CLINTON v. GOLDSMITH

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Argument of Michael R. Dreeben

Chief Justice Rehnquist: We'll hear argument now in No. 98-347, William J. Clinton v. James Goldsmith.

Mr. Dreeben.

Mr. Dreeben: Mr. Chief Justice, and may it please the Court:

The Court of Appeals for the Armed Forces, in this case, declared unconstitutional the President's power to drop from the rolls of the military an officer who had been convicted in a court-martial proceeding, sentenced to more than 6 months of confinement, and who had served more than 6 months of confinement.

Our submission is that this judgment should be reversed for two reasons: First, the Court of Appeals for the Armed Forces lacked jurisdiction to use power under the All Writs Act to reach the action to drop him, Major Goldsmith, from the rolls and to declare the statute under which he was dropped unconstitutional

And, second, the statutory power of the President to drop an officer from the rolls is not a punitive criminal measure that implicates the protections of the Double Jeopardy Clause or of the Ex Post Facto Clause.

Now, the jurisdictional question involves a consideration of what powers Congress gave to the Court of Appeals for the Armed Forces in reviewing court-martial judgments which consist of findings and sentences.

The Court of Appeals for the Armed Forces is given a specifically defined jurisdiction to review the results in court-martial cases when particular sentences have been entered and the judgment below has been reviewed by the Court of Criminal Appeals for the relevant service.

The Court of Appeals for the Armed Forces is not given free-ranging jurisdiction over all matters that might have something to do with military justice or that might implicate matters affecting service members who have been sentenced under the Uniform Code for Military Justice, the UCMJ.

Rather, Congress has specially allocated powers elsewhere within the military to consider personnel actions that might be viewed as collateral consequences...

Justice O'Connor: Mr. Dreeben, exactly how could the Respondent have proceeded to raise his issue of double jeopardy, and... and before what agency or agencies?

Mr. Dreeben: Justice O'Connor, Major Goldsmith had three avenues essen... essentially, in which he could raise his claim.

The first, which he availed himself of, would be to raise it before the military itself, the Secretary of the Air Force, in response to the notice that he received that action was being considered to drop him from the rolls.

So he could present that claim to the agency, which in this case he in fact did, along with a myriad of other reasons, both equitable and statutory, why he claimed he should not be dropped from the rolls.

If the Secretary of the Air Force does indeed finalize an action to drop him from the rolls... which has not happened in this case... he can present a claim to the Board of Correction of Military Records, which is a civilian body within the military service, and has the power to correct military records or to relieve injustice.

And he can, before that body, make a claim that his action... to drop him from the rolls... is constitutionally barred or otherwise improper.

And most importantly here, he has recourse to the Federal district courts to make a claim that the action to drop him from the rolls would violate the Constitution.

There are two different avenues that he could avail himself of.

One would be an action under the Administrative Procedure Act in a court that had proper venue and jurisdiction to hear that claim, and he could challenge the action... dropping him from the rolls... claiming that it violated his constitutional rights.

He could even, if he had a claim that he might suffer some irreparable injury from the action, seek injunctive relief that would bar the finalization of the action, provided he could make the normal equitable showings that go along with that.

Chief Justice Rehnquist: Well, what if, in the case of an ordinary criminal conviction within the armed services that's been upheld by the Court of Appeals for the Armed Forces, does a defendant in a situation like that have resort to Federal courts under habeas corpus or something else, or not at all?

Mr. Dreeben: Yes, Chief Justice Rehnquist.

After the conviction has been finally reviewed within the military system, and the servicemember has exhausted other avenues that are provided under the UCMJ to attempt to get relief from the conviction, he can then bring a habeas corpus action under the standard section governing habeas corpus, Section 2241 of Title 28, and argue that his conviction is affected by a fundamental defect that requires that it be set aside.

In this case, of course, Major Goldsmith is not challenging his underlying conviction.

He is raising a claim that the action to drop him from the rolls is, in effect, another criminal punishment, because it was enacted after the time that he committed his offenses, violates the Ex Post Facto Clause, and because it is being imposed, or might be imposed, after his conviction has become final, violates the Double Jeopardy Clause.

