
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-2462                                     JOHN F. DIEKAN, CAPTAIN, U.S. ARMY,                                Plaintiff, Appellant,                                          v.                         MICHAEL P.W. STONE, SECRETARY OF THE                                    ARMY, ET AL.,                                Defendants, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ___________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ___________________               John F. Diekan on brief pro se.               ______________               A. John  Pappalardo, United States Attorney,  Annette Forde,               ___________________                           _____________          Assistant  United  States Attorney,  Diana  Moore, Major,  United                                               ____________          States  Aremy,  U.S  Army  Litigation  Division,  and  Lieutenant                                                                 __________          Colonel W. Gary  Jewell, U.S. Army  Litigtion Division, on  brief          _______________________          for appellees.                                  __________________                                    June 10, 1993                                  __________________                      Per Curiam.   Plaintiff, an active  duty officer in                      __________            the  Judge  Advocate  General's  Corps  ("JAGC"), filed  this            action  challenging Army  orders  transferring him  from Fort            Devens, Massachusetts to Camp  Casey, Korea.  Defendant moved            to  dismiss the complaint for  failure to state  a claim upon            which  relief  can be  granted.   Fed.  R. Civ.  P. 12(b)(6).            After a careful and thorough review of the issues in light of            the  test set forth in  Penagaricano v. Llenza,  747 F.2d 55,                                    ____________    ______            60-61 (1st Cir. 1984),            the district court dismissed plaintiff's complaint because it            presented a non-justiciable  military controversy.   See also                                                                 ________            Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971).              ______    ______                      On appeal plaintiff argues  that the district court            erred  by applying  the wrong  standard under  Rule 12(b)(6).            Plaintiff urges that the  court erroneously failed to resolve            all reasonable  inferences in plaintiff's favor,  and did not            require  a showing  that the  facts alleged  were undoubtedly            insufficient to  make out claims  based on violations  of due            process, army regulations and breach of contract.                          Plaintiff misperceives  the  focus of  the  court's            decision.  The  court did not undertake  to determine whether            plaintiff's complaint alleged  facts sufficient  to make  out            all  the elements  of a  legally cognizable  claim, the  more            usual  inquiry under Rule 12(b)(6).   Rather, even assuming a            proper  statement of  the claims  under substantive  law, the                                         -2-            court decided, as a  matter of "policy akin to  comity," that            these were  not claims  "upon which relief  can be  granted."            Fed.  R. Civ. P. 12(b)(6);  see Penagaricano, 747  F.2d at 60                                        ___ ____________            (quoting Mindes, 453  F.2d at  199).  Under  our cases,  that                     ______            decision  necessarily  required  a candid  assessment  of the            "nature and strength" of  the claims "in light of  the policy            reasons behind nonreview of military matters."  Penagaricano,                                                            ____________            747 F.2d at 60 (quoting Mindes, 453 F.2d at 201).                                     ______                      We also reject  plaintiff's remaining challenges to            the  balance struck by the  district court under  each of the            policy factors, for essentially the same reasons as stated in            the district court's opinion.                      Affirmed.                             ________                                                                                        -3-
