United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 17, 2005 Decided January 27, 2006
No. 04-5382
CHARLES H. PIERSALL, III
APPELLANT
v.
DONALD C. WINTER, SECRETARY OF THE NAVY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 03cv01770)
Eugene R. Fidell argued the cause for appellant. With him
on the briefs were Matthew S. Freedus and Charlotte E.
Cluverius.
Barton F. Stichman, Arnon D. Siegel, and Michael C.
Higgins were on the brief of amicus curiae The National
Veterans Legal Services Program in support of appellant.
Peter D. Blumberg, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Kenneth L.
Wainstein, U.S. Attorney, R. Craig Lawrence, Assistant U.S.
Attorney, and D. Jacques Smith, Commander, Office of the
2
Judge Advocate General. Michael J. Ryan, Assistant U.S.
Attorney, entered an appearance.
Before: GINSBURG, Chief Judge, and GARLAND and
BROWN, Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Charles Piersall, a Commander in
the United States Navy, challenges the decision of the Board for
Correction of Naval Records (hereinafter Board or BCNR) not
to reverse the effects of his non-judicial punishment.* The
district court, relying upon our decision in Brannum v. Lake, 311
F.3d 1127 (2002), dismissed the case for lack of subject matter
jurisdiction. We reverse the order of the district court and
remand the matter for that court to review the decision of the
Board pursuant to § 706 of the Administrative Procedure Act
(APA), 5 U.S.C. § 706.
I. Background
On February 11, 1998 then-Lieutenant Commander Piersall
was the Executive Officer and Command Duty Officer of the
USS La Jolla, a nuclear submarine, when it collided with and
sank a Korean fishing vessel off the coast of Chinhae, Republic
of Korea. After rescuing the crew of the fishing vessel, the La
Jolla proceeded to the Chinhae naval base. On February 19 the
commander of Submarine Group 7, Rear Admiral Albert H.
Konetzni, Jr., initiated a proceeding -- known in the Navy as a
*
For simplicity we refer throughout to the decision of the
Board, but the final agency action under review is in fact the decision
of a designated representative of the Secretary of the Navy approving
the recommendation of the Board.
3
“mast” -- to determine whether to impose non-judicial
punishment upon any member of the crew of the La Jolla, which
under Article 15 of the Uniform Code of Military Justice a
commanding officer may do “for minor offenses without the
intervention of a court-martial.” 10 U.S.C. § 815(b). Admiral
Konetzni found Piersall had been derelict in his duties as the
second in command of the La Jolla because he negligently failed
to prevent the collision with the fishing vessel. As punishment,
he directed that a letter of reprimand be made part of Piersall’s
service record. Piersall unsuccessfully appealed the punishment
to the next superior authority, as permitted under 10 U.S.C. §
815(e), and then sought relief from the Board for Correction of
Naval Records.
Under 10 U.S.C. § 1552(a), the Secretary of a military
department (Army, Navy, or Air Force) may act “through boards
of civilians” to “correct any military record of the Secretary’s
department when the Secretary considers it necessary to correct
an error or remove an injustice.” Piersall petitioned the Board
to reverse the effects of his non-judicial punishment by
expunging from his record both the mast and the letter of
reprimand on the ground that the mast was invalid because he
had not been afforded an opportunity to refuse non-judicial
punishment. A member of the Navy may refuse non-judicial
punishment and demand trial by a court martial unless he is
“attached to or embarked in a vessel.” 10 U.S.C. § 815(a).
Piersall argued he was neither attached to nor embarked in the
La Jolla at the time of the mast, which was conducted in a
building on the Chinhae naval base approximately two miles
from the shipyard where the La Jolla was docked.
