasons for not

correcting my records were the

following: 1) Petitioner was

removed from duty because he

was no longer able to perform

his military duties.

Petitioners military records

prove the Air Force's

deliberate intent to lie.

2) The Air Force also stated

that Petitioner had a well

documented diagnosis

Schizophrenia Paranoid Type.

The negligence of the Air

Force Board of Corrections is

that they could have by law

corrected all records before

the diagnosis of Schizophrenia

Paranoid Type by law.

166

The Air Force TDRL evaluation in 1982

(April), the Air Force stated in the

Plaintiff’s medical records that the

Plaintiff was "COMPLETELY IMPAIRED, *

if this were truly the case, the

Plaintiff should have been retired

permanently with 100% at that time.

The Air Force’s failure to do so,

demonstrates bad medical practice, and

if the Plaintiff was not "COMPLETELY

IMPAIRED, ® the Air Force is guilty of

falsifying the Plaintiff’s medical

records.

The fact that the Air Force has pro-

duced mental health records, on the

Plaintiff, as a result of racism, has

caused considerable damage to the

Plaintiff in ways that are both

obvious and not so obvious. I ask

the court to hear the Plaintiff’s case

and to have justice done.

The Petitioner (Plaintiff) has re-

' _

®,

IN THE

SUPREME COURT OF THE UNITED

STATES JUNE TERM 1990

NO.

Ais F Sn.TH PETITIONER

Vv.

“S$ A, A Force RESPONDENT

PROOF OF SERVICE

1,AVis ar. Smith , do

swear or declare that on this

aave,13 Ly. qj , pursuant

to Supreme Court Rules 29.3, I

have served the Solicitom>

Cansrely and the Respondent to

PROCEED IN PETITION FOR A WRIT

OF CERTIORARI on the parties

to the above proceedings to be

served by or hand

carrying as indicated bel

a 4 A210

- Fine

Avis J. Smith,Affiant ed So

IN THE

SUPREME COURT OF THE UNITED

STATES JUNE TERM 1990

NO.

Avis. FT. SmiTH PETITIONER

V-

“S$. Ax Foe CS RESPONDENT

PROOF OF SERVICE

1, Avis Ma Smit ’ do

Swear or declare that on this

date, 3 ID , pursuant

4

to Supreme Court Rules 29.3, I

have served the Solicitor

General, and th Respondent to

PROCEED IN PETITION FOR A WRIT

OF CERTIORARI on the parties

to the above proceedings to be

served by or hand

Avis J. Smith,Affiant ,,Coricaminene

quested a jury in the original com-

plaint filed and was not granted any

of his request. Petitioner, has also

asked for $5,000,000 (five million)

dollars in damages.

aim LOO? a Lig a2

Avis J. Smith Date.

Petitioner (Pro-se Plaintiff)

APPENDIX

It is further noted that the sugges-

tion for rehearing in banc has been

transmitted to the judge of the court

in regular active service to any

other judge that heard the appeal and

that no such judge has requested that

a vote be taken thereon.

ELAINE B. GOLDSMITH

Clerk

MMT: WFL:eag

F. #824887 JAN 27 1983

UNITED STATES DISTRICT COURT

=" =

EASTERN DISTRICT OF NEW YORK

AVIS J. SMITH,

Plaintiff, ORDER

CIVIL ACTION

v. NO. CV82 2128

BRAMWELL, J.)

UNITED STATES AIR FORCE

KENNY L. WILLARSON,

Defendants.

Defendants United States Air Force

and Kenny L. Willarson having moved

to dismiss plaintiff’s complaint pur-

suant to Rule 12(b) F.R.Civ.P., and

the court having duly considered this

matter; upon all the proceedings had

herein, it is hereby

ORDERED that defendants motion is

granted and plaintiff’s complaint is

dismissed.

