Jаroslav SEDIVY v. Elliot L. RICHARDSON, Secretary of Defense of the United States of America, et al., Appellants.
No. 72-2065.
United States Court of Appeals, Third Circuit.
Argued June 21, 1973. Decided Sept. 26, 1973.
485 F.2d 1115
Alexander D. Lehrer, Anschelewitz, Barr, Ansell & Bonello, Asbury Park, N. J., for appellee.
Before VAN DUSEN, ALDISERT and ADAMS, Circuit Judges.
OPINION OF THE COURT
ALDISERT, Circuit Judge.
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, 89 S.Ct. 1683, 23 L.Ed.2d 291 (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 Sergеant First Class Sedivy for possession of amphetamines and marijuana in violation of Articles 92 and 134 of the Uniform Code of Military Justice,
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 authоrities 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.2 The threshold inquiry concerns the authority of the district court to find the facts and reach the legal conclusions on the O‘Callahan issue.
I.
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,
II.
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 Supremе] 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, 89 S.Ct. 1876, 1883, 23 L.Ed.2d 631 (1969) (footnote omitted).
If the Supreme Court articulates such a rule relating to the exercise of appellate jurisdiction over military court-martial matters, it would seem a fortiori that the inferior Article III courts are preсluded 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.3
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 under28 U.S.C. § 2254 , where there is no jurisdiction to review the state judgment, here there can be no review of the final judg-ment 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, 430-431, [83 S.Ct. 822, 844, 9 L.Ed.2d 837] (1963): “The jurisdiсtional 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. Medley, Petitioner, 134 U.S. 160, 173, [10 S.Ct. 384, 388, 33 L.Ed. 835].” Thus the federal court inquiry into “detention simpliciter” is not, jurisprudentially speaking, a review of the state judgment, but an inquiry into whether the constitutional rights of the prisoner were properly vindicated in the proceedings which caused his detention.
Levy v. Parker, supra, 478 F.2d at 779. (footnote omitted)
Even under habeas corpus, the opportunity for its exercise is strictly сontained. ”Gusik v. Schilder, 340 U.S. 128, [71 S.Ct. 149, 95 L.Ed. 146] (1950), established the general rule that habeas corpus petitions from military prisoners should not be entertained by federal civilian courts until all available remedies within the military court system have been invoked in vain.” Noyd v. Bond, supra, 395 U.S. at 693, 89 S.Ct. at 1882.4
III.
Because our issue is tightly constrained, it is important to emphasize what is not before us. This is not habeas corpus. This is not an inquiry into the present detention of a military prisoner following a court-martial adjudication. Noyd v. Bond, supra; O‘Callahan v. Parker, supra; Levy v. Parker, supra; Cole v. Laird, 468 F.2d 829 (5th Cir. 1972). See Fay v. Noia, 372 U.S. 391, 430-431, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). What we have is an equity action preventing the military courts from making findings of fact or from interpreting the law pronounced by the Supreme Court. Our research has disclosed no reported case which has denied military courts the oppоrtunity of finding facts relating to the exercise of their jurisdiction, except Moylan v. Laird, 305 F.Supp. 551 (R.I.1969), which we expressly decline to follow. The Moylan court appears to have ignored the Congressional limitations of
Statutory proscription and precedent aside, it is important to place the military court system in its proper perspective. “Military courts are legislative courts; their jurisdiction is independent of Art. III judicial power.”6 Parisi v. Davidson, 405 U.S. 34, 41 n.7, 92 S.Ct. 815, 819, 31 L.Ed.2d 17 (1972). They function in a procedural and jurisprudential environment tailored to meet military cоnditions. Justice Harlan addressed “. . . considerations [which] require a substantial degree of civilian deference to military tribunals. In reviewing military decisions, we must accommodate the demands of individual rights and the social order in a context which is far removed from those which we encounter in the ordinary run of civilian litigation, whether state or federal. In doing so, we must interpret a legal tradition which is radically different from that which is common in civil courts.” Noyd v. Bond, 395 U.S. at 694, 89 S.Ct. at 1883.