The Board concluded (1) the site of the mast was “in
sufficiently close proximity to [the] La Jolla to be deemed in the
ship’s immediate vicinity”; (2) Piersall “should be viewed as
4
being in the process of boarding” the vessel at the time of the
mast because he returned to the ship after the mast and “would
have returned as [Executive Officer] but for the guilty finding”;
and (3) therefore he was “attached to” the La Jolla and had no
right to refuse non-judicial punishment. The Board also noted
that Piersall could not have refused non-judicial punishment had
Admiral Konetzni elected to conduct the hearing on board the
La Jolla rather than ashore. The decision of the Board to deny
relief was approved by an Assistant General Counsel of the
Navy on behalf of the Secretary of the Navy.
Piersall then brought this suit in district court claiming the
Board’s decision not to reverse the effects of his non-judicial
punishment was arbitrary and capricious, unsupported by
substantial evidence, and contrary to law because he was not
“attached to” the La Jolla at the time of his mast and he should
have been afforded an opportunity to demand trial by a court
martial. He sought (1) vacatur of the Board’s decision; (2)
expungement from his record of the mast and of the letter of
reprimand; and (3) costs and attorneys’ fees.
The Secretary filed a motion pursuant to Federal Rule of
Civil Procedure 12(b)(6) to dismiss the complaint for failure to
state a claim, arguing Piersall lost any right he might have had
when he failed to request trial by a court martial prior to the
mast. The Secretary also argued the complaint should be
dismissed for lack of subject matter jurisdiction because the
district court lacks jurisdiction to review the decision of the
Board. Piersall opposed the Secretary’s motion to dismiss and
moved for summary judgment.
The district court granted the Secretary’s motion to dismiss
for lack of subject matter jurisdiction. Citing our decision in
Brannum, 311 F.3d 1127, the district court concluded that
5
because Piersall’s claim did not involve a challenge to military
jurisdiction, his claim was barred by the non-justiciability
doctrine of Feres v. United States, 340 U.S. 135 (1950).
II. Analysis
On appeal Piersall argues the district court erroneously
dismissed his case for lack of jurisdiction and urges us to reach
the merits of his challenge to the Board’s decision. We review
de novo the district court’s grant of a motion to dismiss for lack
of subject matter jurisdiction. See Caribbean Broad. Sys., Ltd.
v. Cable & Wireless PLC, 148 F.3d 1080, 1085 (1998). We
begin with jurisdiction and conclude that Piersall’s claims are
justiciable, but we do not reach the merits of his claims.
A. Jurisdiction
These are not uncharted waters. We have many times
reviewed the decisions of boards for correction of military
records “in light of familiar principles of administrative law.”
See, e.g., Kreis v. Sec’y of the Air Force, 866 F.2d 1508, 1511
(1989); see also Turner v. Dep’t of Navy, 325 F.3d 310, 313-14
(2003); Musengo v. White, 286 F.3d 535, 538 (2002); Cone v.
Caldera, 223 F.3d 789, 793 (2000); Frizelle v. Slater, 111 F.3d
172, 176 (1997); Dickson v. Sec’y of Def., 68 F.3d 1396, 1400
(1995); Kidwell v. Dep’t of the Army, 56 F.3d 279, 286 (1995).
In doing so we were following the lead of the Supreme Court.
See Kreis, 866 F.2d at 1512, in which we relied upon Chappell
v. Wallace, 462 U.S. 296, 303-04 (1983) (indicating decisions
of the BCNR are “subject to judicial review and can be set aside
if they are arbitrary, capricious, or not based on substantial
evidence”).
In Kreis we also acknowledged the “fundamental and highly
6
salutary principle” that “[j]udges are not given the task of
running the [military].” 866 F.2d at 1511 (quoting Orloff v.
Willoughby, 345 U.S. 83, 93 (1953)); see also Gilligan v.
Morgan, 413 U.S. 1, 10 (1973). In light of that principle, we
held nonjusticiable a serviceman’s claim for retroactive
promotion. We held justiciable, however, the serviceman’s
“more modest request” to review “the reasonableness” of the
decision of a military board of correction pursuant to the
standards of the APA. Kreis, 866 F.2d at 1511. Review of that
decision would not interfere unduly with military matters
because “[a]djudication of [such] claims requires the district
court to determine only whether the Secretary’s decision making
process was deficient, not whether his decision was correct.” Id.
