OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge:
This is a class action brought by individuals who were convicted by special courts-martial that were convened by officers in the United States Navy and Marine Corps under what the United States Court of Military Appeals subsequently held was an improper conferral of convening authority by the Secretary of the Navy under Article 23(a)(7), UCMJ, 10 U.S.C. § 823(a)(7) (1970). United States v. Greenwell, 19 U.S.C. M.A. 460 (1970). The plaintiffs claim that the Greenwell decision renders their convictions void and they seek to have their military records corrected accordingly. They also seek to recover the forfeiture of pay and allowances adjudged at their courts-martial as well as other damages.
The determinative question in this appeal is whether the decision of the United States Court of Military Appeals in Greenwell should be given prospective or retrospective application.
This issue was presented to the district court by way of cross motions for summary judgment and that court ruled that Greenwell should only be given prospective application. As a result, the defendants' motion was granted and the plaintiffs filed this appeal. We have concluded that the district court's decision was correct and accordingly affirm.
In Greenwell, the special court-martial that convicted and sentenced the defendant was convened by the Commanding Officer, Student Company, Marine Corps Base, Camp Pendleton, California. That commander had gained the authority to convene special courts-martial when the Commanding General of Camp Pendleton designated Student Company a "separate and detached command for disciplinary purposes." Under the language of section 0103b(5), Manual of the Judge Advocate General, Department of the Navy, this designation automatically conferred convening authority upon the commanding officer of the unit so designated. That section read as follows:
In Greenwell, the United States Court of Military Appeals decided that conferral of special court-martial convening authority by the method set forth in section 0103b(6), JAG Manual, was illegal. The court began its discussion by noting that that section was explicitly designed to grant convening authority solely pursuant to the Secretary of the Navy's statutory authority under Article 23(a)(7), UCMJ, 10 U.S.C. § 823(a)(7) (1970). It then observed that under Article 23(a)(7) only commanding officers who are "empowered by the Secretary concerned" can convene special courts-martial, and interpreted this language to mean that the granting of convening authority under 23(a)(7) could only be effective if that power was personally conferred by the Secretary himself.
Under this view of the statute, the conferral of convening authority upon the Commanding Officer of Student Company under the procedure set forth in section 0103b(5), JAG Manual, became suspect since he did not receive his authority directly from the Secretary. Instead, the Secretary conferred convening authority upon the commanding officers of all commands designated as "separate or detached" by a flag or general officer
The court felt that under this two-step procedure, the Secretary had, in effect, delegated his power to grant convening authority under Article 23(a)(7) to the general officers that designated units as "separate or detached." As a result, the court concluded that conferral of that power on the Commanding Officer of Student Company was invalid and that courts-martial convened by commanders operating under authority conveyed by the two-step procedure set out in section 0103b(5), JAG Manual, were void.
The appellants, in the present case, present two arguments to support their claim that this decision in Greenwell has retroactive effect. Their first claim is that the parties to this case have already litigated the issue before the United States Court of Military Appeals and that that court ruled that Greenwell was retroactive. Thus, they contend that the appellees are barred from relitigating the issue under the doctrine of collateral estoppel. Their second claim is that Greenwell is retroactive in any case under the relevant judicial tests.
The appellants' collateral estoppel claim rests upon the decision of the Court of Military Appeals in Ferry v. United States, 22 U.S.C.M.A. 339 (1973). In that case, the government, by certificate of the Judge Advocate General of the Navy, initiated an appeal to the highest military court in a case involving a member of the plaintiff class. The defendant Ferry had been convicted of a crime and at the trial's sentence proceedings the government had sought to have a prior conviction introduced. This request was denied because the prior conviction was rendered by a special court martial convened by a commander who had received his convening authority under the procedure subsequently ruled improper in Greenwell.
The government, in its appeal in Ferry, contended that this prior conviction was not in any way affected by Greenwell because it had been completed before the Greenwell decision was handed down. Thus, the question certified to the Court of Military Appeals read as follows:
We agree with the appellant when he suggests that the retroactivity issue presented in the instant case was also squarely presented to the court in Ferry. However, this fact alone does not make collateral estoppel operative since that doctrine only precludes "the relitigation of issues actually decided in former judicial proceedings." Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, 844 (3d Cir.1974) (emphasis added); accord, Blonder Tongue Laboratories, Inc. v. University Foundation, 402 U.S. 313, 323, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); Lynne Carol Fashions, Inc. v. Cranston Print Works Co., 453 F.2d 1177, 1182 (3d Cir.1972).
In Ferry, the actual decision of the court did not reach the question certified to the court. Instead, Judge Quinn, writing the opinion of the court, framed his decision as follows:
Thus, he specifically limited his holding to the facts presented in that case and refrained from deciding the broad question presented by the litigants.
When we look to the merits of the retroactivity issue, we are faced at the outset with a threshold requirement that must be met before a limitation on the retroactivity effect of a decision can even be considered. In Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), the Supreme Court indicated that,
Appellant contends that this threshold requirement is not met. We cannot agree. While no past precedent was overruled by Greenwell, we feel the case did decide "an issue of first impression whose resolution was not clearly foreshadowed" so that it falls within the second part of the test laid out in Chevron Oil.
