United States District of Columbia Circuit Court of Appeals

U.S. EX REL. NEW v. RUMSFELD, 448 F.3d 403 (D.C. Cir. 2006)
UNITED STATES ex rel. Michael G. New, Appellant v. Donald H.
RUMSFELD, Secretary of Defense, and Francis J. Harvey,
Secretary of the Army, Appellees. No. 05-5023. United
States Court of Appeals, District of Columbia Circuit.
Argued February 16, 2006. Decided May 23, 2006. Page 404

Appeal from the United States District Court for the
District of Columbia (No. 96cv00033).

Herbert W. Titus argued the cause for appellant. With him
on the briefs were Henry L. Hamilton, William J. Olson, and
John S. Miles.

Kevin K. Robitaille, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Kenneth L.
Page 405 Wainstein, U.S. Attorney, and Michael J. Ryan and
R. Craig Lawrence, Assistant U.S. Attorneys.

Before: RANDOLPH and GARLAND, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS, Senior Circuit Judge.

Michael G. New, formerly a medical specialist in the
United States Army, was convicted by a court-martial of
violating a lawful order to add United Nations insignia
— a shoulder patch and a field cap — to his
basic uniform. The Army Court of Criminal Appeals (“Court
of Criminal Appeals”) and the Court of Appeals for the
Armed Forces (“Court of Appeals”) affirmed. New’s
collateral attack charges several errors in the military
courts’ analysis of the lawfulness of the uniform order.
Because New fails to identify fundamental defects in the
military courts’ resolution of his claims, we affirm the
district court’s denial of relief.

* * * * * *

Shortly after he learned during the summer of 1995 that
his unit would be deployed to the Republic of Macedonia as
part of the United Nations Preventive Deployment Force, New
voiced concerns about the lawfulness of the Army’s
participation in the mission. In particular, he was
troubled that wearing U.N. insignia as part of his uniform
would manifest an involuntary or fictional shift in his
allegiance from the government of the United States to the
United Nations. Although his superiors discussed these
concerns with him, they failed to alleviate them.

Eventually New’s battalion commander issued — and
his company commander repeated — an order to begin
wearing a special U.N. mission uniform at a battalion
formation on October 10, 1995. The uniform consisted of the
ordinary United States Army battle dress uniform plus a
blue U.N. patch sewn on one shoulder and a blue U.N. cap.
New reported for the formation on the scheduled date
wearing a uniform that lacked these features, and his
superiors immediately removed him from the formation.
Although his battalion commander offered him a second
chance to comply with the uniform order, New declined.

New was court-martialed and charged with violating Article
92(2) of the Uniform Code of Military Justice (codified at
10 U.S.C. § 892(2)), which provides that any person
who, “having knowledge of any . . . lawful order issued by
a member of the armed forces, which it is his duty to obey,
fails to obey the order . . . shall be punished as a
court-martial may direct.” New’s defense focused on the
lawfulness of the order — specifically its
consistency with Army Regulation 670-1 (1992) (“AR 670-1”),
which permits commanders to require uniform modifications
“to be worn within [a] maneuver area,” par. 2-6d, or “when
safety considerations make it appropriate,” par. 1-18, and
with Article I, Section 9 of the Constitution, which
prohibits any person’s acceptance of, inter alia, any
emolument from a foreign state without congressional
consent. New also argued that the uniform order couldn’t be
lawful because the Army’s participation in the U.N. mission
was itself unlawful, asserting various statutory and
constitutional grounds discussed below.

