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Brown v. United States

decided as amended january 24 1975.: December 31, 1974.



Adams, Hunter and Garth, Circuit Judges. Adams, Circuit Judge, concurring. Garth, Circuit Judge, dissenting.

Author: Hunter


HUNTER, Circuit Judge:

This is a class action brought by individuals who were convicted by special courts martial that were convened by officers in the United States Navy and Marine Corps under what the United States Court of Military Appeals subsequently held was an improper conferral of convening authority by the Secretary of the Navy under Article 23(a)(7), UCMJ, 10 U.S.C. § 823(a)(7) (1970). United States v. Greenwell, 19 U.S.C.M.R. 460 (1970). The plaintiffs claim that the Greenwell decision renders their convictions void and they seek to have their military records corrected accordingly. They also seek to recover the forfeiture of pay and allowances adjudged at their courts-martial as well as other damages.

The determinative question in this appeal is whether the decision of the United States Court of Military Appeals in Greenwell should be given prospective or retrospective application.*fn1 If that case is given retrospective effect, the plaintiffs have what appears to be a good cause of action. On the other hand, if it is limited to prospective application only, a good cause of action is not stated.

This issue was presented to the district court by way of cross motions for summary judgment and that court ruled that Greenwell should only be given prospective application. As a result, the defendants' motion was granted and the plaintiffs filed this appeal. We have concluded that the district court's decision was correct and accordingly affirm.

In Greenwell, the special court-martial that convicted and sentenced the defendant was convened by the Commanding Officer, Student Company, Marine Corps Base, Camp Pendleton, California. That commander had gained the authority to convene special courts-martial when the Commanding General of Camp Pendleton designated Student Company a "separate and detached command for disciplinary purposes." Under the language of section 0103b(5), Manual of the Judge Advocate General, Department of the Navy, this designation automatically conferred convening authority upon the commanding officer of the unit so designated. That section read as follows:

"b. Special courts-martial. In addition to those officers otherwise authorized [to convene special courts-martial] by article 23(a)(1) through (6), UCMJ, [10 U.S.C. § 823(a)(1)-(6) (1970)] the following officers are under the authority granted to the Secretary of the Navy by article 23(a)(7), UCMJ, empowered to convene special courts-martial:

"(5) All commanding officers and officers in charge of commands now or hereafter designated as separate or detached commands by a flag or general officer in command. . . ."

In Greenwell, the United States Court of Military Appeals decided that conferral of special court-martial convening authority by the method set forth in section 0103b(6), JAG Manual, was illegal. The court began its discussion by noting that that section was explicitly designed to grant convening authority solely pursuant to the Secretary of the Navy's statutory authority under Article 23(a)(7), UCMJ, 10 U.S.C. § 823(a)(7) (1970). It then observed that under Article 23(a)(7) only commanding officers who are "empowered by the Secretary concerned" can convene special courts-martial, and interpreted this language to mean that the granting of convening authority under 23(a)(7) could only be effective if that power was personally conferred by the Secretary himself.*fn2

Under this view of the statute, the conferral of convening authority upon the Commanding Officer of Student Company under the procedure set forth in section 0103b(5), JAG Manual, became suspect since he did not receive his authority directly from the Secretary. Instead, the Secretary conferred convening authority upon the commanding officers of all commands designated as "separate or detached" by a flag or general officer in command. It was only when the Commanding General at Camp Pendleton conferred that designation on Student Company that the Secretary's authority was, in turn, conveyed to its commanding officer.

The court felt that under this two-step procedure, the Secretary had, in effect, delegated his power to grant convening authority under Article 23(a)(7) to the general officers that designated units as "separate or detached." As a result, the court concluded that conferral of that power on the Commanding Officer of Student Company was invalid and that courts-martial convened by commanders operating under authority conveyed by the two-step procedure set out in section 0103b(5), JAG Manual, were void.

The appellants, in the present case, present two arguments to support their claim that this decision in Greenwell has retroactive effect. Their first claim is that the parties to this case have already litigated the issue before the United States Court of Military Appeals and that that court ruled that Greenwell was retroactive. Thus, they contend that the appellees are barred from relitigating the issue under the doctrine of collateral estoppel. Their second claim is that Greenwell is retroactive in any case under the relevant judicial tests.


