Petition for Writ of Certiorari — Kerian v. Harvey
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Conventions, the Whistleblower Act, and iis own
regulations are legal questions. It follows that the extent of
a Service Member’s duty to comply with and to he
protected by International and Federal law and Federal
regulations is properly reviewed as a “legal” matter. U.S.
Const., Article 3, cl. 2 (Quoted above).
The Second Circuit's failure to consider Petitioner's class
action constitution, allow a jury trial and premature
dismissal of Petitioner’s civil rights cause of action are
reversible errors because Military service members are
vulnerable citizens entitled to the protections of the U.S.
Constitution and careful--perhaps heightened-- judicial
scrutiny. A military service member's duty to respect
human rights and to refuse to violate human rights is
fundamental and Constitutional (involving the right to not
act criminally). Governmental action here appealed in
derogation of these rights facilitate an Apparent Executive
Branch Conspiracy to interfere with civil rights, 42 USC
1985.
In light of the pleadings as a whole, see, Pleadings at APP
AA, (A344-A384), the EDNY erroneously dismissed
Petitioner's civil right allegations as conclusory and
unfairly denied discovery and leave to amend. See, APP B,
(A45-A59). At least one court has ruled that Whistle
blower status itself is sufficient to describe a protected class
suffering based invidious discrimination status under Civil
Rights Law. Lapin v Taylor, (1979, DC Hawaii) 475 F
Supp 446. Congressional pronouncements alone provide a
basis for affording military service members civil rights
protection, not only when it created whistle blower
protection, but with other military status relate laws. See
e.g., Soldiers’ and Sailors’ Civil Relief Act (SSCRA), 50
U.S.C. 501 to 593 (as now modified by the Service
Members Civil Relief Act of 2004), Uniformed Services
Employment and Reemployment Rights Act (USERRA),
38 U.S.C. 4301-4333. These bodies of law mandate a
Supreme Court finding that Military Service members
suffer civil disabilities meriting heightened judicial
protection. Congress specifically provided for broad
remedial authority for wrongs such as those suffered by
Petitioner. See, Military Whistle Blower Act, APP N
(A161-A177), and did so in a manner and during a time
when such decisions were reviewable under the APA and
was therefore intended to be judicially review able. See
APA at APP W (A298). (Sce also part VI below concerning
Congressionally mandated judicial review of military
personnel decisions)
The Military Whistle Blower Protection Act (MWPA),
which DOD has wrongfully failed to implement, gives
DOD and Service Secretaries broad authority to deter
reprisal and authorize restitution “for the loss of pay,
allowances, compensation, emoluments, other pecuniary
benefits." See MWPA at APP N (A161-A177). Seeking
relief and correct systemic lawlessness, Petitioner sues
agency heads in their representative capacity seeking
equitable relief available under the Administrative
Procedures Act (APA). A military service member may
bring an APA action where he seeks “relief other than
money damages,” in cases "for which there is no other
adequate remedy in a court.” 5 U.S.C. §§ 702, 704 (2000).
See APA at APP W, (A298).
Contrary to the nonreview-able and non-justiciable military
label imputed these matters by judicial holding to date,
Petitioner's request for equitable relief asks not that Courts
involve themselves in matters military; it merely asks that
they enforce existing laws and mulitary regulations. It is
axiomatic that ap agency of the government must
scrupulously observe its own rules, regulations, and
procedures. United States ex rel Accardi v. Shaughnessy,
347 U.S. 260 (1954). With respect to the armed forces, this
requirement “does not involve any undue interference with
the proper and efficient operation of our military forces
~
= - =U
because we require only that the [Navy] carry out the
procedures and regulations it created itself." Smith v.
Resor, 406 F.2d 141, 146 (2d Cir. 1969). For this reason
class action status for classes of service members denied
access to the rule of law, transparency, and whistleblower
protection cannot be said to unfairly burden the military;
for this is the very rule of law or liberty which the United
States military is constituted to defend. The trial court,
therefore, committed reversible error by dismissing
petitioner’s case and ignoring Petitioner’s repeated requests
for rulings on class action certification, civil rights and
whistleblower protection.
A class-certification decision will “only be overturned if it
constitutes an abuse of discretion’ Lunquisist v. Sec. Pac.
Auto. Fin. Servs. Corp., 993 F. 2d 11, 14 [2d Cir. 1993)
(per curiam). “However, the failure to follow the proper
legal standards in certifying a class... is an abuse of
discretion’ Blyden v. Mancusi, 186 F .3d 252, 269 [2d Cir.
1999) ). And, our deference is “noticeably less” when a
district court “has denied a class status than when it has
certified a class.” Caridad, 191 F. 3d at 291 (quoting
een es F 2d : “ ” Robinson v Metro North
47 The
ter
mu ignored wr ee $ repeated objections and request
for Class Action constitution and Certification. See, Class
Action Complaint at Class Act at APP Y (A305-A325).
Petitioner’s claims are reviewable under 28 U.S.C. §§ 1331
~{Federal Question Jurisdiction). The Administrative
Procedure Act determines the standard and scope of review.
This Court held in Chappell v. Wallace, 462 U.S. 296
(1983) that decisions regarding the correction of military
records are subject to judicial review under the APA “and
can be set aside if they are arbitrary, capricious, or not
based on substantial evidence.” Chappell, 462 U.S. at 303.
Case law “casts serious doubt" on an argument that service
members’ APA claims are never reviewable. Knes vy. Sec'y
of the Air Force l 1513 (D.C. Cir. 1989). It
is, after all, the "function of the courts to make sure . . . that
the men and women constituting our Armed Forces are
treated as honored members of society whose nights do not
turn on the charity of a military commander.” Winters vy.
United States, 89 S. Ct, 57, 59-60 (Douglas, Circuit Justice
1968).
Treaties are the supreme law of the land. See, U.S. Const.,
Article 6, cl. 2 (Quoted above). This Court, in The Paquete
Habana 175 U.S. 677, 700 (1900), held that international
law is part of customary U.S. law and controlling law as
U.S. conducts international affairs. See also e.g.,: Filartiga
y. Pena-Irala, 630 F.2d 876 (2d Cir. N.Y. 1980), Vietnam
. tp sete -
yy a on 7 0 Prod, Liab. Litig,),
(E.D.N.Y. Mar. 10, 2005), In re S. African Apartheid Litig.,
346 F. Supp. 2d 538, (S.D.N.Y. 2004), Presbyterian Church
of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289,
155 Oil & Gas Rep. 409 (S.D.N.Y. 2003). The recent
Treaty of Rome establishing the International Criminal
Court (ICC) is a critical development in the history of
human kind. The ICC holds the power to deter aggression
by penetrating the sovereign impunity afforded by faux
national systems of injustice as illustrated by the case at
bar. Under binding Supreme Court precedent above, the
ICC represents binding Customary International Law. The
executive bad faith and unclean hands of record sadly
demonstrates that American Military Service Members
require the Supreme Court limit Executive interference with
the process implementing customary international law.
When the executive investigative process into reprisal and
war crimes is not transparent (or spun from the top down)
and complainants are denied judicial review, there are too
few alternatives and too few limits upon mans’ inhumanity
to man. Denied the checks and balance and longer- term
perspective provided by judicial review, there can be no
cure for terrorism; war (by other means) has an uncanny
way of finding means of indiscriminate (extrajudicial)
slaughter of the masses. Without an International Criminal
Court, one self-deluded powerful state, can pervert liberty
and define complementariness, rationality, judiciousness
and humanity, out of existence.
Dismissal of Petitioner's causes of action as non-
reviewable and non-justiciable, conflicts with 2d circuit
precedent implementing prior Supreme Court decisions on
Executive lawlessness. In Harmon v. Brucker, 355 U.S.
579 (1958) (per curiam) the Supreme Court approved
substantive Federal Court review of military decisions
(discharges). Five years earlier, the Supreme Court ruled
that courts-martial proceedings were subject to judicial
review. Burns _v. Wilson, 346 U.S. 137 (1953). (Court-
martial convictions lacked fundamental fairness). The 2d
Circuit has applied these Supreme Courts rulings. See e.g.
Feliciano vy. Laird, 426 F.2d 424 (2d Cir 1970). In
Feliciano, the 2d Circuit reversed the EDNY trial court and
granted Petitioner soldier's request for a writ of mandamus
directing the trial court to issue an order requiring the
selective service system to reconsider Petitioner's hardship
application because, as in the instant case, the Army failed
to follow its own regulations. The 2d Circuit held judicial
review of military decisions to be the kind of error that the
2d Circuit would not even hesitate to rectify. Accord,
Smith y. Resor, 406 F.2d 141, 145 (2 Cir. 1969); Hammond
y. Lenfest, 398 F.2d 705, 715 (2 Cir. 1968); See also
Crawford v. Cushman, 531 F.2d 1114 (2d Cir. 1976).
Crawford , illustrates 2d Circuit review of the second type
of military decision the 2d Circuit has not hesitated to
review, i.¢., those involving Fundamental Constitutional
rights.
“preparing” to contact Congress language in 10 USC
1034 3
I. Disregard of Whistleblower regulations
DoD agents failed to investigate Petitioner’s claim of
whistleblower reprisal, as required. APP N (A161-A177),
APP S, (A265-274), when he reported Grave Breaches of
the Geneva Convention (Whistle) APP E (A64-A8]1).
Instead, DoD agents compiled unauthenticated
“summaries” of statements and then used those summaries
to deny Petitioner relief. See Investigation at APP F, (A81-
A99). In the case of Petitioner’s Officer Efficiency Report
(OER) appeal, SEE APP G, (A100-A106), the “protection”
process which was used as an opportunity to take further
reprisal. See, SRB decision at APP H, (107-114). The
SRB, instead of reviewing for unfairness selected one of
several procedural deficiencies complained of, neglected
entirely the unfairness and injustice issues, and made
Petitioner’s records worse while ruling that reconsideration
of non promotion by a Special Selection Board, APP X,
(A299-A304) would not make a difference. The decision of
the SRB was not followed, as Petitioner’s military records
endured even further reprisal when the SRB decision was
(not) implemented. See, APP BB (A385-A390) for copies
of Petitioner’s OPR’s as “corrected”.
Consider the whistle blower investigator’s description of
the evidence provided by the Inspector General Officer of
2d Armored Division APP F, (A84) of the Investigating
officer’s report. See Investigation at APP F (A81-99). The
investigating officer’s “discussion” spins this witness’
testimony concerning Cpt Kerian’s advice to the
Commanding General as being to the effect that petitioner
threatened to send the CG 2AD to jail. See, Whistle at APP
E (A84) (this is relevant to the “preparing” to contact
Congress analysis in part TV & V below) See also at
Investigation at APP F (A86). The 14 MP Commander’s
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Statements regarding petitioner’s problems with Saudi’s are
unsubstantiated. In fact, the 14° MP Brigade Commander
was not present at the refugee holding areas. The officer
taking reprisal, Col Huffman, depicts Petitioner’s efforts to
comply with the Geneva Convention as a personnel issue,
i.e., Suggesting that Petitioner caused “management”
problems. Moreover, the investigating officer incorrectly
suggests that only one conversation took place between the
2AD IG and Petitioner. Again, this conclusion is
unsubstantiated by the evidence. See Petitioner’s appeal to
the ABCMR, APP I (A115-A138, Ai24,5) for discussion
of Petitioner’s evidence concerning these contested facts.
The Geneva Conventions are specific, but were not
implemented by military superiors. See, GC IV at APP Q,
(A179-A256). Petitioner led task forces back and forth
across Saudi Arabia, Iraq and Kuwait. Petitioner gathered,
found, fixed and signed for 40 Saudi buses that were used
to evacuate prisoners from the front. Petitioner established
an Arabic/English administrative punishment process so
that prison guards would not punish prisoners; so that MPs
would not allow maltreatment by interrogators; so that MPs
would not allow pictures (also too dangerous to their
families) to be taken of prisoners; ensured MPs would treat
prisoners humanely; and not punish without due process
(all part of judicial record below). Petitioner performed
these acts in addition to his Judge Advocate responsibilities
because the Geneva Conventions (GC) specifically required
these protections. The GC also required that deaths be
investigated. GC Art 129, APP Q, (A238).
Department of the Army agents affirmed Petitioner’s
whistle blower investigation, despite Petitioner specific
detailed and corroborated objections to the process’ lack of
transparency and Petitioner’s inability to participate.- See ,
APP I (A115-A138 , and APP E-K generally). Petitioner’s
Freedom of Information Act and Privacy Act requests for
13
information were all denied. See additional correspondence
at APP Z (A326-A329).
The EDNY trial judge started and ended unfairly. AT the
outset the trial court erroneously neglected to mention that
Petitioner's must repay his “voluntary” separation pay.
APP A, (A2) to receive military retired pay. See, 10 U.S.C.
1175 (e) (3). Similarly, the trial judge erroneously balanced
equities in invoking the statute of limitations to deny
Petitioner's claims. The Army took 5 years to fail to
properly do what Congress required the Army to do in 180
days (A273). Yet Petitioner, facing no such processing
requirements is time barred from “correction” by a
Correction Board, which even now regularly corrects WWI
and WWII historic records. See additional correspondence
APP Z, (A329-A343). Showing bad faith and Due Process
denial by Army/DoD agents in Correspondence related to
the delay, disclosure, supplemental (SRB) reprisal, etc.
The military failed to follow its own regulations. Whistle
Blower protection requires an investigation of the wrong
alleged to have been reported by the individual alleging
whistle blower reprisal. See, DoD Directive 7056.6
MILITARY WHISTLEBLOWER PROTECTION did
Nov 20 1989 at APP S (A265-A274) Responsibilities: (1)
The Inspector General, Department of Defense (IG, DoD)
shall: [... (b) Initiate a separate investigatiod of the
information the military member believes evidences
wrongdoing if such investigation has not already been
completed. ...]
At the end of the flawed (no investigation) “process” the
military afforded Petitioner, the Military re-violated its own
regulations by failing to properly inform Petitioner of his
right to appeal the ABCMR denial! of relief to Sec. Def. as
required. DoD Directive 7056.6 MILITARY
WHISTLEBLOWER PROTECTION did Nov 20 1989
APP S (A272) Responsibilities: (5) The Secretaries of
14
Military Departments, or their designees, under 10 U.S.C.
1552 (reference (c)), shall:
within 180 days of its receipt, issue a final
decision on an application for the correction of
military records from a military member or
former military member alleging reprisal for
making or preparing to make (emphasis added) a
lawful communication to members of Congress
or an IG. When the final decision does not grant
the full relief requested by the military member,
advise the member that within 90 days he and/or
she may request Secretary of Defense to
reconsider the decision.
In violation of law, Petitioner’s request for quick resolution
was denied and his appeal rights were not communicated.
See, 8 Feb 1996 final denial letter from David Kinneer,
Executive Secretary, ABCMR. APP K (A155-A158). The
ABCMR, in its 8 February 1996 final denial, clearly failed
to advise Petitioner of his right to administrative appeal:
“The only remaining avenue of appeal, should you
desire to pursue it, would be in federal court.” (emphasis
added) APP K (A157). Such military ~ ‘sconduct alone
provides an appropriate basis for Federal ourt jurisdiction
and equitable relief.
il. Disregard of Law of War Program Requirements.
The DoD failed to investigate war crimes. DoD Directive
5100.77, DoD Law of War Program APP R, (APP A256-
A264) states: “Higher authority receiving an initial report
shall: ... “6.3.1. Request formal investigation by the
cognizant military investigation authority”. “Formal”
as used in this context to modify “investigation” should not
be allowed to connote orchestrating secret (largely
undisclosed) libel and slander sessions about the person
seeking protection and avoiding those with evidence to
offer regarding the war crimes (such as the complainant
who specifically expressed a desire to offer additional
evidence and witnesses). See Investigation at APP F,
(A81-A91) containing only excerpts of unauthenticated
(contrived) “summaries” of (often hearsay) testimony. See
also “Investigation”, APP F, (A95-A99) portraying
Petitioner's complaint as against 14" MP Brigade and
misstating the law and facts. A “thorough”, “ formal”
investigation would have identified the source of the
“refoul and wean” orders and the names of the thirsty
refugees who were murdered when they ran towards a late
arriving water truck. Rather than investigate Petitioner’s
underlying complaint (refugee refouleme:.i and murder) the
investigation instead focused on maligning Petitioner and
white washing the compendium of adverse actions
expelling him from the Army.
Petitioner’s superior took the position that there was “no
intent to occupy” Iraq, so the GC did not apply and there
was no problem with “repatriating” (as he called it) and
weaning. See Petitioner’s initial request for protection
(Whistle) at APP E (A64-A81) as corroborated by the
Whistle blower investigating officer, through Col
Chapman, prior SJA, 2 AD, at Investigation, at APP F
(A92-93) (admits it was unknown/undecided whether GC
applied). Petitioner’s superiors position, clearly disregards
long standing U.S. policy to pervasively apply/conform
with the Geneva Conventions, see e.g.,:
CHAIRMAN JOINT CHIEF OF _ STAFF
INSTRUCTION, JCSI 5810.018 IMPLEMENTATION
OF THE DOD LAW OF WAR PROGRAM , 25 March
2002 APP U, (A290-A297) Provides in relevant part:
--- 3. Applicability: This instruction applies to
all personnel of the Armed Forces, including
civilians, regardless of assignment or
attachment. 4. Policy: a. The Armed Forces of
the United States will comply with the law of
16
war during all armed conflicts, however such
conflicts are characterized, and, unless
otherwise directed by competent authorities, the
US Armed Forces will comply with the
principles and spirii of the law of war during all
other operations..... [it is the policy of the
Department of Defense to ensure that: ....(1)
The law of war obligations of the US
Government are observed and enforced by the
US Armed Forces. (2) An effective program
designed to prevent violations of the law of war
is implemented by the US Armed Forces. (3) All
reportable incidents committed by or against
members of (or persons serving with or
accompanying) the US Armed Forces are
promptly reported, thoroughly investigated
(Emphasis added) and, where appropriate,
remedied by corrective action.... b. At all
appropriate levels of command and during all
stages of operational planning and execution of
joint and combined operations, legal .advisers
will provide advice concerning law of war
compliance. Advice on law of war compliance
will address not only legal constraints on
operations but also legal rights to employ force.
