Sisson v. United States, CIV 85-0509 TUC ACM.

• Decision Date: 18 March 1986
• Docket Number: No. CIV 85-0509 TUC ACM.,CIV 85-0509 TUC ACM.
• Citation: 630 F. Supp. 1026
• Parties: Richard J. SISSON, Plaintiff, v. The UNITED STATES of America, the Secretary of Defense, and the Secretary of the Air Force, Defendants.
• Court: U.S. District Court — District of Arizona

630 F. Supp. 1026

Richard J. SISSON, Plaintiff, v. The UNITED STATES of America, the Secretary of Defense, and the Secretary of the Air Force, Defendants.

No. CIV 85-0509 TUC ACM.

United States District Court, D. Arizona, Tucson Division.

March 18, 1986.

Scott L. Taylor, Tucson, Ariz., for plaintiff.

James D. Whitney, Asst. U.S. Atty., Tucson, Ariz., Alexander S. Nicholas, Major, U.S.A.F., General Litigation Div., Office of the Judge Advocate Gen., Washington, D.C., for defendants.

ORDER

MARQUEZ, District Judge.

This case is before the court on cross motions for summary judgment. The court has examined the pleadings in this matter and the record of the military special court-martial proceeding herein.¹ There are no disputed questions of material fact. Summary judgment is therefore appropriate.

Plaintiff is a Master Sergeant in the United States Air Force stationed at the Davis-Monthan Air Force Base in Tucson, Arizona. He was charged with nine separate violations of military regulations. As to some of these charges, Sgt. Sisson was offered non-judicial disposition. The remaining charges were referred to court-martial proceedings. Sgt. Sisson exercised his right to have all the charges presented to the court-martial tribunal, Article 15, Uniform Code of Military Justice hereinafter U.C.M.J., 10 U.S.C. § 815.

Following a trial on the charges before court members,² the Plaintiff was convicted of four violations. The punishment was determined by the members to be a reprimand and the forfeiture of one half pay for four months, totaling $2,800.00. The sentence was approved by the convening authority pursuant to Article 64, U.C.M.J., 10 U.S.C. § 864. The conviction and sentence were affirmed following review in the office of the Judge Advocate General, Article 69, U.C.M.J., 10 U.S.C. § 869. This action was then filed.

Prior to the court martial proceedings, Plaintiff had sought injunctive relief from this court in an effort to preclude the enforcement of the military regulations. This court denied that relief and that decision was affirmed on appeal based on the failure to exhaust military remedies, Sisson v. United States, 736 F.2d 1275 (9th Cir.1984). Plaintiff has presented his claims at every level in the military to which he is entitled. The exhaustion requirement is therefore satisfied.

This action presents a constitutional challenge to the regulations under which Sgt. Sisson was court-martialled. The undisputed facts are as follows:

Plaintiff supplemented his military income by selling products as a distributor for Amway. The charges resulting in the court-martial are related to that activity. Staff Sergeant Warren Kirby met Sgt. Sisson in January, 1982. They carried on several conversations about investments. Near the end of January or early February, 1982, Sisson invited Sgt. Kirby to his house for a presentation of the income producing activities that he was involved in. That meeting was attended by other military and civilian persons. At that meeting Sgt. Sisson informed the group about Amway. Sgt. Kirby was interested in dealing with Amway because he had previously been involved with the organization. As a distributor he would be entitled to a discount on his own personal use of the products and had the opportunity to obtain a profit from selling the products. Sgt. Kirby remained at Sgt. Sisson's house after the others left and after further discussions about Amway, Sgt. Kirby agreed to become a distributor with Sgt. Sisson acting as his sponsor. The record indicates that the sponsor will receive a profit from sales made by his distributors.

The record indicates that Sgt. Kirby was initially hesitant to have Sgt. Sisson act as his sponsor. This was based on the fact that Sgt. Sisson was his reporting supervisor in the military. Sgt. Sisson assured him that this would not affect the work in the military and Sgt. Kirby joined Amway.

In April, 1982, Sgt. Sisson met with Tech. Sgt. Joseph E. Barber, Jr. and his wife to discuss Amway. Sisson and Sgt. Barber had previously had casual discussions about taxes and other investments to supplement their military income. Although Sgt. Barber had been invited to attend a group meeting, he had been unable to attend. Sgt. Barber had Sgt. Sisson discuss Amway at the Barber house. A week after this presentation, the Barbers entered into a distributorship agreement with Amway. Sgt. Sisson was to act as their sponsor. At the initial presentation, Sgt. Sisson did not ask the Barbers to join Amway. Sgt. Sisson was the military instructor for Sgt. Barber.

