Yarusso v. 106 Rescue Wing, New York Air National Guard et al
MEMORANDUM AND ORDER granting 29 Motion to Dismiss for Failure to State a Claim. For the reasons set forth herein, Deft's motion to dismiss is granted. The Clerk of the Court is directed to terminate the motion appearing at docket number 29 , and to thereafter close the file in this case. ( Ordered by Judge Leonard D. Wexler on 6/11/2012.) c/m c/Judgment Clerk. (Fagan, Linda)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
-against1061h RESCUE WING, NEW YORK AIR NATIONAL
GUARD, STATE OF NEW YORK,
IN CLERK'S OFFICE
US DISTRICT COURT E.D.N.Y
LEONARD ZACK & ASSOCIATES
BY: LEONARD ZACK, ESQ.
405 Park A venue, 101h Floor
New York, New York 10022
Attorneys for Plaintiff
.Ju:J 11 2012
LONG ISLAND OFFICE
ERIC T. SCHNEIDERMAN, ESQ.
ATTORNEY GENERAL OF THE STATE OF NEW YORK
BY: SUSAN M. CONNOLLY, ESQ.
300 Motor Parkway - Suite 205
Hauppauge, New York 11788
Attorneys for Defendants
WE)(LER, District Judge
Plaintiff Richard Yarusso ("Plaintiff'), brings this action alleging wrongdoing in
connection with his former employment with the Defendant 1061h Rescue Wing ofthe New York
h"). Also named as a Defendant is the State of New York. This
Air National Guard (the "1 061
matter was commenced in the Supreme Court ofthe State ofNew York, County of Suffolk as a
proceeding pursuant to Article 78 ofthe New York Civil Practice Law and Rules ("Article 78"),
and was thereafter removed to this court. The basis for removal is Defendants' position that
Plaintiffs claim, which is predicated upon the personnel action of the Air National Guard, is
inherently military and therefore non-justiciable. That basis of federal jurisdiction is, among
others, also a ground for Defendant's present motion, pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, to dismiss the complaint. For the reasons set forth below, the court
agrees that this matter is non-justiciable and the complaint is therefore dismissed.
Plaintiffs Employment With the Air National Guard
Prior to his May 2011 discharge, Plaintiff was a member of the 106th for twenty-two
years. The highest level position held by Plaintiff was that of Master Sargent with the 106th.
Plaintiffs state court Petition' refers to a March 5, 2006 letter that he wrote in support of James
MacQuill ("MacQuill"), a fellow member of the 106th who filed an official complaint against
Plaintiffs supervisor, Lt. Col. Killian ("Killian"). It is alleged that in or around the time that
Plaintiff sent the letter regarding MacQuill, Killian selected Master Sargent DeFelice to serve in
a position where he would be Plaintiffs supervisor. Felice is alleged to have participated in a
scheme, under the influence of Killian, pursuant to which Plaintiff would participate in the decertification and demotion of his fellow guardsmen. Plaintiff states that he refused to follow the
orders of DeFelice, which orders he characterized as improper, corrupt and dishonest. DeFelice
is alleged to have thereafter abused his authority by verbally threatening Plaintiff as well as his
fellow guardsmen, and subjecting Plaintiff to ridicule, harassment and intimidation. DeFelice's
actions are alleged to have been undertaken at the behest of Killian.
In September of2009, Plaintiff requested a meeting with DeFelice and other officers,
including Killian. Killian was not present when the meeting was convened, and it was therefore
Plaintiffs state court proceeding was commenced by way of an Article 78 Petition,
rather than a complaint.
conducted by Major Branker. Shortly after the meeting, Plaintiff was transferred from his
position under the supervision of DeFelice, to a position serving under Senior Master Sargent
Grassie. The position under Grassie was to last for the remaining six to seven months of
Plaintiffs term with the 1061h. While under his supervision, Grassie is alleged to have
recommended that Plaintiff be reenlisted, or that his current enlistment be extended beyond its
term. Killian is alleged to have ignored Grassie' s recommendation. Plaintiff alleges that
Killian's decision with respect to Plaintiffs employment was made in retaliation for his refusal
to participate in what he refers to as the "abuse of authority," by DeFelice and Killian, and not for
the good of the unit. Plaintiff asserts that when asked the reason for his action, Killian stated that
while Plaintiff had a "stellar" career, he simply needed to act pursuant to the organizational chart
and to "shake things up" in the unit. In a memorandum signed by Killian, dated September 11,
2010, Yarusso was informed that the decision declining to reenlist or extend his tour was made
"based upon the mission needs of the of the Logistics Readiness Squadron."
