Petition for Writ of Certiorari — Steven M. Larrabee, Petitioner v. Carlos Del Toro, Secretary of the Navy, et al.

APPENDIX

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TABLE OF CONTENTS

Page

APPENDIX A: District of Columbia Circuit

Opinion (Aug. 2, 2022) ......................................... 1a

APPENDIX B: District Court Opinion and

Order (Nov. 20, 2020) ......................................... 47a

APPENDIX C: Order Denying Rehearing

(Dec. 20, 2022) .................................................... 67a

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 22, 2021

Decided August 2, 2022

No. 21-5012

STEVEN M. LARRABEE,

APPELLEE

v.

CARLOS DEL TORO, IN HIS OFFICIAL CAPACITY AS

SECRETARY OF THE NAVY, AND UNITED STATES,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-00654)

Cynthia A. Barmore, Attorney, U.S. Department of

Justice, argued the cause for appellants. With her on

the briefs were Brian M. Boynton, Acting Assistant

Attorney General, and Sharon Swingle, Attorney.

Stephen I. Vladeck argued the cause for appellee.

With him on the brief was Eugene R. Fidell.

A. Richard Ellis was on the brief for amicus curiae

National Institute of Military Justice in support of

appellee.

Joshua E. Kastenberg and J. Wesley Moore, pro se,

were on the brief for amici curiae in support of

appellee.

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Before: TATEL,* RAO, and WALKER, Circuit Judges.

Opinion for the Court filed by Circuit Judge RAO.†

Opinion concurring in part and dissenting in part

filed by Circuit Judge TATEL.

RAO, Circuit Judge: Steven Larrabee, a member of

the Fleet Marine Corps Reserve, pleaded guilty at a

court-martial to the sexual assault of a civilian. In this

collateral challenge to his sentence, Larrabee argues

that the statutory grant of military jurisdiction over

Fleet Marine Reservists exceeds Congress’ authority

to “make Rules for the Government and Regulation of

the land and naval Forces,” U.S. CONST. art. I, § 8, cl.

14 (“Make Rules Clause”), and that his “case[]” did not

“aris[e] in the land and naval forces,” id. amend. V

(“Grand Jury Clause”). The district court held for

Larrabee. We now reverse.

Whether a person may be subjected to court-martial

jurisdiction turns “on one factor: the military status of

the accused.” Solorio v. United States, 483 U.S. 435,

439 (1987). Based on the Supreme Court’s precedents

interpreting the Make Rules Clause as well as the

original meaning of that Clause, we hold that a person

has “military status” if he has a formal relationship

with the military that includes a duty to obey military

orders. As a Fleet Marine Reservist, Larrabee was

“actually [a] member[] or part of the armed forces,” and

therefore amenable to military jurisdiction under the

Make Rules Clause. United States ex rel. Toth v.

* Circuit Judge TATEL assumed senior status after this case was

argued and before the date of this opinion.

† Circuit Judge WALKER joins the majority opinion as to all except

Part III.

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Quarles, 350 U.S. 11, 15 (1955). We also hold that the

Fifth Amendment’s Grand Jury Clause did not

separately bar Larrabee’s court-martial.

I.

A.

The Fleet Marine Corps Reserve is one part of the

Marine Corps, alongside the Regular Marine Corps

and the Marine Corps Reserve.1

10 U.S.C. §

8001(a)(2). Its name notwithstanding, the Fleet

Marine Reserve is not a “reserve component” of the

armed forces. See id. § 10101 (listing the military’s

reserve components). Marine Corps reservists are

part-time soldiers who maintain civilian jobs but who

are trained like full-time troops and who may be

ordered into active-duty service, if necessary. Id. §§

10102, 12301(a)–(b). Membership in the Fleet Marine

Reserve, by contrast, is a de facto retirement status for

those who have previously served in active duty. See

United States v. Begani, 81 M.J. 273, 275 (C.A.A.F.

2021) (recognizing that after a Marine’s transfer to the

Fleet Marine Reserve, “for all intents and purposes, he

[has] retired”) (cleaned up). A Marine becomes eligible

to transfer into the Fleet Marine Reserve after serving

in active duty for at least twenty years. 10 U.S.C. §

8330(b). After thirty total years of service, he is then

formally retired.2 Id. § 8331(a); see also id. § 8326(a).

1 The Fleet Marine Reserve was 15,600 strong at the time of oral

argument.

By statute, Fleet Marine Reservists and formally retired

Marines have similar rights and responsibilities. They are

entitled to the same amount of pay, see 10 U.S.C. §§ 8326(c)(2),

8330(c)(1), and are both subject to ongoing service duties, see id.

§ 688(a)–(c). In this opinion, we use the term “military retiree” in

2

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At any time after completing his required years of

service—whether he is in active duty, a Fleet Marine

Reservist, or a retiree—a Marine may request to be

discharged, which results in a “[c]omplete severance

from all military status.” MARINE CORPS ORDER

1900.16, SEPARATION AND RETIREMENT MANUAL ¶

1002.20 (2019) [hereinafter MCO 1900.16].

During the window between active duty and formal

retirement, members of the Fleet Marine Reserve

receive “retainer pay,” calculated based on their rank

and years of service at the time of transfer. 10 U.S.C.

§§ 8330(c)(1), 8333. They are also subject to ongoing

military duties. In times of war or national emergency

or “when otherwise authorized by law,” Fleet Marine

Reservists “may be ordered ... to active duty without

[their] consent” for the duration of the crisis, and up to

six months thereafter. Id. § 8385(a). In peacetime,

they agree to serve for up to twelve months in any twoyear period, see id. § 688(a), (b)(3), (e)(1), and may be

ordered into “active duty for training” for up to two

months in any four-year period, id. § 8385(b). Finally,

they must comply with administrative reporting

requirements—they must inform the military if they

change addresses, for instance—and are subject to

restrictions on foreign employment.

Under the Uniform Code of Military Justice

(“UCMJ”), Fleet Marine Reservists may be courtmartialed. Id. § 802(a)(6). Congress has given the

military courts jurisdiction over the Fleet Marine

Reserve since 1925. See Act of Feb. 28, 1925, §§ 2, 10,

Pub. L. No. 68-512, 43 Stat. 1080, 1080–81, 1083.

its formal sense, to refer to persons on Marine Corps’ retired lists.

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B.

The facts in this case are undisputed. After twenty

years in active-duty service, Larrabee transferred to

the Fleet Marine Reserve. He began working as a

civilian employee on his former base in Iwakuni,

Japan, and moonlighting as a manager at two local

bars near the base. After a late night of drinking,

Larrabee sexually assaulted an inebriated and

unconscious bartender and filmed the encounter on his

cell phone. His victim, the wife of an active-duty

Marine, reported the assault to Military Police, who

obtained the video from Larrabee’s phone. The

victim’s husband was immediately reassigned to a

posting in the United States. Larrabee was charged

with “sexual assault” and “indecent recording” under

the UCMJ. See 10 U.S.C. §§ 920(b), 920c(a)(2). He

pleaded guilty at a court-martial and was sentenced to

ten months’ confinement and a dishonorable

discharge.

Larrabee appealed to the Navy-Marine Corps

Court of Criminal Appeals (“CCA”), arguing, as

relevant here, that the UCMJ provision authorizing

court-martial jurisdiction over members of the Fleet

Marine Reserve, 10 U.S.C. § 802(a)(6), was

unconstitutional. Military retirees, he argued, are not

part of “the land and naval Forces” that Congress may

place under the jurisdiction of courts-martial. U.S.

CONST. art. I, § 8, cl. 14. The CCA had recently held

that personnel “in a retired status remain members of

the land and Naval forces who may face courtmartial,” United States v. Dinger, 76 M.J. 552, 557 (NM. Ct. Crim. App. 2017) (cleaned up), so it “summarily

reject[ed]” Larrabee’s challenge as well, United States

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v. Larrabee, 2017 WL 5712245, at *1 n.1 (N-M. Ct.

Crim. App. Nov. 28, 2017). The Court of Appeals for

the Armed Forces (“CAAF”) summarily upheld his

conviction without reaching the constitutional

question at issue here. United States v. Larrabee, 78

M.J. 107 (C.A.A.F. 2018) (mem.), cert. denied, 139 S.

Ct. 1164 (2019).

His direct appeals exhausted, Larrabee brought

this collateral challenge to his sentence in the District

Court for the District of Columbia. He argued that

Section 802(a)(6) is facially unconstitutional because a

Fleet Marine Reservist is “for all practical purposes a

civilian” and therefore not subject to regulation under

the Make Rules Clause. See U.S. CONST. art. I, § 8, cl.

14. In the alternative, even if the Fleet Marine

Reserve is part of the “land and naval Forces,”

Larrabee insisted his court-martialing was still

unconstitutional under the Fifth Amendment’s Grand

Jury Clause because his “case[]” did not “aris[e] in the

land or naval forces.” Id. amend. V (requiring grand

jury indictments for all “capital[] or otherwise

infamous” crimes, “except in cases arising in the land

or naval forces, or in the Militia”). Under the Grand

Jury Clause, Larrabee argued, the military may not

court-martial a retiree for an offense that bears “no

connection to the armed forces.” Since he was accused

of committing civilian crimes against a civilian on

private property, the court-martial’s exercise of

jurisdiction in his case was unconstitutional.

After both parties moved for judgment on the

pleadings, the district court held for Larrabee. See

Larrabee v. Braithwaite, 502 F. Supp. 3d 322, 333

(D.D.C. 2020).

The central question, the court

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explained, was “one of status, namely, whether the

accused in the court-martial proceeding is a person

who can be regarded as falling within the term ‘land

and naval Forces.’” Id. at 328 (quoting Kinsella v.

United States ex rel. Singleton, 361 U.S. 234, 241

(1960)). Fleet Marine Reservists were part of the “land

and naval Forces,” the court reasoned, only if

subjecting them to court-martial jurisdiction was

“necessary to maintain good order and discipline”

within the military’s ranks. Id. at 331. Because “trial

by military court-martial ‘was intended to be only a

narrow exception to the normal and preferred method

of trial in courts of law,’” the court held the

government bore the burden of showing why

subjecting persons in the Fleet Marine Reserve to

court-martial jurisdiction was necessary. Id. at 327

(quoting Reid v. Covert, 354 U.S. 1, 21 (1957) (plurality

opinion)).

The government offered two reasons why

subjecting Fleet Marine Reservists to court-martial

jurisdiction was necessary to preserve military order

and discipline, but the district court was persuaded by

neither. First, the government argued that because

they may be ordered into active duty “without [their]

consent,” 10 U.S.C. § 8385(a), Fleet Marine Reservists

remain a part of the nation’s fighting forces.

Subjecting them to court-martial jurisdiction was

therefore essential to uphold order in the military’s

ranks. As the district court pointed out, however,

under current military regulations “retirees are highly

unlikely to be recalled.” Larrabee, 502 F. Supp. 3d at

331. Congress has extended court-martial jurisdiction

over Marine Corps reservists only in narrow

circumstances but has subjected members of the Fleet

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Marine Reserve to court-martial at all times. That

discrepant treatment was fatal to any military

necessity argument, in the court’s view.

Second, the government argued that Fleet Marine

Reservists’ “retainer pay represents reduced

compensation for [their] current part-time services,”

but the court found this inaccurate because “military

retirement benefits actually represent deferred pay for

past services,” and irrelevant because the receipt of a

military pension was not, standing alone, sufficient to

place a person in the “land and naval Forces.” Id. at

330. Soldiers’ dependents are entitled to military

benefits, and military contractors are often paid by the

military, but neither class of persons may be courtmartialed. Id. at 330–31 (citing Covert, 354 U.S. at 23,

and McElroy v. United States ex rel. Guagliardo, 361

U.S. 281, 286 (1960), respectively). Finding none of

the government’s arguments persuasive, the court

held Section 802(a)(6) facially unconstitutional and did

not reach Larrabee’s as-applied challenge.

The

government timely appealed.

II.

Our review of the district court’s judgment on the

pleadings is de novo. Jones v. Dufek, 830 F.3d 523,

525 (D.C. Cir. 2016). The authority of a federal court

to collaterally review a jurisdictional challenge to a

conviction by court-martial is long established. See In

re Grimley, 137 U.S. 147, 150 (1890) (“It cannot be

doubted that the civil courts may in any case inquire

into the jurisdiction of a court-martial, and if it

appears that the party condemned was not amenable

to its jurisdiction, may discharge him from the

sentence.”). That authority persists even where the

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court-martial’s sentence was not custodial, or if the

plaintiff is no longer in military custody. See Sanford

v. United States, 586 F.3d 28, 32 (D.C. Cir. 2009)

(“[F]ederal courts have jurisdiction to review the

validity of court-martial proceedings brought by noncustodial plaintiffs.”) (cleaned up); Schlesinger v.

