U.S. ex rel. New v. Rumsfeld

Decision Date22 December 2004
Docket NumberNo. CIV.A.96-0033(PLF).,CIV.A.96-0033(PLF).
Citation350 F.Supp.2d 80
PartiesThe UNITED STATES ex rel. Michael G. NEW, Petitioner, v. Donald H. RUMSFELD, Secretary of Defense, and Les Brownlee, Acting Secretary of the Army,<SMALL><SUP>1</SUP></SMALL> Respondents.
CourtU.S. District Court — District of Columbia

Henry L. Hamilton, Ratchford & Hamilton LLP, Columbia, SC, Herbert W. Titus, Troy A. Titus, P.C., Virginia Beach, VA, John Stewart Miles, William J. Olson, P.C., McLean, VA, Michael Paul Farris, Home School Legal Defense Association, Washington, DC, Ronald D. Ray, Crestwood, KY, William J. Olson, William J. Olson, P.C., McLean, VA, for Plaintiff.

Robert Lawrence Shapiro, Spriggs & Hollingsworth, Thomas M. Ray, Claes H. Lewenhaupt, Joel E. Wilson, Washington, DC, for Defendants.


PAUL L. FRIEDMAN, District Judge.

The petitioner in this case, Specialist Michael G. New, is an enlisted member of the United States Army convicted by court-martial of disobeying a lawful order under Article 92 of the Uniform Code of Military Justice and sentenced to a bad conduct discharge. Mr. New has filed a petition for a writ of habeas corpus, asking the Court to set aside his conviction based on the invalidity of the order he was convicted of disobeying, and the improper submission of that order's lawfulness to the military judge rather than to the court-martial panel.

Respondents, the Secretary of Defense and the Secretary of the Army, have filed a motion to dismiss petitioner's second amended complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Respondents argue that all of petitioner's claims are either outside the scope of collateral review or are nonjusticiable under the political question doctrine. The Court agrees with respondents with respect to some but not all of petitioner's claims; however, because the Court finds petitioner's remaining claims to be without merit, it will grant respondents' motion to dismiss.


While serving in the United States Armed Forces as a Medical Specialist in 1995, petitioner Michael G. New was informed that his unit would be dispatched to the Republic of Macedonia to become part of the United Nations Peacekeeping Force in that country. See New v. Cohen, 129 F.3d 639, 641 (D.C.Cir.1997). Upon learning that he would be required to wear a U.N. shoulder patch on his uniform and distinctive U.N. headgear while in Macedonia, petitioner informed his squad leader and his platoon leader that he believed the uniform to be unlawful and that he would refuse to wear the U.N. uniform components unless convinced that the requirements were justified by United States constitutional authority. See id. Petitioner suggested that in order to avoid a controversy he be granted a transfer to another unit or, as an alternative, receive an honorable discharge. The Army denied both of these requests. See id. On October 10, 1995, petitioner appeared in formation without the U.N. uniform components and in violation of orders from his superior officers. See id. For refusing to obey the order of a military superior, petitioner was charged with an Article 92 violation and the military initiated court-martial proceedings. See id.2

A. Initial Proceedings in this Court

On January 16, 1996, Petitioner petitioned this Court for a writ of habeas corpus and an emergency stay of the court-martial proceeding. The Court declined to stay the military proceedings, finding that petitioner had not shown a likelihood of success on the merits, that the quality of justice in the military courts was not inherently inferior to that provided by Article III courts, and that the public interest was clearly in favor of denying the stay in order to prevent confusion over the lawfulness of peacekeeping deployments in Macedonia. United States ex rel. New v. Perry, Memorandum Opinion and Order 1996 WL 420175 (D.D.C. Jan. 16, 1996). The Court subsequently declined to issue a writ of habeas corpus. See United States ex rel. New v. Perry, 919 F.Supp. 491, 500 (D.D.C.1996). The Court concluded that the principle of comity counsels deference and forbearance when the issues have been presented in adequate, ongoing proceedings in another tribunal with concurrent powers, particularly when the other forum is a military court. "The issues raised in this case," the Court stated, "are within the province of the military tribunals, and there is no need for this Court to `blaze a trail on unfamiliar ground' when the military court stands ready to consider Specialist New's claims." Id. at 499 (quoting Noyd v. Bond, 395 U.S. 683, 696, 89 S.Ct. 1876, 23 L.Ed.2d 631 (1969)).

