Larrabee v. Del Toro
| Citation | 45 F.4th 81 |
| Decision Date | 02 August 2022 |
| Docket Number | 21-5012 |
| Parties | Steven M. LARRABEE, Appellee v. Carlos DEL TORO, in his official capacity as Secretary of the Navy, and United States, Appellants |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Cynthia A. Barmore, Attorney, U.S. Department of Justice, argued the cause for appellants. With her on the briefs were Brian M. Boynton, Acting Assistant Attorney General, and Sharon Swingle, Attorney.
Stephen I. Vladeck argued the cause for appellee. With him on the brief was Eugene R. Fidell.
A. Richard Ellis was on the brief for amicus curiae National Institute of Military Justice in support of appellee.
Joshua E. Kastenberg and J. Wesley Moore, pro se, were on the brief for amici curiae in support of appellee.
Before: Tatel,* Rao, and Walker, Circuit Judges.
Steven Larrabee, a member of the Fleet Marine Corps Reserve, pleaded guilty at a court-martial to the sexual assault of a civilian. In this collateral challenge to his sentence, Larrabee argues that the statutory grant of military jurisdiction over Fleet Marine Reservists exceeds Congress’ authority to "make Rules for the Government and Regulation of the land and naval Forces," U.S. CONST. art. I, § 8, cl. 14 ("Make Rules Clause"), and that his "case[ ]" did not "aris[e] in the land and naval forces," id. amend. V ("Grand Jury Clause"). The district court held for Larrabee. We now reverse.
Whether a person may be subjected to court-martial jurisdiction turns "on one factor: the military status of the accused." Solorio v. United States , 483 U.S. 435, 439, 107 S.Ct. 2924, 97 L.Ed.2d 364 (1987). Based on the Supreme Court's precedents interpreting the Make Rules Clause as well as the original meaning of that Clause, we hold that a person has "military status" if he has a formal relationship with the military that includes a duty to obey military orders. As a Fleet Marine Reservist, Larrabee was "actually [a] member[ ] or part of the armed forces," and therefore amenable to military jurisdiction under the Make Rules Clause. United States ex rel. Toth v. Quarles , 350 U.S. 11, 15, 76 S.Ct. 1, 100 L.Ed. 8 (1955). We also hold that the Fifth Amendment's Grand Jury Clause did not separately bar Larrabee's court-martial.
The Fleet Marine Corps Reserve is one part of the Marine Corps, alongside the Regular Marine Corps and the Marine Corps Reserve.1 10 U.S.C. § 8001(a)(2). Its name notwithstanding, the Fleet Marine Reserve is not a "reserve component" of the armed forces. See id. § 10101 (). Marine Corps reservists are part-time soldiers who maintain civilian jobs but who are trained like full-time troops and who may be ordered into active-duty service, if necessary. Id. §§ 10102, 12301(a)–(b). Membership in the Fleet Marine Reserve, by contrast, is a de facto retirement status for those who have previously served in active duty. See United States v. Begani , 81 M.J. 273, 275 (C.A.A.F. 2021) () (cleaned up). A Marine becomes eligible to transfer into the Fleet Marine Reserve after serving in active duty for at least twenty years. 10 U.S.C. § 8330(b). After thirty total years of service, he is then formally retired.2 Id. § 8331(a); see also id. § 8326(a). At any time after completing his required years of service—whether he is in active duty, a Fleet Marine Reservist, or a retiree—a Marine may request to be discharged, which results in a "[c]omplete severance from all military status." MARINE CORPS ORDER 1900.16, SEPARATION AND RETIREMENT MANUAL ¶ 1002.20 (2019) [hereinafter MCO 1900.16].
During the window between active duty and formal retirement, members of the Fleet Marine Reserve receive "retainer pay," calculated based on their rank and years of service at the time of transfer. 10 U.S.C. §§ 8330(c)(1), 8333. They are also subject to ongoing military duties. In times of war or national emergency or "when otherwise authorized by law," Fleet Marine Reservists "may be ordered ... to active duty without [their] consent" for the duration of the crisis, and up to six months thereafter. Id. § 8385(a). In peacetime, they agree to serve for up to twelve months in any two-year period, see id . § 688(a), (b)(3), (e)(1), and may be ordered into "active duty for training" for up to two months in any four-year period, id. § 8385(b). Finally, they must comply with administrative reporting requirements—they must inform the military if they change addresses, for instance—and are subject to restrictions on foreign employment.
Under the Uniform Code of Military Justice ("UCMJ"), Fleet Marine Reservists may be court-martialed. Id. § 802(a)(6). Congress has given the military courts jurisdiction over the Fleet Marine Reserve since 1925. See Act of Feb. 28, 1925, §§ 2, 10, Pub. L. No. 68-512, 43 Stat. 1080, 1080–81, 1083.
