U.S. District Court for the District of Columbia limits Congress’s provision of court-martial jurisdiction over military retirees
Larrabee v. Braithwaite, No. 19-654-RJL (D.D.C.)
In a consequential memorandum opinion issued on Friday, Judge Richard J. Leon of the United States District Court for the District of Columbia ruled that Congress’s grant of court-martial jurisdiction over military retirees in the Fleet Marine Corps Reserve for offenses committed after their retirement is unconstitutional. While the Court did not explicitly determine that court-martial jurisdiction over all military retirees is per se unconstitutional, the practical reach of the Court’s decision is likely to significantly curtail such jurisdiction over retirees for crimes committed after their retirement from active-duty service.
Article 2(a) of the Uniform Code of Military Justice (“UCMJ”) extends court-martial jurisdiction over certain categories of military retirees, including “[r]etired members of a regular component of the armed forces who are entitled to pay,” “[r]etired members of a reserve component who are receiving hospitalization from an armed force,” and “members of the Fleet Reserve and Fleet Marine Corps Reserve.” Articles 2(a)(4)-(6), UCMJ. Plaintiff Steven Larrabee retired from the Marine Corps in 2015 and was transferred to the Fleet Marine Corps Reserve. As the Court described, the Fleet Marine Corps Reserve is not a “reserve component” of the military, but rather, a unit of the Marine Corps composed of retired service members.
Larrabee was stationed at Marine Corps Air Station Iwakuni in Japan from 2012 to 2014. Following his retirement, Larrabee remained in Iwakuni and managed two local bars in the area. At one of those establishments, he sexually assaulted a bartender and recorded the assault on his cell phone. He was later convicted by general court-martial of one specification of sexual assault and one specification of indecent recording.
In the current district court action, Larrabee brought a collateral challenge to the constitutionality of Article 2(a) of the UCMJ, which authorizes the court-martial of military retirees in the Fleet Marine Corps Reserve. The parties filed cross-motions for judgment on the pleadings, and the Court held oral argument on November 6, 2020. The parties agreed that there were no material factual disputes and that the case turned solely on questions of law.
The Court’s analysis centered on whether court-martial jurisdiction over Larrabee fit within Congress’s constitutional authority to “make Rules for the Government and Regulation of the land and naval Forces” and to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” U.S. Const., art. I, § 8, cls. 14, 18. The parties agreed that Congress had in fact extended court-martial jurisdiction over members of the Fleet Marine Corps Reserve and other military retirees, yet disagreed over whether Congress had the constitutional authority to do so.
The government first argued that because Congress determined that retirees are part of the “land and naval forces” by subjecting them to court-martial jurisdiction, that determination is dispositive of the legal question. The government relied on Solorio v. United States, 483 U.S. 435 (1987), where the Supreme Court held that servicemembers can be tried by court-martial for offenses committed on their own time in the civilian community that have no connection to their military service. In deferring to Congress’s judgment on that issue, the Solario court explained that “the scope of court-martial jurisdiction over offenses committed by servicemen was a matter reserved for Congress.” Id. at 440. The Court here distinguished Solario on the ground that the servicemembers at issue in that case were indisputably part of the “land and naval forces.” The issue posed in this case, however, involved the threshold question of whether a certain category of military retirees is actually part of the “land and naval forces,” such that any extension of court-martial jurisdiction over them would be constitutionally permissible.
On that issue, the government offered two arguments for why military retirees fall within the “land and naval forces” and why subjecting them to court-martial jurisdiction is necessary to maintain good order and discipline:
First, the government claimed that military retirees’ receipt of retainer pay is sufficient to subject them to court-martial jurisdiction. The Court disagreed, noting that “‘military
retirement benefits are to be considered deferred pay for past services,’ rather than ‘current
compensation for reduced current services.’” Slip Op. at 13 (quoting Barker v. Kansas, 503 U.S. 594, 599 (1992). The Court stated also that “receipt of military retirement benefits has never been enough, by itself, to subject a class of individuals to court-martial jurisdiction.” Slip Op. at 14. The Court relied on Supreme Court cases rejecting the extension of court-martial jurisdiction to civilian dependents of servicemembers who received military benefits, Reid v. Covert, 354 U.S. 1 (1957), and civilian employees who received a salary from the military. McElroy v. United States ex rel. Guagliardo, 361 U.S. 281(1960); Grisham v. Hagan, 361 U.S. 278 (1960).