Justice Ginsburg: Mr. Dreeben, what about the argument that this relief was necessary to protect or effectuate the result of the court-martial, which was specifically that he not be dismissed from service?

That was an option that they had and that they didn't impose.

So, why isn't this a legitimate means of protecting the judgment that there be no dismissal?

Mr. Dreeben: Justice Ginsburg, we don't dispute that the Court of Appeals for the Armed Forces has, in appropriate circumstances, the power to rely on the All Writs Act.

But the All Writs Act itself is not generally available to do service when there are other provided statutory means of accomplishing the end in question.

Here, the standard, typical means of raising any kind of a double jeopardy defense is to set up that defense as against the action that is brought against you.

And so long as there are adequate means of raising that claim, there can be no warrant for using the All Writs Act to circumvent the specifically provided means that Congress has allowed for the raising of this claim.

The All Writs Act is an equitable power.

If there is an adequate remedy at law, there can be no resort to equity.

Justice Ginsburg: And you... you say the remedy is ask the Secretary, then ask the Board of Corrections of Military Records, and...

Mr. Dreeben: The BCMR, the Board of Correction for Military Records, is an optional administrative procedure.

It's significant here because it signifies that that is where Congress intended that servicemembers go, within the military, to obtain relief from adverse personnel actions.

Chief Justice Rehnquist: Is that the one that's been spending its time deciding whether Samuel Mudd was properly convicted?

Mr. Dreeben: I'm not entirely sure, Chief Justice Rehnquist.

It does have broad-ranging authority to consider claims that servicemembers might make, arising from any aspect of their military record.

Justice Kennedy: In this case, but... but not the Samuel Mudd case... in this case, does-the APA review come from the Board of Corrections?

Mr. Dreeben: APA...

Justice Kennedy: You indicated in your answer to Justice O'Connor there is APA review.

Mr. Dreeben: That's right.

Justice Kennedy: Do you exhaust your remedies before the Board of Correction of Military Records and then go to a court under the APA?

Mr. Dreeben: You do not have to, Justice Kennedy.

You can go to court under the APA and challenge the final agency action that consists of dropping the officer from the rolls.

You can also go to the Board of Correction of Military Records and challenge that action under the APA, saying that the BCMR should have granted relief.

Justice Kennedy: My question is, if you did that with the Board, do you then have any judicial review of what the Board did?

Mr. Dreeben: Yes.

Yes, you do.

Justice O'Connor: Under the APA?

Mr. Dreeben: Yes.

The Board's action itself is a reviewable agency action.

There's another avenue of relief here...

Justice Kennedy: And... and are these rev... are... are its actions often reviewed in the courts?

Mr. Dreeben: Yes.

BCMR actions are often reviewed in the courts.

They're most typically reviewed under the guise of Tucker Act proceedings, because the ultimate challenge here is that the servicemember should not have been terminated from the military, which causes him to lose military pay and other benefits.

And those claims can be framed, and typically are framed, as claims for monetary relief.

They're brought before the Court of Federal Claims.

They're appealed to the Federal circuit, and thereby judicial review is obtained of any of the statutory, regulatory, or constitutional objections that the servicemember has.

Now, in this...

Justice Scalia: I'm surprised to hear you say that... that in order to pursue these judicial remedies, you don't have to go before the Board of Corrections.

Is that... is that well-established?

I would have thought that there's an exhaustion requirement.

Mr. Dreeben: It is fairly well-established, Justice Scalia, for two different reasons.

One is that, under the Tucker Act, the action that the individual is challenging is being fired.

And if he is dropped from the rolls or otherwise discharged from the service, that's a final action.

It's going to be implemented.

It is not going to be stayed or delayed in any respect while he goes to the Board of Corrections of Military Records.

Frequently, service...

Justice Scalia: But that... but that's not an APA action; that's a Tucker Act action.

Mr. Dreeben: That's correct.

Justice Scalia: You... you said that there was an... an action under the Administrative Procedure Act.

Mr. Dreeben: That's correct.

And I think that under this Court's decision in Darby v. Cisneros, unless there is a specific statutory or regulatory requirement of exhaustion, the servicemember need not, before bringing an APA action, exhaust a... the provided administrative remedy, such as the BCMR.

He can do it, but he can also make a challenge to the actual decision to drop him from the rolls.

