1 12-2803-cv Yarusso v. 106 Rescue Wing UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LO CAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 4 th day of February, two thousand thirteen.
Present: CHESTER J. STRAUB, PETER W. HALL, CHRISTOPHER F. DRONEY, Circuit Judges.

____________________________________________________ Richard Yarusso, Plaintiff – Appellant , v. No. 12-2803-cv 106 Rescue Wing, New York Air National Gu ard, State of New York, et al., Defendants – Appellees

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____________________________________________________ FOR APPELLANT: Leonard Zack, Leonard Zack & Associates, New York, N.Y. FOR APPELLEE: Laura R. Johnson, Assistan t Solicitor General, Richard Dearing, Deputy Solicitor General, Ba rbara D. Underwood, Solicitor General for Eric T. Schneiderman, Atto rney General for the State of New York, New York, N.Y.2 ____________________________________________________ Appeal from a judgment of the United States District Court for the Eastern District of New York (Wexler, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of th e district court is AFFIRMED. Plaintiff-Appellant Richard Yaru sso (“Yarusso”) appeals from a decision of the district court granting a Rule 12(b)(6) motion filed by 106 Rescue Wing, the New York Air National Guard (“NYANG”), and the State of New York (collectively “Defendants”) and dismissing Yarusso’s complaint in its entiret y. The district court concluded that Yarusso sought relief for a “military[] decision regarding his employment” that is “precisely the type of individualized question[] . . . prohibited from judicial review” under the doctrine of intra-military immunity. Yarusso v. 106th Rescue Wing , No. 11-cv-3378 (LDW), 2012 WL 2155270, at *3, *4 (E.D.N.Y. June 11, 2012) (internal quotation marks omitted). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the i ssues on appeal, and we discuss these only as necessary to explain our decision. On appeal, Yarusso contends that his compla int actually seeks relief based on the failure of Defendants to abide by their own mandatory ru les and regulations, an exception to the “rule of non-justiciability of disc retionary military decisions” applicable when “the military has failed to follow its own mandatory regulations in a manner substantially prejudicing a service member.” Jones v. N.Y. State Div. of Military & Naval Affairs , 166 F.3d 45, 52 (2d Cir. 1999). Specifically, Yarusso contends that Defendants “failed to fo llow [their] own mandatory regulations with regard to the handling of Ya russo’s non-retention and Complaint of Wrongs in3 [several] ways.” Each allegation of Defenda nt’s having disregarded mandatory regulations, however, is without merit. First, Yarusso contends that his supervisor, Lt . Col. Killian (“Killian”), failed to cite an “ineligibility factor” for his dismissal, which Yarusso argues Air National Guard Instruction (“ANGI”) 36-2002 Table 4.1 requires. Table 4.1 only lists “ineligibil ity factor[s]” and “explanation/determination guidelines” that c ould disqualify an enlisted individual from reenlistment in the Air National Guard; the Table does not mention any notification requirements. See also ANGI 36-2002 § 4.1 (Oct. 1, 2012) (“Indivi duals rendered ineligible for reenlistment or extension of enlistment IA W Table 4.1, will be se parated. . . .”). Second, Yarusso argues that Killian “violated Ya russo’s mandatory right to be considered for Selective Retention and its attendant benefits , such as the ‘fair a nd impartial review’ and appeal processes.” The governing rules of th e Air Force and the Air National Guard, however, do not mandate that enlisted member s have a right to reenlist. See ANGI 36-2002 § 4.1 (mandating that retention in the Air National Gu ard (“ANG”) “is not an in herent right of any individual” and that “[n]o indi vidual will reenlist or exte nd their enlistment without the concurrence of the unit commander,” who “may a pprove or deny reenlistments and extension of enlistments”). Nor do they mandate that enlisted members have a right to be considered and retained following review by the Selectiv e Retention Review Board (“Board”). See ANGI 36- 2606 § 1.1 (Aug. 8, 2012) (stating that “[m]embershi p in the ANG is a privilege” and that the ANG may force the separation of in dividuals when necessary to fulfill its “national security” function). Officers and enlisted personnel who are “retirement eligible” may be subject to the selective retention review process, which may result in their separation from the Air National Guard. See Air Force Instruction 36-3209 §§ 2.25.1 & 3.13.1 (Apr. 14, 2005) (listing non-4 selection during the selective retention process as a reason for a unique or involuntary separation); ANGI 36-2606, Terms , at 14-15 (defining retirement el igible as “completed 20 years of satisfactory service”). The applicable rule s and regulations, therefor e, do not mandate that Yarusso had a right to automatic reenlistment nor an automatic right to be retained in the ANG once retirement eligible. Moreover, Yarusso was not entitled to review following his separation because the Board only reviews for retention thos e individuals “not otherwise scheduled to be separated [in] the year of the board’s review.” ANGI 36-2606 § 2.1.1.2. In sum, Yarusso’s first two contentions fail because he neither identifies any “actions . . . violative of [NYANG’s] own regulations,” Crawford v. Cushman , 531 F.2d 1114, 1120 (2d Cir. 1976), nor points to any mandatory military re gulation requiring his continued enlistment or his selection for continued service fo llowing eligibility for retirement, Ornato v. Hoffman , 546 F.2d 10, 13 (2d Cir. 1976) (“To the extent that a military regulation is mandatory, the courts will see that it is observed.”). Third, Yarusso asserts that Defendants “igno red their mandatory duty to forward his complaints to the Adjutant General” once “Yar usso attempted to receive redress by filing his Complaints of Wrongs” and that “NYANG faile d to follow its own, mandatory protocol governing the investigation and disposition of Yaru sso’s Complaints of Wrongs.” Yarusso filed his Complaint of Wrongs pursuant to New Yo rk Code of Military Justice § 131.4, which provides that “[a]ny member of the organize d militia who believes himself wronged by his commanding officer” and who “is refused redress . . . may complain to any superior officer who shall forward the complaint to the adjutant ge neral.” N.Y. Mil. Law § 131.4. This section further provides that “the memb er who initiated the complaint may appeal to the governor for redress.” Id.5 Even if Defendants failed to abide by section 131.4’s “elaborate mechanism for administrative relief,” Yarusso failed to exha ust the administrative relief available to him because he never “appeal[ed] to the governor for redress.” Jones , 166 F.3d at 53-54. In Jones , we held “that NYANG members must exhaust administrative remedi es before bringing a federal challenge based on the NYANG’s failure to fo llow its own regulations” because “it would interfere unnecessarily with Gu ard operations were service memb ers allowed to complain of procedural irregularities to the courts without first appealing the error up through the chain of command.” Id. at 54. As in Jones , Yarusso “failed to appeal . . . to the Governor of New York,” which “deprived the Governor of an opportunity ” to provide redress and which “might have obviated any need for judicial in terference in military affairs.” Id. at 54-55. We therefore decline to review any “procedural irregularities” in Yarusso’s cas e due to his failure to exhaust the remedies that were available to him. Id. We have considered all of Yarusso’s remain ing arguments and find them to be without merit. The judgment of the district court is AFFIRMED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk