United States District Court, E.D. New York
January 4, 2005.
MANDEL FOGEL, Plaintiff,
SECRETARY OF THE AIR FORCE, and CIVILIAN MILITARY REVIEW BOARD, Defendants.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
Presently before the Court is a motion by the defendants
Secretary of the Air Force and the Civillian Military Review
Board (collectively the "Defendants") to dismiss the complaint
filed by the pro se plaintiff Mandel Fogel (the "Plaintiff")
based on the doctrine of res judicata, or in the alternative,
for lack of subject matter jurisdiction pursuant to Fed.R. Civ.
P. 12(b)(1); failure to state a claim pursuant to Fed.R.Civ.P.
12(b)(6); and improper and untimely service pursuant to
This lawsuit was commenced on October 28, 2003 in the Supreme
Court of the State of New York, County of Nassau. On January 20,
2004, the Defendants removed the action to this Court pursuant to
28 U.S.C. §§ 1346, 1442(a)(1), and 1442a. On May 19, 2004, the
Court denied the Plaintiff's motion to remand the case back to
the Supreme Court of the State of New York finding that removal
was proper in that agencies of the United States were defendants
in the action.
In his pro se complaint, the Plaintiff alleges that he was
discriminated against under 42 U.S.C. § 1983 when the Defendants
denied him veteran status in 1982. In particular, the Plaintiff
argues that the Defendants failed to apply the proper Department
of Defense criteria when they determined that he was ineligible
for veteran status. The Plaintiff claims that this failure
constitutes discrimination under § 1983 because other
individuals, such as Women Air Service Pilots, telegraph
operators, dieticians, and physical therapists, were granted
veteran status while the Plaintiff, a former member of the United
States Maritime Service, was denied this status. According to the
complaint, this denial was conduct that was illegal and in
violation of the Plaintiff's rights and privileges under the
Constitution and Civil Rights Act. The Plaintiff asks that he be
accorded veteran status; that the Defendants issue to him a DOD
2214, otherwise known as a DD 2214 "Certificate of Release or
Discharge from Active Duty;" and that he be given a military
funeral with the United States flag draped over his coffin.
In 2001, the Plaintiff commenced an action against the same
defendants seeking substantially the same relief, specifically,
"a declaratory judgment stating that [the Plaintiff] is a veteran
for the purpose [of] receiving a military burial . . . and
etching the image of the American flag on his gravestone." Fogel
v. Department of Defense, 169 F. Supp. 2d 140, 142 (E.D.N.Y.
2001) (the "2001 Action"). The Plaintiff's 2001 Action was
dismissed by this Court as time-barred. The Court also noted that
"even if the complaint had been timely, the decision of the
Secretary of the Air Force, dated January 23, 1982, which denied
active military service status to the Maritime Service Training
Organization would be affirmed on the ground that the decision is
not arbitrary, capricious, an abuse of discretion or otherwise
contrary to law." Id. at 157-58. On June 14, 2002, the Second
Circuit Court of Appeals affirmed this Court's decision. See
Fogel v. DOD, 36 Fed. Appx. 473, 474 (2d Cir. 2002).
The Defendants argue, among other grounds, that the Plaintiff's
previous action, which was dismissed on the merits and affirmed
on appeal, precludes any subsequent action against the same
parties based on the same events.
A. Standard of Review
1. 12(b)(6) Standard
In deciding a motion to dismiss under Rule 12(b)(6), a district
court must "accept all of the plaintiff's factual allegations in
the complaint as true and draw inferences from those allegations
in the light most favorable to the plaintiff." Desiderio v.
National Ass'n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir.
1999). A complaint should not be dismissed "unless it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Dangler
v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d
Cir. 1999) (quoting Conley v. Gibson, 355 U.S. 41, 45-46,
2 L.Ed. 2d 80, 78 S. Ct. 99, 102 (1957)). "The issue is not whether a
plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims." King v.
Simpson, 189 F.3d 248, 287 (2d Cir. 1999) (quoting Villager
Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1999)).
"In addition to the forgoing standard governing Rule 12(b)(6)
motions, the Court must be mindful of the relevant rules of
pleading. In general, a plaintiff need only provide `a short and
plain statement of the claim showing that the pleader is entitled
to relief, Fed.R.Civ.P. 8(a)(2), and `all pleadings shall be
construed as to do substantial justice,' Fed.R.Civ.P. 8(f)."
Protter v. Nathan's Famous Sys., Inc., 904 F. Supp. 101, 105
2. The Plaintiff's Pro Se Status
The Court is mindful that the plaintiff is proceeding pro
se and that his submissions should be held "`to less stringent
standards than formal pleadings drafted by lawyers. . . .'"
Hughes v. Rowe, 449 U.S. 5, 9, 66 L. Ed. 2d 163, 101 S. Ct. 173
(1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519,
520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972)). District courts
should "read the pleadings of a pro se plaintiff liberally and
interpret them `to raise the strongest arguments that they
suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.
