SCHLESINGER, SECRETARY OF DEFENSE, ET AL. v. COUNCILMAN
No. 73-662
Supreme Court of the United States
Argued December 10, 1974—Decided March 25, 1975
420 U.S. 738
Nicholas D. Garrett and Orin Christopher Meyers argued the cause and filed a brief for respondent.*
MR. JUSTICE POWELL delivered the opinion of the Court.
On March 27, 1972, court-martial charges were preferred against respondent Bruce R. Councilman, an Army captain on active duty at Fort Sill, Okla. The charges alleged that Captain Councilman had wrongfully sold, transferred, and possessed marihuana. On July 6, 1972, the District Court for the Western District of Oklahoma permanently enjoined petitioners, the Secretaries of Defense and of the Army and the Commanding
The judgments of the District Court and the Court of Appeals were predicated on certain assumptions, not hitherto examined by this Court,1 concerning the proper relationship between the military justice system established by Congress and the powers and responsibilities of Art. III courts. In the view we take of the matter, the case presents no occasion for resolution of the merits of Councilman‘s “service-connection” claim. Although the District Court may have had subject-matter jurisdiction, we think that the balance of factors governing exercise of equitable jurisdiction by federal courts normally weighs against intervention, by injunction or otherwise, in pending court-martial proceedings. We see nothing in the circumstances of this case that alters this general equitable balance. Accordingly, we reverse.
I
The parties in the District Court stipulated the relevant facts.2 They need only be summarized here. The Army‘s Criminal Investigation Detachment at Fort Sill received information from a confidential informant that Councilman was using marihuana at his off-post apartment. The detachment arranged to have Councilman invited to an off-post party, where he was introduced to Specialist Four Glenn D. Skaggs, an enlisted man work-ing as a detachment undercover agent. Skaggs, who
At a preliminary hearing held on June 27, 1972, Councilman, represented by counsel, moved to dismiss the charges, contending that the court-martial lacked jurisdiction under this Court‘s decision in O‘Callahan v. Parker, 395 U. S. 258 (1969), because the alleged offenses were not “service connected.” After an evidentiary hearing, the presiding military judge denied the motion and scheduled the court-martial to begin on July 11. On July 5, Councilman brought this action in the District Court, moving for a temporary restraining order and a preliminary injunction to prevent his impending court-martial. Councilman claimed that since
The Court of Appeals affirmed, holding that the alleged offenses did not meet the tests for service connection set forth in O‘Callahan v. Parker, supra, and elaborated in Relford v. U. S. Disciplinary Commandant, 401 U. S. 355 (1971). The court found that only one of the factors enumerated in those decisions pointed to service connection in this case: the “factor relat[ing] to the rank of the persons involved in the incident or the fact that both were servicemen.” 481 F. 2d, at 614. The court concluded that this factor, standing alone, was insuffi-
On behalf of the military authorities, the Solicitor General filed a petition for a writ of certiorari addressed to the “service-connected” offense issue,6 and noting the existence of conflicts on this issue between the decision below and decisions of the Court of Military Appeals.7 We granted the petition, 414 U. S. 1111 (1973),8 and although normally we do not consider questions raised neither below nor in the petition, see United States v. Richardson, 418 U. S. 166, 206 (1974) (STEWART, J., dissenting), the jurisdictional and equity issues necessarily implicit in this case seemed sufficiently important to raise them sua sponte. See, e. g., Younger v. Harris, 401 U. S. 37, 40 (1971); Duignan v. United States, 274 U. S. 195, 200 (1927), and cases there cited. We therefore requested supplemental briefs “on the issues of (1) the jurisdiction of the District Court, (2) exhaustion of
II
Presumably the District Court found jurisdiction under
Petitioners rely on the legislative history of Art. 76 as demonstrating that Congress intended to limit collateral attack in civilian courts on court-martial convictions to proceedings for writs of habeas corpus under
We have declined to decide this question in the past.11 We now conclude that although the article is highly relevant to the proper scope of collateral attack on court-martial convictions and to the propriety of equitable intervention into pending court-martial proceedings, it does not have the jurisdictional consequences petitioners ascribe to it.
