U.S. Court of Appeals for the 2nd Circuit Case Summaries: October 9,

Daily Record (Rochester, NY), Oct 9, 2008

U.S. Court of Appeals for the Second Circuit

Intramilitary

Immunity

Dibble v. Fenimore

06-3307-cv

Appealed from the Northern District of New York

Background: The secretary of the U.S. Air Force is a defendant in an action and appel from a grant of summary judgment in favor of the secretary. Donald J. Dibble is a former federal excepted service technician with the New York Air National Guard who was denied reenlistment. Alleging the denial was retaliation for his exercise of constitutional and statutory rights, including his advocacy as a union representative, Dibble applied for administrative relief from the Air Force Board for the Correction of Military Records. When the board denied his application, Dibble filed the present action under the Administrative Procedure Act.

Ruling: The court holds that the doctrine of intramilitary immunity does not preclude a federal court from reviewing a challenge under the Administrative Procedure Act to a decision by the Air Force Board for the Correction of Military Records. It also holds that the district court correctly found that the board's decision was not arbitrary, capricious, contrary to law or unsupported by substantial evidence. The district court's judgment is affirmed.

Daniel M. Schember of Gaffney & Schember PC for the appellant, and Paula Ryan Conan, assistant U.S. attorney, for the appellee.