If he is going to sustain such an action under the APA, he has to be able to show that something more is at stake than simply the money that he would have been received if he had not been dropped from the rolls.

But the courts have generally recognized that, through one avenue or another, the Federal courts are going to be able to hear and adjudicate the very constitutional claim that Major Goldsmith presented to the CAAF.

Justice Breyer: Is... is it the case that the merits in the jurisdictional question are tied together?

That is, if you see this action as a punishment, it would make sense to say that the... the criminal court has jurisdiction, through the All Writs Act, to stop some other part of the Army from... let's say they explicitly said, And we're going to punish you some more by making you do extra duty, making you do this, making you do that, dropping you from the rolls... I guess they might have jurisdiction there.

But if you don't see it as a punishment, you rather see it is as a consequence or some kind of other general action, then, of course, they wouldn't have jurisdiction.

But, I mean, looked at that way, you have to decide the merits in order to decide if they have the jurisdiction.

Mr. Dreeben: I don't think you do, Justice Breyer.

Because I think that the jurisdictional question is fundamentally an allocation of power within the military.

The CAAF is given specific designated jurisdiction to review court-martial findings and sentences.

The particular challenged action at issue here... dropping from the rolls... is not a findings or sentence that can be imposed in a court-martial proceeding.

The court-martial is in fact specifically barred from dismissing or discharging an officer except as in accordance with the UCMJ.

Justice Kennedy: Well...

Mr. Dreeben: It does not have power to consider DFR, dropping from the rolls, actions.

Chief Justice Rehnquist: Well, even... even if... even if... even if this were something other than you're saying it is, certainly the way a double jeopardy is ordinarily administered is not for the court where the first sentence was imposed to start proceedings to enjoin another court.

You raise it in the second court, do you not?

Mr. Dreeben: That... that's absolutely correct.

Justice Breyer: That's true.

That's... that's exactly the question I'm... I'm... I don't know the answer to.

Mr. Dreeben: So...

Justice Breyer: So, imagine, though, that the... the... the different part of the Army had said this... they... they write out the following.

They say: We don't think that that court-martial board did enough by way of punishment

We want to punish this person further.

And so, by way of punishment, what we shall do... and we promise it's punishment... is we shall throw him out of the Army in order to really punish him.

And they write as many of the words50 times.

All right, now suppose all that had really happened.

Then would this court have jurisdiction?

Mr. Dreeben: No.

Justice Scalia: Because?

Mr. Dreeben: Because this Court's jurisdiction is defined to review certain kinds of actions that are taken under the UCMJ by the court-martial proceedings itself.

An officer who faces the kind of sanction that you've described has another method of recourse, specifically defined by statute.

Within the military, he can present his claim to the Secretary of the Air Force or the relevant service Secretary.

He can go to the BCMR.

And he can go to Federal district court.

And I think that it's important that in thinking of the jurisdictional question that one keep in mind that Congress set up the CAAF and the subordinate, intermediate military tribunals for very important but specific and limited purposes... to review the court-martial sentences that have been presented to them in accordance with the jurisdictional statute.

There is no free-ranging power given to these bodies to review, essentially, personnel actions that may occur as a collateral consequence of the conviction or other consequences that may occur of the conviction.

And...

Justice Scalia: Do you agree that the... that the jurisdiction of the Court of Appeals for the Armed Forces is being impaired when additional punishment is added?

Mr. Dreeben: No.

No more than the jurisdiction of a criminal sentencing court is impaired if the government initiates a second action that could be described of... as violative of double jeopardy.

The original judgment stands.

And, indeed, it still has...

Justice O'Connor: I see.

Chief Justice Rehnquist: Right.

Justice Scalia: I assume if they tried to impose the second punishment instead of the first, and... and undo the first, then... then there would be an impairment?

Mr. Dreeben: Yes.

And there would be a... a separate question raised if what the military did was take the actual court-martial findings and sentence and specifically revise it, and increase the punishment, contrary to the specific provisions of the UCMJ, and contrary to the affirmed judgment of the appellate court.

A traditional use of the All Writs Act power would be to compel that the judgment that has been affirmed and adjudicated in a particular manner be adhered to.

