    15-1374
    Lasky v. McHugh


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                   SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                  At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 24th day of August, two thousand sixteen.

    PRESENT:
                ROSEMARY S. POOLER,
                GERARD E. LYNCH,
                SUSAN L. CARNEY,
                      Circuit Judges.
    _____________________________________

    Raymond Lasky,

                            Plaintiff-Appellant,

                      v.                                                        15-1374

    John McHugh, Secretary of the Army,

                            Defendant-Appellee.

    _____________________________________


    FOR PLAINTIFF-APPELLANT:                       Raymond Lasky, pro se, Ansonia, CT.

    FOR DEFENDANT-APPELLEE:                        Carolyn A. Ikari, Marc H. Silverman, Assistant
                                                   United States Attorneys, for Deirdre M. Daly, United
                                                   States Attorney for the District of Connecticut, New
                                                   Haven, CT.
       Appeal from a judgment of the United States District Court for the District of Connecticut

(Thompson, J.).


       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Raymond Lasky, proceeding pro se, appeals from a judgment in favor of the

Secretary of the Army in his suit challenging his bad conduct discharge after a series of 1951

court-martial convictions. We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

       We review a district court’s decisions on pretrial discovery and evidentiary hearings for

abuse of discretion. Pippins v. KPMG LLP, 759 F.3d 235, 251 (2d Cir. 2014) (discovery); Zappia

Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000) (evidentiary

hearing). We conclude that the district court did not abuse its discretion by denying Lasky’s

discovery motion or by failing to hold an evidentiary hearing before dismissing his complaint.

Even liberally construing Lasky’s complaint, the district court properly dismissed most of his

claims under Federal Rules of Civil Procedure 12(b)(1) and (6) without the need to examine

evidence. See Halebian v. Berv, 644 F.3d 122, 130 (2d Cir. 2011) (observing that courts do not

ordinarily look beyond the complaint and attached documents in deciding a Rule 12(b)(6) motion);

Gualandi v. Adams, 385 F.3d 236, 245 (2d Cir. 2004) (finding no abuse of discretion where

plaintiffs had not demonstrated how discovery was needed to overcome jurisdictional challenge

under Rule 12(b)(1)). And “[i]t is a fundamental rule of administrative law that a reviewing court,

in dealing with a determination or judgment which an administrative agency alone is authorized to

make, must judge the propriety of such action solely by the grounds invoked by the agency.”

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Watson v. Geren, 587 F.3d 156, 164 (2d Cir. 2009) (alteration and internal quotation marks

omitted).

       We review de novo a dismissal under Rules 12(b)(1) or 12(b)(6), as well as a grant of

summary judgment under Rule 56, “construing all evidence in the light most favorable to the

non-moving party.” Willey v. Kirkpatrick, 801 F.3d 51, 61–62 (2d Cir. 2015); see also Tsirelman

v. Daines, 794 F.3d 310, 313 (2d Cir. 2015), cert. denied sub nom. Tsirelman v. Zucker, 136 S. Ct.

811 (2016). Because Lasky proceeds pro se, we “must interpret his papers liberally to raise the

strongest arguments that they suggest.” Willey, 801 F.3d at 62 (internal quotation marks omitted).

       Upon review we conclude that the district court properly granted summary judgment on

Lasky’s claim under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and properly

dismissed his remaining claims for failure to state a claim or for lack of jurisdiction. Except as

noted below, we affirm for substantially the reasons stated by the district court in its thorough

March 17, 2015 decision.

       Although the district court correctly observed that any direct challenge to Lasky’s 1951

court-martials would be time barred, the court lacked jurisdiction to hear a direct appeal from the

court-martials. See Schlesinger v. Councilman, 420 U.S. 738, 746 (1975) (explaining that Article

III courts lack jurisdiction to directly review court-martial determinations); see also Beth Israel

Med. Ctr. v. Horizon Blue Cross & Blue Shield of N.J., Inc., 448 F.3d 573, 580 (2d Cir. 2006)

(“This Court may affirm an appealed decision on any ground which finds support in the record,

regardless of the ground upon which the trial court relied.” (internal quotation marks omitted)).

       Similarly, to the extent Lasky sought habeas relief from his 1951 court-martial convictions

under 28 U.S.C. § 2241, the district court lacked jurisdiction to hear such a challenge because


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Lasky was not “in custody” under the challenged sentence. See 28 U.S.C. § 2241(c)(1), (3);

Williams v. Edwards, 195 F.3d 95, 96 (2d Cir. 1999). And although the district court failed to

warn Lasky that it might treat his complaint as a habeas petition and give him an opportunity to

decline the conversion, see Simon v. United States, 359 F.3d 139, 145 (2d Cir. 2004), any error was

harmless; Lasky could not then, and cannot going forward, satisfy § 2241’s jurisdictional “in

custody” requirement with respect to his court-martial conviction, obviating any concerns about

second or successive petitions.

       We have considered Lasky’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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