U.S. ex rel. New v. Rumsfeld, 05-5023.

• Decision Date: 23 May 2006
• Docket Number: No. 05-5023.,05-5023.
• Citation: 448 F.3d 403
• Parties: UNITED STATES ex rel. Michael G. New, Appellant v. Donald H. RUMSFELD, Secretary of Defense, and Francis J. Harvey, Secretary of the Army, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

448 F.3d 403

UNITED STATES ex rel. Michael G. New, Appellant v. Donald H. RUMSFELD, Secretary of Defense, and Francis J. Harvey, Secretary of the Army, Appellees.

No. 05-5023.

United States Court of Appeals, District of Columbia Circuit.

Argued February 16, 2006.

Decided May 23, 2006.

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

Herbert W. Titus argued the cause for appellant. With him on the briefs were Henry L. Hamilton, William J. Olson, and John S. Miles.

Kevin K. Robitaille, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief were Kenneth L Wainstein, U.S. Attorney, and Michael J. Ryan and R. Craig Lawrence, Assistant U.S. Attorneys.

Before: RANDOLPH and GARLAND, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge WILLIAMS.

WILLIAMS, Senior Circuit Judge.

Michael G. New, formerly a medical specialist in the United States Army, was convicted by a court-martial of violating a lawful order to add United Nations insignia — a shoulder patch and a field cap — to his basic uniform. The Army Court of Criminal Appeals ("Court of Criminal Appeals") and the Court of Appeals for the Armed Forces ("Court of Appeals") affirmed. New's collateral attack charges several errors in the military courts' analysis of the lawfulness of the uniform order. Because New fails to identify fundamental defects in the military courts' resolution of his claims, we affirm the district court's denial of relief.

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Shortly after he learned during the summer of 1995 that his unit would be deployed to the Republic of Macedonia as part of the United Nations Preventive Deployment Force, New voiced concerns about the lawfulness of the Army's participation in the mission. In particular, he was troubled that wearing U.N. insignia as part of his uniform would manifest an involuntary or fictional shift in his allegiance from the government of the United States to the United Nations. Although his superiors discussed these concerns with him, they failed to alleviate them.

Eventually New's battalion commander issued — and his company commander repeated — an order to begin wearing a special U.N. mission uniform at a battalion formation on October 10, 1995. The uniform consisted of the ordinary United States Army battle dress uniform plus a blue U.N. patch sewn on one shoulder and a blue U.N. cap. New reported for the formation on the scheduled date wearing a uniform that lacked these features, and his superiors immediately removed him from the formation. Although his battalion commander offered him a second chance to comply with the uniform order, New declined.

New was court-martialed and charged with violating Article 92(2) of the Uniform Code of Military Justice (codified at 10 U.S.C. § 892(2)), which provides that any person who, "having knowledge of any . . . lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order . . . shall be punished as a court-martial may direct." New's defense focused on the lawfulness of the order — specifically its consistency with Army Regulation 670-1 (1992) ("AR 670-1"), which permits commanders to require uniform modifications "to be worn within [a] maneuver area," par. 2-6d, or "when safety considerations make it appropriate," par. 1-18, and with Article I, Section 9, of the Constitution, which prohibits any person's acceptance of, inter alia, any emolument from a foreign state without congressional consent. New also argued that the uniform order couldn't be lawful because the Army's participation in the U.N. mission was itself unlawful, asserting various statutory and constitutional grounds discussed below.

The military judge — a law officer presiding over the panel but not serving as one of its members — rejected both sets of arguments: he concluded that the order was consistent with AR 670-1 and that the legality of the deployment was a nonjusticiable political question. The court-martial sentenced New to a bad-conduct discharge.

On appeal to the Court of Criminal Appeals, New argued that the military judge erred in ruling that the lawfulness of the order was a legal question for him to decide rather than an element of the offense to be decided by the "military jury" (the term that we use, following the Court of Appeals, as shorthand for the court-martial panel). United States v. New, 55 M.J. 95, 103 (C.A.A.F.2001) ("CAAF Op."); see also id. at 117 & n. 2 (Sullivan, J., concurring). And he argued that the military judge's conclusion on the merits was erroneous. The Court of Criminal Appeals rejected these claims and affirmed New's conviction and sentence. United States v. New, 50 M.J. 729 (A.Ct.Crim.App.1999) ("ACCA Op."). The Court of Appeals then granted review and also affirmed. CAAF Op., 55 M.J. at 109.

