Larrabee v. Braithwaite

• Decision Date: 20 November 2020
• Docket Number: Civil Case No. 19-654 (RJL)
• Citation: 502 F.Supp.3d 322
• Parties: Steven M. LARRABEE, Plaintiff, v. Kenneth J. BRAITHWAITE, in his official capacity as Secretary of the Navy, and United States, Defendants.
• Court: U.S. District Court — District of Columbia

502 F.Supp.3d 322

Steven M. LARRABEE, Plaintiff,

v.Kenneth J. BRAITHWAITE, in his official capacity as Secretary of the Navy, and United States, Defendants.

Civil Case No. 19-654 (RJL)

United States District Court, District of Columbia.

Filed November 20, 2020

Eugene R. Fidell, Feldesman Tucker Leifer Fidell LLP, Washington, DC, Stephen I. Vladeck, Pro Hac Vice, Law Office of Stephen I. Vladeck, Austin, TX, for Plaintiff.

Kristina Ann Wolfe, U.S. Department of Justice, Washington, DC, for Defendant James E. McPherson.

Kristina Ann Wolfe, Marsha Wellknown Yee, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant United States.

MEMORANDUM OPINION

[Dkts. #22, #24]

RICHARD J. LEON, United States District Judge This case presents a constitutional challenge to Article 2(a)(6) of the Uniform Code of Military Justice, which expands court-martial jurisdiction to include military retirees in the Fleet Marine Corps Reserve for offenses committed after their retirement from active-duty service. Plaintiff Steven M. Larrabee ("plaintiff") brought suit against Kenneth J. Braithwaite, the Secretary of the Navy, and the United States (collectively, "defendants" or "the Government") to challenge his conviction by court-martial for sexual assault committed after he retired from the U.S. Marine Corps and was transferred to the Fleet Marine Corps Reserve. Before the Court are plaintiff's Motion for Judgment on the Pleadings [Dkt. #22] and defendants’ Motion for Judgment on the Pleadings [Dkt. #24]. Upon consideration of the pleadings, relevant law, and the entire record herein, the Court concludes that Congress's expansion of court-martial jurisdiction over retirees who are members of the Fleet Marine Corps Reserve is unconstitutional. Accordingly, the Court will GRANT plaintiff's motion and DENY defendants’ motion.

BACKGROUND

The basic facts in this case are not in dispute. Plaintiff Steven M. Larrabee served in the U.S. Marine Corps for 20 years from 1994 to 2015. See Compl. ¶ 13 [Dkt. #1]. He was stationed at Marine Corps Air Station Iwakuni in Japan from 2012 to 2014. On August 1, 2015, he retired from the Marine Corps as a staff sergeant and was transferred at his request to the Fleet Marine Corps Reserve. Compl. ¶¶ 4, 13; Answer ¶ 13 [Dkt. #21].

The Fleet Marine Corps Reserve is not a "reserve component" of the military. See 10 U.S.C. § 10101. It is instead composed of retired active-duty servicemembers. Compl. ¶ 14; Answer ¶ 14. Congress has designated the Fleet Marine Corps Reserve as a component of the Marine Corps. 10 U.S.C. § 8001(a)(2). Active-duty servicemembers of the Marine Corps who have served for at least 20 years may choose to be transferred to the Fleet Marine Corps Reserve rather than being discharged entirely from the military. See id. § 8330(b). Members of the Fleet Marine Corps Reserve receive what is referred to as "retainer pay" even though they are not on active duty. See id. § 8330(c)(1).¹ They may, however, be ordered to active duty in times of war or national emergency or as otherwise authorized by law. See id. § 8385(a). Additionally, they may be required during peacetime to perform two months of active-duty training every four years. See id. § 8385(b).

After his retirement from the Marine Corps and transfer to the Fleet Marine Corps Reserve, plaintiff began managing two local bars in Iwakuni, Japan. See United States v. Larrabee , No. 201700075, 2017 WL 5712245, at *1 (N-M. Ct. Crim. App. Nov. 28, 2017). On November 15, 2015, plaintiff sexually assaulted a bartender at one of these bars and recorded the assault on his cell phone. See id. On November 3, 2016, plaintiff was convicted by a general court-martial of one specification of sexual assault and one specification of indecent recording, in violation of the Uniform Code of Military Justice ("UCMJ"). Compl. ¶ 19; Answer ¶ 19. He was sentenced to eight years of confinement, a reprimand, and a dishonorable discharge from the military. Compl. ¶ 23; Answer ¶ 23. However, the officer who was the convening authority disapproved the reprimand and suspended all but ten months of his confinement. Compl. ¶ 24; Answer ¶ 24.

Plaintiff first appealed his court-martial conviction to the U.S. Navy-Marine Corps Court of Criminal Appeals ("CCA") in part on the basis that his court-martial was unconstitutional because he had retired from the military and was no longer subject to court-martial jurisdiction. Compl. ¶¶ 25–27; Answer ¶¶ 25–27; see Larrabee , 2017 WL 5712245, at *1. However, on November 28, 2017, the CCA affirmed the findings and sentence of the court-martial, relying primarily on the CCA's holding in United States v. Dinger , 76 M.J. 552 (N-M. Ct. Crim. App. 2017). See Larrabee , 2017 WL 5712245, at *1 n. 1. In Dinger , the CCA "call[ed] upon first principles" and concluded that military retirees can constitutionally be subject to court-martial jurisdiction. 76 M.J. at 557. The CCA reasoned that because a retired servicemember may still be recalled to active-duty service at any time, id. at 556–57, Congress has a "continued interest in enforcing good order and discipline amongst those in a retired status," id. at 557.