But this action in this case reached beyond the judgment and beyond the terms of the authorized sentence, and enjoins other parties, who were not part of the court-martial proceeding, per se, and who are not acting under the UCMJ, and who are not acting in pursuance of the judgment of conviction, but, rather, are exercising separate authority altogether to take an officer who has been convicted in a court-martial and get him out of the Air Force as a result of that.

Justice Ginsburg: Mr. Dreeben, is there any practical difference in these three ways of removing an officer?

One is if the court-martial itself had imposed discharge.

One is an administrative separation.

And the third is what we're dealing with here; you refer to it by three initials.

They all get the person out, and that person doesn't get any pay or allowances.

Is there any practical difference among the three?

Mr. Dreeben: There... there are a number of legal and practical differences, Justice Ginsburg.

The first and central one here is that the action of a court-martial in dismissing an officer is considered to be about the worst punishment that a court-martial can impose, about the worst punishment that can be experienced by an officer.

It carries the stigma of having been taken out of the military service as a punishment.

And so it is a punitive measure, and designed to be perceived as such.

The action of dropping from the rolls, in contrast, grew up from the history of a law in the 18... enacted in 1870, that permitted the President to simply recognize that if an officer were AWOL, absent without leave, and not serving any services for the military, not performing any work for the military, he could be simply dropped from the rolls without characterization of how he left the military.

A dismissal is roughly equivalent to a dishonorable discharge.

Dropping from the rolls is simply a removal from the military without characterization of the service experience at all.

The intermediate form of administrative remedy, which is a proceeding under Section 1181, is more broadly available for misconduct or dereliction of duty or conduct that is inconsistent with the national security.

And it entails a full-blown due process hearing, at which the servicemember can present to the armed forces reasons why he should not be dropped... why he should not be dismissed from the... the military or discharged from the military.

And it can carry adverse consequences, adverse characterizations, for the servicemember who is discharged.

So, it has both more due process, more potential for adverse characterization, than dropping from the rolls.

Dropping from the rolls really targets a very narrow category of servicemembers who have been convicted of serious crimes or who are AWOL.

And in those situations, Congress has deemed it to be a sufficient basis, alone, for removing that person as a serving member of the military.

Justice Kennedy: Does the court of military... or does the military court, the sentencing court, take dropping from the rolls into consideration in the sentencing, and say, this is a serious felony, we know you're going to be dropped from the rolls, therefore we will reduce our punishment somewhat to the following?

Mr. Dreeben: That would be impossible, because the sentencing body at the court-martial level would not know whether any administrative action would be taken later, because...

Justice Kennedy: Well... well, it might know it judicially.

They say, in these cases, you're usually dropped from the rolls, and we presume that you will be, and therefore we will tailor our sentence accordingly.

Mr. Dreeben: As a... as a practical matter, I can't say that the court-martial body might not think that.

But it would have no more relevance to the legal issues here than it would have if a sentencing court said that I'm not going to impose a certain fine on you because I anticipate that you're going to be fired by your civilian employer once this criminal conviction is made final.

The sentencing judgment that is imposed by the court-martial, and ultimately affirmed or... on review, is simply that body's sentence.

But it doesn't give the courts that reviewed that sentence the power to enjoin later authorities that may impose collateral consequences as a result of the sentence.

Justice Souter: Mr. Dreeben, you... you said, I think, a minute ago that if... if the executive... if the military, in purporting to enforce the sentence, went beyond its term... say, there was to be loss of half pay and the military said, well, we're going to... we're going to see that he loses three-quarters pay... that in those circumstances the All Writs Act could be used, in effect, to bring the matter back to the Court of Appeals, in effect, for enforcement of sentence; is that right?

Mr. Dreeben: No, Justice Souter.

I may have misspoken.

But I meant to say only that if the military authorities themselves attempt to alter the judgment, the written document that reflects the judgment, and attempt to impose greater punishment than has been affirmed by the reviewing court, that court would have power to order its own judgment corrected.

Post-sentence administration of any form is not a matter that is given to the Court of Appeals for the Armed Forces to have jurisdiction over.

It...

Justice Souter: How would... how would a claim for... for a... a failure to follow the judgment after the review be brought and enforced?

Mr. Dreeben: It depends what the claim is.

