Richard E. Brown, on Behalf of Himself and All Others Similarly Situated v. United States of America, Richard E. Brown and David l.taylor

ADAMS, Before HUNTER and GARTH, Judges. Circuit THE COURT OF OPINION Judge: HUNTER, III, Circuit JAMES by indi- brought This is a class action by special convicted viduals who were by of- were convened courts-martial Navy and ficers the United States United what Corps under Marine subse- Appeals Military Court of conferral improper held was an quently Secretary by the convening authority 23(a)(7), Article Navy under 823(a)(7) UCMJ, 10 § U.S.C. Greenwell, 19 U.S.C. States v. claim plaintiffs M.A. their renders the Greenwell decision have they seek void convictions accord- military records corrected their for- recover also seek to ingly. They adjudged allowances pay feiture other well as their courts-martial damages.

The determinative appeal is whether the Appeals Military United States prospective given in Greenwell If application.1 retrospective 1) 76, UCMJ, preliminary appellees Article ob 10 U.S.C. 1. The do raise two meritorious, which, jections bars on a would lead collateral attack court- if except through martial appeal conviction a decision on writ of without dismissal corpus; 2) habeas we do not the entire action issue. judicata. is barred are: res claims the doctrine of that either has merit. These feel that convicted and convene Base, ton commander ant Officer, tive court section nary purposes.” Under Commanding Advocate cation mary good cause of action. On the other case is ants’ motion was tiffs filed this correct and ed that the district court’s decision was stated. arate Navy, plaintiffs hand, Greenwell This issue designated application. As a was convened Greenwell, judgment Camp by if it is limited to only, good this designation 0103b(5), Student given retrospective special courts-martial when the way detached have what General, had accordingly Pendleton, was General of cross motions for sum- appeal. Student and the gained Company, Marine presented granted only Manual sentenced the defend- command for cause of action is not that court special Department result, of appears We have conclud- the prospective California. Company “sep- the affirm. the given prospec- Camp and the of the to the automatically court-martial Commanding authority language the defend- effect, ruled to be a discipli- Pendle- district Judge plain- Corps appli- That that of ral of thority suant that that section was (1970). It then ticle 23(a)(7), UCMJ, statutory The court ferred concerned” can convene martial, fective if who are mean that the thority UCMJ, empowered tached commands hereafter courts-martial: officers officer in command. grant convening authority solely pur- Military Appeals decided that confer- “(5) 0103b(6), Greenwell, 23(a)(7) only commanding s)c special to the by All that “empowered by began the method set forth in sec- designated authority charge interpreted this court-martial commanding power 23(a)(7) JAG Secretary granting Secretary observed the United States Court its discussion í}¡ 10 U.S.C. § of commands now or Manual, by flag to convene explicitly designed could as a sfc of . under Article himself.2 that under Ar- separate of the personally special the convening convening officers and . language was >Js or by noting Secretary . 823(a)(7) ” general officers courts- special Navy’s illegal. be ef- or de- ^[*] con- au- au- convening authority upon the conferred Under statute, this view of the commanding desig- of the unit so officer conferral of convening authority upon nated. That section read as follows: the Commanding Officer of Student Special “b. courts-martial. In addi- Company under procedure set forth tion to autho- those officers otherwise in 0103b(5), section Manual, JAG became special rized convene courts-mar- suspect [to since he did not receive his au- 23(a)(1) through by article thority directly tial] from the Secretary. In- UCMJ, 823(a)(l)-(6) stead, U.S.C. § the Secretary [10 conferred convening are, (1970)] un- following officers authority upon the commanding officers authority granted der the Secre- of all designated commands “separate tary 23(a)(7), Navy by article or detached” flag general or officer the claim discussed the district and will be sion. tention Act government case. As a must Finally, jurisdiction, it had mandamus plaintiffs’ reach the merits that first The second claim based on its decision. we should note court, the district result, rejected concedes the district contention underlying Brief since without jurisdiction. F.Supp. court erred court we Appellee at cause is there ultimately reject further appellees’ con- without appeal exhaustively Opinion in we Since 332-336 Tucker finding discus- 24, we action, reject merit any 2. Article there is no need to plaintiffs mandamus on this pand charge vened powered by 823(a)(7) (1970), “(a) “(7) or ^[******] question narrow the remedies by— Special if 23(a)(7), they prevailed any commanding would do no more courts-martial other command when em- Secretary reads as follows: finally exists since UCMJ, officer on the merits. concerned.” decide available to the 10 U.S.C. officer in than whether be con- ex- only when the government, It was appeal command. in its in Fer- Camp Pendle- Commanding ry, prior General contended that this conviction designation on Stu- way ton conferred was not affected Green- Secretary’s au- Company that well completed dent because had been be- was, turn, its com- conveyed to thority fore the Greenwell decision was handed manding officer. down. certified to Military Appeals the Court of read as two-step The court felt under this had, effect, follows: Secretary procedure,

delegated power grant convening his “Does the decision of the United 23(a)(7) authority under Article Military Appeals States Court general designated officers that units as Greenwell, United States USC- result, “separate or detached.” As a MA have retro- CMR 42 concluded that conferral of court application, active render so as to Commanding on the Officer of (the Prosecution Exhibit 3 record Company was invalid and that Student by conviction a special court-mar- convened courts-martial commanders pursuant tial convened to the JAG operating authority conveyed provision Manual legally found to be two-step procedure set out in section Greenwell) ineffective in inadmissible 0103b(5), Manual, JAG were void. in evidence?” appellants, case,

The present arguments support two present their We agree with the appellant claim this decision in Greenwell suggests has when he that the retroactivity retroactive presented effect. Their first claim is issue in the instant case was parties that the to this case have also already squarely presented to the court in litigated the Ferry. However, issue before the United this fact alone does Court of Military Appeals States not make estoppel collateral operative that that court ruled that since Greenwell was that doctrine only precludes “the Thus, they relitigation retroactive. contend actually issues decided in appellees are relitigating judicial barred from former proceedings.” Scooper the issue under the Dooper, doctrine of collateral Inc. v. Corp., Kraftco 494 F.2d estoppel. (3d Their 1974) second claim is that added); Cir. (emphasis accord, Greenwell is retroactive in case un- Tongue Laboratories, Blonder judicial Foundation, der relevant Inc. v. University tests. 313, 323, I. (1971); Lynne Fashions, Carol Inc. v. appellants’ estoppel Co., collateral Cranston Print Works 453 F.2d upon 1972). claim rests Military Appeals Court of in Ferry v. In Ferry, the actual decision of the U.S.C.M.A. court did not reach question certified case, In that government, by certifi- to the Instead, court. Quinn, Judge of the Judge cate General of Advocate writing opinion court, framed Navy, appeal initiated an his decision as follows: highest military involving court in a case “Whatever effect Greenwell have a plaintiff member of the class. The on a situations, conviction in other we Ferry defendant had been convicted of a have no doubt that a conviction invalid crime and at the proceed- trial’s sentence under Greenwell cannot be used to in- ings government sought had to have crease the sentence for a later offense. prior conviction introduced. This re- ” . . . 22 U.S.C.M.A. at 340. quest prior was denied because the con- special viction was rendered court

martial convened a commander who he specifically limited his convening authority presented had received his un- to the facts case and in that procedure subsequently ques- der the im- refrained deciding ruled from broad proper presented in Greenwell. tion litigants. concurring only Judge Darden’s case we are referred Since Chief arguably an intent touched on opinion indicates to follow the issue in Green- issue,3 Quinn’s decision on this we well before that case was Judge decided is Ortiz, majority that the of the court United conclude U.S.C.M.A.505 petition not reach the Ferry did reconsideration de- nied, retroactivity. As a GreenweFs overall 16 U.S.C.M.A. 127 In that result, case, Greenwell, Ferry legality decision does not bind as in conveyance special we are free to de us that issue and court-martial con- vening litigation.3a authority company cide it in this to a com- 0103b(5),

mander under section Manual, JAG was under review. II. decision, the time of the Ortiz section When we look to the merits of the Manual, 0103b(5), JAG was written issue, we are faced at the way that made it unclear whether that outset with a threshold requirement that special section conferred the court-mar- must be met before a limitation on the convening tial authority enumerated in retroactivity effect of a decision can 23(a)(6), UCMJ, Article authority or the even be considered. In Chevron Oil Co. 23(a)(7).4 Thus, enumerated in Article Huson, the court Ortiz first concluded that sec- 0103b(5), Manual, only JAG con- that, indicated convening authority ferred the “. the decision to be 23(a)(6) outlined Article then nonretroactively must establish a new went on procedure to hold that the out- principle law, either overruling lined in that section improper. was past precedent clear litigants may have relied . . or de- By first interpreting 0103b(5), section ciding an issue impression of first Manual, JAG in way, this the court was whose resolution clearly was not fore- able to limit single itself to a statutory ”

shadowed. . Id. at is, question; validity that of section S.Ct. at 355. 0103b(5), Manual, JAG a conveyance as

Appellant 23(a)(6) of Article authority. By the contends that arose, threshold time the requirement however, Greenwell case not met. We agree. 0103b(5), cannot section Manual, past precedent While no JAG had been by Greenwell, overruled re-written so that the longer we feel the section no case did 23(a)(6) decide “an conferred Article impres convening issue first au- sion thority whose unequivocally resolution instead clearly was not con- foreshadowed” so ferred the convening authority that it falls within the enumer- part second 23(a)(7). result, ated Article the test laid out in As a Chev ron OH. court in that case had to decide the issue 3a. sumption sue reads as follows: poses. purpose that ticular a decision Chief dates hibits the use of a conviction that accused in a United States It “I concur in they purpose only. Judge without could order well the court cannot be retroactive enhance retroactivity Reply Darden’s incorrect, be, subsequent v. Greenwell being Judge Brief of appellant retroactive Thus, Quinn’s Ferry apparently discussion punishment trial.” appellants our decision fact even . suggests, determination that for all . of this is- if this as- it invali- . it was single at 9. pur- pro- that par- felt 4. These sections us in this case. made powered rate or detached command or vened tached units of placed purpose; “(a) Special charge (6) (7) broad issue of ^[******] means by— under or commanding commanding that courts-martial other command read as follows: single Secretary any that court did not decide retroactivity of the armed commander officer of officer or officer in concerned.” may group that when any sepa- be con- for this is before forces of de- em- be used in order to decide whether the validi- avoided: the Ortiz court Greenwell is to given Manual, prospective as a 0103b(5), section JAG ty of retroactive effect. government convening 23(a)(7) as- Article conveyance of sumes the relevant criteria Thus, decided Or- the issue authority. those set out in Denno, Stovall v. the issue from entirely distinct tiz was 293, 297, Greenwell and the L.Ed.2d in Greenwell decided The appellants, however, im- of “first an issue involved strongly suggest that meaning of the the rule set within out in pression” Neil, Robinson v. Oil case. Chevron 876, 35 L.Ed.2d (1973) and United Moreover, we conclude that cannot States United States Coin & Currency, “clearly fore- decision was Greenwell 28 L.Ed.2d In- by the decision Ortiz. shadowed” (1971) must applied. deed, opinion court in Ortiz closed its In Gosa v. Mayden, 413 petition for government’s denying following state- with the reconsideration dissenting opinion of Justice Marshall ment: summarized the decisions upon relied before, we we said summary, as “In the appellants in the following way: about the broad have no reservations “Robinson involved the ap- retroactive Secretary'of Navy powers of the plication of the decision in Waller v. Code, 23(a)(7), to supra, Article Florida, officers, commanding such as empower L.Ed.2d 435 (1970), that the Fifth Bridge Company, of the 2d Amendment’s guarantee, made appli- In the special courts-martial. convene cable to the States through the Four- us, he has not done regulations before teenth Amendment, person no consequence, we adhere to our so. put twice in jeopardy for the pre- reaffirm our original opinion and same offense barred an individual’s in the case.” 16 vious decision U.S.C. prosecution for a single offense M.A. at 131. both a State and a municipality of the not clear- the decision Ortiz did State, is, that a legal subdivision of Ar- ly reading the narrow foreshadow the State. United States Coin & Cur- 23(a)(7) ticle announced Greenwell. rency held retroactive the prior Court’s contrary, specifically it affirmed On the determination that the Fifth Amend- power under Secretary’s “broad” ment privilege against compulsory Article.5 that self-incrimination barred prosecu- tion of gamblers the Green- that failure to result, register we believe As a report part illegal gambling second pro- fits decision well ceeds for tax purposes, “an issue see It decided Marchetti Oil test. Chevron v. States, United was not 39, 390 U.S. whose resolution 88 impression S.Ct. first 106, 697, 19 at L.Ed.2d (1968); U.S. 889 404 Grosso v. clearly foreshadowed.” States, 62, therefore 390 We conclude 88 S.Ct. at 355. S.Ct. 92 709, 19 properly L.Ed.2d 906 that can it is a decision that prospective considered In deciding give whether to retroac- criteria. judicial relevant tive effect Waller, Marchetti, and Grosso, rejected must that question next contentions The that it should apply what criteria the three-prong precisely is solved However, question Greenwell the Green- that appellants also contend 5. The Secretary delegate could his not whether “clearly foreshadowed” decision well authority. only issue was whether Navy written Secretary of the a letter 0103b(5), two-step process set out in section Brief of Appendix to September 1942. Manual, did, fact, delega- constitute JAG states letter Appellee at 7c-8c. accept suggestion cannot tion. we desig- power to delegate Secretary his cannot clearly Secretary’s letter foreshad- others. convening authorities-to nate decision in owed the Greenwell. 624 fact-finding its processes does not even in cases such Stovall employed

