Hooper v. United States

• Decision Date: 24 January 1964
• Docket Number: No. 212-61.,212-61.
• Citation: 164 Ct. Cl. 151,326 F.2d 982
• Parties: Selden G. HOOPER v. The UNITED STATES.
• Court: U.S. Claims Court

164 Ct. Cl. 151, 326 F.2d 982 (1964)

Selden G. HOOPER v. The UNITED STATES.

No. 212-61.

United States Court of Claims.

January 24, 1964.

Oscar F. Irwin, San Diego, Cal., for plaintiff. William Hillyer, San Diego, Cal., on the briefs.

John R. Franklin, Washington, D. C., with whom was Asst. Atty. Gen. John W. Douglas, for defendant.

Before JONES, Chief Judge, and WHITAKER, LARAMORE, DURFEE, and DAVIS, Judges.

LARAMORE, Judge.

Plaintiff, an officer of the Regular Navy, retired for years of service, not on active duty, was charged by naval authorities with violations of the Uniform Code of Military Justice. The charges were based on alleged homosexual acts occurring at a private residence, not a part of any military or naval reservation. Plaintiff, without being recalled to active duty, and over his objection, was subjected to trial by naval court-martial and sentenced to dismissal and forfeiture of all pay and allowances.

On September 26, 1958, the U.S. Court of Military Appeals affirmed the decision of the Board of Review, which Board had affirmed plaintiff's conviction. On January 7, 1961, plaintiff's conviction and sentence were approved and ordered executed by the President of the United States, and payment of plaintiff's retired pay was discontinued as of that date.

Plaintiff brings this suit for retired pay withheld, alleging the unconstitutionality of Article 2(4) of the Uniform Code of Military Justice, 64 Stat. 107, 109; 10 U.S.C. § 802 (1958).

Article 2(4) of the Uniform Code of Military Justice, supra, provides in pertinent part:

"The following persons are subject to this chapter:

* * * * * *

"(4) Retired members of a regular component of the armed forces who are entitled to pay."

Plaintiff's case is premised solely on the contention that court-martial jurisdiction is strictly limited to those persons who bear such a proximate relationship to the Armed Forces and their functions as to be reasonably treated as "in" the Armed Forces. Plaintiff argues that the exercise of court-martial jurisdiction over him is unconstitutional since a retired naval officer, for this purpose, does not have such a relationship with the military so that it can be said that he is "in" the Armed Forces. Defendant, on the other hand, contends that the court-martial exercise of jurisdiction over this plaintiff, under Article 2(4) of the Uniform Code of Military Justice, supra, is constitutionally valid. As an affirmative defense the defendant alleges that plaintiff's claim is barred by the doctrines of res judicata and collateral estoppel, in view of the fact that plaintiff, throughout the military proceedings, contended that the exercise of jurisdiction over him by that tribunal was unconstitutional. This issue was finally adversely decided against plaintiff by the U.S. Court of Military Appeals in the case of United States v. Hooper, 9 U.S.C.M.A. 637, 26 C.M.R. 417 (1958). Consequently, the defendant claims that the doctrine of res judicata should be applied as a bar to the instant case since the basis for his cause of action in this court is the unconstitutional exercise of jurisdiction over him, which issue has already been adversely decided by the U.S. Court of Military Appeals. The defendant in the alternative contends that if the doctrine of res judicata is not applied, then the plaintiff is collaterally estopped from raising the constitutionality of the exercise of jurisdiction over him, since this issue has already been decided adversely by the military tribunal. The defendant further contends that the present suit is barred by the decision of Hooper v. Hartman, 163 F.Supp. 437 (S.D.Cal. 1958), aff'd 274 F.2d 429 (9th Cir. 1959). This suit was initiated by plaintiff, while the court-martial proceeding was pending, for prohibitory and injunctive relief against the Commandant of the Naval District challenging the exercise of court-martial jurisdiction over him.

We disagree with defendant's contentions regarding res judicata and collateral estoppel.

First, we turn to plaintiff's suit in the District Court which was affirmed by the Court of Appeals. In that case, the Court of Appeals merely held that as the process of review of plaintiff's conviction provided by the Uniform Code of Military Justice had not yet been completed, the civil courts were without jurisdiction so long as the military remedies remained unexhausted. Consequently, it cannot be said that that decision is a bar to the present suit since the constitutional issue was never decided by the Court of Appeals, although the lower court had passed on the issue. The reviewing court merely stated that it lacked jurisdiction to hear the case, since it was implicit in the trial court's decision that plaintiff had failed to exhaust his military remedy.

