Brown v. U.S., 73-1996

• Decision Date: 24 January 1975
• Docket Number: No. 73-1996,73-1996
• Parties: Richard E. BROWN, on behalf of himself and all others similarly situated, v. UNITED STATES of America et al., Appellees, Richard E. Brown and David L.Taylor, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

Page 618

508 F.2d 618

Richard E. BROWN, on behalf of himself and all others

similarly situated, v. UNITED STATES of America et al., Appellees, Richard E. Brown and David L.Taylor, Appellants.

No. 73-1996.

United States Court of Appeals, Third Circuit.

Argued June 24, 1974.

Decided Dec. 31, 1974, As Amended Jan. 24, 1975.

Harold E. Kohn, Aaron M. Fine, Allen D. Black, Arthur M. Kaplan, Mark E. Goldberg, Philadelphia, Pa., for appellants.

Irving Jaffe, Washington, D.C., Robert E. J. Curran, Philadelphia, Pa., Robert E. Kopp, Michael Kimmel, U.S. Dept. of Justice, Washington, D.C., for appellees.

Appeal from the United States District Court for the Eastern District of Pennsylvania.

Before ADAMS, HUNTER and GARTH, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

This is a class action brought by individuals who were convicted by special courts-martial that were convened by officers in the United States Navy and Marine Corps under what the United States Court of Military Appeals subsequently held was an improper conferral of convening authority by the Secretary of the Navy under Article 23(a)(7), UCMJ, 10 U.S.C. 823(a)(7) (1970). United States v. Greenwell, 19 U.S.C.M.A. 460 (1970). The plaintiffs claim that the Greenwell decision renders their convictions void and they seek to have their military records corrected accordingly. They also seek to recover the forfeiture of pay and allowances adjudged at their courts-martial as well as other damages.

The determinative question in this appeal is whether the decision of the United States Court of Military Appeals in Greenwell should be given prospective or retrospective application. ¹ If that case is given retrospective effect, the plaintiffs have what appears to be a good cause of action. On the other hand, if it is limited to prospective application only, a good cause of action is not stated.

This issue was presented to the district court by way of cross motions for summary judgment and that court ruled that Greenwell should only be given prospective application. As a result, the defendants' motion was granted and the plaintiffs filed this appeal. We have concluded that the district court's decision was correct and accordingly affirm.

In Greenwell, the special court-martial that convicted and sentenced the defendant was convened by the Commanding Officer, Student Company, Marine Corps Base, Camp Pendleton, California. That commander had gained the authority to convene special courts-martial when the Commanding General of Camp Pendleton designated Student Company a 'separate and detached command for disciplinary purposes.' Under the language of section 0103b(5), Manual of the Judge Advocate General, Department of the Navy, this designation automatically conferred convening authority upon the commanding officer of the unit so designated. That section read as follows:

'b. Special courts-martial. In addition to those officers otherwise authorized (to convene special courts-martial) by article 23(a)(1) through (6), UCMJ, (10 U.S.C. 823(a)(1)-(6) (1970)) the following officers are, inder the authority granted to the Secretary of the Navy by article 23(a)(7), UCMJ, empowered to convene to convene special courts-martial:

'(5) All commanding officers and officers in charge of commands now or hereafter designated as separate or detached commands by a flag or general officer in command . . ..'

In Greenwell, the United States Court of Military Appeals decided that conferral of special court-martial convening authority by the method set forth in section 0103b(6), JAG Manual, was illegal. The court began its discussion by noting that that section was explicitly designed to grant convening authority solely pursuant to the Secretary of the Navy's statutory authority under Article 23(a)(7), UCMJ, 10 U.S.C. 823(a)(7) (1970). It then observed that under Article 23(a)(7) only commanding officers who are 'empowered by the Secretary concerned' can convene special courts-martial, and interpreted this language to mean that the granting of convening authority under 23(a)(7) could only be effective if that power was personally conferred by the Secretary himself. ²

Under this view of the statute, the conferral of convening authority upon the Commanding Officer of Student Company under the procedure set forth in section 0103b(5), JAG Manual, became suspect since he did not receive his authority directly from the Secretary. Instead, the Secretary conferred convening authority upon the commanding officers of all commands designated as 'separate or detached' by a flag or general officer in command. It was only when the Commanding General at Camp Pendleton conferred that designation on Student Company that the Secretary's authority was, in turn, conveyed to its commanding officer.