Generally speaking, a serviceman must exhaust remedies within the military judicial system even before habeas corpus recourse may be had to a federal court. “Exhaustion in this context requires completion of all the steps оf review provided within the military. . . . Prior to completion of this process, the civilian courts have not entertained petitions for habeas corpus. See Brown v. McNamara, 387 F.2d 150 (3d Cir. 1967). . . . Exhaustion of these administrative remedies generally seems appropriate under Professor Jaffe‘s analysis. There is reason to have the military develop and decide the disputed questions of fact; the military is theoretically part of a coordinate branch of government entitled to some deference. L. Jaffe, Judicial Control of Administrative Action 424-26 (1965).” McCormack, Federal Court Intervention in Military Courts—Interrelationship of Defenses and Comity, 6 Ga.L.Rev. 532, 553-54 n.89.
Justice Marshall has recently explained the exhaustion requirement within the military justice system:
“The exhaustion dоctrine evolved in the context of collateral attack on state criminal proceedings. See, e. g., Ex parte Hawk, 321 U.S. 114, [64 S.Ct. 448, 88 L.Ed. 572] (1944); Ex parte Royall, 117 U.S. 241, [6 S.Ct. 734, 29 L.Ed. 868] (1886). It generally requires state petitioners to utilize available state court remedies before resorting to federal habeas corpus, and thus serves both to ensure the orderly functioning of state judicial processes, without disruptive federal court intervention, and to allow state courts to fulfill their roles as co-
equal partners with the federal courts in the enforcement of federal law, thus often eliminating the need for federal court action, and avoiding unnecessary friction between state and federal courts. These same considerations inhere in the context of collateral attack in federal court upon the judgments of military tribunals, which constitute a judicial system—a system with its own peculiar purposes and legal traditions—distinct from the federal judicial system much like the independent state judicial systems. Accordingly, this Court normally has required that military petitioners exhaust all available remedies within the military justice system. See Noyd v. Bond, 395 U.S. 683, 693, [89 S. Ct. 1876, 1882, 23 L.Ed.2d 631] (1969); Gusik v. Schilder, 340 U.S. 128, 131-132, [71 S.Ct. 149, 151-152, 95 L.Ed. 146] (1950).” Gosa v. Mayden, supra, 413 U.S. 665, 711, 93 S.Ct. 2926, 2953, 37 L. Ed.2d 873 (Marshall, J., dissenting) (footnotes omitted).7
We perceive the presence of no countervailing circumstances to necessitate a departure from the normal requirement of exhaustion of military remedies before recourse to federal civilian courts.8
It is in the military court that Sergeant Sedivy may present the facts and the appropriate motion to oust military jurisdiction. Those tribunals may freely make the necessary factual determinations and draw conclusions from all the evidence present, including but not limited to the nature of the charges lodged against Sergeant Sedivy, that the seizure of the incriminating evidence was pursuant to a civilian court order, that the incident occurred off-base, that it did not occur in time of war, that Sergeant Sedivy was not on duty, that he was the ranking non-commissioned officer of the Fоrt Monmouth Military Police Company, that a sign on his house trailer announced that he was a first sergeant in the military police, that arrested with him were three Fort Monmouth enlisted men of inferior rank, that a fourth enlisted man under his command arrived at his trailer while the raid was in progress.
Accordingly, we conclude that it was error for the district court to have made the fact findings in the first instance, to have decided the O‘Callahan issue, and to have issued the injunction pursuant to a decision on the merits. The district court should have required the appellee to exhaust remedies in the military court system and not have interfered with its orderly process.
IV.
Although we recognize that a jurisprudential premise of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), is the recognition of comity between courts of two co-equal sovereigns, federal and state, a persuasive case can be made that the doctrine
The judgment of the district court will be reversed and the proceedings remanded with a direction to vacate the injunction and dismiss the complaint.
ADAMS, Circuit Judge (concurring):
I concur with the result reached by the majority but feel constrained to add that the question whether the $10,000 “matter in controversy” requirement of
Sedivy‘s complaint alleges, among other things, violations of his Fifth and Sixth Amendment rights and a matter in controversy exceeding $10,000, exclusive of interest and costs. He sought temporary, preliminary, and permanent restraint against the military authorities, and damages consisting specifically of counsel fees and costs of suit totaling $12,500. For reasons unclear in the record, the Government did not file an answer to Sedivy‘s complaint. But an indication of dispute as to the jurisdiction of the district court to hear the case consisted of a brief colloquy between the court and counsel at trial, during which Government counsel declined to stipulate to the court‘s jurisdiction.1
“The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.”
