Notice: First Circuit Local Rule 36.2(b)6 States Unpublished Opinions May Be Cited Only in Related Cases.john F. Diekan, Captain, U.S. Army, Plaintiff, Appellant, v. Michael P.w. Stone, Secretary of the Army, et al.,defendants, Appellees, 995 F.2d 1061 (1st Cir. 1993)

Plaintiff, an active duty officer in 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, 60-61 (1st Cir. 1984), the district court dismissed plaintiff's complaint because it presented a non-justiciable military controversy. See also Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971).

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 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 (quoting Mindes, 453 F.2d at 199). Under our cases, that 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, 747 F.2d at 60 (quoting Mindes, 453 F.2d at 201).

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.