Prologue — Fischer v. United States

Supreme Court, US.

/ FILED

05-881 JAN 13 2006.

No. QPRCE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

DAVID E. FISCHER,

LANCE CORPORAL,

UNITED STATES MARINE GORPS,

Petitioner,

Vv,

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ of Certiorari To The

United States Court of Appeals for the Armed Forces

PETITION FOR A WRIT OF CERTIORARI

BRIAN L. MIZER

Lieutenant, JAGC, USNR

Counsel of Record

JASON S. GROVER

Lieutenant Commander, JAGC, USN

Navy-Marine Corps Appellate Review Activity

716 Sicard St. S.E.

Suite 1000 coe 7

Washington,D.C. 20374-5047

202/685-7396

QUESTION PRESENTED

Is the pay of active duty servicemembers suspected of

violating the Uniform Code of Military Justice subject to

forfeiture before they have been convicted by a duly

constituted court-martial?

a TABLE OF CONTENTS

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A SERVICEMEMBER'S ENTITLEMENT TO PAY ........ 4

PROCEEDINGS BELOW .....0.....ccssessesessesseetesteneeneeneeneenen 5

REASONS FOR GRANTING THE PETITION................. 7

I. The Court of Appeals’ Decision that Military |

Pay is Conditioned Upon the Performance of

Useful Military Duties and can be Forfeited

Before a Service Member has been Convicted -

by a Court-Martial Conflicts with this Court’s

Decision in Bell v. United States, 366 U.S. 393

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IJ. The Decision of the Court of Appeals is

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Ill. This Issue is Important as the Court of Appeals

has Sanctioned the Creation of a Class of

Servicemembers who are not Paid as

Servicemembers and who do not Perform

Military Duties but Remain Subject to Court-

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TABLE OF AUTHORITIES

United States Constitution

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United States Supreme Court

Bell v. United States, 366 U.S. 393 (1961)................. passim

Bell v. Wolfish, 441 U.S. 520 (1979).........scccsscorecssoerseseess 5,9

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)9,10,12

Kinsella v. Krueger, 351 U.S. 470 (1956)... 14,15

Robertson v. Baldwin, 165 U.S. 275 (1897)...............2000008 1]

Solario v. United States, 483 U.S. 435 (1987) ............. 11,14

United States v. Symonds, 120 U.S. 46 (1887).............004 10

United States v. Williamson, 90 U.S. 431 (1874).............. 10

United States Court of Appeals for the Armed Forces

United States v. Fischer, 61 M.J. 415 (C.A.A.F. 2005).........

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United States Court of Appeals for the Federal Circuit

Anderson vy. United States, 70 Fed. Appx. 572 (Fed. Cir.

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Simoy v. United States, 64 Fed. Appx. 745 (Fed. Cir. 2003)

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Navy-Marine Corps Court of Criminal Appeals

United States v. Fischer, 60 M.J. 650 (N-M. Ct. Crm. App.

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Federal District Courts

Watson v. The Rose, 1806 U.S. Dist. LEXIS 1 (D.P.A. 1806)

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State Supreme Courts

In re Walker, 2 Am. Jurist 281 (Mass. 1830).............0.0.... 15

Federal Statutes

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Re 4,10,11

IN THE SUPREME COURT OF THE UNITED STATES

Lance Corporal David E. Fischer, Petitioner,

Vv.

United States, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

ARMED FORCES

Lance Corporal David E. Fischer, United States Marine

Corps, respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for the

Armed Forces in this case.

OPINIONS BELOW

The Court of Appeals’ denial of Petitioner’s petition for

reconsideration is unpublished at 2005 C.A.A.F. LEXIS 1211

(C.A.A.F. 2005). App. A, infra, at 1a. The opinion of the

Court of Appeals for the Armed Forces is published at 61 M.J.

415 (C.A.A.F. 2005). App. B, infra, at 2a. The opinion of

the Navy-Marine Corps Court of Criminal Appeals is

published at 60 M.J. 650 (N-M. Ct. Crim. App. 2004). App.

C, infra at 26a.

JURISDICTION

The Court of Appeals for the Armed Forces granted review

of Petitioner’s case and affirmed his conviction on September

2

2, 2005. This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1259(3).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the Constitution reads, in part:

No person ... shall be compelled in any

Criminal case to be a witness against himself

nor be deprived of life, os or property,

without due process of law..

STATUTORY PROVISIONS INVOLVED

10 U.S.C. § 813 states:

No person, while being held for trial, may be

subjected to punishment or penalty other than

arrest or confinement upon the charges

pending against him, nor shall the arrest or

confinement imposed upon him be any more

rigorous than the circumstances require to

insure his presence, but he may be subjected

to minor punishment during that period for

infractions of discipline.

10 U.S.C. § 857(a)(3) states:

A forfeiture of pay and allowances shall be

applicable to pay and allowances accruing on

and after the date on which the sentence takes

effect.

3

37 U.S.C. § 204(a)(1) states:

The following persons are entitled to the basic

pay of the pay grade to which assigned or

distributed, in accordance with their years of

service computed under section 205 of this

title—

(1) a member of a uniformed service who is on

active duty....

REGULATORY PROVISION INVOLVED

Department of Defense Financial Manageient

Regulation volume 7A, chapter 3, subparagraph

010302.G.4. states:

If a member is confined awaiting court-martial

when the enlistment expires, pay and

allowances end on the date the enlistment

expires. If the member is acquitted when

tried, pay and allowances accrue until

discharge.