The only case we are referred to that arguably touched on the issue in Greenwell before that case was decided is United States v. Ortiz, 15 U.S.C.M.A. 505 (1965), petition for reconsideration denied, 16 U.S.C.M.A. 127 (1966). In that case, as in Greenwell, the legality of the conveyance of special court-martial convening authority to a company commander under section 0103b(5), JAG Manual, was under review. However, at the time of the Ortiz decision, section 0103b(5), JAG Manual, was written in a way that made it unclear whether that section conferred the special court-martial convening authority enumerated in Article 23(a)(6), UCMJ, or the authority enumerated in Article 23(a)(7).
By first interpreting section 0103b(5), JAG Manual, in this way, the court was able to limit itself to a single statutory question; that is, the validity of section 0103b(5), JAG Manual, as a conveyance of Article 23(a)(6) authority. By the time the Greenwell case arose, however, section 0103b(5), JAG Manual, had been re-written so that the section no longer conferred Article 23(a)(6) convening authority and instead unequivocally conferred the convening authority enumerated in Article 23(a)(7). As a result, the court in that case had to decide the issue
Moreover, we cannot conclude that the Greenwell decision was "clearly foreshadowed" by the decision in Ortiz. Indeed, the court in Ortiz closed its opinion denying the government's petition for reconsideration with the following statement:
Thus, the decision in Ortiz did not clearly foreshadow the narrow reading of Article 23(a)(7) announced in Greenwell. On the contrary, it specifically affirmed the Secretary's "broad" power under that Article.
As a result, we believe that the Greenwell decision fits the second part of the Chevron Oil test. It decided "an issue of first impression whose resolution was not clearly foreshadowed." 404 U.S. at 106, 92 S.Ct. at 355. We conclude therefore that it is a decision that can properly be considered for prospective application under the relevant judicial criteria.
The next question that must be resolved is precisely what criteria should be used in order to decide whether Greenwell is to be given prospective or retroactive effect. The government assumes that the relevant criteria are those set out in Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The appellants, however, strongly suggest that the rule set out in Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973) and United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971) must be applied.
In Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973), the dissenting opinion of Justice Marshall summarized the decisions relied upon by the appellants in the following way:
Appellants contend that the instant case presents an analogous situation because the Greenwell decision involved a question of jurisdiction. Thus, they conclude that the decision must be given retroactive application. Appellants summarize this position in the following way:
This argument has much to recommend it, and, in fact, resulted in a 4-4 split amongst the Justices of the Supreme Court in Gosa. However, in this Circuit, the issue is not one of first impression. In McSparran v. Weist, 402 F.2d 867 (1968), cert. denied, 395 U.S. 903, 89 S.Ct. 1739, 23 L.Ed.2d 217 (1969), Judge Freedman, speaking for the Third Circuit sitting en banc, held that a decision limiting federal diversity jurisdiction should be given prospective application only. In so holding the court stated the following:
We feel that this holding effectively precludes us from ignoring the criteria that are normally weighed in determining whether a decision should be given prospective or retroactive effect.
Appellants, however, assert (in effect) that this holding was overruled by the Supreme Court in Gosa. They reach this conclusion by adopting the following assessment of the plurality opinion in Gosa:
We cannot accept this interpretation of the plurality opinion. While it did discuss the procedural rights that were effected by the O'Callahan decision, it never denied the fact that that decision spoke to a jurisdictional issue. Thus, since there has been no determinative ruling by the Supreme Court on this question, we are bound by McSparran. As a result, we must look beyond the jurisdictional nature of Greenwell and decide the prospectivity question according to the criteria set out in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). See United States v. Zirpolo, 450 F.2d 424, 432 (3 Cir.1971).
In Stovall v. Denno the Court stated that the criteria guiding a decision on retroactivity are: "(a) the purpose to be served by the new standards; (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards." 388 U.S. at 297, 87 S.Ct. at 1970. However, the most important of these three criteria is the first one. Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969). As this court stated in United States v. Zirpolo, supra,
As a result, we begin by focusing on the purpose to be served by the rule announced in Greenwell, and asking whether it serves to enhance the reliability of the fact-finding or truth-determining process.
In Greenwell, the United States Court of Military Appeals was only concerned with the procedures used to confer convening authority upon certain commanding officers. Its purpose was never to bar these commanders from acquiring the right to convene special courts-martial because of any basic unfairness. Moreover, the Greenwell rule did not limit the Secretary's discretionary power in this area in any way; his power to confer convening authority was as great after the decision as it was before it. All that changed was the manner in which he could exercise this discretion.
Thus, the same courts-martial under the same convening authority and with the same trial procedures that took place under the old rule could have also occurred under the new rule announced in Greenwell. We conclude therefore that the Greenwell decision was only designed to conform the procedure used to confer convening authority to the literal requirements
When we turn to the other two criteria listed in Stovall v. Denno, supra, our belief that Greenwell should be given prospective effect only is further reenforced. There can be little doubt that there was significant reliance by the "law enforcement authorities" upon the pre-Greenwell interpretation of Article 23(a)(7). That interpretation provided one of the statutory bases for the promulgation of section 0103b(5), JAG Manual,
The second category includes all defendants that can be retried. For this group the more common effects on the administration of justice would come into play and would be accentuated by the military context that surrounds each of the offenses charged. As the appellee notes:
Thus, when the Stovall v. Denno criteria are considered the conclusion we reach is that Greenwell should only be given prospective effect. We therefore will affirm the district court's order granting summary judgment to the defendants.
Before we end our opinion, we must finally deal with two issues raised by appellants concerning the district court's final definition of the plaintiff class.