Petitioner respectfully submits it is painful to contemplate
the incongruity between the non-investigation of
Petitioner’s allegations and the non release of information
Petitioner required to save his career, ABCMR at APP J
(A115-A138) and the thoroughness of the investigation
(and the release of information) regarding Abu Ghraib to
the general public (with no personal Due Process direct
need to know). The contemptuous dismissal, lawlessness,
lack of transparency and overreaching exhibited by DoD
and the Federal Judiciary to date presaged Abu Ghraib. Abu
Ghraib, though a human tragedy, and a humiliating disgrace
for the U.S., is far less serious than Petitioner's report of
17
- wrongs to the IG, SJA and CG regarding the failure to LD.
process, protect, and the forced refoulement of tens of
thousands of refugees, including former allies, ‘o certain
death, See Abu Ghraib Investigation (AR 15-6
investigation into the 800 MP Brigade last consulted 12
May 2005) Hitp://www.globalsecunity.org/
Iti. Disregard of ABCMR Regulatory Requirements
When Petitioner appealed the reprisal he suffered, the
ABCMR perpetuated the Army Special Review Board's
(SRB) took further reprisal against Petitioner rather than
correcting the Officer Efficiency Report (OER) vindictively
labelling him as excessively zealous (untrustworthy). The
SRB’s “corrective” actions were arbitrary, capricious and
an abuse of discretion - making Petitioner’s military records
worse. See SRB at APP H, (A107-A114). Moreover, the
agency itself disregarded the “corrections” that the SRB
ordered. See Petitioner’s “corrected” military records at
APP BB (A385-390). Petitioner's military records (more
legible full sized copies in record below if Petition granted)
have multiple trashed (filthy largely illegible) copies of his
OER stamped VOID on every page (and not other same
pages) leaving a reviewer wondering which version is
accurate and leaving no unvoided se to his OER (as
opposed to a modified portion of the 2" page as directed by
the SRB at APP H, (A112-Al114). Petitioner’s records
were over-stamped and trashed in a_ vindictive,
unprofessional manner as to constitute constructive
termination. (Compare (if writ is granted and the entire
record reviewed) with Petitioner’s other Army records top
block, multiple Meritorious Service Medals, etc. and after
he left the Army and joined the Air Force (Appendix to
Petitioner's reply brief) which consistently refer to
Petitioner as outstanding, extremely brilliant and even “the
best Judge Advocate...”
Furthermore, the SRB decision at APP H, (A107-A114)
disregards that the OER omitted Petitioner’s correct jobs or
duties and fails to review for unjustness. As a result,
Petitioner's appeal to ABCMR, APP I, (A115-A138)
perpetuates SRB unfairness. Where ABCMR failed to
substantively review and to correct such unjustness or
unfaimess, the ABCMR failed to follow its own
regulations. See APP T (A?74-A278) attached Appendix;
Reg AR 15-185, Army Board for Correction of Military
Records, dtd 29 March 2000, para 1-8 The ABCMR
WILL: “a. Review all applications that are properly
before them to determine the existence of error or
injustice”. Rather than apply the unfair/unjust standard,
the ABCMR improperly required Petitioner to prove that
the bad efficiency report was “the sole basis” (emphasis
added) for his non-promotion. See ABCMR at APP J
(A139-A155,)
The ABCMR decision was arbitrary, capricious and an
abuse of discretion because Petitioner offered documentary
evidence that directly contradicted the summaries
(contrived unauthenticated “investigative” statements)
adopted by the ABCMR and used to justify their
action/inaction. See e.g. APP I (A115-A138) (para 21)
where Petitioner provides the ABCMR an offer of proof
regarding evidence (directly contrary to the contrived
hearsay in the highly informal “summary of witnesses
interviews”).
Petitioner's appeal of his adverse efficiency report to the
Army Special Review Board (SRB) assures Petitioner's
non-promotion with admittedly “punitive relief”. The SRB
acknowledged their punitive result when they found that
with the “relief” they provided as part of his military
records Petitioner stood no chance of promotion and
refused to allow him to be re considered for promotion. See
SRB at APP H, (A113). Similarly, the lower Federal
Courts have all refused to hear his case contrary to the
19
Congress intended such decisions to be the judicially
review able ~ See V below.
The ABCMR granted the Whistleblower Investigation and .
SRB actions a presumption of regularity even though
Petitioner’s “statement” was allegedly “misplaced”:
“Although a copy of telephonic interview between the
DAIG investigator and the Applicant is now
unavailable....”_ See ABCMR at APP J (A142,143). The
ABCMR’s failure to grant Petitioner a hearing while
proceeding on an inadequate, inconsistent, and summarized
statement is plainly erroneous. To deny Petitioner’s
repeated requests to participate where key evidence is
“missing” (or to even contact the IG Investigator to secure
same) is unconscionable. Such a compendium of
“omissions” constitutes a criminal conspiracy. See, APP O
(A176,7) Conspiracy to impede or injure officer, 18 USC
§ 372. Despite the ABCMR’s statement alleging loss of
Petitioner’s “summarized” (contrived) statement, same was
of record and part of the ABCMR appeal! (This will be
shown if petition is granted and a joint appendix
assembled).
When clear-cut duty imposed by regulations are not
performed, as shown above, Federal Courts will review
Military decisions. See e.g. Schlesinger v. Ballard, 419 U.S.
498, 505-10 (1975) (reviewing equal protection challenge
of a discharge statute). The irreconcilable and incomplete
nature of the evidence made denial of an adjudicative
hearing by the ABCMR Arbitrary, abusive and an abuse of
discretion; a flagrant failure to follow its own regulations.
See Reg AR 15-185, Army Board for Correction of
Military Records. dtd 29 March 200, para 1-8 The
ABCMR WILL: ‘“c. Recommend a hearing when
appropriate in the interest of justice.” (A276).
The ABCMR further abandoned its obligation to
independently review records for correctness and injustice
by describing their standard of review as one where they [
.. MUST PRESUME (emphasis added) ....records... not
strong enough to merit .. .promotion see ABCMR at APP J,
(A155). The ABCMR’s duties are to-review for unfairness
and correct injustice. See ABCMR Reg at APP T, (A274-
A278)
As part of this process, the ABCMR may start with a
presumption of regularity. This presumption is dispelled,
however, where the testimony of the witness and
complainant is absent from the record and where the
Petitioner has specifically contested the truth of
unauthenticated, facially inconsistent statements.
Additional matter rebutting any presumption of regularity
include: 1) An SRB decision which fails to consider the
substance (fairness and injustice)’ of that appeal; 2)
considers only a portion of procedural errors; 3) fashions
undisclosed admittedly punitive relief; 4) which is not
previously disclosed or discussed with the Petitioner; 5) at a
proceeding in which he is not allowed to appear and offer
additional evidence; 6) and Petitioner’s records are not even
corrected as directed by the agency. APP BB, (A385-
A390).
Given the number of names and statements redacted and
withheld the ABCMR process could not have been fair.
See, Investigation at APP F, (A88, A89). It appears even
the CG's testimony was “summarized” (contrived).
Petitioner is unaware if the ABCMR saw this statement or
in which form it was reviewed. Petitioner speculates that
the ABCMR was somehow able to review an
“unsummarized” version of the investigation because his
case was delayed for years as the ABCMR attempted to
obtain a copy of Petitioner’s investigation. See,
Correspondence at APP Z, (A332) (indicating ABCMR
still had not received Petitioner’s records to begin their
review in mid Oct 1995). Without discovery, Petitioner is
unable to know the “legal” process he was (not) afforded.
21
[V. 10 USC 1034 protects Military whistle blowers
even if merely “preparing” to make protected
disclosures. In its review of the Inspector General Whistle
Blower reprisal investigation, the ABCMR acknowledges
that 10 USC 1034 supposedly protects Military whistle
blowers “preparing” protected disclosures. See, Appeal to
ABCMR at APP I, (A115-A138). Yet, the Investigating
officer denied (and the ABCMR approved) denial of the
Petitioner Whistle Blower protection when his own
findings validated Petitioner was replaced after stating he
was “prepared” to blow the whistle on the Commander, 2
AD, responsible, under non-delegable theory of command
responsibility Application of Yamishita, 327 U.S. 1 (1946),
for knowing about war crimes within his command. See,
Whistle at APP E, (A64-A81).
In his complaint and request for Whistleblower protection
APP E, (A64-A81) the Petitioner concedes that he informed
the CG of Grave Breach of the Geneva Convention and
informed his Judge Advocate superior, who took reprisal,
immediately after Petitioner's advice to CG 2AD.
Petitioner’s original complaint sets forth his belief that his
threats or preparations to testify or report wrongs were
successful because his suggestions were adopted and
20,000 refugees were processed and returned back to
Saudia Arabia from Iraq, making their refugee status
verifiable and extending international protections
unavailable to mere “internally displaced” (traitors).
The ABCMR approved the whistle blower Investigator’s
denial of Whistle Blower protection by indulging the
pretext that the SJA VII Corps, (officer taking reprisal) who
fired Petitioner the next day, and later terminated (in great
detail) his career for over zealousness, didn’t know about
Petitioner’s communications with the IG 2 AD. Even if he
didn’t know of Petitioner’s reports to the IG, Petitioner’s
reports of war crimes to his superior (the officer taking
reprisal), and the follow on repression of breaches using
threats of preparing to testify to the CG 2AD, are
ABSOLUTELY sufficient to constitute both protected
disclosures and “preparing” to make a protected disclosure
invoking whistle blower protection. At the time the
ABCMR reviewed Petitioner's case, Whistle Blower
Protection was expanded far beyond the narrow definition:
of protected communication applied by the Investigating
officer. See APP J, (A139-A155). As a function of
correcting unfairness (injustice) the ABCMR should have
liberally construed this remedial legislation as
Congressionally strengthened due to DoD’s past improper
failure to implement the obvious Congressional intent
behind “preparing” in the first place. At the time of
ABCMR review, The Statute provided:
No person may take (or threaten to take) an
unfavorable personnel action, or withhold (or
threaten to withhold) a favorable personnel
action, as a reprisal against a member of the
armed forces for making or preparing -
(A) a communication to a Member of
Congress or an Inspector General that (under
subsection (a)) may not be restricted; or
(B) a communication that is described in
subsection (c)(2) and that is made (or prepared
to be made) to -
(ij) a Member of Congress;
(ij) am Inspector General (as defined in
subsection (i)) or any other Inspector General
appointed under the Inspector General Act of
1978;
(iij)ja member of a Department of Defense audit,
inspection, investigation, or law enforcement
organization; or
(iv) any other person or organization (including
any person or organization in the chain of
mand
command) designated pursuant to regulations
or other established administrative procedures
23
(emphasis added) See
10 USC 1034 at A161-176
Even if Petitioner’s communication that superiors were not
in compliance with the GC did not meet “preparing to
contact Congress” definition, the ABCMR abused its
discretion when it failed to accord relief because the statute
clearly protects disclosures to IG who reports to the
Commanding General Petitioner went to when his
complaints to the IG failed to repress the GC violations.
Petitioner has not seen even a contrived “summary” of any
Statement given by his superior. However, it is clear that
the superior officer who took reprisal knew of Petitioner's
legal advice to the CG 2AD. Petitioner had earlier told his
superior he was going to do this (counsel compliance to his
CG 2AD) and his superior made it clear that he did not
believe petitioner should do so. In fact, after Petitioner
called his superior JA and told him he had done so.
Petitioner was immediately “relieved” (fired as SJA ? AD).
The protected communication was characterized, not as
legal advice but as excessive zeal and resulted in
Petitioner’s termination through a virtual cavalcade of
adverse personnel actions, including Petitioner's negative
OER, the appeal of which led to further reprisal.
Petitioner’s Superior who took reprisal, had opined that the
Geneva Conventions, APP Q, (A179-A256) did not apply.
His confused (albeit career enhancing) legal opinion
regarding the Geneva Conventions was corroborated in the
Statement of the SJA of 2AD Col Chapman, another of his
subordinates. ABCMR at APP J, (A93). Petitioner
requests the court rule, that as a matter of law, it is unjust
and unfair, that the ABCMR failed to “correct”, military
records reflecting unfavorably upon a mere, Captain,
legally, ethically and morally required to truthfully counsel
his Commanding General as to his painful preparations to
testify truthfully regarding his actions/inactions in order to
repress grave breeches of the Geneva‘Conventions. APP Q,
(A179-A2S6). Even where, as here the erroneous legal
opinions he was forced to disagree with, were those of his
superior SJA or the National Command Authority (and
legal advisors thereto).
Vv. The ABCMR disregarded the plain statutory
language in 10 USC 1034 which extends protection to
those “preparing” to contact’ Congress: Congress
extended Whistle Blower Protection, 10 USC 1034, to
those “preparing” to contact Congress. Neither 10
U.S.C.A. § 1034, nor the DoD directive, DOD DIR. 7050.6
defines “preparing”. § The floor debate over the intent
behind the “preparing to make” in the Byrnes Amendment
is instructive. The amendment was “to permit any man. . .
to sit down and take pencil and paper and write to his
Congressman or Senator.” 97 CONG. REC. 3775, 3776
(1951). The ABCMR and judicial failure to apply
“prepares to make” analysis to Petitioner’s facts is
reversible error. Congressional intent was to protect one
“known” to be preparing to communicate with his or her
Congressperson.
The whistle blower investigating officer’s report States:
Major Talbot 2AD IG stated he was aware through second
or third-hand information that Captain Kerian and the
Commanding General, 2nd Armored Division (Forward)
had words about the Geneva Convention and that Captain
Kerian had told the Commanding General that he would go
to jail unless he followed Captain Kerian’s advice. APP F
(A84).
Actually, the Petitioner merely told the CG 2AD that he
was prepared to testify truthfully regarding his, the on-sight
commander’s legal responsibility to assure Geneva
Convention compliance. Petitioner said nothing of criminal
laws or jail. Petitioner's “preparations” to go to Congress
or an IG, are therefore a corroborated matter of record and
25
the failure by administrative and Judicial fora to date to
consider the possibility that Plaintiff is entitled to Whistle
Blower protection where he was caught “preparing” to
complain to Congress about breaches of the Geneva
Convention, is reversible error. Petitioner not only
informed his Commanding General that he was prepared to
testify that the CG was personally responsible for deaths of
protected persons, he informed his Judge Advocate superior
(officer taking reprisal) that he had done so, and was
immediately relieved. Petitioner fell squarely within the
Congressionally defined category of persons entitled to
whistle blower protection as one “preparing” to contact
Congress. 10 USC 1034, APP N (A161-A177). Petitioner,
though fired as SJA 2AD the next day, was gratified the
refugees lives were protected by being IDd and (many but
not all) moved from Iraq back into Saudia Arabia (some
were flown in from other holding areas/refugee camps in
Iraq).
VI. Contrary to the District Courts holdings, 10 U.S.
C.. 36 Sec. 628 (g) specifically provides for judicial
review of the military service’s refusal to refer a
“corrected” Officer Efficiency report to a Special |
Selection Board for reconsideration. 10 U.S. C. 36 Sec.
628 (g) provides:
A court of the United States may review a
determination by the Secretary of a military
department under subsection (a)(1) or (b)(1) not
to convene a special selection board in the case
of any person. In any such case, the court may
set aside the Secretary's determination only if
the court finds the determination to be - (i)
arbitrary or capricious; (ii) not based on
substantial evidence; (iii) a result of material
error of fact or material administrative error;
or (iv) otherwise contrary to law. Id at (1) (A)
26
The SRB failed to review Petitioner’s case for unjustness and
unfairness or allow reconsideration by a special selection
board of Petitioner’s records. The agency did not follow its
own rulings and made Petitioner’s records even worse than
“corrected”. APP H (A107-A114). Further, where the
EDNY/2d Circuit found Petitioner’s complaint to be a non-
reviewable military matter, the trial court also disregarded 10
US. C. 36 Sec. 628(i) which provides :
Nothing in this section limits--
(1) the jurisdiction of any court of the United States under
any provision of law to determine the validity of any law,
regulation, or policy relating to selection boards; or
(2) the authority of the Secretary of a military department
to correct a military record under section 1552 of this title.
POINt Il: Where di rsued
own lati where a ba
me eng apes court comme reverie err
discharge was barred by the statute of limitations.
The EDNY and 2d Circuit decisions are inconsistent with
respect to the Statute of Limitations. The EDNY found that
Petitioner’s case was not time barred. APP A (A1-A44) in
light of Blassingame v. Secretary of Navy 866 F.2d 556 (2d
Cir. N.Y. 1989). The second opinion, inexplicably, dismissed
all Plaintiff's causes of action. APP B, (A45-A59). The
Second Circuit affirmed: “essentially for the reasons stated in
its Orders of October 1, 2001 and January 22, 2002,”
Petitioner relied upon Blassingame v. Secretary of Navy,
866 F.2d 556 (2d Cir. N.Y. 1989) for the proposition that
the Military and their agents could not violate their own
military regulations (much Jess act in bad faith as in the
instant case) and assert the statute of limitations. Because
27
Blassingame is still the law in the 2d Circuit, the District
Court’s assertion of a time bar is reversible error.
Petitioner urges the Supreme Court adopt the admittedly
minority rule of law: i.e., that the statute of limitation
begins to mn only after proper exhaustion of administrative
remedies through military corrections boards, to resolve the
current Conflicts between the Circuits on this issue.
The statute of limitations remain equitably tolled because,
war crimes were never investigated or if investigated,
because same was wrongfully denied Petitioner despite
repeated written requests to DoD agencies and officers, to
the Secretary of Defense. APP Z. (A326-A343). If such a
deprivation comports with Due Process I(it does not) same
was at least unjust and correction appropriately mandated.
