New v. Cohen

Decision Date25 November 1997
Docket NumberNo. 96-5158,96-5158
Citation129 F.3d 639
PartiesMichael G. NEW, Appellant, v. William S. COHEN, Secretary of Defense and Togo D. West, Jr., Secretary of the Army, Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (No. 96cv00033).

Michael P. Farris, Washington, DC, argued the cause for appellant, with whom Herbert W. Titus, Virginia Beach, VA, was on the briefs. Ronald D. Ray, Alexandria, VA, entered an appearance.

Michael J. Ryan, Assistant U.S. Attorney, Washington, DC, argued the cause for appellees, with whom Mary Lou Leary, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney, were on the brief.

Before: EDWARDS, Chief Judge, GINSBURG and TATEL, Circuit Judges.

Opinion for the Court filed by Chief Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Chief Judge.

Michael G. New was serving in the United States Armed Forces as a Medical Specialist in August 1995 when he received notice that his unit was to be deployed to the Republic of Macedonia as part of the United Nations Peacekeeping Force ("U.N. Force"). Subsequently, Specialist New refused to follow orders to appear in formation wearing U.N. insignia and headgear. His brigade commander charged him with failure to obey a direct, lawful order, a violation of Article 92 of the Uniform Code of Military Justice. Shortly before his court-martial, New petitioned for a writ of habeas corpus in the United States District Court, contending that the orders in question (1) violated the Constitution, federal law, and his enlistment contract and oath, (2) impermissibly contemplated his transformation into a U.N. soldier, and, therefore, (3) converted his status from soldier to civilian. New claimed that he was entitled to an immediate honorable discharge. See Petition for a Writ of Habeas Corpus ("Habeas Petition"), Joint Appendix ("J.A.") 2. The District Court, in a decision issued after the court-martial trial but before military appeals were completed, refused to reach the merits of New's petition for habeas corpus, holding that the equitable principle of comity required the court to stay its hand pending the military proceedings. See United States ex rel. New v. Perry, 919 F.Supp. 491, 500 (D.D.C.1996).

We affirm the District Court's dismissal of New's habeas petition on the ground that he has failed to exhaust his remedies in the pending court-martial action. In so holding, we follow the basic principle of comity set forth in Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975), that service members subject to military discipline must exhaust their military remedies before seeking collateral review in federal court. Because New has not completed the appeals of his courtmartial conviction within the military justice system, he currently is barred from pursuing an action on a habeas corpus petition in District Court.


Specialist New enlisted in the United States Army for an eight-year term, four years of which were to be served in the "Regular component of those forces," beginning on February 18, 1993. New, 919 F.Supp. at 492. After receiving basic training and Medical Specialist training, he was deployed for two months to Kuwait and then, in July 1995, to Germany. Id. at 493. On August 21, 1995, New was informed that his unit would be deployed in October of that year as part of the U.N. Force. Id. New learned that, as a member of that force, he would be required to wear a U.N. shoulder patch on his uniform and distinctive, blue U.N. headgear.

New objected to the particular uniform requirements as unlawful. He informed his squad leader and platoon leader that he would not comply with those requirements unless they were shown to be justified by constitutional authority. New's superiors responded by ordering him to rethink his position in light of the history and objectives of the U.N. Charter. New also received counseling by three noncommissioned officers in the chain of command and a warning that he would be subject to discipline if he disobeyed the order to wear the U.N. insignia. On September 19, 1995, New submitted a written statement of protest ("Statement") to his superior officers, in which he indicated a belief that the U.N. Charter was inconsistent with the United States Constitution. In addition, he repeated his objection to the wearing of U.N. accoutrements, stating that he interpreted the wearing of a uniform as a sign of allegiance to the authority "so signified or which issues that uniform," and that, therefore, he could not wear the accoutrements because he was "not a citizen of the United Nations ... not a United Nations Fighting Person [and has] never taken an oath to the United Nations." Statement, J.A. 147. In the Statement, he also wrote that, "[i]n order to avoid controversy or to avoid placing the Army in a bad light," he had requested a transfer to another unit or, reluctantly as an alternative, an honorable discharge. Id. According to New, the Army had denied both of these requests. Id.