The facts in this case are undisputed. After twenty years in active-duty service, Larrabee transferred to the Fleet Marine Reserve. He began working as a civilian employee on his former base in Iwakuni, Japan, and moonlighting as a manager at two local bars near the base. After a late night of drinking, Larrabee sexually assaulted an inebriated and unconscious bartender and filmed the encounter on his cell phone. His victim, the wife of an active-duty Marine, reported the assault to Military Police, who obtained the video from Larrabee's phone. The victim's husband was immediately reassigned to a posting in the United States. Larrabee was charged with "sexual assault" and "indecent recording" under the UCMJ. See 10 U.S.C. §§ 920(b), 920c(a)(2). He pleaded guilty at a court-martial and was sentenced to ten months’ confinement and a dishonorable discharge.
Larrabee appealed to the Navy-Marine Corps Court of Criminal Appeals ("CCA"), arguing, as relevant here, that the UCMJ provision authorizing court-martial jurisdiction over members of the Fleet Marine Reserve, 10 U.S.C. § 802(a)(6), was unconstitutional. Military retirees, he argued, are not part of "the land and naval Forces" that Congress may place under the jurisdiction of courts-martial. U.S. CONST. art. I, § 8, cl. 14. The CCA had recently held that personnel "in a retired status remain members of the land and Naval forces who may face court-martial," United States v. Dinger , 76 M.J. 552, 557 (N-M. Ct. Crim. App. 2017) (cleaned up), so it "summarily reject[ed]" Larrabee's challenge as well, United States v. Larrabee , 2017 WL 5712245, at *1 n.1 (N-M. Ct. Crim. App. Nov. 28, 2017). The Court of Appeals for the Armed Forces ("CAAF") summarily upheld his conviction without reaching the constitutional question at issue here. United States v. Larrabee , 78 M.J. 107 (C.A.A.F. 2018) (mem.), cert. denied , ––– U.S. ––––, 139 S. Ct. 1164, 203 L.Ed.2d 196 (2019).
His direct appeals exhausted, Larrabee brought this collateral challenge to his sentence in the District Court for the District of Columbia. He argued that Section 802(a)(6) is facially unconstitutional because a Fleet Marine Reservist is "for all practical purposes a civilian" and therefore not subject to regulation under the Make Rules Clause. See U.S. CONST. art. I, § 8, cl. 14. In the alternative, even if the Fleet Marine Reserve is part of the "land and naval Forces," Larrabee insisted his court-martialing was still unconstitutional under the Fifth Amendment's Grand Jury Clause because his "case[ ]" did not "aris[e] in the land or naval forces." Id. amend. V (). Under the Grand Jury Clause, Larrabee argued, the military may not court-martial a retiree for an offense that bears "no connection to the armed forces." Since he was accused of committing civilian crimes against a civilian on private property, the court-martial's exercise of jurisdiction in his case was unconstitutional.
After both parties moved for judgment on the pleadings, the district court held for Larrabee. See Larrabee v. Braithwaite , 502 F. Supp. 3d 322, 333 (D.D.C. 2020). The central question, the court explained, was "one of status, namely, whether the accused in the court-martial proceeding is a person who can be regarded as falling within the term ‘land and naval Forces.’ " Id. at 328 (quoting Kinsella v. United States ex rel. Singleton , 361 U.S. 234, 241, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960) ). Fleet Marine Reservists were part of the "land and naval Forces," the court reasoned, only if subjecting them to court-martial jurisdiction was "necessary to maintain good order and discipline" within the military's ranks. Id. at 331. Because "trial by military court-martial ‘was intended to be only a narrow exception to the normal and preferred method of trial in courts of law,’ " the court held the government bore the burden of showing why subjecting persons in the Fleet Marine Reserve to court-martial jurisdiction was necessary. Id. at 327 (quoting Reid v. Covert , 354 U.S. 1, 21, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) (plurality opinion)).
The government offered two reasons why subjecting Fleet Marine Reservists to court-martial jurisdiction was necessary to preserve military order and discipline, but the district court was persuaded by neither. First, the government argued that because they may be ordered into active duty "without [their] consent," 10 U.S.C. § 8385(a), Fleet Marine Reservists remain a part of the nation's fighting forces. Subjecting them to court-martial jurisdiction was therefore essential to uphold order in the military's ranks. As the district court pointed out, however, under current military regulations "retirees are highly unlikely to be recalled." Larrabee , 502 F. Supp. 3d at 331. Congress has...
To continue reading
Request your trial
-
Bork v. Ely Infante
...Court of Appeals-a point which Petitioner omits. See Larrabee v. Del Toro, 45 F.4th 81 (D.C. Cir. 2022) (reversing Braithwaite)[5] In Del Toro, the Circuit held that “it is sufficient for a person to fall within the ‘land and naval Forces' if he has a formal relationship with the armed forc......
-
THE PROVINCE OF THE LAW.
...all establish that individual members of Congress cannot bring suit to assert injuries to the legislative power."); Larrabee v. Del Toro, 45 F.4th 81, 91 (D.C. Cir. 2022) ("The rule suggested by the [Supreme] Court's caselaw is consistent with our understanding of the original meaning of th......