Murphy v. Dalton, 95-3183

• Citation: 81 F.3d 343
• Decision Date: 11 April 1996
• Docket Number: No. 95-3183,95-3183
• Parties: Michael A. MURPHY, Appellant, v. John H. DALTON, Secretary of the Navy; General Carl E. Mundy Jr., Commandant of the Marine Corps; Major General Albert C. Harvey, Commanding General, 4th Marine Division; Colonel Jerry L. Creed, Deputy Director, Marine Reserve Support Center, Major Dennis Williams, U.S. Marine Corps Recruiting Center Pittsburgh; Brigadier General Jack W. Klimp, Commanding General, Marine Corps Recruit Depot, Parris Island, Individually and in his official capacity; William J. Perry, Secretary of Defense; and the United States of America, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 343

81 F.3d 343

Michael A. MURPHY, Appellant, v. John H. DALTON, Secretary of the Navy; General Carl E Mundy Jr., Commandant of the Marine Corps; Major General Albert C. Harvey, Commanding General, 4th Marine Division Colonel Jerry L. Creed, Deputy Director, Marine Reserve Support Center, Major Dennis Williams, U.S. Marine Corps Recruiting Center Pittsburgh; Brigadier General Jack W Klimp, Commanding General, Marine Corps Recruit Depot Parris Island, Individually and in his official capacity; William J. Perry, Secretary of Defense; and the United States of America, Appellees.

No. 95-3183.

United States Court of Appeals, Third Circuit.

Argued Nov. 28, 1995.

Decided April 11, 1996.

Appeal From the United States District Court for the Western District of Pennsylvania (D.C. Civ. No. 90-cv-00357).

Andrew G. Sykes (argued), Sammuel J. Cordes, Ogg, Jones, Desimone & Ignelsi, L.L.P., Pittsburgh, PA, for Appellant.

Frederick W. Thieman, United States Attorney, Paul J. Brysh (argued), Assistant U.S. Attorney, Pittsburgh, PA, Lt. Susan C. Stewart, JAGC, USN, Department of the Navy, Alexandria, VA, for Appellees.

Before: MANSMANN, COWEN and SEITZ, Circuit Judges.

OPINION OF THE COURT

SEITZ, Circuit Judge.

Michael E. Murphy ("Plaintiff"), formerly a captain in the United States Marine Corps Reserves, initiated an action in the district court challenging, inter alia, the authority of the United States Marine Corps to recall him to active duty, while a member of the Marine Corps Reserves, and to subject him to trial by court-martial for offenses committed during a prior period of active duty in the regular Marines Corps. Plaintiff appeals an order of the district court granting summary judgment in favor of the Secretary of the Navy John H. Dalton, et al. ("Defendants"). The court held that Plaintiff was lawfully recalled to active duty and court-martialed in accordance with constitutional standards. The district court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.

I. FACTS

Plaintiff served in the regular component of the United States Marine Corps from October, 1981 to May 30, 1988, and achieved the rank of captain. On May 30, 1988, he resigned his commission and received an honorable discharge from the regular component. Simultaneous with his discharge, Plaintiff requested and accepted a commission as a reserve officer and transferred to the Marine Corps Reserves. Under this arrangement, Plaintiff had no obligated service in the reserves.

In or around August 1988, Plaintiff joined a Marine reserve unit and participated in inactive duty training. Thereafter, charges were preferred against Plaintiff for violations of various articles of the Uniform Code of Military Justice ("UCMJ") for misconduct which occurred during his prior period of active duty in the regular component. Plaintiff was called to active duty to face the charges but challenged the military's jurisdiction over him. At the time of his recall, Plaintiff was not on active duty or on inactive duty training. None of the allegations concerned conduct occurring during the period of Plaintiff's inactive duty training in the reserves.

Before a general court-martial, Plaintiff pleaded guilty to two of five counts against him. The remaining three charges were withdrawn. Plaintiff was fined $75,000, which was suspended, and he was dismissed from the service. He appealed his conviction to the Navy-Marine Court of Military Review which affirmed the conviction. Thereafter, Plaintiff filed a petition for certiorari to the United States Supreme Court which was denied.

After exhausting his military remedies, Plaintiff sought relief in the district court. Plaintiff requested 1) compensatory and punitive damages, including attorneys fees, against Defendants in their individual capacities, for violation of his constitutional rights; 2) compensatory damages under the Federal Tort Claims Act for the intentional and negligent conduct of the United States officials; 3) declaratory and equitable relief for violation of Plaintiff's constitutional and statutory rights; and 4) "a permanent injunction providing for Plaintiff's reinstatement in the Marine Corps Reserve with restitution of all financial losses and losses of benefits suffered as a result of Defendants' conduct[,] and expungement of his conviction, dismissal[,] and the record of all proceedings conducted without jurisdiction by the Military Courts." (Second Amended Complaint, App. at 22.)