To meet this $10,000 requirement, the sum asserted by a plaintiff controls unless it appears “to a legal certainty that the claim is really for less than the jurisdictional amount.”2 Sedivy‘s $12,500 claim consists of costs, expressly excluded by the statute, and legal fees, traditionally not awarded by federal courts unless their recovery is provided for by statute or contract.3 It appears, therefore, that Sedivy‘s claim, at least at this point of the litigation, does not satisfy
has not answered the complaint should not bind it to Sedivy‘s jurisdictional allegation, especially in light of the Government‘s specific refusal to stipulate jurisdiction at triаl.
Furthermore, since the federal courts are courts of limited, not general, jurisdiction, it is incumbent on them to exercise utmost care that they do not act beyond the bounds set for them by Congress or the Constitution.5 Even if the Government had stipulated as to jurisdiction, it remained the duty of the district court to satisfy itself that Sedivy‘s claim did not appear “to a legal certainty” to be less than $10,000.6 Parties may not through the stipulation device confer jurisdiction on a federal court when jurisdiction does not otherwise exist.7
The majority asserts that Spock v. David8 does not require a remand for jurisdictional findings. The Spock case differs from this case in three significant respects. First, in Spock there was no specific declination to stipulate, as there is here, to the district court‘s jurisdiction. Secondly, although some of Sedivy‘s constitutional rights arguably are at issue,9 he does not claim that his First Amendment rights are implicated. The plaintiffs in Spock, on the other hand, sought an injunction against interference with rights applicable to freedom of speech and when First Amendment rights are allegedly abridged, courts are likely to be more generous in finding jurisdiction.10 Finally, and probably most importantly, the Spock case involved an appeal from a denial of a preliminary injunction. The Court recognized that the need for expedition at the preliminary hearing in First Amendment cases precluded detailed examination as to whether the “matter in controversy” requirement had been met. Such a determination, this Court reasoned, could be madе at the final hearing:
“The district court assumed that jurisdiction of the Federal court was not at issue, at least with respect to the preliminary injunction. In these circumstances it was understandable that no effort was made to introduce evidence directed specifically to the value of the claimed rights. This was, after all, not a final hearing, but a hearing on a motion for a preliminary injunction. Since as the record of the district court comes before us the allegation of jurisdictional amount remains untraversed, and we cannot say as a legal certainty that the plaintiffs will never be able to establish their jurisdictional amount claim, we must proceed on the same assumption as did the district court.”11 (Emphasis supplied)
The Court in Spock went on to indicate that there was a strong likelihood at a final hearing that the plaintiffs could meet the $10,000 requirement.12 The case at hand is in a much different posture. After a hearing, the military authorities were permanently enjoined. There is no further proceeding in which the district court can consider fully the
If consideration of the jurisdictional problem ended here, I would be impelled to urge a dismissal of this case, since it does not appear from the record that the $10,000 requirement has been met. But the Supremе Court, in cases involving pre-induction challenge to the authority of local boards to draft particular individuals, has exhibited some willingness to overlook suspect allegations of amounts in controversy, decide the merits of the dispute, and then remand for a jurisdictional determination if the decision on the merits was in favor of the petitioner. The pre-induction challenge cases are somewhat similar to the present one in that the plaintiffs in both seek to enjoin imminent detention rather than delay their challenges to the detaining agencies’ authority until those agencies have acted.13
In Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), a ministry student sought an injunction in a district court after a draft board had withdrawn his exemption. The Supreme Court held that the Government could not deprive a ministry student of his statutory exemption after he had turned in his registration certificate to the Government in protest of the Viet Nam War, even though the statute on its face precluded pre-induction judicial review of a registrant‘s classification. However, the Supreme Court, reversed and remanded to the district court “where petitioner must have the opportunity . . . to demonstrate that he meets the jurisdictional requirements of
The approach to the jurisdictional question in Oestereich is troublesome. It would seem that if the district court in Oestereich lacked original jurisdiction under
In Fein v. Selective Service System Local Board No. 7, 405 U.S. 365, 92 S.Ct. 1062, 31 L.Ed.2d 298 (1972), the Supreme Court again addressed question whether a petitioner was entitled to pre-induction review without first determining whether
Although this approach might be considered inconsistent with the convention-
In reversing the district court here, we would appear to be following the Supreme Court‘s lead in Fein. There, as we do here, the Supreme Court found against the petitioner on the merits, thereby rendering a remand to the district court for a jurisdictional determination unnecessary.21
A decision that the
Notes
‘An analogy is a petition for habeas corpus in the federal court challenging the jurisdiction of a state court. If the state procedure provides a remedy, which though available has not been exhausted, the federal courts will not interfere.
