Richard E. Brown, on Behalf of Himself and All Others Similarly Situated v. United States of America, Richard E. Brown and David l.taylor

GARTH, Circuit Judge

(dissenting).

I am obliged to dissent from Part II of the majority opinion. Like Judge Hunter, I believe that there is much “to recommend” the approach that accords full retroactivity to decisions involving the adjudicatory powers of tribunals. Unlike Judge Hunter, I do not believe that McSparran v. Weist 1 bars such an approach.

A. Retroactivity and Jurisdiction

As a general rule of jurisprudence, judicial decisions apply retroactively. See Comment, Linkletter, Shott and the Retroactivity Problem in Escobedo, 64 Mich.L.Rev. 832, 834 (1966). Nevertheless, in recent years the “Austinian” method of restricting a decision to prospective effect has come into vogue, as the Supreme Court has striven to limit the disruptions caused by reforms in the area of criminal procedure. See, e. g., Linkletter v. Walker, 381 U.S. 618, 622-623 , 85 S.Ct. 1731 , 14 L.Ed.2d 601 (1965) (denying complete retroactivity to Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 ); Tehan v. United States ex rel. Shott, 382 U.S. 406 , 86 S.Ct. 459 , 15 L.Ed.2d 453 (1966) (denying complete retroactivity to Griffin v. California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 ); Johnson v. New Jersey, 384 U.S. 719 , 86 S.Ct. 1772 , 16 L.Ed.2d 882 (1966) (denying complete retroactivity to Miranda and Escobedo); Desist v. United States, 394 U.S. 244 , 89 S.Ct. 1030 , 22 L.Ed.2d 248 (1969) (denying complete retroactivity to Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 ); Sto-vall v. Denno, 388 U.S. 293 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199 (1967) (denying complete retroactivity to United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 , and Gilbert v. California, 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 ). In Linkletter and its progeny, the Supreme Court developed a practical calculus for determining retroactivity-pro-spectivity issues. Under this approach, a court must evaluate (a) the purpose of the new rule, (b) the extent of reliance upon the old rule, and (c) the effect of applying the new rules retroactively. See Stovall v. Denno, 388 U.S. 293, 297 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199 (1967). This calculus has been applied in this Circuit 2 and, indeed, was utilized by the majority in reaching its conclusions here. 3

It is important to note, however, that the Linkletter-Stovall calculus is neither a panacea nor a solution to all retroac-tivity problems. In Robinson v. Neil, 409 U.S. 505, 508 , 93 S.Ct. 876 , 35 L.Ed.2d 29 (1973), the Supreme Court explained that the analysis developed in Linkletter and its progeny pertained to the “use of evidence” and to “particular mode[s] of trial.” Decisions that do not involve such procedural matters “cannot, for retroac-tivity purposes, be lumped conveniently together in terms of analysis.” 409 U.S. at 508 , 93 S.Ct. at 878 .

The instant case involves no such procedural matters. At issue here is the retroactivity of a decision (United States v. Greenwell) which declared a particular type of tribunal incompetent to conduct special courts-martial. The Court of Military Appeals did not rule upon the admissibility of evidence at Greenwell’s hearing. Nor did the Court of Military Appeals enter into a discussion of a recommended mode of trial. Instead, as the majority opinion here explains, the Court of Military Appeals was concerned with the illegal exercise of judicial pow *643 er by a tribunal that was not authorized by Congress to conduct special courts-martial. I find nothing either in Link-letter or its progeny which suggests that the calculus therein adopted would apply to situations in which a tribunal is held to be incompetent to adjudicate. While the majority regards the Linkletter-Sto-vall analysis as dispositive in the instant case, I view it — on the basis of Robinson v. Neil — as of only peripheral importance.

In my view, decisions concerning the power of a court to adjudicate 4 (i. e. “jurisdiction,” in the true sense of the word) should normally be given retroactive effect without regard to the three-pronged test articulated in Stovall . A decision rendered by a military tribunal incompetent to adjudicate is a nullity. See United States v. Cunningham, 21 U.S.M.C.A. 144, 146 (1971); United States v. Greenwell, 19 U.S.C.M.A. 460, 464 (1970); United States v. Ortiz, 15 U.S.C.M.A. 505, 510 (1965), petition for reconsideration denied, 16 U.S.C.M.A. 127 (1966); cf. McClaughry v. Deming, 186 U.S. 49 , 22 S.Ct. 786 , 46 L.Ed. 1049 (1902). I find it difficult to understand how such a null and void decision can be given legally operative effect merely as a result of a fortuity in timing. Indeed, were this court to sanction such a result, jurisdiction would become a matter controlled by litigation timing rather than a concept limited by Congress.