As we understand the district court, its intent in so limiting the class was to restrict it to those individuals who were convicted by courts-martial convened by commanders given convening authority under 0103b(5) when that section was, in fact, conferring this authority pursuant to Article 23(a)(7), UCMJ. We feel that such an order was within the discretion of the district court, see Katz v. Carte Blanche Corp., 496 F.2d 747, 757 (3d Cir.1974), and should be affirmed.
However, we note that this class probably does not include all persons tried by special courts-martial convened pursuant to section 0103b(5), JAG Manual, from October 29, 1965 — i. e., from the date of the decision of the United States Court of Military Appeals in United States v. Ortiz, supra. It is true that it was as a direct result of the Ortiz decision that section 0103b(5), JAG Manual, was amended so that it effectively conferred convening authority pursuant to Article 23(a)(7). Nonetheless, we assume that there was some time lag between the Ortiz decision and the effective date of the amendment to section 0103b(5), JAG Manual, that was made in response to it. Thus, we will remand the case to the district court so that its order defining the class can be altered to reflect what appears to be its true intent.
The appellants' second class action claim is that the district court erred
However, the effect of its decision was only to narrow the remedies available to the plaintiff class, if victorious. It did not result in any relevant narrowing of the underlying cause of action. As a result, since the plaintiff is not victorious under our decision in any event, our review of this issue would serve no useful purpose. Accordingly, we reach no final judgment on the validity of the district court's decision on this matter.
The case will be remanded so that the district court can reconsider its order defining the plaintiff class. In all other respects, the judgment of the district court will be affirmed.
ADAMS, Circuit Judge (concurring):
While I concur in the judgment of the Court, I reach such result by a different path than that trod by the majority. Thus it would appear appropriate to set forth my own views dealing with the resolution of the thorny issue now before us.
Plaintiffs here seek to have the holding of the United States Court of Military Appeals in United States v. Greenwell, 19 U.S.C.M.A. 460 (1970), made broadly retroactive. They urge that all courts-martial conducted under the procedure disapproved in Greenwell be declared void ab initio, that all records resulting from those courts-martial be expunged, and that all back pay and other forfeitures flowing from sentences under those proceedings be ordered paid to the servicemen involved. This result follows inexorably, it is contended, because of the failure of the procedure, here dictated by the regulations, to conform to the statute creating special court-martial jurisdiction.
Certain salient facts are undisputed: The commander of any detached command may convene a special court-martial. Uniform Code of Military Justice, 10 U.S.C. § 823(a) (1959). The Secretary of the Navy has the power to designate commands as separate and detached for the purpose of establishing special court-martial jurisdiction. United States v. Greenwell, supra; United States v. Ortiz, 15 U.S.C.M.A. 505 (1965). Further, such designations may be made by the Secretary en bloc.
The Court of Military Appeals found that in promulgating section 0103b(5) of the JAG Manual,
In essence, then, the invalidity of courts-martial convened pursuant to section 0103b(5) lies in the administrative failure of the Secretary of the Navy personally to identify commands as "separate and detached," so that such commands, in turn, would be enabled to convene courts-martial.
Plaintiffs urge that, for want of this personal designation by the Secretary, verdicts rendered by all special courts-martial not so designated are required to be overturned for all purposes for want of jurisdiction from the outset. I am unable to subscribe to such a mechanical
The situation we are asked to pass on here is somewhat anomalous. While criminal convictions lie at the root of the matter, no further incarceration is imposed,
While it is unlikely that plaintiffs are entitled to rely on the relaxed finality rules of habeas,
I conclude that, viewed either as a collateral attack on a civil judgment or from the vantage of a habeas proceeding, plaintiffs cannot prevail. From the perspective of civil litigation, relief is foreclosed by principles of res judicata or collateral estoppel. But even assuming arguendo that this case is controlled by habeas corpus retroactivity doctrines, it would appear, first, that a finding of retroactivity is not required by precedent, but that a balancing process must be employed to reach a reasoned result; and, second, under such process, and in the context here presented, a broad retroactive application of Greenwell would not comport with the precedents and philosophy underlying the retroactivity doctrine.
Accordingly, it is appropriate to deal with the rules applicable to collateral attack, first in the civil field and then in the criminal field.
I. Civil, or Non-Habeas Corpus, Model of Collateral Attack on a Final Judgment
Were the plaintiffs considered subject to applicable — non-habeas — rules of res judicata, their collateral attack could not succeed, despite the allegation of defective jurisdiction in the first tribunal.
Taken alone, policies dictating vigilance to the proper exercise of jurisdictional authority might suggest such a result. But once a judgment has become final, such policies collide with the well-respected and forceful precepts favoring repose and ultimate finality to litigation.
The validity of the statute might have been raised by the parties in the original debt readjustment suit, but it was not. Thus, the Court held that principles of res judicata concluded issues that could have been asserted as well as those actually litigated.
According to the Supreme Court, no exception to res judicata was warranted in Chicot County, notwithstanding a later finding that the district court's exercise of jurisdiction was based on an unconstitutional statute. Despite the jurisdictional defect, the "parties [had been] brought before [the court] in accordance with the requirements of due process * * *." 308 U.S. at 376, 60 S.Ct. at 319.
The jurisdictional defect here is less far-reaching than that asserted in Chicot County.
Under Chicot County the crucial element that would bar collateral attack on a judgment seems to be whether the party was afforded an opportunity to litigate.
If plaintiffs are considered on the same footing as those who attack a civil judgment collaterally, in the circumstances here there is no persuasive authority to support voiding the original judgments. Under the view that only habeas actions are relieved of the finality burden, res judicata mandates the
II. The Habeas Corpus Model of Collateral Attack
The judgments here attacked are criminal convictions; therefore plaintiffs may argue that, although they are not in prison, this collateral proceeding has at stake certain aspects comparable to those determined in a habeas petition.
