United States of America Ex Rel. Dominic Guagliardo v. Neil H. McElroy Secretary of Defense, Department of Defense

259 F.2d 927, 104 U.S. App. D.C. 112, 1958 U.S. App. LEXIS 5979

• Court: Court of Appeals for the D.C. Circuit
• Decided: September 12, 1958
• Docket: 14304
• Status: Published

Opinions

FAHY, Circuit Judge.

Appellant was a civil service employee of the Department of the Air Force of the United States, employed as an electrical lineman at the Nouasseur Air Depot near Casablanca, Morocco. His duties were to maintain and repair airfield lighting and to inspect and repair electrical conduits, transformers, lights, controls, ducts, and manholes. He lived with his wife off the Depot, in nearby Casablanca. He was entitled to quarters allowance, mail, Commissary and Base Exchange privileges, a United States Air Force ration card, membership in the Air Force Officers Club, and medical and dental care at the Depot.

On July 18, 1957, he and two enlisted men¹ were charged with stealing certain leatherette goods and fabric material at the Depot, in violation of Art. 121, Uniform Code of Military Justice, 10 U.S.C. § 921 (Supp. V, 1958), and with conspiring to commit larceny, in violation of Art. 81, U.C.M.J., 10 U.S.C. § 881 (Supp. V, 1958). They were tried by a general court-martial and found, guilty. Appellant was sentenced to pay a fine of $1,000 and to be confined at hard labor for three years.

In due course the case reached the Board of Review in the Office of the Judge Advocate General, pursuant to Art. 66 U.C.M.J., 10 U.S.C. § 866 (Supp. V, 1958). Appellant then petitioned the United States District Court for the District of Columbia for a writ of habeas corpus. He contended that the military authorities lacked jurisdiction to try him and that accordingly his confinement under the court-martial sentence was unlawful. Relief was denied by the District Court, opinion reported at 158 F.Supp. 171, followed by this appeal.²

Appellees ³ contend that the jurisdictional question is prematurely raised because appellant has not exhausted the judicial processes available to him under the Uniform Code of Military Justice. They rely upon Gusik v. Schilder, 340 U. , 71 S.Ct. 149, 95 L.Ed. 146. But that case we think is inapposite, for there court-martial jurisdiction over the accused unquestionably existed since he was a member of the United States Army. He sought to attack collaterally a court-martial judgment because of alleged errors in the court-martial proceedings, without exhausting the administrative remedies available for their correction. Here, in contrast, the question is whether appellant is subject to court-martial jurisdiction at all. Habeas corpus proceedings were used to determine such a question in Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148, and United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8.⁴ The point was not discussed, but in view of Gusik v. Schilder, supra, could not have been overlooked by the Supreme Court, especially as the Court in Reid v. Covert specifically noted that the petition was 'brought “while Mrs. Covert was being held * * * pending a proposed retrial by court-martial * * 354 U.S. at page 4, 77 S.Ct. at page 1224, 1 L.Ed.2d 1148. If appellees have no court-martial jurisdiction whatever over appellant the Great Writ is available to release him from their custody.

Appellees defend their jurisdiction solely by reason of Art. 2, U.C.M.J., 10 U.S.C. § 802 (Supp. V, 1958). This provision in terms does extend court-martial jurisdiction to appellant for the ■offense charged. The provision reads:

“The following persons are subject to this chapter [The Uniform Code of Military Justice]:

* * * * * -*

“(11) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by,

or accompanying the armed. forces outside the United States * *

Appellant’s contention is that this provision is unconstitutional as applied to him, a civilian employee, in time of peace.

The question thus raised must be decided in light of the decision of the Supreme Court in Reid v. Covert, supra. The Court there held that in a capital case the wife of a member of the armed forces, who accompanied her husband abroad and there killed him, could not be tried by court-martial — that Art. 2 subparagraph (11), supra, was unconstitutional as so applied. The basis for the decision was that the wife was entitled to a jury trial as provided by Art. Ill, § 2 of the Constitution and to the safeguards of the Fifth and Sixth Amendments.

Article III, § 2 of the Constitution provides that the trial of all crimes excepting cases of impeachment shall be by jury. The pertinent Fifth Amendment provision is that no person shall be held to answer for a capital or otherwise infamous crime unless upon presentment or indictment of a grand jury except in cases arising in the land or naval forces. The pertinent Sixth Amendment provision is that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed. None of these provisions was complied with in Reid v. Covert. And none was complied with in the present case.