This Court repeatedly has recognized that, of necessity, “[m]ilitary law . . . is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment.” Burns v. Wilson, 346 U. S. 137, 140 (1953); Parker v. Levy, 417 U. S. 733, 744 (1974). Congress is empowered under Art. I, § 8, to “make Rules for the Government and Regulation of the land and naval Forces.” It has, however, never deemed it appropriate to confer on this Court “appellate jurisdiction to supervise the administration of criminal justice in the military.” Noyd v. Bond, 395 U. S. 683, 694 (1969). See Ex parte Vallandigham, 1 Wall. 243, 249-253 (1864).12 Nor has Congress conferred on any Art. III court jurisdiction directly to review court-martial determinations. The valid, final judgments of military courts, like those of any court of competent jurisdiction not subject to direct review for errors of fact or law, have res judicata effect and preclude further litigation of the merits. See, e. g., 1B J. Moore, Federal Practice ¶ 0.405 [4.-1], pp. 634-637 (2d ed. 1974). This Court therefore has adhered uniformly to “the general rule that the acts of a court martial, within the scope of its jurisdiction and duty, cannot be controlled or reviewed in the civil courts, by writ of prohibition or otherwise.” Smith v. Whitney, 116 U. S. 167, 177 (1886). See Hiatt v. Brown, 339 U. S. 103, 111 (1950); In re Grimley, 137 U. S. 147, 150 (1890).
But this general rule carries with it its own qualification—that the court-martial‘s acts be “within the scope of its jurisdiction and duty.” Collateral attack seeks, as a necessary incident to relief otherwise within the court‘s
These settled principles of the law of judgments have been held from the start fully applicable to court-martial determinations.15 Habeas corpus proceedings have been and remain by far the most common form of collateral attack on court-martial judgments; but historically they have not been the exclusive means of collateral attack. Nor were they the earliest. In Wise v. Withers, 3 Cranch 331 (1806), an action for trespass against a collector of court-martial fines, the Court held that the plaintiff, a federal official, was exempt from military duty and that the court-martial lacked jurisdiction. The Court concluded that “it is a principle, that a decision of such a tribunal, in a case clearly without its jurisdiction, cannot protect the officer who executes it.” Id., at 337. See Dynes v. Hoover, 20 How. 65 (1857); Martin v. Mott, 12 Wheat. 19 (1827).16 At
B
Petitioners argue that Art. 76 effected a change in this regime, not solely as a matter of the law of judgments, but as a matter of jurisdiction. This case, of course, does not concern a collateral attack on a court-martial judgment, at least in the normal sense, since there was no judgment to attack. Instead, Councilman, alleging the likelihood of irreparable injury, sought injunctive relief from an impending court-martial. He asserted, as the basis for such relief, that any judgment entered by
Article 76, however, does not expressly effect any change in the subject-matter jurisdiction of Art. III courts. Its language only defines the point at which military court judgments become final and requires that they be given res judicata effect. But, as the Court has recognized in the past, there is no necessary inconsistency between this and the standard rule that void judgments, although final for purposes of direct review, may be impeached collaterally in suits otherwise within a court‘s subject-matter jurisdiction.20 In Gusik v. Schilder, 340 U. S. 128 (1950), this Court was required to determine the effect on military habeas proceedings of Art. 53 of the Articles of War, the immediate statutory predecessor of
“We read the finality clause of Article 53 as doing no more than describing the terminal point for proceedings within the court-martial system. If Congress had intended to deprive the civil courts of their habeas corpus jurisdiction, which has been exercised from the beginning, the break with history would have been so marked that we believe the purpose would have been made plain and unmistakable. The finality language so adequately serves the more restricted purpose that we would have to give a strained construction in order to stir the constitutional issue that is tendered.” 340 U. S., at 132-133.