The Supreme Court has, on three separate occasions, indicated at least some support for the proposition that jurisdictional decisions should normally be given full retroactive effect. In United States v. United States Coin & Currency, 401 U.S. 715 , 91 S.Ct. 1041 , 28 L.Ed.2d 434 (1971), the government initiated prosecution for forfeiture of moneys used in gambling operations, pursuant to 26 U.S.C. § 7302 (1967). After commencement of the litigation, the Supreme Court invalidated the statutes which formed the basis for the forfeiture on the grounds that the statutes infringed upon the Fifth Amendment privilege against compulsory self-incrimination. See Marchetti v. United States, 390 U.S. 39 , 88 S.Ct. 697 , 19 L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62 , 88 S.Ct. 709 , 19 L.Ed.2d 906 (1968). The Court held in United States Coin & Currency that Grosso and Marchetti were to be applied retroactively. This decision was reached without reference to the Linkletter-Stovall calculus, Justice Harlan explaining that:

Unlike some of our earlier retroactivity decisions, we are not here concerned with the implementation of a procedural rule which does not undermine the basic accuracy of the factfinding process at trial. Linkletter v. Walker, 381 U.S. 618 [ 85 S.Ct. 1731 , 14 L.Ed.2d 601 (1965)]; Tehan v. Shott, 382 U.S. 406 [ 86 S.Ct. 459 , 15 L.Ed.2d 453 (1966)]; Johnson v. New Jersey, 384 U.S. 719 , [ 86 S.Ct. 1772 , 16 L.Ed.2d 882 (1966)]; Stovall v. Denno, 388 U.S. 293 [ 87 S.Ct. 1967 , 18 L.Ed.2d 1199 *644 (1967)]. Rather, Marchetti and Grosso dealt with the kind of conduct that cannot constitutionally be punished in the first instance.

401 U.S. at 723 , 91 S.Ct. at 1045 . Admittedly, Justice Harlan makes no reference to the concept of subject matter jurisdiction. Nevertheless, it is apparent that the Court predicated its retroactivity holding upon the fact that courts are without power to punish the conduct proscribed by the unconstitutional gambling statutes. Robinson v. Neil, thoroughly discussed by the majority, similarly holds retroactive a decision (Waller v. Florida) 5 which limits the adjudicatory power of courts.

A case more directly on point is Gosa v. Mayden, 413 U.S. 665 , 93 S.Ct. 2926 , 37 L.Ed.2d 873 (1973). At issue in Gosa was the retroactivity of O’Callahan v. Parker, 395 U.S. 258 , 89 S.Ct. 1683 , 23 L.Ed.2d 291 (1969) (servicemen charged with “nonservice-connected” felonies are entitled to indictment by a grand jury and a trial by jury in a civilian court). The Supreme Court, reviewing decisions of the Second 6 and Fifth 7 Circuits, produced no majority opinion and no concise resolution of the retroactivity issue. 8 Of *645 the Justices reaching the retroactivity issue, four applied the Stovall factors and concluded that O’Callahan should be restricted to prospective effect, while four others indicated that retroactivity was appropriate on non-Stovall grounds. Justice Marshall, writing for the latter group, concluded that Robinson v. Neil and United States v. United States Coin & Currency “require” retroactive application of O’Callahan , given the O’Callahan decision’s focus upon jurisdiction. 413 U.S. at 700 , 93 S.Ct. 2926 . As in Robinson and United States Coin & Currency, Justice Marshall wrote that in Gosa “we are concerned not with ‘the implementation of a procedural rule,’ but with an unavoidable constitutional impediment to the prosecution of particular conduct.” 413 U.S. at 701 , 93 S.Ct. at 2947. He explained:

