Opinion
CA 9:23-cv-01073-JFA-MHC
10-25-2023
Timothy Bork, Petitioner, v. Ely Infante, Commander, United States Navy Commandant, Naval Consolidated Brig Charleston, Respondent.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Petitioner Timothy Bork (“Petitioner”), who is currently confined at the Naval Brig in Charleston, South Carolina, petitions the court for a writ of habeas corpus under 28 U.S.C. § 2241. ECF No. 1. Respondent Commander Ely Infante (“Respondent”) filed a Motion to Dismiss or, in the alternative, for Summary Judgment (“Motion”). ECF No. 12. Petitioner filed a Response in Opposition. ECF No. 13. The Motion is now ripe for review.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), all pretrial proceedings in this matter have been assigned to the undersigned. Because the Motion is a dispositive motion, this Report and Recommendation is entered for review by the District Judge. For the reasons that follow, the undersigned recommends that Respondent's Motion be granted, and the Petition be dismissed.
I. BACKGROUND
The procedural history as described by Respondent has not been disputed by Petitioner in his Response and is set forth as follows. See ECF No. 12-1 at 2. Petitioner is a retired U.S. Navy Hospital Corpsman First Class who transferred to the Navy Fleet Reserve in 2013. As a member of the Navy Fleet Reserve, Petitioner remained on retainer pay with the Navy and was expected to maintain readiness for active duty, comply with certain travel and reporting requirements, and participate in training (if and as required). He is currently confined at the Naval Consolidated Brig in Charleston, South Carolina, for sexual offenses against a child.
In May 2020, a general court-martial convened at Naval Base San Diego, California, and sentenced Petitioner to six years' confinement and a dishonorable discharge after he pleaded guilty to one specification of sexually assaulting a child and four specifications of sexually abusing a child. United States v. Bork, No. 202000191, 2022 WL 175246, at *1 (N-M. Ct. Crim. App. Jan. 20, 2022), review denied, 82 M.J. 370 (C.A.A.F. 2022). Specifically, Petitioner violated Article 120b of the Uniform Code of Military Justice, codified at 10 U.S.C. § 920b, for discussing, viewing, and engaging in various sexual activities with a fifteen-year-old child while in Japan. See Id. Petitioner appealed his conviction to the U.S. Navy-Marine Corps Court of Criminal Appeals, which affirmed his conviction in part because binding precedent held that “members of the Fleet Reserve have a sufficient current connection to the military such that Congress may constitutionally subject them to [the Uniform Code of Military Justice] jurisdiction.” Id. (citing United States v. Begani, 81 M.J. 273, 281 (C.A.A.F. 2021), cert. denied, 142 S.Ct. 711 (2021)). The U.S. Court of Appeals for the Armed Forces (“CAAF”) denied Petitioner's petition for review. United States v. Bork, 82 M.J. 370 (C.A.A.F. 2022).
In March 2023, after exhausting his military appeals, Petitioner filed the current Petition in this Court. ECF No. 1. The Petition presents two grounds for relief:
GROUND ONE: The court-martial was barred from exercising subject-matter jurisdiction as to Charge I, Specifications 2 and 3 because the U.S. Japan Status of Forces Agreement (“SOFA”) assigns those offenses to a Japanese court, which Japan did not waive.
GROUND TWO: Exercise of court-martial jurisdiction over a retiree is unconstitutional.ECF No. 1-1 at 6. Petitioner asks that this Court “to grant his application for a writ of habeas corpus, dismiss the findings of the court-martial for jurisdictional error, and order his immediate release.” ECF No. 1-1 at 7.
II. LEGAL STANDARDS
Respondent moves for dismissal of the § 2241 Petition pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or, in the alternative, for Summary Judgment pursuant to Rule 56. As this is a Petition contesting a military court's decision, special considerations limit this Court's review.
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)); see Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of [affirmative] defenses.”). Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), such that the defendant will have “fair notice of what the claim is and the grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'” Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
When addressing a motion to dismiss under Rule 12(b)(6), a court generally may not look outside the facts contained within the complaint, unless it treats the motion to dismiss as a motion for summary judgment. Anand v. Ocwen Loan Servicing, 754 F.3d 195, 198 (4th Cir. 2014); Fed.R.Civ.P. 12(d). However, a court “may properly consider documents attached to a complaint or motion to dismiss ‘so long as they are integral to the complaint and authentic.'” Anand, 754 F.3d at 198 (citation omitted). Additionally, a court may take judicial notice of “matters of a public record.” Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citation omitted).