1. Factors Advanced in Support of Requiring Retroactivity.
In criminal proceedings collateral relief has traditionally been available through habeas corpus,
Plaintiffs contend that, even though the issue of retroactivity is generally determined by a process of deliberation or balancing, three circumstances present here would in any event require full retroactivity. According to plaintiffs, these three considerations are: (a) that no defect in jurisdiction may be regarded as merely statutory, but must necessarily be cast as a due process question, and thus a holding of non-retroactivity is impermissible; (b) that any decision rendering a military conviction a nullity must perforce be fully retroactive because of the narrowly drawn jurisdiction of the military; and (c) that a decision either is retroactive or is not, and the holding in United States v. Ferry, 22 USCMA 339 (1973), that pre-Greenwell convictions may not be used to enhance punishment in a subsequent court-martial, must either be overruled or extended comprehensively to encompass full retroactivity.
Each of these arguments, if successful, would cut short further analysis and would, by the force of its own logic, require a holding that Greenwell is necessarily fully retroactive. Thus, it is essential
(a) Jurisdictional Defect
Collateral attacks on jurisdictional failures in criminal cases have been adjudicated only infrequently. Although the general rule in the civil area is that res judicata and interest in repose foreclose collateral attack on a final judgment even where jurisdictional deficiencies are alleged,
The advisability of retroactive application of the jurisdictional Greenwell ruling must thus be weighed. Although strong precedent exists for declaring nonretroactive an interpretation of criminal law that narrows a court's jurisdiction, prior case law is not conclusive.
The question of the retroactive application of a narrowing jurisdictional interpretation of the criminal contempt statute was raised in Warring v. Colpoys.
Apparently, the possibility of applying the McSparran holding retroactively to upset judgments that were then final was not even considered. Although such final judgments rested on flawed federal jurisdiction, they stood unchallenged.
While want of jurisdiction is an elemental ground for the grant of habeas relief, the existence of a jurisdictional defect of limited proportions does not, as plaintiffs would have it, constrain this Court to find that the defect applies retroactively. To the contrary, courts have used the same weighing process to determine retroactive application of new rules where jurisdictional questions arose as in other situations, constitutional or statutory, where a claim of retroactivity was presented.
(b) Military Jurisdiction
Plaintiffs point out that the Supreme Court has reiterated the proposition that military jurisdiction is limited to that provided by statute and limited to that permitted by the Constitution. The Court has expressed the standard for the proper exercise of jurisdiction by military tribunals as "the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service."
Based on this, plaintiffs argue that the failure to follow a statute's precise prescription makes a military judgment vulnerable. As to an initial challenge to a questionable practice, admittedly no fair reading of the Supreme Court cases could support a different result. Runkle v. United States
Military courts are not unique in having their jurisdiction curtailed to fit the contours of statutes and the Constitution. The jurisdictional reach of other courts in other areas is also narrowly circumscribed. In Chicot County, supra, for example, the scope of bankruptcy jurisdiction of the federal courts was at issue. Responding to the assertion that a prior judgment of the district court was void because dependent on an improper exercise of jurisdiction under the statute, the Supreme Court stated:
The distinctive flavor of judicial opinions narrowing military jurisdiction proceeds from an awareness of the underlying constitutional privileges of which a citizen is deprived before a military tribunal, e. g., indictment by grand jury, trial by petit jury, more vigorous interpretation of the confrontation clause.
However, the appellants in their courts-martial were not denied any constitutional protections to which they were entitled. It is not suggested that holding Greenwell retroactive would permit a fairer trial in a differently constituted tribunal or, indeed, a trial different in any regard. Thus, those policies which might dictate a jurisdictional spear thrusting back to open final cases would not appear to have persuasive power in this case. Whatever new trials might occur if retroactivity were mandated would merely replicate procedures undergone once before.
Even where important constitutional considerations are present, retroactivity is not foreordained where a ruling limits the scope of military jurisdiction. In the recent case of Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973), the retroactivity of O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), was at issue. O'Callahan had held that military jurisdiction did not encompass the power to try servicemen in peacetime for non-service related offenses. Gosa was in custody after a court-martial and sought habeas relief. A petitioner in a companion case, Flemings, had already been released and was seeking correction of his military records. Arguing that their constitutional rights under the Fifth and Sixth Amendments had been curtailed by their military trials, the petitioners in Gosa contended that the O'Callahan rule should be retroactive.
Despite the fact that the Supreme Court had held in O'Callahan that trials by military courts of non-service related offenses in peacetime were invalid because such trials were beyond the constitutional limits of military jurisdiction, a sharply divided court in Gosa refused to grant relief.
Justice Blackmun then used the Linkletter-Stovall approach, and held that, on balance, retroactivity was not warranted. In his analysis, Justice Blackmun looked to the likelihood of unfairness in result and concluded that:
Justice Marshall wrote in dissent that O'Callahan presented a forceful case for retroactive application, because it
While the precise application of Gosa to our case is uncertain, the result of Gosa is manifest. Based on considerations either of non-retroactivity or res judicata, a majority of the Supreme Court held that Gosa would remain in prison despite the constitutional short-comings of his court-martial. The circumstances of the present case appear to lead, in effect, to the same conclusion. Indeed, unlike Gosa, plaintiffs here have no grievances of constitutional dimension, and they are not presently imprisoned. It would thus appear that even the Justices who believed that O'Callahan warranted retroactive application might conclude differently in the present case, where "the constitutional limits of the military's adjudicatory power" are not at issue. 413 U.S. at 694, 93 S.Ct. at 2943.
