Lawrence v. McCarthy

United States Court of Appeals
Fifth Circuit
F I L E D
August 29, 2003
REVISED SEPTEMBER 4, 2003

IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III
Clerk

FOR THE FIFTH CIRCUIT

No. 02-30966

PHILLIP LAWRENCE,

Plaintiff-Appellant,

v.

D.M. MCCARTHY, Lieutenant General,
United States Marine Corps, Commander,
Marine Forces Reserve; J.M. CODEGA,
Lieutenant Colonel, United States
Marine Corps Reserve, Investigating
Officer; C.C. MILLER, Major, United
States Marine Corps, Trial Counsel;
M.E. SAYEGH, Major, Trial Counsel,

Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Louisiana, New Orleans

Before DAVIS, JONES, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This appeal arises from the United States Marine Corps’s

attempts to recall the appellant, Major Phillip Lawrence, to

active duty in order to answer allegations of improper behavior.

-1-
Lawrence is seeking injunctive relief from the military’s

attempts to activate him in federal court. The district court,

finding Lawrence’s suit meritless, denied relief and dismissed

the complaint. Because we determine that the district court

should have abstained from considering the case, given the

presence of parallel proceedings in the military courts, we

vacate the judgment of the district court.

I.

Major Philip Lawrence is an officer in the United States

Marine Corps (“Marine Corps”). He served eleven years in the

Regular Marine Corps (“USMC”), and has spent the past ten years

in the Reserve Marine Corps (“Reserves”). On October 16, 2001,

Lawrence was ordered to active duty for the period of October 17-

21, 2001 pursuant to Active Duty for Special Work (“ADSW”)1

orders. During this period of active duty, Lawrence allegedly

committed several violations of the military’s criminal code, the

Uniform Code of Military Justice, 10 U.S.C. § 801 et seq. (1998 &

Supp. 2003) (“UCMJ”).2 At the end of the period, Lawrence was

returned to inactive status without any disciplinary action

1
According to Marine Corps Order 1001.59, Section 1.a, the
ADSW program provides the Reserves or the USMC with reserve
personnel with particular training or qualifications to assist
with special projects or to meet operational, administrative, and
support requirements of short-term duration.
2
Specifically, Lawrence was charged with violating Articles
86 (unauthorized absence), 92 (failure to obey a lawful order and
dereliction in duties), and 133 (conduct unbecoming an officer).
10 U.S.C. §§ 886, 892, 933.
-2-
having been taken. Lawrence was again called to active duty on

January 14, 2002, in support of Operation Noble Eagle Enduring

Freedom. He was released from this tour of duty on June 2, 2002,

again without any disciplinary action being taken regarding the

alleged violations of the UCMJ. The parties dispute his military

status following this release. The Reserves claim that he was

returned to inactive status as a member of the Selective

Reserves, his status prior to activation. Lawrence claims that

he was discharged.3

On July 2, 2002, Lieutenant General D. M. McCarthy,

Commander of the Reserves, appointed Lieutenant Colonel J. M.

Codega to investigate Lawrence’s alleged infractions pursuant to

Article 32 of the UCMJ.4 10 U.S.C. § 832. On July 23, 2002,

charges were formally preferred5 against Lawrence. On July 26,

2002,6 Lawrence was issued orders, pursuant to Articles 2 and 3

3
A “discharge” severs all military status. “Separation” is
a more general term which is used to refer to either a discharge
or release from active duty. “Release from active duty” means
termination of active-duty status and transfer or reversion to a
Reserve component not on active duty. 53A Am. Jur. 2d § 183
(1996 & Supp. 2002).
4
An Article 32 investigation is an impartial inquiry into
the truth of the charges alleged that culminates in a
recommendation as to how the military should proceed. 10 U.S.C.
§ 832.
5
A preferral of charges is the closest military analogue to
a formal indictment. United States v. Vogan, 35 M.J. 32, 33
(C.M.A. 1992).
6
The orders were reissued on August 7, 2002, to correct a
defect in the original orders.
-3-
of the UCMJ, directing him to return to active duty in order to

participate in the Article 32 investigation.

