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 United States district
courts and the Court of Federal Claims, claims in excess of $10,000 are
within the exclusive jurisdiction of the Court of Federal Claims. See
Eastern Enterprises v. Apfel, 524 U.S. 498, ___, 118 S.Ct. 2131, 2144,
141 L.Ed.2d 451 (1998). Here, plaintiff claims damages of $25,000,000,
which far exceeds the maximum jurisdictional amount of this court under
the Tucker Act.
Defendants' motion for summary judgment is granted and plaintiff's
complaint is dismissed for lack of jurisdiction because of plaintiff's
failure to exhaust his administrative remedies.
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