Lawrence v. McCarthy

• Decision Date: 29 August 2003
• Docket Number: No. 02-30966.,02-30966.
• Citation: 344 F.3d 467
• Parties: Phillip Lawrence, Plaintiff-Appellant, v. D.M. Mccarthy, Lieutenant General, United States Marine Corps, Commander, Marine Forces Reserve; J.M. Codega, Lieutenant Colonel, United States Marine Corps Reserve, Investigating Officer; C.C. Miller, Major, United States Marine Corps, Trial Counsel; M.E. Sayegh, Major, Trial Counsel, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

344 F.3d 467

Phillip Lawrence, Plaintiff-Appellant, v. D.M. Mccarthy, Lieutenant General, United States Marine Corps, Commander, Marine Forces Reserve; J.M. Codega, Lieutenant Colonel, United States Marine Corps Reserve, Investigating Officer; C.C. Miller, Major, United States Marine Corps, Trial Counsel; M.E. Sayegh, Major, Trial Counsel, Defendants-Appellees.

No. 02-30966.

United States Court of Appeals, Fifth Circuit.

August 29, 2003.

Revised September 4, 2003.

John Bennett Wells (argued), Slidell, LA, for Plaintiff-Appellant.

Stevens E. Moore (argued), and Stephen A. Higginson, Asst. U.S. Attys., New Orleans, LA, for Defendants-Appellees.

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

Before DAVIS, JONES, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This appeal arises from the United States Marine Corps's attempts to recall the appellant, Major Phillip Lawrence, to active duty in order to answer allegations of improper behavior. Lawrence is seeking injunctive relief from the military's attempts to activate him in federal court. The district court, finding Lawrence's suit meritless, denied relief and dismissed the complaint. Because we determine that the district court should have abstained from considering the case, given the presence of parallel proceedings in the military courts, we vacate the judgment of the district court.

I.

Major Philip Lawrence is an officer in the United States Marine Corps ("Marine Corps"). He served eleven years in the Regular Marine Corps ("USMC"), and has spent the past ten years in the Reserve Marine Corps ("Reserves"). On October 16, 2001, Lawrence was ordered to active duty for the period of October 17-21, 2001 pursuant to Active Duty for Special Work ("ADSW")¹ orders. During this period of active duty, Lawrence allegedly committed several violations of the military's criminal code, the Uniform Code of Military Justice, 10 U.S.C. § 801 et seq. (1998 & Supp. 2003) ("UCMJ").² At the end of the period, Lawrence was returned to inactive status without any disciplinary action having been taken. Lawrence was again called to active duty on January 14, 2002, in support of Operation Noble Eagle Enduring Freedom. He was released from this tour of duty on June 2, 2002, again without any disciplinary action being taken regarding the alleged violations of the UCMJ. The parties dispute his military status following this release. The Reserves claim that he was returned to inactive status as a member of the Selective Reserves, his status prior to activation. Lawrence claims that he was discharged.³

On July 2, 2002, Lieutenant General D.M. McCarthy, Commander of the Reserves, appointed Lieutenant Colonel J.M. Codega to investigate Lawrence's alleged infractions pursuant to Article 32 of the UCMJ.⁴ 10 U.S.C. § 832. On July 23, 2002, charges were formally preferred⁵ against Lawrence. On July 26, 2002,⁶ Lawrence was issued orders, pursuant to Articles 2 and 3 of the UCMJ, directing him to return to active duty in order to participate in the Article 32 investigation.

Lawrence immediately sought a temporary restraining order ("TRO") and preliminary injunction from the U.S. District Court for the Eastern District of Louisiana, claiming that the Marine Corps lacked the authority to call him to active duty under Articles 2 and 3 of the UCMJ. Senior District Judge Marcel Livaudais, Jr., granted the TRO the same day, restraining the appellees from recalling Lawrence to active duty "until there can be a full contested hearing on the merits." The hearing was held as scheduled, and on August 21, Judge Livaudais entered an Order and Judgment dissolving the TRO, denying Lawrence's requests for preliminary and permanent injunctions, and sua sponte dismissing the complaint with prejudice. Lawrence was subsequently called to active duty for purposes of the Article 32 investigation. The Navy-Marine Corps Court of Criminal Appeals ("NMCM") is currently considering Lawrence's request for an extraordinary writ that would dismiss all of the charges referred⁷ for lack of jurisdiction.

Lawrence asks us to resolve the following issues on appeal: (1) whether the district court erred in denying his request for injunctive relief; (2) whether the Marine Corps violated his Fifth Amendment due process rights by failing to follow its own regulations and the Administrative Procedure Act; and (3) whether the district court erred in sua sponte dismissing his complaint following the preliminary injunction hearing. Because we believe that federal courts should abstain from determining whether someone in Lawrence's position may be called to active duty when administrative remedies remain available and parallel proceedings are pending in the military courts, we decline to address the dubious merits of the appeal and vacate the judgment of the district court.