Petitioners agree with Gusik insofar as it holds that habeas corpus remains available despite the mandate of Art. 76. It is argued, however, both from the legislative history of Art. 76 itself and from the judgment implicit in the establishment of a comprehensive system of review within the military, that Congress intended to confine collateral attack in Art. III courts exclusively to habeas corpus. In doing so, it is said, Congress was acknowledging the special constitutional status of that writ under the Suspension Clause,22 a status shared by no other form of collateral relief. Petitioners point in particular to statements in the House
Petitioners’ interpretation of Art. 76, if its full reach were accepted, not only would prevent servicemen from obtaining injunctions under any circumstances against pending court-martial proceedings. It also would preclude any collateral relief in Art. III courts, even if the court-martial lacked jurisdiction in the most traditional sense, unless the serviceman could satisfy the requirements of habeas corpus jurisdiction. As pointed out above, certain remedies alternative to habeas, particularly suits for backpay, historically have been available. Indeed, this availability was reiterated shortly before enactment of the Code. See Shapiro v. United States, 107 Ct. Cl. 650, 69 F. Supp. 205 (1947). Yet nothing in Art. 76 distinguishes between habeas corpus and other remedies also consistent with well-established rules governing collateral attack. If Congress intended such a distinction, it selected singularly inapt language to express it.
This is not to say, of course, that for every such consequence there is a remedy in Art. III courts. That depends on whether the relief is sought in an action other-
But we are concerned here only with petitioners’ broad jurisdictional argument, which we reject for the reasons stated above. We therefore reiterate the construction given the Art. 76 language in Gusik and accepted by other courts, including the Court of Military Appeals,26 and accordingly hold that Art. 76 does not stand as a jurisdictional bar to Captain Councilman‘s suit.
III
Our holding that the District Court had subject-matter jurisdiction, assuming the requisite jurisdictional
In support of his prayer for an injunction, Councilman claimed that he would incur “great and irreparable damage in that he [might] be deprived of his liberty without due process of law. . . .” The presiding military judge had refused to dismiss the charges against Councilman, rejecting the argument that they were not service connected and that therefore the court-martial lacked jurisdiction to act on them. Thus, when the District Court intervened, there was no question that Councilman would be tried. But whether he would be convicted was a matter entirely of conjecture. And even if one supposed that Councilman‘s service-connection contention almost certainly would be rejected on any eventual military review, there was no reason to believe that his possible conviction inevitably would be affirmed.
It therefore appears that Councilman was “threatened with [no] injury other than that incidental to every criminal proceeding brought lawfully and in good faith.” Douglas v. City of Jeannette, 319 U. S. 157, 164 (1943). Of course, there is inevitable injury—often of serious proportions—incident to any criminal prosecution. But when the federal equity power is sought to be invoked against state criminal prosecutions, this Court has
As to state criminal prosecutions, such justification has been found to reside in the peculiarly compelling demands of federalism and the “special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law . . . .” Stefanelli v. Minard, supra, at 120. The precise content of constitutional rights almost invariably turns on the context of fact and law in which they arise. State courts are quite as capable as federal courts of determining the facts, and they alone can define and interpret state law. Equally important, under Art. VI of the Constitution, state courts
To some extent, the practical considerations supporting both the exhaustion requirement in habeas corpus and the federal equity rule barring intervention into pending state criminal proceedings except in extraordinary circumstances are similar to those that underlie the requirement of exhaustion of administrative remedies. E. g., Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41, 50-51 (1938). The latter rule, looking to the special competence of agencies in which Congress has reposed the duty to perform particular tasks, is based on the need to allow agencies to develop the facts, to apply the law in which they are peculiarly expert, and to correct their own errors. The rule ensures that whatever judicial review is available will be informed and narrowed by the agencies’ own decisions. It also avoids duplicative proceedings, and often the agency‘s ultimate decision will
These considerations apply in equal measure to the balance governing the propriety of equitable intervention in pending court-martial proceedings. But as in the case of state criminal prosecutions there is here something more that, in our view, counsels strongly against the exercise of equity power even where, under the administrative remedies exhaustion rule, intervention might be appropriate.30 While the peculiar demands of federalism are not implicated, the deficiency is supplied by factors equally compelling. The military is “a specialized society separate from civilian society” with “laws and traditions of its own [developed] during its long history.” Parker v. Levy, 417 U. S., at 743. Moreover, “it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise,” Toth v. Quarles, 350 U. S. 11, 17 (1955). To prepare for and perform its vital role, the military must insist upon a respect for duty and a discipline without counterpart in civilian life. The laws and traditions governing that discipline have a long history; but they are founded on unique military exigencies as powerful now as in the past. Their contemporary vitality repeatedly has been recognized by Congress.