Councilman, 420 U.S. 738, 749–53 (1975) (reading the

UCMJ and 28 U.S.C. § 1331 to permit non-habeas

collateral attacks against court-martial judgments

that are allegedly “void”).

Faced with a constitutional challenge to a military

court’s sentence, we must assess whether the military

courts properly exercised jurisdiction in Larrabee’s

case. See Grisham v. Hagan, 361 U.S. 278, 279–80

(1960) (giving no deference to a court-martial’s finding

that it had jurisdiction over the accused); Guagliardo,

361 U.S. at 282–84 (same); Singleton, 361 U.S. at 235–

36 (same); Covert, 354 U.S. at 3–5 (same). “[W]hether

the Constitution requires Article III courts to try

[certain] offenses,” or whether they may be tried in a

different forum, “is a structural question of subject

matter jurisdiction” subject to “de novo review” in this

court. Al Bahlul v. United States, 840 F.3d 757, 760

n.1 (D.C. Cir. 2016) (en banc) (Kavanaugh, J.,

concurring). Our jurisdiction cannot be circumscribed

by the decisions of Article I courts, because the

Constitution’s structure of separated powers requires

the Article III courts to exercise “judicial Power”

independently of the other departments. U.S. CONST.

art. III; cf. Marbury v. Madison, 5 U.S. (1 Cranch) 137,

180 (1803). We therefore proceed to consider whether

the exercise of court-martial jurisdiction over Larrabee

was constitutional.

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III.

At the outset, we address the government’s

argument that this court must defer to Congress in

determining whether Fleet Marine Reservists are

properly subject to court-martial jurisdiction under

the Make Rules Clause.3 Because “any expansion of

court-martial jurisdiction ... necessarily encroaches on

the jurisdiction of federal courts set up under Article

III of the Constitution,” Toth, 350 U.S. at 15, we cannot

simply defer to Congress’ decision to extend courtmartial jurisdiction over Fleet Marine Reservists.

Such extension is constitutional only if Fleet Marine

Reservists “can be regarded as falling within the term

‘land and naval Forces,’” Singleton, 361 U.S. at 241—

a question that turns on “the military status of the

accused,” Solorio, 483 U.S. at 439.

When confronted with a UCMJ provision allowing

court-martial jurisdiction over a class of persons, the

Supreme Court has repeatedly declined to defer to

Congress. See, e.g., Guagliardo, 361 U.S. at 283–87

(giving no deference to Congress’ determination that

civilian military contractors may be court-martialed);

Covert, 354 U.S. at 19–23 (same, for servicemembers’

dependents); Toth, 350 U.S. at 19–23 (same, for former

servicemembers).

Instead the Court has asked

3 The government has argued that Larrabee was properly subject

to court-martial jurisdiction because Section 802(a)(6) is

consistent with the Make Rules Clause. This case therefore does

not implicate the jurisdiction of courts-martial in theaters of war.

In that distinct context, given “the extraordinary circumstances

present in an area of actual fighting,” courts-martial may try both

civilians and military personnel. Covert, 354 U.S. at 33. That

power stems not from Congress’ authority under the Make Rules

Clause, but “must rest on the Government’s ‘war powers.’” Id.

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whether the accused was “actually [a] member[] or

part of the armed forces,” or else was a “civilian[] ...

entitled to have the benefit of safeguards afforded

those tried in the regular courts authorized by Article

III.” Toth, 350 U.S. at 15, 23. Although Congress

maintains “plenary” authority under the Make Rules

Clause to determine which offenses may be punished

by court-martial, Solorio, 483 U.S. at 441, it does not

possess the anterior authority to define which persons

may be constitutionally court-martialed.

The government argues that this case is unique

because Congress has not only authorized the courtmartialing of Fleet Marine Reservists under the Make

Rules Clause but has also defined the Fleet Marine

Reserve as part of the “armed forces” pursuant to its

authority under the Army and Navy Clauses. 10

U.S.C. §§ 101(a)(4), 8001(a)(2); U.S. CONST. art. I, § 8,

cls. 12–13 (“Army and Navy Clauses”) (authorizing

Congress to “raise and support Armies” and “provide

and maintain a Navy”). Without question, Congress’

power to raise and support the nation’s fighting forces

is capacious and entitled to substantial deference. See

United States v. O’Brien, 391 U.S. 367, 377 (1968)

(“The constitutional power of Congress to raise and

support armies and to make all laws necessary and

proper to that end is broad and sweeping.”). It follows,

the government argues, that if Congress raises a

military force pursuant to the Army and Navy

Clauses, individuals in that force are ipso facto in “the

land and naval Forces” covered by the Make Rules

Clause.

The Supreme Court has recognized, however, that

these Clauses are not coextensive, noting that “there

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might be circumstances where a person could be ‘in’

the armed services for purposes of [the Make Rules

Clause] even though he had not formally been

inducted into the military.” Covert, 354 U.S. at 23; see

also Guagliardo, 361 U.S. at 284–85 (citing Ex parte

Reed, 100 U.S. 13 (1879)). Because these Clauses are

not perfectly overlapping, it is not necessarily the case

that if a person is part of the forces Congress has

raised under the Army and Navy Clauses, he may be

court-martialed under the Make Rules Clause. The

fact that Congress has chosen to define the Fleet

Marine Reserve as part of the armed forces is therefore

not sufficient to make its members constitutionally

amenable to court-martial.

The Supreme Court has not deferred to Congress’

judgments in this area, but instead has assessed

whether a person was actually in the armed forces, or

instead was a civilian. In Guagliardo, the Court

indicated that if Congress wanted to subject military

contractors to court-martial jurisdiction, it could draft

them into the armed forces. See 361 U.S. at 286. For

Congress to invoke its power under the Army and

Navy Clauses and label them part of the “land and

naval Forces” would not have been enough. Similarly,

in Toth, the Court held that Congress could not extend

court-martial jurisdiction over a former serviceman

who had been discharged from the army and returned

to civilian life. See 350 U.S. at 22–23. Nothing in Toth

or its successor cases suggests that if Congress had

just defined the accused civilian as a member of the

“land and naval Forces,” the Court would have reached

a different result. Congress may not, through an act

of legislative bootstrapping, expand the scope of the

Make Rules Clause by defining (or redefining) its

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terms.

Contrary to the government’s assertions, Congress

cannot rely on the Necessary and Proper Clause “to

extend military jurisdiction to any group of persons

beyond that class described” in the Make Rules

Clause. Covert, 354 U.S. at 20–21; see also Toth, 350

U.S. at 22 (explaining that the Make Rules Clause

does not “deprive people of trials under Bill of Rights

safeguards, and we are not willing to hold that power

to circumvent those safeguards should be inferred

through the Necessary and Proper Clause”). As the

Court has recognized, “a statute cannot be framed by

which a civilian can lawfully be made amenable to the

military jurisdiction in time of peace.” Covert, 354

U.S. at 35 (quoting WILLIAM WINTHROP, MILITARY LAW

AND PRECEDENTS 107 (2d ed. 1920) (1886)) (cleaned

up).

Congress’ authority under the Make Rules Clause

is circumscribed by Article III and the Grand Jury

Clause, which protect individual liberty interests. See

id. at 21 (“Every extension of military jurisdiction is

an encroachment on the jurisdiction of the civil courts,

and, more important, acts as a deprivation of the right

to jury trial and of other treasured constitutional

protections.”). Because of the constitutional interests

at stake, we do not defer to Congress’ judgments about

the classes of persons who are within the “land and

naval Forces,” and thus subject to court-martial

jurisdiction.

IV.

Whether Larrabee was constitutionally subjected

to court-martial jurisdiction turns “on one factor: the

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military status of the accused.” Solorio, 483 U.S. at

439. Neither the Supreme Court nor this court has

spoken directly to the constitutional question of

whether Fleet Marine Reservists specifically, or

inactive-duty military retirees more generally, may be

court-martialed. The Court’s decisions interpreting

the Make Rules Clause, however, draw a consistent

distinction between civilians on the one hand and

persons in the armed forces on the other. “[I]f the

language of [the Make Rules Clause] is given its

natural meaning, the power granted does not extend

to civilians[.] ... The term ‘land and naval Forces’

refers to persons who are members of the armed

services and not to [civilians].” Covert, 354 U.S. at 19–

20 (cleaned up).

In each case in which the Court has found that the

accused was in “the land and naval Forces,” he had a

formal “relationship with the military and its

institutions,” which made him “actually [a] member[]

or part of the armed forces.” Toth, 350 U.S. at 14–15.

Soldiers in active-duty service, most typically, may be

subject to court-martial jurisdiction. Cf. Dynes v.

Hoover, 61 U.S. (20 How.) 65, 79 (1857). Such activeduty personnel have been inducted into the military,

are in the chain of command, and are required to obey

their superiors’ orders. But the Court has also held

that, in certain narrow circumstances, the

Constitution permits the court-martialing of persons

not presently in active-duty service—so long as they

have a particular kind of “relationship with the

military and its institutions.” Toth, 350 U.S. at 14.

The Court’s Make Rules Clause jurisprudence has

been shaped in response to a diverse range of cases in

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which a person was court-martialed. What unites the

decisions in these different contexts is that the persons

found to be properly within “the land and naval

Forces” had a formal relationship with the military

that included an obligation to obey military orders.

In Reed, for instance, the Court held that a Navy

paymaster’s clerk was amenable to court-martial. 100

U.S. at 22. The clerk had never been formally inducted

into the Navy and so was not an active-duty

servicemember. Nevertheless, the clerk had agreed to

serve on a naval vessel, binding “himself to be subject

to the laws and regulations for the government of the

navy and the discipline of the vessel,” and had “take[n]

an oath ... to serve until discharged.” Id. at 19–20, 22

(cleaned up). The clerk’s formal relationship with the

Navy was further confirmed by the fact that he was

appointed by the commander of the ship and could only

be discharged in the same way. He wore a uniform,

had a fixed rank, and was on the Navy’s payroll. Id.

at 22. Finally, at the time of his court-martialing, the

clerk had not been discharged and so had an ongoing

obligation to obey the orders of the vessel’s

commander. Id. at 20. In light of these observations,

the Court concluded, “[i]f these officers are not in the

naval service, it may well be asked who are.” Id. at 22.

Similarly, in Kahn v. Anderson, the Court held that

a group of soldiers who had been court-martialed and

sentenced to a term of imprisonment remained

amenable to court-martial for crimes committed while

in military custody. See 255 U.S. 1, 7–8 (1921). The

prisoners had argued that, as a result of their initial

conviction, they had “ceased to be soldiers and were no

longer subject to military law.” Id. at 7. Rejecting that

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argument as “unsubstantial,” the Court held that

“even if their discharge as soldiers had resulted from

the previous sentences ... it would be here immaterial,

since, as they remained military prisoners, they were

for that reason subject to military law and trial by

court-martial for offenses committed during such

imprisonment.”

Id. at 7–8 (citing Carter v.

McClaughry, 183 U.S. 365, 383 (1902)). The prisoners

had a legal relationship with the armed forces, even if

involuntary, because they were “military prisoners

undergoing punishment for previous sentences.” Id. at

7. As the Court explained in Carter, because military

jurisdiction “attache[s]” at the time of a soldier’s courtmartialing, he remains under the military’s

jurisdiction until his release. 183 U.S. at 383. “Having

[been] sentenced, his status [is] that of a military

prisoner” who must obey military orders.

Id.

Therefore, “for offences committed during his

confinement he [is] liable to trial and punishment by

court martial.” Id.

Congress also may authorize courts-martial to

punish those who disobey lawful draft orders. See

Billings v. Truesdell, 321 U.S. 542, 556 (1944) (“We

have no doubt of the power of Congress to enlist the

manpower of the nation for prosecution of the war and

to subject to military jurisdiction those who are

unwilling, as well as those who are eager, to come to

the defense of their nation in its hour of peril.”).4 From

the moment he is called to serve, a draftee becomes

part of “the land and naval Forces”—bound to the

Billings ultimately held that the courts-martial lacked

jurisdiction for statutory, not constitutional, reasons. See 321

U.S. at 556–58.

4

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military by a legal duty to serve, even if involuntarily.

Cf. Houston v. Moore, 18 U.S. (5 Wheat.) 1, 20 (1820)

(“[I]f Congress had pleased so to declare, a militia man,

called into the service of the United States, might have

been held and considered as being constructively in

that service, though not actually so.”); Martin v. Mott,

25 U.S. (12 Wheat.) 19, 33–34 (1827) (permitting the

court-martialing of a man who was ordered into militia

service, but refused to join). Even if he refuses to be

inducted, a draftee is a member of the armed forces

and obliged to obey military orders. Billings, 321 U.S.

at 556.

The clerk in Reed, the prisoner in Kahn, and the

draftee in Billings each had a legal relationship to the

military that included an ongoing duty to obey military

orders. For that reason, they came within the scope of

“the land and naval Forces.”

