Larrabee (temporary) wins

Certain retirees are not subject to court-martial jurisdiction, so says Judge Richard J. Leon of the United States District Court for the District of Columbia in Larrabee v. Braithwaite. We should anticipate the circuit court and the Supreme Court will get to tell us their view.

After briefing and oral argument, the judge entered his judgement (Memorandum Opinion) on the pleadings.

The court begins with the proposition that,

Experience has clearly demonstrated the baseline proposition that court-martial jurisdiction must be narrowly limited. The Supreme Court itself has instructed time and time again that “the scope of the constitutional power of Congress to authorize trial by court-martial” must be “limit[ ed] to ‘the least possible power adequate to the end proposed.”‘ Toth, 350 U.S. at 23 (quoting Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 230­31 (1821)). Indeed, trial by court-martial “was intended to be only a narrow exception to the normal and preferred method of trial in courts of law. Reid v. Covert, 354 U.S. 1, 21 (1957).

Is this true, especially considering Solorio? In the years before Solorio we would occasionally litigate in personam jurisdiction based on O’Callahan’s [[1]] service-connection test and using the Relford factors. Can we not say that the number of cases taken from civilian authorities has much increased—and in recent years because of the military sexual assault concerns.

Whether Larrabee raises the point inferentially or people want to go there, an intermediate response to retiree jurisdiction might be to adopt the duo of O’Callahan and Relford.

“Finally, we deal with peacetime offenses, not with authority stemming from the war power. Civil courts were open. The offenses were committed within our territorial limits, not in the occupied zone of a foreign country. The offenses did not involve any question of the flouting of military authority, the security of a military post or the integrity of military property.”

395 U.S. at 273-274.

We stress seriatim what is thus emphasized in the holding:

1. The serviceman’s proper absence from the base

2. The crime’s commission away from the base.

3. Its commission at a place not under military control.

4. Its commission within our territorial limits and not in an occupied zone of a foreign country.

5. Its commission in peacetime and its being unrelated to authority stemming from the war power.

6. The absence of any connection between the defendant’s military duties and the crime.

7. The victim’s not being engaged in the performance of any duty relating to the military.

8. The presence and availability of a civilian court in which the case can be prosecuted.

9. The absence of any flouting of military authority.

10. The absence of any threat to a military post.

11. The absence of any violation of military property.

12. The offense’s being among those traditionally prosecuted in civilian courts.

401 U.S. at 365. As we know, Solorio changed all that to base jurisdiction on status. Which perforce gets us to Larrabee and his status.

The judge looks to history—appropriately so.

Even though trial by military court-martial “was intended to be only a narrow exception to the normal and preferred method of trial in courts of law,” Reid, 354 U.S. at 21, Congress has nonetheless steadily expanded the scope of court-martial jurisdiction over time. At common law, court-martial jurisdiction extended only to regular soldiers (excluding even the militia forces), and only for the offenses of mutiny, sedition, and desertion. See Mutiny Act of 1689, 1 Wm. & Mary, chs. 2, 5, 7. The original Articles of War in the United States included primarily violations of military law such as desertion, mutiny, cowardice, and insubordination. It was not until the Civil War that Congress extended court-martial jurisdiction to include any traditionally civilian offenses. See Act of March 3, 1863, ch. 75, § 30, 12 Stat. 731, 736. The rationale for this extension of jurisdiction to major felonies such as murder, manslaughter, arson, burglary, and rape was that such offenses commonly occurred in the theatre of war and that “the swift and  summary justice of a military court was deemed necessary to restrain their commission.”  Coleman v. Tennessee, 97 U.S. 509, 513 (1878). Then, in 1950, Congress passed the Uniform Code of Military Justice, which extended court-martial jurisdiction not only to  current members of the uniformed services of the United States, but also to “[r]etired members of a regular component of the armed forces” and “[m ]embers of the Fleet Reserve and Fleet Marine Corps Reserve.” 10 U.S.C. § 802(a)(4), (6). To date, the Government has consistently cited two primary factors as justifying court-martial jurisdiction over military retirees: their receipt of retainer pay and their ability to be recalled to active-duty service. See Defs.’ Mot. at 14-24. Neither factor, however, suffices to demonstrate why military retirees plainly fall within the “land and naval forces” or why subjecting them to court-martial jurisdiction is necessary to maintain good order and discipline.