The appellants' collateral estoppel claim rests upon the decision of the Court of Military Appeals in Ferry v. United States, 22 U.S.C.M.A. 339 (1973). In that case, the government, by certificate of the Judge Advocate General of the Navy, initiated an appeal to the highest military court in a case involving a member of the plaintiff class. The defendant Ferry had been convicted of a crime and at the trial's sentence proceedings the government had sought to have a prior conviction introduced. This request was denied because the prior conviction was rendered by a special court martial convened by a commander who had received his convening authority under the procedure subsequently ruled improper in Greenwell.

The government, in its appeal in Ferry, contended that this prior conviction was not in any way affected by Greenwell because it had been completed before the Greenwell decision was handed down. Thus, the question certified to the Court of Military Appeals read as follows:

"Does the decision of the United States Court of Military Appeals in United States v. Greenwell, 19 USCMA 460, 2 CMR 42 (1970), have retroactive application, so as to render Prosecution Exhibit 3 (the record of conviction by a 1969 special court-martial convened pursuant to the JAG Manual provision found to be legally ineffective in Greenwell) inadmissible in evidence?"

We agree with the appellant when he suggests that the retroactivity issue presented in the instant case was also squarely presented to the court in Ferry. However, this fact alone does not make collateral estoppel operative since that doctrine only precludes "the relitigation of issues actually decided in former judicial proceedings." Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, 844 (3d Cir. 1974) (emphasis added); accord, Blonder Tongue Laboratories, Inc. v. University Foundation, 402 U.S. 313, 323, 91 S. Ct. 1434, 28 L. Ed. 2d 788 (1971); Lynne Carol Fashions, Inc. v. Cranston Print Works Co., 453 F.2d 1177, 1182 (3d Cir. 1972).

In Ferry, the actual decision of the court did not reach the question certified to the court. Instead, Judge Quinn, writing the opinion of the court, framed his decision as follows:

"Whatever effect Greenwell may have on a conviction in other situations, we have no doubt that a conviction invalid under Greenwell cannot be used to increase the sentence for a later offense. . . ." 22 U.S.C.M.A. at 340.

Thus, he specifically limited his holding to the facts presented in that case and refrained from deciding the broad question presented by the litigants.

Since Chief Judge Darden's concurring opinion indicates an intent to follow Judge Quinn's decision on this issue,*fn3 we conclude that the majority of the court in Ferry did not reach the question of Greenwell's overall retroactivity. As a result, the Ferry decision does not bind us on that issue and we are free to decide it in this litigation.*fn3a


When we look to the merits of the retroactivity issue, we are faced at the outset with a threshold requirement that must be met before a limitation on the retroactivity effect of a decision can even be considered. In Chevron Oil Co. v. Huson, 404 U.S. 97, 30 L. Ed. 2d 296, 92 S. Ct. 349 (1971), the Supreme Court indicated that,

". . . the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied . . . or by deciding an issue of first impression whose resolution was not clearly foreshadowed. . . ." Id. at 106.

Appellant contends that this threshold requirement is not met. We cannot agree. While no past precedent was overruled by Greenwell, we feel the case did decide "an issue of first impression whose resolution was not clearly foreshadowed" so that it falls within the second part of the test laid out in Chevron Oil.

The only case we are referred to that arguably touched on the issue in Greenwell before that case was decided is United States v. Ortiz, 15 U.S.C.M.A. 505 (1965), petition for reconsideration denied, 16 U.S.C.M.A. 127 (1966). In that case, as in Greenwell, the legality of the conveyance of special court-martial convening authority to a company commander under section 0103b(5), JAG Manual, was under review. However, at the time of the Ortiz decision, section 0103b(5), JAG Manual, was written in a way that made it unclear whether that section conferred the special court-martial convening authority enumerated in Article 23(a)(6), UCMJ, or the authority enumerated in Article 23(a)(7).*fn4 Thus, in Ortiz the court first concluded that section 0103b(5), JAG Manual, only conferred the convening authority that is outlined in Article 23(a)(6) and only then went on to hold that the procedure outlined in that section was improper.