Dated: Brooklyn, New York

January 26th 1983

SO ORDERED

HON. HENRY BRAMWELL

U.S. District Judge

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Avis J. Smith,

Plaintiff,

-~against-

United States Air Force and

Kenny L.- Willarson,

Defendants

82-Civ, 2128

Judge Bramwell

January 27, 1983

a oT ene

ws4 ov Ldeaott sbastad

=

;

ee

Enclosed please find the complete

text of the decision and order of

Judge Braamvell.

"THE COURT: Well, what I am going

to do is, I am going to put the

Court’s decision on the record

then.

You may be seated.”

I will put it on record, and you

can order it from the Reporter, if

you wish a copy of it.

Defendant, United States Air Force,

moves this morning, pursuant to

Rule 12 (b) of the Federal Rules

of Civil Procedures, to dismiss the

plaintiff’s complaint for affirma-

tive injunctive relief, and money

damages.

The plaintiff, Avis Smith, was

diagnosed by the United States

Air Force as being a paranoid

schizophrenic and vas accordingly

attu

placed on the Temporary Disability

Retired List, on February 2, 1981,

with a thirty percent disability.

While on this list, the member is

evaluated at least once every 18

months to determine if there has

been any change in his condition.

A member may be kept on the list

no more than five years. If within

this time, the member’s condition

is found to sufficiently improve,

he is returned to active duty.

If, on the other hand, his con-

dition ia found to continue for a

full five years, he is separated

from the Service and receives

benefits.

The plaintiff in this case was last

evaluated in May of 1982, at which

time his disability was evaluated

at seventy percent.

Accordingly, he was kept in the

atin

}

'

Temporary Digability Liet. He will

next be evaluated in August of

1983. In any event, his five years

on the list will not expire until

February 1, 1986. During thie

time, there can be a final dispo-

sition either separating him or

returning him to active duty.

Thus it comes as no surprise that

when the plaintiff applied to the

Air Force Board in October of 1981

for Correction of Military Recorde

asking for dismiegal of all mental

diagnosis from hie records, the

Board denied hie application as

premature.

On July 21, 1982, plaintiff filed

evit in this Court, esking for the

relief outlined above.

I will first discuss the question

of thie Court’s jurisdiction over

these defendants. The plaintiff

=\e

cites as bases for jurisdiction;

28 USC Section 1332, the Diversity

Statute, 42 USC, Sections 1981 and

1983 of Civil Rights Statutes, and

S USC Section 702 of the Adminis-

tretive Procedure Act.

28 USC Section 1332, gives this

Court subject matter juriagdiction

in diversity suits. Accordingly,

the defendant would have to be a

citizen of some State other than

New York. Because the Court finds

that the United States Air Force is

mot a citizen of any particular

State, it concludes that it cannot

be sued in diversity.

Ae to the claims for jurisdiction

under 42 USC Sections 1981 and

1983, these two must fail. At the

time the alleged wrongful act was

done to him, plaintiff was an

active duty member of the United

States Air Force. As such, he is

considered a Federal employee.

Numerous courts have held that sec-

tion 1981 is not available to

Federal employees alleging racial

bias by a Federal Agency, Section

2000 E-16 of Title VII being the

exclusive remedy.

Ase a Federal employee therefore,

plaintiff cannot assert Section

1981 as a basis for jurisdiction

in this suit against the Air Force.

Likewise, this court has no juris-

diction under 42 USC 1983. Section

1983, by its very terms, has appli-

cation only in these matters where

pergons are deprived of their

rights under color of State and not

Federal lav.

With respect to the Administrative

Procedure Act, the Court would

merely note that there exists no

o28e

"ASS ES Dg amas

final agency determination for this

Court’s review.

In light of the foregoing, then

this Court finds itself without

jurisdiction over the United States

Air Force for purpoges of this

action.

Turning to the individual defen-

dants, Kenny L. Williarson, I note

that the record reveals that he was

not served with a summons by the

plaintiff. Service of process, is

of course, indispensable in order

for the Court to have jurisdiction

over a defendant unless there is a

waiver.

