Piersall, Charles v. Winter, Donald C.

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.

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“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

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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

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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

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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.