Plaintiff then sought discretionary review of the CCA's ruling from the U.S. Court of Appeals for the Armed Forces ("CAAF"). Compl. ¶ 30; Answer ¶ 30. However, the CAAF summarily affirmed the CCA's decision on this issue based on its own affirmance of the CCA's decision in Dinger. United States v. Larrabee , 78 M.J. 107, 107 (C.A.A.F. 2018) ; see United States v. Dinger , 77 M.J. 447 (C.A.A.F. 2018). Plaintiff then filed a petition for a writ of certiorari to the Supreme Court, but his petition was denied. Compl. ¶¶ 34, 38; Answer ¶¶ 34, 38; Larrabee v. United States , ––– U.S. ––––, 139 S. Ct. 1164, 203 L.Ed.2d 196 (2019).

On March 7, 2019, plaintiff filed suit in this Court, mounting a collateral challenge to the constitutionality of the provision of the Uniform Code of Military Justice, 10 U.S.C. § 802(a)(6), that authorizes the court-martial of military retirees in the Fleet Marine Corps Reserve. See Compl. ¶¶ 1–50. Plaintiff alleges that members of the Fleet Marine Corps Reserve are not part of the "land and naval forces" subject to Congress's Article I power to "make rules" and therefore cannot constitutionally be subject to trial by court-martial. Id. ¶ 43. Plaintiff also alleges that his trial by court-martial violated his constitutional rights to an impartial judge, to indictment by a grand jury, and to trial by an impartial and randomly selected jury of his peers by a unanimous verdict. Id. ¶ 46.

On May 14, 2019, the Government moved to dismiss the complaint for lack of venue and failure to state a claim. Defs.’ Mot. to Dismiss [Dkt. #10]. On May 20, 2019, plaintiff opposed the motion to dismiss and moved for judgment on the pleadings. Pl.’s Mot. for J. on Pleadings & Opp'n to Defs.’ Mot. to Dismiss [Dkt. #13]. At a hearing on February 25, 2020, I denied the Government's motion to dismiss the case, but concluded that plaintiff's motion for judgment on the pleadings was premature. See 2/25/2020 Min. Entry.² After the hearing, the Government filed an answer and the parties briefed cross-motions for judgment on the pleadings. See Pl.’s Renewed Mot. for J. on Pleadings ("Pl.’s Mot.") [Dkt. #22]; Defs.’ Mot. for J. on Pleadings ("Defs.’ Mot.") [Dkt. #24]. I heard oral argument on these cross-motions on November 6, 2020. See 11/6/2020 Min. Entry.

LEGAL STANDARDS

Under Federal Rule of Civil Procedure 12(c), a party may move for judgment on the pleadings "[a]fter the pleadings are closed—but early enough not to delay trial." Fed. R. Civ. P. 12(c). A motion under Rule 12(c) is "functionally equivalent to a Rule 12(b)(6) motion [to dismiss for failure to state a claim]." Rollins v. Wackenhut Servs., Inc. , 703 F.3d 122, 130 (D.C. Cir. 2012). To decide a motion under Rule 12(c), "courts employ the same standard that governs a Rule 12(b)(6) motion to dismiss." Lockhart v. Coastal Int'l Sec., Inc. , 905 F. Supp. 2d 105, 114 (D.D.C. 2012) (quoting Lans v. Adduci Mastriani & Schaumberg L.L.P. , 786 F. Supp. 2d 240, 265 (D.D.C. 2011) ). Specifically, the Court may grant judgment on the pleadings "if the moving party demonstrates that no material fact is in dispute and that it is entitled to judgment as a matter of law." Schuler v. PricewaterhouseCoopers, LLP , 514 F.3d 1365, 1370 (D.C. Cir. 2008) (quoting Peters v. Nat'l R.R. Passenger Corp. , 966 F.2d 1483, 1485 (D.C. Cir. 1992) ). In such a case, the court "may consider the facts alleged in the complaint, documents attached thereto or incorporated therein, and matters of which it may take judicial notice." Abhe v. Svoboda, Inc. v. Chao , 508 F.3d 1052, 1059 (D.C. Cir. 2007) (quoting Stewart v. Nat'l Educ. Ass'n , 471 F.3d 169, 173 (D.C. Cir. 2006) ). The parties agree that there are no material factual disputes and that this case turns only on questions of law. See Pl.’s Mot. at 9; Defs.’ Mot. at 5–11.

The parties disagree, however, as to the relevant standard of judicial review. The Government contends that a court's review of court-martial proceedings must be "both searching and deferential." Defs.’ Mot. at 10. Meanwhile, plaintiff argues that because he challenges the court-martial's exercise of jurisdiction as a constitutional matter, review must be de novo. Pl.’s Mot. at 13–14 & n.8. It is well accepted that "federal courts have jurisdiction to review the validity of court-martial proceedings brought by non-custodial plaintiffs who cannot bring habeas suits." Sanford v. United States , 586 F.3d 28, 32 (D.C. Cir. 2009) (emphasis omitted). To grant relief to a non-custodial plaintiff, "the military court judgment must be ‘void,’ meaning the error must be fundamental." Id. (citations omitted). Whether a court-martial judgment may be deemed "void" depends on "the nature of the alleged defect" and "the gravity of the harm from which relief is sought." Id. (quoting ...