The Supreme Court has made clear that the Statute of
limitations is a shield of equity and subject to waiver,
estoppel, and equitable tolling. For instance in analyzing a
late EEOC filing and finding same not jurisdictional the
court reviewed the structure of Title VII, the congressional
policy underlying it, and the reasoning of its earlier cases
and found these considerations mandated rejection of a
Statute of limitations defense. See, Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 393 (1982).
Such tolling issues are resolved by analysis as to whether or
not an equitable exception was generally-recognized at
common jaw at the time of the statute’s enactment and
whether the equitable exception is incorporated, or
foreclosed, by the language of the statute or other
indications of legislative intent. With respect to Military
Correction Board APP T (A278-A289), Congress APP N
(A161-A177) the regulation, as well as the judiciary.
F ir. (court can
order correction board to decide whether to waive statute of
limitations) have all stated the waiver is appropriate in the
28
\
interest of justice the law is clearly in favor of waiving the
statute in the interest of substantial justice.
if the events surrounding the murder of the Iraqi’s who
objected to being refouled and weaned into Iraq had been
investigated and disclosed as required by law (GC TV, APP Q
(A179-A264), and Military Regulations, APP R (A256-
A264)), a plethora of evidence would have shown Petitioner’s
disclosures to be mandated by the GC, protected by binding
law; and not career-terminal overzealousness. The post
cease-fire occupational events at issue involved the actions of
multiple nations of the coalition who together, under cover of
United Nations mandate, worked together to frustrate the
Geneva Conventions. This is apparently not unusual. See
Article: United Nations and The Geneva Conventions, by Roy
Gutman. APP N, (A290-A297) (explaining that U.N
initiatives frequently disregard Geneva Convention
requirements).
Thus, the Petitioner’s request for equitable relief at para 65
(APP AA, A383) of his amended complaint, (asking for the
protections of an International Criminal Court and that the
Supreme Court enjoin future U.S. involvement in United
Nations based coalitions and mandates outside the strictures
of the Geneva Convention) are necessary to vindicate
Constitutionally mandated respect for treaties and customary
International Law. The GC affords United States Citizens
protection from reprisal and “terror” (indiscriminate war on
innocent civilians) an indiscriminate slaughter; it provides
military service members’ protection from torture and other
forms of reprisal against American prisoners of war (and
contractors).
It is long established in this court’s jurisprudence that the
Statute of limitations is an equitable concept. See Bailey v.
Glover, 88 U.S. (21 Wall.) 342, 347 (1874). See also 2 H.
G. Wood, Limitation of Actions 275, at 1363 (4th ed. 1916)
(stating that it is a rule of equity in United States courts
"that where relief is asked on the ground of actual fraud,
especially if the fraud has been concealed, that time will not
run in favor of the defendant until the discovery of the
fraud or until, with reasonable diligence, it might have been
discovered”).
In the instant case Petitioner, despite numerous FOJA and
PA requests, and specific requests to the ABCMR and
Secretary of Defense APP Z, (A326A-A384) has not been
allowed uncensored versions of his own whistle blower
reprisal investigation or any anciliary investigations into the
facts at issue and, remains unaware of what evidence was
used against him, and any investigations conducted. APP Z,
weengtiiniing See Holmberg v. Armbrecht, 327 U.S. 392,
97 (1946)). In Holmberg, the Court held that equitable
aie applies where plaintiff has been injured by fraud and
remains ignorant of the fraud, "though there be no special
circumstances or efforts on the part of the party committing
the fraud to conceal it from the knowledge of the other
party.” Holmberg, __ 327 ! ae 397,
CONCLUSION: This Petition for a Writ of Certiorari
should be GRANTED.
DATED: June 25, 2005
Ae oaeh
Paul Kerian, Petitioner, Pro Se
195 E. Argyle St.,
Valley Stream, NY 11580
(516) 792-6500
CONTENTS OF APPENDIX
A.
Revised Memorandum aad Order, EDNY, DJ Trager
dtd October 16, 2001................ceeceeeeee0ee AL-A44
Revised Memorandum and Order, EDNY, DJ Trager
Ee SEED Bl, dee ecocccecccceccccsvcesscsecoon A45-AS9
2d Circuit Summary Affirmation of EDNY, December
_ 2d Circuit denial of Request for Reconsideration with
Suggested en banc, March 31, 2005.............. A63-64
Petitioners Request for Whistle Blower
Protection, dtd November 20, 1991 ............ A681
DoD/DA Whistle Blower Reprisal Investigation
(undated) & December 11,1992 letter from
Appeal of Officer Efficiency Report (OER)
to Army Special Review Board (SRB).......A100-A106
Decision on Adverse OER by SRB.............A107-114
Petitioner's Appeal of denial of whistle Blower
protection and SRB action to Army Board for.
Correction of Military Records (ABCMR)..A115-A138
31
-_
Denial of whistle Blower protection and Correction
of Military Records by ABCMR..............A139-A155
Final Denial of Relief by Army and
Appeal Rights Advisement.............-..... A155-A158
pg tl | ee A158
Correction of Military Records,
_. 4) ery See A159-161
Military Whistle Blower Protection,
. | Se ee A161-A177
Conspiracy to impede or injure officer,
BD Uae 1 BOE cevecicicccocscceneouseccsidonmen A176-A177
Conspiracy to interfere with civil rights,
ke. 0 i eetcssiccccsicnntativadntnnsanacii A177-Al178
Geneva Convention (TV) relative to the
Protection of Civilian Persons in Times
of War, Geneva, 12 August 1949............. A179-A256
DoD Directive 5100.77, DoD Law of
War Program, December 9, 1998............. A256-A265
DoD Directive 7056.6, Military Whistle
blower Protection, November 20, 1989........266-A275
Army Regulation 15-185, Army Board for Correction
of Military Records, Feb. 29, 2000...... .... A275-A279
32
BB.
Chairman of the Joint Chiefs of Staff Instruction
(CJCST) IMPLEMENTATION OF THE DOD LAW
OF WAR PROGRAM 5810.01, 25 Maich
Dee Dowicovtssncecsssecsecnvebiicresuedeeomnecbieee A279-A291
Article: United Nations and The Geneva Conventions,
BaP RR GER ccncpentccvcyeovcctecceqcosons A292-A299
Administrative Procedures Act, 5 USCS § 706....A300
Special selection boards, 10 USCS § 628...A301-A306
Petitioner’s Class Action Complaint,
GRD BOO ee Picdcivcesdentcintceséconsnteceue A307-A327
Miscellaneous correspondence evidencing
refusal to investigate, denial of administrative
Be ccnasbecccacannconmnenssgas topdedquanes A328-A344
Petitioner’s Amended Complaint............. A345-A386
Petitioner/Whistle blower Officer Efficiency
Reports before (clean legible) and after winning
“correction” (dark voided) using Army Whistle
Blower protection and executive branch
administrative “justice” process............... A387-A392
33
APPENDIX A
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Civil Action No. CV 00-745 (DGT)
MEMORANDUM AND
REVISED ORDER
PAUL D. KERIAN
against —
LOUIS CALDERA, Secretary of the Army,
WILLAIM S. COHEN, Secretary of Defense,
JANET RENO, United States Attorney
General, and TODD D. WEST, Secretary of
Veterans Affairs,
Defendants.
TRAGER, District Judge:
Plaintiff Paul Kerian, a iawyer, brings this pro se action
asserting a variety of claims against the former Secretary of
the Army, Secretary of Veterans Affairs and U.S. Attorney
General. Kerian alleges that the Secretaries of the Army and
Defense, by and through their respective departments,
Department of the Army (“ DA”) and Department of Defense
(“DOD”), forced Kerian to leave active military service.
Kerian appears to allege that his discharge violated the Due
Process and Equal Protection guarantees of the Fifth
Amendment as well as the Whistleblower Protection Act,
Freedom of Information Act, Privacy Act, and
Administrative Procedures Act (“APA”).
Against the Secretary of Veterans Affairs, Kerian alleges that
his agency, the Veterans Administration (“VA”) has
discriminated against Kerian based upon his status
as a disabled person in violation of the Due Process
Al
and Equal Protection guarantees of the Fifth Amendment,
Rehabilitation Act and Americans with Disabilities Act. In
addition, Kernan claims that the Department of Justice
(“DOJ”) is preventing him from practicing law in violation
of the Due Process and Equal Protection guarantees of the
Fifth Amendment. Defendants now move to dismiss all of
Kerian’s claims.
Background
Kerian served as an Army Judge Advocate General
(“JAG”) during a period of time which included Operations
Desert Storm of the Persian Gulf War. Lekakis Decl., Lxh.
A (Kerian’s Amended Compliant) at 2a, 11, 15. Kerian
claims that during the Desert Storm Operation he was forced
to participate in war crimes perpetrated by the Army against
the Iraqi civilian refugees and prisoners of war. Id. at FJ 2a,
8-11. He reported these “crimes” to his superior Judge
Advocate and later to the Inspector General (“IG”) and
commanding General. Id. at {7 14, 34.
In 1991 Kerian received an unfavorable Officer
Efficiency Report (“OER”) from his superior officer and
was later denied an end-of-tour award and promotion to
Major. Id. at 4 15 -16. After denial of the promotion,
Kerian chose to leave active military service and avail
himself to the Army's Voluntary Separation Incentive, a
separation incentive payment for officers who wish to leave
active military service. Id. at | 16. Pursuant to
participation in this program, Kerian receives an annual
payment in the amount of $11,233.89 for 22 years. Lekakis
Decl., Exh. Bat ll, 293.
However, Kerian believed that he was denied his
promotion and other accolades in retaliation for his
conversations with the 1G, and in November 1991 he filed a
whistle blower protection petition along with a
request for an investigation of the alleged war
A2
crimes with the DA and the DOD. Id. at 917. Lekakis
Decl., Exh. B at 102-13. Kerian’s request was denied, and,
in a memorandum dated December 16, 1992, Kerian
appealed the denial of whistle blower protection top the
Army Board for the Correction of Military Records
(“ABCMR”) and petitioned for the correction of his military
record by removal of the negative portion of the OER at
issue. Lekakis Decl., Exh. B at 86-100. claiming that
Kerian had not yet appealed the OER and therefore not
exhausted all administrative remedies available, the Board
responded in a letter dated February 19, 1993 that it would
not yet consider his application. Id, at 72-75. The ABMCR
also affirmed the decision of the DA and DOD regarding his
request for whistle blower protection. Id.
In a memorandum dated November 30, 1993, Kerian
administratively appealed the OER in question. Id. at 62-
64. On August 23, 1994, a Case Summary was prepared by
the Officer Speciai Review Board (“OSRB”) which
concluded that the senior rater who had given Kerian an
apparently less favorable review had not served in that
capacity for the required minimum number of days to be able
to rate Kerian. The OSRB decided that the whole portion of
the senior rater’s comments would be removed and replaced
with the statement: “I am unable to evaluate the rated officer
because 1 have not been his senior rater for the required
number of days.” Id. at 12-13, 29-32, 58. The OSRB
further determined that it was not convinced that Kerian
would have been promoted had the change been made before
Kerian was considered for promotion. Id. at 33, 58.
Kerian continued to believe, however, that the initial
decision not to promote him to Major and the decision of the
OSRB constituted retaliation for his alleged prior whistle
blower activities, and on September 12, 1994 he filed a claim
with the IG requesting that an investigation be undertaken to
determine the merits of his compliant. Id. at 57.
The IG requested that he provide some factual basis
A3
for his allegation that the ORSB board members reprised
against him because they would not conduct investigation
based purely on Kerian’s speculation. Id, at 22-24. Kerian
failed to provide this additional information, and in letter
dated March 7, 1995, the IG informed him his case had been
closed. Id. at 21.:
Kerian subsequently re-petitioned the ABCMR for the
correction of his military records and re-appealed the denial
of whistle blower protection. Lekakis Decl., Exh. A at 4 22,
Exh. B at 57. included in this re-appeal to the ABCMR was
Kerian’s request for administrative review of the alleged
defective DOD/DA and SIB process and procedure and the
“star chamber” nature of the proceedings. Lekakis Decl.,
Exh. A at 9 22. The ABCMR denied relief. Id. at 4 24,
Lekakis Decl., Exh. B at 1-2. Kerian did not attempt to
present any further evidence.
As a result of the time Kerian spent in active military
service, he hus a service connected skin condition and had
been granted by defendant Department of Veteran’s Affairs ~
(VA) a 10% disability and the right to receive disability
compensation in the amount of approximately $90.00 per
month. Lekakis Decl., Exh. A at 4.55, Exh. C at 1-2. Kerian
was given the option to to receive military pay for the
performance of active or inactive duty in lieu of VA benefits
while on reserve duty, and he elected to co so. Lekakis
Decl., Exh. D at I.
After Kerian’s discharge from the Army, he obtained
employment with the United States Department of Justice,
Immigration and Naturalization Service (“INS”). See
Lekakis Decl.,{) Exh. A at 4% 62. As part of his
responsibilities, Kerian has adjudicated and later supervised
others adjudicating application for political asylum. Id. As
an employee of the Department of Justice, Kerian is
prohibited by DOJ regulations from engaging in any
outside practice of law. See 5 C.F.R. § 3801.106.
A4
Discussion
(1) Statue of limitations.
Kerian’s first claim for relief challenges the
circumstances which led to his participation in the Army's
Voluntary Separation Incentive claiming. It appears that he
is claiming that he was constructively discharged from the
Army. Defendants he moved to dismiss this claim on the
ground that it is barred by the statute of limitations. It states,
in relevant part:
every civil action commenced against theUnited States shall
be barred unless the complaint is filed within six years after
the right of action first accrues. The action of any person
under legal disability or beyond the seas at the time the claim
accrues may be commenced within three years after the
disability ceases.
28 U.S.C.A. § 2401 (West Supp. 2001). It is well settled in
the Second Circuit that the statue of limitations on a
serviceman’s challenge to the terms underlying his discharge
from military service begins to run at the time of the
discharge. See Boruski v. Unites States Gov't, 493 F. 2d
301, 304n.5 (2d Cir. 1974); Long y. United States, 616 F.
Supp. 1280, 1284 (E.D.N.Y. 1985). Kerian was discharged
from the Army on February 25, 1993, see Lekakis Decl.,
Exh. B at 6, 293 (Certificate of Release or Discharge from
Active Duty at § 12b). | The period of time in which Kerian
could have brought this cause of action therefore expired on
Feb. 25, 1999. 2 Kerian, however, did not file his
complaint until Feb. 4, 2000, nearly one year after the statue
of limitations expired. See Lekakis Decl., Exh. A at 35.
Kerian alleges that the court should toll the statue of
limitations for equitable reasons. Id. at 4 4. The Second
Circuit has recognized that there may be
“extraordinary circumstances” in which a part may
AS
not be able to file on a timely basis and equitable tolling
there allows “courts to
‘Although on a motion to dismiss a district court must
limit itself to a consideration of facts alleged on the face of
_ the complaint and any documents attached as exhibits or
incorporated by reference, sce Goldman v, Belden, 754 F.
2d 1059, 1065-66 (2d Cir. 1985), the Second Circuit has held
that a court may consider any documents upon which
plaintiff relies in his complaint and which plaintiff had in his
possession and relied upon in bringing suit. See Cortec
Industries, Inc. v. Sum Holding L.P., 949 F. 2d 42, 48
(1991); Yak v. Bank Brussels Lambert, BBL, No. 00-7821,
2001 WL 589446, at *3 (2d Cir. June 1, 2001) (extending
the ruling of Cortec beyond the securities fraud arena). In
the present case plaintiff relies on his military personnel file
and the Army’s Administrative Record on the plaintiff.
Those documents are therefore integral to the complaint and
will be considered in deciding this motion. See Yak, 2001
WL 589446, at *2.
? 28 U.S.C. § 2401 does provide an exception to the
six year statue of limitations rule for persons who are under
legal disability or beyond the seas at the time the claim
accrues. Kerian, however, does not claim to fall into either
one of these categories.
extend a statue of limitations on case-by-case basis to
prevent inequity.” Warren v. Garvin, 219 F. 3d 111, 113
(2d. Cir. 2000); see also lavorski _v. United States
Immigration and Naturalization Service, 232 F. 3d 124, 129
(2d. Cir. 2000). These “extraordinary circumstances” have
generally been limited to situations “where fraud or
concealment of the existence of a claim prevents an
individual from timely filing” and only to the point where
“the fraud or concealment is, or should have been,
discovered by reasonable person in the situation”.
lavorski, 232 F. 3d at 134.
A6
In the present case, Kerian does not allege any “fraud
or concealment” that prevented him form challenging his
discharge from active service in the Army in a timely
manner. See Id. at 134 (finding equitable tolling not
applicable where there was no fraud and concealment that
would preclude plaintiff from filing claim within the statue
of limitations). Additionally, Kerian does not claim that
there were any extraordinary or unusual circumstances which
caused him to file after six-year period had expired. See
Mamaradlo v. United States, No. 00-2474, 2001 WL 388069,
AT *1 (2D Cir. April 16, 2001) (denying request for
equitable tolling even though there were unusual
circumstances because they did not rise to the level of
“extraordinary” so as to prevent Petitioner from ste
petition).
Rather, Kerian alleges that “[g] rave [b] reeches of the
Geneva Conventions, and various other exceptions (such as
the minority of ‘illegitimate’ children)” should toll the statue
of limitations. Lekakis Decl., Exh. A at 94. With respect to
the grave breeches of the Geneva Conventions during the
Persian Gulf War, even if it was assumed that this rose to the
level of being an extraordinary or unusual circumstance
prevented him from filing his suit on a time by
“demostrat[ing} a casual relationship between the
extraordinary circumstances on which the claim for equitable
tolling rests and the lateness of his filing.”
