12-2803-cv
Yarusso v. 106 Rescue Wing

                             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 “SUMMARY ORDER”). A PARTY CITING 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
4th day of February, two thousand thirteen.

Present:
                CHESTER J. STRAUB,
                PETER W. HALL,
                CHRISTOPHER F. DRONEY,

                        Circuit Judges.
____________________________________________________

Richard Yarusso,

                        Plaintiff – Appellant,

                v.                                                          No. 12-2803-cv

106 Rescue Wing, New York Air National Guard, State of New York, et al.,

                        Defendants – Appellees.

____________________________________________________

FOR APPELLANT:                 Leonard Zack, Leonard Zack & Associates, New York, N.Y.

FOR APPELLEE:                  Laura R. Johnson, Assistant Solicitor General, Richard Dearing,
                               Deputy Solicitor General, Barbara D. Underwood, Solicitor
                               General for Eric T. Schneiderman, Attorney General for the State
                               of New York, New York, N.Y.

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____________________________________________________

       Appeal from a judgment of the United States District Court for the Eastern District of

New York (Wexler, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Richard Yarusso (“Yarusso”) appeals from a decision of the district

court granting a Rule 12(b)(6) motion filed by 106 Rescue Wing, the New York Air National

Guard (“NYANG”), and the State of New York (collectively “Defendants”) and dismissing

Yarusso’s complaint in its entirety. The district court concluded that Yarusso sought relief for a

“military[] decision regarding his employment” that is “precisely the type of individualized

question[] . . . prohibited from judicial review” under the doctrine of intra-military immunity.

Yarusso v. 106th Rescue Wing, No. 11-cv-3378 (LDW), 2012 WL 2155270, at *3, *4 (E.D.N.Y.

June 11, 2012) (internal quotation marks omitted). We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal, and we discuss

these only as necessary to explain our decision.

       On appeal, Yarusso contends that his complaint actually seeks relief based on the failure

of Defendants to abide by their own mandatory rules and regulations, an exception to the “rule of

non-justiciability of discretionary military decisions” applicable when “the military has failed to

follow its own mandatory regulations in a manner substantially prejudicing a service member.”

Jones v. N.Y. State Div. of Military & Naval Affairs, 166 F.3d 45, 52 (2d Cir. 1999).

Specifically, Yarusso contends that Defendants “failed to follow [their] own mandatory

regulations with regard to the handling of Yarusso’s non-retention and Complaint of Wrongs in




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[several] ways.” Each allegation of Defendant’s having disregarded mandatory regulations,

however, is without merit.

       First, Yarusso contends that his supervisor, Lt. Col. Killian (“Killian”), failed to cite an

“ineligibility factor” for his dismissal, which Yarusso argues Air National Guard Instruction

(“ANGI”) 36-2002 Table 4.1 requires. Table 4.1 only lists “ineligibility factor[s]” and

“explanation/determination guidelines” that could disqualify an enlisted individual from

reenlistment in the Air National Guard; the Table does not mention any notification

requirements. See also ANGI 36-2002 § 4.1 (Oct. 1, 2012) (“Individuals rendered ineligible for

reenlistment or extension of enlistment IAW Table 4.1, will be separated. . . .”).

       Second, Yarusso argues that Killian “violated Yarusso’s mandatory right to be considered

for Selective Retention and its attendant benefits, such as the ‘fair and impartial review’ and

appeal processes.” The governing rules of the Air Force and the Air National Guard, however,

do not mandate that enlisted members have a right to reenlist. See ANGI 36-2002 § 4.1

(mandating that retention in the Air National Guard (“ANG”) “is not an inherent right of any

individual” and that “[n]o individual will reenlist or extend their enlistment without the

concurrence of the unit commander,” who “may approve or deny reenlistments and extension of

enlistments”). Nor do they mandate that enlisted members have a right to be considered and

retained following review by the Selective Retention Review Board (“Board”). See ANGI 36-

2606 § 1.1 (Aug. 8, 2012) (stating that “[m]embership in the ANG is a privilege” and that the

ANG may force the separation of individuals when necessary to fulfill its “national security”

function). Officers and enlisted personnel who are “retirement eligible” may be subject to the

selective retention review process, which may result in their separation from the Air National

Guard. See Air Force Instruction 36-3209 §§ 2.25.1 & 3.13.1 (Apr. 14, 2005) (listing non-



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selection during the selective retention process as a reason for a unique or involuntary

separation); ANGI 36-2606, Terms, at 14-15 (defining retirement eligible as “completed 20 years

of satisfactory service”). The applicable rules and regulations, therefore, do not mandate that

Yarusso had a right to automatic reenlistment nor an automatic right to be retained in the ANG

once retirement eligible. Moreover, Yarusso was not entitled to review following his separation

because the Board only reviews for retention those individuals “not otherwise scheduled to be

separated [in] the year of the board’s review.” ANGI 36-2606 § 2.1.1.2.

        In sum, Yarusso’s first two contentions fail because he neither identifies any “actions

. . . violative of [NYANG’s] own regulations,” Crawford v. Cushman, 531 F.2d 1114, 1120 (2d

Cir. 1976), nor points to any mandatory military regulation requiring his continued enlistment or

his selection for continued service following eligibility for retirement, Ornato v. Hoffman, 546

F.2d 10, 13 (2d Cir. 1976) (“To the extent that a military regulation is mandatory, the courts will

see that it is observed.”).

        Third, Yarusso asserts that Defendants “ignored their mandatory duty to forward his

complaints to the Adjutant General” once “Yarusso attempted to receive redress by filing his

Complaints of Wrongs” and that “NYANG failed to follow its own, mandatory protocol

governing the investigation and disposition of Yarusso’s Complaints of Wrongs.” Yarusso filed

his Complaint of Wrongs pursuant to New York Code of Military Justice § 131.4, which

provides that “[a]ny member of the organized militia who believes himself wronged by his

commanding officer” and who “is refused redress . . . may complain to any superior officer who

shall forward the complaint to the adjutant general.” N.Y. Mil. Law § 131.4. This section

further provides that “the member who initiated the complaint may appeal to the governor for

redress.” Id.



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       Even if Defendants failed to abide by section 131.4’s “elaborate mechanism for

administrative relief,” Yarusso failed to exhaust the administrative relief available to him

because he never “appeal[ed] to the governor for redress.” Jones, 166 F.3d at 53-54. In Jones,

we held “that NYANG members must exhaust administrative remedies before bringing a federal

challenge based on the NYANG’s failure to follow its own regulations” because “it would

interfere unnecessarily with Guard operations were service members allowed to complain of

procedural irregularities to the courts without first appealing the error up through the chain of

command.” Id. at 54. As in Jones, Yarusso “failed to appeal . . . to the Governor of New York,”

which “deprived the Governor of an opportunity” to provide redress and which “might have

obviated any need for judicial interference in military affairs.” Id. at 54-55. We therefore

decline to review any “procedural irregularities” in Yarusso’s case due to his failure to exhaust

the remedies that were available to him. Id.

       We have considered all of Yarusso’s remaining arguments and find them to be without

merit. The judgment of the district court is AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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