If the claim is that the servicemember is being held contrary to the judgment, the servicemember can bring a habeas corpus action.

If the servicemember claims that he is being given unconstitutional punishment in violation of his Eighth Amendment rights, he could go to Federal district court and bring either an APA action or, in appropriate circumstances, maybe a Bivens action.

Justice Souter: In my example, he would bring a Tucker Act?

Mr. Dreeben: He would probably have to bring a Tucker Act action, that's right.

And, again, this is not a question of... of unavailability of remedy.

It is a question of allocation of remedy over who... who has power to determine how the military acts once the court-martial sentence has been finally reviewed.

The CAAF is a court that was set up to review only issues of law arising out of court-martial proceedings itself.

That is what its statutory restriction says it may do.

And its judgments are then reviewable here by the government or by the servicemember.

But the CAAF was not given authority to become an all-powerful administrator of criminal judgments that it has once affirmed.

Those actions are reviewable under other forms of proceedings entirely.

Justice Breyer, to come back to your question, I... I think that if the Court held clearly, as... as it should, that the dropping from the rolls procedure is a civil and administrative remedy, that would reinforce the conclusion that it could not possibly be a matter that could ever come before the Court of Appeals for the Armed Forces.

But even if the Court did not decide that question, and addressed first the jurisdictional question, the issue here is fundamentally who has authority to decide whether the administrative action of dropping from the rolls does implicate criminal punishment.

In our view, that responsibility falls to the military bodies assigned for that responsibility and to the Federal district courts.

Justice Ginsburg: Mr. Dreeben, there was... the reason given for going the CAAF route rather than the more lengthy military district court or claims court was the illness of Goldsmith.

Is he still alive?

Mr. Dreeben: Yes, he is.

He has been, as a result of the order of the CAAF, not discharged from the military.

And because his sentence has expired, he has returned to active duty.

The manner in which the case came to the CAAF is significant because it reveals that the CAAF entertained not only the action to drop Major Goldsmith from the rolls, but it also entertained an action that he was not being given appropriate medical treatment while in military confinement.

And the issue of what kind of medical treatment a prisoner is being given has nothing to do with the findings and sentence of the court-martial that confined him to custody.

Normally, challenges to the way in which someone is being held under a judgment are brought in a Federal court or through administrative procedures... proceedings that are made available for that.

It is not a continuing source of jurisdiction for the CAAF over all actions administering sentence simply because it once had power, which in this case it never even exercised, to review the sentence in question.

And a further indication of how far the CAAF has gone from reviewing court-martial sentences is that it issued an injunction not only against the Secretary of the Air Force and subordinate officials not even to proceed with the duty... the dropping from the rolls procedure... its injunction actually issued to the President of the United States.

And it is clearly something that is rather extraordinary to suppose that an Article I court, which has no specific jurisdiction at all to review this kind of personnel action, could issue an injunction against the President that would prevent him from removing from military service an officer who has been convicted of disobeying orders and committing assaults that were likely to re... lead to grievous or serious injury.

If the Court has no further questions, I would save the rest of my time for rebuttal.

Argument of John M. Economidy

Chief Justice Rehnquist: Thank you, Mr. Dreeben.

Justice Breyer: Mr.... is it Economidy?

Mr. Economidy: Economidy, just like America's economy, except it's.

Justice Souter: ay it again, will you.

Mr. Economidy: Economidy.

Justice Breyer: Economidy.

Mr. Economidy: I'm used to,though, however.

Chief Justice Rehnquist: Very well, we'll hear from you.

Mr. Economidy: Mr. Chief Justice, and may it please the Court:

I'd like to correct two incorrect responses, first, to Justice Kennedy and then to Justice Souter.

You had asked about an instruction in this particular case, if this statute on dropped from the rolls had existed at the time Respondent, Major Goldsmith, would have been entitled to an instruction.

The case is United States v. Powell, 30 C.M.R....

We have a provision in the Uniform Code of Military Justice, which you may opt out by regulation.

The Air Force has.

And it's an automatic reduction in grade if you get confinement.

In that particular case, Congress had passed the law, but the individual did not receive an instruction on the automatic effect of this reduction in rank, which is sort of what the DFR is.