Hizbullahankhamon_v. Walker, No. 00-2493. 2001 WL
672747, at *7 (2d. Cir. June 15, 2001) (quoting Valverde v.
Stinson, 224 F. 3d 129, 134 (2d Cir. 2000)). Kerian does not
allege that this circumstance “prevented” him from filing on
time and has therefore failed to demonstrate that but for this
extraordinary circumstance he would have filed within the
statue of limitations. See ki. Regarding the minority statue
of “illegitimate” children, although Kerian attempts to
articulate some claims on behalf of illegitimate
children of military personnel, defendants do not
A7
a
move to dismiss those claims on statue of limitations
grounds. Therefore, whether the statue should be tolled due
to the infancy of the children is irrelevant.
Kerian’s final argument is that equitable tolling of the
statue of limitations is mandated because he has not yet been
given the relief that he seeks. See Pl.’s Resp. Gov't Mot.
Dismiss (“PI.’s Resp.”) at 2. If this were a sufficient basis
for equitable tolling, every litigant would be entitled to
equitable relief. Clearly, this is not the case.
Even if Kerian had alleged that “fraud or concealment”
or extraordinary circumstances prevented him from filing on
time, Kerian would still not able to make an argument for
equitable tolling because he does not satisfy the requirement
that a party seeking equitable tolling must have acted with
reasonable diligence throughout the period he seeks to toll.
See Warren, 219 F. 3d at 113; lavorski, 232 F. 3d at 1134
(denying plaintiff's request on the basis of equitable tolling
because and “it is a common maxim that equity is not
intended for those who sleep on their “). The ABCMR
informed Kerian of their latest decision not to reconsider his
military record in February 1996. See Lekakis Decl., Exh. B
at 1-2. He therefore had three years in which to file his claim
with this court before the expiration of the statue limitations,
yet he did not file his claim until a year after it had expired.
Because Kerian has not acted with reasonable diligence
during the period he seeks to toll, he cannot now claim
equitable tolling of the statue of limitations. Warren, 219 F.
3d at 113-14.
Kerian also argues that the Second Circuit’s decision in
Blassingame vy. Navy, 811 F. 2d 65, 68 (2d Cir. 1987),
should govern on which date the statue of limitations begins
to run after exhaustion of administrative appeals rather than
the date of discharge. See PI's Resp. at 2. In Blassingame,
the plaintiff brought suit in 1984 in federal district
court after the Naval Discharge Review Board
A8
(“Review Board”) and the Board for Correction of Naval
Records (“Correction Board”) refused to honorable. Plaintiff
sought judicial review of the decisions of the Review Board
and Correction Board which he claimed were “arbitrarily and
capriciously” made. Id. The district court determined that
the plaintiff was barred from bringing suit because of the six-
year statue of limitations and granted the government's
motion for summary judgment. Id.
On appeal the Second Circuit noted the discrepancy that
arose between 28 U.S.C § 2401 (a), 10 U.S.C. § 1553 (a)
and 10 U.S.C. § 1552 (b) if the six-year statue of limitations
was always held to accrue at the time of discharge. See
Blassingame, $11 F.2d at 67. Plaintiff had fifteen years from
the date of his discharge to petition the Review Board
pursuant to 10 U.S.C. § 1553 (a) and an additional three
years to appeal the Review Board's decision to the
Correction Board pursuant to 10 U.S.C. § 1552 (b).
Plaintiff was also required to exhaust his administrative
remedies before he could petition the Corrections Board. See
32 C.F.R. §723.3 (c). Accordingly, if the statue of the
limitations ran from the time of discharge, plaintiff and
others similarly situated would be barred from judicial
revicw any time the Corrections Board rendered its decision
more than six years after the discharge date. Given
plaintiff's diligent pursuit of all administrative remedies, the
Court could find no reason, absent “clear and convincing
evidence,” that Congress intended to deny, in such obscure
manner, judicial review of Board decisions to plaintiff and
those similarly situated. See Bilassingame, 81! F.2d at 71.
The Court therefore held that right to obtain judicial review
of a Correction Board decision accrues at the time of the
decision. Id. By adopting this rule, the Court would afford
all veterans who petitioned the Corrections Board in a timely
manner the opportunity to seck judicial review of an adverse
decision. See id.
A9
\
Thus, under Blassingame, although the circumstances
surrounding Kerian’s participation in the Voluntary
Separation Incentive program and his subsequent discharge
are beyond review, judicial review may still available for the
ABCMR’s decision. Kerian was discharged from active
military service on Feb. 2, 1993. Lekakis Decl., Exh. B at 6,
293. Kerian petitioned the Officer Special Review Board on
November 30, 1993 and later appeal the Board’s decision to
the ABCMR on September 12, 1994. Id. at 62-64, 57.
Both of these actions were taken within the statue of
limitations. See 10 U.S.C. § 1553 (a), 1552 (b). Moreover,
Kerian filed his compliant on Feb. 4, 2000, less than six
years after the ABCMR decision. Kerian is therefore entitled
to judicial review of the ABCMR’s decision to deny his
request for correction of his military records since it is not
barred by the statute of limitations to the decision of the
ABCMR;; plaintiff cannot use Blassingame to circumvent the
statute of limitations for directly challenging the discharge
itself since the court’s review of a Correction Board decision
is distinct from its direct review of a veteran’ claim of
wrongful discharge. See id, at 72-73.
(2) Jurisdiction
Having established that this court is not barred from
reviewing the decision of the ABCMR because of the statute
of limitations, the court must next determine if there is
jurisdiction to hear Kerian’s claims. Kerian’s first and
second claims are against the DA and DOD, executive
agencies of the United States. The United States, as
sovereign, is generally immune from suit unless it
specifically consents to be sued and such consent is
unequivocally express. United States v. Mitchell, 445 US.
535, 538 (1980). Therefore, this court does not have
jurisdiction to review Kerian’s claims unless there is both a
grant of subject matter jurisdiction and an independent
wavier of sovereign immunity. See Ward v. Brown,
22 F. 3d 516, 519 (2d Cir. 1994). Kerian argues that
AlO
this court has jurisdiction pursuant to both the Administrative
Procedures Act (“APA”) and the Tucker Act. The Supreme
Court has determined that a service member may challenge a
Correction Board’s decision in federal trail courts under the
APA if he seeks something other than monetary relief. See
Clinton v. Goldsmith, 526 U.S. 52%, 539 (1999). On the
other hand, if monetary relief is requested in addition to the
equitable relief sought, the claim may be brought under the
Tucker Act or “Little Tucker Act”. See id. at 539-40.
A. Administrative Procedures Act
The APA authorizes district court review of an
agency decision when a person has suffered a legal wrong
because of agency action. 5 U.S.C.A § 702 (West Supp.
2001). The Second Circuit has long since determined,
however, that sovereign immunity is waived by the APA
only when the complaint seeks equitable relief. See Polanco
v. ‘ E Admini ion, 158 F.3d 647,
652 (2d Cir, 1998). In an action seeking equitable relief
from wrongful agency action, sovereign immunity is not
waived where (i) the action also seeks monetary relief; (ii)
there is an adequate remedy at law; or (iii) the action is
precluded from judicial review by statute or committed by
law agency discretion. See id. The types of relief that are
specifically barred by the APA include any “injunctive,
mandatory or declaratory relief against government officials
damages.” Presidential Gardens Assocs. V. United States,
175 F.3d 132. 143 (2d Cir. 1999) (quoting B.K. Instrument,
Inc. v. United States, 715 F.2d 713, 727 (2d Cir. 1983)).
Kerian’s claims include not only the equitable claims for
review of his military record and reinstatement to his former
position but also a request for back pay. See Lekakis Decl.,
Exh. A at 4 2j. Back pay, as a claim for money damages,
falls outside the scope of the APA so Kerian may rely on the
APA as a basis for jurisdiction only to the extent that
he secks declaratory and injunctive relief. Ward, 22
All
F.3d at 520. Therefore, this court does have the authority
‘ under the APA to review the agency decision of the ABCMR
though only equitable relief may be granted. See Clinton,
526 U.S. at 539. To determine if Kerian is entitled to recover
back pay, the court must determine if his claim can be
brought under the Tucker Act.
b. Tucker Act
It would seem that, because the statue of limitations has
passed on Kerian’s initial discharge claims, see supra, this
court does not have the authority to grant any of Kerian’s
request for monetary relief. However, this issue is not well
settled in the Second Circuit. The court in Blassingame only
contemplated the issue on monetary relief under the Tucker
Act and did not actually have make a determination because
the plaintiff had expressly relinquished any claim for
monetary relief. See Blassingame, 811 F.2d at 69.
Even if it were assumed that Kerian’s claim related to
the ABCMR decision could be reviews under the Tucker
Act, the plaintiff does not have a basis on which to establish
subject matter jurisdiction The Tucker Act grants, original
jurisdiction to the Claims Court to decide claims against the
Unite States founded upon either the Constitution, a federal
statue, or any regulation of an executive department. 28
U.S.C.A. § 1491 (a) (1, (West Supp. 2001). The “tittle”
Tucker Act grants concurrent jurisdiction to the district
courts 7 any of these same claims not exceeding $10,000 in
amount. 28 U.S.C.A. § 1346 (a) (2).
The Tucker Act provides a limited waiver of sovereign
immunity for servicemen and servicewomen alleging
wrongful discharge from military. See Janniers v. United
States Army, 34 F. Supp. 2d 850, 854 (E.D.N.Y. 1999).
Unlike the APA, the Tucker Act can, in appropriate military
back pay cases, “provide
PS OBES BER E EE EEE EEE EEE EEE EERE
Al2
> In his First Amended Complaint, Kerian asks for
monetary relief ion the form of back pay but does not specify
a dollar amount. If Kerian were to be awarded the full
amount of the back pay for which he claims to be entitled,
that amount will exceed the $10,000 limit. See Mem. Law
Supp. Def. Mot. Dismiss at 12-13. As the complaint stands
now, the government’s argument that this court does not
have jurisdiction over Kerian’s claim under the Tucker Act is
correct. His complaint would to be brought in the Court of
Claims pursuant to 28 U.S.C. § 1491. However, in his
Response to Government’s Motion to Dismiss, Kerian
alleges that $10,000 to ensure the jurisdiction of this court.
See Pl.’s Resp. at 4. There is no reason why this court
shouldn't allow Kerian the opportunity to amend his
complaint to demand no more than $10,000 which would
bring his action into the jurisdiction of the district court. See
Brewster _v. Secretary of the United States Army, 489 F.
Supp. 85, 88n.1 (E.D.N.Y. 1980).
an entire remedy,” including back pay, restoration to office
Or position, placement in appropriate duty or retirement
status, and correction of applicable records.” 28 U.S.C. §
1491 (a) (2), 1346 (a) (2); See Clinton v. Goldsmith, 526
U.S. 529, 539-40 (1999) (citing with approval Mitchell v.
United States, 930 F. 2d 893, 896 (Fed. Cir. 1991)). Thus,
Kerian can establish a wavier under the Tucker Act.
The issue of sovereign immunity and subject matter
jurisdiction are, nonetheless, wholly distinct and a showing
of a waiver immunity does not guarantee that the suit can
proceed — Pern of ap matter yore :
America, 175 F. 3d 132, 138 (2d Cir. "1999). A cout cual
dismiss an action “whenever it appears...that the court lacks
jurisdiction of the subject matter.” Id; see Merritt v. Shuttle
Inc., 187 F. 3d. 263, 268 (2d Cir. 1999) (declining to
reach the substance of an order from the lower court
Al3
“without first carrying out our ‘special obligation to satisfy
[ourselves] not only of four] own jurisdiction, but also that of
the lower courts in [the] cause under review,” (quoting Steel
Co. v. Citizens for a Better Environment, 523 U.S. 83, 95
(1998))).
The Tucker Act provides a waiver of sovereign
immunity to allow jurisdiction over all claims (1) founded on
a express or implied contract with the United States; (2) fro
a refund from a prior payment made to the government; or
(3) based on federal constitutional, statutory, or regulatory
law but is itself only a jurisdictional statute. See United
States v. Testan, 424 U.S. 392, 400 (1976). It “does not
create any substantive right enforceable against the United
States for money damages.” Id. at 398-99. Therefore, |
order for this court to have jurisdiction over Kerian’s
complaint, the Tucker Act requires that the plaintiff identify
an independent substantive right enforceable against the
United States for money damages. See Osborn v. United
States, 47 Fed. Cl. 224, 228 (2000).
When a contract with the United States is not involved,
to invoke jurisdiction under the Tucker Act, the plaintiff
must identify a constitutional provision, a statute, or a
regulation that provides a substantive right to money
damages. United States v. Tippett, 185 F. 3d 1250, 1254-55
(Fed. Cir. 1999). For claims founded on a statute or
regulation to be successful, the provisions relied upon “must
contain language which could fairly be interpreted as
mandating recovery of compensation from the government.”
Testan, 424 U.S. at 400. Kerian asserts that this court has
subject matter jurisdiction to hear this case pursuant to the
Military Whistleblower Protection Act, the Privacy Act, and
37 U.S.C. § 204.
1. Military Whistleblower Protection Act
Al4
Under the Military Whistleblower Protection Act, no
person may take unfavorable personnel action against a
member of the military because he has made a
communication with an Inspector General. 10 U.S.C.A. §
1034 (West Supp. 2001). Kerian claims that the Army
violated this statute when they denied him promotion to
Major because they did do in retaliation for his having
communicated to the IG the war crimes allegedly committed
by members of the Army.
Section 1034 does not establish the jurisdiction of
this court over Kerian’s claim because it provides solely an
administrative process for handling complaints of improper
retaliatory personnel actions and does not provide Kerian
with any private cause of action. See Acquisto vy. United
States, 70 F. 3d 1010, 1001 (8” Cir. 1995) (remanding case
to district court with directions to dismiss for lack of subject
matter jurisdiction); Soken v. United States, 47 Fed. Cl. 430,
433 (2000); Tureman v. Lekberg, No. CTV.A. 97-1018, 1998
WL 181816 at *2 n.6. (E.D. Pa. April 16, 1998) (“Section
1034 confers an administrative remedy with a six-month
statute of limitations, and creates no private right of action.”)
(citations omitted). Therefore, Kerian cannot rely on the
Whistle Blower Protection Act to provide subject matter
jurisdiction.
2. Privacy Act
Kerian also maintains that the Privacy Act provides
this court with subject matter jurisdiction. Lekakis Decl.,
Exh. A at $3; Pl.’s Relay at 5; see 5 U.S.C.A. § 552a (West
Supp. 2001). Congress enacted the Privacy Act to “’ provide
certain safeguards for an individual against an invasion of
personal privacy,’ by requiring governmental agencies to
maintain accurate records and providing individuals with
more control over gathering dissemination, and accuracy of
agency information about themselves.” vine v.
United States, 202 F. 3d 547, 550 (2d Cir. 2000).
Al5
Under the Act, an agency is precluded from disclosing
information in its file to any person or the another agency
without prior written consent of the individual to whom the
information pertains. See Id.
Unlike the Military Whistleblower Protection Act, the
Privacy Act does provide Kerian with private right action. 5
U.S.C.A. § 552a (g) (1) (D). However, Privacy Act claims
are subject to a two year statute of limitations. 5 U.S.C.A. §
552a (g) (5). Failure to file within the statute of limitations is
jurisdictional, thus an untimely complaint deprives the
district court of subject matter jurisdiction. See Akutowicz
vy. United States, 859 F. 2d 1122, 1126 (1988) (affirming the
dismissal of plaintiff's Privacy Act claim because the two
year statute of limitations had passed).
For Privacy Act claims, the statute of limitations begins
to accrue either from the date on which the cause of action
arises or, if an agency has materially or willfully
misrepresented any information that is required to be
disclosed, from the date on which the individual discovers
the misrepresentation. 5 U.S.C.A. § 552a (g) (5). The
government argues that Kerian’s Privacy Act claim should be
dismissed because the latest actions that any of the
defendants took that are the subject of Kerian’s first and
second claims for relief occurred in 1996. See Reply Me.
Law Supp. Def’s Mot. Dismiss at 7.
Although Kerian does not specify in his complaint the
date of the information that he requested pursuant to the
Privacy Act, it appears from the context of the complaint that
the request was made prior to 1996. See Lekakis Decl., Exh.
A at 4 23. Kerian states that he appealed the Special Inquiry
Board’s unfavorable “remedy” to the ABCMR on September
12, 1998. See Lekakis Decl., Exh. A at § 24, Exh. B at 1-2.
Given the context of the complaint, we can infer that the
Al6
“Agency” referred to is the ABCMR and that the request for
information was made some time prior to that agency’s
denial of relief.
Accordingly, the cause of action giving rise to Kerian’s
Privacy Act claim must have occurred some time before
February 8. 1996 which would allow Kerian until February
8, 1998 at the latest to file Privacy Act claim. Kerian,
however, did not file his initial complaint until February 4,
2000, almost two years after the statue of limitations had
expired. See Lekakis Decl. Exh. A at 35. The Privacy Ac,
therefore, does not provide Kerian with jurisdiction for his
first and second claims for relief because these causes of
action are time-barred. See Akutowicz, 859 F. 2d at 1126;
see also sien Sant Stn Danan of Saas, 204 F.
3d 723, 726 (7" Cir. 2000) (Privacy Act claim dismissed for
failure to bring within two-year statute of limitations because
“where the government’s consent as sovereign to be sued is
conditional upon filing of suit within a specified period of
time, strict compliance with that condition is jurisdictional
prerequisite.”), Trueman _v. United States Department of
Navy, No. 97-1877, 1997 WL 734154 (8" Cir. Nov. 26,
1997).
3. 37 U.S.C. § 204
Kerian also cities the military pay statute as a basis for
district court jurisdiction. Lekakis Decl. Exh. A at 4 3.
Although the government does not address jurisdiction under
37 U.S.C 3 204 in their motion to dismiss, we will consider it
here. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,
583 (1999) (“Sudject-matter delineations must be policed by
the courts on their own initiative... because it is nonwaivable
and delimits federal-court power.”).