We turn now to the decision of the U.S. Court of Military Appeals. We are taught by the Supreme Court that before the doctrine of res judicata is applicable as a bar to a second suit, not only must the parties be the same but also the second suit must be upon the same cause of action or demand as the original. Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 92 L.Ed. 898 (1948). Clearly, this case is not between the same parties, and it is based entirely on a different cause of action or demand. Thus, the doctrine of res judicata cannot be applied to the case at bar.

Collateral estoppel, on the other hand, applies where the second cause of action is between the same parties but upon a different cause or demand. As the Supreme Court has stated:

"In this situation, the judgment in the prior action operates as an estoppel, not as to matters which might have been litigated and determined, but `only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.\'" Commissioner of Internal Revenue v. Sunnen, supra, at 598 of 333 U.S. at 719 of 68 S.Ct., 92 L.Ed. 898.

We are also mindful of the fact that the application of res judicata and collateral estoppel is not required by constitutional law doctrines, but each is a judicially developed restriction invoked in the name of public policy requiring that a litigant be given only one day in court (Commissioner of Internal Revenue v. Sunnen, supra, at 597 of 333 U.S., at 719 of 68 S.Ct., 92 L.Ed. 898; Baldwin v. Iowa State Traveling Men's Ass'n, 283 U.S. 522, 525, 51 S.Ct. 517, 75 L.Ed. 1244 (1931)). It appears that where the public policy requiring the application of res judicata and collateral estoppel is outweighed by overriding considerations like Federal pre-emption (Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940)) or sovereign immunity (United States v. United States Fidelity Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1940)), the Court has not adhered to the finality that would otherwise be given to the prior decree. We believe that an example of such an overriding consideration is present here, since a party should be given his day in a court from which review by the Supreme Court might ultimately be afforded.¹ This was not present in the instant case because of the finality given to the decisions of the Court of Military Appeals. Article 76 of the Uniform Code of Military Justice, 64 Stat. 107, 132, 10 U.S.C. § 876 (1958). The possibility of review by the Supreme Court was not present or available. In situations where the conviction by the military tribunal results in the incarceration of the defendant, review of the constitutional exercise of jurisdiction is by way of habeas corpus proceedings to the U.S. District Court. E.g., McElroy v. United States ex rel. Guagliardo, 361 U.S. 281, 80 S.Ct. 305, 4 L.Ed.2d 282 (1960). However, in the instant situation, plaintiff's conviction did not result in his confinement, so that this avenue of review was not open to him. The plaintiff's only remedy was to bring a suit in this court for retired pay withheld alleging the unconstitutional exercise of jurisdiction over him.

Turning next to the constitutional question involved, i. e., whether or not plaintiff, as a retired member of a regular component of the Armed Forces entitled to receive pay, is a part of the land or naval forces "subject to court-martial jurisdiction".

Plaintiff strenuously argues that court-martial jurisdiction is strictly limited to those persons who bear such a proximate relationship to the Armed Forces and their functions as to be reasonably treated as "in" the Armed Forces. In this respect, plaintiff argues that his relationship to the Navy and its functions, rendering him amenable to trial and sentence, was completely lacking in that he had been wholly retired for seven years, withdrawn from his command, and never recalled to active duty.

Defendant, on the other hand, just as vigorously contends that Article 2(4) of the Uniform Code of Military Justice, supra, under which plaintiff was tried and sentenced, was constitutionally valid.

The question is by no means a simple one and is fraught with elements vital not only to the Armed Forces but to retired personnel as well. We are aware that whether or not Congress may provide for trial by court-martial of retired Regulars is essentially a question of power. We must turn for such authorization to Article I, section 8, of the Constitution which provides that Congress shall have the power "to make Rules for the Government and Regulation of the land and naval Forces." It follows that the power of Congress to provide for trial by court-martial is limited to those individuals who can be said to fall within the definition of "land and naval forces." Therefore, the question before us is whether this plaintiff, a retired officer of a regular component of the Armed Forces, is part of the "land and naval forces" and thus subject to court-martial jurisdiction for illegal acts committed after retirement. Taken in this context, this question is of first impression.² However, courts in...