Scott v. Schlesinger, 73-3382 and 74-1636.

• Citation: 498 F.2d 1093
• Decision Date: 16 August 1974
• Docket Number: No. 73-3382 and 74-1636.,73-3382 and 74-1636.
• Parties: Terry A. SCOTT, Plaintiff-Appellant, v. James R. SCHLESINGER, Secretary of Defense of the United States of America, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

498 F.2d 1093 (1974)

Terry A. SCOTT, Plaintiff-Appellant, v. James R. SCHLESINGER, Secretary of Defense of the United States of America, et al., Defendants-Appellees.

Nos. 73-3382 and 74-1636.

United States Court of Appeals, Fifth Circuit.

August 16, 1974.

Charles Dickens, Frank W. Sullivan, III, Ft. Worth, Tex., for plaintiff-appellant.

Frank D. McCown, U. S. Atty., William L. Johnson, Jr., Asst. U. S. Atty., Ft. Worth, Tex., for defendants-appellees.

Before BROWN, Chief Judge, and RIVES and DYER, Circuit Judges.

RIVES, Circuit Judge:

This is a consolidated appeal from two separate orders of the district court. On October 1, 1973, the district court denied declaratory, injunctive and habeas corpus relief sought by petitioner-appellant Scott prior to a general court-martial convened to try him for alleged violations of the Uniform Code of Military Justice. On February 11, 1974, following petitioner-appellant's trial and conviction, the district court denied Scott's petition for habeas corpus relief, and refused to restrain Scott's transfer from Carswell Air Force Base in Texas to Fort Leavenworth, Kansas.¹ We affirm.

I.

Terry A. Scott was formerly a sergeant in the United States Air Force assigned to Carswell Air Force Base, Texas (hereafter Carswell). On May 22, 1973, Scott was charged with violating Articles 92 and 134 of the Uniform Code of Military Justice. Charge 1 alleged violation of Article 92 in that Scott wrongfully sold LSD at Carswell (Specification 1), wrongfully possessed LSD at Carswell (Specification 2) and wrongfully sold LSD at Fort Worth, Texas (Specification 3). Charge 2 alleged violation of Article 134 in that Scott wrongfully sold marijuana to an airman at Fort Worth (Specification 1), wrongfully sold marijuana to two airmen at Carswell (Specifications 2 and 3) and wrongfully possessed marijuana at Carswell (Specification 4). On June 29, 1973, the appropriate authority convened a general court-martial at Carswell.

On September 6, Scott filed a complaint in the United States District Court for the Northern District of Texas, alleging jurisdiction under 28 U.S.C. § 1331, § 2201 and § 2241. Scott claimed that Articles 92 and 134 were unconstitutionally vague and overbroad; that Article 92 did not prohibit the conduct with which he was charged; and that Specification 3 of Charge 1, which alleged the off-base sale of LSD, was not "service-connected." O'Callahan v. Parker, 1969, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 and Relford v. U. S. Disciplinary Commandant, 1971, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102. Scott requested a declaration that Article 134 was unconstitutional, a permanent injunction restraining the military authorities from proceeding with the general court-martial, and his immediate release from custody and/or restrictions. The district court denied relief. On October 30 this Court denied an application for stay of the court-martial proceedings pending review of the case on appeal.

On November 14, 1973, Scott was tried by general court-martial and found guilty of all charges and specifications. He was sentenced to a bad conduct discharge, reduction in grade, forfeiture of all pay and allowances, and confinement at hard labor for five years. On January 25, 1974, the reviewing authority affirmed Scott's conviction but reduced the confinement sentence to four years at hard labor.

On February 7, Scott again petitioned the district court for relief, alleging jurisdiction under 28 U.S.C. § 2241 and § 2255. Renewing his legal arguments concerning the unconstitutionality of Articles 92 and 134, and claiming lack of military jurisdiction over off-base LSD and marijuana transactions, Scott requested habeas corpus relief. He also asked for an injunction restraining the military authorities from removing him from Carswell, arguing that such removal from the vicinity of his civilian counsel would deny him his right to counsel at a crucial stage of the proceedings in violation of the Sixth Amendment. The district court again denied relief.

II.