For military pay cases contesting the nature of discharge
from branch of the armed forces, 37 U.S.C § 204 isa
money-mandating statute providing jurisdiction
Al7
under the Tucker Act. See Osborn v. United States, 47 Fed.
Cl. 224, 229 (2000). Section 204 entitles a member of a
uniformed service who is on active duty to basic pay. 37
U.S.C § 204 (West Supp. 2001); see Osborn v. United
States, 47 Fed. Cl. 224, 229 (“37 U.S.C § 204 ...confers on
an officer the right to the pay of the rank he was appointed to
until he was properly separated from the service.”)
However, federal courts do not have jurisdiction under
section 204 if a plaintiff's retirement from the military is
voluntary. Sammt v. United States, 780, F. 2d 31, 32 (Fed.
Cir. 1985). For purposes of jurisdiction, a military
resignation is presumed to ve voluntary. Osborn, 47 Fed. Cl.
At 230. For a plaintiff to rebut this presumption, he must
show that he could not exercise free choice in the decision to
separate from the military or his decision was a result or
duress, coercion, misrepresentation , or mental
incompetence. Id. On the other hand, if a serviceman or
woman is selected fro early retirement under 10 U.S.C. 638
and 638a because of non-promotion, the fact that he elects to
leave at an earlier date does not make his retirement
voluntary. Adkins v. United States, 68 F. 3d 1317, 1321
(Fed. Cir. 1995).
In the present case, Kerian does not allege that
he was going to be mandatorily retired from active service in
the Army subsequent to his non-selection fro promotion and
pursuant to 10 U.S.C. § 638 or 638a. Furthermore, Kerian
has not alleged that there is any evidence to rebut the
presumption that he voluntarily retired by showing that the
elements of duress, time—pressure, misrepresentation, or
mental incompetence were present at the time of his
separation; and the facts in his complaint do not support such
an inference. Since Kerian cannot overcome the
presumption that his separation was voluntary, 37 U.S.C §
204 is not an appropriate money mandating statute on which
Kerian can base his first and second claims for
relief. See Osborn, 47 Fed. Cl. At 231.
Al8
For the reason stated above, neither the Military
Whistleblower Protection Act, the Privacy Act, nor 37 U.S.C
§ 204 provide this court with jurisdiction over Kerian’s
money claims, so review of his first and second claims under
the Tucker is not applicable. The court does not have
jurisdiction to award Kerian back pay any form of monetary
damages and may therefore only considered Kerian’s request
for equitable relief pursuant to APA. See supra p. 8-9.
If a plaintiff challenges performance evaluations and
promotions within the framework of the intramilitary
administrative procedure and his claims are denied without a
hearing, he may then seek judicial review. Chappell v.
Wallace, 462 U.S. 296, 303 (1983). The relevant standard
of review set forth in the APA, 5 U.S.C. § 706, is that a
reviewing court shall not set aside an agency decision unless
it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law.” 5 U.S.C. § 706
(2) (A) (West Supp. 2001). For the court to make this
determination “[it} must consider whether the decision was
based on a consideration of the relevant factors and whether
there has been a clear error of judgment .” Blassingame v.
Secretary of the Navy, 811 F. 2d 65, 72 (2d Cir. 1987)
(quoting Citizens to Preserve Overton Park v. Volpe, 401
U.S. 402,416 (1971)).
The problem for Kerian, however, is that his complaint
simply does not contain any factual allegations in this
regard. While the complaint does allege that the ABCMR
acted arbitrarily in refusing to review his claims that the
military was violating military law, * he fails to included
any similar allegations with respect to whatever review the
ABCMR conducted of his voluntary discharge. See Lekakis
Decl., Exh. A 99 19, 20, 22. Accordingly, he does not
provide allegations from which it can be inferred that the
decision of the ABCMR relative to his discharge
was arbitrary, capricious, an abuse of discretion or
Al9
contrary to law. Consequently, the defendants’ motion to
dismiss Kerian’s APA challenge to the decision of the
ABCMR relative to his discharge is granted. Kerian has
leave to amend, however, if he has a basis for alleging that
the decision of the ABCMR was arbitrary or capricious.
Consistent with this opinion, any future complaint must be
limited to the decision of the ABCMR relative to his
discharge, and the relief requested can only be equitable.
-<——-
“These allegation are addressed infra, part (5).
(3) Title VII of the 1964 Civil Rights Act
In the first and second claims for relief, Kerian alleges
that the government retailed against him for whistle blowing
activities after he communicated with the Inspector General
about the war crimes he allegedly witnessed during the time
of the Persian Gulf War, and that, as a result, he was
punished by being denied a promotion and end-of-tour
award. Lekakis Decl., Exh. A at J 44-45, 52-53 .
Although Kerian does not specifically cite to violations of
the Title VII in his complaint, he does argue in his Response
that his action’s against his superior officers, including the
communications with the Inspector General, fall under Title
VII's protection from employment discrimination and
retaliation. See Pl.’s Resp. at 3. Although Kerian is acting
pro se, he is a lawyer, and ought not be entitled to any
special consideration. Nonetheless, even is these allegations
were treated as properly pleaded, they lack merit.
Under 42 U.S.C. § 2000e-3 an employer may not
discriminate against an employee who has “made a charge,
testified, assisted, or participated in amy manner in an
investigation, proceeding, or hearing under this subchapter.”
To establish a prima facie case fro retaliation, a plaintiff must
demonstrate “participation in protected activity
known to the defendant, an employment action
A20
disadvantaging the person engaged in the protected activity,
and a casual connection between the protected activity and
the adverse employment action.” Cruz v. Coach Stores, Inc.,
202 F. 3D 560, 566 )2D. Cir. 2000). Kerian argues that
his action—demanding and exacting compliance with the
rule of law—should be construed as activity protected under
Title VII. See Pl.’s Reply at 3. Such a construction,
however, would be contrary to the meaning of Title VII,
which is intended to prevent employment discrimination
based on race, color, religion, sex, or national origin. See 42
U.S.C.A. § 2000e-2 (West Supp. 2001). The term
“protected activity” refers to “action taken to protest or
oppose statutorily prohibited discrimination.” Cruz, 202 F.
3d at 556. Clearly, Kerian’s claims do not fall within the
meaning of Title VII’s protected activity, since Kerian makes
no allegations that the Army either discriminated against
him or retaliated against him for opposing discriminatory
employment practices set forth in section 2000e-2.
Even if Kerian could show that he engaged in “protected
activity” within the meaning of the statute, he still cannot
assert a Title VII retaliation claim because it is a claim that
arose from his employment as an active duty Judge Advocate
I the U.S. Army, and Title VII does not apply to uniformed
members of the armed forces. Spain v. Ball, 928 F.2d 61,
62 (2d Cir. 1991); Roper v. Department of the Army, 832
F.2d 247, 248 92d Cir. 1987) (finding that employment in
the military differs materially from civilian employment and
there is a need to defer to the military in matters involving
hierarchy and structure of command); Janniere v. United
States Army, 34 F. Supp. 2d 850, 853 (E.D.N.Y.);
Cedano v. United States Gov't, No. CV-86-2223, 1989 WL
23901, at *! (E.D.N.Y. March 13, 1989) (dismissing Air
Force veteran’s employment discrimination claims because
42 US.C. § 2000e-16 is “the exclusive judicial remedy for
claims of discrimination in federal employment” and it doe
not apply to uniformed members of the armed
services). The Second Circuit explained in Roper
A21
“
that, although “Title VIl was designed to protect from
discrimination ‘employees or applicants for employment...in
military departments...’. ‘military department’...include[s]
only civilian employees...not establish a Title VII claim of
retaliation.
(4) Constitutional and Tort Claims Against DOD and DA
In his first and second claims for relief, Kerian also
alleges constitutional and tort claims against the United
States military. The first court alleges that, while Kerian was
a member of the Army’s JAG Corps. Defendants Army and
DOD committed tort against Kerian by forcing him to
participate in war crimes causing him “to suffer financial and
emotional harm and severe humiliation and embarrassment.”
Lekakis Decl., Exh. A at JJ 44-49. In the second court of
his Amended Complaint, Kerian alleges that he suffered
injury as a result of the administrative remedy process made
available to him which he claims violated the Equal
Protection and Due Process clauses of the U.S. Constitution.
The Supreme Court has_ repeatedly held _ that
constitutional claims of military personnel arising out of
activities incident to their military service are generally not
reviewable by civilian courts. Feres v. United States, 340
U.S. 135 (1950); Chappell v. Wallace, 462 U.S. 296
(1983). In Feres, the Court first looked at the Federal Tort
Claims Act as it applied to three separate plaintiffs who had
brought suit to recover fro injuries they had sustained while
on active duty as a result of the negligence of other in the
armed forces. Id. 138. Looking at the history of the Act, the
Court determined that Congress did not intend to create
any new cause of action. Since the Court knew of no
previous law which ever permitted a soldier to recover for
negligence against either his superior officers or the
Government, it concluded that “the Government was not
liable under the Federal Tort Claims Act for injuries
to servicemen where the injuries arise out of or are
A22
in the course of activity incident to service.” Id. at 146.
In Chappell, the Court expanded the Feres ruling to
preclude an enlisted serviceman from maintaining a suit
against a superior officer fro any constitutional violations
since Congress, the constitutionally authorized source of
authority over the military system of justice, had not
provided a damages remedy for military personne! claiming
that their constitutional rights had been violated by superior
officers. Chappell, 462 U.S. at 304. The Court reasoned
that providing such a remedy by way of a judicial response
would be in inconsistent with Congress’ authority in this
field. See id.
The Court was particularly concerned with the
consequences of a disruption to the relationship between a
soldier and his superiors if the soldier were allowed to hale
his superiors into court, noting that ‘[t}he special nature of
military life, the need for unhesitating and decisive action by
military officers and equally disciplined responses by
enlisted personnel, would be undermined by a judicially
created remedy exposing officers to personal liability at the
hands of those they are charged to command.” Id. ; see also
United States v. Stanley, 483 U.S. 669, 683 (1987)
(affirming Chappell reasoning that “the unique disciplinary
structure of the Military Establishment and Congress’
activity in the field” counse/ judicial abstention) (citation
omitted). ’
The Second Circuit has also followed the Feres and
Chappell doctrines barring military service persons from
bringing constitutional claims against their superior officers.
See Baldwin v. United States Army, 223 F.3d 100, 101
(2d Cir. 2000) (extending bar on uniformed members of the
armed forces from bringing Title VII and ADEA claims to
also included ADA ciaims) ; Jones _v. New York Siate
Division of Military and Naval Affairs, 166 F.3d
45, 50 (2d Cir. 1999) (noting that the judiciary
A23
should hesitate to review decisions of the military because
the Constitution gives primary control of the military to the
executive and legislative branches).
Kerian argues that Crawford v. Cushman, 531 F.2d
1114 (2d Cir. 1976) is the applicable precedent governing
the present case. Kerian’s argument is incorrect for two
reasons. First, the plaintiff ion Crawford brought a suit
challenging the constitutionality of the regulation under
which she was discharged after being forced out of the
Marine Corps when she became pregnant. Id. at 1116.
Here, in contrast, Kerian’s claims revolve around the
individual injury he suffered as a result of his forced
participation in war crimes. Challenges to such individual
tort or constitutional claims are proscribed by the authority
described above. Second, Crawford was decided prior to the
Supreme Court’s Chappell ruling. Therefore, even assuming
there was some tension between the decisions, the rule set
forth in Chappell controls. | Consequently, Kerian’s
constitutional and tort claims are dismissed because Kerian és
barred from bringing such claims against his superior
officers. See Chappell, 462 U.S. at 304.
(5) Jr sticiability
a. Military administrative review process
Kerian also challenges te the processes by which
defendants Army and DOD conduct military affairs. In his
second claim for relief Kerian’ challenges the
constitutionality of the administrative legal processes made
available to him claiming he was deprived of Fifth
ADMENT Due Process. Lekakis Decl., Exh. A at 4 51.
Specifically, Kerian challenges the “star ‘chamber” nature of
the proceedings.’ Pl.’s Reply ai 6.
In drafting the Constitution, the Framers anticipated
that there would be issues regarding the military
such as those raised in this case. In response, they
A24
explicitly granted plenary authority to Congress “To raise
and support Armies”; “To provide and maintain a Navy”, and
“To make Rules for the Government and Regulation of the
land and naval Forces.” Art. I, § 8, cls. 12-14, see
Chappell, 462 U.S. at 301. Clearly, the Constitution
contemplates that the Legislative Branch would have plenary
control over rights, duties and responsibilities in the
framework of the military establishment including
regulations, procedures and remedies related to military
discipline. See id.
> We assume that Kerian’s references to the “star
chamber” is a references to the English court with that name
during the 14" to 17" centuries. Finding its support from the
king’s prerogative (sovereign power and privilege), the
Court of Star Chambers was not bound by the common law
and eventually came to be a symbol of oppression because of
its corrupt procedures, oppressive methods, and arbitrary
punishments. Encyclopedia __ Britannica ,
<http://www.Britannica.com/eb/article>.
Chief. U.S. Const. Art. Il, § 2. The Court, on the other
hand, is assigned non constitutional responsibility for
supervision of military decisions. For that reason judicial
deference’s in the military context “is greater than [in] any
other area.” Falk v. Secretary of the Army, 870 F.2d 941,
945 (2d Cir. 1989) (quoting Chappell, 462 U.S. at 301).
Furthermore, it is presumed that judges do not have the
requisite competence to make decisions about internal
military affairs. As the Court stated in Gilligan v. Morgan,
[I] t is difficult to conceive of an area of governmental
activity in which the courts have less competence. The
complex subtle, and professional decisions as to the
composition, training, equipping, and control of a
military force are essentially professional military
A25
judgments, subject always to civilian contro) of the
Legislative and Executive Branches.
413 U.S. 1, 10 (1973). For this reason the Constitution has
vested the responsibility for control over the military in the
Executive and Legislative branches of government since they
are periodically subject to electoral accountability. See id. at
10. It is Congress and the President to determine how the
Armed Forces shall best execute the business of fighting and
preparing to fight in wars. See Schlesinger v. Ballard, 419
U.S. 498, 510 (1975).
Congress and the courts have acted in conformity with
that view as a defense to legislative and executive judgments
in the are of military affairs is evident in several Supreme
Court decisions. In Orloff y Willoughby, 345 U.S. 83, 93-
94 (1953), the court noted that
Judges are not given the task of running the Army. The
responsibility for setting up channels through
which...grievances can be considered and fairly settled rests
upon the Congress and upon the President of the United
States and his subordinates...Orderly government requires
that the judiciary be...scrupulous not to interfere with
legitimate Army matters.
In Parker v. Levy, 417 U.S 733, 756 (1974), the Court
rejected both vagueness and overbreadth challenges to
provisions of the Uniform Code of Military Justice, noting
that “Congress is permitted to legislate both with greater
breadth and with greater flexibility” when the statute governs
military society. In Schlesinger v. Ballard, 419 U.S. 498,
510, the court heid that Congress did not violate the Due
Process Clause of the Fifth Amendment by enacting military
regulations that treat men and women differently when they
are discharged from service. Finally, in Rostker v. Goldberg,
101 S. Ct. 2646, 2653 (1981), the Court noted that,
when deciding the question of whether the required
A26
registration of men, and not women, under the Military
Selective Service Act violated Due Process, “we must be
particularly careful not to substitute our judgment of what is
desirable for that of Congress, or our own evaluation of
evidence fro a reasonable evaluation by the Legislative
Branch.”
Still, Congress is not free to disregard the Constitution
when it acts in the area of military affairs. For example,
though the court’s review of military regulations challenged
on First Amendment grounds is far more deferential than
constitutional review of similar laws or regulations designed
for civilian society, this does not mean that servicemen and
servicewomen are excluded from protection by the First
Amendment. See Goldman v. Weinberger, 475 U.S. 503,
507 (1986). But any decision that entails a matter provided
for by Congress in the exercise of its power is to be treated as
presumptively valid and any doubt as to its constitutionality
should be resolved in favor of deference of the military’s
exercise of its discretion so long as it is “reasonably relevant
ceoslne baci Saghan ans, dod Gear ams ae
Katcoff v. Marsh, 755 F.2d 223, 234 (2d Cir. 1985);
Mack v. Rumsfeld, 784 F.2d 438, 439 (2d Cir. 1986)
(reaffirming Katcoff).
To the extent that Kerian claims in his second claim for
relief that the administrative process made available to him
after his discharge violates the Fifth Amendment, the
Supreme Court had already determined that the forum
provided by the ABCMR comports with Due Process. See
Chappell, 462 U.S. at 302-03. The court found the
procedures provided by the ABCMR sufficient as the remedy
Congress has chosen to provide for the review and remedy of
complaints and grievances, particularly since, under the
APA, they are ultimately subject to judicial review and may
be set aside if they are arbitrary, capricious, or not supported
by substantial evidence. Id. Kerian was provided
with the opportunity to challenge his non-promotion
A27
within the framework of this intramilitary administrative
procedure and he took advantage of that opportunity. There
is no reason for this court to think that the process by which
Kerian brought his challenge does not comport with the Fifth
Amendment due process of the law. Therefore, those claims
should be dismissed.
In his fourth claim relief, Kerian alleges that defendant
DOD inappropriately rejected, and later implemented some
or all of his suggestions regarding the treatment and care of
illegitimate children of service members without giving him
credit or the appropriate compensation for the suggestions.
