[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2462
JOHN F. DIEKAN, CAPTAIN, U.S. ARMY,
Plaintiff, Appellant,
v.
MICHAEL P.W. STONE, SECRETARY OF THE
ARMY, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
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Before
Torruella, Cyr and Boudin,
Circuit Judges.
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John F. Diekan on brief pro se.
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A. John Pappalardo, United States Attorney, Annette Forde,
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Assistant United States Attorney, Diana Moore, Major, United
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States Aremy, U.S Army Litigation Division, and Lieutenant
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Colonel W. Gary Jewell, U.S. Army Litigtion Division, on brief
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for appellees.
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June 10, 1993
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Per Curiam. Plaintiff, an active duty officer in
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the Judge Advocate General's Corps ("JAGC"), filed this
action challenging Army orders transferring him from Fort
Devens, Massachusetts to Camp Casey, Korea. Defendant moved
to dismiss the complaint for failure to state a claim upon
which relief can be granted. Fed. R. Civ. P. 12(b)(6).
After a careful and thorough review of the issues in light of
the test set forth in Penagaricano v. Llenza, 747 F.2d 55,
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60-61 (1st Cir. 1984),
the district court dismissed plaintiff's complaint because it
presented a non-justiciable military controversy. See also
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Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971).
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On appeal plaintiff argues that the district court
erred by applying the wrong standard under Rule 12(b)(6).
Plaintiff urges that the court erroneously failed to resolve
all reasonable inferences in plaintiff's favor, and did not
require a showing that the facts alleged were undoubtedly
insufficient to make out claims based on violations of due
process, army regulations and breach of contract.
Plaintiff misperceives the focus of the court's
decision. The court did not undertake to determine whether
plaintiff's complaint alleged facts sufficient to make out
all the elements of a legally cognizable claim, the more
usual inquiry under Rule 12(b)(6). Rather, even assuming a
proper statement of the claims under substantive law, the
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court decided, as a matter of "policy akin to comity," that
these were not claims "upon which relief can be granted."
Fed. R. Civ. P. 12(b)(6); see Penagaricano, 747 F.2d at 60
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(quoting Mindes, 453 F.2d at 199). Under our cases, that
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decision necessarily required a candid assessment of the
"nature and strength" of the claims "in light of the policy
reasons behind nonreview of military matters." Penagaricano,
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747 F.2d at 60 (quoting Mindes, 453 F.2d at 201).
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We also reject plaintiff's remaining challenges to
the balance struck by the district court under each of the
policy factors, for essentially the same reasons as stated in
the district court's opinion.
Affirmed.
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