Maurer on Larrabee

11/28/2020

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Dan Maurer

MJ Editor

5 Comments

Dwight Sullivan

11/30/2020 07:35:47 pm

[Standard disclaimer: I offer this comment purely in my personal capacity; my views should not be imputed to anyone or anything else.]
While I disagree with much of the author's analysis, I applaud him for offering his thoughtful consideration of the Larrabee case. I confine my comment here to what appear to be two mistakes -- one factual and one legal -- so that readers considering this interesting case base their own analyses on an accurate assessment.

First, the essay states: "[Larrabee] was . . . accused of sexually assaulting one [of] his bartenders and recording it. The victim was not
a service-member; the crime occurred off base; he neither employed nor took advantage of government property for his means and methods of perpetrating his crimes; his motives were unrelated to military service; the crime had no discernible effect on the Air Base, the Marine Corps unit stationed there, any Marine stationed there, the Marine Corps writ large, or any mission or operation then being planned or conducted by the Marines."

The Solicitor General's brief in opposition filed at the Supreme Court tells us: "Petitioner’s victim . . . worked as a bartender at Teaserz and was the dependent wife of an active-duty Marine sergeant stationed at MCAS Iwakuni. Prelim. Hr’g Ex. 2, at 1-2; see Appellate Ex. IX, at 47." Brief in Opposition at 5, Larrabee v. United States, cert. denied, 139 S. Ct. 1164 (2019) (No. 18-306). Sexually assaulting the wife of a Marine Corps sergeant assigned to MCAS Iwakuni and videotaping it obviously does have a "discernible effect" on a Marine stationed at MCAS Iwakuni. And, of course, Fleet Marine Reserve members are generally allowed onto U.S. installations. I will leave it to the reader to ponder whether the Marine Corps has an interest in keeping someone who committed the kind of offenses of which Larrabee was convicted (and to which Larrabee pleaded guilty) off of its installations -- and, in particular, off of an installation where the victim's husband works and where the victim might live. The important thing is for the reader to understand the actual fact that the victim had a very real connection to MCAS Iwakuni.

Second, the essay states, "Civil courts cannot collaterally review the findings or sentencing of a court-martial." Actually, they can and frequently do. Servicemembers (or former servicemembers) who are confined as a result of a court-martial conviction or are under some other form of deprivation of liberty can (and frequently do) file petitions for writs of habeas corpus under 28 U.S.C. 2241. And we have an example of such a habeas petition resulting in a reversal of a sentence due to the sentencing proceeding's failure to comply with UCMJ requirements: Dodson v. Zelez, 917 F.2d 1250 (10th Cir. 1990). Federal courts can and do conduct collateral reviews of court-martial convictions and sentences under the Tucker Act and the Little Tucker Act. 28 U.S.C. 1491, 1346(a)(2). Other avenues exist as well, such as federal question cases for declaratory or injunctive relief. 28 U.S.C. 1331. There is an ongoing debate about the standard of review to be applied in collateral review cases, with (for example) various circuits applying the Supreme Court's Burns v. Wilson "full and fair consideration" habeas test in somewhat different ways. The important point is that practitioners should be aware that federal courts can collaterally review court-martial findings and sentences under a variety of procedural mechanisms.

Dan Maurer

12/1/2020 01:24:37 am

Mr. Sullivan is correct on both the factual and legal points of clarification he makes, and I thank him for the assist. This was, admittedly, a bit of a hasty review of the court's rationale, so I did not read the brief - to the extent I did not detail the victim's full relationship to the Marine Corps, I apologize for any confusion. But I still do not think the fact that the victim was married to a Marine serving there is a per se reason to impose military criminal jurisdiction. This stretches the MCM App. 2.1 dispo factors beyond what they were intended to do, which was make better, more principled, "prosecutorial" decisions that parallel (mostly) civilian DA standards - that is, it was intended to further "civilianize" military justice, which is the opposite of court-martialing a retired servicemember when all relevant facts and circumstances negate any "militariness" of that SM's crime. The fact is, the victim was not a Marine, the crime did not occur on federal property, and there was no other “nexus” to military service. (I understand no such nexus is required for jurisdiction generally -- for AD servicemembers...but maybe the calculus for retirees ought to be different.) The negative effect of the crime on the victim's husband's duty performance or morale is a sentencing consideration at best, and ought not be the legal hook for asserting personal jurisdiction over a person who is not then employed on Active Duty (of course, the GCMCA doesn't have to use this rationale at all...he simply has the authority to refer it because of Larrabee's status under Article 2...but to the extent that this "collateral damage" consequence makes anyone feel better about asserting jdx, again I would argue it is a sentencing consideration at a civilian court, at most.

