Bergdahl Files in District Court

2/18/2021

"This is an action for collateral review of an unconstitutional conviction by a general court-martial. The case raises two basic due process issues: (a) whether the military courts erred in failing to remedy unlawful command influence (UCI) by former President Donald J. Trump and the late Senator John S. McCain, and (b) whether the military judge had a duty to disclose that he had applied for a lucrative job with the Department of Justice (DOJ). The scandalous meddling in a specific case by leaders of the political branches—one of whom was Commander in Chief of the armed forces—would never be tolerated if the proceeding had been a criminal prosecution in this or any other federal district court and should not be tolerated in a court-martial. The circumstances surrounding the second issue are more egregious than those presented in In re Al-Nashiri, 921 F.3d 224 (D.C. Cir. 2019)."

For your PACER convenience, the case is: 1:21-cv-00418

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8 Comments

Charles William Gittins

2/19/2021 01:55:11 pm

Not sure but I think the case must be in the Court of Federal Claims because his discharge, if illegal entitles him to pay under the Pay Act bring the case into Tucker Act jurisdiction. Anyone disagree?

Brenner M. Fissell

2/19/2021 01:58:22 pm

Could be but not "must be."

"The plaintiff, who is no longer in custody, collaterally attacks his conviction asserting that this Court may review the CAAF's decision pursuant to its federal question jurisdiction. Collateral attacks on court-martial proceedings are not confined to habeas petitions. Kauffman v. Secretary of the Air Force, 415 F.2d 991 (D.C.Cir.1969). A district court has subject matter jurisdiction to hear a non-custodial plaintiff's collateral attack based on federal question jurisdiction. Sanford v. United States, 586 F.3d 28, 31 (D.C.Cir.2009).

Luke v. United States, 942 F. Supp. 2d 154, 162 (D.D.C. 2013), aff'd, No. 13-5169, 2014 WL 211305 (D.C. Cir. Jan. 13, 2014)

Bill Cassara

2/19/2021 03:54:47 pm

I don't think so. He is still on active duty, so his discharge has not been executed. So, if he wins, he gets back pay as an administrative matter. I think.

The Mighty JAG-rafess of the Holy Hadrojassic Maxarodenfoe

2/19/2021 05:46:07 pm

This is a significantly more professional product than what they’ve been filing in the military courts for the past half year or so. I’m not sure whether that will be the difference in getting relief, but the tone in their previous filings couldn’t have helped their cause.

2/20/2021 12:58:31 pm

Can you elaborate?

2/23/2021 11:28:07 am

Sure. The filings in CAAF & ACCA read like the primary purpose was to publicly vilify Judge Nance and (to a lesser extent) opposing counsel, and the secondary purpose was to demonstrate entitlement to relief. It had a tone of anger that felt very “first draft.”

The district court filing reads like a document intended to persuade a court. The tone in the district court filing indicates a seriousness that might have been helpful to the client if it were in the military court filings.

Joshua Kastenberg

2/23/2021 06:22:45 pm

Brenner

I recognize that people may have strong feelings on the Bergdahl case. I once tried to give a neutral statement on the history of the charges he faced to the NYT (not his personal history but a history dating to the Articles of War), and I received a few "hate-mail" e-mails including from two defense counsel who already proclaimed his guilt. I don't think the tone was evidence of primary purpose to bash Judge Nance. The judge made a comment on the record and there was a reasonable interpretation that the statement did not accurately state the judge's position on his pending retirement.

The Army Court did not delve into the merits of the appeal, and instead punted the position of the case into a potential Article III court review.

It is odd to me that as a matter of coram nobis the Army Court treated the issue similar to a coram nobis based appeal based on a discovery violation or a witness recantation since a judge is not a party to the trial. (And because of the nature of the judiciary it might be the case that the appellate bench would frown on attorney investigations into judges - such as in the Salyer appeal)

Whether the appeal works or not is anyone's guess of course. But I think that it has become difficult to pull the emotions from this case because of how it had become a cultural and political issue and for that reason, I also would just ask people to try to view it in a vacuum as a purely legal matter

Eyes of Texas

2/28/2021 10:49:36 pm

The military judge may or may not deserve the heat. It's the writing of the ACCA that really looks unprofessional. The defense was screaming UCI early and often:

https://caaflog.wordpress.com/2019/11/14/bergdahl-goes-0-for-7-at-caaf/

So, Professor Kastenburg, I'm not sure what the alternative is here. This was completely in CAAF's wheelhouse and they blew it.

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Bergdahl Files in District Court

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