test Inquiry arise. stop must at Denno, 388 U.S. [v. threshold whether the (1967)], Desist court 1199 L.Ed.2d 18 [v. had the engage fact-find- 394 U.S. United 1030, ing processes at all.” (1969)], Appel- and De- Brief of 248 L.Ed.2d 22 lants at Woods, 392 U.S. Stefano [v. argument (1968)]. This has much 20 L.Ed.2d 1308 In to recom it, and, fact, mend Currency, & Mr. resulted a 4-A Coin United States Harlan, split amongst the Justices of speaking for the Court the Su Justice preme Court in Gosa. in this explained: Circuit, the issue is not one of first im retroac- of our earlier ‘Unlike some Weist, pression. McSparran v. decisions, we are not here con- tivity denied, F.2d cert. implementation with the of a cerned rule which does not un- procedural Freedman, Judge speaking for the Third accuracy the basic dermine banc, sitting Circuit en held that a deci process at trial. Linklet- factfinding limiting diversity federal jurisdic sion Walker, [, ter given prospective tion should be applica (1965); 14 L.Ed.2d 601] only. so holding the court stated Shott, [, Tehan following: 15 L.Ed.2d 453] true that Jersey, “It is we deal here Johnson v. New with a jurisdictional question. But the [, 86 notion 882] ; Denno, ‘jurisdiction’ subject is a (1966) of some Stovall magical quality [, so that a 293 87 S.Ct. L.Ed.2d 1199] jurisdiction against prevents according Rather and Gros- Marchetti ’ recognition to other relevant with the so dealt kind of conduct consider- yield ations must constitutionally pun- knowledge that cannot our in the first construction of the ished U.S., instance.’ 401 stat- S.Ct., present at ute determines in the at 1045. case whether exists or is adopted “The Robinson Court essen- absent.” Id. at 877. tially the same view of the Waller de- We feel that this effectively pre- concerning Jeopardy cision the Double ignoring us from cludes criteria multiple prosecutions by Clause and normally weighed in legal single determining different sovereign. subdivisions of a U.S., given whether a decision should be pro- at S.Ct., case, too, spective or retroactive effect. In this we are concerned, implementa- not with ‘the however, Appellants, (in assert effect) rule,’ procedural tion of a but with an that this was by overruled the impediment unavoidable constitutional Supreme They Court in Gosa. reach this prosecution particular con- by adopting conclusion the following as- 700-701, Id. at at duct.” plurality opinion sessment of the in Gosa: contend that the Appellants instant “Mr. Justice Blackmun’s plurality presents analogous situation be- case opinion, by its efforts to establish that cause the Greenwell decision involved Parker, v. O’Callahan [, Thus, jurisdiction. they con- question of 291] given clude that the decision must be dealing juris- was not a decision application. Appellants sum- retroactive form, in its classic diction implicitly following position marize this acknowledges that if O’Callahan were way: adjudicato- concerned with the in fact is, jurisdictional “Likewise, ry power where as here the court —that competency tribunals, power pro- lacked or its —of necessarily ceed, holding reliability fully ret- Gosa, roactive effect “[generally, rulings not primarily 693-694, at at 2943 designed 413 U.S. (Marshall, reliability enhance the J., (citation dissenting) the fact-finding or truth-determining omitted). process have not been retroac- tively.” 450 at F.2d accept interpreta We cannot this result, aAs we begin by focusing on the plurality opinion. tion of the While it purpose to be served the rule an- procedural rights did discuss Greenwell, nounced in asking wheth- decision, were effected O’Callahan er it serves to enhance reliability it never denied fact that deci fact-finding truth-determining spoke to sion issue. process. Thus, since there has been no determina ruling tive Court on this Greenwell, In the United States question, by McSparran. we are bound Military Appeals only con result, beyond we As a must look procedures cerned with the used to con jurisdictional nature of Greenwell and convening fer authority upon certain the prospectivity question decide accord commanding officers. purpose Its ing to the criteria out set in Stovall v. never to bar these commanders from ac Denno, 18 quiring right special convene L.Ed.2d See United States courts-martial because of basic un Zirpolo, (3 v. 450 F.2d Moreover, fairness. the Greenwell rule 1971).6 did not limit the Secretary’s discretion ary any way; this area in his Stovall Denno the Court power to convening confer authority was stated that guiding criteria a deci great after the decision as it was be “(a) on retroactivity pur sion are: fore it. All changed was the man standards; pose to be served the new ner which he could exercise this disc (b) the extent of the reliance law retion.7 enforcement authorities on the old

standards, (c) the effect on the ad the same courts-martial under justice ministration of of a convening authority retroactive same and with application of procedures the new standards.” 388 same trial place that took 87 S.Ct. at 1970. under the old rule could have also oc- important the most curred under the new of these three crite rule announced in ria is the first one. Desist v. Greenwell We United conclude therefore that only designed 22 the Greenwell decision was L.Ed.2d procedure conform the As this court stated used to confer convening v. Zirpolo, supra, authority States to the literal 6. We if we note even were bound by rule are still theoretically liable their crim- McSparran, The Greenwell not sim- our decision we could inal act. dealt reasoning Neil, of Robinson ply apply with which court could the offense try supra, suggested and United States v. United States never the offense could not be supra, Coin & to the facts Currency, tried at all. Thus, the decisions Robinson supra, rule of cases, case. each of those the new Neil, and United v. United supra, being States Coin & law tested prospective to be Currency, appear ending distinguishable. had the effect of crimi- the defendants’ and Gros- in Marchetti nal The rule liability. so barred gamblers the of prosecution register illegal gambling failure to and 7. Under report the old the sim- procedure Secretary convening for tax in granted and the proceeds purposes, to all authority com- ply Waller barred designated the defend- prosecution that were or de- “separate mands general flag ant a State when had al- by that defendant in tached” officer com- by general been tried a subdivi- and convicted ready by mand. Under the new the procedure through go sion that State the same act. officer must the added step submitting the name of the commander of the case, In this the differ- however, facts are or detached command to the Secre- separate ent. defendants whose convictions for official tary approval. the Greenwell would invalidated prospective that it effect is further reen- and statute of the

quirements the fact- forced. There can be little doubt that improve intended was significant by there was reliance the employed procedures finding result, upon “law enforcement authorities” aAs itself.7a court-martial pre-Greenwell interpretation announced Article standard of the new purpose 23(a)(7). interpretation That provided prospectivit cuts in favor Greenwell in statutory pro- one of the bases for the y.8 0103b(5), mulgation of section Man- JAG crite- two other turn we When ual,9 and was that section’s sole statuto- our Denno, supra, in Stovall listed ria ry basis from 1966 to 1970. given Greenwell that belief authority upon might small units and it also our discussion on misreads The dissent 7a. that was suggestion be true this feared for the reasons that purpose of Greenwell by However, suggested plaintiffs. we are in corrected Greenwell “the defect nothing that establishes these as jurisdictional cited facts. constitute a ‘technical’ to is too 643, 4). p. (Dissenting opinion It is n. error.” clear that Greenwell issue Second, accept plaintiffs’ specu- if we even with a dealt purposes 23(a)(7), 624). on we (supra p. for Article lation procedure provides that a that civilian note determining improperly con- that an military, to control on the and seeks checks jurisdiction, court is without vened designed prosecutorial discretion is not to in- pro- purpose to conform the was Greenwell’s reliability truth-determining of the crease process. authority convening conferring used in cedure to cussion new rule in Greenwell deals with the We feel this is self-evident requirements dis- of the statute. Our latter, objective. regard With former we only by purpose of the to be served prosecute the decision to observe that with the first subject who is to the truth-de- decides imply requirement of Stovall. It does not way termining procedures affects no non-jurisdictional, dealt with that Greenwell procedures themselves. those errors. “technical” result, plaintiffs’ theory pur- As a of the might argued that it that 8. We are aware poses 23(a)(7) promote behind Article cannot 23(a)(7) statutory requirements the Article are position they their correct in unless reliability designed to enhance the themselves Congress suggesting wanted truth-determining process and that the keep convening authority from the smallest Congressional implementing was this in- court tent possibility units because command influence was this own these units the true, If this is then the Greenwell. greatest. purpose of the new would be to enhance rule hypothesis by plaintiffs’ undercut truth-determining process ways suggestion plau- that there are two other Congress passed concerned when it Arti- that cle purposes might underly legisla- sible this 23(a)(7). Further, goal. by tive it is also undercut essence, argument Appellants, in make this language 23(a)(7) of Article itself since that they purpose Arti- contend that the when not bar section does the conferral of conven- Secretary 23(a)(7) prevent was to cle from authority upon ing small units but instead losing control of his to confer only requires specific designation by the Sec- convening authority. They suggest that this view, retary. Congress truly In our if loss of control considered detrimental by motivated the desire to eliminate the in- it would result a conferral of con- because presum- creased “command influence” that is ably authority they vening authority on the smallest units in the convening inherent in the exercise of chain of command and that this would under- by units, the commanders of small process court-martial in the follow- mine the ing simply would have barred its exercise 1) ways: deprive it the accused of below commanders not done section convening authority by making a certain level. This was prosecutorial the exercise of discretion 23(a)(7). fact, Article commander; 2) mature detached actually facilitated the exercise of would increase the risk of command influ- these commanders ence; 3) principle it would undercut the authority available to all com- military. of civilian control of the Secretary. manders at the discretion of the persuasive argument We do not find this considerations, In view of all of these we First, for ferred to reasons. we are not several accept argument. cannot history any legislative suggests Military 23(a)(7) Appeals Congress passed United States Court of for the 9. The that reasons outlined we been able to find Article Ortiz, Secretary supra, (nor appellants that the have ruled attempt any ourselves). Navy might had been unsuccessful his It 23(a)(7) statutory 23(a)(7) purpose Article as a basis for Article invoke be true that the was to However, 0103b(5), convening prevent this JAG Manual. the conferral of section addition, we feel that the retroac- III. tive of the Greenwell rule Before we end our opinion, we would have upon clear adverse effects must finally deal with two issues raised justice. the administration of The de- by appellants concerning the district by fendants convicted courts-martial court’s final definition plaintiff convened commanders who received class.10 Their first claim is that authority their under the rule invalidat- court erred in limiting the class to per ed in Greenwell fall categories. into two sons tried under section 0103b(5), JAG category The first includes those defend- Manual between October 1965 and ants who are no longer in the service May 28, 1970. and those who remain in the service but who committed an upon offense As we understand the district the statute of limitations has run. Since court, its intent limiting in so the class none of these retried, can defendants was to restrict it to those individuals

invalidation of pre-Greenwell their con- who were convicted courts-martial victions would negative have an obvious convened commanders given conven on effect justice. administration of ing authority 0103b(5) when that See United States v. Zirpolo, supra, 450 was, fact, section conferring this au F.2d at 433. thority pursuant 23(a)(7), Article