The court felt that under this two-step procedure, the Secretary had, in effect, delegated his power to grant convening authority under Article 23(a)(7) to the general officers that designated units as 'separate or detached.' As a result, the court concluded that conferral of that power on the Commanding Officer of Student Company was invalid and that courts-martial convened by commanders operating under authority conveyed by the two-step procedure set out in section 0103b(5), JAG Manual, were void.

The appellants, in the present case, present two arguments to support their claim that this decision in Greenwell has retroactive effect. Their first claim is that the parties to this case have already litigated the issue before the United States Court of Military Appeals and that that court ruled that Greenwell was retroactive. Thus, they contend that the appellees are barred from relitigating the issue under the doctrine of collateral estoppel. Their second claim is that Greenwell is retroactive in any case under the relevant judicial tests.

I.

The appellants' collateral estoppel claim rests upon the decision of the Court of Military Appeals in Ferry v. United States, 22 U.S.C.M.A. 339 (1973). In that case, the government, by certificate of the Judge Advocate General of the Navy, initiated an appeal to the highest military court in a case involving a member of the plaintiff class. The defendant Ferry had been convicted of a crime and at the trial's sentence proceedings the government had sought to have a prior conviction introduced. This request was denied because the prior conviction was rendered by a special court martial convened by a commander who had received his convening authority under the procedure subsequently ruled improper in Greenwell.

The government, in its appeal in Ferry, contended that this prior conviction was not in any way affected by Greenwell because it had been completed before the Greenwell decision was handed down. Thus, the question certified to the Court of Military Appeals read as follows:

'Does the decision of the United States Court of Military Appeals in United States v. Greenwell, 19 USCMA 460, 2 CMR 42 (1970), have retroactive application, so as to render Prosecution Exhibit 3 (the record of conviction by a 1969 special court-martial convened pursuant to the JAG Manual provision found to be legally ineffective in Greenwell) inadmissible in evidence?'

We agree with the appellant when he suggests that the retroactivity issue presented in the instant case was also squarely presented to the court in Ferry. However, this fact alone does not make collateral estoppel operative since that doctrine only precludes 'the relitigation of issues actually decided in former judicial proceedings.' Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, 844 (3d Cir. 1974); accord, Blonder Tongue Laboratories, Inc. v. University Foundation, 402 U.S. 313, 323, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); Lynne Carol Fashions, Inc. v. Cranston Print Works Co., 453 F.2d 1177, 1182 (3d Cir. 1972).

In Ferry, the actual decision of the court did not reach the question certified to the court. Instead, Judge Quinn, writing the opinion of the court, framed his decision as follows:

'Whatever effect Greenwell may have on a conviction in other situations, we have no doubt that a conviction invalid under Greenwell cannot be used to increase the sentence for a later offense . . ..' 22 U.S.C.M.A. at 340.

Thus, he specifically limited his holding to the facts presented in that case and refrained from deciding the broad question presented by the litigants.

Since Chief Judge Darden's concurring opinion indicates an intent to follow Judge Quinn's decision on this issue, ³ we conclude that the majority of the court in Ferry did not reach the question of Greenwell's overall retroactivity. As a result, the Ferry decision does not bind us in that issue and we are free to decide it in this litigation. ^3A

II.

When we look to the merits of the retroactivity issue, we are faced at the outset with a threshold requirement that must be met before a limitation on the retroactivity effect of a decision can even be considered. In Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), the Supreme Court indicated that,

'. . . the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied . . . or by deciding an issue of first impression whose resolution was not clearly foreshadowed . . ..' Id. at 106, 92 S.Ct. at 355.

Appellant contends that this threshold requirement is not met. We cannot agree. While no past precedent was overruled by Greenwell, we feel the case did decide 'an issue of first impression whose resolution was not clearly foreshadowed' so that it falls within the second part of the test laid out in Chevron Oil.

The only case we are referred to that arguably touched on the issue in Greenwell before that case was decided is United States v. Ortiz, 15 U.S.C.M.A. 505 (1965), petition for reconsideration denied, 16 U.S.C.M.A. 127 (1966). In that case, as in Greenwell,...