# Petition for Writ of Certiorari — Kerian v. Harvey

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0128%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 961

## Text

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

12

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.

- 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 ,

.

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 -. 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0128%3A1. Public record. Not legal advice.