By first interpreting section 0103b(5), JAG Manual, in this way, the court was able to limit itself to a single statutory question; that is, the validity of section 0103b(5), JAG Manual, as a conveyance of Article 23(a)(6) authority. By the time the Greenwell case arose, however, section 0103b(5), JAG Manual, had been re-written so that the section no longer conferred Article 23(a)(6) convening authority and instead unequivocally conferred the convening authority enumerated in Article 23(a)(7). As a result, the court in that case had to decide the issue that the Ortiz court avoided: the validity of section 0103b(5), JAG Manual, as a conveyance of Article 23(a)(7) convening authority. Thus, the issue decided in Ortiz was entirely distinct from the issue decided in Greenwell and the Greenwell decision involved an issue of "first impression" within the meaning of the Chevron Oil case.

Moreover, we cannot conclude that the Greenwell decision was "clearly foreshadowed" by the decision in Ortiz. Indeed, the court in Ortiz closed its opinion denying the government's petition for reconsideration with the following statement:

"In summary, as we said before, we have no reservations about the broad powers of the Secretary of the Navy under Code, supra, Article 23(a)(7), to empower commanding officers, such as that of the 2d Bridge Company, to convene special courts-martial. In the regulations before us, he has not done so. In consequence, we adhere to our original opinion and reaffirm our previous decision in the case." 16 U.S.C.M.A. at 131.

Thus, the decision in Ortiz did not clearly foreshadow the narrow reading of Article 23(a)(7) announced in Greenwell. On the contrary, it specifically affirmed the Secretary's "broad" power under that Article.*fn5

As a result, we believe that the Greenwell decision fits the second part of the Chevron Oil test. It decided "an issue of first impression whose resolution was not clearly foreshadowed." 404 U.S. at 106. We conclude therefore that it is a decision that can properly be considered for prospective application under the relevant judicial criteria.

The next question that must be resolved is precisely what criteria should be used in order to decide whether Greenwell is to be given prospective or retroactive effect. The government assumes that the relevant criteria are those set out in Stovall v. Denno, 388 U.S. 293, 297, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967). The appellants, however, strongly suggest that the rule set out in Robinson v. Neil, 409 U.S. 505, 35 L. Ed. 2d 29, 93 S. Ct. 876 (1973) and United States v. U.S. Coin & Currency, 401 U.S. 715, 28 L. Ed. 2d 434, 91 S. Ct. 1041 (1971) must be applied.

In Gosa v. Mayden, 413 U.S. 665, 37 L. Ed. 2d 873, 93 S. Ct. 2926 (1973), the dissenting opinion of Justice Marshall summarized the decisions relied upon by the appellants in the following way:

"Robinson involved the retroactive application of the decision in Waller v. Florida, 397 U.S. 387, 25 L. Ed. 2d 435, 90 S. Ct. 1184 (1970), that the Fifth Amendment's guarantee, made applicable to the States through the Fourteenth Amendment, that no person should be put twice in jeopardy for the same offense barred an individual's prosecution for a single offense by both a State and a municipality of the State, that is, a legal subdivision of the State. U.S. Coin & Currency held retroactive the Court's prior determination that the Fifth Amendment privilege against compulsory self-incrimination barred the prosecution of gamblers for failure to register and to report illegal gambling proceeds for tax purposes, see Marchetti v. United States, 390 U.S. 39, 19 L. Ed. 2d 889, 88 S. Ct. 697 (1968); Grosso v. United States, 390 U.S. 62, 19 L. Ed. 2d 906, 88 S. Ct. 709 (1968).

In deciding whether to give retroactive effect to Waller, Marchetti, and Grosso, the Court rejected contentions that it should apply the three-prong test employed in cases such as Stovall [v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967)], Desist [v. United States, 394 U.S. 244, 22 L. Ed. 2d 248, 89 S. Ct. 1030 (1969)], and DeStefano [v. Woods, 392 U.S. 631, 88 S. Ct. 2093, 20 L. Ed. 2d 1308 (1968)]. In U.S. Coin & Currency, Mr. Justice Harlan, speaking for the Court, explained:

'Unlike some of our earlier retroactivity decisions, we are not here concerned with the implementation of a procedural rule which does not undermine the basic accuracy of the factfinding process at trial. Linkletter v. Walker, 381 U.S. 618 [, 14 L. Ed. 2d 601, 85 S. Ct. 1731] (1965); Tehan v. Shott, 382 U.S. 406 [, 15 L. Ed. 2d 453, 86 S. Ct. 459] (1966); Johnson v. New Jersey, 384 U.S. 719 [, 86 S. Ct. 1772, 16 L. Ed. 2d 882] (1966); Stovall v. Denno, 388 U.S. 293 [, 18 L. Ed. 2d 1199, 87 S. Ct. 1967] (1967). Rather, Marchetti and Grosso dealt with the kind of conduct that cannot constitutionally be punished in the first instance.' 401 U.S., at 723.

