Mudd, Thomas B. v. White, Thomas A.

                  United States Court of Appeals

               FOR THE DISTRICT OF COLUMBIA CIRCUIT

       Argued September 3, 2002   Decided November 8, 2002 

                           No. 01-5103

                         Thomas B. Mudd, 
          Son of Richard D. Mudd and great-grandson of 
            Samuel A. Mudd, as heir and successor to 
                    Samuel A. Mudd, deceased, 
                            Appellant

                                v.

         Thomas A. White, Secretary of the Army, et al., 
                            Appellees

          Appeal from the United States District Court 
                  for the District of Columbia 
                         (No. 97cv02946)

     Philip A. Gagner argued the cause and filed the briefs for 
appellant.

     R. Craig Lawrence, Assistant United States Attorney, ar-
gued the cause for appellees.  With him on the briefs were 
Roscoe C. Howard Jr., United States Attorney, Wyneva 
Johnson, Assistant United States Attorney, and James R. 
Agar II, Attorney, Office of the Judge Advocate General.

     Before:  Edwards and Rogers, Circuit Judges, and 
Williams, Senior Circuit Judge.

     Opinion for the Court filed by Circuit Judge Edwards.

     Edwards, Circuit Judge:  The appellant, Thomas B. Mudd,* 
whose great-grandfather, Dr. Samuel Mudd, was convicted by 
a military tribunal for his alleged role in the assassination of 
President Abraham Lincoln, seeks judicial review of the 
Army's refusal to reverse that conviction more than a century 
later.  Appellant bases his claim on 10 U.S.C. s 1552(a)(1) 
(2002), pursuant to which "[t]he Secretary of a military 
department may correct any military record ... when the 
Secretary considers it necessary to correct an error or re-
move an injustice."  The Army Board for Correction of 
Military Records ("ABCMR"), upon reviewing appellant's ap-
plication, recommended that Dr. Samuel Mudd's conviction 
before a military commission be set aside.  The Assistant 
Secretary of the Army (the "Secretary"), however, denied 
appellant's request for relief.  Appellant then filed suit in the 
District Court, claiming that the action of the Secretary was 
arbitrary and capricious under the Administrative Procedure 
Act ("APA"), 5 U.S.C. s 706(1)(A) (2002).  The District Court 
heard the case twice, see Mudd v. Caldera, 134 F. Supp. 2d 
138 (D.D.C. 2001) ("Mudd II");  Mudd v. Caldera, 26 F. Supp. 
2d 113 (D.D.C. 1998) ("Mudd I"), ultimately finding that the 
Secretary's decision was not arbitrary, capricious, or other-
wise in violation of law.  The District Court therefore granted 
summary judgment for the Army.  Mudd II, 134 F. Supp. 2d 
at 147.

__________
     * Richard D. Mudd, the original complainant in this case, passed 
away earlier this year, leaving his son - the great-grandson of Dr. 
Samuel Mudd - to pursue this appeal.  See Richard D. Mudd, 101 
Grandson of Booth Doctor, Wash. Post, May 22, 2002, at B07.

     We agree that appellant cannot prevail on his claim.  But 
we rely on different grounds than those advanced by the 
District Court.  In our view, appellant's claim must be dis-
missed for want of standing.  Under 10 U.S.C. s 1552(g), 
"military record" pertains only to "an individual member or 
former member of the armed forces."  Dr. Samuel Mudd was 
never a member of the armed forces.  Therefore, even if 
appellant can establish Article III standing, his action must 
be still dismissed for want of prudential standing. Appellant's 
interest in correcting the military record that relates to his 
great-grandfather's conviction is not within the "zone of inter-
ests" protected by the statute covering the correction of 
military records.

                          I. Background

     The factual and procedural history in this case are recount-
ed fully and thoughtfully in the District Court's opinions in 
Mudd I and Mudd II.  We will thus not repeat the extensive 
details of the actions before ABCMR, the Secretary, or the 
District Court.  Rather, we will focus on the portions of the 
record that are most pertinent to this appeal.