In O’Callahan . . . the ultimate issue was the extent of the constitutional power that underlies the jurisdiction of military tribunals. Where an offense lies outside the limits of that power, there exists just as much of a constitutional impediment to trial by court-martial as there existed to a civil trial in Marchetti and Grosso due to the privilege against self-incrimination or in Waller due to the Double Jeopardy Clause. It cannot be forgotten that military tribunals are courts of limited jurisdiction. See McClau-ghry v. Deming, 186 U.S., at 63 , 22 S.Ct. [786], at 791; Ex Parte Watkins, 3 Pet. 193, 209 [ 7 L.Ed. 650 ] (1830). They cannot exercise authority which Congress has not conferred upon them, much less authority which Congress is without constitutional power to confer. It is this fundamental principle that compels retroactive application of the decision in O’Callahan . (footnote omitted)

413 U.S. at 701-702 , 93 S.Ct. at. 2947.

In the instant case, the majority minimizes the relevance of Robinson, United States Coin & Currency, and Gosa . The first two cases are distinguished on the grounds that Waller, Marchetti and Grosso (but not Greenwell) “had the effect of ending the defendants’ criminal liability.” Opinion at 625, n. 6. I regard the fact that GreenWell might be exposed to further proceedings as a difference, but not a meaningful distinction. As Justice Marshall suggested in his Gosa dissent, this difference relates merely to the “impediment to trial” at issue in the various cases. 413 U.S. at 702-703 , 93 S.Ct. 2926 . Regardless of whether or not there could be further prosecution, in each case (including Greenwell), it was determined in each that the nisi prius court lacked the power to adjudicate the issues raised in the pleadings.

The majority deprecates the relevance of Gosa by concluding that the Supreme Court split 4-4 on the issue of whether jurisdictional decisions should be accorded retroactivity (without concern for the Linkletter-Stovall analysis). I read Gosa differently. I count four Justices (Marshall, Brennan, Stewart and Rehnquist) who have concluded that jurisdictional decisions should be applied retroactively (see n. 8, supra). I can find no Justice supporting a contrary conclusion; i. e. none of the opinions filed in Gosa take the view that the retroactivity of jurisdictional decisions must be analyzed in terms of the Linkletter-Stovall calculus. The four Justices who voted in favor of prospectivity did so not as a result of the jurisdictional aspects of O’Callahan , but rather as a result of their characterization of that case as one dealing with procedure. 9 In short, the split was not *646 4-4, but rather 4-0, on the issue of whether jurisdictional decisions should be accorded full retroactivity.

I am convinced by Robinson and United States Coin & Currency that decisions involving the adjudicatory power of courts should normally be accorded full retroactivity. My analysis of Gosa v. Mayden leads me to believe that there is a strong likelihood that the Supreme Court would expressly so hold if the issue were directly before it. Inasmuch as Greenw.eii focused upon the adjudicatory power of a particular type of military tribunal, I would therefore apply it retroactively in the instant case.

B. McSparran and Retroactivity

As the majority quite properly points out, there is one major obstacle to the analysis set forth above. In McSparran v. Weist, 402 F.2d 867, 877 (3d Cir. 1968), cert. denied, 395 U.S. 903 , 89 S.Ct. 1739 , 23 L.Ed.2d 217 (1969), we stated in the course of an opinion limiting a decision to prospective effect:

It is true that we deal here with a jurisdictional^ question. But the notion that “jurisdiction” is a subject of some magical quality so that a decision against jurisdiction prevents according recognition to other relevant considerations must yield to the knowledge that it is our construction of the statute which determines in the present case whether jurisdiction exists or is absent.

The majority here concluded that this passage precludes this court from ignoring the Linkletter-Stovall calculus. I disagree.

I find McSparran to be distinguishable and therefore do not see it as a bar to the above analysis. In McSparran , this Court was required to determine whether the appointment of a “straw” guardian solely for the purpose of creating diversity jurisdiction amounted to collusion under 28 U.S.C. § 1359 . 10 Reversing pri- or case law, 11 this Court concluded that such “manufacturing” of diversity jurisdiction offends § 1359. 402 F.2d at 876 . Two significant distinctions are apparent to me. First in McSparran , but not in Greenwell , the nisi prius court had at least “facial” jurisdiction. That is, in McSparran the apparent diversity of the parties conferred jurisdiction in the district court, subject to a later finding of collusion. In Greenwell , on the other hand, the improper delegation of authority deprived the special court-martial of jurisdiction ab initio. Secondly, it is crucial to note the difference in the operative effect of the judgments that might have issued. As discussed earlier, a judgment rendered by an improperly constituted court-martial is null and void (see p. 643 supra). In contradistinction, “a judgment based upon an erroneous finding of diversity is not void and is immune from collateral attack.” Lester v. McFaddon, 415 F.2d 1101, 1107 (4th Cir. 1969); see also Noble v. Union River Logging Railroad, 147 U.S. 165, 173-174 , 13 S.Ct. 271 , 37 L.Ed. 123 (1893). McSparran’s demeaning of retroactivity in “jurisdictional” cases thus may be lim *647 ited to situations in which the jurisdictional error does not vitiate the legal efficacy of the ultimate judgment.