By contrast, in every case in which the Court has

struck down the exercise of court-martial jurisdiction

over a class of persons, the accused had no formal

relationship with the military and no ongoing

obligation to obey military orders. In Toth, for

example, the Court made clear that servicemembers

who have been legally discharged and returned to

civilian life are not part of “the land and naval Forces.”

See 350 U.S. at 22–23. Although Toth was accused of

committing a crime while a servicemember, at the

time of his arrest he had been discharged and “had no

relationship of any kind with the military.” Id. at 13.

Whatever his prior relation to the military, the Make

Rules Clause did not permit a discharged soldier to be

court-martialed. “For given its natural meaning, the

power granted Congress ‘To make Rules’ to regulate

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‘the land and naval Forces’ would seem to restrict

court-martial jurisdiction to persons who are actually

members or part of the armed forces”—that is, persons

who are in the armed forces at the time of their courtmartialing. Id. at 15. The Court explained that the

purpose of the military justice system would not be

impaired by “giving ex-servicemen the benefit of a

civilian court trial when they are actually civilians.”

Id. at 22.

In a pair of successor cases, the Court extended

Toth’s basic logic to hold that servicemembers’ civilian

dependents may not be court-martialed. “The term

‘land and naval Forces’ refers to persons who are

members of the armed services and not to their civilian

wives, children and other dependents.” Covert, 354

U.S. at 19–20; see also Singleton, 361 U.S. at 248. As

the Court explained, the servicemembers’ dependents

“had never been members of the army, had never been

employed by the army, [and] had never served in the

army in any capacity.” Covert, 354 U.S. at 32.

Although they often live with servicemembers on

military installations and receive military benefits,

they “do not lose their civilian status and their right to

a civilian trial” by virtue of those facts. Id. at 23.

Similarly, the Court has held that private military

contractors may not be court-martialed.

Like

discharged soldiers and servicemembers’ dependents,

the Constitution “requires [the military’s] civilian

employees to be afforded the same right of trial by

jury.” Grisham, 361 U.S. at 280. In Guagliardo, the

Court noted that private contractors could be courtmartialed if they had voluntarily bound themselves to

the military through procedures like those used by the

19a

paymaster’s clerk in Reed, or if they had been

“incorporate[d] ... directly into the armed services,

either by compulsory induction or by voluntary

enlistment.” 361 U.S. at 286. But unless such action

were taken to bring them into a “military status,”

private contractors remained “civilians” outside the

scope of the Make Rules Clause. Id. at 287, 284.

The Court has declined to adopt a bright-line test

to distinguish between civilians and those within the

“land and naval Forces.” See Covert, 354 U.S. at 22

(“Even if it were possible, we need not attempt here to

precisely define the boundary between ‘civilians’ and

members of the ‘land and naval Forces.’”).

Nonetheless, its decisions construing the scope of the

Make Rules Clause, read together, suggest that a

person is part of the “land and naval Forces” and may

be subject to court-martial jurisdiction if he has a

formal relationship with the armed forces that

includes a duty to obey military orders.5

V.

The rule suggested by the Court’s caselaw is

consistent with our understanding of the original

meaning of the Make Rules Clause. The American

“court-martial is in fact older than the Constitution.”

Ortiz v. United States, 138 S. Ct. 2165, 2175 (2018)

(cleaned up).

The Court has therefore often

“undertaken ... the difficult task of interpreting [the

Make Rules Clause] by drawing upon English

5 A legal relationship to the military that includes an obligation

to obey military orders is sufficient for membership in “the land

and naval Forces.” Therefore, we need not decide whether such a

relationship is necessary for membership in “the land and naval

Forces.”

20a

constitutional history.” Loving v. United States, 517

U.S. 748, 760 (1996). The organization and regulation

of the eighteenth-century British military, as well as

an American court-martial proceeding at the end of

the Revolutionary War, suggest that at the Founding,

the term “land and naval Forces” was understood to

encompass inactive-duty personnel who remained

obligated to obey military orders, including orders to

serve again if called. Such inactive-duty soldiers, in

other words, were regarded as having “military

status.”

We begin with the pre-Revolutionary example of

“half-pay officers.” In the seventeenth century, in

recognition of prior service, the British government

began paying certain officers a reduced salary in

peacetime. See JOHN CHILDS, THE BRITISH ARMY OF

WILLIAM III, 1689–1702, at 70 (1987). Half-pay

officers were allowed to live otherwise ordinary

civilian lives but had to return to active-duty service if

ordered. See N.A.M. Rodger, Commissioned Officers’

Careers in the Royal Navy, 1690–1815, 3 J. FOR MAR.

RSCH. 85, 90–91 (2001). After 1714, all British officers

became eligible to participate in this system, which fed

the rise of a burgeoning corps of officers who made

lifelong careers in the military. “By mid-century long

service had become the norm,” and the half-pay system

was a recognizable feature of British military culture.

JOHN BREWER, THE SINEWS OF POWER 56 (1989).

When compared to active-duty soldiers, half-pay

officers’ connections to Britain’s armed forces were

quite sparse. Aside from their diminished pay, their

only connection to the military was their ongoing

21a

service obligation.6 Nevertheless, throughout the

eighteenth-century, Parliament consistently described

these half-pay officers as part of “his Majesty’s land

forces and marines.” 9 Geo. 2 ch. 34, § 21; see also THE

ANNALS OF KING GEORGE, YEAR THE THIRD 153 (1718)

(describing funds appropriated for “Half-pay to the

Officers of the Land Forces and Marines disbanded”

after the Jacobite uprising of 1715). In 1758, Edmund

Burke’s Annual Register reported that Parliament had

set aside funds for the “widows of such reduced officers

of the land forces and marines, as died upon the

establishment of half-pay.” 1 ANNUAL REGISTER 128

(Edmund Burke ed., 4th ed. 1764) (1758). Decades

later, the House of Commons directed one of its

committees to estimate the cost of “Half Pay and

Allowances [for] the Reduced Officers of His Majesty’s

[North] American Forces” for the coming year. 50

JOURNAL OF THE HOUSE OF COMMONS [1794–95], at 84

(c. 1795).

Although British half-pay officers were recognized

as having military status, across the eighteenth

century there was considerable debate about whether

these officers should be subjected to the jurisdiction of

peacetime courts-martial. Some half-pay officers were

court-martialed in the early 1700s under the Mutiny

Act adopted in 1689.

See 1 JOHN MCARTHUR,

PRINCIPLES AND PRACTICE OF NAVAL AND MILITARY

COURTS MARTIAL 190 (1805) (“[O]fficers on half pay

6 While all half-pay officers were in principle subject to recall,

“[o]fficers were retained on the list who were known to be

incapable and even insane because no other support for their old

age was available.” Rodger, 3 J. FOR MAR. RSCH. at 91. For such

officers, the half-pay system was a de facto retirement.

22a

were originally deemed, though not in actual service,

to be subject to martial law.”); cf. Loving, 517 U.S. at

761–65 (discussing the Mutiny Act’s history). After

realizing that the Act’s terms furnished uncertain

legal grounds for those proceedings, Parliament

amended the Act in 1748 to make clear that half-pay

officers were subject to court-martial jurisdiction.7 22

Geo. 2 c. 5; see 1 MCARTHUR at 189–92; HARRIS

PRENDERGAST, THE LAW RELATING TO OFFICERS IN THE

ARMY 25 (1855).

Soon thereafter, public opposition forced

Parliament to reverse course, and the Act’s

jurisdiction-extending provision was repealed. In

1785 the Court of Exchequer Chamber weighed in,

finding that half-pay officers did not come within the

scope of the Mutiny Act’s original terms. See 1

MCARTHUR at 195–96; PRENDERGAST at 25; JOHN

DELAFONS, A TREATISE ON NAVAL COURTS MARTIAL 62–

63 (1805). But that judicial decision did not limit the

legislature’s authority to subject half-pay officers to

military jurisdiction: one year later, Parliament again

amended the Mutiny Act to encompass half-pay

officers with brevet rank. See 1 MCARTHUR at 201.

7 The amendment provided:

And whereas it may be otherwise doubted, whether ...

the reduced Officers of His Majesty’s Land Forces and

Marines on the British and Irish Establishment of Half

Pay, be within the Intent and Meaning of this Act, ... it

is hereby enacted by the Authority aforesaid, That the

... reduced Officers of His Majesty’s Land Forces and

Marines, on the British and Irish Establishments of

Half Pay, be at all Times subject to all the Penalties and

Punishments mentioned in this Act.

22 Geo. 2 c. 5.

23a

Thus, although it was contested throughout the

eighteenth century whether half-pay officers should be

legislatively subject to court-martial jurisdiction, it

was beyond controversy that they were part of

Britain’s armed “forces” amenable to military

jurisdiction.8

The Americans who ratified the Constitution were

familiar with the structure of the British military

generally, and with the half-pay system specifically.

Indeed, some of the Continental Army’s most

prominent leaders had been half-pay officers in the

years before independence—Charles Lee of Virginia,

for instance. See 1 PAPERS OF GEORGE WASHINGTON,

REVOLUTIONARY WAR SERIES 18 n.4 (Philander D.

Chase ed., 1985). During the Revolutionary War, the

8 After oral argument, Larrabee directed us to an unpublished

article arguing that military retirees do not fall within the

original meaning of “the land and naval Forces” in the Make

Rules Clause. See Marc J. Emond, Can Grandpa Really be CourtMartialed? The Constitutionality of Imposing Military Law upon

Retired Personnel (2022) (LL.M. dissertation, JAG Legal Ctr. &

Sch.),

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4089746.

Emond argues that at the Founding, the American Articles of

War permitted only the court-martialing of active-duty personnel:

those Articles were modeled on the British Mutiny Act, and by

1787, the Mutiny Act had not expressly authorized the courtmartialing of half-pay officers for over thirty years. See id. at 27–

28. But given that Parliament had subjected half-pay officers to

court-martial jurisdiction earlier in the eighteenth century, and

that its authority to do so was not disputed, the scope of the

Founding-era Articles of War is not dispositive of the

Constitution’s original meaning. The fact that Congress chose not

to subject inactive-duty personnel to court-martial jurisdiction

does not settle whether Congress had the authority to do so under

the Make Rules Clause.

24a

Continental Congress pledged on more than one

occasion that after hostilities ceased, retired American

officers would be given half pay, just like their British

counterparts.9 See 11 JOURNALS OF THE CONTINENTAL

CONGRESS, 1774–1789, at 502–03 (Worthington

Chauncey Ford ed., 1908) [hereinafter JOURNALS]; 18

id. at 960–61.

In 1781, Congress directed the

Continental Army to place certain redundant officers

in half-pay status and to make them amenable to

involuntary recall. See 21 id. at 1180. The idea that

an inactive-duty soldier might be part of the

Continental Army’s “forces” was therefore not foreign

to Founding-era Americans.

Indeed, a notable historical episode confirms that

in the early American Republic inactive-duty troops

were understood to be part of “the land and naval

Forces.”10 The Continental Congress was authorized

to “mak[e] rules for the government of the said land

and naval forces.” ARTICLES OF CONFEDERATION of

1781, art. IX, para. 4. To be court-martialed under the

laws adopted by the Continental Congress, therefore,

a person had to belong to the “land and naval forces.”

Towards the end of the Revolutionary War, Congress

9 Because of the federal government’s financial difficulties after

the Revolutionary War, those plans did not ultimately

materialize. The United States’ military retirement system dates

from the mid-nineteenth century, and Congress has subjected

military retirees to court-martial jurisdiction since that time. See

J. MACKEY IVES & Michael J. Davidson, Court-Martial

Jurisdiction over Retirees under Articles 2(4) and 2(6): Time to

Lighten Up and Tighten Up?, 175 MIL. L. REV. 1, 3–5, 11–12

(2003).

10 We owe this historical argument to Judge Maggs. See Begani,

81 M.J. at 284–85 (Maggs, J., concurring).

25a

elected to furlough indefinitely most soldiers in the

Continental Army, with the understanding that they

would be fully discharged after a peace with Britain

was concluded. See 24 JOURNALS at 269–71, 364–65,

390. Pursuant to that directive, in 1783 George

Washington instructed his officers to furlough their

troops—to issue what were, in effect, conditional

discharge papers.11 Between their furlough in June

and their eventual discharge in October, these troops

were not in active-duty service and were allowed to

return indefinitely to civilian life. See Alexander W.

Armour, Revolutionary War Discharges, 21 WILLIAM &

MARY Q. 344, 353–57 (1941); 25 JOURNALS at 702–03.

We know that these inactive-duty soldiers were

part of the “land and naval forces” because, while they

were furloughed, some were court-martialed. See

Mary A.Y. Gallagher, Reinterpreting the “Very Trifling

Mutiny” at Philadelphia in June 1783, 119 PENN. MAG.

