Bowling v. United States
| Citation | 552 F. Supp. 54 |
| Decision Date | 03 December 1982 |
| Docket Number | No. 679-81C.,679-81C. |
| Parties | David L. BOWLING v. The UNITED STATES. |
| Court | Court of Federal Claims |
COPYRIGHT MATERIAL OMITTED
Gary D. Jackson, Dallas, Tex., atty. of record, for plaintiff; Jackson & Jackson, Dallas, Tex., of counsel.
Lynn Bush Ferguson, Washington, D.C., with whom was Asst. Atty. Gen., J. Paul McGrath, Washington, D.C., for defendant; Stephen A.J. Eisenberg, Lt. Col., JAGC, Dept. of the Army, Washington, D.C., of counsel.
ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
The plaintiff, a former Specialist Four (E-4) in the Army, was discharged with a bad-conduct discharge pursuant to a conviction and sentence by a special court-martial. He asks this court to vacate his conviction and sentence, to order his reinstatement to his previous rank of Specialist Four in the Army, and to make an award of back pay to him.
As the parties are in agreement concerning the facts essential to the disposition of the case, they have filed cross-motions for summary judgment.
Having considered the briefs of the parties and heard oral argument, it is concluded that, in view of the rather narrow scope of the review which civil courts are empowered to exercise over the judgments of courts-martial, this court cannot properly grant the relief which the plaintiff seeks.
Judgments by courts-martial are not subject to direct review by federal civil courts. Collateral review of such judgments, however, has long been available under certain circumstances. A commonly used method of obtaining collateral review has been the filing of actions for back pay with this court's predecessor, the United States Court of Claims. See, e.g., Gallagher v. United States, 191 Ct.Cl. 546, 423 F.2d 1371, cert. denied, 400 U.S. 849, 91 S.Ct. 58, 27 L.Ed.2d 86 (1970); McDonald v. United States, 205 Ct.Cl. 780, 507 F.2d 1271 (1974).
In this connection, it should be mentioned that Article 76 of the Uniform Code of Military Justice (10 U.S.C. § 876) expressly states that "all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this chapter, are final and conclusive. * * *" The Supreme Court, however, held in Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975), that Article 76 does not bar a federal civil court, in an action otherwise within its subject-matter jurisdiction, from considering a collateral attack on a court-martial judgment which raises a question as to whether such judgment is void on constitutional grounds. Hence, as the Court of Claims said in Augenblick v. United States, 180 Ct.Cl. 131, 143, 377 F.2d 586, 593 (1967), rev'd on other grounds, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969), Article 76 did not make decisions by courts-martial "truly final."
In the present case, the plaintiff having filed an action within this court's subject-matter jurisdiction, and having based the action on allegations to the effect that his court-martial conviction and sentence were void on constitutional grounds, the court has jurisdiction to consider and dispose of the collateral attack thus presented.
In exercising the power of collateral review over court-martial judgments, federal civil courts have experienced considerable difficulty in determining the proper scope of such review. In Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953), the Supreme Court indicated that federal civil courts should confine their review to a determination of whether, in a particular instance, the court-martial acted within its personal and subject-matter jurisdiction and whether it gave "fair consideration" (id. at 144, 73 S.Ct. at 1050) to allegations of constitutional error.
In applying the "fair consideration" test, some appellate courts have held that the review of a court-martial judgment on a collateral attack should end once it is determined that the military courts heard and considered the claims of constitutional error made by the accused in the court-martial proceedings. See, e.g., Easley v. Hunter, 209 F.2d 483, 487 (10th Cir.1953); Sunday v. Madigan, 301 F.2d 871, 873 (9th Cir.1962). More recent appellate decisions, however, have tended to apply the "fair consideration" test only to the factual findings of courts-martial. Under this fact/law distinction, civil courts have concluded that they may independently decide questions of constitutional law raised in a collateral attack on a court-martial judgment, irrespective of whether such legal questions were considered by the military courts. See, e.g., Shaw v. United States, 174 Ct.Cl. 899, 904-05, 357 F.2d 949, 954 (1966); Kennedy v. Commandant, 377 F.2d 339, 342 (10th Cir. 1967); Harris v. Ciconne, 417 F.2d 479, 481 (8th Cir.1969), cert. denied, 397 U.S. 1078, 90 S.Ct. 1528, 25 L.Ed.2d 813 (1970).
