Four months ago, this blog discussed two appeals—one to the CAAF and one to the Court of Appeals for the District of Columbia (CADC)—that addressed whether Congress could constitutionally subject members of the Fleet Reserve and Fleet Marine Corps Reserve (collectively Fleet Reservists) to the UCMJ. The first domino, United States v. Begani, has now fallen.
As a reminder, an enlisted member of the Navy or Marine Corps may transfer into the Fleet Reserve or Fleet Marine Corps Reserve after twenty years of active-duty service. Fleet Reservists receive retainer pay, are subject to recall, and must maintain military readiness. Article 2(a)(6), UCMJ, subjects Fleet Reservists to continuous UCMJ jurisdiction.
Chief Petty Officer Steven A. Begani joined the Fleet Reserve after twenty-four years of service. While working as a government contractor, he was accused and subsequently convicted of one specification of attempted sexual assault of a child and two specifications of attempted sexual abuse of a child, in violation of Articles 80 and 120b, UCMJ. The Navy-Marine Corps Court of Criminal Appeals (NMCCA) panel unanimously rejected his conviction for lack of jurisdiction, holding that subjecting Fleet Reservists but not retired reservists to the UCMJ violated the Fifth Amendment’s Equal Protection Clause. Sitting en banc, the NMCCA then overturned the panel’s decision and reinstated the verdict.
The CAAF granted review on the equal protection argument. The Navy Judge Advocate General also certified a second question to the court, whether Begani waived his equal protection claim. And after the District Court for the District of Columbia (DDC) ruled in Larrabee v. Braithwaite that courts-martial may not exercise jurisdiction over Fleet Reservists, the CAAF granted review on “whether members of the Fleet Reserve have sufficient current connection to the military for Congress to subject them to continuous UCMJ jurisdiction.”
In a unanimous decision, the CAAF found that (1) Begani did not waive his Fifth Amendment equal protection claim; (2) Begani was a member of the land and naval forces and therefore subject to the UCMJ; and (3) Congress’s subjection of Fleet Reservists but not retired reservists to continuous UCMJ jurisdiction did not violate the Fifth Amendment’s Equal Protection Clause.
Whether Begani waived his equal protection claim?
The CAAF quickly dispatched this issue. Questions of subject matter jurisdiction cannot be waived. And though Begani’s claim involved the Fifth Amendment’s Equal Protection Clause, if he succeeded on the claim, it would deprive the court-martial of jurisdiction. Consequently, the Court ruled that it was a jurisdictional question and thus could not be waived.
Whether Begani maintained a sufficient connection to the land and naval forces to subject him to continuous UCMJ jurisdiction?
Quoting the Supreme Court case Kinsella v. United States, the CAAF reaffirmed that “[t]he test for jurisdiction . . . is one of status, namely, whether the accused in the court-martial proceeding is a person who can be regarded as falling within the term ‘land and naval forces.’” The Court observed that Fleet Reservists are paid, subject to recall, and required to maintain military readiness. While being paid does not confer military status, the United States paid Begani because of his status as a member of the Fleet Reserve—a component of the Navy. Moreover, Congress determined that, to maintain the readiness of the armed forces, it must subject Fleet Reservists to continuous UCMJ jurisdiction. Based on Congress’s broad power to regulate the military, the CAAF deferred to this judgment.
Additionally, the Court rebuffed Begani’s request to “supplement” Kinesella’s “military status” test with a “significant connection” test, noting that the Supreme Court rejected such an approach in Solorio v. United States. It also spurned Begani’s attempt to exclude retirees from Congress’s power to regulate the armed forces.
The CAAF concluded that Begani had not “severed all relationship” with the military and was therefore a member of the naval forces. Thus, Congress could constitutionally subject Begani to continuous UCMJ jurisdiction.
Whether Congress’s subjection of Fleet Reservists but not retired reservists to continuous UCMJ jurisdiction violates the Fifth Amendment’s Equal Protection Clause?
Begani argued that Fleet Reservists and retired reservists were similarly situated for the purpose of the Fifth Amendment’s Equal Protection Clause. Specifically, both Fleet Reservists and retired reservists were paid and subject to recall. Only Fleet Reservists, however, are subject to continuous UCMJ jurisdiction. He then contended that this distinction implicated the Sixth Amendment right to trial by jury, and therefore the incongruity was subject to strict scrutiny.
The CAAF rejected these arguments on the ground that Fleet Reservists and retired reservists receive different benefits and are subject to different requirements; they are not similarly situated. First, Begani ignored “important distinctions” regarding when, why, and how much each group is paid. He also disregarded when and why the groups can be recalled. Fleet Reservists receive pay immediately; must maintain military readiness; and are subject to recall during a war, in a national emergency (declared by either Congress or the President), or for training. Retired reservists, in contrast, only receive pay at the age of sixty; need not maintain military readiness; and may only be recalled during a war or national emergency declared by Congress after all qualified active reserve or national guard forces have been exhausted.
In a footnote, the CAAF noted that even if it found that the two groups were similarly situated, it would have assessed the disparate treatment under rational basis. The Court argued that, since both Fleet Reservists and regular retirees are part of the land and naval forces, neither have a Sixth Amendment right to a jury trial. The distinction consequently did not implicate a fundamental right.
The CAAF’s decision in Begani has placed it in direct conflict with the DDC’s decision in Larrabee. The next question, then, is whether the CADC will affirm the DDC’s holding. If it does, the Supreme Court will likely have to resolve the “circuit split” over whether Fleet Reservists maintain a sufficient connection to the armed forces to subject them to continuous UCMJ jurisdiction.
Should the Supreme Court take up the case, Judge Magg’s Bengani concurrence, which addresses Bengani’s “originalist” constitutional arguments, might prove disproportionately influential. That concurrence, however, will be the subject of a future blog post.
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