Slip op at 12.

The court goes on to argue that the theory of retired pay as compensation-at-a-reduced-rate thus supporting jurisdiction is inaccurate and irrelevant. Slip op at 13. The court cites to Barker v. Kansas, 503 U.S. 594 (1992) (and there are other cases), where the Supreme Court concluded that “military retirement benefits are to be considered deferred pay for past services,” rather than “current compensation for reduced current services.” Id. at 605.

The court points out that the “Supreme Court has never squarely addressed a constitutional challenge to the exercise of court-martial jurisdiction over military retirees.” Slip op at 14.

As part of the analysis the court concludes,

While both sides are correct in some ways, the bottom line remains the same: military retirees are highly unlikely to be recalled, even though their service may be necessary in some future national emergency. This disagreement, however, loses sight of the ultimate question: whether the Government has adequately demonstrated that court­martial jurisdiction over military retirees is necessary to maintain good order and discipline.

Slip op. at 16, and see, fn. 8, Slip op. at 14. “The lack of any Supreme Court case addressing the [constitutional] question is likely due in part to the fact that in the 70­year period since the UCMJ explicitly authorized such jurisdiction, the military has so rarely chosen to exercise it. See Bishop, supra note 3, at 332; J. Mackey Ives & Michael J. Davidson, Court-Martial Jurisdiction Over Retirees Under Articles 2(4) and 2(6): Time to Lighten Up and Tighten Up?, 175 Mil. L. Rev. 1, 11 (2003).”

Anecdotally,

When I deployed to Gulf-I in August 1990 I do not know of any retirees who went with me or came after me, but a number of Reserves did, especially, and thank you, Coast Guard Harbor Patrol units.

When the invasion of Iraq began and the AOR widened, I do not know of any retirees recalled to active duty—the Army relied heavily on Reserve and National Guard units.

I do recall several of us being asked if we would voluntarily reactivate for the Commissions cases—never did the idea of an involuntary recall come up. An idea that appears to have been shelved long ago. (I suspect those recalls never happened because of Congressional controls and limitations on the numbers and grades of those recalled. See here.)

Keep in mind that retirees are in three Categories and the likelihood of recall is reduced the higher the number of your category—so those of us in CAT 3 would be the last tranche to be called.

Some additional notes/thoughts.

• The court makes a small boo-boo when it writes that “Similarly, the Supreme Court has rejected Congress’s extension of court-martial jurisdiction to civilian employees of the military despite their receipt of a salary from the military. See Guagliardo, 361 U.S. at 286; Grisham v. Hagan, 361 U.S. 278, 280 (1960).” The court, perhaps understandably, missed the nuance of changes to Article 2(a)(10) as it related to “persons serving with or accompanying the force [in, e.g., Iraq and Afghanistan),” an amendment which resulted in several courts-martial each of which ultimately failed to survive review.
• Note, the court does not address United States v. Dinger, (C.A.A.F. 2018) (retiree may be sentenced to a punitive discharge). Has Dinger gone to the DCDC?
• A couple of unrepresentative other retirement cases.

1. United States v. Bowie, 34 C.M.R. 808 (A.F.C.M.R. 1964), a servicemember on the temporary disability retired list; a person potentially subject to recall to active duty. See also, United States v. Reynolds, No. 201600415, 2017 CCA LEXIS 282 (N-M. Ct. Crim. App. Apr. 27, 2017).
2. United States v. Allen, 33 M.J. 209 (C.M.A. 1991). An interesting case of a retired Navy E-8 accused of espionage while employed overseas. A similar judge/UCI issue would later arise in several later cases most notoriously United States v. Sayler, 72 M.J. 415 (C.A.A.F. 2012)—the lesson being that lessons are not always learned.

Questions.

• Is the opinion limited to a select group of retirees?
• Has the court suggested a “service connection” requirement for court-martial of retirees who are alleged to of committed crimes post-retirement?

[1] United States v. Solorio, 483 U.S. 435 (1897); O’Callahan v. Parker, 395 U.S. 258 (1969); Relford v. Commandant, USDB, 401 U.S. 1971).