Sgt. Sisson also had discussions with Staff Sgt. Thomas Weir after Weir was stationed at the Tucson base in June, 1982. The conversations pertained to off duty activities to generate extra income. Some time after these conversations, Sgt. Sisson drove Sgt. Weir and his wife to an Amway meeting at another person's house. This meeting was also a group presentation. After the meeting, Sgt. Weir and his wife invited Sisson into their apartment for coffee and further discussions about Amway. Two days later, the Weirs entered into a distributorship agreement with Amway naming Sisson as the sponsor. The meeting to sign the paper work was requested by Sgt. Weir. The record indicates that Sgt. Weir only participated in Amway to the extent of personal use of the products.

Based on these facts, Sgt. Sisson was charged and convicted of three counts of violating Air Force Regulation 30-30, ¶ 3(d).³ He was also charged and convicted of one count of violating Air Force Regulation 30-30, TAC Supplement 1, ¶ 9(g) which requires Air Force personnel to notify their immediate supervisor and obtain permission from "the appropriate authority" prior to engaging in "off duty employment or any other outside activity for compensation." In this action Plaintiff alleges seven separate constitutional violations to his court martial.

JURISDICTION

The first issue to be decided by the court is whether or not this court has jurisdiction and under what statute. Plaintiff cites 28 U.S.C. § 1331. Defendant contends that the amendments to 10 U.S.C. § 1552 preclude this court from exercising jurisdiction under section 1331.

Section 1552 grants the Secretaries of the various military departments the power to change military records "when he considers it necessary to correct an error or remove an injustice." 10 U.S.C. § 1552(a). Civil Courts had found jurisdiction under section 1331 to compel the Secretary to exercise this power under certain circumstances, Sanders v. United States, 594 F.2d 804 (Ct.Cl.1979). In 1983, Congress added a provision to section 1552 precluding the Secretary from exercising that power in court-martial matters, 10 U.S.C. § 1552(f).

The only case cited by the Defendants indicating a lack of jurisdiction under section 1331 based on this amendment is the unpublished opinion of Stokes v. Orr, 628 F.Supp. 1085 (D.Kan.1985). That opinion dismissed a suit under 28 U.S.C. § 1331 against the Secretary of the Air Force. It is apparent that the claim for relief in that action was an order compelling the Secretary to correct the military record of the Plaintiff regarding his court-martial. The opinion does not support the Defendants' contention that the 1983 amendments were intended to preclude the exercise of jurisdiction under section 1331.

There are several other cases where the courts have exercised jurisdiction under 28 U.S.C. § 1331 where the suit did not depend upon a claim to correct the military records, see, Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975) Injunctive relief from constitutional violations and Homcy v. Resor, 455 F.2d 1345 (D.C.Cir.1971) Declaratory relief sought to hold court-martial invalid. Although these cases were collateral attacks on military court-martials, they sought judicial intervention other than for the correction of military records. The complaint in this action does not seek an order directing the Secretary of the Air Force to correct Sgt. Sisson's record. It seeks only an order by this court declaring the court-martial here invalid and an order requiring a return of the forfeited pay. The amendments to 10 U.S.C. § 1552 do not apply to this case. This court therefore has jurisdiction under 28 U.S.C. § 1331 unless some other provision specifically precludes jurisdiction under that section.

The amendments to the statutes in 1983 did not alter the provision of Article 76, U.C.M.J., 10 U.S.C. § 876. That provision makes the final determination of the military courts binding on all courts including civil courts. In Councilman, the Supreme Court held that constitutional claims could be presented to the Civil Courts notwithstanding Article 76. The challenges here are based on constitutional rights and entail a direct challenge to the military regulations enforced against Sgt. Sisson. This court has jurisdiction under 28 U.S.C. § 1331.

This court also has jurisdiction under the Tucker Act, 28 U.S.C. § 1346. The Plaintiff is seeking a return of his forfeited pay totaling $2,800.00. This is an appropriate claim to present to the District Court under the Tucker Act, Stone v. United States, 683 F.2d 449 (D.C.Cir.1982).

STANDARD OF REVIEW

Defendants contend that this court's standard of review is limited to solely a determination of whether or not the military courts gave fair consideration to the issues presented, regardless of the outcome, citing, Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953); United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969); and Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975). This is based primarily on the Defendants' claim that Councilman requires a uniform standard of review without considering whether the claim is presented under habeas corpus, 28 U.S.C. § 2241, or the Tucker Act, 28 U.S.C. § 1346, for back pay, Schlesinger v. Councilman, 420 U.S. at 748, 95...