OF HIST. & BIOG. 3, 28 (1995). In June 1783, a large

contingent of them—angry they had not been paid

their full wages—staged a violent protest in

Philadelphia, forcing the Continental Congress to

evacuate the city. From Princeton, Congress directed

the Army’s leadership to take “immediate measures ...

to confine and bring to trial all such persons belonging

to the army as have been principally active in the late

mutiny.” 24 JOURNALS at 412–13. After restoring

11 These papers provided:

“The within CERTIFICATE shall not

avail the Bearer [of] a Discharge, until the Ratification of the

definitive Treaty of Peace; previous to which Time, and until

Proclamation thereof shall be made, He is to be considered as

being on Furlough.” Reprinted in Alexander W. Armour,

Revolutionary War Discharges, 21 WILLIAM & MARY Q. 344, 354–

55 (1941).

26a

order, some of them were court-martialed for mutiny.12

See 25 JOURNALS at 565–66.

Later, the Continental Congress intervened to

pardon the convicted soldiers. Id. While Congress

knew that many of these soldiers had received

furloughs before the mutiny, it never challenged the

court-martial’s power to try them; indeed, it had

ordered their trial. Henry Knox, the Secretary of War,

voiced no objection to the proceedings. See Begani, 81

M.J. at 285 n.2 (Maggs, J., concurring) (citing 33

JOURNALS at 666–67). And in his later narration of the

episode, John Marshall never questioned the military

tribunal’s jurisdiction. See 4 JOHN MARSHALL, THE

LIFE OF GEORGE WASHINGTON 614–18 (1805).

Although these furloughed soldiers were not currently

in active duty, and would likely never serve again,

Founding-era observers evidently had no difficulty

conceiving of them as part of the “land and naval

forces” whose members could be court-martialed.

***

The scope of court-martial jurisdiction under the

Articles of Confederation incorporated the settled

meaning of “land and naval forces” that the

revolutionaries inherited from their experience as

British subjects.

Cf. Felix Frankfurter, Some

Reflections on the Reading of Statutes, 47 COLUM. L.

REV. 527, 537 (1947) (“[I]f a word is obviously

transplanted from another legal source ... it brings the

old soil with it.”). In drafting the Constitution, “the

Under the Articles of War then in effect, only a “soldier or

officer” could be tried for mutiny. Articles of War of 1776, § 2, art.

3, reprinted in 5 JOURNALS at 789.

12

27a

Framers recognized and sanctioned existing military

jurisdiction by exempting from the Fifth Amendment’s

Grand Jury Clause all ‘cases arising in the land or

naval forces’” and “by granting [Congress] power ‘to

make Rules for the Government and Regulation of the

land and naval Forces.’” Ortiz, 138 S. Ct. at 2175

(cleaned up). In other words, those persons who were

in the “land and naval forces” under the Articles and

who could therefore be court-martialed remained so

under the Constitution.

In eighteenth-century Britain and the postrevolutionary United States, “the land and naval

forces” comprehended not only active-duty soldiers,

but inactive-duty ones as well. Half-pay officers were

part of “his Majesty’s land forces and marines” because

they had a relationship with the military that entailed

an obligation to serve again, if called. The furloughed

soldiers court-martialed in Philadelphia were part of

the American “land and naval forces,” and for the same

reason. These historical examples confirm that a

person who has a formal relationship with the military

that includes an obligation to obey military orders is

part of the “land and naval Forces,” as that phrase was

understood at the Founding. Because such persons

are “actually members or part of the armed forces,” the

Make Rules Clause permits Congress to subject them

to court-martial jurisdiction. Toth, 350 U.S. at 15.

VI.

Based on the foregoing, it is sufficient for a person

to fall within the “land and naval Forces” if he has a

formal relationship with the armed forces that

includes a duty to obey military orders. Applying that

test of military status here, we conclude that members

28a

of the Fleet Marine Reserve are a part of the “land and

naval Forces” and therefore that Larrabee’s courtmartial was constitutional.

A.

Larrabee voluntarily joined the Marine Corps in

1994.

As an active-duty Marine, he was

unquestionably in the armed forces and amenable to

court-martial jurisdiction. After serving in active duty

for twenty years and attaining the rank of Staff

Sergeant, he elected to transfer to the Fleet Marine

Reserve. In practice he became a retiree, but he

maintained a legal relationship with the armed forces.

As a Fleet Marine Reservist, he assumed an obligation

to obey, “without his consent,” an order to reenter

active-duty service during a “war or national

emergency declared by Congress,” a “national

emergency declared by the President,” or as “otherwise

authorized by law.” 10 U.S.C. § 8385(a); see also id. §

688(a)–(b). These service obligations are central to the

identity of the Fleet Marine Reserve, whose basic

“purpose ... is to maintain a ready manpower pool of

trained Marines for recall and mobilization.” MCO

1900.16 ¶ 7001.2. In addition to this duty to reenter

active service, if ordered, Larrabee was also “required”

to report to “active duty for training” for up to two

months in any four-year period. 10 U.S.C. § 8385(b).

Finally, he was subject to employment restrictions, as

well as military reporting requirements.13

13 Our dissenting colleague maintains that until members of the

Fleet Marine Reserve are recalled to active duty, “their day-today lives are equivalent to those of ordinary civilians.”

Dissenting Op. 3. As a practical matter, this is undoubtedly true.

As a formal legal matter, however, they continue to retain

29a

Through his membership in the Fleet Marine

Reserve, Larrabee had legally bound himself to the

armed forces and assumed a duty to obey military

orders. He therefore had a “military status” and was

properly subject to court-martial jurisdiction. Solorio,

483 U.S. at 439; see also Guagliardo, 361 U.S. at 287

(private military contractor lacked “military status”

and so could not be court-martialed); MCO 1900.16 ¶

1002.20 (discharged soldiers, who may not be courtmartialed under Toth, lack “all military status”).

B.

This conclusion is consistent with the settled

position of the CAAF, which has long recognized

military retirees as amenable to court-martial. See

Pearson v. Bloss, 28 M.J. 376, 379 (C.M.A. 1989)

(upholding military jurisdiction over retired personnel

in the Air Force); United States v. Overton, 24 M.J.

309, 311 (C.M.A. 1987) (same, for members of the Fleet

Marine Reserve). It reaffirmed that view last year in

United States v. Begani, holding that “retired members

of the armed forces”—including “members of the ...

Fleet Marine Reserve”—are “part of the ‘land and

naval Forces’” whose members may be constitutionally

court-martialed. 81 M.J. at 276, 279, cert. denied, 142

S. Ct. 711 (2021). In particular, the CAAF’s decision

rested on the fact that Begani, a naval Fleet Reservist,

(1) “receive[d] ongoing retainer pay” because he was a

“current member[] of the armed forces, though not on

active duty,” and (2) was “require[d] [to] maintain

“military status,” even if not all the responsibilities of active-duty

servicemembers. In times of emergency and war, Fleet Marine

Reservists must answer the call to serve, whereas civilians may

choose to stay home.

30a

readiness for future recall.” Id. at 278 (emphasis

removed). We note also that the only Article III court

of appeals to have considered whether military

retirees may be court-martialed reached the same

result. See United States ex rel. Pasela v. Fenno, 167

F.2d 593, 595 (2d Cir. 1948) (holding that a naval Fleet

Reservist could be court-martialed and pointing to the

fact that he “remain[ed] subject to call to active duty”);

cf. Hooper v. United States, 326 F.2d 982, 986–87 (Ct.

Cl. 1964) (similar).

C.

Our conclusion that Fleet Marine Reservists are in

“the land and naval Forces” is further reinforced by the

fact that, in other contexts not raising the

constitutional question presented here, the Supreme

Court has recognized military retirees as part of the

nation’s armed forces. Barker v. Kansas, for instance,

concerned whether military retirees’ benefits should

be taxed as a pension for past service or as “current

pay for current services.” 503 U.S. 594, 600 (1992). In

resolving that dispute, the Court explicitly confirmed

that “[m]ilitary retirees unquestionably remain in the

service and are subject to restrictions and recall.” Id.

at 599. In the similar case of McCarty v. McCarty, the

Court noted that “[t]he retired officer remains a

member of the Army, ... continues to be subject to the

Uniform Code of Military Justice, ... may forfeit all or

part of his retired pay if he engages in certain

activities,” and “remains subject to recall to active duty

by the Secretary of the Army at any time.” 453 U.S.

210, 221–22 (1981) (cleaned up). In Kahn the Court

flatly rejected the argument that, because “retired

officers” are not in the armed forces, they may not sit

31a

on court-martial panels: “it is not open to question ...

that such officers are officers in the military service of

the United States.” 255 U.S. at 6–7.

Indeed, as early as 1881, in United States v. Tyler,

the Court found that while retirees are “not required

to perform full service, they are [still] part of the army,

and may be assigned to such duty as the laws and

regulations permit.” 105 U.S. 244, 245 (1881); cf.

Thornley v. United States, 113 U.S. 310, 315 (1885)

(“The point on which [Tyler] turned was ... that an

officer of the army, though retired, was still in the

service.”). Finally, the Supreme Court and this court’s

predecessor have both affirmed court-martial

sentences imposed on military retirees without

questioning the constitutionality of the military

proceedings. See United States v. Fletcher, 148 U.S. 84

(1893); United States v. Page, 137 U.S. 673 (1891);

Closson v. United States ex rel. Armes, 7 App. D.C. 460

(1896).

As already noted, the Court has not squarely

addressed whether military retirees, such as members

of the Fleet Marine Reserve, may be court-martialed

consistent with the Constitution. Nevertheless, the

Court’s consistent and repeated acknowledgement

that military retirees are properly regarded as

members of the armed forces, rather than civilians,

substantiates our conclusion that Fleet Marine

Reservists fall within the “land and naval Forces”

governed by the Make Rules Clause.

***

Because he maintained a relationship with the

armed forces and was obligated to obey military orders

32a

at the time of his court-martialing, Larrabee was in

“the land and naval Forces” and constitutionally

subject to court-martial jurisdiction.

VII.

Larrabee offers five reasons why Fleet Marine

Reservists may not constitutionally be courtmartialed. None are availing.

First, pointing to Singleton, Larrabee argues that

we must apply a flexible, functional test to determine

whether members of the Fleet Marine Reserve “can be

regarded as falling within the term ‘land and naval

Forces.’” 361 U.S. at 241. The salient constitutional

question, in his view, is whether the person tried at

court-martial “has any authority or obligation to act in

a military capacity.” This inquiry requires a case-bycase analysis of whether the accused possesses the

“substantive authorities or responsibilities ... relevant

to the preservation of good order and discipline among

troops in active service.” Larrabee would have us

consider factors such as: Can the accused wear a

uniform? Can he give orders? Must he obey orders?

Must he meet the military’s physical fitness

requirements? When all these factors are taken

together, Larrabee argues, Fleet Marine Reservists

resemble civilians far more than soldiers. A standalone duty to return to service, he insists, is not

enough to satisfy this functional test.

When determining the scope of “the land and naval

Forces,” the Supreme Court has never resorted to the

kind of complex multifactor test that Larrabee

proposes. In the 1960s the Court adopted a balancing

test, akin to Larrabee’s, for determining which offenses

33a

could be prosecuted at court-martial.

Under

O’Callahan v. Parker, 395 U.S. 258 (1969), courts were

required to weigh a “myriad of factors ... in

determining whether an offense is service connected,”

including the nature of the offense, the status of the

victim, and the location of the crime. Solorio, 483 U.S.

at 448. The Court has since squarely rejected that

approach, holding that the permissible scope of courtmartial jurisdiction turns “on one factor: the military

status of the accused.” Id. at 439 (emphasis added).

To determine the status of a person tried at courtmartial, the Court has consistently analyzed whether

he has a legal relation to the military that entails an

obligation to obey military orders—or whether, by

contrast, he is a “civilian[] ... entitled to [the]

safeguards afforded ... by Article III of the

Constitution.” Toth, 350 U.S. at 23. We therefore

reject Larrabee’s multifactor balancing test for

differentiating civilians from military personnel.

Second, relying on the district court’s analysis

below, Larrabee argues that even if Fleet Marine

Reservists are in the armed forces, that is not

sufficient to permit their court-martialing under the

Make Rules Clause. Subjecting them to the military

courts’ jurisdiction, the district court held, must also

be “necessary to maintain good order and discipline” in

the ranks. Larrabee, 502 F. Supp. 3d at 331 (citing

Toth, 350 U.S. at 22). Because members of the Fleet

Marine Reserve are unlikely to be recalled, the

exercise of court-martial jurisdiction over them is not

necessary and so is unconstitutional.

That objection misses the mark. In Toth, the Court

did not hold that persons in the armed forces may be

34a

court-martialed only in cases of military necessity.