Lawrence immediately sought a temporary restraining order

(“TRO”) and preliminary injunction from the U.S. District Court

for the Eastern District of Louisiana, claiming that the Marine

Corps lacked the authority to call him to active duty under

Articles 2 and 3 of the UCMJ. Senior District Judge Marcel

Livaudais, Jr., granted the TRO the same day, restraining the

appellees from recalling Lawrence to active duty “until there can

be a full contested hearing on the merits.” The hearing was held

as scheduled, and on August 21, Judge Livaudais entered an Order

and Judgment dissolving the TRO, denying Lawrence’s requests for

preliminary and permanent injunctions, and sua sponte dismissng

the complaint with prejudice. Lawrence was subsequently called

to active duty for purposes of the Article 32 investigation. The

Navy-Marine Corps Court of Criminal Appeals (“NMCM”) is currently

considering Lawrence’s request for an extraordinary writ that

would dismiss all of the charges referred7 for lack of

jurisdiction.

Lawrence asks us to resolve the following issues on appeal:

(1) whether the district court erred in denying his request for

injunctive relief; (2) whether the Marine Corps violated his

Fifth Amendment due process rights by failing to follow its own

7
A referral orders specific charges to be tried by court-
martial. Rule for Court Martial 601.
-4-
regulations and the Administrative Procedure Act; and (3) whether

the district court erred in sua sponte dismissing his complaint

following the preliminary injunction hearing. Because we believe

that federal courts should abstain from determining whether

someone in Lawrence’s position may be called to active duty when

administrative remedies remain available and parallel proceedings

are pending in the military courts, we decline to address the

dubious merits of the appeal and vacate the judgment of the

district court.

II.

We have jurisdiction to hear this appeal pursuant to 28

U.S.C. §§ 1331 and 1292(a), which permit federal courts to

entertain suits involving a question of federal law seeking

injunctive relief. See also Chappell v. Wallace, 462 U.S. 296,

304-05 (citing injunctive actions as indicative of the type of

relief service members may seek in the civilian courts).

A.

The Marine Corps urges us to dismiss this case on the

additional grounds that Lawrence has failed to exhaust his

military remedies before seeking relief from this court. “It is

basic to military claims that the petitioner must exhaust her

military remedies before seeking federal court intervention.”

Wickham v. Hall, 706 F.2d 713, 715 (5th Cir. 1983)(citing

Schlesinger v. Councilman, 420 U.S. 738, 758 (1975). Accord

Falbo v. United States, 320 U.S. 549, 553 (1944); Mindes v.

-5-
Seaman, 453 F.2d 197, 201 (5th Cir. 1971). This requirement is

premised upon principles of comity, the need to raise an army

speedily and efficiently, and the specialized expertise of

military institutions with respect to its internal affairs. In

re Kelly, 401 F.2d 211, 213 (5th Cir. 1968); Falbo, 320 U.S. at

553; Von Hoffburg v. Alexander, 615 F.2d 633, 637-38 (5th Cir.

1980). Accord Sedivy v. Richardson, 485 F.2d 1115, 1119 (3d Cir.

1973). Lawrence argues that resorting to an administrative

remedy would be futile and therefore exhaustion is not required,

citing Von Hoffburg v. Alexander, supra at 638. Because we find

abstention appropriate, we need not consider the arguments with

respect to exhaustion.

B.

Although the Marine Corps never requested (until we raised

the possibility) that either the district court or this court

stay its hand pending the outcome of ongoing military

proceedings, we believe it is necessary to raise the issue

whether the federal courts have equitable jurisdiction to hear

this case under the abstention doctrine promulgated by Younger v.

Harris, 401 U.S. 37 (1971).8

8
See Waldron v. McAtee, 723 F.2d 1348, 1351 (7th Cir.
1983)(explaining that appellate courts have the power and
occasionally the duty to sua sponte order abstention); Accord
Cruz v. Melecio, 204 F.3d 14, 22 & n.7 (1st Cir. 2000); H.C. v.
Koppel, 203 F.3d 610, 613 (9th Cir. 2000). See also Murphy v.
Uncle Ben’s, Inc., 168 F.3d 734, 737 (5th Cir. 1999)(noting that
district court may raise abstention sua sponte). But see Swisher
-6-
 In Younger, the Supreme Court held that a federal court,

with valid subject-matter jurisdiction, was nonetheless

prohibited from enjoining a state criminal proceeding without a

valid showing of “extraordinary circumstances” that would warrant

federal intervention. 401 U.S. 37, 45, 53-54. The Court based

its ruling upon considerations of equity and comity. Id. at 43-

44. The Court explained,

[C]ourts of equity should not act...when the moving
party has an adequate remedy at law and will not suffer
irreparable injury if denied equitable relief....This
underlying reason...is reinforced by an even more vital
consideration, the notion of ‘comity,’ that is, a
proper respect for state functions, a recognition of
the fact that the entire country is made up of a Union
of separate state governments, and a continuance of the
belief that the National Government will fare best if
the States and their institutions are left free to
perform their separate functions in their separate
ways.