Since there has been no such waiver

in this case, I find that this

Court lacks personal jurisdiction

over Mr. Williarson.

Finally, the Court notes that since

the Air Force has yet to make a

_—. * aa

final disposition of this matter,

plaintiff’s resort to this Court is

premature under the disability re- .

tirement enabling statutes, which

hold that the right to sue does not

accrue until the Air Force makes a

final determination.

Of course, any applicable Statute

of Limitation would not commence

running until then.

Accordingly, the defendant’s motion

to dismiss is hereby granted.

Settle an order on notice on or

before January 28, 1983.

If you wish a copy of this, order

it from the Reporter.”

AVIS J. SMITH,

Plaintiff,

-against-

THE UNITED STATES AIR FORCE,

Defendant,

~

MEMORANDUM

AND ORDER

88 CV 1837

McLaughlin, District Judge

Plaintiff, pro ge, brings this action

under 28 U.S.C. 1332, 42 U.S.C. 1981

and 1983, and 5 U.S.C. 792, sashien a

permanent injunction enjoining defen-

dant from discriminating against

plaintiff and money damages for defen-

dant’s alleged unlawful and discrim-

inatory treatment of plaintiff.

Defendant moves to dismiss the con-

Plaint for lack of subject matter

jurisdiction, Fed. R. Civ. P. 12(¢b)

(1), and for failure to state a claim

upon which relief can be granted, Fed.

R. Civ. P. 12¢(b) (6).

FACTS

Plaintiff enlisted in the United

_ =

States Air Force on April 7, 1976, for

a term of four years. Starting in May

1977, plaintiff’s supervisor sent hia

on several occasions to the Air Force

Mental Health Clinic for evaluation.

On March 31, 1999, plaintiff was seen

at the Mental Health Clinic at Osan

Air Base, Korea, where he complained

that the C.I.A. was conducting a "mind

probe.” He was diagnosed as having

"Adjustment Reaction.” On September

27, 1990, plaintiff complained that

the Air Force Intelligence, the

C.I.A., and the Korean C.I.A. were

monitoring and recording his brain

functions. He was hospitalized, and

on October 190, 1980, was diagnosed ag

having schizophrenia, paranoid type.

Plaintiff was subsequently returned to

the United States for evaluation at

David Grant Air Force Medical Center

in Travis, California. The earlier

diagnosis was confirmed on December

2, 1980. <A medical board consisting

of three doctors, including a

peychiatrist, then reviewed the

records and approved the diagnosis.

Plaintiff’s records were revieved once

again by a Physical Evaluation Board

at Randolph Air Force Base in Texas.

On December 17, 1980, the Board agreed

with the diagnosis, found that plain-

tiff’s condition appeared permanent

rendering him unfit for duty and

recommended “Temporary Retirement”

with 30% digability. The Plaintirr

agreed with the findings and recon-

mendations and stated that hie reason

for doing so was “to be relieved from

illegal, racist, discriminatory

confinement* by the Air Force Depart -

ment of Psychiatry, Air Force Intelli-

gence and the Central Intelligence

Agency.

Plaintiff wae separated from the Air

Force on February 2, 1981, and vae

placed on the Temporary Disability

List (TDORL»).

According to Generel Military Law and

Air Force regulations, an active duty

wember is placed on the TDRL if the

egency cennot determine whether the

member’s condition is permanent. 190

U.S.C. 1282 (h). <A member cannot be

kept on the TDRL for more than five

yeers, 10 U.S.C. 1202 (th), and during

thet period, the member is evaluated

et leest once every eighteen months to

determine whether there is a change in

the member’s condition, 12 U.S.C. 1210

(a). If the member is found to have

recovered, he is returned to active

duty. 1@ U.S.C. 1210 and 1211. If the

condition is found to be permanent,

the sember is separated from the ser-

vice and receives benefits which vary

, PF,

according to length of service and

percentage of digability. 10 U.S.C.