Within the military judges bench book, their book... book of instructions, you have in there an instruction that if you give a particular sentence, then you're going to have an automatic reduction.

So, if you asked, Justice Kennedy, would he be entitled to an instruction, the answer would be yes, I...

Justice Scalia: Was it... was it automatic?

I thought it had to be... I... I thought it's up to the President.

Mr. Economidy: You have to meet certain criteria, Justice Scalia, to have that automatic reduction in rank, unless you're referring to the DFR.

Justice Scalia: Well, yes, I was referring to the DFR.

Mr. Economidy: Okay.

Justice Scalia: What are you referring to?

Mr. Economidy: I was referring to Article 58(a).

Article 58(a) has an automatic reduction in rank, down to E-1.

Justice Scalia: Is that what Justice Kennedy was asking about?

No, I... I...

Mr. Economidy: He had asked about instructions.

And I am taking this by an analogy, that if you have a certain result in a court, could they be entitled to an instruction that would educate the members of the court-martial?

And the answer is yes.

And the Powell case would do that.

Justice Scalia: Well, does... does that...

Justice Kennedy: Is that being done now?

does the instruction address itself to being dropped from the rolls?

Mr. Economidy: It hasn't yet, because the statute occurred.

There has not been a DFR in the Air Force involving this statute, to my knowledge, except for Major Goldsmith's case, because we have a State proceeding.

Justice Souter, you had asked, and the response was, well, he could bring a Bivens action.

That is incorrect.

We have the Ferius defense that an active duty member cannot sue incident to military service.

And that has been extended over to civil rights.

The case is Chappell v. Wallace.

Justice Souter: Yes.

But I... I take it you could get relief if it were an issue of confinement by habeas and if it were an issue of money under the Tucker Act.

Justice Breyer: Is that correct?

Mr. Economidy: The place to go in this particular case would be the Court of Appeals.

Because the Court of Appeals, by their statute, Article 67, can act on findings and on sentence.

And when you look at the Court of Appeals opinion in Goldsmith, particularly paragraph 1, page...

Justice Souter: What Court of Appeals are you talking about?

Mr. Economidy: The Court of Appeals for the Armed Forces.

Chief Justice Rehnquist: Okay.

Mr. Economidy: CAAF.

Justice Souter: Well, but what... what about my question?

My question was, if there... if there were an... an issue of confinement, he would have a habeas remedy, and if there were an issue of... of money, he would have a Tucker Act remedy.

Are those two statements correct?

Mr. Economidy: Those statements are correct.

But if you're in the military and you're imprisoned in Turkey, or you're imprisoned in Japan, or Germany, you've got one place to go, and that is the Court of Appeals for the Armed Forces, because the Code applies worldwide, under Article V.

In this particular case...

Chief Justice Rehnquist: Well, are... are you saying that someone imprisoned out of this country, in the custody of an American custodian, cannot bring habeas corpus?

Mr. Economidy: I would have habeas corpus in the Court of Appeals for the Armed Forces.

Chief Justice Rehnquist: Well, are you saying... or perhaps you're not expressing any opinion on... whether someone held in custody in the military, outside of this country but by an American custodian, could... could sue for habeas corpus in the... in a Federal district court?

Mr. Economidy: I think this Court has given opinions like the Gusic case versus Shoder, Schlesinger v. Councilman, that says if you go into Federal courts, you should have comity, and they should go to the Court of Appeals for the Armed Forces or to the other military appellate courts.

That's why we went to the military courts in this case.

I...

Chief Justice Rehnquist: I... I don't have the same recollection you do of those cases.

Mr. Economidy: What they're saying there is that if you have a court-martial-type case, you should go to the military court, is how I read the cases.

Chief Justice Rehnquist: Well, but one... your argument, as I understand it, for this being a court-martial-type case, is that he can only get his remedy in the Court... in the... in the Court of Appeals because habeas isn't available.

Mr. Economidy: I'm not saying habeas is not available in the Federal courts.

I'm saying we have a specialty court, and that's where we should go first.

Chief Justice Rehnquist: Well, but a specialty court that is, by statute, given the authority to review sentences that are brought before it.

This is something quite different.

Mr. Economidy: I would suggest to you, Mr. Chief Justice, that what we have here is an increased sentence; and therefore, under Article 67, the Court of Appeals for the Armed Forces can act to protect and effectuate that sentence.

