# Prologue — Fischer v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0706%3A0

## Record

- **Collection:** Supreme Court brief
- **Document type:** Prologue
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 1176

## Text

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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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
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Federal Statutes
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0706%3A0. Public record. Not legal advice.