On September 25, 2010, Plaintiff filed a complaint with the New York State Office of the
Inspector General (the "OIG"). That complaint states Plaintiffs belief that Killian's decision not
to reenlist Plaintiffwas made in retribution for Yarusso's support of a fellow guardsman. In
addition to reciting the facts set forth above, Plaintiff complained that the timing of Killian's
decision did not afford Plaintiff sufficient time to try to continue his military career in a different
position or to get his financial affairs in order. In a letter dated December 29, 2010, the OIG
advised Plaintiff that the issues raised in his compliant were typically not appropriate for that
office. It was further stated that the best course was to inform the wing commander and have him
refer the complaint to the Adjudant General's office as required under New York State military
At or about the same time that Plaintiff filed his complaint of wrongs with the Office of
the Inspector General, Plaintiff sent a series of emails to Senior Master Sargent Bolger, which
began with inquiring as to how to appeal Killian' decision. Shortly thereafter, in what
Defendants characterize as a courtesy, Killian agreed to extend Plaintiffs enlistment for six
months beyond his originally scheduled date of separation. Despite this extension, Plaintiff
continued to question Bolger about an appeal of Killian's decision. Bolger responded that it was
the view of his office that the six month extension was made as an accommodation, but stated
that Plaintiff had the right to discuss his options with his command.
On June 13, 2011, Plaintiff was advised by the Air Force Inspector General's Office that
his complaint lacked credible evidence of a violation of law, instruction or policy. That letter
notes that Plaintiffs six month extension gave him the opportunity to pursue four separate
options. Thus, Plaintiff could have, but did not chose to: (1) find a different position within the
1061h; (2) find a position with another unit; (3) apply for an additional extension or (4) apply for
retirement. Plaintiff makes clear that he knew of his options. He states that he did not exercise
these options because he wished to stay in his current position to ensure that none his men
suffered the same fate as he.
The Article 78 Petition
Plaintiffs Article 78 Petition asserts that Killian's employment decisions with respect to
Plaintiff were arbitrary and capricious and made in violation of his "duty to make discretionary
decisions in the best interest" of the 1061h. The relief sought is re-enlistment in the 1061h as well
as compensatory and punitive damages, including back pay and benefits.
Removal and the Motion to Dismiss
As noted, the State Court proceeding was removed by Defendants to this court. Asserted
as the ground for federal jurisdiction is the argument that Plaintiffs claim, which is predicated
upon the personnel action of the Air National Guard, is inherently military and therefore nonjusticiable.
Presently before the court is Defendants' motion, pursuant to Rule 12(b)(6) ofthe Federal
Rules of Civil Procedure. Defendants argue that: (1) Plaintiff raises only military personnel
issues that are non-justiciable; (2) Defendants are immune from suit under the Feres doctrine; (3)
Plaintiff fails to state a claim, and (4) to the extent that any claim is stated, it is time-barred.
After setting forth applicable legal principles the court will tum to the merits of the
Standards on a Motion to Dismiss
In Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), the Supreme Court rejected
the "oft-quoted" standard set forth in Conley v. Gibson, 355 U.S. 41, 78 (1957), that a complaint
should not be dismissed, "unless it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief." Id. at 45-46. The court discarded
the "no set of facts" language in favor ofthe requirement that plaintiff plead enough facts "to
state a claim for reliefthat is plausible on its face." Twombly, 127 S. Ct. at 1974, see also
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009).
While heightened factual pleading is not the new order of the day, Twombly holds that a
"formulaic recitation of the elements of a cause of action will not do. Factual allegations must be
enough to raise a right to relief above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact)." Williams v. Berkshire Fin. Grp.
Inc., 491 F. Supp.2d 320,324 (E.D.N.Y. 2007), quoting, Twombly. 127 S. Ct. at 1959. In the
context of a motion to dismiss, this court must, as always, assume that all allegations set forth in
the complaint are true and draw all inferences in favor of the non-moving party. Watts v.
