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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 LOCAL 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 

4th 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 Guard, State of New York, et al., 

 

 Defendants – Appellees. 

 

____________________________________________________ 

FOR APPELLANT: Leonard Zack, Leonard Zack & Associates, New York, N.Y. 

FOR APPELLEE: Laura R. Johnson, Assistant Solicitor General, Richard Dearing, 

Deputy Solicitor General, Barbara D. Underwood, Solicitor 

General for Eric T. Schneiderman, Attorney General for the State 

of New York, New York, N.Y. 
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____________________________________________________ 

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 the district court is AFFIRMED. 

Plaintiff-Appellant Richard Yarusso (“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 entirety. 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 issues on appeal, and we discuss 

these only as necessary to explain our decision. 

On appeal, Yarusso contends that his complaint actually seeks relief based on the failure 

of Defendants to abide by their own mandatory rules and regulations, an exception to the “rule of 

non-justiciability of discretionary 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 follow [their] own mandatory 

regulations with regard to the handling of Yarusso’s non-retention and Complaint of Wrongs in 
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[several] ways.” Each allegation of Defendant’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 “ineligibility factor[s]” and 

“explanation/determination guidelines” that could 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) (“Individuals rendered ineligible for 

reenlistment or extension of enlistment IAW Table 4.1, will be separated. . . .”). 

Second, Yarusso argues that Killian “violated Yarusso’s mandatory right to be considered 

for Selective Retention and its attendant benefits, such as the ‘fair and impartial review’ and 

appeal processes.” The governing rules of the Air Force and the Air National Guard, however, 

do not mandate that enlisted members have a right to reenlist. See ANGI 36-2002 § 4.1 

(mandating that retention in the Air National Guard (“ANG”) “is not an inherent right of any 

individual” and that “[n]o individual will reenlist or extend their enlistment without the 

concurrence of the unit commander,” who “may approve 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 Selective Retention Review Board (“Board”). See ANGI 36-

2606 § 1.1 (Aug. 8, 2012) (stating that “[m]embership in the ANG is a privilege” and that the 

ANG may force the separation of individuals 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-
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selection during the selective retention process as a reason for a unique or involuntary 

separation); ANGI 36-2606, Terms, at 14-15 (defining retirement eligible as “completed 20 years 

of satisfactory service”). The applicable rules and regulations, therefore, 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 those 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 regulation requiring his continued enlistment or 

his selection for continued service following 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 “ignored their mandatory duty to forward his 

complaints to the Adjutant General” once “Yarusso attempted to receive redress by filing his 

Complaints of Wrongs” and that “NYANG failed to follow its own, mandatory protocol 

governing the investigation and disposition of Yarusso’s Complaints of Wrongs.” Yarusso filed 

his Complaint of Wrongs pursuant to New York Code of Military Justice § 131.4, which 

provides that “[a]ny member of the organized 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 general.” N.Y. Mil. Law § 131.4. This section 

further provides that “the member who initiated the complaint may appeal to the governor for 

redress.” Id. 
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Even if Defendants failed to abide by section 131.4’s “elaborate mechanism for 

administrative relief,” Yarusso failed to exhaust 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 remedies before bringing a federal 

challenge based on the NYANG’s failure to follow its own regulations” because “it would 

interfere unnecessarily with Guard operations were service members 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 interference in military affairs.” Id. at 54-55. We therefore 

decline to review any “procedural irregularities” in Yarusso’s case due to his failure to exhaust 

the remedies that were available to him. Id.

We have considered all of Yarusso’s remaining arguments and find them to be without 

merit. The judgment of the district court is AFFIRMED. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk