Saturday, November 24, 2007

Does the SCRA tolling provision apply during periods of confinement resulting from a court-martial conviction?

On 15 November, Judge Block of the United States Court of Federal Claims rendered a mixed decision on a pro se collateral challenge to a court-martial conviction. Lowe v. United States, No. 06-121C, 2007 U.S. Claims LEXIS 363 (Ct. Fed. Cl. Nov. 15, 2007). (The case produced a published opinion dealing with ineffective assistance of post-trial counsel from the Navy-Marine Corps Court on direct review. United States v. Lowe, 50 M.J. 654 (N-M. Ct. Crim. App. 1999)).

Here's the most interesting question that the case presents: can a servicemember confined as the result of a court-martial conviction whose punitive discharge has not yet been executed invoke the tolling provisions of the Service members' Civil Relief Act (SCRA) to file a Tucker Act action collaterally challenging beyond the six-year statute of limitations? Yes, rules Judge Block.

Judge Block frames the decisional issue as whether confinement pursuant to a court-martial conviction is "military service." If so, then the SCRA tolls the Tucker Act's statute of limitations until the court-martial convict is actually discharge.

Judge Block concludes that service of confinement in a military facility as the result of a court-martial conviction is military service, reasoning:

[P]laintiff was not absent during the period of his military confinement but instead was present, in military custody, at the bases to which he was assigned by the Marine Corps. Furthermore, . . . plaintiff remained on active duty during his military confinement because he had neither received his final pay nor was his DD Form 214 "ready for delivery." One can hardly consider plaintiff's confinement as not being "service connected" 00 which this Court believes is the test for "active duty." Simply put, plaintiff was convicted and incarcerated for violations of the UCMJ relating to his actions while he served on active duty. For this Court to accept defendant's argument would be to denigrate the crucial role that law and regulation play in military discipline. Further, there exists a constitutional component to the Court's position. Failing to recognize that a service member is on active duty, even when incarcerated in the "brig" for violations of military law, until officially separated or discharged, ignores the near-plenary power that the Constitution delegates to Congress "to make Rules for the Government and the Regulation of the land and naval forces . . . ." U.S. Const., art. I, § 8, cl. 14. The Constitution clearly envisioned the promulgation of a special system of military justice, and this system has indeed become an essential part of the American military. See O'Callahan, 395 U.S. at 262-62. It can hardly be said that those service members subject to that system -- even when tried, convicted, and incarcerated under military law -- are not engaging in activities that are "service connected."
Lowe v. United States, No. 06-121C, slip op. at 11 (some internal citations omitted).

What do you think? Did Judge Block get it right?


Phil Cave said...

Yes, and this is why a laches issue may be relevant.

Anonymous said...

I tend to agree with Mr. Cave. What about Feres bar in the same context?

Dwight Sullivan said...


The universe of those who know more about the Tucker Act than do I is quite large. On the other hand, we are lucky enough to have one of the leading experts in this area -- Gene Fidell -- as a participant in these discussions. Perhaps he can give us the definitive answer.

But I believe the answer is that the Feres doctrine applies only to tort claims by servicemembers. A servicemember may still pursue a non-tort claim under either the Tucker Act or the Little Tucker Act and the Feres doctrine does not limit such non-tort claims. Did I get that right, Gene?

John O'Connor said...

I don't claim to be a Tucker Act expert either, but I think I know enough to say you're right, CAAFlog. Feres is a judge-made exception to the United States' waiver of sovereign immunity for tort actions under the FTCA.

On another subject, I can't for the life of me figure out why any judge would cite the abomination that is O'Callahan v. Parker for any purpose other than (1) illustrating cases of intemperate Supreme Court rhetoric, (2) listing cases that have been expressly overruled, or (3) as an example of judicial legislation masquerading as constitutional analysis. Any reliance on that case for what it says about courts-martial is a really bad idea, even if it is for the innocuous fact that courts-martial are an integral part of the military service. It would be like citing Dred Scott for the standard for summary judgment.

Anonymous said...

Actually, I am aware that Feres applies to tort claims not Tucker. The issue is whether the Feres bar against action in tort applies to persons in military correction facilities whose discharge is on appeal. That might give us some guidance. Is it like TDRL for example? Just curious, having never had a client seeking action in tort from the brig while the discharge is on appeal.

Dwight Sullivan said...


That one is fairly clear. Before the USDB moved to its new facilities, several inmates at the old USDB contended that they had been injured by things like giant chunks of concrete falling off the walls and striking them. When they sued for tort damages, the federal courts responded, in essence, too bad -- you are Feres barred even if you've already been discharged. See, e.g., Ricks v. Nickels, 295 F.3d 1124, 1132 (10th Cir. 2002).

Anonymous said...

I´m in Brazil, so I have to respond off the top of my head, but I was truly appalled when I read this decision a week or so ago. How could the judge have cited O´Callahan without mentioning that it had been expressly overruled? No Shepard´s Citations around? As for Feres, it has been applied in a variety of non-FTCA settings--wrongly in my view--but there it is. The Cummings case (D.C. Cir./Privacy Act) pulled back on the reins, but perhaps someone could do a post about whether Feres has been applied in TA/LTA context.

Gene in Brasilia