The only consideration advanced to support an outcome here different from that in Gosa is that the flaw in the procedure followed prior to Greenwell lay in the area of "jurisdiction in its classic form." 413 U.S. at 693, 93 S.Ct. 2926. Yet, the invocation of jurisdictional deficiency does not end the matter. At least two courts of appeals had considered the retroactivity of O'Callahan prior to Gosa. Each concluded that O'Callahan was indeed a jurisdictional limitation on the court's power. Nonetheless, each court declined to apply O'Callahan retroactively.
Were this Court to hold Greenwell broadly retroactive, the result would indeed be incongruous. Gosa and those like him, convicted before O'Callahan and denied fundamental constitutional rights, would remain in prison. In contrast, those whose courts-martial denied them no constitutional rights, whose trials would be virtually identical regardless of whether the court-martial authorization were proper or not, but whose trials were improperly convened under the regulation struck down in Greenwell, would enjoy a lump sum grant of back pay, effective immunity from retrial,
(c) The Impact of Ferry
As to trials conducted after Greenwell, the Court of Military Appeals in United States v. Ferry stated:
Plaintiffs here assert that Greenwell, retroactive to the extent it applies to the augmentation of sentence, must necessarily be extended further, to apply consistently and fully to all possible retroactivity issues. Retroactivity doctrines, it is maintained, are cumbersome and difficult of application without adding the further dimension of selective retroactivity. Plaintiffs urge that once the issue of retroactivity of a new ruling is determined, the consequences should and do extend to all related situations.
Yet it is clear that the doctrine need not be applied with such persistence as to expunge every potential utilization of an improper procedure. For example, in United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), the Supreme Court announced the general retroactivity of its decisions in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), holding prosecutions under gambling regulation laws impermissible where a challenge to filing wagering registration forms was bottomed on the Fifth Amendment right against self-incrimination. However, on the very day Marchetti and Grosso were held retroactive, the Supreme Court announced in Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971), that use of these same forms, once completed, to procure a tax evasion conviction was not a basis for retroactive application of the Marchetti/Grosso rule. Justice White, in a plurality opinion joined by the Chief Justice and Justices Stewart and Blackmun, stated, "Mackey would have a significant claim only if Marchetti and Grosso must be given full retroactive sweep." 401 U.S. at 674, 91 S.Ct. at 1164. Justice White found that neither the purpose of the Marchetti/Grosso rule nor the reliability of the trial result mandated full retroactivity in Mackey.
The implications of Ferry must be measured against the example furnished by Mackey. In Ferry, while meticulously limiting the scope of its holding, the Court of Military Appeals acted in conformity with the Greenwell rationale.
But, depending on the purpose to which the old conviction is put, giving it full effect or giving it no effect might be in order. Ferry and its philosophical underpinnings do not, and should not, bind the courts to all-out retrospectivity with its broad ramifications.
It is also to be noted that in Ferry the question of the continuing effect of a pre-Greenwell conviction arose in the context of a direct appeal, rather than as here in a collateral proceeding. In such context, Ferry might be seen as standing for the proposition that to give a serviceman increased punishment now, based on a court-martial which could not be convened today, would be to continue the effect of a flawed practice. Such use of a pre-Greenwell conviction would surpass any interest in finality and would permit subsequent detriment to a defendant.
2. Habeas Corpus and Retroactivity: The Context of the Present Case.
Since it is determined that, assuming collateral attack to be permissible, automatic retroactivity is not appropriate, a weighing process must be employed. Beginning a decade ago, the Supreme Court proceeded to fashion a test to determine the advisability of non-retroactive application of new adjudications of constitutional dimension in criminal cases.
In considering the present action in the context of habeas corpus principles, one further observation is significant: the non-constitutional nature of the defect struck down in Greenwell. Not every error of law can be raised in a collateral proceeding challenging the validity of a conviction. Last term, in Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974), the Supreme Court held that non-constitutional claims can be asserted in collateral attacks on criminal convictions under 28 U.S.C. § 2255. However, the Court added that the scope of relief is more narrowly circumscribed where statutory, as opposed to constitutional, claims are presented. The Court made clear that habeas may not be used as a substitute for appeal.
In general, no forum is provided by section 2255 to review non-constitutional errors of law not pressed on appeal, Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1949), even though "failure to take a direct appeal from conviction does not deprive a federal post-conviction court of power to adjudicate the merits of constitutional claims." Kaufman v. United States, 394 U.S. 217, 220, n. 3, 89 S.Ct. 1068, 1071, 22 L.Ed.2d 227 (1969). Indeed, total failure to raise a constitutional question at trial does not foreclose collateral habeas relief. Kaufman, supra.
Although the present case is not, as we have indicated, governed by the doctrines surrounding habeas corpus, their guidance is instructive. It would appear that, in general, federal statutory claims should be presented at trial to be available as grounds for collateral attack.
The plaintiffs assert here that it is imperative that a statutory construction by the Court of Military Appeals be applied retroactively. Yet the validity of the statute itself is not challenged in any regard. Nor is the power of the armed forces to try servicemen for the offenses in question assailed. Indeed, it is conceded that the offenses were properly triable by the military.