     On May 9, 1865, a special military tribunal charged eight 
parties with conspiring to murder President Abraham Lin-
coln.  One of these individuals was Dr. Samuel Mudd ("Dr. 
Mudd"), a non-military physician who owned a tobacco farm 
in Charles County, Maryland.  Mudd II, 134 F. Supp. 2d at 
140;  Mudd I, 26 F. Supp. 2d at 116.  Dr. Mudd was visited 
by John Wilkes Booth and an accomplice following the well-
known events at Ford's Theater on April 14, 1865.  After 
fatally wounding President Lincoln on that evening, Booth 
stopped at Dr. Mudd's farm - possibly in disguise - to receive 
medical treatment for an injury that he sustained during the 
escape.  Id.  Dr. Mudd told others about this encounter, and 
authorities soon thereafter arrested him for assisting in the 
infamous assassin's flight.

     President Andrew Johnson convened a special military 
tribunal to try all cases having to do with the plot to kill 
President Lincoln.  Known as the Hunter Commission, the 

nine appointed members of this body considered the evidence 
on the charges against Dr. Mudd.  Id.  Attorney General 
James Speed announced his opinion that a military court 
could preside over these hearings because the object of the 
conspiracy was the murder of President Lincoln, who acted as 
commander in chief.  See 12 Op. Att'y Gen. 297-317 (1865), 
reprinted in Joint Appendix ("J.A.") 19-25.

     In his defense, Dr. Mudd argued that allowing the Commis-
sion to assert jurisdiction over his case was unlawful.  Mudd 
I, 26 F. Supp. 2d at 116.  He reasoned that a non-military 
citizen was entitled to adjudication in the civilian courts 
during peace time.  Since the state of Maryland was not part 
of the Confederacy and local civilian courts remained open, a 
military tribunal had no power to try the case.  The Hunter 
Commission rejected this argument, issued a final judgment 
against Dr. Mudd, and then sentenced him to life imprison-
ment.  Id.

     During his incarceration, Dr. Mudd petitioned the federal 
courts for habeas relief.  See Mudd II 134 F. Supp. 2d at 140;  
Mudd I, 26 F. Supp. 2d at 117;  see also Ex Parte Mudd, 17 
F. Cas. 954 (S.D. Fla. 1868), reprinted in J.A. 41-43.  Dr. 
Mudd relied on the Supreme Court's holding in Ex Parte 
Milligan, 71 U.S. 2 (1866), a case adopting a limited view of a 
military tribunal's jurisdiction over civilians from non-
secessionist states.  See also Ex Parte Quirin, 317 U.S. 1 
(1942).  The District judge rejected these arguments and 
denied the habeas petition.  J.A. 43.  An appeal of that ruling 
on the merits never occurred due to intervening events 
leading to Dr. Mudd's release from prison.  On February 8, 
1869, President Andrew Johnson issued a full and uncondi-
tional pardon to Dr. Mudd in recognition of his efforts to 
assist medical officers during an epidemic of yellow fever.  
See Pres. Pardon of Samuel A. Mudd, reprinted in J.A. 44-48;  
Mudd I, 26 F. Supp. 2d at 117;  see also Mudd Compl. at p 26.

     More than a century later, Richard D. Mudd, Dr. Samuel 
Mudd's grandson, filed a formal petition with the Army to 
overturn the judgment of the Hunter Commission.  Mudd II, 
134 F. Supp. 2d at 140;  Mudd I, 26 F. Supp. 2d at 117.  

Richard Mudd based his claim solely on 10 U.S.C. 
s 1552(a)(1), pursuant to which "[t]he Secretary of a military 
department may correct any military record ... when the 
Secretary considers it necessary to correct an error or re-
move an injustice."  He asked the Army to expunge the 
official documents relating to his grandfather's conviction.  
He specifically argued that the judgment of the Hunter 
Commission was invalid, because his grandfather was factual-
ly innocent of the conspiracy charge and because a military 
tribunal had no jurisdiction to try civilians during times of 
peace.  Mudd II, 134 F. Supp. 2d at 140;  Mudd I, 26 
F. Supp. 2d at 117.

     ABCMR conducted a hearing on the petition and deter-
mined that circumstances warranted a reversal of Dr. Mudd's 
conviction on the ground that the Hunter Commission's juris-
diction did not extend to noncombatant civilians like Dr. 
Mudd.  Mudd I, 26 F. Supp. 2d at 122.  On January 22, 1992, 
ABCMR recommended that the Secretary of the Army alter 
the necessary records and void the 19th Century conviction.  
Id.

