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September 28, 1973

Richard E. BROWN, on behalf of himself and all others similarly situated, Plaintiff,
UNITED STATES of America et al., Defendants

Newcomer, District Judge.

The opinion of the court was delivered by: NEWCOMER

NEWCOMER, District Judge.

 Plaintiff Richard E. Brown enlisted in the United States Marine Corps on July 22, 1966, for a term of four years. On February 7, 1969, plaintiff Brown was sentenced to punitive discharge, confinement, and forfeiture of pay and allowances by a special court-martial convened by the Commanding Officer, Transient Facility, Camp Smedley D. Butler, Camp Hansen, Okinawa. This special court-martial was ostensibly convened pursuant to the authority of 10 U.S.C. § 823(a) (7) which grants special courts-martial convening authority to "the commanding officer or officer in charge of any . . . command when empowered by the Secretary concerned."

 Plaintiff David L. Taylor enlisted in the Marine Corps on July 28, 1967, for a term of four years. On October 25, 1968, he too was sentenced, after trial and conviction by a court-martial also convened ostensibly pursuant to § 823(a) (7) by the Commanding Officer, Student Company, Schools Battalion, Marine Corps Base, Camp Pendleton, California. On September 10, 1969, he was sentenced by a second similar tribunal after a trial on a different alleged offense.

 On May 28, 1970, the Court of Military Appeals held in U.S. v. Greenwell, 19 USCMA 460, 42 CMR 62, that the procedure used by the Secretary of the Navy to empower commanders to convene special courts-martial pursuant to 10 U.S.C. § 823(a) (7) constituted an illegal delegation of power, and that the courts convened pursuant to such a delegation were without authority.

 Plaintiff Brown and plaintiff Taylor have sued, on behalf of themselves and all others tried by such courts-martial, for relief in the nature of mandamus to direct the Secretary of the Navy and the other defendants to correct the pertinent records to reflect the invalidity of such convictions, that is, to expunge any clerical reflections of such a court-martial, and also to recover the back pay and monetary value of the benefits of which persons were deprived as a result of such convictions. Both sides have moved for summary judgment.

 The first issue presented by this case is the propriety of such relief in the nature of mandamus. This Court has general authority under 28 U.S.C. § 1361 to entertain an action in the nature of an action for an original writ of mandamus. It is clear that in appropriate circumstances this Court may mandamus any of the defendants in this case, including the Secretary of the Navy. Decatur v. Paulding, 14 (U.S.) Pet. 497, 39 U.S. 497, 10 L. Ed. 559 (1840). Plaintiffs claim that the courts-martial which tried them were without authority of any kind, that this has in principle been determined by the Court of Military Appeals, and that the Secretary of the Navy and the other named defendants have wrongly refused to give retroactive effect to the decision of the Court of Military Appeals. The Court agrees with plaintiffs that, in general, the Navy has no right to maintain records of wholly void court-martial convictions as if they were valid, and to continue bearing clerical and bureaucratic witness to their validity if they are not. To correct such a record is a purely ministerial act, which is a proper subject for a writ of mandamus. *fn1" The fact that plaintiffs' right of relief and defendants' ministerial duties are disputed by defendants does not, as defendants argue, render the rights of plaintiffs "unclear" so as to necessitate dismissal of the action, or destroy this Court's jurisdiction. The time at which plaintiffs must establish to the Court the clear nature of their entitlement is at the point of final decision, not at the filing of the suit. United States ex rel. Joy v. Resor, 342 F. Supp. 70 (D. Vt. 1972). Plaintiffs have stated in their complaint facts sufficient to make out an arguable right to mandamus. Such a pleading vests this Court, pursuant to 28 U.S.C. 1361, with the jurisdiction to determine the facts, hear the arguments, and decide the case on the merits.

 The defendants have argued that this Court is without authority to entertain a collateral attack on a court-martial conviction by way of mandamus. The history of the limits on collateral review of court-martial convictions is a somewhat tangled web. The military court system has traditionally been viewed as being as wholly distinct from the federal civil courts as the courts of the state are. The opinions on its exact status have ranged, in recent years, from those of Mr. Justice Vinson and Mr. Justice Minton in Burns v. Wilson, 346 U.S. 137, 73 S. Ct. 1045, 97 L. Ed. 1508 (1953), granting the military system an aura of sovereignty even superior to that of a state, *fn2" to those of Mr. Justice Douglas in his concurring opinion in Parisi v. Davidson, 405 U.S. 34, 92 S. Ct. 815, 31 L. Ed. 2d 17, (1972), that the whole military "is simply another administrative agency, insofar as judicial review is concerned." Id. at 51, 92 S. Ct. at 825.