Also, no one questioned that the special court-martial was the proper forum in which to bring these servicemen to account. Nor is it claimed that the composition of the actual court-martial panel was improper or that the members were not qualified to preside over the individuals and offenses in question. And finally, it is not suggested that the appointment of the court-martial was by a person who, had he been personally authorized by the Secretary, could not have appointed them.
Rather, the narrow statutory decision at the core of the present controversy is that the authorization of "separate and detached," insofar as it carried the concomitant power to appoint the court-martial tribunal, was improperly communicated by the Secretary of the Navy. The Secretary's indirect appointment, pursuant to section 0103b(5), was found to be an improper delegation of his authority as civilian head of the Navy to inferior military personnel. Far from announcing a change of constitutional magnitude that might cast doubt on the fairness of the procedure or the validity of the results in trials conducted under the old rule, Greenwell requires, in effect, the rerouting of authorizing papers via the Secretary when new disciplinary commands are being established.
3. Retroactivity: The Balance.
Assuming the rules of habeas are applicable here, and considering that both case law and logic permit limited retroactivity, it is appropriate to turn to a determination of the extent of the retroactivity of the holding in Greenwell
This Circuit stated in United States v. Zirpolo that "[g]enerally, rulings not primarily designed to enhance the reliability of the fact-finding or truth-determining process have not been applied retroactively."
The rationale of the Greenwell rule would not be served by broad retroactive application.
While prospective implementation of the Greenwell rule will advance the desired effect, broad application of the rule to the past, voiding all convictions, and requiring repayment of the fines and forfeitures pursuant thereto, would have no impact on furthering the results intended by Congress. All past abuses terminated with Greenwell. Prior designations
Under Linkletter-Stovall, a court must consider the impact of a holding of retroactivity both in terms of its practical effects and the fairness of the result obtained. Were Greenwell held fully retroactive, the administrative burden would be considerable. Searching and correcting all applicable records would absorb substantial personnel time, and there would be problems regarding not only back pay but retirement status, veterans' benefits, and pensions.
Generally, once a decision has been declared fully retroactive, convictions are overturned, records are expunged, and the defendants become subject to retrial under a proper procedure. No retrial would be possible here, however, because in almost all cases, including the two named plaintiffs in this action, those affected are no longer in the military and, persons who have left the military may no longer be subjected to military discipline.
The net result of according complete retroactivity to the Greenwell rule, especially in this case, would be to afford a windfall to the plaintiffs. Such would be unwarranted under the generally acknowledged functions to be served by making judicial determinations retroactive or by the purpose of the Greenwell holding itself.
Thus, were full retroactivity established here, the principal results would be that a material administrative disruption would be entailed, and benefits would inure to a class that concededly has committed violations of military law.
Justice Cardozo reminded us that "the inn that shelters for the night is not the journey's end." Rather, the law which is announced today must be ready for tommorrow. If we write too broadly, overturning final judgments in cases like the present one, if we apply black-letter law where circumstances require discrete case-by-case treatment, we shall place ourselves in a legal straitjacket, and be
Because the res judicata effects of a final judgment are conclusive in the context of a civil action, and because even under a habeas approach retroactivity is not warranted, at least on the basis of the factual situation here, the requested relief may not appropriately be granted to plaintiffs.
GARTH, Circuit Judge (dissenting).
I am obliged to dissent from Part II of the majority opinion. Like Judge Hunter, I believe that there is much "to recommend" the approach that accords full retroactivity to decisions involving the adjudicatory powers of tribunals. Unlike Judge Hunter, I do not believe that McSparran v. Weist
A. Retroactivity and Jurisdiction
As a general rule of jurisprudence, judicial decisions apply retroactively. See Comment, Linkletter, Shott and the Retroactivity Problem in Escobedo, 64 Mich.L.Rev. 832, 834 (1966). Nevertheless, in recent years the "Austinian" method of restricting a decision to prospective effect has come into vogue, as the Supreme Court has striven to limit the disruptions caused by reforms in the area of criminal procedure. See, e. g., Linkletter v. Walker, 381 U.S. 618, 622-623, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) (denying complete retroactivity to Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081); Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966) (denying complete retroactivity to Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) (denying complete retroactivity to Miranda and Escobedo); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (denying complete retroactivity to Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) (denying complete retroactivity to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178). In Linkletter and its progeny, the Supreme Court developed a practical calculus for determining retroactivity-prospectivity issues. Under this approach, a court must evaluate (a) the purpose of the new rule, (b) the extent of reliance upon the old rule, and (c) the effect of applying the new rules retroactively. See Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). This calculus has been applied in this Circuit
It is important to note, however, that the Linkletter-Stovall calculus is neither a panacea nor a solution to all retroactivity problems. In Robinson v. Neil, 409 U.S. 505, 508, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973), the Supreme Court explained that the analysis developed in Linkletter and its progeny pertained to the "use of evidence" and to "particular mode[s] of trial." Decisions that do not involve such procedural matters "cannot, for retroactivity purposes, be lumped conveniently together in terms of analysis." 409 U.S. at 508, 93 S.Ct. at 878.