UCMJ. We feel that such an order was all de- category The second includes within the discretion of the district court, this fendants can be retried. For see Katz v. Carte Blanche Corp., effects on group more common F.2d 1974), and come justice administration of would should be affirmed. play and would accentuated into However, we note that prob- this class each context that surrounds ably persons does not include all tried As the charged. appellee of the offenses special courts-martial pursuant convened notes: Manual, 0103b(5), to section JAG from e., 1965—i. October from date the United States be stale many evidence would now “The Military Appeals in cases, witnesses unavailable Ortiz, supra. It is true that was aas retrials, conducting burden result of direct the Ortiz decision that dislocation substantial requiring 0103b(5), Manual, section JAG Corps personnel Navy and Marine effectively amended so that it conferred duties, create regular their from convening authority pursuant to Article mili- ‘serious, on adverse effects’ 23(a)(7). Nonetheless, we assume that justice system the service tary lag there was some time between the Appel- Brief of . generally. Ortiz decision and the effective date of at 55. lee 0103b(5), the amendment to section JAG Manual, response that was made in to it. crite- v. Denno when the Stovall Thus, we will remand the case to the we conclusion ria are considered so defining district court its order is that reach Greenwell the class can be altered to reflect what We therefore prospective effect. given appears be its true intent. order court’s the district will affirm de- summary judgment granting appellants’ second class action is that the district fendants. claim court erred judicata regard res ruling Secretary relied, way negates to those the fact individuals in no when who are class members. part, that Article We also note that appellees propriety 0103b(5), regarding raise their own JAG promulgated claims section he first they of the class. since Manual. appeal, questions never filed these are not properly class before us. the definition note that 10. We only be will action since relevant remains contended, when it permit inexorably, refused to class treat- it is because of ment pay procedure, of their back of claims under the the failure the here dictat- by regulations, Tucker Act. We have the reviewed the dis- to conform to the ed reasoning trict court’s point creating special ju- on this and statute court-martial have doubts as to whether its decision on risdiction. the was opinion correct. See of undisputed: salient facts are Certain court, F.Supp. 328, the district any commander of detached com The special convene a court-mar mand Justice, Military Uniform Code of tial. effect of its decision the 823(a) (1959). Secretary 10 U.S.C. § to remedies available narrow the only to Navy power designate the has the class, It did if victorious. plaintiff the separate commands as and detached for narrowing of any relevant not result establishing special purpose the court- As a of action. underlying cause the result, jurisdiction. martial United States v. victorious plaintiff is not the since Greenwell, Ortiz, supra, United States v. event, our re- decision our under (1965). Further, such U.S.C.M.A. no useful would serve issue of this view designations may by be made the Secre no final Accordingly, we reach purpose. tary en bloc. validity of the district the

judgment on Military Appeals The Court of found this matter. court’s 0103b(5) promulgating section the so that case will be remanded Manual,1 Secretary the believed the JAG its order can reconsider court district that he acted in an authorized fashion plaintiff In all other defining the class. statutory to the mandate. Yet pursuant district judgment respects, that, good held whatever the Court will be affirmed. court Secretary, the effect of intentions of 0103b(5) improper delega section ADAMS, (concurring): Judge Circuit tion to certain commanders of the judgment of the While I concur in the designate separate com and detached Court, by result different I reach such disciplinary purposes. for mands Green path than that majority. trod well, 19 U.S.C.M.A. at 463. Thus it would appear appropriate to set my forth own dealing views with the then, invalidity essence, resolution of the thorny issue now before to sec- pursuant convened courts-martial us. 0103b(5) in the administrative lies hold have here seek to Plaintiffs Navy per- Secretary of the failure Mili ing of “sepa- identify as sonally to commands v. Green in United States tary Appeals detached,” such com- so that rate and mands, made well, 19 U.S.C.M.A. turn, con- enabled to would be that all urge They broadly retroactive. vene courts-martial. pro under conducted courts-martial that, want urge Plaintiffs of this be de in Greenwell disapproved cedure Secretary, designation re personal initio, records that all ab void clared ex special verdicts rendered all courts- sulting those courts-martial from designated other martial not so required pay back and that all punged, purposes be overturned for all under want flowing from sentences forfeitures to the from the outset. I am paid be ordered proceedings those unable to subscribe to such a mechanical follows This result involved. servicemen 23(a)(7) Code], empowered article [of Judge Advocate General 1. Manual of the special convene courts-martial: Navy 0103b(5). “Special addition commanding courts-martial. —In and officers All officers by arti- authorized charge officers otherwise those or hereafter des- of commands now Code], (6) 23(a)(1) through ignated separate [of cle or detached commands authority are, following flag general officers officer in command. Navy Secretary granted judgments final, are and constitutional law, require view of the which would present. issues are not attack result in the ret- a collateral application of a technical notion roactive jurisdiction. an automatic and Such that, I conclude viewed either as a col- improper result would seem unreasoned judgment lateral attack on a civil or inquiry without into the nature of the vantage proceed- from the of a habeas attack, analysis collateral and without an ing, prevail. plaintiffs cannot From the underlying proceed- court-martial litigation, of civil perspective relief is competing policy ings and the considera- by principles judicata of res or foreclosed weighed adju- that should be tions estoppel. assuming But even collateral process. dicative arguendo that this case is controlled doctrines, corpus retroactivity habeas pass to we are asked situation first, appear, finding that a would While anomalous. is somewhat