See Lekakis Decl., Exh. A at 4 60. After considering this
allegation in light of the standard for reviewability
promulgated by the Supreme Court and the Second Circuit,
the claim must also be dismissed. The presence and care of
illegitimate children may have an effect on military defense
efforts and any policy determination on that basis is
reasonably related to furtherance of national defense. See
id.°
b. Army foreign policy
In addition in his fourth claim for relief, Kerian makes
several blanket statements about the DOD and DA’s “failure
ed -<-<--
° For some inexplicable reason, the defendants have not
raised the plaintiff's lack of standing to assert his fourth
claim on behalf of illegitimate children of servicemen. His
claim for compensation for raising these issues, like all of his
arguments related to his time of service, is time-barred. ;
adheve to fundamental international law.” Lekakis Decl.,
Exh. A at 9 59. It is unclear from his Amended
Complaint what law or laws Kerian believes these
A28
agencies to have violated’ Here merely accuses the agencies
of neglecting “helpless ‘illegitimate’ children, of service
persons,” engaging in “criminally irresponsible conduct” and
advancing the “criminal” and conspiratorial polic[ies] and
programs of [their] officers.” Lekakis Decl., Exh. A at 4
59. It is unclear what the legal basis is for Kerian’s
complaint in this regard; however, it is not necessary that the
court try to make this determination since it is clear that
Kerian’s claims call within political question doctrine and are
therefore non-justiciable claims.
The political question doctrine, which is “primarily a
function of the separation of powers” as it addresses the
“relationship between the judiciary and coordinate branches
of the Federal Government,” requires the court to dismiss as
nonjusticiable cases concerning matter which have in any
measure been committed by Constitution to another branch
of government and where that branch has not exceeded
whatever authority has been committed. Baker v. Carr, 369
U.S. 186, 210-11 (1962). In Baker, the Court identified
six factors that may render as issue as a nonjusticiable
political question: (1) a -
” In his prayer for relief, Kerian does request that
DOD employees be enjoined from opposing the adoption to
the Treaty of Rome and the International Criminal Court
Statute but it is unclear how, if at all, these laws pertain to
the DOD’s position with regard to the illegitimate children of
service persons.
textually demonstrable constitutional commitment of the
issue to a coordinate political department; (2) a lack of
judicially discoverable and manageable standards fro
resolving it; (3) the impossibility of deciding without an
initial policy determination of a kind clearly for
nonjudicial discretion; (4) the impossibility of a
A29
court’s undertakifg independent resolution without
expressing lack of the respect due coordinate branches of
government, an unusual need for unquestioning adherence to
a political decision already made; or (6) the potentiality of
The Court had long since recognized that foreign
policy is the province and responsibility of the Executive and
Legislature. See Chicago & S. Airlines. Inc. v. Waterman
Stcamship Corp., 333 U.S. 103, 111 (1948); see also
Department of the Navy v. Egan, 484 US. 518, 529
(1988). In Chicago & Southern Airlines the Supreme Court
declared that:
the very nature of executive decisions as to foreign policy
is political, not judicial. Such decision are wholly
confided by our Constitution to the political departments of
the government, Executive and Legislative.... They are
decisions a kind for which the Judiciary has neither aptitude,
facilities nor responsibility and which has long been held in
the domain of political power not subject to judicial intrusion
or inquiry.
843 F.2d at 111. For this reason, courts are traditionally
reluctant to intrude upon the authority of the executive in
military affairs. See id. at 530. Questions touching the
military and foreign relations are generally treated as
political questions since they may not only frequently require
standards that defy judicial application but they involve the
exercise of a discretion demonstrably committed to the
executive as well as legislative branch of government's
views. Baker, 369 U.S. at 211.
in Greenham W Neninet Cruige Missiles vB
755 F.2d 34 (2d Cir. 1985), the Second Circuit
affirmed the lower court's dismissal of a complaint
A30
challenging the decisions of the executive branch regarding
the deployment of cruise missiles. Although the court was in
agreement with the lower court’s analysis that decisions
regarding the deployment of cruise missiles cannot be
resolved by courts because of the lack of judicially
discoverable and manageable standards, they “believe[d] it
even clearer that the complaint of the non-congressional
dela ddien tenet <tc Unie (aan Gonnitent tr tn
Constitution to coordinate political departments and requests
relief which cannot be granted absent an initial policy
determination of a kind clearly for nonjudicial discretion.”
Id. at 37 (internal citations omitted) ; see also DaCosta v.
Laird, 471 F.2D 1146, 1147 (2D Cir. 1973) (dismissal
of complaint because question of whether Secretaries of
Defense, Army, Navy and Air Force and Commander of
American Military Forces may follow the laws and directives
set forth by the President was nonjusticiable political
question outside the power of the court to review).
Kerian’s claims concerning the policy and programs of
the DOD and DA with regard to their treatment of the
illegitimate children of U.S. service persons are not
justiciable because they raise purely political questions for
which thee is no judicial remedy. See Eveland v. Director of
CIA, 843 F.2d 46, 46 (1" Cir. 1988). Again, Kerian is
clearly trying to litigate, not some personal injury, but his
disagreement with how the executive and military manage
this country’s foreign policy. See id.
Finally, Kerian is not content with just asking this court
to intervene on behalf of helpless illegitimate children
throughout the world In his prayer for relief he also includes
a rather lengthy laundry list of additional requests for judicial
intervention in military affairs. (1) judicial order enjoining
future U.S. military action in UN Chapter VII peace
enforcement if the U.S. fails to comply with the Geneva
Conventions; (2) judicial mandate compelling
remedial international treaty compliance by U.S.
A31
executive branch agencies involved in the Persian Gulf
operation; (3) mandate to the Attorney General for the
appointment of an Independent Counsel to investigate
military war crimes;. (4) injunction restraining DOD from
spending public funds or lobbying in opposition to the
adoption of the Treaty of Rome and the International
Criminal Court Statute or undercutting treaty obligations of
the U.S.; (5) judicial mandate or declaratory judgment for
the protection of service members’ right to protect their
fundamental humanity by allowing knowing participation in
the war fighting process; (6) judicial mandate or declaratory
judgment that members of the military be allowed to
communicate with “those would they would kill”; (7)
judicial mandate or declaratory judgment protecting service
persons right to provide the “enemy” with information to
help them decide whether or not to surrender and right to
“allow the ‘enemy’ to manifest an intent to surrender before
they kill them; and (8) judicial mandate entitling U.S.
service persons access to sufficient information so they can
assess the necessity and proportionality of response
consistent with international law.
It is unclear how any of these prayers for relief relate to
any of Kerian’s causes of action against the DOD and DA
and it is, therefore, questionable whether Kerian has the
proper standing to make any of these requests for relief.
Regardless, all of the requests mentioned above are directly
related to foreign relations and fall squarely within the
province of the other two branches of government. It is not
within the authority of this court to superintend the manner
and methods by which executive branch agencies charged
with control over the military and U.S. activities abroad
fulfill their responsibilities.
(6) Claims Against Defendant Veteran’s
Administration
In his Third Claim for relief, Kerian
challenges the military regulation under which his
A32
military pay is, and will be, reduced. Kerian alleges that his
military separation pay and his military reserve pay (Kerian
is a member of the military reserve) has been reduced by the
amount of the VA disability pay and that when he retires, the
reserve military retire pay that he will receive will also be
reduced by the amount of his disability pay. Lekakis Decl.,
Exh. A at 9 56. Kerian claims that this three-time reduction
of his disability constitutes a violation of the Rehabilitation
Act, American with Disabilities Act and the Due Process and
Equal Protection Clause of the Fifth Amendment since he is
being discriminated against based on his status as a disabled
veteran. Lekakis Decl., Exh. A at ¢ 57.
38 U.S.C. § SII is the relevant statute governing
judicial review of decisions made by the Secretary of
Veterans Affairs. It states that
The Secretary [of Veterans Affairs] shall decide
all questions of law and fact necessary to a decision by the
Secretary under a law that affects the provision of benefits
by the Secretary to veterans or the dependents or survivors of
veterans. Subject to subsection (b)*, the decision of the
Secretary as to any question shall be final and conclusive and
may not be reviewed by any other official or by any court,
whether by an action in the of mandamus or otherwise.
38 U.S.C.A. § 511 (West Supp. 2001). The Supreme
Stee et ee ee
® Subsection (b) provides for four exceptions to the
Statute; (1) by the Court of Appeals for the Federal Circuit as
to alleged violations of FOIA; (2) in cases involving life
insurance benefits under 38 U.S.C. §§ 1975, 1984; (3) in
cases involving housing and small business loans under 38
U.S.C. §§ 3701-3751; and (4) by the Court of Veterans
Appeal in cases where a veteran filed a notice of
disagreement with the decision of the VA with the
Board of Veterans Appeals, on or after November
A33
ral (ww
18, 1988. See New York v. Eadaro, 946 F. Supp. 240, 242
(E.D.N.Y. 1996). None of these exceptions apply in this
case.
Court first addressed the no-review clause in Johnson vy.
Robinson, 415 U.S. 36) (1974). In Johnson the Court
distinguished between a constitutional attack on legislation
governing the provisions of VA benefits which would entitle
a plaintiff to district court review and a challenge to the
Administrator's decisions of law or fact concerning the
administration of benefits legislation which would not be
reviewable under section 511. See id. at 367. Thus, under
Johnson, district courts may review actions involving
challenges to the constitutionally of veterans’ benefits
legislation, but may not review the application of such
legislation to an individual’s case. Any challenge to the
amount of VA benefits received by a plaintiff cannot be
reviews by a federal district court. See
_Tieven v. United
Sees Sone Aenean, 884 F2d 514, 515 (1989)
Kerian argues that this court should look to the Supreme
Court's ruling in Traynor v. Turnage, 485 U.S. 535 (1988)
. While Kerian id correct that the Court held in Traynor that
under 38 U.S.C. §211 a district court could review the
question of whether a Veteran's Administration regulation
violates the Rehabilitation Act, Kerian’s argument ignores
the changes that Congress made to the provisions when
section 211 was repealed. Prior to 1991, 38 U.S.C. § 211
(a) governed judicial review of decisions by the Secretary of
Veterans Affairs. In 1991, section 21! (a) was repealed and
those provisions are now contained in 38 U.S. § 511. See
Veterans’ Judicial Review Act (“VJRA”), Pub. L. 102-83,
§ 2(a), 105 Stat. 378 (1991). Congress repealed
section 211 because of their concern that “the
A34
Court’s opinion in Traynor would inevitably lead too
increased involvement of the judiciary in technical VA
decision-making."” Larrabee v. Derwinski, 968 F.2d 1497,
1500 (2d Cir. 1992) (quoting H. R. Rep. No. 963, 100"
Cong. , 1" Sess. 27 (1988), reprinted in 1988 U.S.C.C_AN.
5782, 5803).
The VJRA provides a comprehensive process for
appealing a decision of the Secretary of Veteran’s Affairs.
Under the VJRA, judicial review of veteran's benefits
determinations is to be held in the Federal Circuit. See H.R.
Rep. No. 963, 100” Cong., I" Sess. 27 (1988), reprinted
in. 1988 U.S.C.C_AN. 5782, 5809; Larrabee, 968 F.2d at
1501. Congress’s purpose in designing section 511 to
provide judicial review in the Federal Circuit was twofold:
(1) to ensure that benefits claims will not burden the courts
and the VA with litigation and (2) to maintain uniformity by
establishing an exclusive mechanism for appellate review of
decision of the Secretary. See Surge v. Derwinski, 26 F.3d
8, 11 (2d Cir. 1994), see also Larrabee, 968 F.2d at
1501. Once a veteran has exhausted all administrative
avenues by appealing the Secretary's decision to the Board
of Veterans’ Appeals, see 38 U.S.C.A. § 7105 (1991), he
may then appeal that decision to the Court of Veteran’s
Appeal, see id. § 7104. Decisions of the Court of Veterans
Appeals may then be appealed, but only to the Federal
Circuit. See id. § 7292. Given this new statutory scheme,
the Second Circuit determined that “[t}hese provisions amply
evince Congress’s intent to include all issues, even
constitutional ones, necessary to a decision which affects
benefits in this exclusive appellate review scheme.”
Larrabee, 968 F.2d at 1501 (citation omitted). A district
court may therefore only hear facial challenges of legislation
affecting veteran's benefits but it does not have jurisdiction
over other constitutional and statutory claims since those
must be pursed according to the appellate guidelines
established under the VJRA. See id.
A35
!
Insofar as Kerian claims that the reduction of his
military separation pay, reserve pay arid retirement pay by
the amount of his disability pay is a violation of the
Rehabilitation Act and the American with Disabilities Act,
this court does not have the jurisdiction to reach that issue.
The only claims, therefore, that may be reviewed by the
courts are that the VA regulation violates Kerian’s equal
protection and due process rights under the Fifth Amendment
of Constitution.”
a. Equal Protection
The Supreme Court has interpreted the Equal Protection
component of the Fifth Amendment to stand for equal
treatment by the government of all persons similarly situated.
City of Cleburne v. Cleburne Living Center, 473 U.S 432,
440 (1985).
When deciding whether a piece of legislation is in violation
of the Fifth Amendment, the general rule is that the
legislation is presumed to be valid and will be sustained if
the classification drawn by the statue is rationally related to a
legitimate governmental interest. Id, at 440. An exception to
this general rule exists when a classification is based on race,
alineage, national origin, illegitimacy or gender. When these
bases are
° In his Amended Complaint, Kerian states in the
abstract the “the laws and regulations mandating this
discriminatory result” violates the Equal Protection and Due
Process Clauses of the Fifth Amendment but does not specify
to which “laws and regulations” he is referring. Lekakis
Decl., Exh. A at § 57. It ca be inferred based on the nature
of his claim, that Kerian is referring to 10 U.S.C. § 12316
and 38 U.S.C § 5304. Under 10 U.S.C. § 12316, a
member of the Army Reserve who is entitled to disability
compensation because of prior military service may
elect to receive military pay. See 10 U.S.C. §
A36
12316 (a) (West Supp. 2001). Similarly, 38 U.S.C § 5304
states in relevant part that no person may concurrently
receive both disability compensation and retirement pay, see
38 U.S.C § 5304 (c) (West Supp. 2001). Present, the Court
will employ a heightened standard of review to determine
whether the government has committed an equal protection
violation. See id. When the claimed discrimination is based
on any other classification, the government need only show
that there is rational relationship between the legislation and
a legitimate governmental interest. See Able v. Unites
States, 155 F.3c 628, 631 (2d Cir. 1998), Cocos
International. Inc., 895 F.2d 66,72 (2d Cir. 1990).
In this case, however, it is not necessary that the court
even reach the issue of whether the government can
demonstrate that the relevant legislation bears a rational
relation to a legitimate interest since Kerian does not meet
the threshold requirement for an equal protection claim
which is showing that the government has discriminated
amongst similarly situated groups. See Eagleston v. Guido,
41 F.3d 865, 876 (2d Cir. 1994).
that Kerian is being treated differently from other receiving
similar VA benefits and Army Voluntary Separation
Incentive payments. In his Amended Complaint, Kerian
states that he is being discriminated against as a veteran and
disabled former member of the United States military.
Lekakis Decl., Ex’. A at ¢ 57. Nowhere in the Amended
Complaint does Kerian assert that there is another group that
is similarly situated to disabled veterans who are not
prohibited from concurrently receiving military pay and VA
disability oe See Patel v. Penman, 103 F.3d
868, 876 Cir. 1996) (upholding grant of summary
judgment to defendants equal protection claim because
plaintiffs failed to show that those who ere similarly situated
were treated any differently than plaintiffs); Samaad
vy. City of Dallas, 940 F.2d 925, 941-42 (5S Cir
A37
1991) (“Because the Kerians faiied to allege the existence of
a similarly situated non-minority neighborhood (i.c., one
near a location suitable for an automobile race), their
complaint does not allege an equal protection violation.”).
b. Due Process
Kerian‘s claim that the Veteran's Administration has
violated his substantive due process rights is similarly
faulted. The Due Process Clause is intended to secure an
individual from an abuse of power or its use for the purpose
of oppression by government officials. See Daniels vy.
Williams, 474 U.S. 327. 331 (1986), Howard v. Grinage,
82 F.3d 1343, 1350 (6 Cir. 1996). In order to establish a
substantive due process claim, a Kerian must show that the
government has deprived him of life, liberty or property. To
have a property interest, Kerian “clearly must have more than
an abstract need or desire for it...He must, instead, have a
legitimate claim of entitlement to it.” Board of Regents v.
Roth, 408 US. 564, 577 (1972). in his Amended
Complaint Kerian makes no such claim of entitlement to any
property interest that he is being denied. Accordingly, the
absence of any such claim by the plaintiff is a defect in his
substantive due process allegation.
Furthermore, eve if Kerian had asserted that the
government impaired a legitimate liberty or property interest,
Kerian’s claim would still not survii>. When a statute or
regulation is alleged to violate a plaintiff's substantive due
process rights, it is considered presumptively valid so ling as
the government can show that there is a rational basis for the
law and the deprivation is not clearly arbitrary and
unreasonable. See Curto v. City of Harper Woods, 954 F.2
d 1237, 1240 (6" Cir. 1992). A law will be considered
valid if it advances a legitimate governmental interest or if it
is reasonable means of advancing a legitimate interest. See
id. For claim of a substantive due process violation
to prevail where a non-fundamental right is
A38
implicated, the plaintiff must show that the conduct “shocks
the conscience” of the court. Howard v. Grinage, 82 F.3d
1343, 1350. In the present case, Kerian has alleged no facts
which will put this court on its guard when reviewing the
challenged statutes. Kerian’s complaint fails to overcome
the presumption that 10 U.S.C. § 12316 and 38 US.C §
5304 are reasonable mandates of the law which have been
enacted to serve a legitimate governmental purpose. His
claim of the Fifth Amendment Due Process violation is
therefore dismissed.