Appellees point, however, as was done in Reid v. Covert, to Art. I, § 8, cl. 14, of the Constitution, which empowers Congress “to make Rules for the Government and Regulation of the land and naval Forces.” It is urged that this provision, together with the Necessary and Proper Clause of the Constitution, Art. I, § 8, el. 18, has enabled Congress to establish the court-martial jurisdiction specified in subparagraph (11) of Art. 2, U. C.M.J., supra, by carving out exceptions to the application of Art. Ill, § 2 of the Constitution and of the Fifth and Sixth Amendments. Clearly the Constitution does authorize such an exception for members of “the land and naval Forces.” But in Reid v. Covert the Chief Justice and Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice Brennan, in the opinion written by Mr. Justice Black, would not permit an exception related to the “land and naval Forces” to include civilians unless in rare and unusual circumstances; and Mr. Justice Frankfurter and Mr. Justice Harlan would not permit such an exception to include a civilian wife charged with a capital offense, though accompanying her service husband with the forces outside the United States.

The same considerations, set forth elaborately in the opinions, which thus brought agreement among a majority of the Supreme Court as to the wife in Reid V. Covert, would not permit a civilian employee in the situation of appellant to be tried by the United States by court-martial on a capital charge. He would be entitled to a civilian trial by jury. We can think of no constitutional basis for approving the court-martial of such an employee for a capital offense which would not apply equally to Mrs. Covert. Of course the case before us is not a capital one, but if Mrs. Covert or an employee such as appellant could not be tried by court-martial on a capital charge, notwithstanding the provision of the Military Code purporting to authorize such a trial, the existing congressional plan for extending court-martial jurisdiction to persons accompanying or employed by the armed forces outside the United States exceeds constitutional bounds. Congress did not exclude capital cases. The statute embraces without exception persons “employed by” the forces outside the United States and thus would deprive all civilians in that category of the right to trial by jury for any offense defined in the Military Code, capital or noncapital, and regardless of the nature of the offense or of the relation of the offense or of the employment to the security, discipline, or effectiveness of the forces. The scope of Art. Ill, § 2 of the Constitution and of the Fifth and Sixth Amendments, as expounded in Reid v. Covert, prevents such a curtailment of trial by jury and con-commitant extension of court-martial jurisdiction over civilians in time of peace.

This is not to say that legislation bringing some civilian employees within court-martial jurisdiction for some offenses would necessarily be unconstitutional. Cf. Reid v. Covert, 354 U.S. at pages 22-23, 77 S.Ct. 1222, 1 L.Ed.2d 1148. It is reasonable to assume that the fullness of the Necessary and Proper Clause, considered with the authority of Congress “to make Rules for the Government and Regulation of the land and naval Forces,” and considered also with the present and potential responsibilities, of the United States throughout the world, has not been exhausted. But Reid v. Covert plainly shows that these sources of legislative power do not sustain the all-inclusive extension of military jurisdiction over civilian employees attempted by subparagraph (11) of Art. 2 of the Military Code.

Since the intended broad sweep of sub-paragraph (11) is unconstitutional the-question arises whether the courts should rewrite the provision along narrower lines and decide the question of its validity as applied to this particular employee for this particular offense. There are numerous instances in which the Supreme Court has held that such judicial reframing of legislation should not be' attempted. Butts v. Merchants & Miners Transp. Co., 230 U.S. 126, 33 S.Ct. 964, 57 L.Ed. 1422; Howard v. Illinois. Central R. Co., (Employers’ Liability Cases) 207 U.S. 463, 496-504, 28 S.Ct. 141, 52 L.Ed. 297; Illinois Cent. R. v. McKendree, 203 U.S. 514, 515, 528-530, 27 S.Ct. 153, 51 L.Ed. 298; United States v. Ju Toy, 198 U.S. 253, 262-63, 25 S.Ct. 644, 49 L.Ed. 1040; James v. Bowman, 190 U.S. 127, 139-142, 23 S.Ct. 678, 14 L.Ed. 30; Baldwin v. Franks, 120 U.S. 678, 7 S.Ct. 763, 32 L.Ed. 766; United States v. Harris, 106 U.S. 629, 641-642, 1 S.Ct. 601, 27 L.Ed. 290; Trade Mark Cases, 100 U.S. 82, 98-99, 25 L.Ed. 550; United States v. Reese, 92 U.S. 214, 221, 23 L.Ed. 563. See, also, Carter v. Carter Coal Co., 298 U.S. 238, 312-317, 56 S.Ct. 855, 80 L.Ed. 1160; Williams v. Standard Oil Co., 278 U.S. 235, 242, 49 S.Ct. 115, 73 L.Ed. 287; Yu Cong Eng v. Trinidad, 271 U.S. 500, 518-522, 46 S.Ct. 619, 70 L.Ed. 1059; Hill v. Wallace, 259 U.S. 44, 70, 42 S.Ct. 453, 66 L.Ed. 822.