The military judge — a law officer presiding over
the panel but not serving as one of its members —
rejected both sets of arguments: he concluded that the
order was consistent with AR 670-1 and that the legality of
the deployment was a nonjusticiable political question. The
court-martial Page 406 sentenced New to a bad-conduct

On appeal to the Court of Criminal Appeals, New argued that
the military judge erred in ruling that the lawfulness of
the order was a legal question for him to decide rather
than an element of the offense to be decided by the
“military jury” (the term that we use, following the Court
of Appeals, as shorthand for the court-martial panel).
United States v. New, 55 M.J. 95, 103 (C.A.A.F. 2001)
(“CAAF Op.”); see also id. at 117 & n. 2 (Sullivan, J.,
concurring). And he argued that the military judge’s
conclusion on the merits was erroneous. The Court of
Criminal Appeals rejected these claims and affirmed New’s
conviction and sentence. United States v. New, 50 M.J. 729
(A.Ct.Crim.App. 1999) (“ACCA Op.”). The Court of Appeals
then granted review and also affirmed. CAAF Op., 55 M.J. at

New had filed a petition for a writ of habeas corpus in
federal district court shortly before his court-martial.
The district court dismissed that petition on the ground
that New had failed to exhaust his remedies in the pending
court-martial action, United States ex rel. New v. Perry,
919 F.Supp. 491 (D.D.C. 1996), and we affirmed, New v.
Cohen, 129 F.3d 639 (D.C. Cir. 1997). After the Court of
Criminal Appeals and the Court of Appeals both affirmed his
conviction, New returned to the district court. The
district court dismissed the petition, finding that each of
New’s challenges fell outside the scope of collateral
review, raised a nonjusticiable political question, or
lacked merit as a matter of law. United States ex rel. New
v. Rumsfeld, 350 F.Supp.2d 80, 102 (D.D.C. 2004) (“District
Ct. Op.”). New appeals.

* * * * * *

We begin with jurisdiction and the related issue of the
scope and standard of review. New, the government, and the
district court have all assumed that jurisdiction rests on
28 U.S.C. § 2241, which authorizes federal courts to
grant writs of habeas corpus. See District Ct. Op., 350
F.Supp.2d at 88 n. 4, 89; Brief for Appellants at 1; Brief
for Appellees at 1. But § 2241(c) precludes granting
the writ unless the petitioner is in custody. Upon
conviction by court-martial New received a bad-conduct
discharge; as he is not in custody, § 2241 can’t
supply subject matter jurisdiction. This is not fatal,
however, because the Supreme Court has held that Congress
didn’t intend to confine collateral attacks on
court-martial proceedings to § 2241. Schlesinger v.
Councilman, 420 U.S. 738, 748-53, 95 S.Ct. 1300, 43 L.Ed.2d
591 (1975). Thus the district court had subject-matter
jurisdiction to hear New’s collateral attack under §
1331 (which New’s second amended complaint invoked).

The standard of our review is more tangled. In Councilman
the Supreme Court not only confirmed jurisdiction in the
absence of custody, but also said that collateral relief
was barred unless the judgments were “void.” Id. at 748, 95
S.Ct. 1300. And that question “may turn on [1] the nature
of the alleged defect, and [2] the gravity of the harm from
which relief is sought,” id. at 753, 95 S.Ct. 1300.
Specifically, the defect must be “fundamental,” for “[a]
judgment . . . is not rendered void merely by error.” Id.
at 747, 95 S.Ct. 1300. Moreover, “both factors must be
assessed in light of the deference that should be accorded
the judgments of the carefully designed military justice
system established by Congress.” Id. at 753, 95 S.Ct. 1300.
Because Councilman ultimately denied review pending the
court-martial, this standard was not part of the holding,
but our circuit later adopted it for non-habeas review of
court-martial judgments. Page 407 Priest v. Secretary of
the Navy, 570 F.2d 1013, 1016 (D.C. Cir. 1977).