Rather, it held that that an ex-serviceman who is now

a civilian may not be court-martialed for crimes

committed while in military service. In reaching that

conclusion, the Court rejected the suggestion that the

Necessary and Proper Clause could stretch the Make

Rules Clause to cover civilians who did not fall within

the letter of “the land and naval Forces.” See Toth, 350

U.S. at 21–22; see also Covert, 354 U.S. at 20–21. And

it noted in passing that “[f]ree countries of the world

have tried to restrict military tribunals to the

narrowest jurisdiction deemed absolutely essential to

maintaining discipline among troops in active service.”

Toth, 350 U.S. at 22. But this general statement

appeared in the context of the Court’s sharp

distinction between civilians and servicemembers.

The Toth Court drew a line between civilians receiving

the full protections of Article III and persons within

the armed services subject to military trial. Contrary

to Larrabee’s claims, the Court did not impose limits

on court-martial jurisdiction over those persons who

had a “military status” and were actually within “the

land and naval Forces.”

Third, Larrabee and amici protest that members of

the Fleet Marine Reserve are subject to only one

duty—namely, a duty to return to active-duty service,

if called—and that such a self-standing duty is not

enough, because a person may be court-martialed only

if he is legally obligated to obey more than one military

order. We fail to see why a servicemember who must

obey one order is less a part of “the land and naval

Forces” than his peer who must obey two.14 Cf. id. at

14 Our dissenting colleague agrees that “whether individuals are

35a

17 (“[I]t is the primary business of armies and navies

to fight or be ready to fight wars should the occasion

arise.”) (emphasis added). In any event, Larrabee’s

repeated assertion that Fleet Marine Reservists have

only “one duty” fails to account for their multiple

military obligations, which include a duty to return to

service, if called, a duty to report to active duty for

training in peacetime, and a duty to comply with the

military’s employment and reporting regulations.

Fourth, Larrabee contends that if members of the

Fleet Marine Reserve fall within the scope of the Make

Rules Clause, then if Congress reauthorized a

compulsory draft, every person presently registered

with the Selective Service would become subject to

court-martial—before they had ever been inducted

into the military, donned a uniform, or received an

order.15 Consistent with its authority under the Army

and Navy Clauses, Congress may require men on the

Selective Service list to serve in the military. See

Arver v. United States, 245 U.S. 366, 377 (1918). Yet,

while those who have been drafted may be

constitutionally court-martialed, the Court has never

implied that those yet to be drafted may also face

military justice. Before a Selective Service registrant

subject to court-martial jurisdiction turns on their military

status,” but insists that “a recall order” is not “like any other

military order.” Dissenting Op. 1. The dissent does not explain

why the scope of the Make Rules Clause turns on the kind of

military order to which a person is subject, or why a legal

obligation to serve if recalled is not enough to place one in “the

land and naval Forces.”

15 “[E]very male citizen of the United States ... between the ages

of eighteen and twenty-six” is required to register with the

Selective Service. 50 U.S.C. § 3802(a).

36a

has been ordered to serve, he has no military status—

no current “relationship with the military and its

institutions,” only a prospective one. Toth, 350 U.S. at

14; cf. Billings, 321 U.S. at 546 (affirming, in dicta, the

constitutionality of a statute that authorized military

jurisdiction over persons “lawfully called, drafted, or

ordered into [the armed forces] from the dates they are

required by the terms of the call, draft or order to obey

the same”) (emphasis added) (quoting Articles of War

of 1920, Pub. L. No. 66-242, art. 2(a), 41 Stat. 787,

787). Only after being ordered into service does a

draftee become part of “the land and naval Forces”

whose members may be court-martialed. See id. at

556. Before being a drafted, by contrast, he has no

ongoing relationship with the military that obliges

him to obey military orders. Larrabee’s reductio ad

absurdum therefore fails to show that Fleet Marine

Reservists must fall outside of the Make Rules Clause.

Finally, Larrabee argues that as a matter of policy,

“there is simply no good argument for why ... military

retirees need to be subject to the UCMJ while they are

retired.” Larrabee and his amici point out that courtsmartial lack many of the constitutional protections

afforded in Article III courts, and that the UCMJ’s

procedural safeguards are grants of legislative grace

and not guaranteed as a matter of constitutional right.

These features, however, are part of the established

operation of military justice under our Constitution.

Cf. Parker v. Levy, 417 U.S. 733, 744 (1974) (“[T]he

military constitutes a specialized community governed

by a separate discipline from that of the civilian, and

... the rights of men in the armed forces must perforce

be conditioned to meet certain overriding demands of

discipline and duty.”) (cleaned up).

37a

Our dissenting colleague emphasizes the centrality

of the right to a trial by jury under our Constitution,

Dissenting Op. 1–2, and we of course recognize the

importance of the jury system in the Article III courts.

Nevertheless, it is not this court that has extended

court-martial jurisdiction, but Congress. Although the

judiciary must determine whether military retirees

like Larrabee actually have “military status,” the

question of whether subjecting them to court-martial

jurisdiction is wise or foolish is for the political

branches to decide.16

VIII.

Larrabee argues in the alternative that the Grand

Jury Clause separately barred his court-martial. He

maintains that an inactive-duty servicemember may

not be tried by a military tribunal for an offense that

is unrelated to military order and discipline, because

such a “case[]” does not “aris[e] in the land or naval

forces.” U.S. CONST. amend. V. In his view, the

government therefore violated the Grand Jury Clause

by court-martialing him for the sexual assault of a

civilian while he was an inactive-duty Fleet Marine

Reservist. We disagree.

As the Supreme Court has emphasized, “Congress has the

primary responsibility for the delicate task of balancing the rights

of servicemen against the needs of the military.” Solorio, 483 U.S.

at 447. The Executive Branch also must balance these concerns

in the exercise of its prosecutorial discretion. The Army, for

instance, has historically adhered to a “policy that retired

personnel subject to the [UCMJ] will not be tried for any offenses

by any military tribunal unless extraordinary circumstances are

present linking them to the military establishment or involving

them in conduct inimical to the welfare of the nation.” 7 JUDGE

ADVOCS. GEN., DIGEST OF OPINIONS [1957–58] 108 (1958).

16

38a

The Supreme Court has already rejected this

argument. In Solorio, it categorically renounced the

service-connection test set out in O’Callahan, making

clear that “the Constitution ... condition[s] the proper

exercise of court-martial jurisdiction over an offense on

one factor: the military status of the accused.” 483

U.S. at 439. Larrabee argues that Solorio did not

eliminate O’Callahan’s service-connection test

requirement for inactive-duty servicemembers, and

that the Grand Jury Clause requires one. But

Solorio’s holding was not limited to active-duty troops.

Rather the Court held that, as a general matter,

“determinations concerning the scope of court-martial

jurisdiction over offenses committed by servicemen

[are] reserved for Congress” and are not to be secondguessed by courts.17. Id. at 440.

We note that even if some type of service connection were

required when the government seeks to court-martial an inactiveduty servicemember, Larrabee was still properly subject to courtmartial jurisdiction. While his offenses were civilian in nature

and committed against a civilian on private property, they were

undoubtedly service-connected under O’Callahan. Indeed, it is

difficult to imagine how the sexual assault of a forward-deployed,

active-duty Marine’s wife by a retired Marine could not impair

military order and discipline. In fact, in this case it did: after

Larrabee’s assault came to light, his victim’s husband was

reassigned from Japan to the United States.

The facts in Solorio were very similar. There, a coastguardsman

was accused of sexually abusing the minor children of his fellow

coastguardsmen on private property. Before the case reached the

Supreme Court, the Court of Military Appeals (the CAAF’s

precursor) upheld the conviction under O’Callahan’s serviceconnection test, reasoning that the sexual abuse of

servicemembers’ civilian dependents has “a continuing effect on

the victims and their families and ultimately on the morale of any

military unit or organization to which the family member is

17

39a

Moreover, as the Court explained in Covert, the

Fifth Amendment’s “exception ... for ‘cases arising in

the land or naval forces’ was undoubtedly designed to

correlate with the power granted Congress to provide

for the ‘Government and Regulation’ of the armed

services.” 354 U.S. at 22. In other words, the Grand

Jury Clause does not limit Congress’ powers under the

Make Rules Clause. Cf. Ex parte Milligan, 71 U.S. 2,

138 (1866) (Chase, C.J., concurring) (observing that

the Grand Jury Clause’s “exception [has] the same

import and effect as if the powers of Congress in

relation to the government of the army and navy and

the militia had been recited in the [Fifth]

[A]mendment, and cases within those powers had been

expressly excepted from its operation”). Congress’

authority to govern and regulate persons in the armed

forces is “plenary,” and Larrabee offers no compelling

reason why the Grand Jury Clause constrains that

authority in the case of inactive-duty troops. Solorio,

483 U.S. at 441.

As the text and structure of the two clauses

confirm, the scope of the Grand Jury Clause’s

exception is coextensive with that of the Make Rules

Clause. Because Larrabee was in “the land and naval

Forces” at the time of his court-martialing, U.S.

CONST. art. I, § 8, cl. 14, his “case[] ar[ose] in the land

or naval forces,” U.S. CONST. amend. V.

***

Military trials are constitutional only for those who

assigned.” United States v. Solorio, 21 M.J. 251, 256 (C.M.A.

1986); see also Solorio, 483 U.S. at 451 (Stevens, J., concurring in

the judgment). So too here.

40a

have a military status. Because the exercise of courtmartial jurisdiction limits the constitutional

protections of Article III courts, we must

independently determine whether a person is in “the

land and naval Forces” or is a civilian. The Supreme

Court’s precedents interpreting the Make Rules

Clause, as well as historical evidence from the

Founding era, both indicate that Congress may extend

court-martial jurisdiction over a person if he has a

formal relationship with the military that includes a

duty to obey military orders. Larrabee had the

requisite military status because at the time of his

arrest he was a member of the Fleet Marine Reserve

and was subject to ongoing military duties. The

judgment of the district court is therefore

Reversed.

41a

TATEL, Circuit Judge, concurring in part and

dissenting in part: I agree with my colleagues about

everything except what matters most:

their

conclusion. I agree that whether individuals are

subject to court-martial jurisdiction turns on their

military status and that the unifying pattern in

Supreme Court precedent “is that the persons found to

be properly within ‘the land and naval Forces’ had a

formal relationship with the military that included an

obligation to obey military orders.” Majority Op. at 13.

I also agree with Judge Rao that we owe Congress no

deference in interpreting the scope of the Make Rules

Clause. That said, I disagree that the type of order to

which Larrabee is potentially subject—a recall order

summoning him from civilian life to take up arms—is

like any other military order. By treating it as such,

the court extends court-martial jurisdiction not only to

the Fleet Marine Corps Reserve, but also to roughly

two million military retirees. Because this dramatic

expansion of court-martial jurisdiction is beyond what

the Constitution allows and case law supports, I

respectfully dissent from that portion of the court’s

opinion.

The court is of course correct that this case is about

the Make Rules Clause. But we must interpret that

clause in the context of the rest of the Constitution,

which puts a heavy thumb on the scale against

extending court-martial jurisdiction. The Constitution

guarantees the right to juries not once, not twice, but

four times.

Article III: “The Trial of all Crimes,

except in Cases of Impeachment, shall be

by Jury.”

42a

Fifth Amendment: “No person shall be

held to answer for a capital, or otherwise

infamous crime, unless on a presentment

or indictment of a Grand Jury, except in

cases arising in the land or naval forces,

or in the Militia, when in actual service

in time of War or public danger.”

Sixth Amendment:

“In all criminal

prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an

impartial jury.”

Seventh Amendment:

“In Suits at

common law . . . the right of trial by jury

shall be preserved.”

(Emphases added.)

By contrast, the Constitution has nothing at all to

say about court-martial jurisdiction. The Supreme

Court inferred this “very limited and extraordinary

jurisdiction . . . from the cryptic language in” the Make

Rules Clause. Reid v. Covert, 354 U.S. 1, 21 (1957)

(plurality opinion).

Its justification for allowing

courts-martial is straightforward. As it explained in

United States ex rel. Toth v. Quarles, “[c]ourt-martial

jurisdiction sprang from the belief that within the

military ranks there is need for a prompt, ready-athand means of compelling obedience and order.” 350

U.S. 11, 22 (1955). In Toth, the Court held that a

discharged soldier could not be court-martialed

because “[i]t is impossible to think that the discipline

of the Army is going to be disrupted, its morale

impaired, or its orderly processes disturbed, by giving

ex-servicemen the benefit of a civilian court trial when

43a

they are actually civilians.” Id. Two years later, in

Reid v. Covert, the court extended Toth to military

dependents who commit crimes on military bases,

holding that they too cannot be court-martialed

because such conduct bears even less on “the

maintenance of order and discipline in the armed

forces than the conduct of” discharged soldiers. 354

U.S. at 32; see also Kinsella v. United States ex rel.

Singleton, 361 U.S. 234, 248–49 (1960) (extending

Covert’s reasoning to noncapital offenses committed by

military dependents).