"The Robinson Court adopted essentially the same view of the Waller decision concerning the Double Jeopardy Clause and multiple prosecutions by different legal subdivisions of a single sovereign. See 409 U.S., at 508. In this case, too, we are concerned, not with 'the implementation of a procedural rule,' but with an unavoidable constitutional impediment to the prosecution of particular conduct." Id. at 700-01.

Appellants contend that the instant case presents an analogous situation because the Greenwell decision involved a question of jurisdiction. Thus, they conclude that the decision must be given retroactive application. Appellants summarize this position in the following way:

"Likewise, where as here the court lacked jurisdiction or power to proceed, the question of the reliability of its fact-finding processes does not even arise. Inquiry must stop at the threshold question whether the court had the power to engage in fact-finding processes at all." Brief of Appellants at 24.

This argument has much to recommend it, and, in fact, resulted in a 4-4 split amongst the Justices of the Supreme Court in Gosa. However, in this Circuit, the issue is not one of first impression. In McSparran v. Weist, 402 F.2d 867 (1968), cert. denied, 395 U.S. 903, 89 S. Ct. 1739, 23 L. Ed. 2d 217 (1969), Judge Freedman, speaking for the Third Circuit sitting en banc, held that a decision limiting federal diversity jurisdiction should be given prospective application only. In so holding the court stated the following:

"It is true that we deal here with a jurisdictional question. But the notion that 'jurisdiction' is a subject of some magical quality so that a decision against jurisdiction prevents according recognition to other relevant considerations must yield to the knowledge that it is our construction of the statute which determines in the present case whether jurisdiction exists or is absent." Id. at 877.

We feel that this holding effectively precludes us from ignoring the criteria that are normally weighed in determining whether a decision should be given prospective or retroactive effect.

Appellants, however, assert (in effect) that this holding was overruled by the Supreme Court in Gosa. They reach this conclusion by adopting the following assessment of the plurality opinion in Gosa :

"Mr. Justice Blackmun's plurality opinion, by its efforts to establish that O'Callahan v. Parker, 395 U.S. 258 [, 23 L. Ed. 2d 291, 89 S. Ct. 1683] (1969), was not a decision dealing with jurisdiction in its classic form, implicitly acknowledges that if O'Callahan were in fact concerned with the adjudicatory power -- that is, the jurisdictional competency -- of military tribunals, its holding would necessarily be fully retroactive in effect . . .." Gosa, 413 U.S. at 693-94 (Marshall, J. dissenting) (citation omitted).

We cannot accept this interpretation of the plurality opinion. While it did discuss the procedural rights that were effected by the O'Callahan decision, it never denied the fact that that decision spoke to a jurisdictional issue. Thus, since there has been no determinative ruling by the Supreme Court on this question, we are bound by McSparran. As a result, we must look beyond the jurisdictional nature of Greenwell and decide the prospectivity question according to the criteria set out in Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967). See United States v. Zirpolo, 450 F.2d 424, 432 (3rd Cir. 1971).*fn6

In Stovall v. Denno the Court stated that the criteria guiding a decision on retroactivity are: " a) the purpose to be served by the new standards; b) the extent of the reliance by law enforcement authorities on the old standards, and c) the effect on the administration of justice of a retroactive application of the new standards." 388 U.S. at 297. However, the most important of these three criteria is the first one. Desist v. United States, 394 U.S. 244, 22 L. Ed. 2d 248, 89 S. Ct. 1030 (1969). As this court stated in United States v. Zirpolo, supra,

"generally, rulings not primarily designed to enhance the reliability of the fact-finding or truth-determining process have not been ...

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