B. Summary Judgment Standard
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
C. Federal Courts' Habeas Review of Court-Martial Decisions
A federal court with jurisdiction over habeas applications from persons confined by civil courts has jurisdiction over habeas applications from persons confined by military courts. Burns v. Wilson, 346 U.S. 137, 139 (1953). However, in reviewing military habeas applications, the scope of matters open for review by a federal court is narrow. Id.; see Willenbring v. United States, 559 F.3d 225, 232 (4th Cir. 2009) (“It is clear [ ] that a federal court reviewing a military habeas petition is normally not at liberty to revisit a military court's evidentiary rulings or findings.” (citation omitted)). This is because the military has its own independent criminal justice system governed by the Uniform Code of Military Justice, 10 U.S.C. §§ 801-940, and the Manual for Courts-Martial (“MCM”), which is all-inclusive and provides, inter alia, for courts-martial, post-trial clemency, appellate review, and, under some circumstances, certiorari review in the Supreme Court of the United States. Lips v. Commandant, U.S. Disciplinary Barracks, 997 F.2d 808, 810 (10th Cir. 1993); see also Burns, 346 U.S. at 140-45. Accordingly, when federal courts review court-martial convictions, special considerations are involved “[b]ecause of the independence of the military court system.” Lips, 997 F.2d at 810.
Consequently, although federal district courts have jurisdiction to consider § 2241 petitions from prisoners incarcerated by military tribunals, they are not given carte blanche to review and redecide issues considered and decided by the military courts. See Burns, 346 U.S. at 142. Rather, this Court's role is limited to determining whether the military courts gave an issue “full and fair consideration.” Lips, 997 F.2d at 811; United States v. Willenbring, 178 Fed.Appx. 223, 224 (4th Cir. 2006). The Fourth Circuit has yet to interpret the “full and fair consideration” standard. See, e.g., Ward v. United States, 982 F.3d 906, 912-13 (4th Cir. 2020) (declining to delve into “complicated issues” concerning whether the military courts fully considered the petitioner's claim). Nor have other federal circuit courts defined a uniform standard. See Armann v. McKean, 549 F.3d 279, 289 n.10 (3d Cir. 2008) (collecting cases). As a result, many district courts- including this one-have turned to available guidance from the Tenth Circuit, which instructs federal district courts to consider the following factors before granting habeas review of a military conviction:
Because the United States Disciplinary Barracks are located at Fort Leavenworth, Kansas, the Tenth Circuit has the most developed and “advanced analysis in this specialized area of the law.” Romev v. Vanyur, 9 F.Supp.2d 565, 569 (E.D. N.C. 1998).
(1) the asserted error is of substantial constitutional dimension; (2) the issue is one of law rather than of disputed fact already determined by the military tribunal; (3) there are no military considerations that warrant different treatment of constitutional claims; and (4) the military courts failed to give adequate consideration to the issues involved or failed to apply proper legal standards.Lips, 997 F.2d at 811 (citing Dodson v. Zelez, 917 F.2d 1250, 1252-53 (10th Cir. 1990)). While all four factors are relevant, the last has been viewed as the most important. See id. (“Under Burns, if the military gave full and fair consideration to claims asserted in a federal habeas corpus petition, the petition should be denied. Only when the military has not given a petitioner's claims full and fair consideration does the scope of review by the federal civil court expand.”); see also Thomas v. U.S. Disciplinary Barracks, 625 F.3d 667, 671 (10th Cir. 2010).
Unless the military court failed to consider an issue properly presented to it, federal district courts should not review that issue. If an issue is briefed and argued before a military board of review, federal courts have generally found that the issue has been given full and fair consideration, even if the military court summarily denies it. See, e.g., Thomas, 625 F.3d at 671 (declining to “presume a military appellate court ha[d] failed to consider all the issues presented to it before making a decision” despite the fact that the military courts did not hear oral argument or supply any reasoning supporting the dismissal of the petitioner's claims); Armann, 549 F.3d at 293-96 (finding that although the Army Court of Criminal Appeals (“ACCA”) and the CAAF held no oral argument and the CAAF issued only a one-sentence order affirming the ACCA's decision, the military courts had fully and fairly considered the petitioner's mental competency claims). Consequently, for non-jurisdictional claims, federal courts must limit their review to determining whether the military courts “fully and fairly” considered a petitioner's claims.