Chief Justice Rehnquist: There... there is no precedent at all in... in civil law for saying that a court which imposes the first sentence that's the basis of the... should then go about scurrying about and enjoin the second court.

You raise that question in the second court or the second agency and proceed through review channels there.

You don't go back to the first court and get an injunction.

I've never heard of that.

Mr. Economidy: Mr. Chief Justice, if we had the situation where the individual was kept in confinement past his confinement date, we can still go into the military appellate courts.

We have done that in the McCray case.

We had a very similar factual situation in the U.S. v. Mahoney, in...

Justice Scalia: We know... I know that they'll take it.

That's why this case is here.

The question is...

Chief Justice Rehnquist: That's why... that's why this case is here.

Justice Scalia: The question is whether they took it properly.

Mr. Economidy: I think that they did, Justice Scalia, because they can act on the sentence, under Article 67.

And if they want to protect...

Justice Scalia: The sentence hasn't been changed.

Justice Stevens: The sentence stood.

Justice Scalia: Another... another forum has imposed an additional sentence.

Now, do they have authority to prevent other forums from imposing additional sentences?

Mr. Economidy: I believe...

Justice Scalia: Where... where do you find that within their jurisdictional statute?

Mr. Economidy: I find it...

Justice Scalia: Just give me the text of it.

Mr. Economidy: And the text of it is where they can act upon the sentence.

If the sentence is increased, they have a...

Justice Scalia: Their sentence hasn't been touched.

Their sentence stood.

If somebody tried to reduce their sentence, and... and let him out of the stockade, I suppose they... they... they would have jurisdiction to protect their own... their own jurisdiction.

Mr. Economidy: I believe they have the right to protect the sentence from being increased by an unconstitutional act...

Justice Scalia: That sentence isn't being increased.

An additional sentence is being imposed by another forum.

Mr. Economidy: The forum here was a dropped from the roll action.

A dropped from the roll action, if you go to Winthrop's treatise... and he cites the Army Regulation of 1890: When a person who is dropped from the rolls leaves in a dishonorable status

You also had that same situation, in the statutory definition today, of a veteran, under Title 38, U.S. Code, Section 101(2).

Justice Souter: Well, assuming that to be true, do you... you don't dispute that... that your client could have... could have raised every issue that he is now trying to raise by going to that Board for Correction of... whatever it is...

Mr. Economidy: The Board for Correction of Military Records...

Justice Scalia: Yeah.

Mr. Economidy: would not help my client in this particular case for the following two reasons.

First, the stat... statute, which is 10 U.S.C., 1522, says you can only go in on military justice matters in two cases: number one, a correction of the court-martial order; or, number two, the situation where there was insufficient clemency granted by the convening authority in the first place

In this particular...

Justice Souter: I'm not sure that I'm following your answer.

Mr. Economidy: All right.

Justice Souter: But I take it your bottom-line answer is no, he could not have gone to the Board for Correction in this case?

Mr. Economidy: You can always go, but he would not be able to get relief.

They would find the matter non-cognizable.

Justice Souter: What, because of the constitutional claim that you're raising; is that it?

Mr. Economidy: No.

Because it involves a military court-martial sentence.

Justice Souter: Well, the... I... I don't think we're... we're following each other.

I... I am assuming that the only thing that your client would seek review of before this Board would have been the order to drop him from the rolls.

Are you saying that the Board does not have jurisdiction to review that particular action of the military?

Mr. Economidy: I don't believe it is, because they would view it as a military justice matter.

And this particular authorization act, 104-106, there was a section, 551, which required the Section 551 study.

And one of the findings in that particular thing was that 37 percent of all Air Force cases that have been in litigation in the past year could not receive relief in the Board of Corrections for Military Records.

The facts on the Army was one-third of the cases that they could not...

Justice Souter: Well, let... let me ask you this.

Let's assume that your client had been convicted not by a court-martial but by a civilian criminal court, and then had been dropped from the rolls.

Would the Board for Correction have jurisdiction to review a challenge to the action of dropping him under those circumstances?

Mr. Economidy: They could hear the case then because it would not involve the statutory restrictions in Section 1522.