(7) Fifth Amendment Claim Against the Department of
Justice
In his fifth claim for relief, Kerian alleges that the
Department of Justice (“DOJ”) regulations on “Supplemental
Standards of Ethical Conduct for Employees of the
Department of Justice,” published at 5 C.F.R. § 3801.106
(b) prevent him form engaging in limited, part-time practice
law outside of his employment with the Immigration and
Naturalization Service (“INS”) and therefore deprive him of
a constitutionally protected liberty interest. See Lekakis
Decl., Exh. A at 4¥ 62-63. 6C.F.R. § 3801.106 (b) states
in relevant part:
(b) Prohibited outside employment. (1) No
employee may engage in outside employment that involves:
(i) The practice of law, unless it is
uncompensated and in the nature of community service,
unless it is on behalf of himself, his parents, spouse
minor children;...
The first question the court must ask regarding Kerian’s
claim is whether pursing employment as an attorney outside
of his position with the INS is protected liberty interest. The
Supreme Court has made it very clear that, under protection
of the Fifth and Fourteenth Amendments, a person
has a liberty interest in pursing an occupation. See
A39
Greene v. McElroy. 360 U.S. 474, 492 (1959) (“[T}he
right to hold specific private employment governmental
interference comes within the ‘liberty’ and ‘property’
concepts of the Fifth Amendment...”); Traux v. Raich, 239
U.S. 33, 41 (1915) (‘[T)he right to work for a living in the
common occupations of the community is of the very
essence of the personal freedom and opportunity that it was
the purpose of the [Fourteenth] Amendment to secure.”) ;
Schware v. Board of Bar Examiners, 353 U.S. 232, 238-39
(1957) (“A state cannot exclude a person from the practice
of law or from any other occupation in a manner or for
reasons that contravenes the Due Process or Equal Protection
Clause of the Fourteenth Amendment.”). Since the “right to
work for a living in the common occupations of the
community is of the very essence of the personal freedom
and opportunity that it was the purpose of the [Fourteenth]
Amendment to secure.” Traux vy. Raich, 239 U.S. 33, 41
(1915).
However, this right to engage in an occupation of one's
preference may be constrained within the strictures of due
process. See Schware, 353 U.S. at 238. The Court
recognized that a state mat place limits on a person's ability
too engage in a certain profession so long as there is a
rational relationship to a legitimate governmental interest,
id, at 239, but held that denying Petitioner the opportunity to
qualify for the practice of law deprived him of due process,
id, at 247,
The present case, however, is distinguished from
Schware. The Kerian here is not foreclosed from anything.
The DOJ’s regulation does not permanently exclude Kerian
from the practice of law. It does not even exclude him
temporarily from the practice of the law if he so chooses.
Kerian does not allege that he cannot seck other employment
in which he can engage in the private practice law where the
DOJ) regulation will affect him. Accordingly,
Kerian differs from the plaintiff in Schware who
A40
was forbidden even to take the bar examination ance was thus
truly foreclosed from his ability to seek employment as an
attorney. Id.
An employee is not deprived of a liberty interest when is
employee's power to correct.” Russell v. Hodges, 470 F.2d
212, 217 (2d Cir. 1972). In O'Neill v. City of Auburn, 23
F.3D 685 691-93 (2D Cir. 1994), the Second Circuit held
that an employee who was terminated because of charges
that he had “poor relationships” with state agencies, and his
work was not “up to par” did not have a liberty interest that
was violated because the employee had the ability to correct
these problems. Id. Similarly, in the present case, Kerian
has the ability to correct the situation so as to be able to
engage in the private practice of law. Kerian can resigning
from his position at the INS. The moment he does that he
will be free to begin looking for legal work. Kerian cannot
both voluntarily remain as an employee of the INS and then
turn around and complain that he has liberty interest in the
pursuit of his chosen profession as a lawyer that has been
violated by the government. The right to engage in the
profession that one chooses is not absolute. . See Schware,
353 US. at 239.
Similarly, Kerian’s equal protection claim must be
dismissed. In order to assert a Fifth Amendment Equal
Protection claim, Kerian must demonstrate that the
Government discriminated among similarly situated groups.
City of Cleburne, 473 U.S. at 439; Eagleston, 41 F.3d at
876. Thus, Kerian must show that he has somehow been
treated differently than others in a similar situation. Klinger,
31 F.3d at 731.
Legislation that does not employ suspect classification
or impinge on fundamental rights must be upheld against
equal protection attack as long there is a rational
relationship to a legitimate governmental purpose.
A4l
+ +] v*
Hodel v. Indiana, 452 U.S. 314, 331 (1981); Erazier v.
Manson, 703 F.2d 30, 33 (2d Cir. 1983). Legislation is
presumed to rational and will usually only be found to be
invalid upon finding that “the varying treatment of different
groups or persons is so unrelated to the achievement of any
combination of legitimate purposes that [ a court] can only
conclude that the [government’s} actions were irrationa).”
Hodel, 452 U.S. at 332 (quoting Vance v. Bradley, 440
U.S. 93, 97 (1979)).
Although it is unclear in his complaint what distinction
the government has drawn that Kerian is challenging, it is
clear that Kerian does not allege any discrimination on the
basis of race, alienage, national origin, or gender. If Kerian’s
equal. protection challenge is to governmental regulation
itself, Kerian’s claim must fail. The DOJ’s regulation
applies to all employees working for that executive
department. Therefore, no suspect classification is at issue
and this court need only apply the minimal standard of
review to determine whether the DOJ has a rational basis for
preventing its employee from engaging in the outside
practice of law when it is not for immediate family or
community service. See Cleburne, 473 U.S. at 442.
As Kerian notes in his complaint, the purpose behind the
regulation at issue is to ‘avoid any or all conflicts [of
interest] or even the appearance thereof.” Lekakis Decl.,
Exh. A at ¢ 63. Kerian does not argue that he desire of the
DOJ to prevent it is arbitrary or irrational. Sce Hodel, 452
U.S. at 331-32. Im fact, Kerian states in his Response
Memorandum that he “[does} not contest the fact that [he]
should not practice [his] profession where there might be so
little as an appearance of impropriety” and he agrees to limit
his outside practice so as to avoid the appearance of any such
conflict. Pl.’s Resp. at 11. In other words, Kerian believes
that because he is willing to limit his action, the government
no longer has a right to have a legitimate (by
Kerian’s own admission) regulation without
A42
violating the Equal Protection Clause. What Kerian’s
argument fails to acknowledge is that the question of whether
the government has violated the Fifth Amendment centers or
the government's regulation and not on the Kerian’s actions
in response to this regulation. The mere fact Kerian is
willing to conduct his actions in a way that negates the need
for the regulation does not mean that the purpose of the
regulation is no longer legitimate. Although, as a public
employee, Kerian does not loses his constitutional rights,
See United States v. National Treasury Employee Union,
513 U.S. 454, 115 S.Ct. 1003 (1995) (holding that lower
level public employees cannot be prohibited for receipt of
honoraria for writings unrelated to their work), he is an
attorney and, while he might endeavor to avoid the
appearance of conflict, as a practical matter, this is
something clearly beyond his control. For example, if he
were to handle a rea\ estate transaction which would appear
to be totally unrelated to his work, it could easily turn out
that one of the attorneys that he is dealing with has a case
with his agency. Immediately, this would raise an
appearance of interest.
Kerian also seems to be arguing that he is being treated
differently from the other DOJ employees. See Lekakis
Decl., Exh. A at 9 62. However, nowhere in the Amended
Complaint does Kerian allege that any of these other
employees are engaged in the private part time practice of the
law in a manner inconsistent with 5 C.F.R. § 3801.106 (b)
(¢.g. permitting practice of law for non-paid community
service , and/or for family members). Clearly, this argument
fall short of the minimum allegations needed to establish that
Kerian’s fifth amendment equal protection rights have been
violated since none of the alleged facts support a conclusion
that Kerian has been treated any differently from those
similarly situated. See Patel, 103 F.3d at 876.
A43
Conclusion
For the reasons stated above, the Government's Motion
to dismiss is granted and all of Kerian’s claims are
dismissed. Kerian is granted leave to amend within thirty
days but only with respect to his challenge to the ABCMR’s
After, reviewing his other requests for leave to amend, it is
apparent that such amendments would be futile. If no
amended complaint is filed within thirty days of this
decision, the Clerk of the Court is directed to close the case.
Brooklyn, New York Dated: October 16, 2001
SO ORDERD:
/S/
David G. Trager
United States District Judge
A44
APPENDIX B
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
PAUL D. KERIAN
Plaintiff,
against -
Civil Action No.
CV 00-745
(DGT)
LOUIS CALDERA, Secretary of the Army,
WILLAIM S. COHEN, Secretary of Defense,
JANET RENO, United States Attorney
General, and TODD D. WEST, Secretary of
Veterans Affairs,
TRAGER, District Judge:
A45
Plaintiff Paul Kerian (“Kerian”), a lawyer, filed his
original complaint pro se on February 4, 2000, asserting a
variety of claims against the former Secretary of the Army,
Secretary of the Defense, Secretary of Veterans Affairs and
the United State Attorney General. Among his many claims
for relief, Kerian alleged that defendants forced him to leave
active military service, in violation of his rights to Due
Process and Equal Protection guaranteed of the Fifth
Amendment. On September 28, 2001, all Kerian’s claims
were dismissed, except that as for one claim Kerian was
given leave to amend the complaint. Subsequently, on
January 10, 2002, Kerian filed a motion for reconsideration
of the dismissal of Kerian’s claims and a motion for leave to
amend his complaint.
Background’
Kerian served as a Judge Advocate General (“JAG”) in
the United States Army (the “Army”) during a period of
time, which included operations Desert Storm of the Persian
Gulf War in 1991. (Lekakis Decl., Exh. A (Kerian’s 1"
Amended Compl.) at $f] 2a, 11, 15). Kerian claimed that,
during operations Desert Storm he was forced to participate
in war crimes perpetrated by the Army against Iraqi civilian
refugees and prisoners of war. (Id. at {J 2a, 8-11).
According to Kerian, he repeatedly reported these “crimes”
to his superior Judge Advocate and later to the Inspector
General (“IG”) and commanding General. (Id. at FJ 14,
34).
In 1991, Kerian received an unfavorable Officer Efficiency
Report (“OER”) from his superior officer
A46
' The following is a brief background of the case. The
facts of this case recited in greater detail in the Memorandum
and Revised Order, entered October 18, 2001. at 2-6.
and was later denied an end-of-tour award and
promotion to Major. (Id, at 4 15 —16). After denial of the
promotion, Kerian chose to leave active military service and
avail himself to the Army's Voluntary Separation Incentive,
a separation
incentive payment for officers who wish to leave active
military service. ( Id. at 416). As a participant in this
program, Kerian receives an annual payment in the amount
of $11,233.89 for 22 years. (Id. Exh. Bat 11, 293).
However, Kerian believed that he was denied his
promotion and other accolades in retaliation for his
conversations with the 1G, and in November 1991 he filed a
whistle blower protection petition along with a request for an
investigation of the alleged war crimes with the Department
of the Army (“DA”) and the Department of Defense
(“DOD”). (Id, at Ex. A at 9 17; Exh. B at 102-13).
Kerian’s request was denied. Kerian appealed the denial of
whistle blower
protection to the Army Board for the Correction of Military
Records (“ABCMR"), requesting the correction of his
military record by removal of the negative portion of the
OER at issue. (Id. Ex. B at 86-100). Claiming that Kerian
had not yet appealed the OER; and, therefore, had not
exhausted all available remedies, the ABMCR _ responded in
a letter dated February 19, 1993, that it would not yet
consider his application. (Id, at 72-75). The ABMCR also
affirmed the decision of the DA and DOD regarding Kerian's
request for whistle blower protection. (Id.)
In a memorandum dated November 30, 1993,
Kerian administratively appealed the OER. (Id. at
A47
62-64). On August 23, 1994, a Case Summary was prepared
by the Officer Special Review Board (“OSRB”), which
concluded that the senior rater who had given Kerian an
apparently less favorable review had not served in that
capacity for the required minimum number of days to be
qualified to rate Kerian. The OSRB decided that the whole
portion of the senior rater’s comments would be removed
and replaced with the statement: “I am unable to evaluate
the rated officer because I have not been his senior rater for
the required number of days.” (Id. at 12-13, 29-32, 58).
The OSRB further determined that it was not convinced that
Kerian would have been promoted had the change been made
before Kerian was considered for promotion. (Id. at 33, 58).
Kerian continued to believe, however, that the initial
decision not to promote him to Major and the decision of the
OSRB was in retaliation for his alleged whistle blower
activities, and on September 12, 1994, Kerian filed a claim
with the IG requesting that an investigation be undertaken to
determine the merits of his compliant. (Id. at 57). The IG
requested that Kerian provide some factual basis for his
allegation that the ORSB retaliated against him because they
would not conduct an investigation based purely on Kerian’s
speculation. (Id. at 22-24). Kerian failed to provide this
additional information, and ‘n letter dated March 7, 1995, the
IG informed him his.case had been closed. (Id. at 21).
Kerian subsequently re-petitioned the ABCMR for the
correction of his military records and re-appealed the denial
of whistle blower protection. (Id., Exh. A at 4 22; Exh. B at
57). Included in this re-apneal to the ABCMR was Kerian’s
request for administrative review of the alleged defective
DOD/DA and OSRB processes and procedure and the “star
chamber” nature of the proceedings. (Id., Ex. A at ] 22).
The ABCMR denied all relief. (id. at ¢ 24, Exh. B at 3-18).
In a letter dated February 8, 1996, the ABCMR informed
Kerian that they were denying his petition and
would reconsider his application only if he were to
A48
present newly discovered relevant evidence that was not
available for consideration by the Board when it initially
denied his application. (Id., Ex. B at 1-2). Kerian did not
attempt to present any further evidence.
As a result of the time Kerian spent in active military
service, he has a service- connected skin condition and had
been granted by defendant Department of Veteran’s Affairs
(“VA”) a 10% disability and the right to receive disability
compensation in the amount of approximately $90.00 per
month. (Id., Ex. A at 955, Ex. C at 1-2). Kerian was given
the option to receive military pay for the performance of
active or inactive duty in lieu of VA benefits while on
reserve duty, and he elected to do so. (Id., Ex. D at 1).
After Kerian’s discharge from the Army, he obtained
employment with the United States Department of Justice,
Immigration and Naturalization Service (“INS”). (Id., Ex. A
at 462). As part of his responsibilities, Kerian adjudicated
and later supervised others adjudicating application for
political asylum. (Id.) As an employee of the DOJ, Kerian is
prohibited by DOJ regulations from engaging in any outside
practice of law. (See 5 C.F.R. § 3801.106).
After review of Kerian’s various allegations, a
Memorandum and Revised Order was entered on October 18,
2001, dismissing all of his claims, except that with regard to
his claim against the ABCMR. Kerian was given leave to
amend if he could allege that the decision of the ABCMR
with respect to Kerian’s discharge from service was arbitrary
or capricious. (See Mem. & Rev. Order at 25).
Subsequently, Kerian submitted a motion for reconsideration
of the order dismissing his claims, as well as a motion to
broadly amend his complaint. (See generally Pl.’s Mot. For
Recons. And proposed Sec. Am. Compl. (“Pl.’s_ for
Recons.”)).’
A49
Discussion
Under Rule 60(b)(2) of the Federal Rules of Civil
Procedure, a party may move for reconsideration of a final
order or judgment on the basis of “newly discovered
evidence that could not have been discovered earlier and that
is relevant to the merits of the litigation”. Hemric v. City of
New York, 96-CV-0213, 2002 WL 1203850, at *2 (S.D.N.Y.
June 3, 2002) (citing Schwartz v. Capital Liquidators, Inc.,
984 F.2d 53, 54 (2d Cir. 1993) (per curiam)). Such motions,
however, are generally not favored, “United States v. int'l
Bhd. Of Teamster, 247 F.3d 370, 391 (2d Cir. 2001), and
may not be used “solely to re-litigate an issue already
decided.” Shrader v. CSX Tranp.. Inc., 70 F.3d 255, 257 (2d
Cir. 1995); accord Resources N.E. of Long Island v. Town of
Babylon, 80 F. Supp. 2d 52, 64 (E.D.N.Y.) 2000). The
standard for granting motions under Rule 60(b) is very strict
and “reconsideration will generally be denied unless the
moving party can point to controlling decisions or data that
the court overlooked — matters, in
other words, that might reasonably be expected to
alter to conclusion reached by the court.” Shrader, 70
? Citations to “Pl.’s Mot,. for Recons. & 2” Am.
Compl.” Refer to Kerian’s brief and memorandum of law in
support of his motion for reconsideration and leave further
amend his complaint, dates January 10, 2002.
F.3d at 257 (citing Schonberger v. Serchuck, 742 F.
Supp. 108, 119 (S.D.N.Y. 1990))). Indeed, a motion under
Rule 60(b) “is properly granted only upon showing of
exceptional circumstances.” Int’i Bhd. Of Teamster, 247
F.3d at 391 (citing Padding Partners v. Bouchard, 34 F.3d
1132, 1142 (2d Cir.1994) (emphasis added)).
Additionally, although Kerian is proceeding pro se,
ASO
he “is an attorney and his complaint will not be given the
very liberal consideration afforded non-lawyer pro se
parties.” Guardino v. Am. Sav. & Loan Ass’n, 593 F. Supp-
691, 694 (E.D.N.Y.) 1984).
(1)
Claims Against the DA and DOD
Kerian’s first claim against the DOD and DA alleged
that he was constructively discharged from the army.
According to Kerian, he was forced to voluntarily discharge
himself from the army as a result “fraud, deception and
duress” committed by the DOD and the Army. PI's. Recons.
At 28. In its original order, Kerian’s constructive discharge
claim was dismissed on the ground that the statute of
limitations had expires. See Mem. & Rev. Order at 8-13.
Although Kerian claimed that equitable tolling of the statute
was appropriate because of “grave breeches [sic] of the
Geneva Convention and various exceptions,” the Court held
that there was no ‘casual relationship” between these
circumstances and Kerian’s untimely filing of his complaint.
Id. at 9. As a result, and because Kerian had pointed to no
“fraud or concealment” that prevented him form filing his
complaint on time, the Court held that equitable tolling of the
Statute was not appropriate. Id.