Conversely, the “judgment of a military court is ‘always open to collateral attack' on the question of jurisdiction, and that is the traditional basis for federal habeas review of court-martial proceedings.” Brown v. Kendall, No. CV DLB-22-410, 2023 WL 2648781, at *2 (D. Md. Mar. 27, 2023) (citations omitted). Indeed, “[t]he authority of a federal court to collaterally review a jurisdictional challenge to a conviction by court-martial is long established.” Larrabee v. Del Toro, 45 F.4th 81, 86 (D.C. Cir. 2022), cert. denied sub nom. LARRABEE, STEVENM. v. DEL TORO, SEC. OF NAVY, ET AL., No. 22-1082, 2023 WL 6558397 (U.S. Oct. 10, 2023). The federal courts possess jurisdiction over habeas corpus petitions challenging the constitutionality of a military conviction. See Burns, 346 U.S. at 139; Willenbring v. United States, 559 F.3d 225, 231 (4th Cir. 2009) (“The federal courts possess authority to consider and determine habeas corpus challenges to the jurisdiction of the military courts.”).
III. DISCUSSION
Petitioner argues that: (1) the court-martial was barred from exercising subject-matter jurisdiction over his offenses because the U.S.-Japan Status of Forces Agreement (“SOFA”) assigned primary jurisdiction over the misconduct occurring in Japan to a Japanese court, and Japan did not waive jurisdiction; and (2) Petitioner's court-martial was unlawful because the exercise of court-martial jurisdiction over a retiree is unconstitutional. See ECF No. 1 at 1; ECF No. 1-1 at 6. As explained below, neither claim presents grounds for habeas relief.
A. Ground One: Japan SOFA
Petitioner contends the Japan SOFA gave Japan the primary right to exercise jurisdiction over his offenses and argues that a court-martial may only exercise secondary jurisdiction when Japan waives its primary jurisdiction. ECF No. 13 at 3. He argues that since Japan did not waive its primary right to exercise jurisdiction, the United States lacked subject-matter jurisdiction over his offenses. ECF No. 13 at 3-4.
United States service members, government civilian employees, contractors, and their dependents in Japan live there pursuant to the Japan SOFA. See Agreement Under Article VI of the Treaty of Mutual Cooperation and Security: Facilities and Areas and the Status of United States Armed Forces in Japan, T.I.A.S. No. 4510, 11 U.S.T. 1652, 1960 WL 57244 (June 23, 1960) (hereinafter, “Japan SOFA”). The Japan SOFA delineates how the United States and Japan have agreed to handle a variety of situations, including when a United States service member commits a crime in Japan. Relevant here, the Japan SOFA provides a narrow set of instances in which either the United States or Japan would exercise “exclusive” jurisdiction, and other situations where both nations might exercise “concurrent” jurisdiction. See Japan SOFA, 11 U.S.T. 1652, Art. XVII(1)-(3), 1960 WL 57244
With regard to “exclusive” jurisdiction, Article XVII, paragraph 2 of the Japan SOFA affords the United States and Japan exclusive jurisdiction with respect to offenses that the other nation does not punish. See Japan SOFA, 11 U.S.T. 1652, Art. XVII(2), 1960 WL 57244.
With regard to “concurrent” jurisdiction, one nation has the “primary right” to exercise jurisdiction, while the other's jurisdiction is subordinate. The applicable rules provide:
3. In cases where the right to exercise jurisdiction is concurrent the following rules shall apply:
(a) The military authorities of the United States shall have the primary right to exercise jurisdiction over members of the United States armed forces or the civilian component in relation to
(i) offenses solely against the property or security of the United States, or offenses solely against the person or property of another member of the United States armed forces or the civilian component or of a dependent;
(ii) offenses arising out of any act or omission done in the performance of official duty.
(b) In the case of any other offense the authorities of Japan shall have the primary right to exercise jurisdiction.
(c) If the State having the primary right decides not to exercise jurisdiction, it shall notify the authorities of the other State as soon as practicable. The authorities of the State having the primary right shall give sympathetic consideration to a request from the authorities of the other State for a waiver of its right in cases where that other State considers such waiver to be of particular importance.Japan SOFA, 11 U.S.T. 1652, Art. XVII(3)(a)-(c), 1960 WL 57244.