The Supreme Court pitched the Councilman standard as more
deferential than habeas review of military judgments, which
it has in turn described as no less deferential than habeas
review of state court judgments. This first point was
explicit in Councilman itself, where the Court said:
“[G]rounds of impeachment cognizable in habeas proceedings
may not be sufficient to warrant other forms of collateral
relief.” 420 U.S. at 753, 95 S.Ct. 1300. The second point
is part of the Court’s analysis in Burns v. Wilson, 346
U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953). There,
reviewing court-martial death sentences allegedly based on
coerced confessions and “an atmosphere of terror and
vengeance,” id. at 138, 73 S.Ct. 1045, the Court through a
four-justice plurality described military habeas as
follows: “It is the limited function of the civil courts to
determine whether the military have given fair
consideration” to each claim raised by petitioners. Id. at
144, 73 S.Ct. 1045. As to factfinding, the plurality said
that Article III courts should not be in the business of
“reexamin[ing] and reweigh[ing] each item of evidence of
the occurrence of events which tend to prove or disprove
one of the allegations in the applications for habeas
corpus.” Id. The plurality concluded that the petitioners
failed to show that the military review process was
“legally inadequate” to resolve their constitutional claims
and affirmed. Id. at 146, 73 S.Ct. 1045. (Two additional
justices concurred in the result, one of them writing that
the Supreme Court’s role was limited to assessing the
military courts’ jurisdiction. Id. at 146-48, 73 S.Ct.
1045.) In setting out this standard, the plurality
explained that the Court must be at least as deferential as
it is in the civilian habeas context, for in “military
habeas corpus cases themselves, even more than in state
habeas corpus cases, it would be in disregard of the
statutory scheme if the federal civil courts failed to take
account of the prior proceedings — of the fair
determinations of the military tribunals after all military
remedies have been exhausted.” Id. at 142, 73 S.Ct. 1045
(emphasis added).

The uncertainty implied in these rankings of deference
level is compounded by the evolution of habeas review over
time. Until the Supreme Court’s decision in Johnson v.
Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938),
the scope of habeas corpus review was equally narrow in
both military and civilian cases — limited to
verifying personal and subject-matter jurisdiction. In
Johnson, a civilian federal habeas corpus case, the Supreme
Court expanded the scope of jurisdictional challenges by
holding that the trial court could lose jurisdiction by
failing to provide constitutionally-guaranteed counsel to
the defendant, id. at 468, 58 S.Ct. 1019, and this
developed into explicit review for constitutional
violations. See Calley v. Callaway, 519 F.2d 184, 195-96
(5th Cir. 1975) (en banc) (citing Waley v. Johnston, 316
U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (1942), and House v.
Mayo, 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739 (1945)).
Burns took military habeas review onto a similar path,
though not to the same degree.

As the military habeas standard of review at one time
followed review of state court judgments toward less
deference, perhaps it (and other collateral review of
military decisions) should follow the current path toward
more. In light of the Burns plurality’s view that military
habeas review must be at as least as deferential as habeas
review of state criminal judgments, the Third Circuit has
held that the former enjoy at least as much deference as
the latter do now, under the statutory standards adopted in
the 1996 Antiterrorism and Effective Death Penalty Act
(“AEDPA”). Page 408 See Brosius v. Warden, 278 F.3d 239,
245 (3d Cir. 2002) (citing 28 U.S.C. § 2254(d)-(e)).
But to the extent that Congress’s revision of the standards
for state court judgments arose out of special history and
circumstances, its decision to tighten in that context may
reflect no judgment at all about collateral review of
court-martial judgments.

We trace these steps merely as a caution. Except insofar as
a standard may be quite specific, such as AEDPA’s
requirement of a violation of “clearly established Federal
law, as determined by the Supreme Court of the United
States,” see 28 U.S.C. § 2254(d)(1), we have serious
doubt whether the judicial mind is really capable of
applying the sort of fine gradations in deference that the
varying formulae may indicate. See United States v. Boyd,
55 F.3d 239, 242 (7th Cir. 1995). It suffices for our
purposes to repeat Councilman’s statement that errors must
be fundamental to void a court-martial judgment on
collateral review. And in light of Councilman’s point that
non-habeas review is if anything more deferential than
habeas review of military judgments, 420 U.S. at 753, 95
S.Ct. 1300, a military court’s judgment clearly will not
suffer such a defect if it satisfies Burns’s “fair
consideration” test.