Second, the government argued that the potential for military retirees to be recalled to active-duty service in the future suffices to subject them to court-martial jurisdiction. In response, the Court noted that the government did not disagree with plaintiff’s assertion that “[s]ince Vietnam, if not earlier, the reserve components, rather than the services’ retired lists have been the mechanism for augmenting the active-duty force.” Slip Op. at 15. As a practical matter, the Court concluded that “military retirees are highly unlikely to be recalled, even though their service may be necessary in some future national emergency.” Slip Op. at 16.
The Court centered its analysis on the “baseline proposition that court-martial jurisdiction must be narrowly limited.” Slip Op. at 7 (citing States ex rel. Toth v. Quarles, 350 U.S. 11, 23 (1955) (“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”)). It noted that “the Constitution created a delicate balance between the military’s need to preserve good order and discipline, on the one hand, and an individual’s right to due process when accused of crimes, on the other.” Slip Op. at 8.
The Court ultimately held that the government had not adequately demonstrated that court-martial jurisdiction over military retirees is necessary to maintain good order and discipline in the armed forces. As an example of the deficiencies in the government’s good order and discipline showing, the Court compared the court-martial jurisdiction status of retirees vs. reservists under the UCMJ, noting:
"Under Article 2(a) of the UCMJ, members of the Reserve components are subject to court-martial jurisdiction only while serving on their regular active-duty periods and while on inactive-duty training, but not when in inactive status . . . Because military retirees are much less likely to be recalled to active-duty service than Reservists are, the distinction in whether these two similar groups are subject to court-martial jurisdiction seems arbitrary at best. Indeed, under the current regime, a retired member of the Army and an inactive member of the Army Reserve who get into a bar brawl would face two entirely different systems of justice: the Army retiree could be hauled before a court- martial and tried by a military judge and active military officers, whereas the Army Reservist would be entitled to indictment by a grand jury and trial by a civilian jury of his peers overseen by an impartial judge. Please!"
Slip Op. at 16. The Court was clearly animated by the reality that military retirees have very slim prospects of ever being recalled to active-duty service and that “the current scope of court-martial jurisdiction disregards the obvious fact that some military retirees face virtually no prospect of recall to military service at all, whether because of their age, physical condition, or disability.” Slip Op. at 17.
Ultimately, the Court held that “in the absence of a principled basis promoting good order and discipline, Congress’s present exercise of court-martial jurisdiction over all members of the Fleet Marine Corps Reserve is unconstitutional.” Slip Op. at 18.
ANALYSIS AND PRACTICAL IMPACT
The Court was careful to note that its ruling does not mean that “Congress could never authorize the court-martial of some military retirees, but merely that Congress has not shown on the current record why the exercise of such jurisdiction over all military retirees is necessary to good order and discipline.” Slip Op. at 17. Yet while the Court’s ruling held open the theoretical possibility of court-martial jurisdiction over some military retirees for crimes committed post retirement under certain circumstances, that carve-out will likely prove illusory absent significant changes in the role that military retirees play in augmenting the armed forces or other intensely fact-bound exceptions.
The Court pinned the exercise of court-martial jurisdiction to a showing that such jurisdiction is necessary to maintain good order and discipline among the land and naval forces. Therefore, so long as the reserve components remain the principal source of augmentation of the active-duty forces and retirees are recalled to active-duty only in the rarest of circumstances, one struggles to envision how trying retirees of crimes committed after their retirement will be necessary to the maintenance of good order and discipline in most situations.
Even so, if the Court’s decision is upheld on appeal, it may prove more significant for its symbolic rather than practical impact. As the Court noted, the “Supreme Court has never squarely addressed a constitutional challenge to the exercise of court-martial jurisdiction over military retirees,” and the lack of such controlling authority likely derives from the “fact that in the 70-year period since the UCMJ explicitly authorized such jurisdiction, the military has so rarely chosen to exercise it.” Slip Op. at 14, note 8.
Given the sparse history of the government actually trying retirees by court-martial for crimes committed after retirement, notwithstanding Congress’ grant of authority to do so, one wonders why Larrabee was so tried. Perhaps that answer lies in the particular circumstances of Larrabee being a recent retiree residing abroad in Iwakuni, where his actions likely had a significant impact on the military community in that area. While Larrabee’s victim was not a member of the armed forces, her spouse evidently was. Def. Mot., DI 22 at 9. Or perhaps the government foresaw other jurisdictional challenges to Larrabee being tried through conventional domestic criminal law-enforcement channels outside of the military-justice system. Regardless of the impetus, as a military retiree tried for crimes occurring after his retirement, Larrabee’s court-martial provided a vehicle for the federal courts to weigh in on an important and heretofore unanswered constitutional question.
Article III Editor