In Petitioner's case, neither country has exclusive jurisdiction because both countries criminalize sexual offenses against children. Thus, concurrent jurisdiction applies, with Japan retaining the “primary right to exercise jurisdiction” under Article XVII(3)(b).
Petitioner argues that the offenses in question were not subject to court-martial jurisdiction because Japan did not waive its primary right to exercise jurisdiction over the offenses. He argues that “[w]hen a status of forces agreement grants ‘concurrent' jurisdiction but awards ‘primary' jurisdiction to a foreign sovereign, the United States must first obtain a waiver of jurisdiction before it exercises its secondary jurisdiction.” ECF No. 13 at 4. He maintains that “[a]bsent a waiver of primary jurisdiction, a court-martial therefore does not have the ability to exercise secondary subject-matter jurisdiction over offenses for which the US-Japan SOFA assigns primary jurisdiction to Japan.” ECF No. 13 at 4-5.
Respondent argues that Petitioner lacks standing to contest an alleged breach of a treaty between nations. ECF No. 12-1 at 5-8. Respondent further argues that, even if Petitioner had standing, the court-martial properly exercised its jurisdiction over Petitioner's offenses. ECF No. 12-1 at 9-11.
Consequently, the core question before the Court is whether the United States's alleged failure to follow the Japan SOFA's procedures in a case of concurrent jurisdiction stripped the court-martial of subject-matter jurisdiction.
1. Standing to challenge a SOFA violation.
As an initial matter, the undersigned notes that the underlying premise of Plaintiff s Ground One claim is rooted in the idea that the United States violated the Japan SOFA by not first obtaining a waiver of Japan's primary jurisdiction. On this point, Respondent argues that Petitioner lacks standing to contest an alleged breach of a treaty between nations. ECF No. 12-1 at 5-8. To the extent that Petitioner argues the United States violated the Japan SOFA, the Court agrees with Respondent that Petitioner does not have standing to bring forth a claim alleging a violation of an international agreement like the Japan SOFA.
As a general matter, federal courts have held that alleged violations of other SOFA treaties should be addressed diplomatically between two nations. See Patterson v. Wagner, 785 F.3d 1277, 1285 (9th Cir. 2015) (“The [U.S.-South Korea] SOFA's provisions thus establish a diplomatic conflict resolution scheme with no role for the judiciary.”); Matter of Burt, 737 F.2d 1477, 1488 (7th Cir. 1984) (“[I]t is well settled that the recourse for such a treaty violation in these circumstances is diplomatic, not judicial.”); Holmes v. Laird, 459 F.2d 1211, 1222 (D.C. Cir. 1972) (“[T]he rights [appellants] claim to the provisions of an international agreement the enforcement mechanism of which is diplomatic recourse only.”).
To be sure, Plaintiff frames his argument as raising jurisdictional issues, not a treaty violation. However, to agree with Plaintiff's argument would require the Court to decide whether the United States violated the Japan SOFA. In a case that parallels the facts of Petitioner's case, the District Court for the Southern District of California determined that a petitioner raising nearly identical arguments lacked standing to challenge jurisdiction based on an alleged violation of the Japan SOFA. Brazell v. Uddenberg, No. 19-CV-01084-JLS-MSB, 2020 WL 6741673, at *3 (S.D. Cal. Nov. 17, 2020) (“Petitioner cannot challenge jurisdiction resting on the violation of the U.S.-Japan SOFA because a violation of the SOFA must be resolved diplomatically between the two nations.”). The undersigned agrees with the reasoning set forth by the District Court in Brazell and the cases cited therein, along with Respondent's arguments and cited cases. See id. (“The Court determines that Petitioner has no standing to allege his conviction in a U.S. court-martial constituted a violation of the U.S.-Japan SOFA.”); ECF No. 12-1 at 6-7. Accordingly, the undersigned “declines to decide whether the United States was in violation of its obligations under SOFA by exercising its secondary jurisdiction prior to Japan's waiver.” Brazell, No. 19-CV-01084-JLS-MSB, 2020 WL 6741673, at *3.