I do concede that the passage quoted from McSparran does not expressly suggest the limitations which I have proposed. If the majority is correct in concluding that McSparran demands application of the Linkletter-Stovall calculus. I believe that it is time to reevaluate McSparran’s retroactivity analysis in light of the Supreme Court’s subsequent conclusions in Robinson and United States Coin & Currency and in light of Justice Marshall’s uncontroverted dissent in Gosa v. Mayden.

Accordingly, I dissent from that portion of Part II of the majority opinion which opts for utilization of the Linklet-ter-Stovall calculus. I would reverse the District Court on the grounds that Greenwell , as a decision relating to adjudicatory power, must be applied retroactively.

. 402 F.2d 867 (3d Cir. 1968) (en banc), cert. denied, 395 U.S. 903 , 89 S.Ct. 1739 , 23 L.Ed.2d 217 (1969).

. See, e. g., United States v. Zirpolo, 450 F.2d 424, 432 (3d Cir. 1971).

. See (Judge Hunter’s) Majority Opinion at 625.

. It has been suggested that the defect corrected in Greenwell — the improper delegation of authority by the Secretary of Navy — is too “technical” to constitute a jurisdictional error. Without minimizing the technicalities inherent in matters of personal and subject matter jurisdiction (see, e. g., the technical rules that have developed to determine a corporation’s citizenship for purposes of diversity jurisdiction, 1 Moore’s, Federal Practice, (! 0.77-0.78), I regard the suggested minimization of Green-well as barred by McClaughry v. Deming, 186 U.S. 49 , 22 S.Ct. 786 , 46 L.Ed. 1049 (1902). In McClaughry , the Court was required (in a habeas corpus proceeding) to determine whether a reservist officer could be tried by a court composed entirely of officers in the Regular Army. The Court found that Congress had provided by statute that reservist officers be tried only by courts-martial composed of other reservist officers. Justice Peckham concluded:

As to the officer to be tried there was no court, for it seems to us that it cannot be contended that men, not one of whom is authorized by law to sit, but, on the contrary, all of whom are forbidden to sit, can constitute a legal court-martial because detailed to act as such court by an officer who in making such detail acted contrary to and in complete violation of law. Where does such a court obtain jurisdiction to perform a single official function? How does it get jurisdiction over any subject-matter or over the person of any individual? The particular tribunal is a mere creature of the statute, as we have said, and must be created under its provisions.

186 U.S. at 64 , 22 S.Ct. at 792 .

. 397 U.S. 387 , 90 S.Ct. 1184 , 25 L.Ed.2d 435 (1970).

. In 1970, James Flemings brought an action in the Eastern District of New York seeking to compel the Secretary of the Navy to overturn a court-martial conviction for auto theft and to correct his records accordingly. The District Court, viewing the crime as non-service connected, concluded that O’Callahan should be applied retroactively. United States ex rel. Flemings v. Chafee, 330 F.Supp. 193 (E.D.N.Y.1971). In reaching this conclusion, Judge Weinstein found the Linkletter-Stovall approach to be inapplicable, the court drawing a distinction between the jurisdictional aspects of O’Callahan (i. e. the holding that military courts are without power to resolve non-service related criminal prosecutions) and the quasi-jurisdictional/procedural aspects of Linkletter and its progeny. 330 F.Supp. at 199-203 . The Second Circuit affirmed, concluding that:

[t]he recent Supreme Court cases denying retrospective application to new rules of criminal procedure where and only where . the old rules did not threaten the basic integrity of the court’s truth determining process, are not compelling precedent when applied to a case founded on the absence of jurisdiction or power over the subject or person. Not one of the cases establishing a new principle which was limited to prospective application involved a total absence of adjudicatory power. Moreover, if some decisions which were not based upon concepts of jurisdictional competence have been applied retroactively ... a fortiori a case which exists on lack of jurisdiction in the traditional sense and seeks to preserve the basic integrity of the institutions which enforce our criminal laws, must be so applied. See United States v. United States Coin & Currency [ 401 U.S. 715 , 91 S.Ct. 1041 , 28 L.Ed.2d 434 ] ....

