Jurisdictional issue to be heard in federal court in Washington, D.C.

On February 25, Judge Richard J. Leon of the U.S. District Court for the District of Columbia will hear argument on a government motion to dismiss and the plaintiff's motion for judgment on the pleadings in Larrabee v. Spencer, Civil No. 19-654. At issue is whether a member of the Fleet Marine Reserve is constitutionally subject to court-martial for offenses committed after he left active duty. On direct review, the U.S. Court of Appeals for the Armed Forces summarily affirmed and the Supreme Court denied certiorari. The Questions Presented portion of the petition for a writ of certiorari stated:

In United States ex rel. Toth v. Quarles, this Court held that the armed forces could not constitutionally court-martial “civilian ex-soldiers who had severed all relationship with the military and its institutions,” 350 U.S. 11, 14 (1955), even for offenses committed while on active duty. Petitioner is a retired Marine who was tried and convicted by court-martial for offenses committed after he had been discharged from active duty, and with no relationship to his military status. The lower courts nevertheless rejected his constitutional challenge to the exercise of military jurisdiction, concluding that “those in a retired status remain ‘members’ of the land and Naval forces who may face court-martial” for any and all crimes they commit while retired. United States v. Dinger, 76 M.J. 552, 557 (N-M. Ct. Crim. App. 2017). 

The Questions Presented are: 

1. Whether the Constitution permits the court-martial of a retired military service-member.

2. Whether, if so, the Constitution limits the jurisdiction of courts-martial in such cases to offenses that are related to the retiree’s military status.

The district court complaint seeks collateral review under 28 U.S.C. § 1331 and asserts under "Cause of Action"--

48. Plaintiff’s conviction violated the Constitution because the court-martial lacked jurisdiction over both him and his offenses: as a retiree, he was not part of the “land and naval forces” at the time of either the offenses or the trial, and the case did not “aris[e] in the land or naval forces” because the offenses had no connection to the armed forces. 

49. 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 plaintiff of rights to which he was entitled under other provisions of the Constitution. 

50. A criminal conviction adjudged by a court that lacks jurisdiction is null and void.

Disclosure: the Editor is co-counsel for the plaintiff. Global Military Justice Reform contributor Prof. Stephen I. Vladeck of the University of Texas Law School is lead counsel.