STATEMENT

At his general court-martial, Petitioner filed a motion for

sentencing credit arguing that a Department of Defense

Financial Management Regulation that terminated his pay

and allowances forty-one days before his court-martial

amounted to illegal pre-trial punishment prohibited by Article

13, Uniform Code of Military Justice, 10 U.S.C. § 813 (2000)

and the Fifth Amendment to the Constitution. The military

judge denied Petitioner’s motion. In a 7-2 decision, the

4

Navy-Marine Corps Court of Criminal Appeals, sitting en

banc, affirmed. In a 3-2 decision, the Court of Appeals for

the Armed Forces affirmed the decision of the Navy-Marine

Corps Court of Criminal Appeals. Petitioner petitioned the

Court of Appeals for reconsideration. The Court of Appeals

denied that petition on October 17, 2005.

A. A Service Member’s Entitlement to Pay

In Bell v. United States, 366 U.S. 393, 401 (1961), this

Court held that an active duty service member’s entitlement

to pay is dependent upon statutory right. All servicemembers

on active duty in the armed forces are entitled to pay. 37

U.S.C. § 204(a)(1) (2000). In Bell, this Court noted that a

service member who has not been punished at a court-martial

“4s entitled to the statutory pay and allowances of his grade

and status, however ignoble a soidier he may be.” Bell, 366

U.S. at 401. This Court specifically rejected the argument by

the United States that the plaintiffs in Bell were not entitled

to pay and allowances because they were no longer

performing their normal duties. Bell, 366, U.S. at 405, 408.

“The rule has commanded unquestioned adherence

throughout our history....” Bell, 366 at 405.

In 1951, the Comptroller General of the United States

opined that active duty servicemembers, retained on active

duty for trial by court-martial, were not entitled to pay unless

they were ultimately acquitted of their suspected offenses. 30

Comp. Gen. 449 (1951). That opinion is the cited basis for

Department of Defense Financial Management Regulation

volume 7A, chapter 3, subparagraph 010302.G.3-4 (FMR).

According to the FMR, once an active duty service member

has reached his end of active obligated service (EAS), he is

no longer entitled to pay unless he is in a “full duty-status.”

5

Id. Confinement awaiting trial is not considered “full duty.”

Id. If a service member in pre-trial confinement is later

acquitted of his suspected offenses, he is entitled to full pay

and allowances until discharge. /d.

Petitioner was placed in pre-trial confinement on May 4,

2001. On June 29, 2001, Petitioner reached his EAS. He

was convicted forty-one days later on August 9, 2001.

During that forty-one-day-period, Petitioner received no pay

or allowances.

B. Proceedings Below

The military judge held that the termination of

Petitioner’s pay was not punitive and was reasonably related

to the legitimate government objective of ensuring “that

individuals who are not performing normal work duties do

not receive payment that is unearned and may later be

difficult to recover.”

The Navy-Marine Corps Court of Criminal Appeals

agreed. “This regulation denies payment to those

servicemembers who do not continue to serve in a full duty

status and provide productive service in furtherance of the

military mission....” Fischer, 60 M.J. at 653. Citing Bell v.

Wolfish, 441 U.S. 520, 538-39 (1979), the Navy-Marine

Corps Court of Criminal Appeals found the FMR related to a

legitimate non-punitive government interest and affirmed the

decision of the military judge.

Judges Villemez and Harris dissented. “To completely

cut off one’s statutory pay entitlement, due solely to being in

pretrial confinement, after the individual’s now-rendered-

meaningless original EAS, serves no legitimate governmental

objective.” Fischer, 60 M.J at 659 (Villemez, J. dissenting).

The FMR is “clearly pretrial punishment and a violation of

6

basic due process.” Jd. at 658. The dissent concluded, “the

regulation must implode from the excess-weight of its own

illogicalness. While its intent may be admirable-saving the

Government money-its effect is to impose an impermissible

form of pretrial punishment or penalty on the Appellant....”

Id. at 660.

A majority of the Court of Appeals for the Armed Forces

affirmed. The Court of Appeals held that a service member’s

entitlement to pay ends at EAS — even though he remains on

active duty. Fischer, 61 M.J. at 418. The Court of Appeals

further held that only servicemembers who perform

“productive work may be paid.” Jd. A service member held

in confinement, and thus not performing useful duties, may

be paid only if he is later acquitted by a court-martial. /d.

The Court of Appeals found the FMR to be neither implicitly

punitive nor punitive in effect. Jd. at 421. The Court

reasoned that the FMR furthered the legitimate government

“interest in terminating the pay of persons who are: *‘

performing productive service.” Jd. at 421.

The Chief Judge and judge Erdmann dissented. “One of

the basic guarantees of the Due Process Clause is that a

pretrial detainee cannot be punished until there is a finding of

guilt.” Fischer, 61 M.J. at 418 (Erdmann, J. dissenting).

The dissent noted that court-martial jurisdiction, like military

pay, is Status based. Furthermore, Petitioner remained on

active duty through disposition of the charges against him.

Id. at 423. The dissent reasoned that the Court’s opinion

allows the government to “imprison a presumptively innocent

individual, unilaterally continue military status with all its

obligations and duties and at the same time take away on of

the basic rights associated with active duty military status-the

right to pay.” Jd. at 423. Because Petitioner’s pay would not

have been terminated except for his placement in pretrial