 Still it must be admitted that the problems of administering justice within the military setting are special problems, and their solution has been given to Congress in the first instance by the Constitution. Congress has seen fit to create a system of military justice wholly apart from the civil system. But it has long been recognized that the Constitution does not, a priori, prevent the subjects of courts-martial from resorting to the civil courts for the vindication of certain rights. The most important avenue of resort is, of course, the writ of habeas corpus, specifically protected by the Constitution, traditionally capable of reaching issues concerning military jurisdiction, and protected from legislative encroachment as a matter of course. See Gusik v. Schilder, 340 U.S. 128, 71 S. Ct. 149, 95 L. Ed. 146 (1950). More will be said on the shifting scope of habeas corpus presently. But now it should be noted that habeas corpus was not the sole method of collateral attack available in the early years of the Republic. In Wise v. Withers, 7 U.S. (3 Cranch) 331, 2 L. Ed. 457 (1806), the Supreme Court held that the decision of a court-martial that a certain justice of the peace in the District of Columbia was not an officer of the United States, and was therefore a proper subject for Militia duty, was not binding in an action for trespass di bonis asportatis against the members of the court and the officer whom they sent to seize goods to pay a fine for failure to report which had been levied by the court-martial. The argument was made by counsel for the defendant that the decisions of a court-martial were "final and conclusive like those of an ecclesiastical court . . .", but the Supreme Court, through Marshall, C.J., held that in any action the Court may review the jurisdiction of a court-martial, and if it has acted without any jurisdiction, the Court may so decide and enter judgment accordingly. The Supreme Court found that "the court and the officer are all trespassers", that "the court and the officer are all trespassers", id. at 337. While it is true that this case involved the federal militia, and not the regular armed forces, there is no legal reason for distinguishing the cases, as the power of Congress over the federal militia was as great as over the Army. See also, Houston v. Moore, 5 (U.S.) Wheat 1, 18 U.S. 1, 5 L. Ed. 19 (1820) (Review of state militia court-martial jurisdiction through trespass); Martin v. Mott, 12 (U.S.) Wheat 19, 25 U.S. 19, 6 L. Ed. 537 (1827) (Review of federal court-martial jurisdiction over state militia man called to federal service, through replevin).

 The above cases dealt with challenges to the jurisdiction of courts-martial over persons who alleged that they were not really in service when tried at all. In Dynes v. Hoover, 20 (U.S.) How. 65, 61 U.S. 65, 15 L. Ed. 838 (1857), the Supreme Court reviewed an assault and battery-false imprisonment action by a Navy seaman against his jailors. He had been sentenced to imprisonment by a court-martial, and though the Court affirmed the actions of the court-martial in Dynes' particular case, it held that such an action would lie if the court-martial had been without either subject matter or personal jurisdiction as had been alleged, even though Dynes was clearly in service at the time. It is interesting to note that Dynes' sentence had apparently been served prior to the bringing of the action, so that habeas corpus would not have been available, but this was not seen by the Court as any impediment to collateral attack on the court-martial conviction.

 In Ex parte Reed, 100 U.S. 13, 25 L. Ed. 538 (1879), the Supreme Court affirmed, surprisingly for the first time, the availability of habeas corpus to a serviceman imprisoned by a court-martial lacking subject matter or personal jurisdiction, although such jurisdiction was found to be present in Reed's particular case. Just three years later, in Ex parte Mason, 105 U.S. 696, 26 L. Ed. 1213 (1882), some members of the Court doubted the power of the federal courts to issue habeas corpus in such a situation, though all agreed that it could only be issued on the basis of a lack of jurisdiction in the court-martial in question, which jurisdiction was found to exist in Mason's particular case as well.

 Keyes v. United States, 109 U.S. 336, 3 S. Ct. 202, 27 L. Ed. 954 (1883), is the next important case, dealing as it does with the first review by the Supreme Court of what has become a fairly common method of collateral attack on the validity of a court-martial, the suit for back pay. There the Court recognized the validity of such a suit "[where] there is no law authorizing the court-martial, or where the statutory conditions as to the constitution or jurisdiction of the court are not observed, [or] there is no tribunal authorized by law to render the judgment." id. at 340, 3 S. Ct. at 204. All these are ancient antecedents of the traditional concept of jurisdiction.

 In Wales v. Whitney, 114 U.S. 564, 5 S. Ct. 1050, 29 L. Ed. 277 (1884), the Court's previous doubts as to the availability of habeas corpus seem to have vanished. In holding that actual custody was necessary for the issuance of habeas corpus, the court said

"In thus deciding, we are not leaving the appellant without remedy if his counsel are right in believing the court-martial has no jurisdiction of the offense of which he is charged. He can make that objection to the court before trial. He can make it before judgment after the facts are all before the court. He can make it before the reviewing tribunal."

