Jones v. New York State Division of Military and Naval Affairs

Decision Date07 January 1999
Citation166 F.3d 45
PartiesFrank D. JONES, Plaintiff-Appellant, v. NEW YORK STATE DIVISION OF MILITARY AND NAVAL AFFAIRS and New York State Army National Guard, Defendants-Appellees. Docket 97-7723.
CourtU.S. Court of Appeals — Second Circuit

Bradley A. Sherman, O'Connell and Aronowitz, Albany, New York, for Plaintiff-Appellant.

Michael S. Buskus, Assistant Attorney General, (Peter H. Schiff, Deputy Solicitor General, Nancy A. Spiegel, Assistant Attorney General, Dennis C. Vacco, Attorney General of the State of New York, on the brief), Albany, New York, for Defendants-Appellees.

Before: KEARSE and WALKER, Circuit Judges, and WEINSTEIN, District Judge *.

JOHN M. WALKER, Jr., Circuit Judge:

This is an appeal from the judgment of the United States District Court for the Northern District of New York (Lawrence E. Kahn, District Judge ) (1) dismissing, on grounds of Eleventh Amendment immunity, plaintiff-appellant Frank D. Jones's 42 U.S.C. § 1983 action alleging that defendants-appellees, the New York State Division of Military and Naval Affairs ("DMNA") and the New York State Army National Guard ("NYANG" or "the Guard"), removed Jones from the NYANG's aviation service without due process of law in violation of the Fifth and Fourteenth Amendments. In order to defeat dismissal, Jones sought leave from the district court to amend his complaint pursuant On appeal, Jones claims that the district court abused its discretion in denying leave to amend. He argues that the doctrine of non-justiciability does not apply to his claims that the proposed defendants failed to follow military regulations. See Smith v. Resor, 406 F.2d 141, 145-46 (2d Cir.1969). We hold that, whether or not the proposed defendants failed to follow military regulations as required by Smith, this particular exception to the non-justiciability rule is unavailable to Jones because he failed to exhaust the NYANG's procedures for appealing discretionary decisions. Because his claims against the proposed individual defendants could not succeed, it would have been futile for the district court to allow Jones to amend his complaint to add them. Since we agree with the district court that Jones's remaining claims, all of which were against state defendants, must be dismissed on Eleventh Amendment grounds, we affirm the judgment.

to Fed.R.Civ.P. 15(a) to add three NYANG officers as defendants in their individual and official capacities. The district court denied leave to amend on the basis that amendment would be futile because (1) the claims against two of the proposed defendants would be time-barred and (2) the claims against all three proposed defendants would amount to a non-justiciable challenge to a discretionary military decision. See Jones v. New York State Div. of Military Affairs, No. 93-CV-0862, 1997 WL 266765, at * 3, * 9-10 (N.D.N.Y. May 7, 1997).

BACKGROUND

The following facts are undisputed. Jones, a highly decorated veteran of the United States Army, served 13 months in Vietnam as a helicopter combat pilot and aviation section commander. In September 1973, he left the active Army due to a reduction-in-force. That same year, he joined the NYANG.

By June 29, 1990, Jones had risen to the rank of major in the NYANG, in which he served with the 42nd Infantry Division. The NYANG is part of the organized New York State militia. Its commander-in-chief is the Governor of New York. The NYANG's commanding general is appointed by the Governor and serves at his pleasure. See N.Y. Exec. Law § 190, N.Y. Mil. Law §§ 2, 40. The NYANG also has a federal role. The federal government may order the NYANG into active federal duty whenever necessary, at which times the NYANG is a component of the United States Army under the ultimate command of the President of the United States. See Perpich v. Department of Defense, 496 U.S. 334, 347-48, 110 S.Ct. 2418, 110 L.Ed.2d 312 (1990); Gilligan v. Morgan, 413 U.S. 1, 6-7, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973); 10 U.S.C. § 12401; 32 U.S.C. § 102. Thus, the NYANG must be trained, organized and operated according to federal standards as directed by the National Guard Bureau, a federal agency. See 10 U.S.C. § 10503. An enlistee of the NYANG simultaneously joins the United States Army National Guard.

Although Jones was in a non-aviation unit and was not assigned an aircraft, he continued to fly assault helicopters as part of the Career Development Aviator Program ("CDAP"). The CDAP permits NYANG aviators assigned to non-aviation units to maintain flight proficiency by participating in operational flying. See National Guard Regulation ("NGR") 95-210, p 1-9(a) (Oct. 1, 1988), NGR 95-1, p 1-14.2 (Apr. 30, 1980). On June 4, 1990, Colonel Joseph Ferreira informed Jones that he was being removed from the CDAP. Ferreira was New York's State Army Aviation Officer, with primary responsibility for overseeing the Guard's aviation program.