Id. at 43-44.

The Supreme Court has since applied Younger-abstention in

various other contexts, including that of Schlesinger v.

Councilman, where a serviceman sought an injunction in federal

court against a pending court martial proceeding. 420 U.S. 738,

754 (1975). The Court held there that the federal district

courts must decline from intervening in the military court system

when a serviceman seeking an injunction can show no harm “other

v. Brady, 438 U.S. 204, 213 n.11 (1978)(noting that when state
voluntarily submits to a federal forum, and does not seek
dismissal pursuant to the Younger doctrine, it is not inclined to
examine the issue sua sponte).
-7-
than that attendant to the resolution of his case in the military

court system.” Id. at 758.

Although federalism concerns are not implicated when federal

intervention is sought in military matters, abstention, as much

as the exhaustion requirement, assists in “maintaining the

balance between military authority and the power of federal

courts.” Von Hoffburg v. Alexander, 615 F.2d 633, 637 (5th Cir.

1980). “Because the military constitutes a specialized community

governed by a separate discipline from that of the civilian,

orderly government requires that the judiciary scrupulously avoid

interfering with legitimate Army matters.” Id. Accord

Schlesinger, 420 U.S. at 757.

1.

Abstention is particularly proper in this case. Lawrence

retains an adequate remedy at law and will not suffer irreparable

harm by having his case resolved in military tribunals. See

Younger, 401 U.S. at 43-44.

Lawrence asserts that the military judicial system cannot

grant him the relief that he seeks from this court – the freedom

from activation to answer charges of wrongdoing – with

“reasonable promptness and certainty.” Parisi v. Davidson, 405

U.S. 34, 41 (1972). At oral argument, counsel for Lawrence

acknowledged that whether Lawrence may be recalled to active duty

pursuant to Articles 2 and 3 of the UCMJ, 10 U.S.C. §§ 802, 803,

is before the currently pending court-martial. Embedded within

-8-
that issue is the factual question of whether Lawrence was

discharged from the Marine Corps. Indeed, it appears to this

court that all of the issues we are asked to resolve are also

before the court-martial. Lawrence, however, contends that,

unlike an injunction issued by this court enjoining the Marine

Corps from recalling Lawrence to active duty pursuant to Articles

2 and 3 of the UCMJ, 10 U.S.C. §§ 802, 803, the currently

convened court-martial cannot prevent Lawrence from being

recalled pursuant to Articles 2 and 3 at a later date.

Courts-martial come into existence only upon the referral of

specific charges. United States v. Boudreaux, 35 M.J. 291, 293

(C.M.A. 1992). They may thus adjudicate only those charges that

are before them. Military appellate courts, in turn, are limited

to reviewing certain court-martial convictions. 10 U.S.C. § 866-

67. The Court of Military Appeals, to whom Lawrence appealed for

an extraordinary writ, is similarly limited by the All Writs Act

which empowers courts to issue only those writs “necessary or

appropriate in aid of their respective jurisdictions...”. 28

U.S.C. § 1651. Lawrence contends that because the Marine Corps

have yet to prefer9 all of the charges stemming from his October

9
The Marine Corps, instead of, or prior to preferring
charges to a court-martial, may recall Lawrence to active duty
(1) for non-judicial punishment under Article 15 of the UCMJ, 10
U.S.C. § 815, or (2) to participate in another Article 32
investigation, 10 U.S.C. § 832. All such recalls, however, as
with court-martial proceedings, would be pursuant to Article
2(d)(1).
-9-
2001 activation period, the pending court-martial proceedings

will be unable to relieve him from being recalled to active duty

pursuant to Articles 2 and 3, 10 U.S.C. §§ 802, 803, once again.