 Smith v. Whitney, 116 U.S. 167, 6 S. Ct. 570, 29 L. Ed. 601 (1885) involved the issue of whether a federal court could issue a writ of prohibition to forbid trial by a court-martial which lacked jurisdiction. The court specifically reserved judgment on the propriety of such a writ, finding that the court-martial in question had jurisdiction.

 The availability of habeas corpus was again affirmed in principle in United States v. Grimley, 137 U.S. 147, 11 S. Ct. 54, 34 L. Ed. 636 (1890), Johnson v. Sayre, 158 U.S. 109, 15 S. Ct. 773, 39 L. Ed. 914 (1895), and Carter v. McClaughry, 183 U.S. 365, 22 S. Ct. 181, 46 L. Ed. 236 (1902), and the propriety of a suit for back pay was affirmed in principle in Swaim v. United States, 165 U.S. 553, 17 S. Ct. 448, 41 L. Ed. 823 (1897). But McClaughry v. Deming, 186 U.S. 49, 22 S. Ct. 786, 46 L. Ed. 1049 (1902) was in many ways the landmark in this line of cases, for it was in this case that the Supreme Court found a lack of court-martial jurisdiction for the first time, reversing the Eighth Circuit and ordering habeas corpus. Here is the affirmance that what the court had held in principle it would apply in fact in the appropriate case.

 The question of the propriety of mandamus as a remedy against an improper court-martial proceeding does not appear to have ever arisen in the Supreme Court. This is not surprising, since prior to the passage of 28 U.S.C. § 1361 by Congress in 1962, it was held that the federal courts were without authority to entertain actions for mandamus as an original writ. See McIntire v. Wood, 7 (U.S.) Cranch 504, 11 U.S. 504, 3 L. Ed. 420 (1813), and Marshall v. Crotty, 185 F.2d 622 (1 Cir., 1950). The exception to this rule involving the courts of the District of Columbia, see Kendall v. United States, 12 (U.S.) Pet. 524, 37 U.S. 524, 9 L. Ed. 1181 (1838), does not appear to have been either widely known or widely utilized. However, it is interesting to note that in the two related cases of United States ex rel. Creary v. Weeks, 259 U.S. 336, 42 S. Ct. 509, 66 L. Ed. 973 (1922) and United States ex rel. French v. Weeks, 259 U.S. 326, 42 S. Ct. 505, 66 L. Ed. 965 (1922), which dealt with actions by the Army Classification Board, the Supreme Court cited the court-martial line of cases, habeas corpus, trespass, et al, for the proposition that mandamus could lie only to test the jurisdiction of a military tribunal (and by necessary inference, would lie then). It is true that mandamus has never been directly approved as an avenue of collateral attack upon the validity of a court martial conviction. Yet a review of the early cases impels the conclusion that, from the beginnings of our legal system, the absolute lack of the traditional accoutrements of jurisdiction could be litigated by whatever means was most handy; trespass d.b.a., replevin, assault and battery, false imprisonment, habeas corpus, prohibition, suit for back pay. Never has the Supreme Court said that any means of raising the issue was improper; rather it has always decided the issue. The same course was adopted as late as United States v. Augenblick, 393 U.S. 348, 89 S. Ct. 528, 21 L. Ed. 2d 537 (1969), in the context of a suit for back pay. It is true that habeas corpus has become the primary way to test the legal sufficiency of court-martial proceedings. It has, in the course of time, expanded beyond what Lord Mansfield would have recognized as questions of jurisdiction. See generally the discussion of the scope of habeas corpus in the context of court-martial judgments in Levy v. Parker and Resor, 478 F.2d 772 (3rd Cir., 1973). And the suit for back pay has filled most needs when the custody requirements of habeas corpus were not met. Yet this Court believes that, at least in a case concerned with traditional concepts of jurisdiction, mandamus will lie to test the jurisdiction of a court-martial. Doubtless a District Court should pursue such a course only in the most exceptional circumstances, but for certain reasons of procedure and judicial economy, this case appears to present such circumstances.

 The writ of mandamus has come into recent use to compel military boards for the correction of records established under 10 U.S.C. § 1552, to correct records of invalid court-martial proceedings after the refusal of such a board to do so. Ashe v. McNamara, 355 F.2d 277 (1st Cir., 1965); Smith v. McNamara, 395 F.2d 896 (9th Cir., 1968); Haines v. United States, 453 F.2d 233 (3rd Cir., 1970); Lima v. Secretary of the Army, 314 F. Supp. 337 (E.D. Pa., 1970); and Angle v. Laird, 429 F.2d 892 (10th Cir., 1970). See also Ragoni v. United States, 424 F.2d 261 (3rd Cir., 1970). The progenitor of this approach is the Ashe case. The opinion in Ashe is quite narrowly written. It is sometimes read as reflecting a general suspicion that review of proceedings by Boards of Records-Correction is a narrow exception to 10 U.S.C. § 876, which provides that court-martial sentences are "final and conclusive" and binding on, inter alia, all courts of the United States. This was the analysis of the court in Parrish v. Seamans, 343 F. Supp. 1087 (D.S.C., 1972). *fn3" The essence of this argument is that 10 U.S.C. § 1553 is an exception to § 876, and that the right of judicial review of § 1553 proceedings found in the legislative history of that section is the only exception to § 876 other than habeas corpus. This Court can agree with the first part of this proposition but does not agree with the last.