Services for the Underserved, 2007 WL 1651852 *2 (E.D.N.Y. June 6, 2007). The court must
ensure, however, that the complaint sets forth "enough facts to state a claim to relief that is
plausible on its face." Twombly, 127 S. Ct. at 1974. A pleading that does nothing more that
recite facts and bare legal conclusions is insufficient to "unlock the doors of discovery ... and
only a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal, 129
S. Ct. at 1950. While a Rule 12 motion is directed only to the sufficiency ofthe pleading, the
court determining the motion may rightfully consider written documents attached to the
complaint as well as documents incorporated thereto by reference and those of which plaintiff
had knowledge and relied upon in commencing the action. See Brass v. Amer. Film Techn., Inc.,
987 F.2d 142, 150 (2d Cir. 1993); Watts, 2007 WL 1651852 *2.
The doctrine of intra-military immunity recognized by the Supreme Court in Feres v.
United States, 340 U.S. 135, 146 (1950), prohibits members ofthe armed forces from bringing
lawsuits against the government for injuries that "arise out of or are in the course of activity
incident to service." Feres, 340 U.S. at 146. The rule prohibiting the judiciary from rendering
decisions Constitutionally committed to a different branch of government is grounded in the
doctrine of Separation of Powers, and prohibits the judiciary from ruling as to non-justiciable
political questions. See Baker v. Carr, 369 U.S. 186 (1962). This doctrine has been applied to
prevent the judiciary from interfering with decisions regarding internal personnel matters of the
military, which includes entities such as the Defendant Air National Guard. E.g., Gilligan v.
Morgan, 413 U.S. 1 (1973); Dibble v. Fenimore, 339 F.3d 120 (2d Cir. 2003). Thus, the Supreme
Court has noted that the judicial branch lacks the power to make decisions as to the
"composition, training, equipping and control of a military force." Gilligan, 413 U.S. at 10; see,
v. Wallace, 462 U.S. 296 (1983).
In Chappell for example, the Court held that the judiciary lacked the power to adjudicate
the claim of five enlisted men who alleged that they were given undesirable duties and low
performance evaluations on account of their race. Chappell, 462 U.S. at 297. Noting, as it had in
the past, the "peculiar and special relationship of the soldier to his superiors," and that "judges
are not given the task of running the Army," the Court held that the plaintiff enlisted military
personnel could not maintain their lawsuit alleging a Constitutional violation. Chappell, 462 U.S.
at 300, 305 (citations omitted). The Second Circuit has ruled specifically that lawsuits brought by
members of the military alleging violations of 42 U.S.C. § 1983 are barred by this doctrine of
intramilitary immunity. Jones v. New York State Division ofMilitary and Naval Affairs, 166
F.3d 45, 51 (2d Cir. 1999); see also Overton v. New York State Div. ofMilitary and Naval
Affairs, 373 F.3d 83, 88-89 (2d. Cir. 2004)( Peres doctrine bars members of the military from
bringing Title VII employment discrimination suits challenging military employment decisions);
Roper v. Department of Army, 832 F.2d 247, 248 (2d Cir. 1987) (same).
The prohibition on judicial review of military decisions is not absolute. Thus, a court
may entertain a lawsuit alleging that the military has failed to follow its own mandatory
regulations. Jones v. New York State Division ofMilitary and Naval Affairs, 166 F.3d 45, 52
(2d Cir. 1999). When determining whether a lawsuit is justiciable, the court does not focus on the
nature of the relief sought. The issue is not whether Plaintiff seeks purely equitable relief or
money damages. Instead, the issue is whether the challenge is to the Constitutionality of a rule of
"general applicability," or to a "discrete military personnel decision." Dibble, 339 F.3d at 127
(citations omitted). The latter, which "involve[s] a fact-specific inquiry into an area affecting
military order and discipline," is non-justiciable. Id. at 128. Such considerations make courts
reluctant to become involved in decisions regarding military personnel decisions.
States v. Stanley, 483 U.S. 669,682 (1987); Brown v. Glines, 444 U.S. 348, 360 (1980).
Disposition of the Motion
This court recently decided the case of Jones v. 106th Rescue Wing, 2012 WL 1530776
(E.D.N.Y. 2012). As there, a review of the facts in this matter reveals that this case should be
dismissed. Plaintiff here complains that the military's decision regarding his employment was
wrongfully decided due to the ill will of Killian. As in Jones, the military decision here is
"precisely the type of individualized questions that are prohibited from judicial review under the
precedent discussed above." Jones, 2012 WL 1530776 *5. Accordingly, the court dismisses
Plaintiffs complaint in its entirety.
For the foregoing reasons, Defendant's motion to dismiss is granted. The Clerk of the
Court is directed to terminate the motion appearing at docket number 29, and to thereafter close
the file in this case.
L~NARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Central Islip, New York
June, J I , 2012
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