In enacting the Code, Congress attempted to balance these military necessities against the equally significant interest of ensuring fairness to servicemen charged with military offenses, and to formulate a mechanism by which these often competing interests can be
As we have stated above, judgments of the military court system remain subject in proper cases to collateral impeachment. But implicit in the congressional scheme embodied in the Code is the view that the military court system generally is adequate to and responsibly will perform its assigned task. We think this congressional judgment must be respected and that it must be assumed that the military court system will vindicate servicemen‘s constitutional rights. We have recognized this, as well as the practical considerations common to all exhaustion requirements, in holding that federal courts normally will not entertain habeas petitions by military prisoners unless all available military remedies have been exhausted. Gusik v. Schilder, 340 U.S. 128 (1950); Noyd v. Bond, supra.32 The same principles are relevant to striking the balance governing the exercise of equity power. We hold that when a serviceman charged with crimes by military authorities can show no harm other than that attendant to resolution of his case in the military court system, the federal district courts must refrain from intervention, by way of injunction or otherwise.
Respondent seeks to avoid this result by pointing to the several military habeas cases in which this Court has not
Assuming, arguendo, that, absent incarceration or other deprivation of liberty, federal court intervention would be appropriate in cases like Toth and its progeny despite failure to exhaust military remedies, the considerations supporting such intervention are not applicable here. Councilman was on active duty when the charges against him were brought. There is no question that he is subject to military authority and in proper cases to disciplinary sanctions levied through the military justice system. We see no injustice in requiring respondent to
The separate opinion of MR. JUSTICE BRENNAN states:
“Military tribunals have no expertise whatever to bring to bear on the determination whether a common everyday practice carried on by civilians becomes service connected when carried on by servicemen.” Post, at 764-765. Moreover, that opinion finds the record devoid of evidence “that use of marihuana in any amounts under any circumstances adversely affects a serviceman‘s performance of his duties.” Post, at 769.
Although we do not address factual issues in this opinion, we note—in view of MR. JUSTICE BRENNAN‘S position—the Solicitor General‘s statement that “drug abuse is a far more serious problem in the military context than in civilian life.” Brief for Petitioners on Merits 15. The seriousness of the problem is indicated by information presented before congressional committees to the effect that some
We express no opinion whether the offense with which respondent in this case was charged is in fact service connected. But we have no doubt that military tribunals do have both experience and expertise that qualify them to determine the facts and to evaluate their relevance to military discipline, morale, and fitness.
We have no occasion to attempt to define those circumstances, if any, in which equitable intervention into pending court-martial proceedings might be justified. In the circumstances disclosed here, we discern nothing that outweighs the strong considerations favoring exhaustion of remedies or that warrants intruding on the integrity of military court processes.
Reversed.
MR. CHIEF JUSTICE BURGER, concurring in the judgment.
I concur in the judgment because I believe that
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL join, concurring in part and dissenting in part.
I agree that
I dissent, however, from the Court‘s holding in Part III that, as applied to his challenge that the offense charged was not service connected, this serviceman must exhaust every avenue within the military for determination and review of that question, and that, until he does, “federal district courts must refrain from intervention, by way of injunction or otherwise.” The Court imposes this restraint upon the exercise by the District Court of its conceded jurisdiction for reasons that clearly are not persuasive. Moreover, today‘s holding departs from an unbroken line of our decisions that—consistent with our basic constitutional tenet that subordinates the military to the civil authority—restricts military cognizance of offenses to the narrowest jurisdiction deemed absolutely necessary, and precludes expansion of military jurisdiction at the expense of the constitutionally preferred civil jurisdiction. Toth v. Quarles, 350 U.S. 11 (1955); Reid v. Covert, 354 U.S. 1 (1957); McElroy v. Guagliardo, 361 U.S. 281 (1960); Noyd v. Bond, 395 U.S. 683 (1969).
