Cadigan, Magor v. Army ( 1996 )

USCA1 Opinion

        January 17, 1996        [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT





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        No. 95-1694



                               MAJOR JAMES L. CADIGAN,



                                Plaintiff, Appellant,



                                          v.



                     DEPARTMENT OF THE ARMY, BOARD FOR CORRECTION

                      OF MILITARY RECORDS AND TOGO D. WEST, JR.,

                                SECRETARY OF THE ARMY,



                                Defendants, Appellees.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Edward F. Harrington, U.S. District Judge]
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                                        Before



                                 Selya, Cyr and Lynch,

                                   Circuit Judges.
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            Mark Fitzsimmons on brief for appellant.
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            Donald  K.  Stern,  United States  Attorney,  and  Lori  J. Holik,
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        Assistant United States Attorney, on brief for appellees.





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                      Per  Curiam.    We  have   carefully  reviewed  the
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            district court record and  the briefs of the parties,  and we



            affirm the judgment of the district court for essentially the



            reasons set forth in the Order dated June 1, 1995.



                      Our decision is  not a reflection on  the merits of



            appellant's entitlement to the  Congressional Medal of Honor.



            The record in this case evidences Mr. Cadigan's extraordinary



            courage and service to his country, service which most likely



            saved the lives of two platoons of American troops in Germany



            in  1945.   Simply, as  the district court  found, it  had no



            power  to  review   the  decision  of  the  Army   Board  for



            Corrections  of  Military  Records; the  question  before the



            court  was  not  whether  it  had  jurisdiction  to  consider
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            appellant's  case, but  whether  the  question presented  was



            justiciable.
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                      Appellant does not complain that the Army failed to



            follow  a   mandate  contained  in  a   relevant  statute  or



            regulation, committed an unauthorized  act, or made a factual



            error  which rises to the level of  an injustice -- the kinds



            of claims  which  usually are  justiciable.   See  Dodson  v.
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            United  States, 988 F.2d 1199,  1204 & n.6  (Fed. Cir. 1993).
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            Rather, appellant asserts that, under the facts he presented,



            the  Army  should  have  awarded  him  the  Medal  of  Honor.



            However, the decision whether to award a medal is one left to



            the complete discretion  of the military.   Wilson v.  United
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            States,  24 Cl. Ct. 842, 846  (1992) (the decision by the Air
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            Force to award one  medal to plaintiff instead of  another is



            "purely a  discretionary one and therefore  is not reviewable



            by [a] court").  Indeed, the criteria for such awards are not



            within the realm of  judicial expertise, implicating  instead



            the "complex, subtle, and professional decisions" left by the



            Constitution  to the judgment of  the military.  See Gilligan
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            v. Morgan, 413 U.S.  1, 10 (1973).  The cases appellant cites
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            are not to the contrary as they involved justiciable matters.



            See, e.g., Swann v. Garrett, 811 F.Supp. 1336 (N.D.Ind. 1992)
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            (review of  the factual  question whether plaintiff  had been
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            awarded the Navy Cross).



                      Because this  case does  not present  a substantial



            question, the appeal  is summarily affirmed.   See Local Rule
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            27.1.















































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