In Reese the Court said:

“We are, therefore, directly called upon to decide whether a penal statute enacted by Congress, with its limited powers, which is in general language broad enough to cover wrongful acts without as well as within the constitutional jurisdiction, can be limited by judicial construction so as to make it operate only on that which Congress may rightfully prohibit and punish. * * *

******

“To limit this statute in the manner now asked for would be to make a new law, not to enforce an old one. This is no part of our duty.

“We must, therefore, decide that Congress has not as yet provided by ‘appropriate legislation’ for the punishment of the offence charged in the indictment. * * * ”

92 U.S. at page 221, 23 L.Ed. 563.

In the Trade Mark Cases, supra, the ■same principle is stated as follows:

“[I]t is not within the judicial province to give to the words used by Congress a narrower meaning than they are manifestly intended to bear in order that crimes may be punished which are not described in language that brings them within the constitutional power of that body.”

100 U.S. at page 98, 25 L.Ed. 550.⁵

In Yu Cong Eng the opinion was by Mr. Chief Justice Taft and contains this language:

“The effect of the authorities we have quoted is clear to the point that we may not in a criminal statute reduce its generally inclusive terms so as to limit its application to only that class of cases which it was within the power of the Legislature to enact, and thus save the statute from invalidity.”

271 U.S. at page 522, 46 S.Ct. at page 624, 70 L.Ed. 1059.

The case at bar is not one where Congress has laid down a definition of jurisdiction in terms taken from the Constitution, leaving administrative agencies and the courts to apply the definition by a process of inclusion and exclusion according to the facts of particular cases, as was N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30-31, 57 S.Ct. 615, 81 L.Ed. 893.

Appellees urge, however, that since the statute contains a severability clause the doctrine of the Reese and kindred cases does not apply. Section 49(d) of the Act of August 10, 1956, Public Law 1028, 84th Cong.,⁶ 70A Stat. 640 provides :

“If a part of this Act is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of this Act is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.”

As the Supreme Court held in Williams v. Standard Oil Co., 278 U.S. 235, 241-242, 49 S.Ct. 115, 73 L.Ed. 287, the general effect of a severability clause is to substitute for the presumption that the legislature intended its act to be effective as an entirety, the opposite presumption of severability; that is, that the legislature intended the act to be divisible. It is said that this presumption must be overcome by considerations which make evident the inseverability of the provisions of the statute, or the clear probability that with the invalid part eliminated the legislature would not have been satisfied with what remains. In Williams itself, though the statute was not penal and also contained a severability clause the Court said:

“it requires no extended argument to overcome the presumption and to demonstrate the indivisible character of the act under consideration.”

278 U.S. at page 242, 49 S.Ct. at page 117, 73 L.Ed. 287.

To the same effect is Hill v. Wallace, 259 U.S. 44, 70, 42 S.Ct. 453, 66 L.Ed. 822.

Other eases relied upon by appellees include Virginia Ry. Co. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789; Wright v. Vinton Branch Bank, 300 U.S. 440, 57 S.Ct. 556, 81 L.Ed. 736; Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598; St. Louis, S. W. Ry. v. State of Arkansas, 235 U.S. 350, 35 S.Ct. 99, 59 L.Ed. 265; The Abby Dodge, 223 U.S. 166, 32 S.Ct. 310, 56 L.Ed. 390; United States v. Delaware and Hudson Co., 213 U.S. 366, 29 S.Ct. 527, 53 L.Ed. 836.

