Former Marine challenges power of courts-martial to try military retirees

Petitions of the week

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Under the Uniform Code of Military Justice, military courts-martial retain jurisdiction over retired servicemembers. Courts-martial can punish a broader range of conduct and face fewer constitutional constraints than civilian courts. Therefore, since the time of the Korean War, the Supreme Court has repeatedly limited courts-martial to “the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service.” This week, we highlight cert petitions that ask the court to consider, among other things, whether the UCMJ’s extension of court-martial jurisdiction to retired servicemembers violates the Constitution.

The question comes to the Supreme Court in the case of Steven Larrabee, who served in the Marines for 20 years before retiring to the Fleet Marine Corps Reserve in August 2015. Unlike traditional reserve components of the armed forces, the FMCR is a effectively a retirement status for Marines who have previously served on active duty. Its members receive a pension, lack any military authority, and do not face any fitness obligations.

Three months after his retirement, Larrabee recorded himself sexually assaulting a civilian bartender at a bar that he managed in Iwakuni, Japan. He was charged under the UCMJ with sexual assault and indecent recording. After pleading guilty at a court-martial, he was sentenced to 10 months in prison and a dishonorable discharge from the military.

Larrabee first appealed his conviction in the military courts. He argued that when Congress authorized court-martial jurisdiction over military retirees, it exceeded its constitutional authority to “make rules for the government and regulation of the land and naval Forces” under Article I, Section 8 of the Constitution. The U.S. Court of Appeals for the Armed Forces denied his appeal, and in 2019 the Supreme Court declined to review that ruling.

Larrabee then filed a new challenge to his conviction in a civilian court. In addition to his prior argument about congressional overreach, he contended that his conviction was unconstitutional for another reason: Although the Fifth Amendment carves out an exemption from the general grand-jury requirement for “cases arising in the land or naval forces,” that exemption did not apply to his case because he assaulted a civilian on civilian property while not on active duty.

A federal district court in Washington, D.C., agreed that the court-martial of retired servicemembers violates the Constitution, but the U.S. Court of Appeals for the District of Columbia Circuit reversed. Looking to Founding-era British and colonial practices, the D.C. Circuit concluded that the original public meaning of Article I suggests that the Framers intended to grant Congress power over military retirees. And Larrabee’s case, the court of appeals reasoned, arose “in the land or naval forces” under the Fifth Amendment because his status in the FMCR might require him to return to active duty in the event of a future war or national emergency.

In Larrabee v. Del Toro, Larrabee asks the justices to grant review and reverse the D.C. Circuit’s ruling. In opposing Larrabee’s petition for review of his appeal in the military courts, the government urged the justices to wait for other courts of appeals to consider the issue. That concern now counsels in favor of review, Larrabee argues, because the D.C. Circuit and Court of Appeals for the Armed Forces disagree as to why Congress may authorize the court-martial of military retirees. “The range of offenses covered by this sweeping grant of military jurisdiction is stunning,” Larrabee writes. “This Court should resolve the critical constitutional question before millions of persons who have honorably served their country are exposed to the military justice system for offenses committed in civilian life years — if not decades — after retiring from active duty.”

A list of this week’s featured petitions is below:

CareDx, Inc. v. Natera, Inc.
22-1066
Issue: Whether a new and useful method for measuring a natural phenomenon that improves upon prior methods for measuring that very same phenomenon is eligible for patent protection under 35 U.S.C. § 101, which provides that any “new and useful process” or “new and useful improvement thereof” is eligible for patent protection.

Larrabee v. Del Toro
22-1082
Issue: Whether the Constitution permits military retirees to be tried by court-martial for offenses committed after they have left active duty.

Harris v. Texas
22-1114
Issues: (1) Whether the Texas Court of Criminal Appeals contravened the Eighth and 14th Amendments, and this court’s precedents, when it evaluated petitioner’s intellectual-disability claim based on its own standard instead of medically accepted criteria; and (2) whether petitioner received ineffective assistance of counsel in violation of the Sixth Amendment when his counsel abandoned an investigation into his intellectual disability without having any medical professional evaluate the defendant for that condition.

Klamath Irrigation District v. United States Bureau of Reclamation
22-1116
Issue: Whether Federal Rule of Civil Procedure 19 requires dismissal of an action challenging a federal agency’s use of water subject to state-adjudicated water rights if a Native American tribe asserts an interest in the suit and does not consent to joinder.