The petitioner in Brazell was a former active-duty member of the United States Air Force and was tried via court-martial for sexual assault of a child and sexual abuse of a child in violation of Article 120b, UCMJ, 10 U.S.C. § 920b. Brazell, No. 19-CV-01084-JLS-MSB, 2020 WL 6741673, at *1. M.L., the 12-year-old alleged victim, was a temporary guest of her father, J.L., at his off-base residence in Okinawa, Japan at the time of the alleged assaults. Id. J.L. was in Japan working as a civilian government contractor for Lockheed Martin. Id. The petitioner argued that the court-martial lacked subject-matter jurisdiction because Japan did not waive its primary right to exercise jurisdiction over the offenses prior to the court-martial. Id. at *2. Similar to this case, the petitioner in Brazell maintained that pursuant to the Japan SOFA, Japan's jurisdiction is exclusive until the primary right is waived. Id.
Plaintiff nevertheless maintains he has standing because the Japan SOFA grants him the personal right to double jeopardy protection, which he argues did not attach because the United States failed to obtain a waiver of Japan's primary jurisdiction. ECF No. 13 at 6-8.
The double jeopardy provision provides: “Where an accused has been tried in accordance with the provisions of this Article either by the military authorities of the United States or the authorities of Japan and has been acquitted, or has been convicted and is serving, or has served, his sentence or has been pardoned, he may not be tried again for the same offense within the territory of Japan by the authorities of the other State. However, nothing in this paragraph shall prevent the military authorities of the United States from trying a member of its armed forces for any violation of rules of discipline arising from an act or omission which constituted an offense for which he was tried by the authorities of Japan.” Japan SOFA, 11 U.S.T. 1652, Art. XVII(8), 1960 WL 57244.
The Court agrees that the Japan SOFA's double-jeopardy prohibition is a personally enforceable right, such that Plaintiff would have standing to assert a violation of the double-jeopardy provision. See United States v. Green, 14 M.J. 461, 464 (C.M.A. 1983) (“The general rule is that standing to contest an alleged treaty violation may not be assumed, but can only be asserted where the treaty clearly indicates an intention to create present enforceable rights for the individual.”). However, Plaintiff is not asserting a violation of the double-jeopardy provision; rather, he is asserting the United States violated Article XVII's concurrent jurisdiction provision by not first obtaining a waiver of Japan's primary jurisdiction. Nothing in the language of Article XVII(3) (the jurisdictional provision) confers an individually enforceable right. Thus, Petitioner may not use this provision to assert a personal right that it does not grant, nor may he use Article XVII(8) (the double-jeopardy provision) as a springboard to obtain standing to assert a right that is governed by Article XVII(3) and belongs solely to the United States and Japan. See Dorrbecker v. Mincey, No. 9:21-CV-1953-JFA-MHC, 2022 WL 4494293, at *6 (D.S.C. Sept. 28, 2022) (rejecting the use of the NATO SOFA's double jeopardy provision as a backdoor method to challenge the court-martial's jurisdiction).
2. Concurrent Jurisdiction under the Japan SOFA
Alternatively, and regardless of the standing issue, Petitioner has failed to show how subject-matter jurisdiction was lacking.
As noted above, the core question before the Court is whether the United States's alleged failure to follow the Japan SOFA's procedures in a case of concurrent jurisdiction stripped the court-martial of subject-matter jurisdiction. In considering this exact issue on appeal in Brazell, the Ninth Circuit Court of Appeals recently held:
The record reflects that Japan had the primary right to exercise concurrent jurisdiction pursuant to Paragraph 3(b), and we discern no indication that Japan ever waived that right. Although Paragraph 3(c) sets forth a waiver procedure to facilitate the disposition of cases in which the signatories have concurrent jurisdiction, the text of the agreement does not indicate that the United States' or Japan's failure to follow that procedure would nullify a signatory's authority to prosecute an offense. As the district court correctly explained, Brazell's contrary interpretation conflates concurrent jurisdiction with exclusive jurisdiction.Brazell v. Uddenberg, No. 22-55954, 2023 WL 5665772, at *2 (9th Cir. Sept. 1, 2023) (emphasis added).