As to the collateral review question, I believe the long-standing approach is still that civil courts are not venues for attacking or ruling on the fact-finding discretion of the panel or judge, or the discretionary decision on the sentence, *provided* they are within the lawful authority of the court-martial and UCMJ. Jurisdictional errors, on the other hand, are "structural" and thus collaterally reviewable (as was the Larrabee case, which I presume was a 28 USC 1331 suit), as would be a court-martial that failed to follow the procedural requirements of sentencing - the 10th Circuit case of Dodson that Mr. Sullivan cites above is an example of this kind of habeas collateral review (again, consistent with long line of precedent back into the 19th century).

Schlesinger v Councilman (1975) holds that C-Ms (and the military appellate system) are adequate to protect even the constitutional rights of servicemembers, which would seem consistent with Solorio and Ortiz's favorable view of this separate system, but of course one could argue that if C-M were meant to be exempt from constitutional scrutiny in civil courts, 28 USC 1331 would have said so. I grant that I was not as clear as I could be about the finer distinctions of the (limited) range of potential habeas review, but I do not see the particular relevance of the Tucker Act here -- as I read that, along with 28 USC 1331, the "declaratory" and "injunctive" relief" Mr. Sullivan points to seems directed to the context of bid and contract protests in the Court of Federal Claims, not issues arising out of discretionary fact-finding or sentencing in otherwise lawfully-constituted courts-martial. However, if there are cases to the contrary, please let me know! (my very cursory review did not turn up any); and the "Little Tucker Act" provision seems broader still: "civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort" - but again, what civil actions have been brought under this provision as a claim "founded" upon the Constitution, UCMJ, or - say - the MCM that addressed the discretionary fact-finding, sentencing, or legal determinations made by courts-martial?

Indeed, under Clinton v. Goldsmith (1999), SCOTUS seems to suggest these two Acts provide viable routes for certain claims arising only from "executive" decisions like dropping soldiers from the rolls, or correction of military records following administrative discharges....and, from Ortiz (2018), it is clear that a C-M finding and sentence is inherently "judicial" in nature, not executive (even the GCMCA's decision to approve a sentence - including approvals by POTUS - are “judicial,” not administrative). I wish, in hindsight, I had been clearer about the kind of review I was thinking about. I am not arguing that the DC District Court should not have taken this case – I merely argue that the court’s opinion does not do enough justice

Cloudesley Shovell

12/1/2020 09:57:55 am

The shortest road to satisfaction in this tiny little corner of military law is for Congress to legislatively terminate jurisdiction over retirees.

The absurdities present in the current Art. 2 are obvious. What if Larrabee had been a reserve retiree, being paid, all other facts the same. No jurisdiction. Why? A pure legislative choice.

What if Larrabee had been discharged the day before? No jurisdiction.

What if Larrabee had been injured in war, but was ultimately medically retired at 30%? Jurisdiction! He's a retiree of a regular armed force entitled to pay! What if he took VA disability in lieu of military pay? Still jurisdiction because he could change his mind; therefore still "entitled to pay"! (there's three prongs in Art. 2(a)(4), retiree--regular armed force--entitled to pay). Ask me how I know the VA disability guy is still "entitled to pay" because he is, even though both the relevant CCA and CAAF steadfastly refused to address the issue at all after the trial judge's ruling, so you won't find it discussed anywhere.

What if, through the vagaries of military administration, Larrabee had the identical war wound, but was simply discharged and then got the identical disability rating with the same disability pay? No jurisdiction! Why? Once again, pure legislative choice.

In short, the current system of jurisdiction over retirees is pretty arbitrary, mostly exercised not on the basis of some objectively applied neutral criteria but rather thru pure prosecutorial discretion. In other words, the retiree pissed off some GCMCA.