It appears that the Court of Claims adopted the fact/law distinction in considering the constitutional claims of individuals challenging court-martial judgments. In Shaw v. United States, supra, the court stated that it could review "pure issues of constitutional law, unentangled with an appraisal of a special set of facts" (174 Ct.Cl. at 905, 357 F.2d at 954; see also Augenblick v. United States, supra, 180 Ct.Cl. at 143-44, 377 F.2d at 593). On the other hand, the Court of Claims said that questions of fact resolved by the military courts could not be collaterally attacked. See, e.g., Flute v. United States, 210 Ct.Cl. 34, 38, 535 F.2d 624, 626 (1976) (); Taylor v. United States, 199 Ct.Cl. 171, 174 (1972) (); Artis v. United States, 205 Ct.Cl. 732, 740, 506 F.2d 1387, 1391 (1974) ().
Moreover, the Court of Claims said that, even in matters of constitutional law, the military courts "must be allowed a reasonable scope for the exercise of judgment" in determining "how much is necessary to be done to effectuate a constitutional right they are aware of and manifestly respect." Flute v. United States, supra, 210 Ct.Cl. at 39, 535 F.2d at 627.
Decisions by the Supreme Court subsequent to the Burns decision have not ended the confusion surrounding the scope of review by federal civil courts of court-martial judgments. It is certain, however, that the civil courts can properly review only claims rising to the "constitutional level." United States v. Augenblick, 393 U.S. 348, 351-52, 89 S.Ct. 528, 531, 21 L.Ed.2d 537 (1969). In Augenblick, the Court described the constitutional level in terms difficult for a plaintiff to establish:
* * * Apart from trials conducted in violation of express constitutional mandates, a constitutionally unfair trial takes place only where the barriers and safeguards are so relaxed or forgotten * * * that the proceeding is more a spectacle * * * or trial by ordeal * * * than a disciplined contest. 393 U.S. at 356, 89 S.Ct. at 534 citations omitted.
The Court's most recent discussion of the scope of review was in Schlesinger v. Councilman, supra, where the Court stated that a court-martial judgment could be collaterally attacked only for "lack of jurisdiction or some other equally fundamental defect" (420 U.S. at 747, 95 S.Ct. at 1307). The Court further said that the determination of whether a court-martial judgment is void depends "on the nature of the alleged defect, and the gravity of the harm from which relief is sought," and that these factors "must be assessed in light of the deference that should be accorded the judgments of the carefully designed military justice system established by Congress" (id. at 753, 95 S.Ct. at 1310).
The petition in the present case states that the plaintiff relies on the same alleged errors which were complained of in an attached "Assignment of Errors and Brief on Behalf of Appellant by Civilian Co-Counsel," which was filed with the United States Court of Military Appeals in the court-martial proceedings. (The same attorney who was the plaintiff's civilian co-counsel in the court-martial proceedings represents the plaintiff in the present judicial proceedings.) These assignments of error will be discussed in the light of the court precedents mentioned earlier in the opinion.
The assignment of errors which the plaintiff's civilian co-counsel filed with the United States Court of Military Appeals listed, as one of the principal points of error, that "The military judge erred by failing to grant the motion to suppress because the officer authorizing the search was incapable in fact of acting in an impartial capacity."
The agreed facts show that while the plaintiff was serving in the Army, assigned to Company B, 95th Military Police Battalion, stationed in Heidelberg, Germany, and billeted in Patton Barracks, a Military Police investigator searched the plaintiff's room in Patton Barracks and discovered some hashish in the room; that the search of the plaintiff's room had been authorized by Captain James T. Case, Company Commander of the 529th Military Police Company and Building Commander of Patton Barracks; and that the power to authorize searches had been delegated to Captain Case by Colonel John J. Cassidy, Commanding Officer of Special Troops (including the Military Police) at Heidelberg, who maintained his headquarters in Patton Barracks.
After the discovery and seizure of the hashish, the plaintiff was charged with having violated Article 134 of the Uniform Code of Military Justice (10 U.S.C. § 934) through the possession of "marihuana." (He was also charged with having violated Article 134 through the transfer of "marihuana," and this...
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Bowling v. U.S., 83-655
...December 3, 1982), granted defendant's cross-motion for summary judgment and dismissed the plaintiff's petition. Bowling v. United States, 1 Cl.Ct. 15, 552 F.Supp. 54 (1982). We Appellant, a former Army enlisted man, was tried by a military judge sitting as a Special Court-Martial in Mannhe......