Kerian now attempts to establish such “fraud or
concealment” committed by the DOD and DA. See Pi.’s
Recons. At 19, 9 23. Kerian alleges that “wrongful,
fraudulent, deceptive and legally infirm: practices rendered
his discharge from the army involuntary. Id. § However,
Kerian still does not allege that these practices prevented him
from filing his complaint on time. Kerian has submitted
papers reciting conclusory statements, such as “fraud,
deception, duress and deceit,” but he does not explain why he
would be entitled to an equitable tolling of the statute
limitations. Thus, because Kerian still does not
point to any facts or evidence that prevented him
ASI
from timely filing his compliant, and does not allege that any
controlling law was overlooked, his motion to reconsider his
constructive discharge claim is denied.
Kerian’ second claim against the DOD and DA
challenged the way military affairs foreign policy were
conducted, including the administrative procedure by which
his claims were denied and the allegedly harsh treatment of
illegitimate children of United States soldiers in foreign
countries. Specifically, Kerian claimed that the
administrative legal processes made available to him after his
Clause of the Fifth Amendment. This claim was dismissed
on the grounds that the Supreme Court had already deemed
the appeal procedure provided by the ABCMR constitutional
and not violative of Due Process Clause. See Mem. & Rev.
Order at 35 (citing Chappell v. Wallace, 462 U.S. 296, 302-
03, 103 S. Ct. 2362, 2368 (1983))). With respect to his claim
regarding illegitimate children, it was dismissed on the
ground that Kerian had no standing to assert a claim for relief
on behalf of illegitimate children around the world. See id.
at 32. In his motion for reconsideration, Kerian does not
allege that any controlling law or evidence was overlooked
on this matter. Rather, he claims that he standing to bring a
claim on behalf of illegitimate children because he is also
“damaged goods” and suffered wrongdoing in his life. of
illegitimate children. See Pl.’s Recons. At 10-11. This
contention, however, would not have been sufficient on a
motion for reconsideration. Thus, for the same reasons cited
in the original decision, Kerian’s motion for reconsider his
claim for relief on behalf of illegitimate children of the
United States Army and certification of a class to represent
these children is denied.’
(2)
Claims against the VA
A52
In his original complaint Kerian’s first claim
against the VA challenged the military regulation under
which his military pay was reduced. See Mem. & Rev.
Order at 42. Essentially, Kerian claimed that this reduction
of his pay violated the Rehabilitation ct and the Americans
with Disabilities Act because there was a three-time
reduction of his pay. Kerian claimed that his military
separation pay and his military reserve pay had been reduced
by the amount of his VA disability pay and that when he
retires, the military reserve pay that he will receive will de
reduced by the amount of his disability pay. See id, at 42-43.
* In his original complaint, Kerian also alleged
constitutional, Kerian also alleged constitutional, Title VII,
and tort claims against the DOD and DA, claiming that, inter
alia, he was forced to “suffer server financial and emotional
harm” by being forced to commit war crimes. Mem, & Rev.
Order at 29. These claims were dismissed on the ground that
according to controlling law, Kerian was barred from
bringing these claims against his superior officers. See id. at
32. In his motion for reconsideration, Kerian fails to address
these claims, so it is not necessary to address them here.
This claim was dismissed for lack of jurisdiction.
Specifically, the Court held that, according to prevailing case
law, “a district court doe not have jurisdiction over
constitutional and statutory claims since these must be
pursued according to the appellate guideline established
under the VJRA.,” Id. at 46 (citing Larrabee v. Derwinski,
968 F.2d 1497, 1501 (2d Cir. 1992)). Kerian’s motion for
reconsideration alleges nothing new. To the extent he even
mentions these allegations in his motion, the wording is
identical to his original complaint. Thus, Kerian points to no
new evidence or overlooked precedent to present
grounds for reconsideration.
A53
Kerian also alleged Due Process and Equal Protection
claims against the VA. Specifically, in his original
complaint Kerian claimed that “the laws and regulations
mandating the discriminatory result” violated the Equal
Protection and Due Process Clauses of the Fifth Amendment.
See id, at 46, n. 9. The Court, after noting that Kerian did
not even specify to what “laws and regulations” he was
referring to, interpreted Kerian’s -
* The Veterans’ Judicial Review Act (“VJRA”)
provides a comprehensive process for appealing a decision of
the Secretary of Veterans Affairs. According to the Second
Circuit and prevailing case law, Kerian could not recover
under these claims in the district court. See Mem. & Rev.
Order at 42-45 (discussing Traynor v. Turnage, 485 U.S. 535
(1988); Surgue vy. Derwinski, 26 F. 3d 8, 11 (2d Cir. 1994),
Larrabbee, 968 F.2d at 1501).
claim as referring to 10 U.S.C. § 12316 AND 38 U.S.C. §
5204 (a).° With respect to his Equal Protection claim, it
was dismissed on the ground the “Kerian did noi assert that
there was another group similarly situated to disabled
veterans who are not prohibited from concurrently receiving
military pay and VA disability compensation.” id. at 48. In
his motion for reconsideration, Kerian again fails to make
this essential allegation. Kerian recites his original allegation,
including a new sentence stating that “[p}laintiff is a member
of a class discriminated against because they are disabled in
manner which is different and much more discriminatory
than other federal employees qualified for retired
pay.” PI.’s Recons. At 32,457. Yet, Kerian fails to
mention (1) which other “federal employees” he is
AS4
referring to or (2) whether these federal employees, unlike
Kerian, are exempt from the provisions of 10 U.S.C §
12316 or 38 U.S.C. § 5304. Thus, Kerian still does not
make key allegations necessary to comprise an equal
protection claim: that there is another group similarly
situated that is treated differently. Moreover, Kerian does
not allege that in dismissing this claim, any prevailing law or
evidence was overlooked. Consequently, Kerian’s motion to
reconsider his equal protection claim against the VA is
denied.
Kerian’s final claim against the VA was that his
substantive due process rights were violated. However, this
claim was dismissed on the ground that Kerian failed to
establish that the government deprived him of a proprietary
interest without due process of the law. See Mem & Rev.
Order at 49 (citing Bd.. of Regents v. Roth , 408 U.S. 564,
577 (1972)). With respect to this claim in his motion for
reconsideration, Kerian again does nothing
* Under 10 U.S C. § 12316, a member of the Army Reserve
is entitled to elect to receive either disability compensation or
reserve military pay. Under 38 U.S.C. § 5204(a), no person
See Mem. & Rev. Order at 46, n. 9.
in an apparent attempt to re-litigate issue already decided.
Thus, Kerian’s motion to reconsider his Due Process claim
against the VA is denied.
(3)
AS5S5
Claims against the DOJ .
In his original complaint, Kerian asserted Fifth
Amendment claims a,ainst the DOJ, alleging that he was
prevented from engaging in a part-time practice of law
outside of his employment with the INS. See id. at 50.
Specifically, Kerian alleged that the prohibition against
engaging in the practice of law deprived him of his
“constitutionally protected liberty” and right to equal
protection. See id. (referring to PI.’s Original Compl.
(Lekakis Decl. Ex. A at %§ 62-63)). This claim was
dismissed on the ground that Kerian was free to practice law,
as the DOJ regulation neither permanently not temporarily
excluded Kerian from the practice of law if he ceased to be
employed by the DOJ. See id. at 52. Additionally, it was
held that Kerian had once again failed to allege that there
was a group of DOJ employee similarly situated who were
allowed to practice law, which precluded any Equal
Protection claim. In his motion for reconsideration, Kerian
does not address these issues in any more details than before,
nor does he attempt to rectify the faults of his original
complaint by pointing to a group of people treated differently
under the sane DOJ regulations. This fact, along with
Kerian’s failure to allege the overlooking of any evidence or
controlling case law, precludes Kerian from reconsideration
of his Fifth Amendment claim against the DOJ. °
(4)
Motion to Amend the Complaint
AS6
According to Rule 15 of the Federal Rules of
Civil Procedure, “after a pleading is amended once ... a party
may amend the party’s pleading only by leave of court or
written consent of the adverse party”. Additionally, Rule 15
states the “leave to amend shall be given freely when justice
so requires.” In determining whether leave to amend should
be granted, the
district court has its discretion to consider, inter alia, the
apparent “futility of the amendment” Grace v. Rosenstock,
228 F.3d 40, 53 (2d Cir. 2000) (citing Foman v. Davis, 371
U.S. 178, 182 (1962); John Hancock Life Ins. Co, v.
Amerford Int’] Corp., 22 F.3d 458 462 (2d Cir. 1994)).
® Kerian’s final requests for reconsideration
involve the certification of a class to represent the
illegitimate children of United Stated soldiers across the
world, as well as the “inappropriate rejection and later
implementation” of Kerian’s suggestions regarding the
treatment and care of these children. These claims were
dismissed on the ground that “any policy determination on
these basis is reasonably related to the furtherance of national
defense” Mem. & Rev. Order at 36. To the extent that
Kerian does nothing but resubmit his original allegations
with respect to these matters, his motion to reconsider is
denied in the respect as well.
a. Claims against the ABCMR
In the Court’s Memorandum and Revised Order
Kerian was given leave to amend his complaint with respect
to the decision of the ABCMR concerning his discharge from
the Army. See Mem. Rev. Order at 25. Specifically, the
Court stated that if Kerian had a factual basis to allege that
the decision of the ABCMR concerning his discharge was
arbitrary or capricious, his second amended
complaint could request only equitable relief. See
A57
id. In his proposed secoi.; amended complaint, Kerian fails
to make such allegations. In fact, Kerian merely re-submits
the section of his original complaint pertaining to his
allegations against the ABCMR, containing the same
conclusory statements put forth in his original complaint.
See PI.’s Mot. for Recons. 2nd Am. Compl. At { 20. Kerian
still does not set forth any factual basis to allege that the
decision of the ABCMR with respect to his discharge was
arbitrary, capricious, or contrary to existing law.
Furthermore, Kerian does nor even attempt to correct the
faults of his original complaint and merely relies on vague
statements, which it has already been determined entitle him
to no relief. Thus, Kerian’s attempt to amend his complaint,
as allowed by the Revised Memorandum and Order, fails to
state a claim against the ABCMR.
Claims under 42 U.S.C. § 1985
Kerian’s motion for reconsideration and leave to
amend additionally asserts conspiracy claims under 42
U.S.C. § 1985(2) AND (3). ’ Under 42 U.S.C. § 1985, “such
a conspiracy to violate rights is actionable only if it involves
a discriminatory animus based on a race or some other
invidious classification.” Posr v. Court Officer Shield #207,
180F.3d 409, 419 (2d Cir. 1999) (citing United Bhd. of
Carpenters. Local 610 v. Scott, 463 U.S 825, 829 (1983)). In
addition, mere conclusory statements without factual
allegations are not sufficient to create a valid claim under §
1985. See Temple if the Lost Sheep, Inc. v. Abrams, 930
F.2d 178, 185 (2d Cir. 1991) (citing New York State Nat'l
Org. for Women v. Terry 886 F.2d 1339, 1358 (2d Cir.
1989)).
In the present case, Kerian’s Proposed Second
Amended Complaint contains only broad allegations of
conspiracy, without stating allegations to support a
claim. For instance, Kerian claims that “the
AS8
conspirators advance isolationist, unilateral sovereign
prerogatives to maintain the impunity for those violating
treaty obligations and principals [sic] for which the Unites
States stands.” PI.’s Proposed 2nd Am. Comp. at ¥ Id. (C).
Kerian goes on to state that, “these acts are illegal, they lead
to more war.” Id. Kerian fails to make clear, however, who
these “conspirators” actually are. Moreover, Kerian also
fails to make clear what he is alleging these “conspirators”
actually did violate his rights. In addition, Kerian alleges no
racial or other ‘class based animus” that would motivate a
conspiracy to violate his rights. Rather, Kerian merely
makes vague and conclusory statements unsupported by any
facts to prove that there was
” 42 U.S.C. § 1985(2) creates a cause of action
for damages as a result of a conspiracy to obstruct justice. 42
U.S.C. § 1985(3) creates a cause of action for damages for a
conspiracy to deny equal protection. actually a conspiracy
against him. Thus, Kerian proposed amendment to his
complaint fails to state claim under 42 U.S.C. § 1985. See
Temple of Lost Sheep, 930 F.2d at 178 (affirming as
dismissal of § 1985 claims because appellant’s claim only
contained conclusory allegations.)
Conclusion\ For the reasons stated, Kerian’s
motion for reconsideration is denied. Kerian’s motion
for leave to amend his complaint is denied.
Dated: Brooklyn, New York
August 28, 2003
SO ORDERED:
Original signed
David G. Trager
United States District Judge
A59
APPENDIX C
UNITED STATES COURT OF APPEALS |
FOR THE SECOND CIRCUIT
SUMMARY ORDER
THiS SUMMARY ORDER WILL NOT BE
PUBLISHED IN THE FEDERAL REPORTER AND
MAY NOT BE CITED AS PRECEDENTIAL
AUTHORITY TO THIS OR ANY OTHER COURT,
BUT MAY BE CALLED TO THE ATTENTION OF
THIS OR ANY OTHER COURT IN A SUBSEQUENT:
STAGE OF THIS CASE, IN A RELATED CASE, OR IN
ANY CASE FOR PURPOSES OF COLLATERAL
ESTOPPEL OR RES JUDICATA.
At a Stated Term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United
States Courthouse, at Foley Square, in the City of New York,
on the 9th day of Décember, two thousand and four.
PRESENT:
HON. GUIDO CALABRESI,
HON. BARRINGTON D. PARKER, JR.,
HON. REENA RAGGI,
Circuit Judges.
PAUL D. KERIAN, Plaintiff-Appeltlant, —~
v. No. 03-6253
A60
LOUIS CALDERA, Secretary of the Army The Pentagon,
Washington, DC 20310, WILLIAM S. COHEN, Secretary
of Defense The Pentagon, Washington, DC 20301, JANET
RENO, United States Attorney General 950 Pennsylvania
Ave. NW., Washington DC 20530, TOGO D. WEST, JR..,
Secretary of Veterans Affairs Vermont Avenue NW.,
Washington DC 20420, GEORGE BUSH, Defendants-
Appellees,
For Plaintiff-Appellant: PAUL D. KERIAN, pro se, Valley
Stream, N.Y. 11580
For Defendants-Appellees: ARTEMIS LEKAKIS, Assistant
United States Attorney,
for Roslynn R. Mauskopf, United States Attorney for the
Eastern District of New York (Varuni Nelson, Assistant
United States Attorney, on the brief)
Appeal from the United States District Court for the Eastern
- District of New York
(Trager, J/.).
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
judgment of the District Court is AFFIRMED.
Plaintiff-Appellant Paul D. Kerian (“Kerian”), an attorney
appearing pro se, brought a_ cavalcade of claims related to
his service in the Judge Advocate Generals’ Corps of the
‘ U.S. Army. The court (Trager, /.) granted the defendants’
motion to dismiss Kerian’s complaint and then denied
Kerian’s motion for reconsideration and to amend his
complaint. Kerian appeals the decision of the court with
respect to the majority of his claims. Specifically, he asserts
that the district court erred in (1) dismissing his claims
against the Department of Defense (“DoD”) for how it
conducted its military affairs in Operation Desert
Storm; (2) dismissing his claims against the DoD for
A6él
-¢
~
retaliating against him for reporting alleged military
violations and for constructively discharging him; (3)
refusing Kerian’s request to certify, in his name, a class of
illegitimate children of soldiers and veterans to raise claims
against the DoD; and (4) denying Kerian’s motion for
reconsideration and to amend his complaint. We affirm for
substantially the reasons given by the court below. We have
considered all of Kerian’s arguments and find them to be
without merit. We therefore AFFIRM the judgment of the
district court.
For the Court,
ROSEANN B. MACKECHNIE, Clerk of Court
_ eS ‘
Oliva M. George, Deputy Clerk
A62
APPENDIX D
UNITED STATES COURT OF APPEALS
For the Second Circuit
Thurgood Marshall U.S. Court House
40 Foley Square
New York 10007
Roseann B. MacKechnie
Clerk
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, Foley Square, in the City of New York,
on the 31st day of March, two thousand five.
PAUL D. KERIAN,
Plaintiff — Appellant,
03-
6253-CV ‘
(Seal of United States)
Court of Appeals
Second District
“Filed” Mar 31 2005)
LOUIS CALDERA, Secretary of the Army The Pentagon,
Washington, DC 20310, WILLIAM S. COHEN, Secretary of
Defense The Pentagon, Washington, DC 20301, JANE!
RENO, United
States Attorney General 950 Pennsylvania Ave. NW .,
A63
Washington, DC 20530, TOGO D. WEST, JR., Secretary of
Veterans Affairs Vermont Avenue NW., Washington, DC
20420, GEORGE BUSH,
Defendants — Appellees.
A petition for panel rehearing and a petition for rehearing en
banc having been filed herein by the appellant Paul D.
Kerian. Upon consideration by the panel that decided the
appeal, it is Ordered that said petition for rehearing is
DENIED. :
It is further noted that the petition for rehearing en banc has
been transmitted to the judges for the court in regular active
service and to any other judge that heard the appeal and that
no such judge has requested that a vote be taken thereon.
For the Court,
Roseann B. MacKechnie, Clerk
By:
(Signature)
Motion
Staff Attorney
APPENDIX E
DEPARTMENT OF THE ARMY
THE JUDGE ADVOCATE GENERAL’S SCHOOL
CHARLOTTESVILLE, VIRGINIA 22903
AETS-JA
20 NOV 91
Memorandum For the Inspector General, HQDA,
Washington, DC 20310-1720
A64
Subject: Request for Investigation and Military
Whistleblower Protection UP DOD Directive 7050.6., 10
U.S.C. 1034.
1. 1, CPT Paul D. Kerian, was the Command Judge
Advocate for VII 14th MP Bde, VII Corps, for Operations
De
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