Eastern District of Virginia abstention case

Judge Leonie Brinkema, of United States v. Moussaoui fame, recently rejected a collateral jurisdictional attack on a court-martial, preferring to abstain pending completion of appellate review. Bishop v. Davis, No. 1:07cv1121 (LMB/TCB) (E.D. Va. Jan. 30, 2008).

Major Bishop maintains that he was discharged before he was court-martialed. The United States maintains that he obtained his discharge fraudulently, and charged him with that as well as some previous travel card hanky-panky. He was found guilty of the two offenses at two separate general courts-martial. If he was validly discharged, neither court-martial had jurisdiction. Apparently while his case was pending before the Air Force Court of Criminal Appeals, Major Bishop sought habeas relief in the Eastern District of Virginia.

Judge Brinkema indicates that Schlesinger v. Councilman doesn't require abstention in this case "because Councilman's rule of exhaustion does not extend to attacks on the court-martial's jurisdiction." But she indicates that Councilman nevertheless "supports the government's general request for abstention by recognizing the unique position held by the military in our country, the intricate set of rules and procedures governing the conduct of servicemen, and the specialized review procedures and autonomous system of military courts created by Congress. . . . The teachings of Councilman lead this Court to conclude that it should abstain from interfering with ongoing military justice proceedings to the greatest extent possible."

She also suggests that the military appellate system is actually more competent to resolve Major Bishop's claims than are Article III courts:

Moreover, considerations of institutional competence favor abstention. In his habeas petition, Bishop argues that he was discharged from the Air Force by operation of law when he was twice passed over for promotion and that his allegedly false representations on the "out-processing checklist" are irrelevant. Resolution of this claim will require an interpretation of federal statutes governing the military and knowledge about Air Force regulations and policies concerning discharge. The military justice system, which includes oversight by the United States Court of Appeals for the Armed Forces, is best suited to address those issues in the first instance.

While abstaining for now, Judge Brinkema concludes, "At the close of [military appellate] proceedings, Bishop may re-file his petition if he remains dissatisfied with the outcome."