here retroactivity required is not root of the lie at the convictions criminal precedent, balancing process but that a is im- matter, incarceration no further employed to reach a reasoned must be seeking are plaintiffs and the posed,2 result; and, second, process, under such monetary and administrative solely presented, and in the context here with We are not confronted lief. retroactive of Green- broad on a crimi- assault collateral traditional with the comport well would not conviction, is, petition. a habeas nal underlying precedents philosophy and admixture presents case the retroactivity doctrine. repose where of the civil field attributes field criminal and the paramount is where, to deal Accordingly, appropriate it is of absolute although the era at- to collateral applicable the rules current doctrines retroactivity passed, is then in tack, field and first in the civil retroac- favorably possibility of view criminal field. application of new rules. tive are unlikely plaintiffs it is While finality relaxed rely on the entitled Civil, I. Corpus, or Model Non-Habeas suit habeas,3 their nature of rules of Judg- of Collateral on a Final Attack success- it less amenable also renders ment practices than when ful collateral attack Were the plaintiffs are re- presently found unconstitutional subject considered to applicable continued sponsible for an individual’s of res —non-habeas—rules judicata, fa- their policies weighty collateral confinement. Less attack could not succeed, here, despite where, as allegation vor of defec- jurisdiction tive absent, is fact of incarceration brute first tribunal.4 distinguish the circumstances between by special sentences 2. Maximum confinement proceedings, such a distinction collateral 10 U.S.C. months. six courts-martial precluded, cases of for the Gosa not amended, § 10 U.S.C. distinguishable. Fleming were otherwise (Supp.1974). the Greenwell Since 1(b), page II 203. infra Part procedure de- See convictions routinely re- been there have defective clared Cunning- City (1 Gelpcke Dubuque, See, g., e. versed. Wall.) Gelpcke, ham, L.Ed. 520 21 U.S.C.M.A. unsuccessfully challenged petitioners the force regarding Mayden, final companion effect of an earlier decree In a case to Gosa issued under a statute the status of bonds Supreme suing petitioner held the Iowa Court Flemings, later a released records, Northern no dif- Great treated unconstitutional. for correction of also. Co., Refining Ry. Gosa, ferently brought habeas v. Sunburst Oil & Co. from who L.Ed. Although did action. judgment has Admittedly, proper jurisdiction But once become gener- result. final, fundament, policies such collide with well- ally considered a and want precepts jurisdiction may respected favoring and forceful any be raised at time finality during repose ultimate during appellate proc- trial litigation.6 Consequently, litiga- civil accepted doctrine, ess.5 Based on this a po- want of plaintiffs contend that even tion7 judg- a final —while pursuant issue in non-final case —is ment rendered tential an assertion jurisdiction ground a for collateral at- generally of later not shown to be vulnera- enough. is trial an issue is though ble void as tack.8 “One of never rendered. judicata apply principles of res to dictating vigi- ‘The alone, policies Taken as well as jurisdiction to jurisdic- questions of of exercise proper to the lance ” 9 issues.’ a other might suggest such authority tional authorizing the state’s statute tion highest Finn, Casualty Fire & v. 341 5. American Co. court, Supreme on relied the Court the 6, 534, (1951); 95 L.Ed. 702 U.S. Mansfield, 71 S.Ct. “settled,” questions having and on in Michigan Ry. interest Lake & Coldwater legiti- parties all on 379, reliance Swan, 510, the interim v. 111 4 S.Ct. 28 Co. macy Moore, of the bond issue. (1884); 1 L.Ed. 462 J. Federal Practi ce jurisdiction 641 0.60[4] at 7. The has same rule been in the crimi many Douglas a coat i is of colors. Justice example, Warring nal area. For in v. Col 348, n Augenblick, United States v. 89 393 Justice, Judge, poys, Circuit later Chief Vin 528, (1969), suggests S.Ct. 21 L.Ed.2d 537 corpus, to issue writ of son declined asserting, a habeas malleable, concept jurisdiction of increasingly ‘ju “It is evident that upon he has ported give jurisdiction (298 U.S. The defect here is less 56 80 1309). L.Ed. Subse far-reaching than that asserted Chicot quently, Baxter sued on bonds it had County.11 In various courts-martial prior received to the reorganization. suit, lay in this the flaw attacked the Drainage When interposed District a statutory regulation which exceeded the plea judicata, of res Baxter asserted that authority, grant of whereas in Chicot judgment of the district court was County conferring power the statute because it void jurisdic had no lawful beyond fell the district courts as the con- tional basis. The reject Congress of stitutional to enact. contention, ed this stating: County ele- the crucial Under Chicot statute, prior aof actual existence The bar collateral attack on that would ment invalidity], a determination [of to such judgment seems to be whether the have con- fact and operative is an opportunity to lit- party was afforded ig- be justly cannot which sequences of the Application Chicot Coun- igate.12 always be past cannot The nored. preclude a collateral attack ty rule would judicial declaration. by a new erased * here, suggested plain- * not * for it is claimed rights Questions of jurisdic- to raise their were unable tiffs status, vested, become have at their objection courts-martial.13 tional to have deemed determinations prior accordingly, of upon acted finality and plaintiffs If are considered on the nature light policy in public footing same as those who attack a civil previous of its the statute and both judgment collaterally, in the circum- 308 demand examination. application, stances here there is no persuasive au- at 319. U.S. thority support voiding original might have validity of the statute judgments. The Under the view that original parties in the raised habeas actions are been relieved of the finali- suit, was not. readjustment burden, judicata but it ty res debt mandates the statement, Laws, 451(2) (Supp. § Conflict (1938); Sullivant, L.Ed. McCormick v. Restatement, 1948); Judgments, (1942). (10 Wheat.) (1825); U.S. 6 L.Ed. 300 J. Moore, 0.60[5], Federal Practice 55.09 ílfl 13. A small class cases creates a narrow rule, “opportunity litigate” exception present no considerations are in this case but L.Ed. 329 U.S. justify a result different from County. exceptional that of Chicot cases adjudications have involved of federal issues City Dubuque, Gelpcke also 11. See Feuerstein, See Kalb v. in state courts. (1 Wall.) (1863), notes 17 L.Ed. 520 84 L.Ed. 370 6, supra. 4 and Co., Fidelity United States United States Duke, L.Ed. 894 Durfee v. n. 12. 186, citing Re- incarceration, meant this has not outcome; this Court ful is no basis for there is retro- of law interpretation new every the effects of the altering to consider convictions to overturn actively special invalid exercise of allegedly questionable an earlier procured jurisdiction.14 court-martial law.17 or standard procedure Corpus II. The Habeas Model of Collat- that, Plaintiffs though contend even eral Attack the issue of generally de- process termined of deliberation or judgments here attacked are crim- balancing, present three circumstances convictions; inal plaintiffs therefore any here would in event require full that, may argue although they are not in retroactivity. According plaintiffs, prison, this proceeding collateral has at three (a) these considerations are: aspects comparable stake certain to those jurisdiction may regarded no defect in determined in a petition.15 habeas merely statutory, but must necessarily cases, habeas finality considerations of process cast as a question, due dispositive, and if circumstances thus a of non-retroactivity is im- warrant relief grant- then such relief is permissible; (b) decision ren- Assuming ed. purposes argu- for the dering conviction a nullity ment analysis that an consonant with perforce must fully retroactive be- corpus habeas doctrine would be more narrowly cause of the drawn appropriate comporting than one military; (c) that a decision litigation, civil we now ad- not, either is retroactive or is and the dress is whether the Greenwell decision holding in Ferry, United States v. should be fully retroactively to pre-Greenwell USCMA plaintiffs. convictions not be used to enhance punishment subsequent in a court-mar- Support Re- Advanced 1. Factors tial, must either be overruled or Retroactivity. extend- quiring comprehensively encompass ed full re- collateral proceedings In criminal retroactivity. available traditionally been lief has corpus,16 proceeding Each of through arguments, habeas these successful, if type same law disavows the would cut short further analysis would, finality that characterizes the force of its logic, interest own post- although quire a process. civil that Greenwell is neces- wrong- sarily for fully was afforded relief retroactive. conviction it is es- Mayden, g., ap- E. v. 413 U.S. is filed. Gosa prospective-only where For situations 37 L.Ed.2d n. at jurisdictional for plication has been ordered LaVallee, v. 391 U.S. field, Carafas rulings Co. Chevron Oil in the civil see (1968). 20 L.Ed.2d 554 Huson, 92 S.Ct. 404 U.S. v. Court, Hensley Municipal 411 U.S. limitations); also (1971) (statute of L.Ed.2d 296 McSparran (1973). Weist, F.2d 867 jurisdiction). 1968) (diversity Walker, 17. Linkletter v. (1965). The traditional carry 15. Plaintiffs’ records a criminal convic- Blackstonian view—also referred to as the Also, plaintiffs tion. wages, have forfeited declaratory theory been that constitu liberty, —had discharges honorable and veterans’ rulings interpretations by tional courts benefits. For a discussion of the “collateral wholly underlying were retroactive. The ra consequences” convictions, of criminal see Ca- tionale for the Blackstonian view of absolute LaVallee, rafas v. explored thought has been in a 20 article ful Professor Mishkin in which he relates retroactive of the law to feder- corpus relief habeas Access symbolic Mishkin, role of courts. et §§ 28 U.S.C. at codified al courts Term, Supreme Court 1964 Foreword: The corpus 28 U.S.C. seq. Habeas Court, High Writ, The Great and the Due plaintiffs because available is not Law, Process of Time and 79 Harv.L.Rev. 56 petitioner “in requirement that a statutory peti- habeas custody” time a at least nonretroactive an interpretation of crim- treat each that we contention sential inal law that narrows a jurisdic- court’s separately. tion, prior case law is not conclusive.20 Yet the case-by-case (a) Jurisdictional Defect approach taken by Supreme Court on questions of retro- jurisdictional attacks Collateral activity where constitutional violations adju- have been in criminal cases failures stake, are at together with ap- Although the only infrequently. dicated proaches taken courts, circuit per- are area is that res general rule in the civil suasive that automatic retroactivity is repose and interest in foreclose judicata mandated jurisdictional na- judgment attack on a final collateral ture of the Greenwell defect. where deficiencies even field, alleged,18 the the value criminal question appli- retroactive occupies niche in the repose a lower cation of a narrowing jurisdictional in- rule has legal order. The traditional terpretation of the criminal contempt grant- a writ will be of habeas been statute was raised Warring prisoner jailed the release of ed for Colpoys.21 Warring had been convicted improper ju- exercise of to an pursuant under a construction of the statute that Siebold, Parte Ex risdiction. 371, conferred punish for contuma- Yet access to 25 L.Ed. cious acts in the court or “so near there- writ of habeas courts for a the federal to as to obstruct the administration of implications has no justice.” After Warring’s conviction was jurisdictional defect a claimed final, whether but while he was incarcerated, still applied in a broad retro- is to be at trial Supreme Court reinterpreted the per- manner. The rationale active statutory language to be geographically from mitting collateral attack differs limiting. It was undisputed that War- governing application of retroactive ring’s acts were not criminal under the As the Court has stated: law. statutory new interpretation. Warring availability post-conviction relief “The brought a petition habeas alleging that significantly integri- to secure the serves he was tried wanting juris- court trial proceedings at or before ty diction, claiming that “the statute never performed service is appeal. No such on gave the court contempt ‘jurisdiction’ 19 extending rights retroactively.” type over his of offense.”22 Circuit Judge, Justice, later Vinson, Chief The advisability of retroactive applica- jected contention, holding that ret- jurisdictional of the Greenwell rul- application roactive of a new statutory ing must thus weighed. Although construction was not despite warranted strong precedent exists for declaring jurisdiction the narrower that resulted.23 County Drainage 303, 642, supra. U.S.App.D.C. 21. 74 Chicot 122 I F.2d cert. Part 18. See 371, Bank, denied, 678, 184, 308 U.S. Baxter State v. 314 U.S. 62 86 L.Ed. District S.Ct. (1940). 84 L.Ed. 329 543 394 v. United 122 at 646. 22. F.2d Kaufman 1068, 1075, S.Ct. Fifth and Tenth have Circuits also spoken on whether retroactive is Mayden, 413 U.S. v. 20. Gosa necessary jurisdic holdings where concern (1973), part 37 L.Ed.2d 873 discussed Moseley, tion. Schlomann v. 457 F.2d 1223 Parker, infra, 2(b), rules that O’Callahan v. denied, (10th 1972), Cir. cert. 413 U.S. 258, 89 S.Ct. 23 L.Ed.2d 291 395 U.S. 37 L.Ed.2d 1041 Gosa v. retroactively applied. not be aff’d, Mayden, (5th 1971), 450 F.2d 753 Cir. by many had been viewed as a O’Callahan military going Schlomann, to the core of having squarely decid viewed, jurisdictional power. So Parker, courts’ ed that O’Callahan v. Supreme apply Court determination set clear appear prospectively courts, jurisdictional military O’Callahan bounds on the judgment compelling here. The Court concluded, the court nevertheless “We “jurisdictional” characterization of a eschews persuaded jurisdictional that the terminol O’Callahan, however. compels ogy of O’Callahan us to refuse con- not, action, proportions v. McSparran of limited does as defect civil Although a of a it, example have constrain this plaintiffs would another provides Weist applies decision. find that the defect ret- jurisdictional Court to prospective-only diver- To roactively. contrary, courts have the basis McSparran restricted weighing process “manu- same by holding that used the to deter- sity jurisdiction application of rules confer mine retroactive new diversity could not factured” questions jurisdictional F.2d 867 where arose as jurisdiction. federal banc, situations, Court, sitting constitutional or statu- en other 1968). The a was prospec- tory, where claim of operation of the rule made the solely presented. causes to be tive-only, the date arising after of action (b) Military Jurisdiction plaintiff Cases decision. fiduciary con- thus out-of-state an point out Supreme Plaintiffs that the although no adjudicated, to be tinued proposition Court has reiterated the foundation jurisdictional proper military jurisdiction is limited stated, lan- Court presented.25 provided by statute and limited to that case, present to the pertinent guage permitted by the Constitution. The sub- ‘jurisdiction’ is a notion that expressed “[T]he Court has standard for quality magical ject some jurisdiction proper exercise of mili- it is knowledge that yield must tary tribunals “the jurisdic- narrowest which de- of the statute our construction absolutely tion deemed essential to main- jurisdiction whether . termines discipline taining among troops in active at 877. F.2d is absent.” 402 or exists service.” applying possibility Apparently, this, plaintiffs argue Based on that the retroactively to holding McSparran precise pre- to follow a failure statute’s final then were judgments upset scription military judgment makes a vul- such Although even considered. was not challenge to an initial As to nerable. federal flawed rested judgments final admittedly no fair practice, questionable unchallenged.26 stood they jurisdiction, cases could reading of ele- Runkle result. support different want While Dem- McClaughry habeas grant of for the United States28 ing29 ground mental relief, juris- clear that court-martial made existence prospective application.” 11, 22, sideration Quarles, 350 27. Toth F.2d at 1227. 1, 8, (1955).- The courts-martial L.Ed. 8 concededly Gosa, fall in this within at issue case conceding while lim- O’Callahan proper scope judicial Toth definition of forum, ited the Fifth also, proceedings. disciplinary O’Calla- applica- Circuit denied O’Callahan retroactive Parker, tion, arbitrary han v. L.Ed,2d simplis- “there is no Covert, (1969); Reid v. deciding retroactivity. tic basis for The heart 1222, 1, (1957); 1 L.Ed.2d 1148 77 S.Ct. of the doctrine is a reasoned Deming, McClaughry v. 22 S.Ct. precedent.” new constitutional 450 F.2d at (footnote deleted). L.Ed. 1049 Runkle v. L.Ed. 122 U.S. Appointment 24. guardian of an out-of-state purposes executor for of suit. 28. 122 U.S. 7 S.Ct. L.Ed. See, g., Brooks, 25. e. Groh 421 F.2d 589 petitioner successfully In Runkle (3d 1970); Converse, Law v. Cir. 419 F.2d 38 discharge army challenged his from the be- 1969). Huson, Chevron Oil Co. v. statute, cause, in contravention 92 S.Ct. approval had to affix his President failed (1971), yet juris- is another where case a new proceedings. the court-martial rule, involving dictional limita- statute of 786, 46 29. 186 U.S. 22 S.Ct. L.Ed. 1049 tions, applied prospectively only, was because despite express Deming, statu- older, plaintiff of reliance there on an tory prohibition, officer volunteer more liberal rule. army comprised tried a court-martial was research has disclosed that Our not army. regular Supreme of officers in the attack, was ever instituted to collateral- case held, therefore, the court-martial jurisdiction ly, predicated judgments on proper jurisdiction and a writ of was without McSparran held nonexistent. later corpus lay. habeas cast in jurisdictional con- terms of in strict exercised must be limitations diction statutes, courts-martial. and therefore formity with Green- strong support However, the appellants in their of Runkle extension well. courts-martial were not denied any con- retroac- whether Deming protections stitutional to which they from mandated is far is operation tive were entitled. It is suggested not retroactivity cases the the cited clear. holding Greenwell retroactive per- Hence, broad raised. was never issue mit a fairer trial in a differently consti- regarding jurisdiction language in them or, tuted indeed, tribunal a trial differ- cavalierly applying read not be must any regard. ent in policies those in a effect full retroactive a claim for might which dictate a us. before presently such as situation spear thrusting back open final cases unique in hav- Military courts are not appear would not to have persuasive curtailed to fit the ing jurisdiction power their in this case. Whatever new trials might of statutes and Constitu- contours occur if retroactivity were man- jurisdictional reach of other dated tion. would merely replicate procedures narrowly areas also undergone in other is courts once before. County, supra, In Chicot