The instant case involves no such procedural matters. At issue here is the retroactivity of a decision (United States v. Greenwell) which declared a particular type of tribunal incompetent to conduct special courts-martial. The Court of Military Appeals did not rule upon the admissibility of evidence at Greenwell's hearing. Nor did the Court of Military Appeals enter into a discussion of a recommended mode of trial. Instead, as the majority opinion here explains, the Court of Military Appeals was concerned with the illegal exercise of judicial power
In my view, decisions concerning the power of a court to adjudicate
The Supreme Court has, on three separate occasions, indicated at least some support for the proposition that jurisdictional decisions should normally be given full retroactive effect. In United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), the government initiated prosecution for forfeiture of moneys used in gambling operations, pursuant to 26 U.S.C. § 7302 (1967). After commencement of the litigation, the Supreme Court invalidated the statutes which formed the basis for the forfeiture on the grounds that the statutes infringed upon the Fifth Amendment privilege against compulsory self-incrimination. See Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968). The Court held in United States Coin & Currency that Grosso and Marchetti were to be applied retroactively. This decision was reached without reference to the Linkletter-Stovall calculus, Justice Harlan explaining that:
401 U.S. at 723, 91 S.Ct. at 1045. Admittedly, Justice Harlan makes no reference to the concept of subject matter jurisdiction. Nevertheless, it is apparent that the Court predicated its retroactivity holding upon the fact that courts are without power to punish the conduct proscribed by the unconstitutional gambling statutes. Robinson v. Neil, thoroughly discussed by the majority, similarly holds retroactive a decision (Waller v. Florida)
A case more directly on point is Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973). At issue in Gosa was the retroactivity of O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969) (servicemen charged with "nonservice-connected" felonies are entitled to indictment by a grand jury and a trial by jury in a civilian court). The Supreme Court, reviewing decisions of the Second
413 U.S. at 701-702, 93 S.Ct. at. 2947.
In the instant case, the majority minimizes the relevance of Robinson, United States Coin & Currency, and Gosa. The first two cases are distinguished on the grounds that Waller, Marchetti and Grosso (but not Greenwell) "had the effect of ending the defendants' criminal liability." Opinion at 625, n. 6. I regard the fact that Greenwell might be exposed to further proceedings as a difference, but not a meaningful distinction. As Justice Marshall suggested in his Gosa dissent, this difference relates merely to the "impediment to trial" at issue in the various cases. 413 U.S. at 702-703, 93 S.Ct. 2926. Regardless of whether or not there could be further prosecution, in each case (including Greenwell), it was determined in each that the nisi prius court lacked the power to adjudicate the issues raised in the pleadings.
The majority deprecates the relevance of Gosa by concluding that the Supreme Court split 4-4 on the issue of whether jurisdictional decisions should be accorded retroactivity (without concern for the Linkletter-Stovall analysis). I read Gosa differently. I count four Justices (Marshall, Brennan, Stewart and Rehnquist) who have concluded that jurisdictional decisions should be applied retroactively (see n. 8, supra). I can find no Justice supporting a contrary conclusion; i. e. none of the opinions filed in Gosa take the view that the retroactivity of jurisdictional decisions must be analyzed in terms of the Linkletter-Stovall calculus. The four Justices who voted in favor of prospectivity did so not as a result of the jurisdictional aspects of O'Callahan, but rather as a result of their characterization of that case as one dealing with procedure.
I am convinced by Robinson and United States Coin & Currency that decisions involving the adjudicatory power of courts should normally be accorded full retroactivity. My analysis of Gosa v. Mayden leads me to believe that there is a strong likelihood that the Supreme Court would expressly so hold if the issue were directly before it. Inasmuch as Greenwell focused upon the adjudicatory power of a particular type of military tribunal, I would therefore apply it retroactively in the instant case.
B. McSparran and Retroactivity
As the majority quite properly points out, there is one major obstacle to the analysis set forth above. In McSparran v. Weist, 402 F.2d 867, 877 (3d Cir.1968), cert. denied, 395 U.S. 903, 89 S.Ct. 1739, 23 L.Ed.2d 217 (1969), we stated in the course of an opinion limiting a decision to prospective effect:
The majority here concluded that this passage precludes this court from ignoring the Linkletter-Stovall calculus. I disagree.
I find McSparran to be distinguishable and therefore do not see it as a bar to the above analysis. In McSparran, this Court was required to determine whether the appointment of a "straw" guardian solely for the purpose of creating diversity jurisdiction amounted to collusion under 28 U.S.C. § 1359.
I do concede that the passage quoted from McSparran does not expressly suggest the limitations which I have proposed. If the majority is correct in concluding that McSparran demands application of the Linkletter-Stovall calculus. I believe that it is time to reevaluate McSparran's retroactivity analysis in light of the Supreme Court's subsequent conclusions in Robinson and United States Coin & Currency and in light of Justice Marshall's uncontroverted dissent in Gosa v. Mayden.
Accordingly, I dissent from that portion of Part II of the majority opinion which opts for utilization of the Linkletter-Stovall calculus. I would reverse the District Court on the grounds that Greenwell, as a decision relating to adjudicatory power, must be applied retroactively.
The first contention was exhaustively discussed by the district court and we reject the claim based on its decision. Opinion of the district court, 365 F.Supp. 328, 332-336 (1973). The second claim is without merit and will be rejected without further discussion.
Finally, we should note the appellees' contention that the district court erred in finding that it had mandamus jurisdiction. Since the government concedes that there is Tucker Act jurisdiction, Brief of Appellee at 24, we must reach the merits of the appeal in any case. As a result, since we ultimately reject the plaintiffs' underlying cause of action, there is no need to finally decide whether mandamus jurisdiction exists since a decision on this question would do no more than expand or narrow the remedies available to the plaintiffs if they prevailed on the merits.
However, in Greenwell the question was not whether the Secretary could delegate his authority. The only issue was whether the two-step process set out in section 0103b(5), JAG Manual, did, in fact, constitute a delegation. Thus, we cannot accept the suggestion that the Secretary's letter clearly foreshadowed the decision in Greenwell.
