Moylan v. Laird

• Decision Date: 20 October 1969
• Docket Number: Civ. A. No. 4179.
• Parties: Lance Corporal (E-3) Daniel E. MOYLAN 2186719 U.S.M.C., Plaintiff, v. Melvin R. LAIRD, Secretary of Defense, John H. Chafee, Secretary of the Navy and Brigadier General J. C. Fegan, the Convening Authority, Defendants.
• Court: U.S. District Court — District of Rhode Island

305 F. Supp. 551

Lance Corporal (E-3) Daniel E. MOYLAN 2186719 U.S.M.C., Plaintiff, v. Melvin R. LAIRD, Secretary of Defense, John H. Chafee, Secretary of the Navy and Brigadier General J. C. Fegan, the Convening Authority, Defendants.

Civ. A. No. 4179.

United States District Court D. Rhode Island.

October 20, 1969.

Richard P. Kearns, Providence, R. I., for plaintiff.

Lincoln C. Almond, U. S. Atty., William J. Gearon, Asst. U. S. Atty., Providence, R. I., for defendants.

OPINION

PETTINE, District Judge.

This is a civil equity action pursuant to Fed.R.Civ.P. 65 in which the plaintiff, a member of the United States Marine Corps, seeks an injunction prohibiting military authorities from subjecting him to an allegedly unconstitutional court martial. Jurisdiction is predicated upon 28 U.S.C. § 1331. On September 11, 1969 this court issued temporary restraining relief and requested extensive briefs from the parties on various questions of law. The restraining order was extended by agreement of the parties, an extensive discussion of the law ensued, and now, after consideration of all the arguments, this court is prepared to rule.

There is no disagreement as to the facts of the case; they are as follows.¹ On or about February 1, 1969 the plaintiff, without permission, left his unit on the Island of Vieques and went to Kingston, Jamaica. He was dressed in civilian clothing and was carrying an unlocked zipper-type handbag. While he was in Kingston, he left his handbag unattended on the floor of the air terminal. Upon his subsequent return to San Juan, he was searched by customs inspection officials who found 42.5 ounces of marijuana. On or about February 3, 1969 the plaintiff appeared before United States Commissioner Harley A. Miller in the United States District Court for the District of Puerto Rico and was charged with violations of 21 U.S.C. § 176a and 26 U.S.C. § 4741(a). The plaintiff entered pleas of not guilty and was released in his own recognizance pending action by the grand jury. Immediately thereafter, plaintiff returned to duty with his unit of the Marine Corps. In late April, 1969, plaintiff was charged by military authorities with violation of Article 134 of the Uniform Code of Military Justice for possession of marijuana and with violation of Article 86 of the Uniform Code of Military Justice for being absent without authority from his place of duty. Both such charges stemmed from the previously described incidents which occurred on or about February 1, 1969. On or about June 27, 1969, the charges of the military authorities were investigated under Article 32 of the Uniform Code of Military Justice. The Investigating Officer declined to recommend dismissal of the charges, notwithstanding the plaintiff's argument that military jurisdiction violated the Constitution. The Convening Authority referred the matter to a General Court Martial which was scheduled to begin on September 15, 1969. On September 11, this court restrained that court martial.

Jurisdiction

Defendants argue that 28 U.S.C. § 1331 cannot be the basis for jurisdiction. In essence the defendants argue that there is no substantial federal question, that the complaint fails to allege the requisite amount in controversy, and that the plaintiff has failed to exhaust the intra-military criminal processes.

When a plaintiff in good faith asserts a right which is predicated upon the provisions of the United States Constitution, and when that right may well be recognized if the Constitution is given a certain construction, then there is a substantial federal question. See Martinez v. Southern Ute Tribe, 273 F.2d 731 (5th Cir.1960). This general rule applies to rights asserted by servicemen against their superiors or against other supervisory personnel. See Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958); Reed v. Franke, 297 F.2d 17 (4th Cir.1961). In the instant case, there can be little doubt that the plaintiff has asserted a most serious constitutional claim, the resolution of which turns upon a delicate application of O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969) to the instant facts.

At the hearing of this matter in full, the plaintiff submitted an amended complaint in which he prayed for $11,000 damages. The defendants have raised no particularized objection to this jurisdictional allegation. Hence, the requisite jurisdictional amount has been well pleaded. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938). Moreover, even if there be a jurisdictional amount attack, this court is of the opinion that jurisdiction does lie. See Murray v. Vaughn, 300 F.Supp. 688 (D.R.I. 1969).