The policy underlying that rule is as pertinent to the collateral attack of military judgments as it is to collаteral attack of judgments rendered in state courts. If an available procedure has not been employed to rectify the alleged error which the federal court is asked to correct, any interference by the federal court may be wholly needless. The procedure established to police the errors of the tribunal whose judgment is challenged may be adequate for the occasion. If it is, any friction between the federal court and the military or state tribunal is saved. Such a principle of judicial administration is in no sense a suspension of the writ of habeas corpus. It is merely a deferment of resort to the writ until other corrective procedures are shown to be futile.’ Id., 340 U.S. at 131-132, 71 S.Ct. 151-152.” Noyd v. Bond, supra, 395 U.S. at 693-694, 89 S.Ct. at 1882. Sedivy‘s complaint sought to assert a cause of action based on false imprisonment. At oral argument his counsel adverted to pension benefits Sedivy risked losing if the military authorities were not enjoined. Had Sedivy linked a money claim to the false imprisonment charge, or set out in his complaint the
In Parisi the Court stated:
405 U.S. at 40-41, 92 S.Ct. at 819. (footnotes omitted)Although this argument, too, is framed in terms of “exhaustion,” it may more accurately be understood as based upon the appropriate demands of comity between two separate judicial systems. Requiring the District Court to defer to the military courts in these circumstances serves the interests of comity, the respondents argue, by aiding the military judiciary in its task of maintaining order and discipline in the armed services and by eliminating “needless friction” between the federal civilian and military judicial systems. The respondents note that the militаry constitutes a “specialized community governed by a separate discipline from that of the civilian.” Orloff v. Willoughby, 345 U.S. 83, 94, 73 S.Ct. 534, 97 L.Ed. 842; Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146, and that in recognition of the special nature of the military community, Congress has created an autonomous military judicial system, pursuant to Art. I, § 8, of the Constitution. They further point out that civilian courts, out of respect for the separation-of-powers doctrine and for the needs of the military, have rightly been reluctant to interfere with military judicial proceedings.
The concept of “exhaustion” in the context of the demands of comity between different judicial systems is closely analogous to the doctrine of abstention. For a discussion of the exhaustion аnd abstention doctrines in the federal-state context, see generally, C. Wright, Handbook of the Law of Federal Courts 186-188, 196-208 (2d ed. 1970).
405 U.S. at 40, n. 6, 92 S.Ct. at 819.
We must confess to a less than complete understanding how the doctrine of comity may properly apply to two court systems functioning under the same sovereign, since the doctrine is conceptualized on court systems of separate sovereigns. Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95 (1895). Justice Douglas observes:
Parisi v. Davidson, 405 U.S. at 51, 92 S.Ct. at 825 (concurring in the result).Comity is “a doctrine which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.” Darr v. Burford, 339 U.S. 200, 204, [70 S.Ct. 587, 598, 94 L.Ed. 761]. But the Pentagon is not yet sovereign. The military is simply another administrative agency, insofar as judicial review is concerned. Cf. Comment, 43 S. Cal.L.Rev. 356, 377-378. While we have stated in the past that special deference is due the military decision-making process, Gusik v. Schilder, 340 U.S. 128, [71 S.Ct. 149, 95 L.Ed. 146], this is so neither because of “comity,” nor the sanctity of the Executive Branch, but because of a concern for the effect of judicial intervention on morale and military discipline, and because of the civilian judiciary‘s general unfamiliarity with “extremely technical provisions of the Uniform Code [of Military Justice] which have no analogs in civilian jurisprudence,” Noyd v. Bond, supra, at 696, 89 S.Ct. at 1884.
Perhaps the concept of “exhaustion” in the context of district court-military court relations is more closely analogоus to the doctrine of primary jurisdiction. “The doctrine of primary jurisdiction, like the rule requiring exhaustion of administrative remedies, is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties. ‘Exhaustion’ applies where a claim is cognizable in the first instance by an administrative agency alone; judicial interference is withheld until the administrative process has run its course. ‘Primary jurisdiction,’ on the other hand, applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case, the judicial process is suspended pending referral of such issues to the administrative body for its views. General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 433, [60 S.Ct. 325, 331, 84 L.Ed. 361].” United States v. Western Pac. R. Co., 352 U.S. 59, 63-64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956). 469 F.2d 1047 (3d Cir. 1972).