In other words, such review
would not require the district court to substitute its
judgment for that of the Secretary .... The court would
only require the Secretary, on remand, to explain more
fully the reasoning behind his decision and, with
respect to his denial of a retroactive promotion, to
apply the appropriate legal standard.
Id. at 1512.
Contrary to the Secretary’s understanding of Brannum, 311
F.3d 1127, nothing in that case overruled, or limited the scope
of review to be applied in, the Kreis line of cases. Brannum, a
reservist in the Air Force, was subjected to non-judicial
punishment and demotion for having been absent without leave.
Id. at 1128. He filed suit making claims of malicious
prosecution, defamation, and discrimination, among others,
against various officers and civilian employees of the Air Force.
Id. at 1128-29. He also sought to vacate his non-judicial
punishment on the ground the Air Force did not have
7
jurisdiction to impose it because, as an Individual Mobilization
Augmentee in the Air Force Reserves, he was not a “member of
a reserve component” within the meaning of 10 U.S.C. § 802(d)
and therefore could not be recalled to active service in order to
face non-judicial punishment. Brannum, 311 F.3d at 1128-29.
He did not petition for relief from a military board of correction.
The district court dismissed all Brannum’s claims on the basis
of the Supreme Court’s decision in Feres that “the Government
is not liable under the Federal Tort Claims Act for injuries to
servicemen where the injuries arise out of or are in the course of
activity incident to service.” 340 U.S. at 146; see also United
States v. Stanley, 483 U.S. 669, 678 (1987) (extending Feres to
all constitutional tort claims otherwise authorized under Bivens).
We upheld the dismissal of Brannum’s tort claims but not
the dismissal of his equitable claim challenging military
jurisdiction. We did not need to establish the metes and bounds
of the Feres doctrine in order to see that it did not extend to the
jurisdictional objection. See Brannum, 311 F.3d at 1130, where
we cited Schlesinger v. Councilman, 420 U.S. 738, 744 (1975),
in which the Supreme Court held that civil courts have subject
matter jurisdiction to hear a challenge to the jurisdiction of a
court martial.
In the present case, the district court, relying upon
Brannum, held Piersall’s claims barred by the Feres doctrine.
As that court read Brannum, we there “solidified a boundary to
the Feres doctrine” between service members’ claims that
challenge military jurisdiction and those that do not and hence
“dismissed all of Brannum’s claims other than the jurisdictional
claim.” Deeming Piersall’s claim non-jurisdictional in nature
because he argues only that he was entitled to trial by a court
martial, not that the military lacked jurisdiction, the district court
dismissed his claim pursuant to Feres. The Secretary urges us
8
to adopt the same reasoning.
The Secretary overreads Brannum. That the Feres doctrine
does not bar an equitable suit challenging military jurisdiction
does not imply that it does bar other challenges related to the
administration of military justice. Although the limits of the
Feres doctrine remain indistinct, we do know that the principle
forbidding judicial interference with military decisions, which
principle underlies Feres, Chappell, and related cases, does not
preclude review under the APA of decisions of military boards
of correction. See Chappell, 462 U.S. at 303; Kreis, 866 F.2d at
1511. Brannum did nothing to alter this long-standing rule.
Indeed, four months after Brannum, in Turner v. Department of
Navy, we reviewed under the APA a decision of the Secretary of
the Navy to reject the recommendation of the Board that he
undo the effects of Turner’s non-judicial punishment. See 325
F.3d at 313-14.