circumscribed. important Even where constitutional example, scope bankruptcy ju- present, considerations are retroactivity was at of the federal courts risdiction not is foreordained where a ruling limits Responding to the assertion that issue. scope of military jurisdiction. In the judgment of the district court prior recent case of Gosa Mayden, dependent void because on an im- jurisdiction under the proper exercise Parker, O’Callahan v. statute, Supreme Court stated: argument We think the untenable. was at issue. O’Callahan had courts are all courts The lower federal jurisdiction military held that did not en- is, jurisdiction, of limited compass try servicemen in jurisdiction Congress peacetime for non-service related of- prescribed. they But nonetheless has fenses. custody Gosa was in after a * * authority *. are courts with sought court-martial and habeas relief. [questions Their determination of petitioner A companion case, in a Flem- statutory interpreta- ings, had already been released and was review, tion], open while to direct seeking correction of his military rec- collaterally. assailed Arguing ords. that their constitutional at rights under the Fifth and Sixth Amend- judicial opin- The distinctive flavor of ments had been curtailed their mili- narrowing military jurisdiction pro- ions trials, tary petitioners in Gosa con- underly- an awareness of the ceeds from tended that the O’Callahan rule should ing privileges of which a constitutional be retroactive. deprived before a tri- citizen bunal, Despite g., by grand jury, indictment the fact e. Court had by petit jury, vigorous more inter- held in

trial O’Callahan that trials by military confrontation courts of pretation of the clause.30 non-service related peacetime offenses in of the loss of these valuable were Because invalid be- have, cause such trials rights, judicial beyond stalwart efforts in were the consti- effect, jurisdiction, tutional limits of protected military citizens from undue ex- a sharply military the divided court in posure to forum. And Gosa refused to grant relief.31 frequently Blackmun, have been Justice applicable decisions writ- application; roactive activity four indicated that retro- Parker, O’Callahan 30. for, although only was called two of L.Ed.2d justices these question; necessary found it to reach the retroactivity, justices On the issue of four justice (Douglas, 31. and one J.) con- require did not concluded that O’Callahan ret- judicata cluded that required res that Gosa’s himself, Burger, Justice ing for Chief Gosa is manifest. Based on considera- stated, in and White Justices Powell and tions either of non-retroactivity or res majority’s supports language judicata, a majority of here, in O’Callahan: position Court held that Gosa would remain in prison despite the constitutional short- hold, not certainly did [T]he even comings of his court-martial. The cir- in prosecution intimate, present cumstances lead, appear case to of a member military court a effect, in to the same conclusion. nonservice-con- for services armed Indeed, Gosa, plaintiffs unlike here have be as to unfair was so crime nected grievances no sion, of constitutional dimen- at ab initio. void they and are not presently impris- 2933. at oned. It would thus appear that even the Linklet- used then Blackmun Justice the Justices who believed that O’Calla- that, on held approach, ter-Stovall han warranted application retroactive warranted. was not retroactivity balance, might conclude differently present in the looked Blackmun analysis, Justice his case, where “the constitutional limits of in result unfairness likelihood the military’s adjudicatory power” are that: concluded not at issue. 413 U.S. at at by mili- validity convictions [T]he tary 2943. to have exer- tribunals, said now over inappropriately jurisdiction cised The only consideration advanced offenses service-connected non sufficiently support outcome here different from require as to so doubt pro- that in Gosa is that flaw convictions such all reversal cedure prior lay followed well Green Congress when since rendered “jurisdiction area in its classic trials].32 provided [such form.” 413 at 93 S.Ct. 2926. Yet, jurisdictional the invocation of defi- Marshall wrote dissent that Justice ciency not end the does matter. At least presented forceful case O’Callahan appeals two courts had considered the application, because retroactive prior of O’Callahan to Gosa. with the constitutional limits [Dealt] Each concluded that was in- O’Callahan military’s adjudicatory power jurisdictional deed a limitation on the over offenses committed service- Nonetheless, power. court’s each court plainly men. No could more apply declined to O’Callahan retroactive- involve limits of a tribunal’s ly.34 Supreme Court, And in the al- particular over to exercise though juris- O’Callahan limited clearly and thus more demand offenses grounds, diction-on constitutional it was application.33 retroactive held nonretroactive The exer- Gosa. While precise jurisdiction by later application cise a tribunal of Gosa to our case is uncertain, held to have acted will not improperly the result of petition denied, Flemings’ and that offense members of the Court. Justice Brennan con- curred; service-related. Rehnquist Justices Stewart, be- lieving respectfully O’Callahan I Doug- wrongly decided, While differ with Justice application judicata nevertheless las’ concluded of the res doctrine in its must retroactive, corpus case, agreement a habeas substantial of res judicata Justice judice might reasoning. Marshall’s sub case be dis- 413 U.S. at 692, 693, positive. supra. 93 S.Ct. I 2926. Part at 2934. at 32. Mosely, (10th Schlomann 457 F.2d 1223 approach tends Justice Blackmun’s tone 1972), Cir. cert. denied 413 U.S. implication Justice Marshall refute May L.Ed.2d Gosa impairment a technical den, aff'd, (5th 1971), F.2d 753 application. quire retroactive Justice at 2943. philosophy expressed of four Marshall it that the need Yet is clear doctrine judg- final ipso facto void a suffice to persistence with such not ment.35 every potential expunge utilization hold Greenwell Court Were example, in improper procedure. For retroactive, result would in- broadly v. United Coin & United States States and those incongruous. Gosa deed Currency, him, O'Callahan convicted before like (1971), Supreme Court L.Ed.2d constitutional fundamental and denied general retroactivity of announced the prison. In con- remain in rights, would v. decisions Marchetti 39, United its trast, denied whose courts-martial those States, rights, whose tri- constitutional no them v. L.Ed.2d 889 and Grosso United virtually regard- identical would als States, autho- of whether the court-martial less (1968), holding prosecutions not, but whose proper or were rization regulation imper gambling laws under under improperly convened were trials challenge filing wa where missible Greenwell, struck down regulation forms registration was bottomed gering grant of enjoy lump sum back would against right the Fifth Amendment retrial,36 immunity from effective pay, self-incrimination. on. records, with all correction very day Marchetti and were held Grosso flow therefrom. that benefits retroactive, an Court Mackey v. nounced in Ferry Impact of (c) The Greenwell, after conducted to trials As forms, use of these same that Appeals United Military procure a tax evasion completed, once Ferry stated: a basis was not for retroactive conviction may have effect Greenwell Whatever rule. application of Marchetti/Grosso situations, we in other conviction on a White, opinion a plurality Justice invalid a conviction no doubt have joined by Chief Justice and Justices in- be used to cannot Greenwell Blackmun, stated, “Mackey Stewart later offense for a sentence crease significant if would have claim accused beyond given full Marchetti and Grosso must be con- previous had received have sweep.” 401 retroactive 22 U.S.C. not been considered. viction at 1164. Justice White found M.A. purpose of the Marchetti neither reliability rule nor /Grosso Greenwell, here Plaintiffs assert that retroactivity result full trial mandated applies to the it retroactive extent Mackey37 appear there to be lim sentence, augmentation must neces- a ruling its even to where is declared further, sarily apply be extended con- retroactive, uprooting every pri- short of sistently fully possible to all retroac- tangentially dependent on or decision doctrines, tivity Retroactivity issues. prior law. tainted maintained, are is cumbersome and diffi- cult of without adding implications of Ferry must be dimension of selective against further retroactiv- measured the example furnished Plaintiffs ity. urge that once the issue Mackey. In Ferry, while meticulous- ruling ly of a new limiting deter- the scope of its holding, the mined, the consequences should Court Military and do Appeals acted in con- to all formity extend related situations. with the Greenwell rationale. Weist, McSparran Brennan, 35. 402 F.2d 867 for himself and Justice Justice 1968); Warring Colpoys, U.S.App.D.C. Marshall, stating separately, concurred F.2d put cert. denied 314 U.S. the use to which information L.Ed. 543 See pur- discus with the Fifth Amendment not conflict sion, supra. compelling pose its disclosure served at all. Part 3. infra 638 present five in the

Ferry an internal case reflects administrative thus would not be inconsistent vigilance by wishing with the Ferry courts to utilize that limits only unimpeachable subsequent convictions en- affirmative of use prior of convictions. punishment. hancement further on use prohibition pre-Greenwell augment to convictions sentences for fu- Retroactivity: Corpus 2. Habeas infractions allows