The court of appeals affirmed this Court's denial of habeas corpus relief. The appellate court agreed that the interests of comity and the rule of exhaustion mandated that petitioner pursue all remedies available to him within the military justice system before asking an Article III court to consider his arguments. See New v. Cohen, 129 F.3d at 642-44, 645. The court held that none of the exceptions to the principles of comity or exhaustion applied to petitioner's situation, id. at 644-47, and that following any final decision by the military courts, petitioner "might be able to bring an action in district court seeking nullification of the conviction underlying his bad conduct discharge." Id. at 648.

B. Court-Martial Proceedings and Appeal

While petitioner was pursuing his appeal from this Court's decision, he was charged with disobedience, convicted by court-martial, and sentenced to a bad conduct discharge. See New v. Cohen, 129 F.3d at 642. Before trial, petitioner filed three motions to dismiss the charges against him.

The first motion to dismiss argued that the order to wear the U.N. uniform components (the "uniform order") was unlawful because President Clinton's order committing United States forces to the United Nations mission in Macedonia (the "deployment order") was unlawful on several statutory and constitutional grounds. See Second Amended Complaint ("2d.Am.Compl.") ¶ 9. Petitioner's second motion asserted that the uniform order was unlawful because it forced petitioner "involuntarily to serve as a United Nations soldier thereby depriving him of his rights as a United States soldier in violation of the Thirteenth Amendment of the United States Constitution." 2d. Am. Compl. ¶ 10. The third motion raised several challenges to the lawfulness of the uniform order. Petitioner claimed that the order violated Article I, Section 9, clause 8 of the United States Constitution (the "Foreign Emoluments Clause"), prohibiting any officeholder of the United States from accepting a present, office, title, or emolument from a foreign state; 5 U.S.C. § 7342 ("Receipt and disposition of foreign gifts and decorations") and 32 C.F.R. § 578.19, its implementing regulation; and Army Regulation 670-1, governing the wear and appearance of army uniforms and insignia. 2d. Am. Compl. ¶ 11. Petitioner also asserted that the uniform order "would subject [petitioner] to commit a crime under Articles 134 UCMJ, and would subject [petitioner] to civil penalties under 5 U.S.C. Section 7342." Id.

Prior to trial, the military judge, deciding that the motions to dismiss raised interlocutory matters, ruled that both the uniform order and the deployment order were legal and denied all three motions to dismiss. See United States v. New, 50 M.J. 729, 735 (Army Ct.Crim.App.1999) ("New I"). As a result, petitioner was precluded at trial from presenting evidence to the court-martial panel challenging the justification for the deployment and the legality of the orders. See id. Petitioner did, however, introduce sworn testimony and several exhibits in support of his motions, and the military judge made several findings of fact subsidiary to the determination of lawfulness. See id. at 737-38; Plaintiff's Motion to Reopen Proceeding and Substitute Parties Respondent, and for Leave to File an Amended and Supplemental Petition for a Writ of Habeas Corpus, App. 2 at 422-33 ("Trial Record"). The military judge also found the deployment order's lawfulness to be irrelevant because it was only the uniform order that petitioner was accused of disobeying. See Trial Record at 429; New I, 50 M.J. at 737-38.

Petitioner subsequently was tried and convicted. Because of the pretrial rulings, his defense was limited to asserting the affirmative defenses of mistake, inability, and obedience to higher orders. See New I, 50 M.J. at 735. Petitioner appealed his conviction to the United States Army Court of Criminal Appeals ("ACCA"), which affirmed petitioner's conviction on April 28, 1999, see New I, 50 M.J. 729, and then to the United States Court of Appeals for the Armed Forces ("CAAF"), which affirmed the conviction on June 13, 2001. See United States v. New, 55 M.J. 95 (U.S. Armed Forces 2001) ("New II").

Petitioner's appeal to the ACCA raised several challenges to the military judge's rulings. Petitioner first contended that the military judge's decision to rule on the lawfulness of the orders as a matter of law, rather than have the court-martial panel decide the question as one of fact, deprived petitioner of his rights under the Fifth and Sixth Amendments. Both appellate courts rejected petitioner's constitutional challenge and affirmed the military judge's ruling as proper under the UCMJ and the military courts' own jurisprudence. See New I, 50 M.J. at 738; New II, 55 M.J. at 101-02 (citing United States v. Carson, 15 USCMA 407, 408, 1965 WL 4684 (1965)).

The ACCA and the CAAF also affirmed the military judge's related ruling that the lawfulness of an order is not an element of the offense of disobedience and that it therefore need not be decided by the court-martial panel. See New I, 50 M.J. at 738; New II, 55 M.J. at 102-03 (citing Cox v. United States, 332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59 (1947), and Yakus v. United States, 321...

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