I
It is, of course, settled that federal district courts may not entertain even a habeas corpus application of a serviceman convicted of offenses raising no question of service connection until the serviceman has exhausted all available military remedies, Noyd v. Bond, supra. But our opinion in Noyd carefully distinguished situations presenting challenges to the jurisdiction of the military
That statement precisely fits the situation presented by this case. The respondent serviceman raises “substantial arguments denying the right of the military to try [him] at all,” and the Court utterly fails to suggest any special “expertise of military courts,” including the Court of Military Appeals, that even approximates the far greater expertise of civilian courts in the determination of constitutional questions of jurisdiction. Thus there is compelled here the conclusion in favor of civilian court cognizance without prior exhaustion of military remedies that was reached in Toth v. Quarles, Reid v. Covert, and McElroy v. Guagliardo.
The Court provides no reasoned justification for its departure from these holdings in requiring exhaustion in this case.1 The Court‘s failure is not surprising since plainly there is wholly lacking in military tribunals the
The offense charged here is not enmeshed in “technical provisions of the Uniform Code.” On the contrary, it is a common everyday type of drug offense that federal courts encounter all over the country every day. The Court agrees that a drug transaction is not a service-connected offense merely because the participants are servicemen. Rather, the Court analogizes military tribunals to administrative agencies and imposes the exhaustion requirement familiar in agency cases—and it does so even though the question presented is a constitutional determination whether the military has any jurisdiction to try the serviceman at all. The mere suggestion of such an analogy is well nigh incredible. Military tribunals have no expertise whatever to bring to bear on the determination whether a common everyday practice carried on by civilians becomes service connected when
The Court‘s grounding of its requirement of deference to the military on the notion that respondent may prevail on his claim that the offense was not service connected is equally baffling. Petitioners concede that “the holdings of the Court of Military Appeals with regard to the ‘service connection’ of various kinds of drug offenses suggest that such a challenge to court-martial jurisdiction would probably have been unsuccessful.” Brief for Petitioners on Jurisdictional Issues 19. A cursory survey
I would conclude, therefore, that the Court of Appeals properly affirmed the action of the District Court in refusing to defer to the military, and in deciding the jurisdictional question of service connection. In that circumstance, I reach the merits. I conclude that the offense was not service connected and would affirm the Court of Appeals’ affirmance of the District Court‘s injunction against respondent‘s court-martial.
II
In Relford v. U. S. Disciplinary Commandant, 401 U.S. 355, 365 (1971), this Court identified 12 factors that O‘Callahan v. Parker, supra, held should be weighed in determining whether an offense is service connected:
- “1. The serviceman‘s proper absence from the base.
- 2. The crime‘s commission away from the base.
- 3. Its commission at a place not under military control.
- 4. Its commission within our territorial limits and not in an occupied zone of a foreign country.
- 5. Its commission in peacetime and its being unrelated to authority stemming from the war power.
- 6. The absence of any connection between the defendant‘s military duties and the crime.
- 7. The victim‘s not being engaged in the performance of any duty relating to the military.
- 8. The presence and availability of a civilian court in which the case can be prosecuted.
- 9. The absence of any flouting of military authority.
- 10. The absence of any threat to a military post.
- 11. The absence of any violation of military property.
- 12. The offense‘s being among those traditionally prosecuted in civilian courts.” 401 U.S., at 365.
In weighing these factors, service connection cannot be established in this case. Respondent was properly absent from the post; the offense occurred in respondent‘s off-post apartment, while he was off duty; it was committed in the United States in peacetime; there was no connection between respondent‘s military duties and the crime; the offense is one which is prosecuted regularly in civilian courts, and these courts were available; and there was no threat to the security of the post or its property, or any flouting of military authority.
It is true that the undercover serviceman was performing a duty assigned to him by his military superiors. But this does not eliminate factor 7, for petitioners candidly admit that “Skaggs, was in fact an undercover
But the petitioners urge that military significance is present in “the bearing of the offense in question on the discipline, morale, and effectiveness of fighting forces,” Brief for Petitioners on Merits 4, and that this suffices to establish, for two reasons, that the offense is service connected. First, respondent, an officer, knew that he was dealing with an enlisted man, and that “in the tightly-knit, rumor-prone society of the military, word will usually circulate among the enlisted ranks concerning an officer‘s participation in such unlawfulness,” id., at 5, causing a breakdown in military discipline, effectiveness, and morale. Second, “possession of marijuana and other proscribed drugs, whether off base or on,” id., at 6, tends to impair the effectiveness of the Armed Forces.4
I would affirm.