D.C. Civil Action No. 701-72 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.
Van Dusen, Aldisert and Adams, Circuit Judges.
We are called upon to review the propriety of a permanent injunction issued by the district court, a federal civilian court, which prohibits the trial of an army sergeant by court-martial on the theory that the military court lacked jurisdiction under O'Callahan v. Parker, 395 U.S. 258, 23 L. Ed. 2d 291, 89 S. Ct. 1683 (1969). The Secretary of Defense, the Secretary of the Army, and the court-martial's convening authority, a general officer, have appealed.
A general court-martial had been convened to try Army Sergeant First Class Sedivy for possession of amphetamines and marijuana in violation of Articles 92 and 134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 892, 934.*fn1 By the terms of the permanent injunction issued by the district court, the military authorities were enjoined from proceeding against Sedivy on these charges. The district court made findings of fact, drew legal conclusions therefrom, and held that Sedivy's conduct was not service connected, and, therefore, under O'Callahan the military court lacked jurisdiction to try him.
The military prosecution emanated from a December 10, 1971, raid on Sedivy's off-post house trailer. Civilian and military law enforcement officials conducted the raid, acting pursuant to a search warrant issued by a New Jersey state judge. The authorities found a quantity of amphetamines and marijuana on the premises and arrested Sergeant Sedivy and three other enlisted men attached to Fort Monmouth, New Jersey. At that time Sergeant Sedivy served as acting first sergeant of the 241st Military Police Company and was the senior non-commissioned officer of that unit.*fn2 The threshold inquiry concerns the authority of the district court to find the facts and reach the legal conclusions on the O'Callahan issue.
We immediately notice an issue neither argued nor briefed here or in the district court. It was incumbent upon Sergeant Sedivy to assert a claim cognizable under the general federal question jurisdictional statute, 28 U.S.C. § 1331, with the prerequisite $10,000 amount in controversy. Cf., Spock v. David, 469 F.2d 1047 (3d Cir. 1972). This he did by appropriate averments in both the First and Fourth Counts of his complaint. As the concurring opinion indicates, the appellants filed no answer, but in a brief colloquy at trial their counsel refused to stipulate to the court's jurisdiction. It cannot thus be said that the question of jurisdiction was properly traversed by a pleading or by a motion under F.R.C.P. 12(b)(1). As was the case of the trial court in Spock, "the district court assumed that the jurisdiction of the federal court was not in issue." "Since as the record of the district court comes before us, the allegation of jurisdictional amount remains untraversed, . . . we cannot say as a legal certainty that [Sedivy] would never be able to establish [his] jurisdictional amount claim." Spock v. David, supra, 469 F.2d at 1052. Although the jurisdiction averments were not traversed at trial, we are permitted to raise the question sua sponte. "An objection to the adjudicatory power of a tribunal may generally be raised for the first time at any stage of the litigation. See, e.g., Flast v. Cohen, 392 U.S. 83, 88 n.2, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968); United States v. Griffin, 303 U.S. 226, 229, [82 L. Ed. 764, 58 S. Ct. 601] (1938); Fortier v. New Orleans National Bank, 112 U.S. 439, 444, [28 L. Ed. 764, 5 S. Ct. 234] (1884)." Gosa v. Mayden, 413 U.S. 665, 93 S. Ct. 2926, 37 L. Ed. 2d 873, 41 U.S.L.W. 5075, 5087-5088 (1973) (Marshall, J., dissenting) (footnote omitted). Because the very nature of this action presents an arguable question whether the jurisdictional amount could be satisfied, this is the type of case most appropriate for factual findings relating to subject matter jurisdiction. Nevertheless, we find it unnecessary to remand for such findings, first, because we are not required to, Spock v. David, supra, and, second, because of the view we take of these proceedings. For the guidance of the district courts, we emphasize the desirability to find jurisdictional facts in all cases arising under the general federal question statute, 28 U.S.C. § 1331, or the diversity statute, 28 U.S.C. § 1332, Nelson v. Keefer, 451 F.2d 289 (3d Cir. 1971). It is the Congressional mandate to restrict federal jurisdiction in these areas and it is incumbent upon the courts to implement this mandate.
The precise question we address is whether the federal civilian courts may prevent absolutely the military from finding the facts and determining whether they have jurisdiction under O'Callahan. The Constitution specifically provides for military punishment of military related offenses, Article 1, § 8, cl. 14; amend. V. ". . . Congress, in the exercise of its power to 'make Rules for the Government and Regulation of the land and naval Forces,' has never given . . . [the Supreme] Court appellate jurisdiction to supervise the administration of criminal justice in the military. When after the Second World War, Congress became convinced of the need to assure direct civilian review over military justice, it deliberately chose to confide this power to a specialized Court of Military Appeals, so that disinterested civilian judges could gain over time a fully developed understanding of the distinctive problems and legal traditions of the Armed Forces." Noyd v. Bond, 395 U.S. 683, 694, 23 L. Ed. 2d 631, 89 S. Ct. 1876 (1969) (footnote omitted).
If the Supreme Court articulates such a rule relating to the exercise of appellate jurisdiction over military courtmartial matters, it would seem a fortiori that the inferior Article III courts are precluded from injunctive interference with the trial process of a military court. Civilian federal courts have approached ongoing courts-martial gingerly, and generally only through the means of federal habeas corpus.*fn3
We recently have had occasion to observe that federal habeas corpus preserves the jurisprudential integrity of the military system, because federal habeas corpus, an inquiry into "detention simpliciter," is not a direct review of a state or military court judgment:
Initially, it is necessary to identify the limited contours of a civilian court's jurisdiction when presented with a habeas corpus petition from a federal prisoner whose incarceration was ordered by a court -martial. Our statement of this issue is deliberate, for we avoid the imprecise label "review." Title 10 U.S.C. § 876 provides that military criminal proceedings shall be "final and conclusive," and "binding upon all departments, courts, agencies, and officers of the United States." That is, as in the case of petitions for habeas corpus filed by state prisoners under 28 U.S.C. § 2254, where there is no jurisdiction to review the state judgment, here there can be no review of the final judgment of the court-martial. Naturally, however, a federal court has jurisdiction to examine state prisoner habeas corpus cases, and the basis of this jurisdiction was made clear in Fay v. Noia, 372 U.S. 391, 430-31, [9 L. Ed. 2d 837, 83 S. Ct. 822] (1963): "The jurisdictional prerequisite is not the judgment of a state court but detention simpliciter. . . . Habeas lies to enforce the right of personal liberty; when that right is denied and a person confined, the federal court has the power to release him. Indeed, it has no other power; it cannot revise the state court judgment; it can act only on the body of the petitioner. ...