     The Secretary rejected ABCMR's recommendation and 
declined to alter the records relating to Dr. Mudd's convic-
tion.  Mudd II 134 F. Supp. 2d at 141.  Following a remand 
from the District Court to conduct additional administrative 
proceedings, see Mudd I, 26 F. Supp. 2d at 120, the Secretary 
held steadfast to the view that the Hunter Commission acted 
within its lawful jurisdiction in convicting Dr. Mudd.  Mudd 
II, 134 F. Supp. 2d at 142.  The Secretary reasoned that John 
Wilkes Booth was an unlawful belligerent who had committed 
the Lincoln assassination as an act of war.  Therefore, ac-
cording to the Secretary, the military tribunal's power to try 
Dr. Mudd was appropriate because the laws of war applied to 
all parts of the underlying conspiracy.  Id.

     Richard Mudd then sought judicial review in District Court, 
claiming that the Secretary's action in denying relief under 10 
U.S.C. s 1552(a)(1) was arbitrary and capricious under the 
Administrative Procedure Act ("APA"), 5 U.S.C. s 706(1)(A).  
On March 14, 2001, the District Court granted summary 

judgment in favor of the Army.  Mudd II, 134 F. Supp. 2d at 
147-48.  The trial judge found that the Army reached its 
decision after properly weighing the evidence presented in 
favor of reversing the conviction.  Id. at 143-44.  The District 
Court also found that the Secretary's application of the "law 
of war" principle instead of the martial law principle found in 
Milligan was not arbitrary, capricious, or contrary to law.  
Id. at 146-47.  Appellant then sought review in this court.

     Richard D. Mudd died earlier this year, leaving his son - 
the great-grandson of Dr. Mudd - to pursue this appeal.  On 
August 20, 2002, after the initial submission of briefs, the 
court directed the parties to provide supplemental briefing on 
the issue as to whether appellant lacked standing to seek 
judicial relief in federal court. See Mudd v. White, No. 
01-5103 (D.C. Cir. Aug. 20, 2002) (Order).

                           II. Analysis

     Most of the oral argument before this court focused on 
appellant's standing to sue.  Because standing is a threshold 
requirement, and because (as we explain below) appellant has 
failed to demonstrate standing in this case, this will be the 
sole focus of our decision.

     There are two principal forms of standing:  "Article III 
(case or controversy)" and "prudential."  The former, which 
is jurisdictional and cannot be modified by Congress, entails 
three requirements:

          First, the plaintiff must have suffered an "injury in 
     fact"--an invasion of a legally protected interest which is 
     (a) concrete and particularized, and (b) "actual or immi-
     nent, not 'conjectural' or 'hypothetical.' " Second, there 
     must be a causal connection between the injury and the 
     conduct complained of--the injury has to be "fairly ... 
     trace[able] to the challenged action of the defendant, and 
     not ... th[e] result [of] the independent action of some 
     third party not before the court."  Third, it must be 
     "likely," as opposed to merely "speculative," that the 
     injury will be "redressed by a favorable decision."
     
          The party invoking federal jurisdiction bears the bur-
     den of establishing these elements. Since they are not 
     mere pleading requirements but rather an indispensable 
     part of the plaintiff's case, each element must be sup-
     ported in the same way as any other matter on which the 
     plaintiff bears the burden of proof, i.e., with the manner 
     and degree of evidence required at the successive stages 
     of the litigation.
     
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) 
(citations omitted).

     Prudential standing "denies a right of review if the plain-
tiff's interests are so marginally related to or inconsistent 
with the purposes implicit in the statute that it cannot 
reasonably be assumed that Congress intended to permit the 
suit."  Clarke v. Sec. Indus. Ass'n, 479 U.S. 388, 399 (1987).  
The Court has amplified the doctrine, as follows:

     In addition to the immutable requirements of Article III, 
     "the federal judiciary has also adhered to a set of pru-
     dential principles that bear on the question of standing."  
     Like their constitutional counterparts, these "judicially 
     self-imposed limits on the exercise of federal jurisdiction" 
     are "founded in concern about the proper--and properly 
     limited--role of the courts in a democratic society";  but 
     unlike their constitutional counterparts, they can be mod-
     ified or abrogated by Congress.  Numbered among these 
     prudential requirements is the doctrine of particular 
     concern in this case:  that a plaintiff's grievance must 
     arguably fall within the zone of interests protected or 
     regulated by the statutory provision or constitutional 
     guarantee invoked in the suit.
     
