The opinion of the court was delivered by: Gershon, District Judge.
Plaintiff Anthony Mark Janniere, a former cadet candidate at the United
States Military Academy Preparatory School ("USMAPS") in Fort Monmouth,
New Jersey, alleges that defendants, the United States Army, the United
States of America, Togo D. West, Jr., Colonel Ricky Kolb, Major John
Driscoll and Captain Albert Maxwell, discriminated against him on the
basis of his race in violation of Title VII of the Civil Rights Act of
1964 ("Title VII"), 42 U.S.C. § 2000e et seq. Plaintiff also brings
claims under the Fourth, Sixth, and Fourteenth Amendments, and
10 U.S.C. § 831, alleging that his dismissal from USMAPS violated his
civil rights and deprived him of due process. Plaintiff seeks: (1)
immediate reinstatement to USMAPS; (2) a public apology and redaction of
plaintiff's personnel file; (3) twenty-five million dollars; (4)
attorney's fees and (5) punitive damages. Defendants move to dismiss the
complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6).
Federal Rule of Civil Procedure 12(b)(6) provides that "if, on a motion
. . . to dismiss for failure of the pleading to state a claim upon which
relief can be granted, matters outside the pleading are presented to and
not excluded by the court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56. . . ." Both sides have
presented material outside the complaint to this court and have agreed to
treat this motion as one for summary judgment. I agree to consider the
additional material and therefore convert defendants' motion to dismiss
into one for summary judgment.
Pursuant to Rule 56(c), summary judgment should be granted "if the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law." It is the movant's burden to demonstrate
the absence of any genuine issue of material fact, Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), which are
facts whose resolution would "affect the outcome of the suit under
governing law." Anderson. v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986). Demonstration of the absence of a
material fact is defeated by the non-movant's presentation of evidence
sufficient to establish "that a reasonable [fact-finder] could return a
verdict for the non-moving party." Id. In making a determination as to
whether a genuine dispute as to a material fact exists, "all justifiable
inferences" from the factual record before the court are to be drawn in
favor of the non-movant. Id. at 255, 106 S.Ct. 2505.
It is undisputed that plaintiff is a 21-year-old African-American male
who enlisted in the United States Army and entered USMAPS as a cadet
candidate on July 22, 1995, and that plaintiff was discharged from
service on or about November 16, 1995. Defendants claim that plaintiff
was discharged for various acts of misconduct. Plaintiff alleges that he
was racially mistreated and ultimately discharged on racial grounds.
Defendants argue that this court lacks subject matter jurisdiction
because plaintiff failed to exhaust his administrative remedies by
failing to appeal to the Army Board for Correction of Military Records
("ABCMR"). It is undisputed that plaintiff failed to file an appeal with
the ABCMR prior to filing his complaint. Nevertheless, plaintiff asserts
that he asked for a full explanation for his discharge in a letter
addressed to defendant Kolb, dated March 18, 1996, and this request,
plaintiff argues, "can be interpreted as a formal request for a hearing."
The exhaustion doctrine, under which a party may not seek federal
judicial review of an adverse administrative determination until the
party has first sought all possible relief within the agency itself, is
strictly applied in military discharge cases. Guitard v. U.S. Secretary
of the Navy, 967 F.2d 737, 739 (2d Cir. 1992); Phillips v. United
States, et al., 910 F. Supp. 101, 106 (E.D.N.Y. 1996). It is not disputed
that administrative appeals from military discharges lie to the ABCMR.
The ABCMR has the authority to "correct any [Army] record"
whenever it is "necessary to correct an error or remove an injustice."
10 U.S.C. § 1552(a). This includes the the authority to consider
claims based on "constitutional, statutory and/or regulatory violations,"
32 C.F.R. § 581.3(c)(5)(v), and the broad equitable power to order
backpay and reinstatement of individual service members.
10 U.S.C. § 1552(a) & (c). See Guitard, 967 F.2d at 740; Knehans v.
Alexander, 566 F.2d 312, 314 (D.C.Cir. 1977). Since it is undisputed that
plaintiff failed to file an appeal with the ABCMR before filing his
complaint in this court, he has failed to exhaust his administrative
remedies. Plaintiff's request for an explanation from defendant Kolb does
not satisfy the exhaustion requirement.