Surveying Supreme Court precedent, my

colleagues point out that only individuals with “a

formal relationship with the military that include[s]

an obligation to obey military orders” are “properly

within ‘the land and naval Forces.’” Majority Op. at

13. This makes sense given that the need for military

order and discipline is what justifies subjecting

military personnel to courts-martial. Individuals not

subject to military orders are not an “‘important’” part

of the military “‘machinery’” that depends on swift

military justice to maintain good order and discipline.

McElroy v. United States ex rel. Guagliardo, 361 U.S.

281, 285 (1960) (quoting Ex parte Reed, 100 U.S. 13,

21–22 (1879)).

Although the duty to obey military orders is a

necessary condition for court-martial jurisdiction, it

does not follow that the possibility of a recall order is

sufficient to subject members of the Fleet Marine

Corps Reserve to such jurisdiction. If the military

issues an order recalling one or more members of the

Fleet Marine Corps Reserve, they will be

reincorporated into the military chain of command and

44a

subject to military discipline and court-martial. But

until then, their day-to-day lives are equivalent to

those of ordinary civilians. No need to take my word

for it. Ask the military, which routinely excludes the

Fleet Marine Corps Reserve from the requirements it

deems necessary to maintain the armed forces.

Members of the Fleet Marine Corps Reserve are

unassigned to a specific command, are ineligible for

promotion, lack authority to issue binding orders, may

refer to their rank and wear their uniforms only under

limited conditions, need not participate in military

activities, need not maintain any level of physical

fitness, and may not serve on or refer charges to

courts-martial. And especially significant, although

the Marine Corps requires all “active and reserve

component” members to be vaccinated against COVID19 because “a fully vaccinated force is a matter of

operational readiness and good order and discipline,”

it has not extended this requirement to members of the

Fleet Marine Corps Reserve. See MARADMINS

462/21 (Sept. 1, 2021) (first quote); MARADMINS

612/21 (Oct. 23, 2021) (second quote). The military

itself obviously considers the Fleet Marine Corps

Reserve to lie outside the “force” where “good order and

discipline” are essential.

A recall order, then, functions as a gateway to

military status. The possibility of such an order

certainly means that the military status of members of

the Fleet Marine Corps Reserve could change, but not

that they are currently part of the armed forces.

Before receiving any such order, they are entitled to all

jury rights guaranteed by the Constitution. “It is

impossible to think that the discipline of the [Marine

Corps] is going to be disrupted, its morale impaired, or

45a

its orderly processes disturbed” by providing members

of the Fleet Marine Corps Reserve with an Article III

jury trial. Toth, 350 U.S. at 22.

Neither English nor American history requires

otherwise. Like our Supreme Court, Blackstone

observed that “[t]he necessity of order and discipline

in an army is the only thing which can give [courtmartial jurisdiction] countenance.”

1 William

Blackstone, Commentaries *400. The Founders so

resented Britain’s curtailment of the right to jury trial

that military tribunals received special condemnation

in the Declaration of Independence, which denounced

King George III’s efforts “to render the Military

independent of and superior to the Civil power” and

chastised the Crown “[f]or depriving us in many cases,

of the benefits of trial by jury.” The Declaration of

Independence para. 2 (U.S. 1776).

Moreover,

regardless of the turbid history of how individuals like

members of the Fleet Marine Corps Reserve were

treated prior to 1789, see Majority Op. at 18–24, the

Constitution enshrined the right to trial by jury and

curtailed the scope of courts-martial. In sum, our

history reveals a “deeply rooted and ancient opposition

. . . to the extension of military control over civilians.”

Covert, 354 U.S. at 33.

The implications of this case stretch far beyond

Larrabee and the Fleet Marine Corps Reserve.

Millions of military retirees are also subject to military

recall. 10 U.S.C. § 688(b). Indeed, as Larrabee’s

counsel pointed out at oral argument, under the court’s

reasoning “nothing would stop the Government from

court-martialing a 90-year-old Korean War veteran,

who retired after being injured in the war, for

46a

shoplifting a newspaper from his local supermarket.”

Oral Arg. 33:55–34:10. The 200-plus retired generals

and admirals who spoke out against President Trump

and the 120-plus now speaking out against President

Biden could likewise be court-martialed. See 10 U.S.C.

§ 888 (subjecting military officers to court-martial for

“us[ing] contemptuous words against the President”);

Br. for Joshua E. Kastenberg & J. Wesley Moore as

Amicus Curiae in Support of Appellee at 22–23.

The Supreme Court has repeatedly warned of the

dangers of expanding court-martial jurisdiction.

“Every extension of military jurisdiction is an

encroachment on the jurisdiction of the civil courts,

and, more important, acts as a deprivation of the right

to jury trial and of other treasured constitutional

protections.” Covert, 354 U.S. at 21; see also Toth, 350

U.S. at 15 (“[A]ny expansion of court-martial

jurisdiction . . . necessarily encroaches on the

jurisdiction of federal courts . . . where persons on trial

are surrounded with more constitutional safeguards

than in military tribunals.”). As a result of today’s

decision, millions of Americans have lost one such

constitutional right.

47a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

STEVEN M.

LARRABEE

Plaintiff,

v.

KENNETH J.

BRAITHWAITE,

in his official capacity as

Secretary of the Navy,

Civil Case No. 19-654

(RJL)

and

UNITED STATES,

Defendants.

MEMORANDUM OPINION

November 20th, 2020 [Dkts. #22, #24]

This case presents a constitutional challenge to

Article 2(a)(6) of the Uniform Code of Military Justice,

which expands court-martial jurisdiction to include

military retirees in the Fleet Marine Corps Reserve for

offenses committed after their retirement from activeduty service. Plaintiff Steven M. Larrabee (“plaintiff’)

brought suit against Kenneth J. Braithwaite, the

Secretary of the Navy, and the United States

(collectively, “defendants” or “the Government”) to

challenge his conviction by court-martial for sexual

assault committed after he retired from the U.S.

Marine Corps and was transferred to the Fleet Marine

Corps Reserve. Before the Court are plaintiff’s Motion

48a

for Judgment on the Pleadings [Dkt. #22] and

defendants’ Motion for Judgment on the Pleadings

[Dkt. #24]. Upon consideration of the pleadings,

relevant law, and the entire record herein, the Court

concludes that Congress’s expansion of court-martial

jurisdiction over retirees who are members of the Fleet

Marine

Corps

Reserve

is

unconstitutional.

Accordingly, the Court will GRANT plaintiff’s motion

and DENY defendants’ motion.

BACKGROUND

The basic facts in this case are not in dispute.

Plaintiff Steven M. Larrabee served in the U.S. Marine

Corps for 20 years from 1994 to 2015. See Compl. ¶ 13

[Dkt. #1]. He was stationed at Marine Corps Air

Station Iwakuni in Japan from 2012 to 2014. On

August 1, 2015, he retired from the Marine Corps as a

staff sergeant and was transferred at his request to the

Fleet Marine Corps Reserve. Compl. ¶¶ 4, 13; Answer

¶ 13 [Dkt. #21].

The Fleet Marine Corps Reserve is not a “reserve

component” of the military. See 10 U.S.C. § 10101. It

is instead composed of retired active-duty

servicemembers. Compl. ¶ 14; Answer ¶ 14. Congress

has designated the Fleet Marine Corps Reserve as a

component of the Marine Corps.

10 U.S.C. §

8001(a)(2). Active-duty servicemembers of the Marine

Corps who have served for at least 20 years may choose

to be transferred to the Fleet Marine Corps Reserve

rather than being discharged entirely from the

military. See id. § 8330(b). Members of the Fleet

Marine Corps Reserve receive what is referred to as

“retainer pay” even though they are not on active duty.

49a

See id. § 8330(c)(1).1 They may, however, be ordered

to active duty in times of war or national emergency or

as otherwise authorized by law. See id. § 8385(a).

Additionally, they may be required during peacetime

to perform two months of active-duty training every

four years. See id. § 8385(b).

After his retirement from the Marine Corps and

transfer to the Fleet Marine Corps Reserve, plaintiff

began managing two local bars in Iwakuni, Japan. See

United States v. Larrabee, No. 201700075, 2017 WL

5712245, at *1 (N-M. Ct. Crim. App. Nov. 28, 2017).

On November 15, 2015, plaintiff sexually assaulted a

bartender at one of these bars and recorded the assault

on his cell phone. See id. On November 3, 2016,

plaintiff was convicted by a general court-martial of

one specification of sexual assault and one

specification of indecent recording, in violation of the

Uniform Code of Military Justice (“UCMJ”). Compl. ¶

19; Answer ¶ 19. He was sentenced to eight years of

confinement, a reprimand, and a dishonorable

discharge from the military. Compl. ¶ 23; Answer ¶

23. However, the officer who was the convening

authority disapproved the reprimand and suspended

all but ten months of his confinement. Compl. ¶ 24;

Answer ¶ 24.

Plaintiff first appealed his court-martial conviction

1 Moreover, active-duty servicemembers of the Marine Corps who

have served for at least 30 years may be granted “retired” status.

See 10 U.S.C. § 8326(a). Individuals in retired status receive

“retired pay” while not on active duty. See id. § 8326(c)(2). There

is not any material difference between “retainer pay” for members

of the Fleet Marine Corps Reserve and “retired pay” for

individuals in retired status.

50a

to the U.S. Navy-Marine Corps Court of Criminal

Appeals (“CCA”) in part on the basis that his courtmartial was unconstitutional because he had retired

from the military and was no longer subject to courtmartial jurisdiction. Compl. ¶¶ 25–27; Answer ¶¶ 25–

27; see Larrabee, 2017 WL 5712245, at *1. However,

on November 28, 2017, the CCA affirmed the findings

and sentence of the court-martial, relying primarily on

the CCA’s holding in United States v. Dinger, 76 M.J.

552 (N-M. Ct. Crim. App. 2017). See Larrabee, 2017

WL 5712245, at *1 n.1. In Dinger, the CCA “call[ed]

upon first principles” and concluded that military

retirees can constitutionally be subject to courtmartial jurisdiction. 76 M.J. at 557. The CCA

reasoned that because a retired servicemember may

still be recalled to active-duty service at any time, id

at 556-57, Congress has a “continued interest in

enforcing good order and discipline amongst those in a

retired status,” id. at 557.

Plaintiff then sought discretionary review of the

CCA’s ruling from the U.S. Court of Appeals for the

Armed Forces (“CAAF”). Compl. ¶ 30; Answer ¶ 30.

However, the CAAF summarily affirmed the CCA’s

decision on this issue based on its own affirmance of

the CCA’s decision in Dinger. United States v.

Larrabee, 78 M.J. 107, 107 (C.A.A.F. 2018); see United

States v. Dinger, 77 M.J. 447 (C.A.A.F. 2018). Plaintiff

then filed a petition for a writ of certiorari to the

Supreme Court, but his petition was denied. Compl.

¶¶ 34, 38; Answer ¶¶ 34, 38; Larrabee v. United States,

139 S. Ct. 1164 (2019).

On March 7, 2019, plaintiff filed suit in this Court,

mounting

a

collateral

challenge

to

the

51a

constitutionality of the provision of the Uniform Code

of Military Justice, 10 U.S.C. § 802(a)(6), that

authorizes the court-martial of military retirees in the

Fleet Marine Corps Reserve. See Compl. ¶¶ 1–50.

Plaintiff alleges that members of the Fleet Marine

Corps Reserve are not part of the “land and naval

forces” subject to Congress’s Article I power to “make

rules” and therefore cannot constitutionally be subject

to trial by court-martial. Id. ¶ 43. Plaintiff also alleges

that his trial by court-martial violated his

constitutional rights to an impartial judge, to

indictment by a grand jury, and to trial by an impartial

and randomly selected jury of his peers by a

unanimous verdict. Id. ¶ 46.

On May 14, 2019, the Government moved to

dismiss the complaint for lack of venue and failure to

state a claim. Defs.’ Mot. to Dismiss [Dkt. #10]. On

May 20, 2019, plaintiff opposed the motion to dismiss

and moved for judgment on the pleadings. Pl.’s Mot.

for J. on Pleadings & Opp’n to Defs.’ Mot. to Dismiss

[Dkt. #13]. At a hearing on February 25, 2020, I

denied the Government’s motion to dismiss the case,

but concluded that plaintiff’s motion for judgment on

the pleadings was premature. See 2/25/2020 Min.

Entry.2 After the hearing, the Government filed an

answer and the parties briefed cross-motions for

judgment on the pleadings. See Pl.’s Renewed Mot. for

J. on Pleadings (“Pl.’s Mot.”) [Dkt. #22]; Defs.’ Mot. for

2 Venue is proper under 28 U.S.C. § 1391(e)(l)(A), as the Secretary

of the Navy performs a significant amount of his official duties in

the District of Columbia. Smith v. Dalton, 927 F. Supp. 1, 6

(D.D.C. 1996); Vince v. Mabus, 956 F. Supp. 2d 83, 88 (D.D.C.