ture Greenwell to be The Context of the Present Case. shield for used as a court-martial de- fendants, but not as their sword. that, assuming it is determined Since But, depending purpose on the to permissible, be auto- attack to collateral put, old giving which the conviction is it retroactivity appropriate, is not a matic giving or might full effect no effect employed. process must be weighing Ferry philosophical be order. and its ago, a Beginning decade not, not, underpinnings do and should a de- proceeded to fashion test to the courts retrospectivity bind to all-out advisability of non-retroac- termine its broad ramifications. adjudications new application of tive It is Ferry also be noted that in in criminal constitutional dimension of the question continuing effect of a retroactivity defeat in the cases.38 To e-Greenwell pr conviction arose in the a draw area court had to three criminal a appeal, context of direct rather than as the new rule purpose of conclusions: in a proceeding. here collateral such require application, not retroactive did context, Ferry might standing be seen as practice on the old extent reliance proposition give a service by great, law enforcement officials was punishment now, man increased based on imposed be the burden that would a court-martial which not could be con justice by a the administration of on holding today, vened would be to continue pro- retroactivity a suggested practice. effect of a flawed Such use spective-only result.39 Linkletter pre- surpass Greenwell conviction would per- this calculus be quired that careful finality interest in permit Retro- each new situation.40 formed for subsequent detriment to a defendant.37a application of new constitutional spective A that Greenwell is not retroac- adjudications controlled is now (denial counsel); 443, (1963) Tucker, v. 799 Jackson 404 U.S. v. United States 37a. See 368, Denno, 1774, Burgett S.Ct. 12 (1972); 378 U.S. 84 589, 592 92 30 L.Ed.2d S.Ct. 258, (1964) (prejudicial material of 109, L.Ed.2d 908 19 Texas, 88 S.Ct. U.S. 389 v. coming jury). probity doubtful before L.Ed.2d 319 pivotal A is whether Walker, consideration 618, 38. Linkletter v. 381 U.S. 85 S.Ct. prior soundness result achieved 1731, (1965); 14 L.Ed.2d 601 Stovall v. Den open trials is to substantial because no, 293, 1967, 87 S.Ct. 18 L.Ed.2d newly constitutional ascertained defect. 1199 Circumstances where courts Jersey, 719, New 384 Johnson v. U.S. 86 S.Ct. grant have not been reluctant full retro (1966); 16 L.Ed.2d 882 United States v. spective application, without consideration 1971). Zirpolo, F.2d 424 Unlike 450 factors, the Linkletter-Stovall include situa other cases where warranted persons tions where had been convicted of basis, supra, see note 38 the case constitutionally pun “conduct that cannot appropriately no such doubt en- here instance,” ished in the first United States tertained. Currency, United States Coin 723, 401 & U.S. 1041, 1046, 28 L.Ed.2d 434 g., See e. Williams v. United where, prior because conviction L.Ed.2d 388 U.S. offense, Jeopardy for the same Double California, (1971), holding Chimel v. interposed insuperable Clause barrier prosecution, Neil, Robinson v. (limited arrest); retroactive search incident L.Ed.2d 29 Retroac Woods, DeStefano tivity was also found detri where substantial (1968), holding Duncan ment to the accused could inferred that Louisiana, validity upon doubt was cast of the result (trial by not retroactive prior reached in trial. v. Wain Gideon jury). wright, L.Ed.2d plaintiffs The assert developed of doctrine that here that it is latticework imperative that statutory Linkletter subsequent to and Stovall. construction Military the Court of Appeals ap- considering present action in In plied retroactively. Yet the validity of corpus principles, context of habeas challenged the statute itself is not in any significant: observation is further one regard. power Nor is the of the armed nature of the de- the non-constitutional try forces to servicemen for the offenses struck down in Greenwell. Not ev- fect Indeed, assailed. it is con- can ery error of law be raised in a collat- ceded that the offenses were properly challenging validity proceeding eral by the military. triable term, in conviction. Last Davis v. of a Also, questioned no one spe- that the States, 333, 417 U.S. 94 S.Ct. proper cial court-martial was the forum 2298, to bring in which these servicemen to held that non-constitutional claims is account. Nor it claimed that the com- be asserted in collateral can attacks on position of the actual panel court-martial criminal convictions under 28 U.S.C. improper or that the members were 2255. the Court added that § qualified to preside over the individ- scope narrowly of relief is more cir- and question. uals offenses in And statutory, cumscribed where as opposed finally, it suggested is not ap- that the constitutional, to claims are presented. pointment of the court-martial was The Court made clear may that habeas who, person had he been personally au- not be used as a appeal.41 substitute for thorized the Secretary, could not have general, no provided by forum is appointed them. 2255 to section review non-constitutional pressed errors of law not appeal, Su- Rather, the statutory narrow Large, nal v. 332 U.S. 67 S.Ct. present core of controversy at the is though 91 L.Ed. 1982 even “fail- the authorization of “separate and appeal ure to take a direct from convic- detached,” insofar as it carried the con- deprive tion does not a federal post-con- power appoint the court- comitant power adjudicate viction court of tribunal, improperly martial commu- merits of constitutional claims.” Kauf- Secretary nicated Navy. States, 217, 220, man v. United 394 U.S. Secretary’s appointment, indirect 1068, 1071, n. 0103b(5), pursuant to section was found (1969). Indeed, total failure to raise a improper delegation to be an of his au- question at constitutional trial does not thority Navy as civilian head of the foreclose collateral habeas relief. Kauf- personnel. inferior Far from man, supra. announcing change of constitutional Although present not, magnitude might case is cast doubt on the as indicated, we governed by procedure validity have fairness of the or the the doc- the results in trials conducted under surrounding corpus, habeas their trines rule, requires, the old fect, Greenwell in ef- appear It would is instructive. guidance authorizing rerouting papers that, statutory claims general, federal Secretary disciplinary via the when new availa- presented at trial to be being are commands established.42 grounds for collateral attack. ble as effect, 2303-2304. To the same attack barred 41. 94 S.Ct. at fact that collateral is not does States, however, not, 394 U.S. Kaufman v. United determine the outcome on the see See, (1969); Sunal v. L.Ed.2d merits. Hill v. United 424, 428, Large, 91 L.Ed. (1947); Warring Colpoys, U.S.App. Large, 179-181, Sunal denied, cert. 122 F.2d D.C. 91 L.Ed. 1982 86 L.Ed. 543 attorneys, according Secretary, his “The suggested in dictum that non-con- It has been empower units as rou- small has continued be raised defects stitutionai widely his before tinely [Greenwell] proceedings. in habeas for the first time 823(a)(7).” U.S.C.] [10 espoused views in Zirpolo. The Balance. Retroactivity: This Court has recently applied the Zirpolo test in a ap- rules of habeas Assuming the case, court-martial holding prospective- considering that here, both plicable only a ruling that down, struck on due limited retro- logic permit law case process grounds, certain Articles of the to turn to a appropriate activity, Uniform Code of Military Justice.46 the extent retro- determination holding in Green well43 activity of The rationale of the Greenweil rule test.44 Linkletter-Stovall would not be by served broad retroactive Hunter’s Judge concur regard I. application.47 The Greenweil court the follow- only to add analysis and wish found the purpose of that. Congress in ing observations. requiring a personal designation from the Secretary in order to establish an This stated in Circuit United States v. independent disciplinary command was Zirpolo “[generally, rulings pri- to retain the reins on special court-mar- marily designed to enhance the reliabili- tial in the hands of the civil- ty fact-finding or truth-determin- ian Secretary of the Navy. ing process have not been retro- actively.” No substantial claim , is While prospective implementation pre-Greenwell practice made re- the Greenweil rule will advance the de in a likelihood of trials sulted rendered effect, sired broad of the rule evidence, by vulnerable unreliable im- past, to the voiding convictions, all proper procedures injustice. or other requiring repayment the fines and Nothing questions in the record the fair- pursuant forfeitures thereto, would have ness of either the convictions or the sen- impact no on furthering the results in holding here of nonretroactivi- tences. A tended Congress. All past abuses ter ty would thus be consonant with the minated with Greenwell. Prior designa- letter, 23 L.Ed.2d 647 (E.D.Pa.1973). 89 S.Ct. A U.S. (1969). F.Supp. Appellee, Brief of produced in Addendum 33c-35c, personal autho- one such constitutes (3d 1971). 45. 450 F.2d Cir. See also Navy Secretary from rization roughly Johnson, United States ex rel. Matthews empowering them to 40 commands 15, 1974). (3d Aug. 503 F.2d 339 though Al- Cir. special Included courts-martial. convene majority of the Court en banc in named of the two the commands therein are issue, Matthews did not reach the the three (Transient Facili- plaintiffs action in this class retroactivity judges who discussed relied on Okinawa, Butler, Smedley which ty, Camp D. They Zirpolo. Linkletter-Stovall and conclud- Brown; plaintiff Student court-martialed they apply retroactively ruling would not a ed Base, Camp Corps Pendle- Company, Marine voluntary requiring jury instructions on man- plain- to'n, sentenced on two occasions defendants, slaughter although for murder pleas). guilty Taylor tiff after give past failure to such instructions admittedly violated defendants’ constitutional 43. The district court stated its accord with result, might 347; rights, F.Supp. and resulted in what well have the Greenweil unfair sentences. correctness of the been Greenweil decision is not before us here. Levy, 46. Parker v. 478 F.2d 1973), grounds, rev’d on other 44. Linkletter v. Walker declares that “once premise accepted the required that we are neither to, prohibited applying, nor from Appellants urge, in reliance on Bell v. Unit- retrospectively, weigh we must then Congress presump- ed intended the merits and demerits in each case serviceman, operate in favor of a . . . .” 381 U.S. statutory pay and he would receive allowanc- The decision subjected es unless and until he was to disci- prior history reflect concern must with “the “duly pline a 393, 402, constituted court-martial.” effect, question, purpose the rule in its 6 L.Ed.2d retrospective operation and whether will fur- presumption, 365 ted, This even if admit- ther or retard” the interests served implications carries no for the precept. new Id. See Chevron Oil Co. v. retroactivity of broad for Greenweil. Huson, Houma, Cipriano City if retrial available, were ceased “separate and detached” pro further tions ceedings would for the differ in particular no authorization constitute from the trials undergone Ac- special convene first courts-martial.48 per- lingering effects cordingly, no instance.51 power with- allocation of on the ceptible according complete net result of military.49 rule, espe- to the Greenwell case, cially in this would be to afford a Linkletter-Stovall, Under a court must plaintiffs. Such would windfall impact consider the generally unwarranted under the ac- retroactivity both in terms practi of its knowledged functions to be served cal effects and the fairness of the result making judicial determinations retroac- obtained. Were fully Greenwell held purpose of the Greenwell tive or retroactive, the administrative burden holding itself.52 would be considerable. Searching and correcting all applicable records would Thus, were full retroactivity estab- time, absorb substantial personnel here, lished the principal results would problems there be would regarding not be that a material administrative disrup- pay status, back but retirement vet tion would entailed, and benefits benefits, erans’ and pensions.50 would inure to a class that concededly has committed violations of military law. has de