We do not find Lawrence’s argument persuasive. The court-

martial currently convened will make a finding as to whether

Lawrence has been discharged, and will then rule on whether he

may be recalled pursuant to Articles 2 and 3. 10 U.S.C. §§ 802,

803. The court-martial’s decision will be appealed to the Navy-

Marine Corps Court of Criminal Appeals.10 Alternatively, the

Navy-Marine Corps Court of Criminal Appeals will have already

ruled on the issue in the course of considering Lawrence’s

request for an extraordinary writ. Lawrence’s claim may then

reach the United States Court of Appeals for the Armed Forces,

whose decision may be reviewed by a writ of certiorari by the

Supreme Court. 10 U.S.C. § 867a. At some point, a final

decision will be reached, and this decision will become binding

precedent. United States v. Nelson, 52 M.J. 516, 525 (N-M. Ct.

10
Court of Criminal Appeals jurisdiction is mandatory where
(1) there is a sentence of death, dismissal of an officer, cadet,
or midshipman, dishonorable or bad-conduct discharge of any
servicemember, or imprisonment of a servicemember for one year or
more and (2) the right to appellate review has not been waived or
an appeal has not been withdrawn. 10 U.S.C. § 866. The court’s
scope of review is unusually broad, as the judges are permitted
to “weigh the evidence, judge the credibility of
witnesses...determine uncontroverted questions of fact” and
decide any questions of law raised by the record. Id. Each
court-martial for which review by a military court is unavailable
is examined in the office of the judge advocate general, where
the findings, sentence, or both, may be modified or set aside.
10 U.S.C. § 869.
-10-
Crim. App. 1999). See, e.g., United States v. Morris, 54 M.J.

898, 904 (N-M. Ct. Crim. App. 2001).

The precedents that will be created by the charges currently

making their way through the military tribunals will govern the

Marine Corps in any future attempts to recall Lawrence pursuant

to Articles 2 and 3 of the UCMJ. 10 U.S.C. §§ 802, 803. We are

thus unable to agree with Lawrence that the current military

proceedings are incapable of ensuring that he will not be

recalled in the future.

We also find that Lawrence will not suffer irreparable harm

if we decline to exercise equitable jurisdiction. See Younger,

401 U.S. at 43. Lawrence claims that he suffers economically

when called to active duty, and is forced to submit to

limitations upon his liberty.11 These harms, however, do not

satisfy the standard set forth by the Supreme Court. “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.” McLucus v. DeChamplain, 421 U.S. 21,

33 (1975)(citing Schlesinger, 420 U.S. at 758). The harms

11
Lawrence claims that he is subject to the repetitive harm
of being recalled to active duty to defend against, or receive
non-judicial punishment for, every new charge brought against
him. If Lawrence is not subject to the jurisdiction of Articles
2 and 3 of the UCMJ, as he claims, this is unlikely to occur
after a binding ruling to that affect is made by the military
courts. See discussion infra.

-11-
claimed by Lawrence are identical to those experienced by all

servicemen called to answer charges of wrongdoing in the military

courts. 10 U.S.C. § 802.

2.

Before applying Younger, we must further consider whether a

line of cases that began with Toth v. Quarles, and held that

civilians are not subject to military jurisdiction, bars its

application. 350 U.S. 11 (1955); See also Younger, 401 U.S. 37.

In Toth, civilian ex-soldiers raised a constitutional challenge

to the exercise of military jurisdiction over them. Id. at 13.

The Supreme Court held that Article I of the Constitution did not

permit Congress to extend the jurisdiction of military courts to

civilian ex-soldiers who had severed their relationship with the

military. Id. at 17. Accord Reid v. Covert, 354 U.S. 1 (1957);

McElroy v. United States ex rel. Guagliardo, 361 U.S. 281 (1960).

The important distinction between Toth and the case at bar

is that Toth’s civilian status was never at issue. Here, the

threshold question is whether Lawrence was discharged on June 2,

2001, and is thus not subject to the jurisdiction of the UCMJ, or

whether he was only released from active duty on that day, and

thus remains a member of the Reserves, subject to the

jurisdiction of the UCMJ. This is a question that we are

comfortable having the military courts address first, for the

same reasons that we gave in Wickham v. Hall, 706 F.2d 713, 717

-12-
(5th Cir. 1983), which applied the abstention doctrine to permit

the military courts to make the initial determination as to

whether petitioner had obtained her discharge fraudulently, and

was thus susceptible to military jurisdiction.