Motions for summary judgment were made by both Plaintiff and Defendants. The district court dismissed Plaintiff's complaint and granted summary judgment for Defendants holding that Plaintiff was lawfully recalled to active duty and court-martialed in accordance with constitutional standards. No opinion was filed. Instead, in support of its ruling, the court adopted Defendants' memoranda of law as its rationale. Plaintiff filed a timely appeal to this Court.

II. DISCUSSION

This case concerns the fundamental question of whether the military had continuing jurisdiction over Plaintiff to subject him to recall to active duty and subsequent court-martial. Resolution of jurisdictional questions such as this are historically within an Article III court's jurisdiction. See Schlesinger v. Councilman, 420 U.S. 738, 753 n. 26, 95 S.Ct. 1300, 1311 n. 26, 43 L.Ed.2d 591 (1975)(citing United States v. Frischholz, 36 C.M.R. 306, 307 (C.M.A.1966)). Because we are reviewing the district court's grant of summary judgment, our review is plenary.

A. Elements of Court-martial Jurisdiction

Generally, court-martial jurisdiction has three elements: (1) the accused must be in a status subject to the UCMJ at the time the offense was committed; (2) personal jurisdiction must attach at the time of the court-martial; and (3) "the accused must be 'amenable' to trial by court-martial for the alleged offense." See Earle A. Partington, Court-Martial Jurisdiction Over Weekend Reservists After United States v. Caputo, 37 Naval L.Rev. 183, 194 (1988). Elements two and three are the focus of this appeal.

1. The Uniform Code of Military Justice

The UCMJ provides:

(a) The following persons are subject to this chapter:

(1) Members of a regular component of the armed forces ... and other persons lawfully called or ordered into, or to duty in or for training in, the armed forces, from the dates when they are required by the terms of the call or order to obey it.

....

(3) Members of a reserve component while on inactive-duty....

10 U.S.C. § 802(a)(1) & (3) (1988). Those falling into one of the categories of persons listed above are said to be in a "status subject to the Code." In the present case, there is no dispute that Plaintiff was in a status subject to the Code at the time of the alleged offenses.

In order to satisfy the second element, i.e., personal jurisdiction, Defendants called Plaintiff into active duty, a status subject to the Code, pursuant to the following statutory authority:

(1) A member of a reserve component who is not on active duty and who is made the subject of proceedings under section 815 (article 15) or section 830 (article 30) with respect to an offense against this chapter may be ordered to active duty involuntarily for the purpose of--

(A) investigation under section 832 (article 32) of this title;

(B) trial by court martial; or

(C) nonjudicial punishment under section 815 of this title.

(2) A member of a reserve component may not be ordered to active duty under paragraph (1) except with respect to an offense committed while the member was--

(A) on active duty; or

(B) on inactive duty training....

10 U.S.C. § 802(d)(1) & (2) (1988) (emphasis added). Under this section, Defendants posit that Plaintiff, as a reserve officer, was properly recalled to active duty to face court-martial for the offenses committed while he was a member of the regular component. They contend that § 802(d) "expressly authorizes the recall of reservists for investigation and court-martial with respect to offenses committed on active duty" even if such periods of active duty occurred in the regular component. In Defendants' view, because the term "active duty" is not qualified in any way it should be given its plain meaning and be applicable to any period of active duty. Thus, Defendants invoked 10 U.S.C. § 802(d) as the statutory authority for personal jurisdiction over Plaintiff, and, by implication, the authority to order him to stand trial by court-martial.

Contrary to Defendants' position, Plaintiff initially argues that the term "active duty" in § 802(d)(2)(A) refers only to those periods of active duty served while a reservist. As such, it has no application to situations where the offense was committed while on active duty in the regular component. The result, Plaintiff argues, is that § 802(d) cannot be used to effect personal jurisdiction.

Additionally, Plaintiff asserts that the third element of court-martial jurisdiction, "amenability" to trial by court-martial, cannot be met. Plaintiff argues that jurisdiction over him for past offenses committed during his prior period of service was lost after his discharge from the regular component of the Marines. He asserts that to have continuing jurisdiction over him for such past offenses requires the application of an earlier version of 10 U.S.C. § 803(a), which provided continuing jurisdiction over discharged military personnel when certain conditions were met. ¹ Because § 803(a) could not apply, Plaintiff argues he is not amenable to jurisdiction.

Defendants do not rely on the applicability § 803(a). Instead, they argue jurisdiction was never lost over Plaintiff upon his honorable discharge from the regular component because his discharge was handled "simultaneously" with his acceptance of a reserve commission. As such, they assert there was no break in service. We undertake our review beginning with the historical development of...