* * * * * *

New first argues that the military courts violated his
Fifth Amendment rights to due process by ruling that the
lawfulness of the uniform order he violated was not an
element of the offense — and thus not to be decided
by the military jury. He evidently invokes the Fifth
Amendment for two reasons. First, it is undisputed that the
Sixth Amendment doesn’t create any jury right in
courts-martial. See Ex parte Quirin, 317 U.S. 1, 38-41, 63
S.Ct. 1, 87 L.Ed. 3 (1942). Second, the Court’s decision in
United States v. Gaudin, holding that the issue of
materiality must be found by a jury beyond a reasonable
doubt (it was conceded that materiality was an element of
the false statements offense defined in 18 U.S.C. §
1001), rested on the Fifth Amendment as well as the Sixth.
515 U.S. 506, 509-10, 115 S.Ct. 2310, 132 L.Ed.2d 444
(1995). Here, by virtue of a statute, 10 U.S.C. §
851(c), any element of the offense must be submitted to the
military jury for evaluation under the reasonable doubt
standard. Thus, for the Court of Appeals, the New case
presented the inverse of Gaudin: classification of the
factor (lawfulness) as an “element” was unclear, but once
the classification was made, the judge-jury allocation was
indisputable. 55 M.J. at 104. Other than the idea that
lawfulness must be an element of the offense (coupled with
§ 851’s requirement), New appears to offer no legal
reason why the lawfulness issue should have gone to the
military jury.

We find no fundamental defect in the Court of Appeals’
conclusion that the lawfulness of an order is not a separate
and distinct element of the offense, but rather is an issue
for the military judge. Id. at 105. Identifying the
elements of a statutory provision defining a crime is an
exercise in statutory interpretation. The Court of Appeals
started with the text and then turned to traditional aids
in statutory interpretation: It considered — and
identified powerful support in — the meaning of the
key terms “lawful” and “order,” the relevant legislative
history, previous decisions of military courts, and the
Manual for Courts-Martial. Id. at 100-01. And it
distinguished lawfulness from “wrongfulness” and
“materiality,” which must go to the military jury when a
servicemember is charged with violating 18 U.S.C. §
1001 under 10 U.S.C. § 934. CAAF Op., 55 M.J. at
105. Finally, the Court of Appeals Page 409 reasoned that
if the lawfulness of an order were an element of the
offense, “the validity of regulations and orders of
critical import to the national security would be subject
to unreviewable and potentially inconsistent treatment by
differing court-martial panels.” Id. at 105. One judge
contrasted the resulting “patchwork quilt” with “the unity
and cohesion that is critical to military operations.” See
id. at 110 (Effron, J., concurring).

New argues that the Court of Appeals’ interpretation failed
to apply the two-step methodology set out by the Supreme
Court in Neder v. United States: “[W]e first look to the
text of the statutes at issue,” id. at 20, 119 S.Ct. 1827,
and then look to the “accumulated settled meaning under the
common law” if such a meaning exists. 527 U.S. 1, 21, 119
S.Ct. 1827, 144 L.Ed.2d 35 (1999). But there the issue was
whether the language implied the existence of an element,
whereas here the statute specified “lawful order,” and the
issue was that term’s role — whether it set out an
element of the offense or, as the Court of Appeals found,
simply underscored the accused’s “opportunity . . . to
challenge the validity of the regulation or order.” CAAF
Op., 55 M.J. at 105. New also objected that the Court of
Appeals’ conclusion conflicts with a statement in Unger v.
Ziemniak, 27 M.J. 349 (C.M.A. 1989), that in “a prosecution
for disobedience, lawfulness of the command is an element
of the offense.” Id. at 358. But the Court of Appeals
reasonably found that the remark was wholly unnecessary to
the judgment. CAAF Op., 55 M.J. at 102. In any event, the
Court of Appeals is “free to refine and develop its prior
decisions” without our interference. Priest, 570 F.2d at