1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.
1994)). Nevertheless, the Court is also aware that pro se
status "does not exempt a party from compliance with relevant
rules of procedural and substantive law. . . ." Traguth v.
Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (internal quotations and
citation omitted). Hence, the doctrine of res judicata is equally
applicable to pro se plaintiffs. See, e.g., Lacy v.
Principi, 317 F. Supp. 2d 444, 445 (S.D.N.Y. 2004).
B. The Doctrine of Res Judicata
The doctrine of res judicata or claim preclusion simply means
that when a judgment is rendered on the merits, it bars a second
suit between the same parties or their privies based on the same
cause of action or claims. See Cieszkowska v. Gray Line New
York, 295 F.3d 204, 205 (2d Cir. 2002); Waldman v. Village of
Kiryas, 207 F.3d 105, 108 (2d Cir. 2000); U.S. v. Alcan
Aluminum, 990 F.2d 711 (2d Cir. 1993). For purposes of res
judicata, a dismissal pursuant to Rule 12(b)(6) is an
adjudication on the merits. Nowak v. Ironworkers, 81 F.3d 1182
(2d Cir. 1996) (citing Exchange Nat'l Bank v. Touche Ross &
Co., 544 F.2d 1126 (2d Cir. 1976), modified on other grounds,
726 F.2d 930 (2d Cir. 1984)). "A final judgment on the merits of
an action precludes the parties or their privies from
relitigating issues that were or could have been raised in that
action." Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394,
398, 69 L. Ed. 2d 103, 101 S. Ct. 2424 (1981); accord St.
Pierre v. Dyer, 208 F.3d 394, 399 (2d Cir. 2000). "Whatever
legal theory is advanced, when the factual predicate upon which
claims are based are substantially identical, the claims are
deemed to be duplicative for purposes of res judicata." Berlitz
Sch. of Languages of Am., Inc. v. Everest House, 619 F.2d 211,
215 (2d Cir. 1980). Thus, res judicata not only bars parties from
relitigating the same cause of action, but also "prevents
litigation of a matter that could have been raised and decided in
a previous suit, whether or not it was raised." Murphy v.
Gallagher, 761 F.2d 878, 879 (2d Cir. 1985); see also L-Tec
Elecs. Corp. v. Cougar Elec. Org., Inc., 198 F.3d 85, 87-88 (2d
To determine whether res judicata applies to preclude later
litigation, a court must find that "(1) the previous action
involved an adjudication on the merits; (2) the previous action
involved the [parties] or those in privity with them; [and] (3)
the claims asserted in the subsequent action were, or could have
been, raised in the prior action." Pike v. Freeman,
266 F.3d 78, 91 (2d Cir. 2001).
Res judicata may not apply where a prior action "involved only
a request for declaratory relief." Harborside Refrigerated
Servs., Inc. v. Vogel, 959 F.2d 368, 372 (2d Cir. 1992). "Under
this exception, the preclusive effect of the declaratory judgment
is limited to the subject matter of the declaratory relief
sought." Id.; see, e.g., Umhey v. County of Orange,
957 F. Supp. 525, 528 (S.D.N.Y. 1997) (holding that monetary relief may
be sought after the conclusion of an action for declaratory
This case seeks the same declaratory relief against the same
defendants as the 2001 Action, but presents a different legal
theory, namely, discrimination under § 1983. As clearly indicated
by comparing of the present complaint and the prior complaint,
the claims in the pending complaint arise out of the same
transactions or occurrences as the claims in the 2001 Action. The
Plaintiff's allegation of discrimination is based on the same
facts and events from 1982 and was available to the Plaintiff at
the time of the 2001 Action, which was dismissed as time-barred.
It is well-settled that "a dismissal for failure to comply with
the statute of limitations will operate as an adjudication on the
merits, unless it is specifically stated to be without
prejudice." PRC Harris, Inc. v. Boeing Co. 700 F.2d 894, 896
(2d Cir. 1983); see also Pentagen Technologies Intern., Ltd.
v. CACI Intern. Inc., 1996 WL 435157, at *9 (S.D.N.Y. 1996).
Accordingly, The Plaintiff cannot advance a new legal theory or
claim on the same set of facts given the previous dismissal of
his case on the merits.
As stated in the Court's previous Memorandum of Decision and
Order dated October 29, 2001, the Plaintiff may submit an
application to the Department of Defense Civilian/Military
Service Review Board for reconsideration of the eligibility of
his veteran status based on the new criteria contained in the
regulations located at title 32, section 47.4 of the Code of
Federal Regulations. However, any action in this Court based on
the Plaintiff's previous application in 1982 for veteran status
must be dismissed on the basis of the doctrine of res judicata.
Having reviewed the parties' submissions, it is hereby
ORDERED, that the plaintiff's complaint is dismissed as
barred by the doctrine of res judicata; and it is further
ORDERED, that the Clerk of the Court is directed to close
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