On October 2, 1995, New, along with the rest of his battalion, attended an information briefing on the legal bases for the deployment of American troops as part of the U.N. Force in Macedonia. At the briefing, and again at a company formation two days later, the soldiers who were to be deployed to Macedonia were ordered to appear on October 10, 1995, wearing the U.N. arm patches and headgear. 919 F.Supp. at 493.

New appeared in formation on October 10, 1995 wearing a uniform that did not display the ordered accoutrements. He was subsequently charged with an Article 92 violation, and a trial by court-martial was set to follow. On January 16, 1996, he moved in the District Court for an emergency stay of the court-martial and petitioned for a writ of habeas corpus. The Court heard oral argument and denied the stay. Memorandum Opinion and Order of January 16, 1996, J.A 123-24. Afterwards, New was convicted by a court-martial jury and sentenced to a bad conduct discharge. J.A. 84-85.

In his petition for habeas corpus, New contended that he was "entitled to an immediate honorable discharge" on the theory that the United States illegally had attempted to transform him into a U.N. soldier. Habeas Petition, J.A. 2. This attempted transformation was prohibited, according to New, for three reasons. First, he claimed that the United States Constitution, federal statutes, and applicable regulations prohibited the acceptance by federal employees, including uniformed members of the Army, of "any present or emolument ... from a foreign government without the consent of Congress." Id. at 6. Second, New argued that the President of the United States was prohibited by the United States Constitution and sections 6 and 7 of the United Nations Participation Act of 1945 ("Participation Act"), as amended, 22 U.S.C. §§ 287d to d-1 (1994), from deploying United States troops as part of the U.N. Force in Macedonia unless he first obtained the consent of Congress, which he allegedly had not done. Habeas Petition, J.A. 7. Finally, New contended that the orders relating to his deployment and wearing of U.N. accoutrements conflicted with and breached his enlistment contract. Id. at 8-9. New asserted that the unlawful orders absolved him of his remaining obligation to serve in the Army; changed his status such that he was a civilian, not subject to a court-martial; and entitled him to an honorable discharge. Id. at 2.

On March 28, 1996, in a published opinion, the District Court denied New's petition for habeas corpus. See New, 919 F.Supp. at 500. The trial court held that the equitable principle of comity prevented it from considering New's claims until all military appeals had run their course. Id. Subsequently, on June 12, 1996, the court-martial convening authority approved New's bad conduct discharge. J.A. 149; Appellant's Br. at 6; Appellee's Br. at 4. New's conviction by court-martial and the resulting sentence are subject to review by the Army Court of Criminal Appeals. See 919 F.Supp. at 494 (describing pending military proceedings). If that appeal is unsuccessful, New may seek discretionary review in the Court of Appeals for the Armed Forces, which is composed of civilian judges. Id. New now appeals the District Court's denial of his petition for a writ of habeas corpus.

A. The Applicable Case Law
1. The Basic Principles of Comity

In Parisi v. Davidson, 405 U.S. 34, 92 S.Ct. 815, 31 L.Ed.2d 17 (1972), the Supreme Court outlined the "basic principles of comity that must prevail between civilian courts and the military judicial system." Id. at 46, 92 S.Ct. at 822. At the heart of these principles is the general rule that a federal court must await the final outcome of court-martial proceedings in the military justice system before entertaining an action by a service member who is the subject of the court-martial. Although this rule often "is framed in terms of 'exhaustion,' it may more accurately be understood as based upon the appropriate demands of comity between two separate judicial systems." Id. at 40, 92 S.Ct. at 819.

The Court in Parisi allowed the petitioner in that case--a service member seeking discharge as a conscientious objector--to pursue a habeas corpus petition in federal court even though court-martial charges were still pending against him. The Court concluded that the demands of comity did not require dismissal of Parisi's habeas petition, because he had fully exhausted the administrative procedures that were in place for review of claims by persons seeking discharge as conscientious objectors. Since the Court found that "[c]ourts martial are not convened to review and rectify administrative denials of conscientious objector claims or to release conscientious objectors from military service," id. at 42, 92 S.Ct. at 820, it followed...

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