New also objects to the military courts’ substantive
conclusion that the uniform order was lawful in the sense
that it was consistent with AR 670-1. That regulation
allows commanders to require “organizational protective or
reflective items . . . with the uniform when safety
considerations make it appropriate,” par. 1-18, and allows
commanders to prescribe the uniform “to be worn within [a]
maneuver area,” par. 2-6d. The military judge found that
“[t]he wearing of distinctive and identifiable uniforms or
uniform accessories easily recognizable in a combat
environment or potential combat environment has a practical
combat function which may enhance both the safety and/or
tactical effectiveness of combat-equipped soldiers
performing tactical operations,” and thus that the U.N.
insignia “had a function specifically designed to enhance
the safety of United States armed forces in Macedonia.”
Court-Martial Transcript at 426; see also CAAF Op., 55 M.J.
at 107 (reaching same conclusion as military judge).

New acknowledges the presumption of lawfulness that
attaches to military orders, CAAF Op., 55 M.J. at 106, but
he contests the Court of Appeals’ conclusion that he failed
to overcome that presumption, id. at 107. He argues that
the government failed to submit any evidence justifying the
uniform order by reference to safety considerations or
maneuver areas. He himself did not proffer any evidence on
these issues. Before us, he instead points to a Stipulation
of Fact concerning a totally unrelated provision of AR
670-1, which states that the uniform modifications “ha[d]
not been approved by the Director of [t]he Institute of
Heraldry, U.S. Army, as required and mandated under the
provisions of paragraphs 27-16a and b of Army Regulation
670-1.” We can hardly fault the military courts’ judgment
that this stipulation failed to rebut the presumption that
safety considerations justified the uniform order. We note
that Judge Sullivan of the Court of Appeals, who disagreed
Page 410 with the majority on the judge-jury issue, found
the allocation of the issue to the judge a harmless error
because the commanders had indisputably ordered use of blue
U.N. patches and caps “as part of the operations plans for
the mission and for safety purposes.” 55 M.J. at 127
(Sullivan, J., concurring in the result). Again, we can
find no fundamental defect in the Court of Appeals’
consideration of the issue.

New appears to rely on the same stipulation as evidence
that the uniform order violated the Emoluments Clause of
Article I, Section 9 of the Constitution. (“[N]o Person
holding any Office of Profit or Trust under them, shall,
without the Consent of the Congress, accept of any present,
Emolument, Office, or Title, of any kind whatever, from any
King, Prince, or foreign State.”). But he offers no legal
analysis supporting his belief the U.N. patch and cap fall
within the scope of the Emoluments Clause’s prohibition on
receipt of various possible honors or benefits from foreign
states, and we find the claim a stretch at best. New argues
that the claim did not receive fair consideration because
it “was not litigated at all,” see Brief for Appellants at
45; see also Reply Brief for Appellants at 12, but the
military judge heard arguments on the subject, see, e.g.,
Court-Martial Transcript at 387, 391, 406-07, 417, ruled
that the U.N. patch and cap “were neither gifts from a
foreign government nor received by Specialist New from a
foreign government,” and observed that Congress appeared to
authorize their receipt in a provision of the United
Nations Participation Act, id. at 428. For claims as weak
as this, summary disposition is completely consistent with
fair consideration. See, e.g., King v. Moseley, 430 F.2d
732, 734-35 (10th Cir. 1970).