1218 (c) (d) and (e). If there ia no

change, the member is left on the

TDRL.

According to these regulations, the

plaintiff was reevaluated by the

Physical Evaluation Board on May 19,

1982. The Board determined that the

plaintiff was still unfit for active

duty because of schizophrenia but vas

70% compensible. Based on the change

in the level of compensation, the

Board recommended plaintiff’s reten-

tion on the TDRL. The Secretary of

the Air Force approved this recommen-

dation.

On July 21, 1982, the plaintiff filed

@ laveuit against the Air Force in the

Eastern District of New York. Judge

Bramwell, finding that the Air Force

had not taken final administrative

action on the question of Plaintiff’s

retention or discharge, dismissed the

action on the ground that the com-

plaint was premature.

The Air Force took final action on the

plaintiff’s case on aly 12, 1985.

That action, effective August l, 1985,

consisted of retiring the plaintiff at

the grade of Sergeant with 30% dis-

ability. The plaintiff was also

credited with four years, nine months

and twenty-six days of active duty

service.

DISCUSSION

42 U.S.C. 1981 and 1983

Plaintiff claims that the Air Force

discriminated against him in violation

of 42 U.S.C. 1981 and 1983. The

plaintiff’s 1981 claim, however, is

barred by the doctrine of sovereign

immunity. wn v. G ra ervice

> =

96 S.Ct. 1961, 1966 (1976). Under

that doctrine, the United States may

not be sued without its consent and

that consent is a prerequisite of

jurisdiction. n d Vv.

Mitchell., 463 U.S. 206, 212 103

S.Ct. 2961 2965 (1983). Because the

United States has not waived its

sovereign immunity on claims brought

under 1981, this claim must be

dismissed. similarly, the plaintiff’s

Claim under 1983 is jurisdictionally

deficient because that section only

covers action under color of the

state law. 42 U.S.C. 1983. Thus

a Claim against the federal govern-

ment is not cognizable under this

section. Ellis v. Blum, 643 F.2d 68,

83 n. 17 (2d Cir. 1981); Lynn v.

United States Dep’t of Health and

Human Services,583 F. Supp. 532, 533

(S.D.N.Y. 1984).

— —- ss

ll. S.U.S.G. 701-06 ©

Plaintiff also cites the Administra-

tive Procedure Act, 5 U.S.C. 701-@6,

a jurisdictional ground. Indeed,

section 702 makes clear that a person

wronged by agency action “is entitled

to judicial review therefore." This

section does not provide, however, a

basis for jurisdiction in and of

itself. There must be an independent

basis for jurisdiction. California

v. Sanders , 430 U.S. 99, 107, 97 S.

Ct. 980, 985 (1977).

lil. Tucker Act _

Construing plaintiff’s complaint as

08 CCL PIE CEE, ELEANOR te PELE AE ig fa Seer Oa egy SP BER "

Se Saal

asserting claims under the Tucker Act,

plaintiff requests “fringe benefits,

adjustment, and other equitable relief

for losses suffered as a result of de-

fendant’s unlawful acts." He estimates

his damages to be $5 million.

Assuming plaintiff’s claims do not

=o

sound in tort and because the damages

resulting from those claims exceed

$190,000, the Court of Claims has

exclusive jurisdiction to hear the

case. 28 U.S.C. 1346 (a) (2); 1491.

This Court, therefore, *o the extent

that the plaintiff may be claiming

damages under the Tucker Act, lacks

jurisdiction over plaintiff’s com-

plaint.

IV. Feres Doctrine

If, on the other hand plaintiff’s

Claim is based upon alleged tortious

acts committed while he was a member

of the military, the claim must be

dismissed. It is clear that a

tortious act committed against a

military member by his superior or

the government are not actionable in

federal courts. n Vv.

Feres, 3402 U.S. 135, 71 S.Ct. 154

(19590).