2013).

52a

J. on Pleadings (“Defs.’ Mot.”) [Dkt. #24]. I heard oral

argument on these cross-motions on November 6,

2020. See 11/6/2020 Min. Entry.

LEGAL STANDARDS

Under Federal Rule of Civil Procedure 12(c), a

party may move for judgment on the pleadings “[a]fter

the pleadings are closed—but early enough not to

delay trial.” Fed. R. Civ. P. 12(c). A motion under Rule

12(c) is “functionally equivalent to a Rule 12(b)(6)

motion [to dismiss for failure to state a claim].” Rollins

v. Wackenhut Servs., Inc., 703 F.3d 122, 130 (D.C. Cir.

2012). To decide a motion under Rule 12(c), “courts

employ the same standard that governs a Rule 12(b)(6)

motion to dismiss.” Lockhart v. Coastal Int’l Sec., Inc.,

905 F. Supp. 2d 105, 114 (D.D.C. 2012) (quoting Lans

v. Adduci Mastriani & Schaumberg L.L.P., 786 F.

Supp. 2d 240, 265 (D.D.C. 2011)). Specifically, the

Court may grant judgment on the pleadings “if the

moving party demonstrates that no material fact is in

dispute and that it is entitled to judgment as a matter

of law.” Schuler v. PricewaterhouseCoopers, LLP, 514

F.3d 1365, 1370 (D.C. Cir. 2008) (quoting Peters v.

Nat’l R.R. Passenger Corp., 966 F.2d 1483, 1485 (D.C.

Cir. 1992)). In such a case, the court “may consider the

facts alleged in the complaint, documents attached

thereto or incorporated therein, and matters of which

it may take judicial notice.” Abhe v. Svoboda, Inc. v.

Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007) (quoting

Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C.

Cir. 2006)). The parties agree that there are no

material factual disputes and that this case turns only

on questions of law. See Pl.’s Mot. at 9; Defs.’ Mot. at

5–11.

53a

The parties disagree, however, as to the relevant

standard of judicial review. The Government contends

that a court’s review of court-martial proceedings must

be “both searching and deferential.” Defs.’ Mot. at 10.

Meanwhile, plaintiff argues that because he

challenges the court-martial’s exercise of jurisdiction

as a constitutional matter, review must be de novo.

Pl.’s Mot. at 13-14 & n.8. It is well accepted that

“federal courts have jurisdiction to review the validity

of court-martial proceedings brought by non-custodial

plaintiffs who cannot bring habeas suits.” Sanford v.

United States, 586 F.3d 28, 32 (D.C. Cir. 2009)

(emphasis omitted). To grant relief to a non-custodial

plaintiff, “the military court judgment must be ‘void,’

meaning the error must be fundamental.”

Id.

(citations omitted). Whether a court-martial judgment

may be deemed “void” depends on “the nature of the

alleged defect” and “the gravity of the harm from

which relief is sought.” Id. (quoting Schlesinger v.

Councilman, 420 U.S. 738, 753 (1975)). “Jurisdictional

errors are, of course, fundamental.” Stanton v.

Jacobson, No. 19-cv-699, 2020 WL 1668039, at *3

(D.D.C. Apr. 3, 2020). The permissible scope of courtmartial jurisdiction is a “structural question” under

the Constitution that is subject to de novo review by

this Court. See Al Bahlul v. United States, 840 F.3d

757, 760 n.1 (D.C. Cir. 2016) (en banc) (Kavanaugh, J.,

concurring) (applying de novo review to question of

whether military commissions could constitutionally

try certain types of offenses). Where a non-custodial

plaintiff raises a defect in jurisdiction so fundamental

as to affect a court-martial’s authority to try him at all,

that claim must be reviewed de novo. See United

States ex rel. Toth v. Quarles, 350 U.S. 11, 13–23 (1955)

54a

(applying no form of deference to court-martial’s

determination of its own jurisdiction).

ANALYSIS

Experience has clearly demonstrated the baseline

proposition that court-martial jurisdiction must be

narrowly limited. The Supreme Court itself has

instructed time and time again that “the scope of the

constitutional power of Congress to authorize trial by

court-martial” must be “limit[ed] to ‘the least possible

power adequate to the end proposed.’” Toth, 350 U.S.

at 23 (quoting Anderson v. Dunn, 19 U.S. (6 Wheat.)

204, 230–31 (1821)). Indeed, trial by court-martial

“was intended to be only a narrow exception to the

normal and preferred method of trial in courts of law.”

Reid v. Covert, 354 U.S. 1, 21 (1957). In the final

analysis, “[e]very extension” of court-martial

jurisdiction “is an encroachment on the jurisdiction of

the civil courts” and “acts as a deprivation of the right

to jury trial and of other treasured constitutional

protections.” Id.; accord Toth, 350 U.S. at 15 (“any

expansion of court-martial jurisdiction . . . necessarily

encroaches on the jurisdiction of federal courts set up

under Article III of the Constitution where persons on

trial are surrounded with more constitutional

safeguards than in military tribunals”).

The Constitution created a delicate balance

between the military’s need to preserve good order and

discipline, on the one hand, and an individual’s right

to due process when accused of crimes, on the other.

In Article I, section 8 of the Constitution, the Founders

vested Congress with the power to “make Rules for the

Government and Regulation of the land and naval

Forces” as well as the power to “make all Laws which

55a

shall be necessary and proper for carrying into

Execution the foregoing Powers.” U.S. Const., art. I, §

8, cls. 14, 18.

However, in Article III of the

Constitution, the Founders guaranteed that

individuals accused of crimes have the right to a trial

“by Jury” that is “held in the State where the said

Crimes shall have been committed,” U.S. Const., art.

III, § 2, and that is overseen by a judge who shall hold

his or her office “during good Behavior” and shall

receive compensation that shall not be diminished,

U.S. Const., art. III, § 1.

Moreover, the Fifth

Amendment to the Constitution established that no

individual “shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces.” U.S. Const., amend. V.

Finally, the Sixth Amendment to the Constitution

guarantees individuals the “right to a speedy and

public trial, by an impartial jury of the State and

district wherein the crime shall have been committed

. . . ; to be confronted with the witnesses against him;

to have compulsory process for obtaining witnesses in

his favor, and to have the Assistance of Counsel for his

defence.” U.S. Const., amend. VI.

Of course, the Uniform Code of Military Justice has

come to provide the accused in a court-martial with

many of the procedures and rights he would have

otherwise had in a civilian criminal court.3 The UCMJ

grants an accused “the right to be represented in his

defense” and compulsory process to obtain testimony

See Joseph W. Bishop, Jr., Court-Martial Jurisdiction Over

Military-Civilian Hybrids: Retired Regulars, Reservists, and

Discharged Prisoners, 112 U. Penn. L. Rev. 317, 320 (1964).

3

56a

of witnesses on his behalf. See 10 U.S.C. §§ 838(b),

846.

It also prohibits the compulsion of selfincrimination, double jeopardy, and cruel or unusual

punishments. See id. §§ 831, 844, 855. However, the

UCMJ’s protections provide much less comfort to the

accused than constitutionally guaranteed rights do

because either Congress or the Court of Military

Appeals could potentially amend the UCMJ at any

time to remove or limit certain procedures or rights.4

In Reid, Justice Black warned that “[t]raditionally,

military justice has been a rough form of justice,

emphasizing summary procedures, speedy convictions

and stern penalties.” 354 U.S. at 35-36. Even with

“strides . . . made toward making courts-martial less

subject to the will of the executive department,”

“military tribunals have not been and probably never

can be constituted in such way that they can have the

same kind of qualifications that the Constitution has

deemed essential to fair trials of civilians in federal

courts.” Toth, 350 U.S. at 17. For that reason, it is all

the more important to consider whether a

Congressional expansion of court-martial jurisdiction

to military retirees is indeed “the least possible power

adequate to the end proposed.” Id. at 23.

In evaluating the proper scope of court-martial

jurisdiction, the Supreme Court has instructed that

the relevant test is “one of status, namely, whether the

accused in the court-martial proceeding is a person

4 See Middendorf v. Henry, 425 U.S. 25, 48 (1976) (military not

required under Fifth or Sixth Amendments to provide accused

servicemember with right to counsel at summary court-martial).

See generally Frederick Bernays Wiener, Courts-Martial and the

Bill of Rights: The Original Practice, 72 Harv. L. Rev. 1, 266

(1958).

57a

who can be regarded as falling within the term ‘land

and naval Forces.’” Kinsella v. United States ex rel.

Singleton, 361 U.S. 234, 240–41 (1960). To answer this

question, the Supreme Court has looked to whether

“certain overriding demands of discipline” necessitate

court-martial jurisdiction over a certain class of

individuals. Solorio v. United States, 483 U.S. 435,

440 (1987) (quoting Burns v. Wilson, 346 U.S. 137, 140

(1953) (plurality opinion)). Obviously, the parties here

agree

that

Congress

provided

court-martial

jurisdiction in the UCMJ over members of the Fleet

Marine Corps Reserve and other military retirees. See

10 U.S.C. § 802(a)(4), (6); see also Pl.’s Mot. at 10 n.4;

Defs.’ Mot. at 4. They disagree, however, over whether

Congress can constitutionally subject such military

retirees to court-martial jurisdiction.

The Government argues that because Congress has

determined military retirees are part of the “land and

naval forces” and subjected them to court-martial

jurisdiction, they must be so, ipso facto. See Defs.’ Mot.

at 13. The Government relies on the Supreme Court’s

decision in Solorio, which deferred to Congress’s

judgment in holding that a servicemember can be tried

by court-martial for an offense committed on his own

time in the civilian community that has no connection

to his military service, 483 U.S. at 446–47. In Solorio,

the Court explained that “the scope of court-martial

jurisdiction over offenses committed by servicemen

was a matter reserved for Congress.” Id. at 440. As

the Court recognized, “Congress has primary

responsibility for the delicate task of balancing the

rights of servicemen against the needs of the military,”

so courts should “adhere[] to this principle of

deference” when “the constitutional rights of

58a

servicemen [a]re implicated.” Id. at 447–48. It is

beyond question that courts should not second guess

the policy judgment of Congress to extend courtmartial jurisdiction to offenses by individuals who

plainly fall within the “land and naval forces,” as the

plaintiff in Solorio did. However, the Supreme Court

has never implied, much less held, that courts have no

role in determining whether the individuals whom

Congress has subjected to court-martial jurisdiction

actually fall within the ordinary meaning of the “land

and naval forces” in the Constitution. See McElroy v.

United States ex rel. Guagliardo, 361 U.S. 281, 286

(1960) (holding that court-martial cannot try civilian

employees of overseas military forces); Singleton, 361

U.S. 234 (holding that court-martial cannot try civilian

dependents of military personnel); Toth, 350 U.S. 11

(holding that court-martial cannot try discharged

servicemembers).

Even though trial by military court-martial “was

intended to be only a narrow exception to the normal

and preferred method of trial in courts of law,” Reid,

354 U.S. at 21, Congress has nonetheless steadily

expanded the scope of court-martial jurisdiction over

time. At common law, court-martial jurisdiction

extended only to regular soldiers (excluding even the

militia forces), and only for the offenses of mutiny,

sedition, and desertion. See Mutiny Act of 1689, 1 Wm.

& Mary, chs. 2, 5, 7. The original Articles of War in

the United States included primarily violations of

military law such as desertion, mutiny, cowardice, and

insubordination.5 It was not until the Civil War that

See Bishop, supra note 3, at 325–26. See generally William

Winthrop, Military Law & Precedents (2d ed. 1920).

5

59a

Congress extended court-martial jurisdiction to

include any traditionally civilian offenses. See Act of

March 3, 1863, ch. 75, § 30, 12 Stat. 731, 736. The

rationale for this extension of jurisdiction to major

felonies such as murder, manslaughter, arson,

burglary, and rape was that such offenses commonly

occurred in the theatre of war and that “the swift and

summary justice of a military court was deemed

necessary to restrain their commission.” Coleman v.

Tennessee, 97 U.S. 509, 513 (1878). Then, in 1950,

Congress passed the Uniform Code of Military Justice,

which extended court-martial jurisdiction not only to

current members of the uniformed services of the

United States, but also to “[r]etired members of a

regular component of the armed forces” and

“[m]embers of the Fleet Reserve and Fleet Marine

Corps Reserve.” 10 U.S.C. § 802(a)(4), (6). To date, the

Government has consistently cited two primary factors

as justifying court-martial jurisdiction over military

retirees: their receipt of retainer pay and their ability

to be recalled to active-duty service. See Defs.’ Mot. at

14–24.