Generally, once a decision been retroactive, convictions are fully clared overturned, III. Conclusion. expunged, records are and become,subject to retrial us that “the the defendants reminded Justice Cardozo procedure. No retrial proper night under a shelters for the is not the inn that however, here, Rather, because possible would be end.” the law which is journey’s cases, including the two today ready in almost all must be for tom- announced action, in this those af plaintiffs broadly, named we write too over- If morrow. and, longer in the fected are no in cases like the turning judgments final military may one, who have left the persons apply if we black-letter law present discip subjected military longer be require no discrete where circumstances treatment, statute place limitations we shall case-by-case line.50a might operate straitjacket, also as a bar. And even and be legal in a ourselves 539, 2963, U.S. Cunningham, 94 S.Ct. 41 21 U.S. L.Ed.2d v. 935 See United 48. 665, (1974). Mayden, 683, Gosa v. 413 U.S. cited therein. and cases C.M.A. 2926, (1973). imprisoned 93 S.Ct. 37 L.Ed.2d 873 under plaintiffs still Were the here, they challenged were and convictions Quarles, 50a. Toth v. 11, 1, 350 U.S. 76 S.Ct. petitions habeas cor- this Court before (1955). 100 L.Ed. 8 intro- pus, considerations different 51. Quarles, Toth v. U.S. duced. 100 L.Ed. 8 would, Further trial in does exist an interest It is claimed 49. very least, be difficult of achievement. potential is in curbing abuse there whatever Since the question offenses in petty were a chain of the end of permitting units at small crimes, evidence and prove witnesses them juris- court-martial such to exercise command would doubtless be unobtainable in almost all however, note, agreement We diction. cases. To this government’s extent legiti- court, prop- the statute the district mate discipline, interests in deterrence, and abuse whatever erly not alter does construed go rehabilitation would unsatisfied. Wil- practices. There generated these might be States, liams v. United “separate eligibility change no is 28 L.Ed.2d 388 status, appointments and such detached” routinely wholesale be made continue inequality of treat- A serious directly by they long made as so those servicemen would arise vis-a-vis ment 42, supra. Secretary. See note who, by happenstance, were less fortu- mere being charges tried on identical before nate adminis- of this Legitimate measurement special substantially type courts- the same limited, appellants as not burden trative martial, empowered tribunals that were but relitiga- surrounding claim, problems 823(a)(l)-(6). 10 U.S.C. under McDonnell, v. Wolff offenses. ty to Katz v. United rationally with these diffi- to deal unable 576); L.Ed.2d Sto- present themselves they questions cult Denno, vall v. future. (1967) 18 L.Ed.2d 1199 (denying judicata of a effects the res Because complete retroactivity to United States conclusive in the con- judgment are final Wade, action, even and because a civil text California, L.Ed.2d and Gilbert v. retroactivity is approach a habeas L.Ed.2d warranted, at least on the basis of 1178). In progeny, Linkletter and its here, requested situation factual developed practical cal- appropriately granted may not relief determining culus for retroactivity-pro- plaintiffs. spectivity approach, issues. Under this (a) purpose court must evaluate GARTH, Judge (dissenting). Circuit rule, (b) new the extent of reliance obliged to dissent from Part II of I am rule, (c) upon the old the effect of opinion. Judge Like majority Hunt- applying the new retroactively. rules er, is much “to rec- I believe there Denno, 293, 297, Stovall approach that accords full ommend” retroactivity to decisions involving calculus has been This in this adjudicatory powers of tribunals. Un- and, indeed, Circuit2 was utilized Hunter, I Judge do not believe that like majority reaching its conclusions Weist1 such an McSparran ap- bars here.3 proach. note, however, important to It is Jurisdiction Retroactivity and A. calculus is neither the Linkletter-Stovall panacea nor a solution to all retroac- general As a rule jurisprudence, ju Neil, In v. 409 tivity problems. Robinson apply decisions retroactively. dicial See 505, 508, 876, 93 S.Ct. 35 L.Ed.2d 29 U.S. Comment, Linkletter, Shott and the Supreme explained (1973),the Court Retroactivity Escobedo, Problem in 64 analysis developed in Linkletter and the 832, (1966). Mich.L.Rev. 834 Neverthe progeny pertained to the “use of evi- its less, years in recent the “Austinian” “particular and to of tri- dence” mode[s] restricting method of a decision pro to Decisions that do not involve al.” such spective effect has come vogue, into as “cannot, procedural matters for retroac- Supreme the Court has striven to limit tivity conveniently purposes, lumped be disruptions the caused by reforms together analysis.” in terms of 409 U.S. procedure. See, area of criminal g., e. 508, at 93 at 878. S.Ct. 622-623, Walker, Linkletter v. 618, 381 U.S. pro- no such instant case involves 1731, 14 (1965) S.Ct. L.Ed.2d 601 85 matters. At issue here is cedural (denying complete retroactivity Mapp to (United retroactivity of a decision States Ohio, 643, 1684, v. 367 81 U.S. S.Ct. 6 Greenwell) particular which declared v. 1081); L.Ed.2d v. Tehan United States incompetent to conduct tribunal type of Shott, 406, 459, ex rel. 382 U.S. 86 S.Ct. The Court special courts-martial. (1966) (denying 15 L.Ed.2d 453 complete upon rule Military Appeals did not California, v. Griffin 380 admissibility of evidence Greenwell’s 609, 1229, 106); 14 L.Ed.2d Military the Court of hearing. Nor did Jersey, 719, Johnson v. New 384 U.S. 86 of a rec- enter into a discussion Appeals 1772, (1966) 16 S.Ct. L.Ed.2d 882 (deny Instead, as of trial. mode ommended ing complete retroactivity to Miranda explains, here majority opinion Escobedo); States, Desist v. United Military Appeals was concerned 244, Court 1030, 394 U.S. 89 22 L.Ed.2d illegal judicial pow- exercise (1969) (denying complete 248 retroactivi- (3d 1968) (en banc), See, g., Zirpolo, 1. 402 F.2d 867 Cir. cert. e. United States v. 450 F.2d denied, 1971). 23 432 (1969). L.Ed.2d (Judge Hunter’s) Majority Opinion 3. See at 625. proposition jurisdic- support for er a tribunal that was not authorized normally given tional decisions should Congress special to conduct courts- nothing I find full retroactive effect. United States martial. either in Link- Currency, 401 progeny suggests letter or its v. United States Coin & adopted apply the calculus therein government prosecu- initiated

to situations in which a tribunal is held incompetent adjudicate. moneys tion for forfeiture of used in to be While majority operations, pursuant to 26 regards gambling the Linkletter-Sto- analysis as dispositive vall in the instant U.S.C. After commence- case, litigation, I view it—on the ment of basis of Robinson only peripheral v. Neil—as of Court invalidated the statutes which impor- tance. formed the basis for the forfeiture on grounds infringed the statutes view, concerning my decisions Fifth upon privilege Amendment (i. adjudicate4 e. of a court against compulsory self-incrimination. in the true sense of “jurisdiction,” States, Marchetti v. See United retroac- word) normally given (1968); the three- regard without tive effect v. United Grosso A test articulated Stovall. pronged by a tribunal rendered held in United States Coin & Cur- nullity. adjudicate incompetent rency that Grosso and Marchetti were to Cunningham, v. United States applied retroactively. This decision (1971); U.S.M.C.A. was reached without reference to the Greenwell, 19 U.S.C.M.A. calculus, Linkletter-Stovall Justice Har- Ortiz, 15 (1970); United States explaining lan that: (1965), petition for U.S.C.M.A. denied, 16 U.S.C.M.A. reconsideration Unlike some of our earlier retroactivi- Deming, McClaughry cf. decisions, we ty are not here concerned 46 L.Ed. 1049 implementation proce- with the of a to understand I find difficult rule which does not undermine dural null and void decision can be how such a accuracy factfinding the basic legally operative merely effect given Walker, Linkletter v. process at trial. Indeed, timing. fortuity of a a result 1731, 618 14 L.Ed.2d S.Ct. [85 result, a this court to sanction such were Shott, (1965)]; Tehan v. 382 601 U.S. matter con- jurisdiction would become a 459, 406 15 L.Ed.2d 453 S.Ct. [86 by litigation timing rather than a trolled (1966)]; Jersey, Johnson v. New 384 concept by Congress. limited 719, 1772, 16 L.Ed.2d 882 U.S. [86 Denno, has, (1966)]; v. 388 293 Supreme sepa- Stovall U.S. The Court on three occasions, 1199 rate indicated at least some [87 posed suggested of other reservist 4. It officers. Justice has been defect cor- improper delegation Peckham concluded: rected Greenwell —the by Secretary Navy authority of too of —is As to the officer to be tried there was no to error. “technical” constitute a court, for it seems to us that it cannot be minimizing Without the technicalities inherent men, contended that not one of whom is personal subject matter in matters by sit, but, authorized law to on the con- (see, jurisdiction g., e. the technical rules that trary, sit, all whom are forbidden to can developed corporation’s a have determine legal constitute a court-martial because de- diversity citizenship purposes jurisdic- by tailed to act as such court an officer (! tion, Moore’s, Practice, 0.77-0.78), 1 Federal making contrary who such detail acted suggested regard I minimization of Green- complete to and in violation law. Where by McClaughry Deming, well as barred v. 186 jurisdiction per- does such a court obtain 46 L.Ed. 1049 U.S. single form a official function? How does (in McClaughry, required a In get any subject-matter it over corpus proceeding) habeas determine person over individual? The by a a whether reservist officer could tried particular tribunal is a mere creature of the composed entirely of officers statute, court said, as we have and must be cre- Army. Regular The Court found Con- provisions. ated its gress provided reservist had statute that at S.Ct. at 792. only by com- be tried courts-martial officers Rather, Florida)5 adjudicato- and Grosso Marchetti which limits (1967)]. v. power conduct ry the kind of of courts. dealt punished constitutionally cannot A case directly point more on is Gosa instance. first Mayden, 413 at 1045. Admit- 37 L.Ed.2d 873 At issue Gosa tedly, Justice Harlan makes no reference was retroactivity O’Callahan v. Parker, concept subject jurisdic- matter Nevertheless, apparent (1969) tion. (servicemen charged predicated retroactivity the Court its with “nonservice-connected” felonies are holding upon the fact that courts are entitled to grand indictment a jury power punish without a jury the conduct trial in a court). civilian proscribed by gam- Supreme Court, the unconstitutional The reviewing decisions Neil, bling statutes. thor- of the Circuits, Robinson Second and pro- Fifth oughly majority, majority discussed simi- duced no opinion and no concise (Waller larly holds retroactive a decision resolution of the retroactivity issue.8 Of 5. 397 U.S. Roy In James Gosa a commenced ha corpus proceeding beas in the Northern Dis trict of Florida to overturn a court-martial Flemings brought an action James rape. Construing conviction for O'Callahan seeking New York the Eastern District of merely quasi-jurisdictional (i. decision e. compel Secretary Navy of the to over- focusing upon right a decision to indict theft a court-martial conviction for auto turn grand jury right jury ment trial), and the to a accordingly. his records and to correct applied the District Court the Linklet Court, viewing crime as non-serv- District ter-Stovall calculus and concluded that O’Cal connected, concluded that O’Callahan ice applied lahan retroactively. should not be retroactively. Mayden, F.Supp. (N.D.Fla. Gosa v. Chafee, F.Supp. Flemings ex rel. 1969). affirmed, though Fifth Circuit its (E.D.N.Y.1971). reaching this conclu- analysis differed somewhat from that of the sion, Judge Weinstein found the Linkletter- (5th 1971). District Court. 450 F.2d 753 inapplicable, approach to be the court Stovall Court, Unlike Ap the District the Court of drawing jurisdic- between the distinction peals interpreted “pure” ju O’Callahan as a (i. aspects of O’Callahan e. the tional (i. focusing risdictional decision ae. are without to re- courts upon adjudicatiory power). Nevertheless, prosecu- non-service criminal solve tions) related appropriate Fifth Circuit viewed it as to de quasi-jurisdictional/procedural and the “jurisdiction termine the progeny. aspects its of Linkletter and al” decision basis the Linkletter-Sto F.Supp. af- at 199-203. The Second Circuit vall calculus. firmed, concluding that: judgment 8. The Supreme Court af- denying recent Court cases [t]he (450 firmed 753) the Fifth Circuit F.2d retrospective application to new rules of (458 reversed the 544). Second Circuit F.2d procedure where and where criminal regard With to 450 F.2d the affirmance old rules did not threaten the . was achieved as a following result of the integrity of deter basic the court’s truth split: compelling mining process, not a) Blackmun, Burger, Justices applied precedent when to a case founded White and power Powell jurisdiction concluded that of or O’Callahan the absence should on applied retroactively (413 not be 672-686, subject person. of the Not one the U.S. at over 2926); establishing principle a new which cases b) conceding prior precedent After prospective application (in- that in was limited cluding Neil, supra) required Robinson adjudicatory pow a total absence of volved application Moreover, O’Callahan, retroactive of if some which Jus- er. decisions Rehnquist tice concepts voted upon jurisdic to affirm not of nevertheless were based overruling applied since he competence favored O’Callahan as have been retro tional wrongly (413 U.S. actively decided at which S.Ct. ... a fortiori a case 2926); on of in the tradi exists lack c) Douglas reargument preserve Justice voted for on seeks basic tional sense and integrity (413 judicata the issue res at of U.S. 686- of the institutions which enforce 2926); laws, and applied. so criminal must be our Marshall, Brennan, d) Only Justices v. United States Coin & Cur United States grounds Stewart voted to on reverse rency [401 applied that tively (413 be O’Callahan should retroac- .... L.Ed.2d 434] 693-716, 2926). U.S. at 458 F.2d 544 at 550-551. reaching retroactivity 701-702, is- 413 U.S. at at. 2947. the Justices sue, the Stovall factors applied four case, In the instant the majority mini- that O’Callahan should be concluded Robinson, mizes the relevance of effect, while four prospective stricted Currency, Coin & States and Gosa. The retroactivity was that others indicated two first cases are distinguished on the grounds. on non-Stovall appropriate Waller, grounds that Marchetti and Marshall, writing the latter Justice (but Greenwell) not Grosso “had the ef- that Robinson Neil group, concluded ending fect the defendants’ criminal v. United Coin and United States regard liability.” 625, 6. I Opinion at n. “require” appli- Currency retroactive & fact that might GreenWell ex- be O’Callahan, given the O’Calla- cation posed to further proceedings as a differ- upon jurisdiction. focus han decision’s ence, but not meaningful distinction. 93 S.Ct. 2926. As 413 U.S. at As Justice Marshall suggested in his United States Coin & Cur- Robinson and dissent, Gosa this difference relates rency, Justice Marshall wrote that merely to the “impediment to trial” at not with ‘the “we are concerned Gosa issue the various cases. 413 at rule,’ procedural but implementation 702-703, Regardless 93 S.Ct. 2926. im- constitutional with an unavoidable whether or not there be could further particular prosecution pediment to prosecution, in each case (including 701, 93 at at conduct.” Greenwell), it was determined in each explained: He prius that nisi court pow- lacked the . . . In O’Callahan the ultimate adjudicate toer the issues raised in the was the extent issue constitu- pleadings. juris- tional underlies the majority deprecates the relevance military diction of tribunals. Where concluding lies outside of Gosa an offense the limits of split 4-4 of whether issue power, just there exists much jurisdictional decisions should accord- impediment to of a constitutional trial retroactivity (without concern for as there ed by court-martial existed to a analysis). I Linkletter-Stovall read Gosa trial in Marchetti civil and Grosso due (Mar- differently. I count four Justices privilege against self-incrimina- Brennan, shall, Rehnquist) Stewart or in Waller due to the Double tion jurisdictional who have concluded that forgot- It cannot be Jeopardy Clause. retroactively decisions tribunals are ten courts 8, supra). no (see n. I can find Justice jurisdiction. of limited See McClau- conclusion; contrary e. i. supporting Deming, U.S., ghry opinions take filed Gosa 791; none Watkins, Ex [786], at Parte juris- view that the 3 Pet. L.Ed. [7 650] analyzed must decisions dictional They authority exercise which cannot terms of Linkletter-Stovall calculus. them, upon not Congress has conferred four Justices who voted in favor authority Congress much less did so not prospectivity as a result of power to without constitutional confer. O’Callahan, aspects of but principle It is fundamental result of rather as a their characteriza- compels retroactive dealing of that case as one (footnote O’Callahan. short, split procedure.9 omitted) Circuit), (413 (Second at regard 71-1398 “service-connected” to No. theft was With 2926); of as a result and achieved was 692 and 7-2 reversal the split: Only following c) Brennan vot- Marshall and Justices the grounds of retroactive on the ed affirm Blackmun, Burger, a) White Justices application of O’Callahan. should that O’Callahan concluded Powell Indeed, highlighted Justice Marshall this above); (see retroactively applied not be characterization, stating that: Stewart, Douglas, b) and Rehn- Justices inap- quist plurality opin- that O'Callahan Justice concluded “Mr. Blackmun’s ion, ground the automobile plicable the that its efforts to on establish that O’Calla- 4-0, I issue on the of calculus. 4-4, rather but Linkletter-Stovall the ing jurisdictional decisions should whether disagree. retroactivity. full accorded distinguishable to be McSparran I find I am convinced Robinson and Unit- not see a bar to and therefore do it as Currency ed Coin & that decisions In analysis. McSparran, this the above involving power adjudicatory the required to wheth- determine Court normally courts be accorded full guardi- appointment of a “straw” er the retroactivity. My analysis of Gosa v. solely creating for the di- purpose an Mayden leads me believe that there is versity jurisdiction amounted collusion strong likelihood that Reversing pri- under 28 U.S.C. 1359.10 § expressly would so if hold the is- law,11 Court concluded that or case this directly sue were before it. Inasmuch as “manufacturing” diversity juris- such upon adjudicatory Greenw.eiifocused at 876. offends 1359. 402 F.2d diction § particular type of a of military apparent significant Two distinctions tribunal, apply I therefore it would ret- McSparran, First in but not in to me. roactively in the instant case. Greenwell, prius the nisi court had at is, jurisdiction. “facial” That least McSparran McSparran Retroactivity B. diversity apparent majority quite points As the properly in the jurisdiction conferred dis- parties out, major there is one obstacle to the court, subject finding to a trict later analysis set McSparran forth above. In Greenwell, the other collusion. Weist, (3d 1968), F.2d Cir. hand, delegation of improper author- denied, cert. ity deprived special court-martial we stated in the it jurisdiction Secondly, ab initio. is cru- of an opinion limiting course a decision opera- cial to note difference in prospective effect: that judgments might tive effect It is true that we deal here with a earlier, have issued. As discussed question. But the notion jurisdictional^ judgment rendered improperly “jurisdiction” subject that is a of some constituted court-martial is null void magical quality so that decision (see p. contradistinction, supra). jurisdiction against prevents according judgment upon “a based an erroneous recognition to other relevant consider- finding diversity is not void and is yield ations must knowledge immune from collateral attack.” Lester that is our construction of the stat- McFaddon, (4th 415 F.2d present ute determines in the 1969); see Cir. also Noble v. Union River jurisdiction whether case exists or is Railroad, 173-174, Logging absent. 37 L.Ed. 123 majority McSparran’s demeaning here concluded that this precludes passage “jurisdictional” may this ignor- court from cases thus be lim- Parker, majority actually begs han question. 395 U.S. 258 [89 nothing opinion plurality 291] was not a decision There is that dealing jurisdiction form,' prevent adopting in its classic would its author from Jus- implicitly acknowledges position if O’Callahan tice Marshall’s in a case Justice adjudicato- were in fact involving “pure” concerned ju- with the Blackmun construed as is, ry power jurisdictional compe- risdiction. —that tency- tribunals, its —of provides: 10. 28 U.S.C. necessarily fully retroactive in ef- jurisdic- fect . . shall . .” A district court not have 693-694, any party, a civil in which tion of action S.Ct. at 2943. The otherwise, majority opinion rejects improp- assignment suggestion or has been here erly collusively joined implicitly agreed that Justice made or to invoke Blackmun jurisdictional such court. decisions are to be ret- roactively. majority plu- jurisdic- the in which situations ited legal vitiate does not error tional judgment. ultimate efficacy of the quoted passage concede doI sug- expressly does McSparran