II.

We have jurisdiction to hear this appeal pursuant to 28 U.S.C. §§ 1331 and 1292(a), which permit federal courts to entertain suits involving a question of federal law seeking injunctive relief. See also Chappell v. Wallace, 462 U.S. 296, 304-05, 103 S.Ct. 2362, 76 L.Ed.2d 586 (citing injunctive actions as indicative of the type of relief service members may seek in the civilian courts).

A.

The Marine Corps urges us to dismiss this case on the additional grounds that Lawrence has failed to exhaust his military remedies before seeking relief from this court. "It is basic to military claims that the petitioner must exhaust her military remedies before seeking federal court intervention." Wickham v. Hall, 706 F.2d 713, 715 (5th Cir.1983)(citing Schlesinger v. Councilman, 420 U.S. 738, 758, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975)). Accord Falbo v. United States, 320 U.S. 549, 553, 64 S.Ct. 346, 88 L.Ed. 305 (1944); Mindes v. Seaman, 453 F.2d 197, 201 (5th Cir.1971). This requirement is premised upon principles of comity, the need to raise an army speedily and efficiently, and the specialized expertise of military institutions with respect to its internal affairs. In re Kelly, 401 F.2d 211, 213 (5th Cir.1968); Falbo, 320 U.S. at 553, 64 S.Ct. 346; Von Hoffburg v. Alexander, 615 F.2d 633, 637-38 (5th Cir.1980). Accord Sedivy v. Richardson, 485 F.2d 1115, 1119 (3d Cir.1973). Lawrence argues that resorting to an administrative remedy would be futile and therefore exhaustion is not required, citing Von Hoffburg v. Alexander, supra at 638. Because we find abstention appropriate, we need not consider the arguments with respect to exhaustion.

B.

Although the Marine Corps never requested (until we raised the possibility) that either the district court or this court stay its hand pending the outcome of ongoing military proceedings, we believe it is necessary to raise the issue whether the federal courts have equitable jurisdiction to hear this case under the abstention doctrine promulgated by Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).⁸

In Younger, the Supreme Court held that a federal court, with valid subject-matter jurisdiction, was nonetheless prohibited from enjoining a state criminal proceeding without a valid showing of "extraordinary circumstances" that would warrant federal intervention. 401 U.S. 37, 45, 53-54, 91 S.Ct. 746. The Court based its ruling upon considerations of equity and comity. Id. at 43-44, 91 S.Ct. 746.

The Court explained,

[C]ourts of equity should not act . . . when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief. . . . This underlying reason . . . is reinforced by an even more vital consideration, the notion of "comity," that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.

Id. at 43-44, 91 S.Ct. 746.

The Supreme Court has since applied Younger-abstention in various other contexts, including that of Schlesinger v. Councilman, where a serviceman sought an injunction in federal court against a pending court martial proceeding. 420 U.S. 738, 754, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975). The Court held there that the federal district courts must decline from intervening in the military court system when a serviceman seeking an injunction can show no harm "other than that attendant to the resolution of his case in the military court system." Id. at 758, 95 S.Ct. 1300.

Although federalism concerns are not implicated when federal intervention is sought in military matters, abstention, as much as the exhaustion requirement, assists in "maintaining the balance between military authority and the power of federal courts." Von Hoffburg v. Alexander, 615 F.2d 633, 637 (5th Cir.1980). "Because the military constitutes a specialized community governed by a separate discipline from that of the civilian, orderly government requires that the judiciary scrupulously avoid interfering with legitimate Army matters." Id. Accord Schlesinger, 420 U.S. at 757, 95 S.Ct. 1300.

1.

Abstention is particularly proper in this case. Lawrence retains an adequate remedy at law and will not suffer irreparable harm by having his case resolved in military tribunals. See Younger, 401 U.S. at 43-44, 91 S.Ct. 746.

Lawrence asserts that the military judicial system cannot grant him the relief that he seeks from this court — the freedom from activation to answer charges of wrongdoing — with "reasonable promptness and certainty." Parisi v. Davidson, 405 U.S. 34, 41, 92 S.Ct. 815, 31 L.Ed.2d 17 (1972). At oral argument, counsel for Lawrence acknowledged that whether Lawrence may be recalled to active duty pursuant to Articles 2 and 3 of the UCMJ, 10 U.S.C. §§ 802, 803, is before the currently pending court-martial. Embedded within that issue is the factual question...