This appeal presents a threshold question of whether the federal civilian courts should rule on Scott's claims before he has fully exhausted his military remedies. Also presented are ultimate questions relating to the constitutionality of Articles 92 and 134, and the "service-connection" of certain off-base, off-duty drug offenses. The Supreme Court has recently held that Articles 133 and 134 are not unconstitutionally vague or overbroad. Parker v. Levy, 1974, ___ U.S. ___, 94 S.Ct. 2547, 41 L.Ed.2d ___. This ruling clearly eliminates Scott's claim concerning Article 134. Also, we are convinced that Scott's claim that Article 92 is unconstitutionally vague does not raise a substantial question in the circumstances of this case.² As to the service-connection issue, the Supreme Court has granted certiorari in a case involving the question of whether certain narcotic offenses of military personnel which were allegedly committed off-base, off-duty, and out of uniform, are "service connected." Schlesinger v. Councilman, 1973, 414 U.S. 1111, 94 S. Ct. 839, 38 L.Ed.2d 737. If we reached the service-connection question, we might stay the present proceedings until the Supreme Court has decided the Councilman case. We need not decide whether a stay would be appropriate, however, for we conclude that Scott's petition must be denied on the threshold issue of failure to exhaust his available military remedies.

In Noyd v. Bond, 1969, 395 U.S. 683, 693-694, 89 S.Ct. 1876, 1882, 23 L.Ed.2d 631, the Supreme Court discusses the issue of exhaustion of military remedies:

"We now turn to consider whether petitioner could properly seek his release in civilian courts without making any effort to invoke the assistance of the courts within the military system. Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146 (1950), established the general rule that habeas corpus petitions from military prisoners should not be entertained by federal civilian courts until all available remedies within the military court system have been invoked in vain. Mr. Justice Douglas, for a unanimous Court, explained some of the important reasons which require civilian courts to respect the integrity of the military court system that Congress has established:

"`An analogy is a petition for habeas corpus in the federal court challenging the jurisdiction of a state court. If the state procedure provides a remedy, which though available has not been exhausted, the federal courts will not interfere . . . . The policy underlying that rule is as pertinent to the collateral attack of military judgments as it is to collateral attack of judgments rendered in state courts. If an available procedure has not been employed to rectify the alleged error which the federal court is asked to correct, any interference by the federal court may be wholly needless. The procedure established to police the errors of the tribunal whose judgment is challenged may be adequate for the occasion. If it is, any friction between the federal court and the military or state tribunal is saved. . . . Such a principle of judicial administration is in no sense a suspension of the writ of habeas corpus. It is merely a deferment of resort to the writ until other corrective procedures are shown to be futile.\' Id., at 131-132, 71 S.Ct. 149, at 151-152.

It is true, of course, that the principles of federalism which enlighten the law of federal habeas corpus for state prisoners are not relevant to the problem before us. Nevertheless other considerations require a substantial degree of civilian deference to military tribunals. In reviewing military decisions, we must accommodate the demands of individual rights and the social order in a context which is far removed from those which we encounter in the ordinary run of civilian litigation, whether state or federal. In doing so, we must interpret a legal tradition which is radically different from that which is common in civil courts."

In a footnote at 696, 89 S.Ct. at 1884, the Court recognized that there could be exceptions to the "general rule."

"8 Petitioner contends that our decisions in Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955); Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957); and McElroy v. Guagliardo, 361 U.S. 281, 80 S.Ct. 305, 4 L.Ed.2d 282 (1960), justify his position that exhaustion of military remedies is not required in this case. The cited cases held that the Constitution barred the assertion of court-martial jurisdiction over various classes of civilians connected with the military, and it is true that this Court there vindicated complainants\' claims without requiring exhaustion of military remedies. We did so, however, because we did not believe that the expertise of military courts extended to the consideration of constitutional claims of the type presented. Moreover, it appeared especially unfair to require exhaustion of military remedies when the complainants raised substantial arguments denying the right of the military to try them at all. Neither of these factors is present in the case before us."

In Dooley v. Ploger, 4 Cir. 1974, 491 F.2d 608, the petitioner relied heavily on the above-quoted footnote from Noyd to argue that the rule of exhaustion of military remedies does not apply to cases challenging a military court's jurisdiction. The petitioner in that case argued that the service-connection of the offense, like the military status of the defendant, is a jurisdictional prerequisite. After noting some doubt as to whether service-connection is in fact a jurisdictional question,³ the court in Dooley convincingly discusses why the rule of exhaustion of remedies should apply where a serviceman claims that his offense lacks service-connection. See 491 F.2d at 613-615. As Judge Winter states, "here, as in cases where the challenge may not be termed `jurisdictional,' it is important to respect the...