We do not think the severability clause authorizes us to divide subparagraph (11) so as to raise the question whether or not persons in appellant’s situation might validly be subjected to court-martial jurisdiction. Though Reid v. Covert involved a wife and "not a civilian employee, we know from that decision that the intended broad coverage of civilians, whether accompanying or employed by the forces abroad, exceeds constitutional bounds. Neither the severability clause nor any other provision affords any standard to guide a constitutional decision in the instant case except the invalid standard of “persons * * * employed by” the armed forces outside the United States. We do not know how to-subdivide this provision as Congress, might have done if Congress had known it could not be upheld as written. The present severability clause shows only a very general intention to leave in effect all valid applications which are severable from invalid applications, giving no indication of what valid applications Congress thought would be severable. Should we undertake to say that the-“persons employed by” clause is divisible so as to apply to appellant we would be called upon to decide whether civilians, in general employed by the armed forces outside the United States in time of peace are subject to court-martial jurisdiction. Four members of the Supreme-Court in Reid v. Covert have said in effect that they are not subject to such jurisdiction; and a majority of the court has not indicated that they are.

The Supreme Court has repeatedly referred to “the wisdom of refraining from avoidable constitutional pronouncements.” United States v. International Union Auto. Workers, 352 U.S. 567, 590, 77 S.Ct. 529, 541, 1 L.Ed.2d 563. This settled principle leads us to-decide this case on the ground of nonseverability. Should we hold severablethe application of the statute to appellant for the crime here charged, and go onto decide whether his conviction by court-martial was constitutional, obviously we would be deciding an important constitutional question. This course is not required and, therefore, should not be pursued in the circumstances of this case. The relevant precedents call for a decision on the basis spelled out in the Reese and kindred cases. Under those decisions we hold that subparagraph (11), which the Supreme Court has held is invalid as presently enacted, Reid v. Covert, is nonseverable into fragments which have not been specified by Congress or as to which Congress has not furnished criteria for a case-by-case judicial application. At least the application of the subparagraph to such a civilian as appellant, charged with such an offense as is here involved, cannot be validly carved out of the invalid general spread of that provision.

Our decision leaves Congress free if it so desires to rewrite the legislation with inclusion of criteria for court-martial jurisdiction in terms related more definitely to the security, discipline, and effectiveness of the armed forces abroad. Or Congress might decide in light of Reid v. Covert to adopt some other course for the trial by the United States of civilians employed with such forces in time of peace. These legislative matters are not for us to determine; we mention these possibilities because they bear upon the reasons for our decision that the present generality of subparagraph (11) is not to be subdivided by the courts so as to include appellant when the provision cannot validly include all who were intended to be covered by its terms as the statute left the hands of Congress. There is a complete absence of any legislative standard for the inclusion of appellant other than a standard that includes all civilian employees with the forces abroad, and that standard is so extensive as to be invalid as a basis for denial to civilians tried by the United States in time of peace of the protection of Article III, § 2 of the Constitution and of the Fifth and Sixth Amendments.⁷

Appellant should be discharged from the custody of appellees.⁸

Reversed and remanded.

1 . One or more civilian Moroccan nationals i were also alleged to have been parties to the same transaction. They have been tried in the regular courts of Morocco.

2 . We ordered appellant admitted to bail pending the appeal.

3 . Neil H. McElroy, Secretary of Defense, James H. Douglas, Secretary of the Air Force, and General Thomas D. White, Chief of Staff, United States Air Force.

4 . Moreover, the highest court available under the Uniform Code of Military Justice has consistently upheld jurisdiction over persons in the same legal posture as appellant. Appellant should not be required to await a similar decision in his case. United States v. Wilson, No. 9638, U.S.C.M.A., March 28, 1958; United States v. Rubenstein, 7 U.S.C.M.A. 523, 22 C.M.R. 313; United States v. Burney, 6 U.S.C.M.A. 776, 21 C.M.R. 98; United States v. Marker, 1 U.S.C.M.A. 393, 3 C.M.R. 127.

5 . While in Reese and the Trade Mark Oases the Court spoke of crimes defined so broadly as to be beyond constitutional authority, the principle invoked in those cases applies to this attempted extension of court-martial jurisdiction over crimes or persons in such broad terms as to be unconstitutional.

6 . Public Law 1028 enacted into positive law Title 10 of the United States Code, containing, inter alia, the Uniform Code of Military Justice. The severability clause, though a part of Public Law 1028, was not enacted into Title 10. It can be found however in the note at page 293 of Supplement V of the 1952 Code (1958).

7 . The principle invoked by appellees that a person may attack as invalid only the attempted invasion of his own rights is not applicable, for the attempted application here is to appellant himself.

8 . Since submission of the case we have been advised by the United States Attorney that on June 9, 1958, the United States Court of Military Appeals lias denied appellant’s petition for a grant of review of his court-martial conviction.