New had filed a petition for a writ of habeas corpus in federal district court shortly before his court-martial. The district court dismissed that petition on the ground that New had failed to exhaust his remedies in the pending court-martial action, United States ex rel. New v. Perry, 919 F.Supp. 491 (D.D.C.1996), and we affirmed, New v. Cohen, 129 F.3d 639 (D.C.Cir.1997). After the Court of Criminal Appeals and the Court of Appeals both affirmed his conviction, New returned to the district court. The district court dismissed the petition, finding that each of New's challenges fell outside the scope of collateral review, raised a nonjusticiable political question, or lacked merit as a matter of law. United States ex rel. New v. Rumsfeld, 350 F.Supp.2d 80, 102 (D.D.C.2004) ("District Ct. Op."). New appeals.

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We begin with jurisdiction and the related issue of the scope and standard of review. New, the government, and the district court have all assumed that jurisdiction rests on 28 U.S.C. § 2241, which authorizes federal courts to grant writs of habeas corpus. See District Ct. Op., 350 F.Supp.2d at 88 n. 4, 89; Brief for Appellants at 1; Brief for Appellees at 1. But § 2241(c) precludes granting the writ unless the petitioner is in custody. Upon conviction by court-martial New received a bad-conduct discharge; as he is not in custody, § 2241 can't supply subject matter jurisdiction. This is not fatal, however, because the Supreme Court has held that Congress didn't intend to confine collateral attacks on court-martial proceedings to § 2241. Schlesinger v. Councilman, 420 U.S. 738, 748-53, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975). Thus the district court had subject-matter jurisdiction to hear New's collateral attack under § 1331 (which New's second amended complaint invoked).

The standard of our review is more tangled. In Councilman the Supreme Court not only confirmed jurisdiction in the absence of custody, but also said that collateral relief was barred unless the judgments were "void." Id. at 748, 95 S.Ct. 1300. And that question "may turn on [1] the nature of the alleged defect, and [2] the gravity of the harm from which relief is sought," id. at 753, 95 S.Ct. 1300. Specifically, the defect must be "fundamental," for "[a] judgment . . . is not rendered void merely by error." Id. at 747, 95 S.Ct. 1300. Moreover, "both factors must be assessed in light of the deference that should be accorded the judgments of the carefully designed military justice system established by Congress." Id. at 753, 95 S.Ct. 1300. Because Councilman ultimately denied review pending the court-martial, this standard was not part of the holding, but our circuit later adopted it for non-habeas review of court-martial judgments. Priest v. Secretary of the Navy, 570 F.2d 1013, 1016 (D.C.Cir.1977).

The Supreme Court pitched the Councilman standard as more deferential than habeas review of military judgments, which it has in turn described as no less deferential than habeas review of state court judgments. This first point was explicit in Councilman itself, where the Court said: "[G]rounds of impeachment cognizable in habeas proceedings may not be sufficient to warrant other forms of collateral relief." 420 U.S. at 753, 95 S.Ct. 1300. The second point is part of the Court's analysis in Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953). There, reviewing court-martial death sentences allegedly based on coerced confessions and "an atmosphere of terror and vengeance," id. at 138, 73 S.Ct. 1045, the Court through a four-justice plurality described military habeas as follows: "It is the limited function of the civil courts to determine whether the military have given fair consideration" to each claim raised by petitioners. Id. at 144, 73 S.Ct. 1045. As to factfinding, the plurality said that Article III courts should not be in the business of "reexamin[ing] and reweigh[ing] each item of evidence of the occurrence of events which tend to prove or disprove one of the allegations in the applications for habeas corpus." Id. The plurality concluded that the petitioners failed to show that the military review process was "legally inadequate" to resolve their constitutional claims and affirmed. Id. at 146, 73 S.Ct. 1045. (Two additional justices concurred in the result, one of them writing that the Supreme Court's role was limited to assessing the military courts' jurisdiction. Id. at 146-48, 73 S.Ct. 1045.) In setting out this standard, the plurality explained that the Court must be at least as deferential as it is in the civilian habeas context, for in "military habeas corpus cases themselves, even more than in state habeas corpus cases, it would be in disregard of the statutory scheme if the federal civil courts failed to take account of the prior proceedings — of the fair determinations of the military tribunals after all military remedies have been exhausted." Id. at 142, 73 S.Ct. 1045 (emphasis added).

The uncertainty implied in these rankings of deference level is compounded by the evolution of habeas review over...