Bennett v. Spear, 520 U.S. 154, 162 (1997) (citations omitted).

     The Government argues strenuously that appellant cannot 
satisfy the "case" or "controversy" requirements of Article 
III, because he has not demonstrated that his alleged injury 
is fairly traceable to the actions of the Secretary, or that the 
alleged injury will likely be redressed by a decision from this 
court ordering the Army to correct its records.  In particular, 

the Government argues that the reputational injury alleged 
by appellant is more likely the result of the ravages of history 
than of any official decision by the Secretary.  The Govern-
ment also contends that an action by the Army to change its 
records will not remedy the alleged reputational harm suf-
fered by appellant.  We need not address these arguments, 
however, because we find that appellant's claim assuredly 
fails for want of prudential standing.

     Appellant's insurmountable problem in this case is that his 
claim, resting on 10 U.S.C. s 1552(a)(1), is not "arguably 
within the zone of interests to be protected or regulated by 
the statute ... in question."  Ass'n of Data Processing Serv. 
Orgs. v. Camp, 397 U.S. 150, 153 (1970).  The "zone of 
interests" requirement has neither been eliminated nor ad-
justed by Congress with respect to the coverage of claims 
arising under 10 U.S.C. s 1552(a)(1).  Therefore, appellant 
must show that his asserted interest is among the group of 
claims that is envisioned by the relevant statute.  See Sierra 
Club v. EPA, 292 F.3d 895, 902 (D.C. Cir. 2002);  Cement Kiln 
Recycling Coalition v. EPA, 255 F.3d 855, 870 (D.C. Cir. 
2001).  He fails this test if his interests are so marginally 
related to or inconsistent with the implicit purposes in the 
statute "that it cannot reasonably be assumed that Congress 
intended to permit the suit."  Clarke v. Sec. Indus. Ass'n, 479 
U.S. at 399;  see also Scheduled Airlines Traffic Officers, Inc. 
v. Dep't of Def., 87 F.3d 1356, 1359 (D.C. Cir. 1996).

     In this case, appellant asserts an interest in correcting 
records to vacate the criminal conviction of his great-
grandfather.  The applicable federal statute that gives rise to 
appellant's claim was last amended by Congress before the 
present lawsuit was initiated.  Compare 10 U.S.C. s 1552 
(1998) (amending subsection (g)), with Mudd I, 134 F. Supp. 
2d at 140 (noting Army's final denial of Richard Mudd's 
petition on Mar. 6, 2000).  The amended subsection 1552(g) 
defines a "military record" as a document that "pertains to (1) 
an individual member or former member of the armed forces, 
or (2) ... any other military matter affecting a member or 
former member of the armed forces...."  10 U.S.C. 
s 1552(g).  And 10 U.S.C. s 1552(b) makes it clear that only 

a "claimant or his heir or legal representative" may file a 
petition under s 1552(a) to correct a "military record."  See 
also 32 C.F.R. s 581.3(d)(1)(iii) (2002).  Therefore, the statute 
plainly contemplates that only the claimant member of the 
armed forces (or his heir or legal representative) may seek to 
alter a "military record" pertaining to the claimant.  We 
assume arguendo that Dr. Mudd's grandson and great-
grandson indeed qualify as heirs or legal representatives.  
However, as Dr. Mudd was not a "member or former member 
of the armed forces," neither the grandson nor the great-
grandson is an heir or legal representative of the type of 
"claimant" contemplated by the statute.  In other words, 
their petition does not pertain to "a member or former 
member of the armed services."  Appellant is thus not within 
the "zone of interests" protected or regulated by the statute.

                         III. Conclusion

     For the reasons enumerated above, the appeal is denied 
and the case is dismissed.