502 F.Supp.3d 322
D.D.C.2020Background
- Steven M. Larrabee retired from the U.S. Marine Corps in 2015 and transferred to the Fleet Marine Corps Reserve (a component composed of retired active-duty members who receive retainer pay and may be recalled).
- In November 2015, after retirement, Larrabee assaulted and recorded a civilian; he was tried by general court-martial, convicted, and sentenced.
- Military appellate courts (N-M. Ct. Crim. App. and the CAAF) affirmed the conviction, relying on precedent that deferred to Congress' determinations about court-martial jurisdiction over retirees; the Supreme Court denied certiorari.
- Larrabee filed a collateral constitutional challenge in federal district court arguing Article 2(a)(6) of the UCMJ (10 U.S.C. § 802(a)(6)) unconstitutionally extends court-martial jurisdiction to Fleet Marine Corps Reserve retirees and violated jury/grand‑jury and impartial-judge rights.
- The parties filed cross-motions for judgment on the pleadings; the district court concluded there were no material factual disputes and held, as a matter of law, that Congress' blanket extension of court-martial jurisdiction to Fleet Marine Corps Reserve retirees is unconstitutional.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Congress may constitutionally subject Fleet Marine Corps Reserve retirees to court-martial jurisdiction | Larrabee: retirees are not within the Constitution's "land and naval Forces" and thus not subject to military trial | Government: Congress designated retirees as part of the forces; courts should defer (Solorio) | Court: Unconstitutional as applied to all Fleet Marine Corps Reserve retirees—Congress did not show necessity for good order and discipline |
| Whether receipt of retainer/retired pay justifies jurisdiction | Larrabee: retired/retainer pay is deferred pay for past service, not current service | Government: retainer pay evidences continued service/availability and supports jurisdiction | Court: Retainer/retired pay alone is insufficient to constitutionalize court-martial jurisdiction |
| Whether the possibility of recall to active duty justifies jurisdiction | Larrabee: recall is unlikely for many retirees and Reservists (who are more likely to be recalled) are treated differently | Government: potential recall and statutory recall authority justify deference to Congress | Court: Mere potential for recall does not prove jurisdiction is necessary for maintaining discipline |
| Standard of review for collateral jurisdictional challenge | Larrabee: de novo review for structural/jurisdictional questions | Government: review should be "searching and deferential" to military judgments | Court: Applied de novo review to this structural jurisdictional claim and found the statutory expansion unconstitutional |
Key Cases Cited
- Toth v. Quarles, 350 U.S. 11 (1955) (court-martial jurisdiction must be narrowly limited; jurisdictional defects reviewed without deference)
- Reid v. Covert, 354 U.S. 1 (1957) (military trials are a narrow exception to civilian jury trial protections)
- Solorio v. United States, 483 U.S. 435 (1987) (courts should defer to Congress on the scope of court-martial jurisdiction over servicemembers)
- Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960) (status test: whether the accused falls within the term "land and naval Forces")
- Barker v. Kansas, 503 U.S. 594 (1992) (military retirement pay is appropriately characterized as deferred pay for past service)
- Ex parte Milligan, 71 U.S. 2 (1866) (right to jury trial preserved for those not in active military service)
- McElroy v. United States ex rel. Guagliardo, 361 U.S. 281 (1960) (court-martial cannot constitutionally try civilian employees)
- Burns v. Wilson, 346 U.S. 137 (1953) (discusses discipline-related demands relevant to military jurisdiction)
- Anderson v. Dunn, 19 U.S. 204 (1821) (constitutional instruction to limit court-martial power to the least possible adequate scope)
- United States v. Tyler, 105 U.S. 244 (1881) (historical treatment of retired pay as reduced compensation)