We turn next to New’s arguments that the uniform order was
unlawful because it was issued pursuant to a military
deployment that was itself unlawful on several grounds. As
he sees it, the deployment violated the United Nations
Participation Act because the President incorrectly
characterized the deployment as noncombatant and therefore
governed by 22 U.S.C. § 287d-1; in fact, New claims,
it was a combatant operation that required Congressional
approval under 22 U.S.C. § 287d. He further argues
that because during the deployment he would be placed under
the operational control of U.N. officials, the deployment
violated the Commander-in-Chief Clause, the Appointments
Clause, and the Thirteenth Amendment. Brief for Appellant
at 13.

The military judge rejected these attacks on the deployment
on two grounds — what appears to be a standing
analysis, i.e., finding that the dispute over the uniform’s
legality “did not effectively call into issue the
underlying legality of the deployment,” Court-Martial
Transcript at 429; see also id. at 432, and the political
question doctrine, id. The Criminal Court of Appeals found
consideration barred by the latter, ACCA Op., 50 M.J. at
737, 739, as did the Court of Appeals, CAAF Op., 55 M.J. at
108-109. As either want of standing or the political
question doctrine would prevent adjudication on the merits,
we may resolve them in any order. See Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 585, 119 S.Ct. 1563, 143
L.Ed.2d 760 (1999) (“It is hardly novel for a federal court
to choose among threshold grounds for denying audience to a
case on the merits”); Hwang Geum Joo v. Japan, 413 F.3d 45,
47-48 (D.C. Cir. 2005). Finding that the military courts’
use of the political question doctrine deserves deference,
we do not address standing.

Our courts have adjudicated claims based on two of the
constitutional provisions New invokes — the
Appointments Page 411 Clause and the Thirteenth Amendment
— without interposing the political question
doctrine. See, e.g., Weiss v. United States, 510 U.S. 163,
114 S.Ct. 752, 127 L.Ed.2d 1 (1994) (whether method of
appointing military judges violates Appointments Clause);
Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62
L.Ed. 349 (1918) (whether military draft law violates
Thirteenth Amendment). But no such adjudication has
occurred in the context of a court-martial defendant who
had refused to obey an order that he claimed was illegal
because the Appointments Clause or the Thirteenth Amendment
invalidated the deployment underlying the disobeyed order.

Whatever the application of the political question doctrine
to these four challenges to a deployment order in an
otherwise properly framed civil suit, the military justice
context compels a somewhat broader doctrine in light of the
implications of any alternative view. As the Court of
Appeals observed, nothing gives a soldier “authority for a
self-help remedy of disobedience.” 55 M.J. at 108 (quoting
United States v. Johnson, 45 M.J. 88, 92 (C.A.A.F. 1996)).
Two of the canonical factors from Baker v. Carr, 369 U.S.
186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), “an unusual
need for unquestioning adherence to a political decision
already made,” 369 U.S. at 217, 82 S.Ct. 691, and “the
potentiality of embarrassment from multifarious
pronouncements by various departments on one question,”
id., are uniquely powerful when the context is a soldier’s
use of the “self-help remedy of disobedience.” Also
supporting a broader sweep to the political question
doctrine in military trials is the point made by Judge
Effron in his concurring opinion — that the doctrine
“ensur[es] that courts-martial do not become a vehicle for
altering the traditional relationship between the armed
forces and the civilian policymaking branches of
government” by adjudicating the legality of political
decisions. Id. at 110. Thus we find no defect in the Court
of Appeals’ application of the political question doctrine,
even though that application might be highly contestable in
another context. Compare Campbell v. Clinton, 203 F.3d 19,
24-28 (D.C. Cir. 2000) (Silberman, J., concurring) (finding
that no “judicially discoverable and manageable standards”
exist for application of the Constitution’s war powers
clause or the War Powers Resolution, 50 U.S.C. §
1541 et seq.), with id. at 37-41 (Tatel, J., concurring)
(concluding that such standards do exist). Given the threat
to military discipline, see Court-Martial Transcript at
433, we have no difficulty accepting the military courts’
reliance on the doctrine.

* * * * * *

For the foregoing reasons, the district court’s dismissal