Saying this case is OK because the victim is a military dependent is just resurrecting the Solorio service-connection zombie dressed up in good order and discipline clothes.

Kind regards,
CS

Dwight Sullivan

12/1/2020 11:21:07 am

[Standard disclaimer: This comment is made in my personal capacity and should not be imputed to anyone or anything else.] Claims are sometimes brought under the Tucker Act or Little Tucker Act for back pay that a servicemember or former servicemember lost as a result of a court-martial, thus providing an opportunity to collaterally challenge the findings and/or sentence. This route is probably most commonly used where the individual who was court-martialed is no longer under any resulting deprivation of liberty, thus generally barring habeas relief. Here is a helpful discussion by the Court of Federal Claims concerning its authority to collaterally review court-martial proceedings under the Tucker Act:

This court "can examine court-martial proceedings only in those rare instances where a serviceman who has been convicted in a court-martial trial sues in our court for back pay and collaterally attack[s] the court-martial proceedings on the ground that he was deprived of his constitutional rights in such proceedings." Artis v. United States, 506 F.2d 1387, 1391, 205 Ct. Cl. 732 (Ct. Cl. 1974) (emphasis omitted)). That is, a plaintiff may collaterally attack a court-martial conviction in this court on the grounds that the court-martial proceedings were so "depriv[ed] of fundamental fairness" that they impaired the plaintiff's due process rights. Bowling v. United States, 713 F.2d 1558, 1561 (Fed. Cir. 1983); see Longval v. United States, 41 Fed. Cl. 291, 295 (1998) (stating that this court may only review court-martial proceedings if a plaintiff can establish "by clear and convincing evidence that: (1) significant constitutional defects existed that deprived [the plaintiff] of due process; (2) the court-martial proceeding lacked fundamental fairness, and (3) the court's reexamination does not amount to a retrial of the case").

Piotrowski v. United States, No. 13-760C, 2014 U.S. Claims LEXIS 1481, *41-42 (Fed. Cl. Dec. 30, 2014), aff’d, 722 Fed. Appx. 982 (Fed. Cir. 2018).

The leading Federal Circuit opinion concerning collateral review of courts-martial under the Tucker Act is Matias v. United States, 923 F.2d 821, 823 (Fed. Cir. 1990).

Little Tucker Act claims – which may not exceed $10,000 – may be raised in either the Court of Federal Claims or a federal district court, but the appeal will go to the Federal Circuit in either event. Here is an excerpt from a Federal Circuit opinion upon review of a collateral challenge to a court-martial conviction filed under the Little Tucker Act in the United States District Court for the Northern District of Illinois. Longtime CAAFlog readers will recognize the appellant’s name:

Our review of court-martial decisions is sharply constrained. Mr. Cossio does not dispute that the court-martial had jurisdiction to try him. Under those circumstances, "judgments by courts-martial, although not subject to direct review by federal civil courts, may nevertheless be subject to narrow collateral attacks in such courts on constitutional grounds." Bowling v. United States, 713 F.2d 1558, 1561 (Fed. Cir. 1983). The grounds for collaterally attacking a court-martial must be "serious" and "demonstrate convincingly that in the court-martial proceedings there has been such a deprivation of fundamental fairness as to impair due process." Id.

Cossio v. Donley, 527 Fed. Appx. 932, 935 (Fed. Cir.), cert. denied, 571 U.S. 1101 (2013).

Nathan Freeburg

12/4/2020 07:12:48 pm

Dan, this is really really good. Definitely found your passion. You’d be a fearsome appellate counsel.

As much as I agree with it I do question whether this decision is long for surviving appeal. On the other hand, the tax treatment argument, to me, is the most compelling.

(The bar fight point is hilarious.) Congress didn’t provide for continuous UCMJ jurisdiction over reservists because then there would be no reservists. AC folks, on the other hand, have no idea that they will be subject to UCMJ jurisdiction in retirement. Which raises the question...the assumption is that you can turn down retirement. Can you? What’s the mechanism? As anyone who has ever tried to opt out of SGLI can tell you, you can’t actually opt out of things the DoD doesn’t want you to opt out of.

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Maurer on Larrabee

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