~*~

Finally, even assuming thet a militery

member could sue for tortious acts,

the plaintiff here has failed to

exhaust his administrative remedies

under the Federal Tort Cleims Act.

28 U.S. C. 1346.

First, pleintiff failed to make any

application to the Air Force Board

for Correction of Militery Records

for correction or deletion of any

of the elleged discriminatory or false

statements made in plaintif{f’s mental

health records. 10 U.S.C. 1552; 32

C.F.R. 865. 2(b). Pleintiff also

failed to exhaust his administrative

remedies with regerd to any allega-

tions of tortious conduct. In order

to bring e federel court action, the

litigant must first file an edminis-

tretive claim with the egency, here

o22e

. =

!

.

-_

Se

%

«

= -

.» « >» *

a » @.t%

the Air Force, involved in the liti-

gation. 28 U.S.C. 2410(b); gee Wyler

vy. United States, 725 F. 2d 156, 159

(2d Cir. 1983) ("Absent compliance

with edministrative claim) require-

wentse the action is barred by

sovereign immunity and the district

court hes no subject matter jurisdic-

tion*). Because the plaintiff did not

file any administrative claim, the

court lacks jurisdiction over any

cauee of action sounding in tort.

CONCLUSION

for the foregoing, defendant’s motion

to diewmiss for lack of subject matter

juriediction is granted.

SO ORDERED

Dated: Brooklyn, New York

July 12, 1989

Jogweph MN. McLaughlin,

U.S.D. J.

UNITED STATES COURT OF APPEALS FOR THE

Iie

SECOND CIRCUIT

EDNY

McLaughlin

88Civ. 1837

At a stated Term of the United States

Court of Appeals for the Second

Circuit, held at the United States

Court house in the City of New York, on

the 26th. day of January, one thousand

nine hundred and ninety.

PRESENT

Hon. Ellsworth Van

Graafeiland

Hon. Rodger J. Miner,

Hon. John MN. Walker, Jr.

Circuit Judges

Filed

Jan. 26, 19990

AVIS J. SMITH,

Plaintiff-Appellant,

7

~against- ORDER

89-6211

THE UNITED STATES AIR FORCE,

Defendant -Appellee.

UPON CONSIDERATION of this appeal from

a judgement of the United States

District Court for the Eastern

District of New York (McLaughlin, J.),

it hereby is affirmed.

Plaintiff-appellant Avis J. Smith

appeals from a judgement entered in

the United States District Court for

the Eastern District of New York dis-

missing his complaint for lack of sub-

ject matter jurisdiction.

Smith commenced this action under 28

U.S.C. 132, 42 U.S.C. 1981 and 1983,

and 5 U.S.C. 702, for injunctive

relief and money damages, alleging

ay

unlawful and discriminatory treatment

by the Air Force. The district court

dismissed the complaint on defendant’s

motion for lack of subject matter

jurisdiction.

We affirm substantially for the

reasons given in the comprehensive

Memorandum and Order of district

court, Joseph M. McLaughlin, Judge,

dated July 12, 1989.

ELLSWORTH VAN GRAFEILAND,

RODGER J. MINER,

JOHN M. WALKER, JR.,

CIRCUIT JUDGES.

UNITED STATES COURT OF APPEALS

for the

SECOND CIRCUIT

FILED

MAR. 12 19990

At a stated term of the

— F ww

United States Court of Appeals for the

Second Circuit, held at the United

States Courthouse, in the City of

New York, on the twelfth day March,

one thougand nine hundred and ninety.

Avis J. Smith,

Plaintiff-Appellant,

Dockett Number

89-6211

THE UNITED STATES AIR FORCE,

Defendant-Appellee.

A petition for rehearing containing a

suggestion that the action be reheard

banc having been filed herein by

appellant pro se Avis J. Smith

Upon consideration by the panel that

decided the appeal, it is Ordered that

said petition for rehearing is denied.