The Secretary argues that review of the Board’s decision is
barred not only by the Feres doctrine but also by what he
describes as the “general prohibition recognized in Schlesinger
against Article III courts interfering in the military justice
system.” The military justice system, however, is not under
review in this case; Piersall challenges not the decision of a
military court or even of his commanding officer but the
decision of a civilian administrative board, as did the plaintiff in
Turner. As we pointed out in Kreis, “[t]he APA erects a
‘presumption of judicial review’ at the behest of those adversely
affected by agency action,” 866 F.2d at 1513 (quoting Abbott
Labs. v. Gardner, 387 U.S. 136, 140 (1967)), and the Secretary
does not even raise an argument that this presumption is
overcome with respect to the decisions of civilian boards for
correction of military records. Nor is the legislative context
conducive to such an argument. Although the Congress has
9
expressly prohibited boards of correction from reviewing the
records of courts martial except in very limited circumstances,
see 10 U.S.C. § 1552(f), it has not done so with respect to non-
judicial punishment.* We are aware of no reason, therefore, to
reconsider the well-settled rule that the decisions of boards for
correction of military records are subject to review under the
APA. See Abbott Labs., 387 U.S. at 140 (“[O]nly upon a
showing of ‘clear and convincing evidence’ of a contrary
legislative intent should the courts restrict access to judicial
review”).
The Secretary argues such review will lead us into territory
cordoned off by the Supreme Court’s teaching in Schlesinger
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,” see 420 U.S.
at 746 (citation omitted), which teaching we concluded in
Brannum applies to proceedings for the imposition of non-
judicial punishment. See 311 F.3d at 1131. Again the Secretary
reads a case too broadly.
*
This should come as no surprise because for courts martial
the “Congress has established a complete and distinct” system of
procedural protections and levels of appellate review. See McKinney
v. White, 291 F.3d 851, 853-54 (D.C. Cir. 2002); see also Burns v.
Wilson, 346 U.S. 137, 141 (1953) (describing “[r]igorous provisions”
and “hierarchy” of review applicable to courts martial). The boards,
in contrast, typically consider the decision of a commanding officer
made with minimal procedural protection and appealable only to the
“next superior authority” per 10 U.S.C. § 815(e). See Dwight H.
Sullivan, Overhauling the Vessel Exception, 43 Naval L. Rev. 57, 58-
59 (1996) (identifying procedural rights not afforded during Article 15
proceeding, including legal representation, suppression of
unconstitutionally obtained evidence, confrontation of one’s accuser,
and decision by a panel of disinterested service members).
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In Schlesinger, the Supreme Court did not ground its rule
against review of a court martial in a broad principle of
abstention, as it did when holding that a civil court ordinarily
should not enjoin an impending court martial, see 420 U.S. at
754. Rather, “recogniz[ing] that, of necessity, ‘[military] law ...
is a jurisprudence which exists separate and apart from the law
which governs in our federal judicial establishment,’” the court
held, pursuant to “settled principles of the law of judgments,”
that 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.” Id. at 746-47 (quoting Burns,
346 U.S. at 140); see also 10 U.S.C. § 876 (judgments of courts
martial after appeal are final, conclusive, and binding upon
courts, agencies, and officers of the United States). With the
exception of a collateral attack challenging the validity of a
judgment for “lack of jurisdiction or some other equally
fundamental defect,” review by a civil court of a judgment
issued by a military court is barred. Schlesinger, 420 U.S. at
746-48 (the Congress has not “conferred on any Art. III court
jurisdiction directly to review court-martial determinations” and
collateral attack is “barred unless it appear[s] that the judgments
[are] void”); see also McKinney, 291 F.3d at 854 (civil courts
“lack[] jurisdiction of a direct appeal of a court martial”); Shaw
v. United States, 209 F.2d 811, 812-13 (D.C. Cir. 1954) (“[W]e
are clear that this court lacks jurisdiction to undertake the direct
review which petitioners seek”).