In other words, there is nothing in the Japan SOFA's Article XVII concurrent jurisdiction scheme that strips the court-martial of subject-matter jurisdiction over Petitioner's offenses in the event Japan or the United States runs afoul of Article XVII's procedure. See id. Both Japan and the United States have subject-matter jurisdiction over the offenses simultaneously-there is nothing to suggest that only one country has subject-matter jurisdiction at a time. Rather, Article XVII's concurrent jurisdiction scheme sets forth a procedure for exercising that concurrent jurisdiction by directing which country may prosecute (or decline to prosecute) first. See Brazell v. Uddenberg, No. 19-CV-1084 JLS (MSB), 2022 WL 4088617, at *3 (S.D. Cal. Sept. 6, 2022) (hereinafter “Brazell II”') (“The court-martial's exercise ofjurisdiction is consistent with Supreme Court precedent, which has held that multiple sovereigns may simultaneously have jurisdiction. Which sovereign will exercise jurisdiction is a matter of foreign policy, but the court-martial is not powerless to act unless and until Japan cedes jurisdiction according to the procedure in the SOFA.” (citations omitted)), aff'd, No. 22-55954, 2023 WL 5665772 (9th Cir. Sept. 1, 2023); see also United States v. Kerns, 75 M.J. 783, 795 (A.F. Ct. Crim. App. 2016) (“Jurisdiction is created by operation of law and cannot be ‘acquired' or ‘ceded' either by the Air Force or a local prosecutor. However, when a member is subject to both UCMJ and state (or foreign) jurisdiction, the Air Force as a matter of policy will coordinate with the relevant civilian prosecutor to determine which sovereign will exercise the jurisdiction it already possesses. (emphasis in original)); United States v. Kotey, No. NMCM 9900676, 2003 WL 1923707, at *5 (N-M. Ct. Crim. App. Apr. 23, 2003) (“Where both sides have an interest in going forward with prosecution of the same alleged offense, the [Japan] SOFA establishes a complex decision-making framework to determine which sovereign will be given priority.”).
After denying the first habeas petition, the District Court in Brazell II considered Petitioner's Amended Habeas Petition. See Brazell II, No. 19-CV-1084 JLS (MSB), 2022 WL 4088617, at *1 (S.D. Cal. Sept. 6, 2022), aff'd, No. 22-55954, 2023 WL 5665772 (9th Cir. Sept. 1, 2023).
Additionally, Petitioner's argument fails for a second reason. Indeed, as the Ninth Circuit found:
Brazell's argument fails for a second reason: Paragraph 3's jurisdiction-allocating provisions are not judicially enforceable because the SOFA specifies a diplomatic mechanism for resolving disputes over its meaning. Article XXV of the SOFA provides that “[a] Joint Committee shall be established as the means for
consultation between the [United States and Japan] on all matters requiring mutual consultation regarding the implementation of this Agreement.” Id. art. XXV ¶ 1. Appended to the SOFA is the signatories' joint understanding that “[m]utual procedures relating to waivers of the primary right to exercise jurisdiction shall be determined by” this Joint Committee. Id. art. XVII (Agreed Minutes).
In Patterson v. Wagner, we held that materially identical language in the U.S.-South Korea SOFA indicated that “the SOFA establishes an enforcement mechanism that is ‘diplomatic, not judicial.'” 785 F.3d 1277, 1285 (9th Cir. 2015) (quoting In re Burt, 737 F.2d 1477, 1488 (7th Cir. 1984)). On this basis, Patterson allowed an extradition to proceed despite the petitioner's claims that South Korea would subject him to double jeopardy in violation of the U.S.-South Korea SOFA. Id.; see also id. at 1284 (“Though the SOFA appears to establish individual rights, we conclude that they are not judicially enforceable.”). Brazell seeks to distinguish Patterson by arguing that its holding was limited to SOFA violations by a foreign sovereign. But Patterson did not articulate any such limits on its holding, and we are bound by it.Brazell, No. 22-55954, 2023 WL 5665772, at *2.
As already noted, Brazell parallels Petitioner's case in many regards, and thus the undersigned finds the Ninth Circuit's opinion and the District Court's opinions in that case persuasive. Accordingly, the undersigned recommends dismissing Petitioner's Ground One claim. See Brazell II, No. 19-CV-1084 JLS (MSB), 2022 WL 4088617, at *3 (“The alleged failure of Japan and the United States to follow the procedure outlined in the SOFA for matters of concurrent jurisdiction does not deprive the court-martial of subject-matter jurisdiction. Whether the United States was in violation of its obligations under the SOFA when the court-martial exercised its jurisdiction prior to Japan's waiver is a diplomatic issue not suited for decision in this Court.”), aff'd, No. 22-55954, 2023 WL 5665772 (9th Cir. Sept. 1, 2023).