On June 5, 1990, Jones, dissatisfied with Ferreira's decision, submitted a written request to his commanding officer, NYANG Major General Martin Lind, seeking a Flight Evaluation Board ("FEB") hearing pursuant to Army Regulation ("AR") 600-105. The FEB is a review board which under certain circumstances convenes to examine an aviator's continued qualification for service. Although FEB recommendations are advisory, an aviator has a right to FEB review before he or she is deemed professionally unqualified to remain airborne.

Jones's FEB request was forwarded to Major General Lawrence P. Flynn, Adjutant General and commanding officer of the NYANG. On June 29, 1990, Flynn wrote to Jones declining to convene the FEB. He explained that "[i]ndividuals are allowed to participate in the CDAP at the discretion of [the Adjutant General], when their participation will provide a benefit to the state." Finding no such benefit from Jones's continued participation, Flynn concluded that "an FEB is not warranted." He also stated that "a request for termination of [Jones's] aviation service has been requested from [the National Guard Bureau]."

In the face of this resistance, Jones contacted State Assembly member Neil W. Kelleher, who wrote a letter to then-New York Governor Mario Cuomo. The letter challenged the NYANG's failure to investigate certain unspecified charges of corruption in the NYANG allegedly raised by Jones. This letter, however, failed to include a clear statement of the material facts relating to Jones's removal from the CDAP and it did not request an FEB hearing or the reversal of the decision to remove Jones from the CDAP program. The record does not reveal whether the Governor took any action as a result of this letter, but the FEB was not convened to consider Jones's removal. Jones alleges that as a result of his removal from the CDAP, he was not retained as a NYANG member. Jones remained in the Guard until July 1, 1991.

On June 29, 1993, Jones filed this § 1983 action against the DMNA and the NYANG, alleging that the defendants' actions violated his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. The complaint sought reinstatement in the Guard with back pay, or, in the alternative, "the convening of an impartial [FEB] to consider the merits of [Jones's] dismissal from Aviation Service." The complaint also sought $100,000 in damages.

In November 1996, the defendants moved to dismiss the complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b) and 12(h)(3). They argued that (1) Jones's claims involve non-justiciable military matters; (2) State entities are not "persons" within the meaning of 42 U.S.C. § 1983 1; (3) the Eleventh Amendment bars consideration of Jones's claims against the State; and (4) Jones failed to exhaust the administrative remedies provided in N.Y. Mil. Law § 131.4 and DMNA Regulation 27-7 promulgated pursuant thereto.

Jones cross-moved to amend his complaint, pursuant to Fed.R.Civ.P. 15, in order to add Flynn, Lind and Ferreira as individual defendants. Jones's purpose was two-fold: to avoid dismissal of the action on the ground of Eleventh Amendment immunity and to bring his complaint against "persons" within the purview of § 1983.

On May 7, 1997, the district court denied Jones's cross-motion and granted the defendants' motion to dismiss. See Jones, 1997 WL 266765, at * 11. The court concluded that the existing defendants, as state entities, are entitled to sovereign immunity from suit pursuant to the Eleventh Amendment, see id. at * 2, and are not "persons" within the meaning of § 1983, see id. at * 2 n. 1. Thus, the district court explained, unless the proposed individual defendants could be added to the suit, dismissal for lack of subject matter jurisdiction would be appropriate. See id. at * 3. The district court went on to deny Jones's motion to amend the complaint to add the individual defendants on the basis of futility. The district court held that, even if the claims against the proposed new defendants were found to relate back to the date on which the complaint was originally filed, see Fed.R.Civ.P. 15(c), the action would be time-barred as against Ferreira and Lind. Jones alleged that the actions of Ferreira and Lind that violated his due process rights occurred on June 4, 1990 and June 5, 1990, respectively The district court concluded that the claim against Flynn was not time-barred because Flynn denied Jones's request to convene the FEB on June 29, 1990, within the three-year limitations period. Nonetheless, the district court determined that, in any event, amendment would be futile as to all of the defendants because the proposed complaint would be subject to immediate dismissal as pertaining to a non-justiciable discretionary military decision. See id. at * 11. This appeal followed.

more than three years before the complaint was filed. Because the applicable statute of limitations is three years, see Leon v. Murphy, 988 F.2d...

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