The controlling case with respect to the issue of whether plaintiff must exhaust intra-military criminal processes is Noyd v. Bond, 395 U.S. 683, 89 S.Ct. 1876, 23 L.Ed.2d 631 (1969). In that case petitioner, a career officer in the Air Force who had come to believe that this country's participation in the Vietnamese conflict is unjust and immoral, refused to obey an order issued December 5, 1967, which order required him to teach one of the junior officers at the Cannon Air Force Base, New Mexico, to fly a military airplane, and which order he deemed to be a violation of his conscience. A general court martial was convened and found Captain Noyd guilty. After announcement of sentence, Captain Noyd was confined to quarters, and upon approval of sentence by the Commanding Officer at Cannon AFB, was confined in the United States Disciplinary Barracks, Fort Leavenworth, Kansas, pending completion of appellate review. Captain Noyd's attorneys then commenced appeal of the merits of his conviction within the military justice system and simultaneously initiated a petition for writ of habeas corpus in the United States District Court for the District of New Mexico. The habeas petition was grounded upon the argument that Captain Noyd's post-sentence confinement at Cannon AFB and his proposed incarceration in Leavenworth were in violation of certain provisions of the Uniform Code of Military Justice. The District Court in granting partial relief held that exhaustion of military remedies was not a precondition to Captain Noyd's petition. The Court of Appeals for the Tenth Circuit reversed the District Court. The United States Supreme Court affirmed the reversal.

Of utmost importance to the issue in the instant case is the Court's discussion of the availability of federal court relief where a constitutional claim is asserted which claim is directed at the very power of the military to process criminally the petitioner. In that connection, the Supreme Court stated:

Petitioner contends that our decisions United States ex rel. Toth v. Quarles, 350 U.S. 11 76 S.Ct. 1, 100 L.Ed. 8 (1955); Reid v. Covert, 354 U.S. 1 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957); and McElroy v. United States ex rel. Guagliardo, 361 U.S. 281 80 S.Ct. 305, 4 L.Ed.2d 282 (1960), justify his position that exhaustion of military remedies is not required in this case. The cited cases held that the Constitution barred the assertion of court-martial jurisdiction over various classes of civilians connected with the military, and it is true that this Court there vindicated petitioners' claims without requiring exhaustion of military remedies. We did so, however, because we did not believe that the expertise of military courts extended to the consideration of constitutional claims of the type presented. Moreover, it appeared especially unfair to require exhaustion of military remedies when the petitioners raised substantial arguments denying the right of the military to try them at all.

Noyd v. Bond, 395 U.S. 683 at 696 n. 8, 89 S.Ct. 1876 at 1884, 23 L.Ed.2d 631 (1969). The application of the language of the Court in Noyd to that situation where the petitioner alleges that the assertion of jurisdiction by the military is unconstitutional mandates the conclusion that exhaustion is not required. The federal district courts are the front lines of constitutional litigation, more suited to decision-making in the constitutional area than any of the various federal agencies or the military tribunals. Moreover, the application of O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969) to variant fact-patterns is not a function which requires any special military expertise. Indeed, the whole thrust of O'Callahan suggests the contrary. Finally, the wrong claimed by petitioner goes to the very power of the military over him as a constitutional jurisdictional matter. This court, therefore, concludes that exhaustion of intra-military criminal processes is not prerequisite to a federal equity proceeding by a member of the military who alleges that a court martial convened to try him is without jurisdiction as a constitutional matter pursuant to the principles of O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L. Ed.2d 291 (1969).

The Merits

In O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969) the petitioner was charged with attempted rape, housebreaking, and assault with intent to rape. The crimes charged by the military were committed while the petitioner was on leave, within the civilian community and against a civilian. The Supreme Court held that the military did not, as a constitutional matter, have jurisdiction to try the petitioner under Articles 80, 130 or 134 of the Uniform Code of Military Justice.

In holding that "* * * the crime to be under military jurisdiction must be service-connected * * *" the Court established certain guidelines for future judicial elaboration.

In the present case petitioner was on leave when he committed the crimes with which he is charged. There was no connection—not even in the remotest one—between his military duties and the crimes in question. The crimes were not committed on a military post or enclave; nor was the person whom he attacked

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