Neither factor, however, suffices to

demonstrate why military retirees plainly fall within

the “land and naval forces” or why subjecting them to

court-martial jurisdiction is necessary to maintain

good order and discipline.

First, military retirees’ receipt of retainer pay does

not suffice to subject them to court-martial

jurisdiction. Under 10 U.S.C. § 8330(c)(1), members of

the Fleet Marine Corps Reserve receive retainer pay

when not on active duty. The Government’s position

rests on the longstanding, but largely inaccurate,

assumption that this retainer pay represents reduced

compensation for current part-time services. In 1881,

60a

the Supreme Court concluded that retainer or retired

pay was “compensation . . . continued at a reduced

rate” and held that the retiree plaintiff was entitled to

the statutory increase of ten percent in his pay. United

States v. Tyler, 105 U.S. 244, 244–45 (1881). Based on

this analysis, the military court system concluded that

it could try military retirees by court-martial because

such retirees are paid to remain available for future

active-duty service. See, e.g., United States v. Hooper,

26 C.M.R. 417, 425 (C.M.A. 1958) (“Certainly, one . . .

who receives a salary to assure his availability[] is a

part of the land or naval forces.”). However, this

assumption is both inaccurate and irrelevant. How so?

The Supreme Court reversed course from Tyler in

1992 when it determined that for purposes of tax

treatment, military retirement benefits actually

represent deferred pay for past services. Barker v.

Kansas, 503 U.S. 594, 605 (1992). In Barker, the

Supreme Court addressed Kansas’s practice of taxing

the benefits that military retirees receive from the

federal government but not taxing the benefits that

retired government employees receive from state and

local governments. Id. at 596. The Court concluded

that “military retirement benefits are to be considered

deferred pay for past services,” rather than “current

compensation for reduced current services.” Id. at 605.

In reaching this conclusion, the Court emphasized that

“[t]he amount of retired pay a service member receives

is calculated not on the basis of the continuing duties

he actually performs, but on the basis of years served

on active duty and the rank obtained prior to

retirement.” Id. at 599; see also 10 U.S.C. § 8330(c)(1).6

6 The Court does not go so far as to adopt plaintiff’s position that

61a

Undaunted, the Government emphasizes the Barker

Court’s factual statement that “[m]ilitary retirees

unquestionably remain in the service and are subject

to restrictions and recall,” see 503 U.S. at 599, 600 n.4;7

Defs.’ Mot. at 13, 16, as if that magically proves the

Government’s point. Not so. While neither party

disputes that the UCMJ extends court-martial

jurisdiction to military retirees, or that military

retirees are subject to potential recall, the Supreme

Court has never squarely addressed a constitutional

challenge to the exercise of court-martial jurisdiction

over military retirees.8

Additionally, receipt of military retirement benefits

has never been enough, by itself, to subject a class of

individuals to court-martial jurisdiction. In Reid, the

Supreme Court rejected the Government’s position

that civilian dependents of servicemembers who

received military benefits were therefore part of the

“land and naval Forces” and subject to court-martial

retainer or retired pay is “tantamount to a pension” for all

purposes. Pl.’s Mot. at 19.

7 The Supreme Court has expressed similar notions in dicta in

other cases. See McCarty v. McCarty, 453 U.S. 210, 221–22 (1981)

(“The retired officer remains a member of the Army . . . and

continues to be subject to the Uniform Code of Military Justice.”

(citation omitted)); Kahn v. Anderson, 255 U.S. 1, 6–7 (1921) (“[I]t

is not open to question, . . . that [retired] officers are officers in

the military service of the United States . . . .”).

8 The lack of any Supreme Court case addressing the question is

likely due in part to the fact that in the 70-year period since the

UCMJ explicitly authorized such jurisdiction, the military has so

rarely chosen to exercise it. See Bishop, supra note 3, at 332; J.

Mackey Ives & Michael J. Davidson, Court-Martial Jurisdiction

Over Retirees Under Articles 2(4) and 2(6): Time to Lighten Up

and Tighten Up?, 175 Mil. L. Rev. 1, 11 (2003).

62a

jurisdiction. See 354 U.S. at 23; see also Singleton, 361

U.S. 234. Similarly, the Supreme Court has rejected

Congress’s extension of court-martial jurisdiction to

civilian employees of the military despite their receipt

of a salary from the military. See Guagliardo, 361 U.S.

at 286; Grisham v. Hagan, 361 U.S. 278, 280 (1960).

The Government also contends that individuals

who join the Fleet Marine Corps Reserve, rather than

being discharged from the military, are thereby

consenting to continued court-martial jurisdiction.

Defs.’ Mot. at 17–18. I disagree. It is true, of course,

that individuals who are discharged from the military

entirely are no longer subject to court-martial

jurisdiction, either statutorily or constitutionally. See

10 U.S.C. § 802(a); Toth, 350 U.S. at 13, 23. That fact,

however, does not mean that individuals who choose

to not be discharged but to be transferred to either the

Fleet Marine Corps Reserve or the retired list

necessarily do, or even could, “consent” to an otherwise

unconstitutional exercise of jurisdiction over them.

Second, the possibility of recall to active-duty

service does not suffice to subject military retirees to

court-martial jurisdiction. Indeed, the Supreme Court

itself emphasized early in its jurisprudence regarding

court-martial jurisdiction that the right to trial by

jury—”one of the most valuable in a free country—is

preserved to every one accused of [a] crime who is not

attached to the army, or navy, or militia in actual

service.” Ex parte Milligan, 71 U.S. (4 Wall.) 2, 122–

23 (1866). Yet despite that instruction, Congress has

steadily expanded court-martial jurisdiction over time,

reaching its current scope in 1950 when it explicitly

included retirees in the Fleet Marine Corps Reserve

63a

and individuals on retirement lists who are not in

active-duty service or on active-duty training. See 10

U.S.C. § 802(a)(4), (6).

The Government not

surprisingly contends that the mere possibility of

recall to active-duty service suffices to subject military

retirees to court-martial jurisdiction. Defs.’ Mot. at

18–24. While it is, of course, impossible to foresee

national emergencies and the extent of personnel

needed to address them, the Government simply

preaches judicial deference to Congress regarding

jurisdiction over military retirees, id. at 19–20,

notwithstanding plaintiff’s point that the likelihood of

recall is “anachronistic.” Pl.’s Mot. at 21–23. Indeed,

plaintiff claims, and the Government does not dispute,

that “[s]ince Vietnam, if not earlier, the reserve

components, rather than the services’ retired lists—

have been the mechanism for augmenting the activeduty force.” Pl.’s Mot. at 21 (citing Library of

Congress, Historical Attempts to Reorganize the

Reserve Components 15–17 (2007)).

While both sides are correct in some ways, the

bottom line remains the same: military retirees are

highly unlikely to be recalled, even though their

service may be necessary in some future national

emergency. This disagreement, however, loses sight of

the ultimate question: whether the Government has

adequately

demonstrated

that

court-martial

jurisdiction over military retirees is necessary to

maintain good order and discipline. See Toth, 350 U.S.

at 22 (“Free countries of the world have tried to restrict

military tribunals to the narrowest jurisdiction

deemed absolutely essential to maintaining discipline

among troops in active service.”). Indeed, Congress’s

current treatment of inactive members of the Reserve

64a

components calls into question whether court-martial

jurisdiction over military retirees is actually necessary

to such end. Under Article 2(a) of the UCMJ, members

of the Reserve components are subject to court-martial

jurisdiction only while serving on their regular activeduty periods and while on inactive-duty training, but

not when in inactive status. See 10 U.S.C. § 802(a)(3).

Because military retirees are much less likely to be

recalled to active-duty service than Reservists are, the

distinction in whether these two similar groups are

subject to court-martial jurisdiction seems arbitrary at

best. Indeed, under the current regime, a retired

member of the Army and an inactive member of the

Army Reserve who get into a bar brawl would face two

entirely different systems of justice: the Army retiree

could be hauled before a court-martial and tried by a

military judge and active military officers, whereas the

Army Reservist would be entitled to indictment by a

grand jury and trial by a civilian jury of his peers

overseen by an impartial judge. Please!

The Government counters that this distinction

reflects only “Congress’s evaluation of policy

considerations specific to reserve service, not a

constitutional limitation on Congress’s Article I

power.” Defs.’ Mot. at 22 n.13. However, because

Congress’s Article I power to extend court-martial

jurisdiction must be limited to that necessary for good

order and discipline, a policy distinction that calls into

question the necessity of court-martial jurisdiction for

military retirees (as Congress clearly determined such

jurisdiction unnecessary for Reservists) surely must be

considered in the constitutional analysis. Moreover,

the current scope of court-martial jurisdiction

disregards the obvious fact that some military retirees

65a

face virtually no prospect of recall to military service

at all, whether because of their age, physical condition,

or disability. See DoD Instruction 1352.01, ¶ 3.2(g)(2)

(2016) (limiting recall of “Category III retirees”—those

who are retired due to disability or who are over 60

years of age—to civilian defense jobs). Further, the

Government readily acknowledges that, absent courtmartial jurisdiction, military retirees who face state or

federal criminal prosecution for offenses committed

after retirement could still be administratively

separated from the service. See 11/6/2020 Hrg. Tr.

To say the least, it is difficult to square these

distinctions with the demands of good order and

discipline that are the principal objectives of their

military’s court-martial jurisdiction. To be clear, I am

not concluding today that Congress could never

authorize the court-martial of some military retirees,

but merely that Congress has not shown on the current

record why the exercise of such jurisdiction over all

military retirees is necessary to good order and

discipline. Indeed, the Government points to no clear

statements by members of Congress upon passing the

Uniform Code of Military Justice that explain the

necessity of subjecting all military retirees to courtmartial jurisdiction.9 Because the Supreme Court has

The Government’s citation to President Woodrow Wilson’s

message upon vetoing a measure in an appropriations bill that

would terminate court-martial jurisdiction over military retirees

is hardly compelling. See Defs.’ Mot. at 21 & n.12. President

Wilson stated that “[o]fficers on the retired list are . . . members

of the Military Establishment distinguished by their long service,

and, as such, examples of discipline to the officers and men in the

active [military].” 53 Cong. Rec. 12,844, 12,844–45 (1916). First,

such an Executive message is not entitled to any of the weight to

9

66a

consistently

emphasized

that

court-martial

jurisdiction should be narrowly circumscribed, e.g.,

Toth, 350 U.S. at 23, I must conclude that in the

absence of a principled basis promoting good order and

discipline, Congress’s present exercise of court-martial

jurisdiction over all members of the Fleet Marine

Corps Reserve is unconstitutional.

CONCLUSION

For all the foregoing reasons, plaintiff’s Motion for

Judgment on the Pleadings [Dkt. #22] is GRANTED

and defendants’ Motion for Judgment on the Pleadings

[Dkt. #24] is DENIED. A separate Order consistent

with this decision accompanies this Memorandum

Opinion.

/s/ Richard J. Leon

RICHARD J. LEON

United States District Judge

which statements by members of Congress in legislative history

might be. And second, it is not clear why President Wilson’s logic

would not apply equally to Reservists, yet Congress chose to

exclude them from court-martial jurisdiction while they are in

inactive status.

67a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

STEVEN M.

LARRABEE

Plaintiff,

v.

KENNETH J.

BRAITHWAITE,

in his official capacity as

Secretary of the Navy,

Civil Case No. 19-654

(RJL)

and

UNITED STATES,

Defendants.

ORDER

November 20th, 2020 [Dkts. #22, #24]

For the reasons set forth in the accompanying

Memorandum Opinion, it is hereby

ORDERED that plaintiff’s Motion for Judgment on

the Pleadings [Dkt. #22] is GRANTED; it is further

ORDERED that defendants’ Motion for Judgment

on the Pleadings [Dkt. #24] is DENIED.

Plaintiff’s

court-martial

conviction

is

unconstitutional and therefore null and void.

Defendants shall set aside and expunge all record of

the conviction and restore all rights, privileges, and

property of which plaintiff has been deprived as a

result of the conviction.

SO ORDERED.

68a

/s/ Richard J. Leon

RICHARD J. LEON

United States District Judge

69a

APPENDIX C

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 21-5012

September Term, 2022

1:19-cv-00654-RJL

Filed On: December 20, 2022

Steven M. Larrabee,

Appellee

v.

Carlos Del Toro, in his official capacity as

Secretary of the Navy and United States,

Appellants

BEFORE: Srinivasan, Chief Judge; Henderson,

Millett*, Pillard, Wilkins, Katsas, Rao,

Walker, Childs, and Pan, Circuit Judges

ORDER

Appellee’s petition for rehearing en banc and the

response thereto were circulated to the full court, and

a vote was requested. Thereafter, a majority of the

judges eligible to participate did not vote in favor of the

petition. Upon consideration of the foregoing, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

/s/

Daniel J. Reidy

Deputy Clerk

* Circuit Judge Millett did not participate in this matter.