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December 5, 1985


The opinion of the court was delivered by: SWEET


Defendant United States of America (the "government") has moved for an order pursuant to Federal Rule of Civil Procedure 12(b)(1) dismissing the complaint of plaintiff Jesus Roberto Ayala ("Ayala") for lack of subject matter jurisdiction and for failure to exhaust administrative remedies or, in the alternative, for an order granting summary judgment pursuant to Rule 56(b). Ayala, proceeding pro se, claims that certain actions taken by his Marine Corps superiors were racially motivated, resulting in his transfer from the Selected Marine Corps Reserves to the Individual Ready Reserves. For the reasons set forth below, the court grants the motion to dismiss for lack of subject matter jurisdiction and finds that Ayala has failed to exhaust the available administrative remedies.

 Ayala, a gunnery sergeant in the United States Marine Corps Reserves, brings this action seeking retroactive pay and promotion, medical care, and pension benefits denied to him because of a transfer from the Selected Marine Corps Reserves to the Individual Ready Reserves in April, 1983. At the time of Ayala's transfer to the Individual Ready Reserves, he had completed sixteen creditable years of service towards the necessary twenty-year minimum for retirement from the reserves. Ayala contends that his transfer was racially motivated because he is Hispanic, and he seeks damages totalling $17,000,000.00.

 In April, 1983 Ayala sent a letter to the "Commanding General USMC" requesting an interview to discuss grievances and alleging discrimination within his reserve unit. An investigation was commenced pursuant to this complaint which culminated in a report on October 21, 1983, which concluded that Ayala's transfer was not in violation of applicable regulations and that no discrimination was present in Ayala's unit. Ayala also contacted his Congressman for assistance and received a letter adopting the conclusions of the military investigation.

 Because Ayala is proceeding pro se, this court will be solicitious in determining whether his complaint states a colorable claim, Robles v. Coughlin, 725 F.2d 12 (2d Cir. 1983) and will dismiss only if it is "beyond doubt that plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972). Towards this end, the jurisdictional question will be analyzed as if Ayala has claimed discriminatory reassignment against both the United States and the superior officers whom Ayala names in his moving papers.

 Government as Defendant

 The United States, as sovereign, is generally immune from suit unless it specifically consents to be sued and such consent is unequivocally expressed. United States v. Mitchell, 445 U.S. 535, 538, 63 L. Ed. 2d 607, 100 S. Ct. 1349 (1980); Keene Corp. v. United States, 700 F.2d 836, 841 (2d Cir. 1983). We are unable to exercise subject matter jurisdiction over Ayala's damage claims against the United States because no such waiver of immunity exists for Ayala's constitutional claims.

 The Tucker Act, 28 U.S.C. § 134(a)(2) and § 1491(a)(2)(1982) might provide Ayala with jurisdiction for an action seeking back pay, as it provides a limited waiver of sovereign immunity for servicemen alleging wrongful discharge from the military. See, e.g., Sanders v. United States, 219 Ct. Cl. 285, 594 F.2d 804 (Ct.Cl. 1979). The Act grants jurisdiction to the federal courts to hear money claims against the United States "founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491. Construed in its most favorable light, Ayala's claim might be considered an action for back pay under the Reservists Pay Mandating Statute, 37 U.S.C. § 206 (1982), based on the allegedly wrongful transfer from Class II to Class III Reservist status. However, where the Tucker Act, 28 U.S.C. § 1346(a)(2), does confer concurrent jurisdiction upon the United States district courts and the claims court for such actions based on the Constitution or Acts of Congress for amounts not exceeding $10,000, claims in excess of that amount are within the exclusive jurisdiction of the Court of Claims. 28 U.S.C. § 1491. Here Ayala claims damages in excess of $17,000,000, far outstripping the maximum jurisdictional amount of this court under the Tucker Act. Thus, even if Ayala had properly pleaded a claim for military back pay, his damage claims would be dismissed for lack of jurisdiction, or transferred to the Claims Court if appropriate. Crawford v. Cushman, 531 F.2d 1114, 1126 n.17 (2d Cir. 1976), citing Carter v. Seamans, 411 F.2d 767 (5th Cir. 1969) (serviceman's claim for back pay and correction of military records dismissed without prejudice to be pursued in Claims Court once the grant of relief in excess of Tucker Act limit would undermine jurisdiction of the Claims Court).

 The Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. similarly does not provide jurisdictional basis for Ayala's claim. Although the Act is a general waiver of sovereign immunity for tort claims involving money damages against the United States, the Supreme Court through the Feres doctrine established an exception for injuries arising out of the course of activity incident to military service. Feres v. United States, 340 U.S. 135, 95 L. Ed. 152, 71 S. Ct. 153 (1950); Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 52 L. Ed. 2d 665, 97 S. Ct. 2054 (1977); Chappell v. Wallace, 462 U.S. 296, 76 L. Ed. 2d 586, 103 S. Ct. 2362 (1983) (applying the Feres doctrine to bar a Bivens -type action against superior officers of military personnel).

 While the federal courts do have jurisdiction to review the Constitutionality of prescribed military procedures, Estep v. United States, 327 U.S. 114, 120, 90 L. Ed. 567, 66 S. Ct. 423 (1946), Ayala charges a racially discriminatory motive for his charge of reservist status, and not the facial unconstitutionality of a particular regulation. See, e.g. Brown v. Glines, 444 U.S. 348, 62 L. Ed. 2d 540, 100 S. Ct. 594 (1980) (First Amendment attack on Air Force regulation authorizing base commander to regulate circulation of petitions); Parker v. Levy, 417 U.S. 733, 41 L. Ed. 2d 439, 94 S. Ct. 2547 (1974) (void for vagueness attack on the Uniform Code of Military Justice); Frontiero v. Richardson, 411 U.S. 677, 36 L. Ed. 2d 583, 93 S. Ct. 1764 (1973) (equal protection challenge to military benefit plans for service women).

 Superior Officers as Defendant

 Even if this court construes Ayala's claim as a suit against his superior officers, federal court jurisdiction is barred by the Feres doctrine of intra-military immunity. the Supreme Court's recent decision in Chappell v. Wallace, supra, 462 U.S. 296 held that military personnel cannot maintain actions against superior officers for violations of their Constitutional rights in the course of military service. Extending the scope of the Feres doctrine to suits against specific officers, the Court indicated that a claim founded directly under the Constitution pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971) was barred by doctrines intra-military immunity. The Court reasoned "Civilian courts must, at the very least, hesitate long before entertaining a suit which asks the court to tamper with the established relationship between enlisted military personnel and their superior officers; that relationship is at the heart of the necessarily unique structure of the Military Establishment." Chappell v. Wallace, supra, 462 U.S. at 300.

 Administrative Remedies

 Congress has enacted an intricate scheme of administrative remedies to handle the grievances of military personnel, and these are the appropriate forum for Ayala's claims. The Uniform Code ...

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