In this case, however, the facts are different. The defendants whose convictions would be invalidated under the Greenwell rule are still theoretically liable for their criminal act. The Greenwell decision only dealt with which court could try the offense and never suggested that the offense could not be tried at all. Thus, the decisions in Robinson v. Neil, supra, and United States v. United States Coin & Currency, supra, appear to be distinguishable.
In determining that an improperly convened military court is without jurisdiction, Greenwell's purpose was to conform the procedure used in conferring convening authority to the requirements of the statute. Our discussion of the purpose to be served by the new rule in Greenwell deals with the first requirement of Stovall. It does not imply that Greenwell dealt with non-jurisdictional, "technical" errors.
Appellants, in essence, make this argument when they contend that the purpose of Article 23(a)(7) was to prevent the Secretary from losing control of his power to confer convening authority. They suggest that this loss of control was considered detrimental because it would result in a conferral of convening authority on the smallest units in the chain of command and that this would undermine the court-martial process in the following ways: 1) it would deprive the accused of the exercise of prosecutorial discretion by a mature and detached commander; 2) it would increase the risk of command influence; and 3) it would undercut the principle of civilian control of the military.
We do not find this argument persuasive for several reasons. First, we are not referred to any legislative history that suggests that Congress passed Article 23(a)(7) for the reasons outlined by the appellants (nor have we been able to find any ourselves). It might be true that the purpose of Article 23(a)(7) was to prevent the conferral of convening authority upon small units and it might also be true that this was feared for the reasons suggested by the plaintiffs. However, we are cited to nothing that establishes these as facts.
Second, even if we accept plaintiffs' speculation on the purposes for Article 23(a)(7), we note that a procedure that provides civilian checks on the military, and seeks to control prosecutorial discretion is not designed to increase the reliability of the truth-determining process. We feel this is self-evident with the former objective. With regard to the latter, we observe that the decision to prosecute only decides who is subject to the truth-determining procedures and in no way affects those procedures themselves.
As a result, plaintiffs' theory of the purposes behind Article 23(a)(7) cannot promote their position on retroactivity unless they are correct in suggesting that Congress wanted to keep convening authority from the smallest units because in these units the possibility of command influence was greatest. However, this hypothesis is undercut by the plaintiffs' own suggestion that there are two other plausible purposes that might underly this legislative goal. Further, it is also undercut by the language of Article 23(a)(7) itself since that section does not bar the conferral of convening authority upon small units but instead only requires specific designation by the Secretary. In our view, if Congress was truly motivated by the desire to eliminate the increased "command influence" that is presumably inherent in the exercise of convening authority by the commanders of small units, they would have simply barred its exercise by commanders below a certain level. This was not done by Article 23(a)(7). In fact, that section actually facilitated the exercise of convening authority by these commanders by making that authority available to all commanders at the discretion of the Secretary.
In view of all of these considerations, we cannot accept this argument.
Among the elements comprising the flexible jurisdictional fabric, it would appear that some components are not indispensable. For example, not every failure of jurisdiction requires a court to stay its hand, even in the case before it. In McSparran v. Weist, 402 F.2d 867 (3d Cir.1968), access to the federal court was circumscribed by tightening the diversity requirements. Nonetheless, the more generous older rule was applied, on equitable grounds, to the case before the court. This is similar to the jurisdictional holding in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), where a shorter statute of limitations period was applied only prospectively. See also, Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969).
Nor is every order based on an unsustained assertion of jurisdiction void and unenforceable. In United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947), the Court stated at pages 289-295, 67 S.Ct. 677 that even where a district court had no jurisdiction over the subject matter because of the Norris-LaGuardia Act, under certain circumstances an injunction might issue pending a determination of the jurisdictional question, and noncompliance with the injunction would appropriately be punished as contempt of court.
The increased liberality accorded the scope of habeas in Warring was attributed to the question of personal liberty involved there, an issue not present in the case before the Court here. See supra.
In Gosa, while conceding that O'Callahan limited the power of the judicial forum, the Fifth Circuit denied O'Callahan retroactive application, holding "there is no arbitrary or simplistic basis for deciding retroactivity. The heart of the doctrine is a reasoned application of new constitutional precedent." 450 F.2d at 759 (footnote deleted).
While I respectfully differ with Justice Douglas' application of the res judicata doctrine in a habeas corpus case, the application of res judicata in the case sub judice might be dispositive. See Part I supra.
It has been suggested in dictum that non-constitutional jurisdictional defects may be raised for the first time in habeas proceedings. The fact that collateral attack is not barred does not, however, determine the outcome on the merits. See, Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); Sunal v. Large, 332 U.S. 174, 179-181, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947).
186 U.S. at 64, 22 S.Ct. at 792.
458 F.2d 544 at 550-551.
With regard to No. 71-1398 (Second Circuit), the 7-2 reversal was achieved as a result of the following split:
413 U.S. at 693-694, 93 S.Ct. at 2943. The majority opinion here rejects the suggestion that Justice Blackmun implicitly agreed that jurisdictional decisions are to be applied retroactively. The majority notes that the plurality opinion "never denied the fact that [O'Callahan] spoke to a jurisdictional issue." Opinion at 625. While this may be true, the majority actually begs the question. There is nothing in the plurality opinion that would prevent its author from adopting Justice Marshall's position in a case that Justice Blackmun construed as involving "pure" jurisdiction.