We permit many tribunals to make an initial determination

regarding the scope of their jurisdiction.12 We trust that the

military courts are equally up to the task of considering

Lawrence’s claims fully and fairly.13 Courts-martial are just as

obligated to protect the individual’s constitutional rights as

state and federal courts. Burns v. Wilson, 346 U.S. 137, 142

(1953); Wickham, 706 F.2d at 717; In re Kelly, 401 F.2d 211, 213

(5th Cir. 1968). Most of the significant constitutional rights

available to the defendant in a civil proceeding are also

available to the accused in a court-martial. Wickham, 706 F.2d

12
District courts and Tax Courts are empowered to decide the
merits of a claim in order to determine whether jurisdiction
exists. Wickham, 706 F.2d at 718; Treaty Pines Investment
Partnership v. CIR, 967 F.2d 206, 210 (5th Cir. 1992). The
Supreme Court has held that the federal courts should abstain
from adjudicating a case while an Indian tribal court determines
whether it has jurisdiction in a matter. Iowa Mutual Ins. Co. V.
LaPlante, 480 U.S. 9, 16 (1987). And this Circuit has permitted
the Interstate Commerce Commission, Federal Communications
Commission, and the Federal Energy Regulatory Commission, to each
determine the extent of its jurisdiction. See Merchants Fast
Motor Lines, Inc. v. ICC, 5 F.3d 911, 922 (5th Cir. 1993);
Wickham, 706 F.2d at 718 n.6; Carter v. American Tel. & Tel. Co.,
365 F.2d 486 (5th Cir. 1966).
13
Courts-martial face challenges to their jurisdiction often,
and have upheld the claims and dismissed the charges when
appropriate. Murphy v. Garrett, 729 F. Supp. 461, 470 (W.D. Pa.
1990).
-13-
at 717 & n.5. Moreover, the present military justice system

provides for appeal to the Court of Military Appeals, which

consists of civilian judges free from military influence,

Schlesinger, 420 U.S. at 757, and whose decisions may be appealed

to the United States Supreme Court. 10 U.S.C. § 867(h)(1).

Abstention is particularly appropriate in this case because

an individual’s status is a question of fact which the military

courts are more intimately familiar with than the civil courts.

Whether Lawrence was discharged depends largely upon the

interpretation of military forms and standard operating

procedures with which we are comparatively less well-versed. In

such matters it is proper to defer to the military courts.

Schlesinger v. Councilman, 420 U.S. 738, 756 (1975); Wickham, 706

F.2d at 717-18.

Finally, if Lawrence is convicted by court-martial, he may

collaterally attack the conviction in federal court through

petition for the writ of habeas corpus. Such writs have “long

been recognized as the appropriate remedy for servicemen who

claim to be unlawfully retained in the armed forces.” Parisi v.

Davidson, 405 U.S. 34, 39 (1972). In a habeas action, federal

courts stand willing to review issues of jurisdiction,

allegations of substantial constitutional violations, and claims

that exceptional circumstances resulted in a fundamental

miscarriage of justice. Calley v. Callaway, 519 F.2d 184, 203

(5th Cir. 1975). See also Burns v. Wilson, 346 U.S. 137

-14-
(1953)(holding that court-martial convictions alleged to involve

errors of constitutional proportions are subject to court

review).

3.

In abstaining from exercising equitable jurisdiction in this

case, we take advantage of the court-martial’s comparative

expertise, allow it to create a complete record, and offer the

military tribunals the opportunity to correct their own mistakes

on appeal. Schlesinger, 420 U.S. at 756. “The rule ensures that

whatever [federal] judicial review is available will be informed

and narrowed by the agencies’ own decisions.” Id. at 756-57

(explaining the benefits of the exhaustion requirement and

holding that they apply equally in the abstention context).

Accord Davis v. Marsh, 876 F.2d 1446, 1449 (9th Cir. 1989). The

application of Younger in this case also promotes judicial

efficiency and conservation of resources by avoiding duplicative

proceedings. The need for federal intervention may be obviated

entirely simply by allowing the military institutions, both

judicial and administrative, to run their course. Id.

III.

For the foregoing reasons, we find that the district court

erred in adjudicating appellant’s claims. As the doctrine of

Younger v. Harris, 401 U.S. 27, compels us to abstain from ruling

upon Lawrence’s request for injunctive relief, the judgment of

the district court is VACATED, and the case DISMISSED without

-15-
prejudice.

-16-