B. Ground Two: Court-Martial Jurisdiction Over a Retiree
Petitioner also challenges whether the court-martial had personal jurisdiction over him. Specifically, Petitioner argues the court-martial which tried him lacked personal jurisdiction over him because, “as a retiree, Petitioner was not part of the ‘land and naval forces' at the time of either the offenses or the trial, and the case did not ‘arise in the land or naval forces' because the offenses had no connection to the armed forces.” ECF No. 1 at 9. He maintains that “Congress's extension of court-martial jurisdiction to military retirees exceeded its Article I authority and its power to authorize adjudication by a non-Article III military court, and deprived [him] of [his] Constitutional rights.” ECF No. 1 at 9.
Congress passed the Uniform Code of Military Justice (“UCMJ”) pursuant to its plenary authority under Article I of the U.S. Constitution to make rules and regulate the armed forces. See Solorio v. United States, 483 U.S. 435, 441 (1987) (“Whatever doubts there might be about the extent of Congress' power under Clause 14 to make rules for the ‘Government and Regulation of the land and naval Forces,' that power surely embraces the authority to regulate the conduct of persons who are actually members of the Armed Services.”); see also U.S. CONST. art. 1, § 8, cl. 14. The UCMJ governs the military's independent criminal justice system. See 10 U.S.C. §§ 801946.
As part of maintaining a Navy, Congress created multiple categories into which naval personnel fall, one being the Fleet Reserve. 10 U.S.C. § 8330(a). The Fleet Reserve is composed of “enlisted member[s] of the Regular Navy . . . who ha[ve] completed 20 or more years of active service in the armed forces.” 10 U.S.C. § 8330(b). “Transfer to the Fleet Reserve is optional, and members of the Fleet Reserve are entitled to retainer pay, remain subject to recall at any time, and are subject to the UCMJ.” United States v. Begani, No. 20-0217, 2021 WL 2639319, at *277
(C.A.A.F. June 24, 2021) (citations omitted), cert. denied, 142 S.Ct. 711 (2021). Accordingly, for “over a hundred years, Congress, the military, and the Supreme Court have all understood that retired members of all branches of service of the armed forces who continue to receive pay are still a part ‘of the land and naval Forces' and subject to the UCMJ or its predecessors.” Id.
“Generally, there are three prerequisites that must be met for courts-martial jurisdiction to vest: (1) jurisdiction over the offense, (2) jurisdiction over the accused, and (3) a properly convened and composed court-martial.” United States v. Ali, 71 M.J. 256, 261 (C.A.A.F. 2012). Subject-matter jurisdiction is exercised “over the offenses” and personal jurisdiction is exercised “over the accused.” See, e.g., United States v. Nealy, 71 M.J. 73, 76 (C.A.A.F. 2012). After the Supreme Court's decision in Solorio, “the status of the individual is the focus for determining both jurisdiction over the offense and jurisdiction over the person.” Ali, 71 M.J. at 264 (citations omitted). “The only difference is that jurisdiction over the person depends on the person's status as a ‘person subject to the Code' both at the time of the offense and at the time of trial.” Id. at 265 (citations omitted). As a result, when considering whether court-martial jurisdiction exists, the federal courts look to “one factor: the military status of the accused.” Solorio, 483 U.S. at 439; Begani, No. 20-0217, 2021 WL 2639319, at *277 (“The test for jurisdiction . . . is 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.” (emphasis in original) (citation omitted)).
Here, the sexual offenses occurred solely in Japan while Petitioner was a member of the Navy Fleet Reserve and a dependent of a civilian Navy employee. ECF No. 1 at 7-8. Members of the Navy Fleet Reserve fall under the plain definition of the “naval service.” See 10 U.S.C. § 8001(a)(3). The United States Navy “includes the Regular Navy, the Fleet Reserve, and the Navy Reserve,” id. at § 8001(a)(1), while the term “member of the naval service” includes those who are “appointed or enlisted in, or inducted or conscripted into, the Navy or the Marine Corps,” id. at § 8001(a)(3). Further, § 8330 provides that the Fleet Reserve is “composed of members of the naval service transferred thereto under this section” who are entitled to retainer pay when not on active duty. Id. at § 8330(a), (c)(1). Consequently, under these statutory definitions and descriptions, Petitioner was a member of the United States Navy who received retainer pay and remained subject to the UCMJ and court-martial jurisdiction. See id.; see also 10 U.S.C. § 802(a)(4), (6) (placing both “[r]etired members of a regular component of the armed forces who are entitled to pay” and “[m]embers of the Fleet Reserve” under the scope of the UCMJ); United States v. Overton, 24 M.J. 309, 310-11 (C.M.A. 1987) (holding the same as applied to a member of the Fleet Marine Corps Reserve).