Piersall’s challenge to the decision of the Board, however,
is not a request for review of Admiral Konetzni’s decision
imposing non-judicial punishment, much less a request for
review of the judgment of a military court. Piersall seeks review
only of a decision rendered by a civilian administrative board
established by the Congress separate and apart from the system
11
of military courts and appeals and charged with the authority to
change a military record when necessary to “correct an error” or
“remove an injustice.” And even with respect to that decision,
as we explained in Kreis, judicial review in this context involves
“an unusually deferential application of the ‘arbitrary or
capricious’ standard” of the APA. 866 F.2d at 1514 (“It is
simply more difficult to say that the Secretary has acted
arbitrarily if he is authorized to act ‘when he considers it
necessary to correct an error or remove an injustice,’ 10 U.S.C.
§ 1552(a) (emphasis added)”).
The Secretary also cites and quotes our decision in
McKinney, 291 F.3d at 853, in support of his argument that
review here will undermine “the comprehensive military justice
system enacted by Congress [which] reflects a legislative effort
‘to balance ... military necessities against the equally significant
interest in ensuring fairness to servicemen charged with military
offenses.’” In McKinney, we concluded we were without
jurisdiction to review under the APA the Judge Advocate
General’s denial of a serviceman’s request to set aside his court
martial conviction and sentence because, citing Schlesinger, we
said it would have required us to “review [a] direct appeal[]
from the highest military official of a general court martial.” Id.
at 854. We found “Congress’ establishment ... of a separate
judicial system for courts martial review ... convincing evidence
that Congress could not have intended Judge Advocate General
review of courts martial to fall within APA review of agency
decisions.” Id. at 853. Equally convincing here is the
Congress’s establishment of a civilian administrative board with
authority to correct the records of proceedings for the imposition
of non-judicial punishment. APA review of that board’s
decisions does not invite the review of military judgments
prohibited in the Schlesinger line of cases and therefore does
nothing to upset the balance with which the Secretary is
12
rightfully concerned.
For the foregoing reasons, we hold that the district court has
jurisdiction to consider Piersall’s petition to review the decision
of the BCNR.
B. The Merits
Piersall argues that if we hold the district court has subject
matter jurisdiction of his claims, as we do, then we should
proceed to the merits of his case rather than remand it to the
district court for further proceedings because “continuing
prejudice flow[s] from the presence of the mast and letter of
reprimand in [his] service record.” Piersall also argues we may
conserve judicial resources by proceeding to the merits because
the parties’ legal positions are fully presented in the record
compiled by the Board and he has submitted the documents
needed for APA review on appeal. See Walker v. Jones, 733
F.2d 923, 928 n.7 (D.C. Cir. 1984) (“The defenses present
questions of law fully briefed by the parties. Their adjudication
now, informed by an adversarial airing, should occasion no
surprise.”); Grace v. Burger, 665 F.2d 1193, 1197 n.9 (D.C. Cir.
1981), aff’d in part and vacated in part on other grounds sub
nom. United States v. Grace, 461 U.S. 171 (1983). The Navy
counters with the observation that, because the district court
dismissed the case at the threshold, neither the applicability of
the “vessel exception” nor the other issues underlying Piersall’s
motion for summary judgment were “developed, briefed, or
reviewed at the District Court level,” nor was a Certified
Administrative Record ever submitted to that court.
Of course, “the general rule ... [is] that a federal appellate
court does not consider an issue not passed upon below.”
Singleton v. Wulff, 428 U.S. 106, 120 (1976). Although the
13
question whether to depart from the general rule is ultimately
left “to the discretion of the courts of appeals,” id. at 121, we see
no reason here to depart from the usual procedure. The district
court, having dismissed the case for lack of jurisdiction, did not
have the benefit of briefing from the Secretary with respect to
most of the issues presented. This is important because the
district court will be applying a particularly deferential standard
of review, and the Secretary is entitled to submit an argument
tailored to that standard. Therefore, we shall remand the matter
to the district court without reaching the merits of Piersall’s
case.
III. Conclusion
For the foregoing reasons, the decision of the district court
is reversed and this case is remanded for that court to review the
decision of the BCNR pursuant to § 706 of the APA.
So ordered.