There are four circumstances when exhaustion of administrative remedies
may not be required: (1) available remedies provide no genuine
opportunity for adequate relief; (2) irreparable injury may occur without
immediate judicial relief; (3) administrative appeal would be futile; and
(4) in certain instances a plaintiff has raised a substantial
constitutional question. Guitard, 967 F.2d at 740. Although plaintiff has
not argued that an exception to the exhaustion requirement applies in
this case, I will address each in turn.
First, the ABCMR offers genuine opportunities for relief. Plaintiff's
principal claim is for reinstatement based on constitutional and statutory
violations, which the ABCMR has the power to consider.
32 C.F.R. § 581.3(c)(5)(v). Plaintiff's claim for damages does not
excuse him from first exhausting his administrative remedies: "a
boilerplate claim for damages will not automatically render the
administrative remedy inadequate. Where the relief claimed is the only
factor that militates against the application of the exhaustion
requirements, the complaint should be carefully scrutinized to insure
that the claim for relief was not inserted for the sole purpose of
avoiding the exhaustion rule." Plano v. Baker, 504 F.2d 595, 598 (2d
Cir. 1974). Here, the ABCMR is competent to award backpay and any
benefits due. 10 U.S.C. § 1552(a) & (c); see Guitard, 967 F.2d at
740. Plaintiff's incidental claim for money damages does not form the
basis of an exception to the exhaustion requirement. See, e.g., Ayala v.
United States, 624 F. Supp. 259, 262-63 (S.D.N.Y. 1985) (finding that
plaintiff's claim for damages did not excuse him from first exhausting his
administrative remedies where the Board was competent to award back pay
and any benefits due).
Second, plaintiff's claim is not of "irreparable injury." Indeed,
plaintiff filed his complaint more than two years after the incident
giving rise to his injury arose and has not sought preliminary injunctive
Third, there is no reason to conclude that plaintiff's administrative
appeal would be futile. Pursuant to 10 U.S.C. § 1552(b), plaintiff had
three years from the date of his discharge to request a review of his
discharge from the ABCMR, or until November 16, 1998. On oral argument,
plaintiff's counsel stated that she had filed an appeal to the ABCMR after
the filing of this motion. Until the ABCMR acts upon this application,
plaintiff's administrative remedies have not been exhausted, See, e.g.,
Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994).
Fourth, plaintiff alleges a lack of due process, lack of representation
and lack of other constitutional safeguards. Here, as in Guitard, 967
F.2d at 739, these constitutional claims can be heard by the
administrative agency and are not properly treated as giving rise to an
exception to the exhaustion requirement. Similarly, in Ayala, 624 F.
Supp. at 262, the court found plaintiff's claims of racial motivation
insufficient to overcome the exhaustion requirement. Accordingly,
plaintiff's claims are dismissed pursuant to Fed.R.Civ.P. 12(b)(1) for
lack of subject matter jurisdiction because of plaintiff's failure to
exhaust his administrative remedies.
Finally, much of the relief sought in this court cannot be awarded here
in any event. Plaintiff alleges that defendants discriminated against his
on the basis of his race in violation of Title VII, but Title VII does
not apply to uniformed members of the armed forces. Roper v. Department
of the Army, 832 F.2d 247 (2d Cir. 1987); Cedano v. United States
Government, No. 86-CV-2223,
1989 WL 23901 (E.D.N.Y. March 13, 1989). Moreover, this court does not
have jurisdiction over plaintiff's constitutional claims against
defendants West, Koib, Driscoll, and Maxwell because enlisted military
personnel may not maintain a suit to recover damages from a superior
officer for alleged constitutional violations. Chappell v. Wallace,
462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). As to plaintiff's
claim for money damages against the United States, the Tucker Act,
28 U.S.C. § 1346(a)(2) and § 1491(a)(2), provides a limited
waiver of sovereign immunity for servicemen and service-women alleging
wrongful discharge from the military. See Ayala, 624 F. Supp. at 261
(citation omitted). 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(a)(1). However, while the Tucker Act does
confer limited concurrent jurisdiction upon the ...