from pro- have I which limitations gest con- is correct majority If posed. appli- demands McSparran cluding that calculus. the Linkletter-Stovall

cation to reevaluate time believe I analysis McSparran’s subsequent Court’s light Robinson conclusions light Currency and Coin & dissent uncontroverted Marshall’s Justice Mayden. Gosa por-

Accordingly, from I dissent majority opinion II of of Part of the Linklet- opts for utilization I would reverse calculus. ORDER ON ORDER ter-Stovall TO SHOW CAUSE grounds that District CHAMBERS, Before KILKENNY and adju- relating to Greenwell, as a decision TRASK, Judges. Circuit applied retroac- dicatory power, must tively. PER CURIAM.

Respondent Phill Silver has been or- to show why dered cause some sanction 46(c), under Rule Federal Ap- Rules of pellate Procedure, for failure prose- appeal diligence cute the with due imposed. not be Respondent has been coun- relieved as SILVER, Esq. Phill In the Matter of with his replaced sel consent and for the appeal with the Federal Public Defend- America, UNITED STATES ers. The Court is view that re- Plaintiff-Appellee, spondent’s services did not benefit appellant. Eugene BRADFORD, Respondent has stated he is will- Defendant-Appellant. ing repay parents Bradford dollars, eight sum hundred out of a 74-2735. No. of one paid fee thousand dollars him of Appeals, United States Court parents, said the remaining two hundred Circuit. Ninth having expended dollars been for costs. The Court accepts the offer and directs 9, 1974.

Dec. payment be made within seven days from the the filing date of of this Respondent order. a receipt will file payment days within fourteen from the date of filing of this order. receipt, When Clerk receives such a will enter he an order that the order discharged. cause is show notes occasion it been subject risdiction’ in the case is normal not to also, Parker, redefined. See v. O’Callahan corpus collateral attack. While habeas is re 258, 1683, 395 U.S. (1969). L.Ed.2d 291 liberally garded more than most forms of col attack, lateral appeal 303, it is not to be used as an comprising Among the flexible U.S.App.D.C. the elements or a writ of error.” 74 fabric, appear jurisdictional 642, 644, denied, it would cert. F.2d 314 U.S. indispensable. components 678, 184, For (1941) (cita are not some 62 S.Ct. 86 L.Ed. 543 every jurisdiction example, of re- omitted). failure not tions hand, stay quires even in the its court liberality scope The increased accorded the of Weist, McSparran v. before it. case Warring in habeas question was attributed to the 1968), to the federal access F.2d there, personal liberty of involved an by tightening the court was circumscribed present issue not in the case before Nonetheless, diversity requirements. supra. See here. applied, generous on more older rule equitable grounds, suggested before the case all not been 8. Thus has three-judge court. is similar courts would judgments This of Huson, holding ascertained, 404 U.S. such in Co. after Chevron Oil if it were overturned (1971), that, where final, the statute while judgments were period person- limitations judge a shorter statute of required of the circuit chief also, Cipri- applied only prospectively. judges See ally designate the additional Houma, court, City 89 S.Ct. fact three-judge ano v. 395 U.S. of quired for each assignments years been made had 2284(1) every unsustained Nor is an order based 28 U.S.C. court. clerk jurisdiction Rather, unenforcea- assertion of void and that the inter- seem it would prevail, Mine Work- litigation ble. v. United and a ending United States would est America, jurisdiction ers 330 U.S. such circumstances failure pages previously at judgments L.Ed. 884 stated ren- the Court would vitiate 289-295, properly dis- where a presumption that even found- 67 S.Ct. 677 under a dered jurisdiction the sub- trict over jurisdiction. court had no ed ject the Norris-LaGuardia matter because of Co., Mining 9. Treinies 308 U.S. v. Sunshine Act, injunc- under certain circumstances 66, 78, 44, 51, 84 L.Ed. 85 might pending issue determination Baldwin, Surety quoting American Co. noncompli- jurisdictional question, 156, 166, (1932) 77 L.Ed. 231 U.S. (footnote 53 S.Ct. appropriately injunction ance with the omitted). County also Chicot contempt punished court. Bank, Drainage v. Baxter State Dist. city 84 L.Ed. Stoll supra Gelpcke, note In6. Gottlieb, invalida- despite the later enforceable bonds County Chicot Drainage principles District v. held that the Court Baxter State Bank10 concluded judicata illustrates this. issues that could res Baxter held bonds of the Drainage as well as Dis have asserted those actu- been trict, which had undergone reorganiza ally litigated. tion in federal March, court Court, According no The district court exercised judicata exception to res was warranted reorganization over the federal County, notwithstanding a la- in Chicot purporting statute authority establish finding that district court’s exer- ter in the district readjust courts to jurisdiction was based on an un- cise of debts of financially-distressed subdivi Despite juris- statute. constitutional sions a state. In May, in Ash defect, “parties dictional [had been] ton v. Cameron County Improve Water brought before accordance [the court] One, ment Dist. No. the United States requirements process with the of due * * Supreme Court struck down as violative at of the Constitution the pur statute that

Notes

notes Inc., Racing, 264 F.2d Corabi v. Auto rality opinion 11. See “never denied fact Philadelphia 1959); (3d Jaffe v. & Cir. spoke [O’Callahan] to a issue.” Co., 1950). F.2d 1010 R. Western Opinion true, at 625. While

Case Details

Case Name: Richard E. Brown, on Behalf of Himself and All Others Similarly Situated v. United States of America, Richard E. Brown and David l.taylor

Court Name: Court of Appeals for the Third Circuit

Date Published: Jan 24, 1975

Citation: 508 F.2d 618

Docket Number: 73-1996

Court Abbreviation: 3rd Cir.