In short, Petitioner chose not to be discharged from the military, but instead elected to transfer within the United States Navy and become a regularly paid member of the Navy Fleet Reserve. ECF No. 1 at 7. By statutory definition, Petitioner was not merely a “dependent” of a civilian Navy employee but was in fact a member of the United States Navy subject to the UCMJ and court-martial jurisdiction.
In his Response, Petitioner does not explicitly acknowledge that Congress provided courtmartial jurisdiction in the UCMJ over members of the Navy Fleet Reserve and other military retirees. Rather, Petitioner argues the exercise of court-martial jurisdiction over members of Navy Fleet Reserve is unconstitutional, and urges this Court to follow the reasoning of the District Court in Larrabee v. Braithwaite, 502 F.Supp.3d 322, 329 (D.D.C. 2020), which found that members of the Fleet Reserve are not “within the ordinary meaning of the ‘land and naval forces' [contained] in the Constitution” and, therefore, not constitutionally subject to court-martial jurisdiction.
The undersigned is not persuaded by the reasoning in Braithwaite for three reasons, the first being that Braithwaite was reversed on appeal by the D.C. Circuit Court of Appeals-a point which Petitioner omits. See Larrabee v. Del Toro, 45 F.4th 81 (D.C. Cir. 2022) (reversing Braithwaite) In Del Toro, the D.C. Circuit held that “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.” Id. at 95. Applying that test, the court concluded that members of the Fleet Marine Reserve are part of the “land and naval Forces” and found Larrabee-who was a member of the Fleet Marine Reserve-subject to court-martial jurisdiction. Id. at 96 (“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.”).
The Supreme Court recently denied a petition for a writ of certiorari to review the D.C. Circuit's opinion. See LARRABEE, STEVEN M. v. DEL TORO, SEC. OF NAVY, ET AL., No. 22-1082, 2023 WL 6558397 (U.S. Oct. 10, 2023).
Second, the D.C. Circuit's reasoning is consistent with the settled position of the CAAF, which has long recognized military retirees as amenable to court-martial. See Begani, No. 20-0217, 2021 WL 2639319, at *277 (“For well over a hundred years, Congress, the military, and the Supreme Court have all understood that retired members of all branches of service of the armed forces who continue to receive pay are still a part ‘of the land and naval Forces' and subject to the UCMJ or its predecessors.” (collecting cases)). The Begani court identified multiple indicators establishing that “members of the Fleet Reserve retain military status,” including that such members have not severed their relationship with the military; they are receiving retainer pay, subject to recall “at any time,” and required to maintain military readiness for active service; and they must conform to specified travel and health reporting requirements. Id. at *278-79.
Third, “the only Article III court of appeals to have considered whether military retirees may be court-martialed reached the same result.” Del Toro, 45 F.4th at 96; see also U.S. 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). Accordingly, for these reasons, the undersigned declines to recommend following the lead of a lone District Court opinion which was subsequently reversed on appeal.
Ultimately, Navy Fleet Reservists like Petitioner are still paid, are subject to recall, and are required to maintain military readiness and obey orders. Petitioner could have completely severed ties with the military. He chose not to, and instead opted to maintain his relationship with the Navy as a Fleet Reservist. With that choice came all the obligations and benefits of someone who was a part of the land and naval Forces-which includes being constitutionally subject to court-martial jurisdiction. See Del Toro, 45 F.4th at 97 (“Because he maintained a relationship with the armed forces and was obligated to obey military orders at the time of his court-martialing, Larrabee was in ‘the land and naval Forces' and constitutionally subject to court-martial jurisdiction.”); Begani, No. 20-0217, 2021 WL 2639319, at *279 (“[M]embers of the Fleet Reserve and Fleet Marine Reserve can constitutionally be considered part of the land and naval forces, and Congress has determined that they need to be subject to the UCMJ.”). Accordingly, the undersigned recommends Petitioner's Ground Two claim be dismissed.
IV. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Respondent's Motion (ECF No. 12) be GRANTED and that this Petition be DENIED with prejudice.
The parties are directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).