 This Court sees no impediment to the use of mandamus directly, and not merely on the board for the correction of records, arising out of 10 U.S.C. § 876. The provisions of § 876 embodied a concept of legal finality, and must be read to encompass the normal collateral exceptions to such finality. One of those exceptions is and has always been that complete lack of jurisdiction in the narrow sense may be raised in any available proceeding. The Supreme Court has held that this language in § 876 was not intended to preclude habeas corpus. Gusik v. Schilder, 340 U.S. 128, 71 S. Ct. 149, 95 L. Ed. 146 (1951). It is true that habeas corpus is a constitutionally protected remedy. However, the Supreme Court has had the opportunity to hold that a suit for back pay attacking a court-martial conviction was prohibited by § 876 and has chosen not to do so. Augenblick, supra. The suit for back pay attack has always been regarded as unaffected by § 876 in the Court of Claims, the forum which, until the 1964 amendment to the Tucker Act, 28 U.S.C. § 1346, had exclusive jurisdiction over such suits, and the forum in which the issue has generally been raised since then. See the Court of Claims opinion in Augenblick, 377 F.2d 586, 180 Ct. Cl. 131 (1967) and the cases cited therein. It is the opinion of this Court that these cases are correct, and further that if the constitutionally unprotected suit for back pay is not rendered unavailable by § 876, neither is jurisdiction to entertain direct mandamus in an appropriate case.

 The argument against reading § 876 as a bar to either direct mandamus or a suit for back pay was stated succinctly by the Court of Claims in Augenblick as follows:

" There is no adequate reason for looking to habeas corpus alone, or for thinking that Congress limited its exception from 'finality' to that specific proceeding. Liberty is of course important, but so are a man's career, his livelihood, his rights as a veteran, his status as a convicted criminal, and his reputation. To deny collateral attack to one not in confinement -- the consequence of saying that habeas corpus is the only remedy -- would be to deny the possibility of review by a constitutional court, and ultimately by the Supreme Court, of the constitutional claims of servicemen like plaintiff who have not been sentenced to jail or who have been released. [ 180 Ct. Cl. 131, 377 F.2d 586, 592 (1967).]"

 This language was relied upon by the D.C. Circuit in Kauffman v. Secretary of the Air Force, 135 U.S. App. D.C. 1, 415 F.2d 991 (1969) to support its conclusion that habeas corpus is not the exclusive exception to § 876. Both the Kauffman case and the earlier case to the same effect of Gallagher v. Quinn, 124 U.S. App. D.C. 172, 363 F.2d 301 (1966) involved "declaratory judgment" and "mandatory injunction" requests whose jurisdictional basis can only have been 28 U.S.C. § 1361.

 The Third Circuit has recognized without disapproval in Ragoni, supra, that "several courts have held that Article 76 (§ 876) was not intended to bar any collateral attack on court martial decisions", citing Kauffman, supra, and the Court of Claims opinion in Augenblick, supra. Further, Kauffman was cited by the Third Circuit with general approval in Levy v. Parker and Resor, supra. It is interesting to note that in Smith v. McNamara, supra, the 10th Circuit, in the context of a case involving mandamus to a board for the correction of records, did not in its opinion follow the narrow language of Ashe, but the broad ideas of Augenblick and Kauffman.

 The Ashe decision may be read as holding no more than that jurisdiction exists to mandamus the board for the correction of records, but not that jurisdiction does not exist to mandamus the Secretary or other official directly in an appropriate case. This Court finds nothing in Haines or Ragoni to indicate that the Third Circuit has specifically adopted the view that mandamus to the board for the correction of records is the only action for which this Court has jurisdiction under § 1361. The existence of the Board may raise questions under the exhaustion doctrine, but that is a separate issue. To hold that mandamus to the Board is the only action over which this Court has jurisdiction, exhaustion aside, would unnecessarily tie the hands of the Federal Courts and is not a construction of the statute which should be adopted absent the clearest expression of congressional purpose. Such mandamus is only a thinly veiled use of the mandamus power to examine court-martial proceedings in any event. As will be discussed more fully below, in some cases it forces ...

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