458 F.2d 544 at 550-551 .

. In 1969, James Roy Gosa commenced a habeas corpus proceeding in the Northern District of Florida to overturn a court-martial conviction for rape. Construing O'Callahan as merely a quasi-jurisdictional decision (i. e. a decision focusing upon the right to indictment by a grand jury and the right to a jury trial), the District Court applied the Linkletter-Stovall calculus and concluded that O’Callahan should not be applied retroactively. Gosa v. Mayden, 305 F.Supp. 1186 (N.D.Fla.1969). The Fifth Circuit affirmed, though its analysis differed somewhat from that of the District Court. 450 F.2d 753 (5th Cir. 1971). Unlike the District Court, the Court of Appeals interpreted O’Callahan as a “pure” jurisdictional decision (i. e. a decision focusing upon adjudicatiory power). Nevertheless, the Fifth Circuit viewed it as appropriate to determine the retroactivity of the “jurisdictional” decision on the basis of the Linkletter-Stovall calculus.

. The judgment of the Supreme Court affirmed the Fifth Circuit ( 450 F.2d 753 ) and reversed the Second Circuit ( 458 F.2d 544 ). With regard to 450 F.2d 753 , the affirmance was achieved as a result of the following split:

a) Justices Blackmun, Burger, White and Powell concluded that O’Callahan should not be applied retroactively ( 413 U.S. at 672-686 , 93 S.Ct. 2926 );

b) After conceding that prior precedent (including Robinson v. Neil, supra) required retroactive application of O’Callahan , Justice Rehnquist voted to affirm nevertheless since he favored overruling O’Callahan as wrongly decided ( 413 U.S. at 692 , 93 S.Ct. 2926 );

c) Justice Douglas voted for reargument on the issue of res judicata ( 413 U.S. at 686-691 , 93 S.Ct. 2926 ); and

d) Only Justices Marshall, Brennan, and Stewart voted to reverse on the grounds that O’Callahan should be applied retroactively ( 413 U.S. at 693-716 , 93 S.Ct. 2926 ).

*645 With regard to No. 71-1398 (Second Circuit), the 7-2 reversal was achieved as a result of the following split:

a) Justices Blackmun, Burger, White and Powell concluded that O’Callahan should not be applied retroactively (see above);

b) Justices Douglas, Stewart, and Rehnquist concluded that O'Callahan was inapplicable on the ground that the automobile theft was “service-connected” ( 413 U.S. at 686 , 692 and 693, 93 S.Ct. 2926 ); and

c) Only Justices Marshall and Brennan voted to affirm on the grounds of retroactive application of O’Callahan .

. Indeed, Justice Marshall highlighted this characterization, stating that:

“Mr. Justice Blackmun’s plurality opinion, by its efforts to establish that O’Calla *646 han v. Parker, 395 U.S. 258 [ 89 S.Ct. 1683 , 23 L.Ed.2d 291 ] (1969), was not a decision dealing with jurisdiction in its classic form,' implicitly acknowledges that if O’Callahan were in fact concerned with the adjudicatory power — that is, the jurisdictional competency- — of military tribunals, its holding would necessarily be fully retroactive in effect . . . .”

413 U.S. at 693-694 , 93 S.Ct. at 2943. The majority opinion here rejects the suggestion that Justice Blackmun implicitly agreed that jurisdictional decisions are to be applied retroactively. The majority notes that the plurality opinion “never denied the fact that [O’Callahan] spoke to a jurisdictional issue.” Opinion at 625. While this may be true, the majority actually begs the question. There is nothing in the plurality opinion that would prevent its author from adopting Justice Marshall’s position in a case that Justice Blackmun construed as involving “pure” jurisdiction.

. 28 U.S.C. § 1359 provides:

A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court.

. See Corabi v. Auto Racing, Inc., 264 F.2d 784 (3d Cir. 1959); Jaffe v. Philadelphia & Western R. Co., 180 F.2d 1010 (3d Cir. 1950).