Justice Souter: Now, if we should decide that in fact the Board for Correction would have jurisdiction here, would that be the end of your case?

Mr. Economidy: It means we would take an alternative course of action.

We may be going back in to the Board of Corrections.

He is due to retire on the 1st of July, which would be my first concern.

Justice Scalia: What if Corrections said that it doesn't have jurisdiction in these matters?

Is there a case of theirs that says,?

mean, you tell me that they...

Mr. Economidy: We really don't have cases in the Board of Corrections, sir.

If you're talking about like a Federal appeals decision or something.

Justice Scalia: Well, you... you say they have no jurisdiction to make these corrections.

Do you have cases...

Mr. Economidy: No, sir.

Justice Scalia: where someone has tried to get a correction, and they say,

"Gee, you know, I'm sorry, we'd like to give it to you, but we have no jurisdiction? "

Mr. Economidy: I have been in cases, particularly Woodrick v. Divich, which is somewhat like this.

It was an All Writs case.

We went into Federal court.

The government argued,

"No, you have to go into the Court of Appeals. "

We get into the Court of Appeals, we get the argument,

"No, you have to go into Federal court. "

It's sort of a catch...

Justice Scalia: I'm not talking about the Federal court.

I'm talking about the Board of Corrections.

I mean, you... you're... you're saying that the Board of Corrections has no jurisdiction over these matters.

Mr. Economidy: I do not think that they do.

It involves the sentence...

Justice Scalia: Well, maybe you don't think so.

Do they think so?

Mr. Economidy: I think their statutory charter would preclude it, because...

Justice Stevens: Has the Board ever said so?

Justice Souter: Has the Board ever responded to a request for review by saying,,on the grounds that you have just been... been stating to us?

Mr. Economidy: I have had cases before the Board of Corrections where they have stated that, yes, sir.

Chief Justice Rehnquist: Well, the Board has a fairly...

Mr. Economidy: But not in this case.

Chief Justice Rehnquist: The Board has a fairly generous idea of its jurisdiction, if it can renew the court-martial of Samuel Mudd, which took place in 1865.

Mr. Economidy: I would suggest to you, Mr. Chief Justice, what they're doing is going on the old Board of Corrections statute.

Chief Justice Rehnquist: What...

Mr. Economidy: The statute was modified in recent years to preclude that.

Because they used to review court-martial proceeding altogether.

And then Congress came in and modified the statute.

Chief Justice Rehnquist: Is... is there a citation you can give us for that, the modification?

The... you say Congress...

Mr. Economidy: The... I can't give you the year; it would be section...

Chief Justice Rehnquist: No, but I mean just... just the...

Mr. Economidy: 10 U.S.C., 1522 is the statute.

Justice O'Connor: Thank you.

Justice Breyer: Is that... is that in the materials?

Justice Scalia: You've been referring to it repeatedly, and I've been looking for it.

Is it... is it... is it in the appendix to the cert petition, or is it anywhere that I can read it?

Mr. Economidy: No, it is not in the cert petition or the appendix, no, sir.

Justice Breyer: This... I mean, I think everyone... or at least I would have the same question, but I'd focus this way... say Soldier Mudd or some other soldier is walking along the street one day and he gets a letter.

Mudd wasn't even...

It says,

"Dear Soldier, you are dropped from the rolls. "

Well, the soldier says,.

nd is there some place he can go?

Mr. Economidy: He could probably go to the Board of Corrections for a drop from the roll action...

Justice Breyer: Now... now... now what Soldier Mudd says, or the other soldier...

Mr. Economidy: But he's AWOL at that point.

Justice Breyer: Well... well, no, he's not.

He's... he's in his barracks when he gets the letter.

He's not AWOL or anything.

He thinks an error has been made.

Some person by the same name is doing something bad, but not him.

I guess there's a place he could go, right?

Mr. Economidy: There's a place he could go.

It would not be a good place to start.

Justice Breyer: Well, here he is in his barracks.

He's got the letter.

It's a big mistake.

Where does he go?

Mr. Economidy: I'd go to my commander first or to whoever the source is.

Justice Breyer: Fine.

Justice Scalia: The commander says, Fine, I'm not a lawyer.

Justice Breyer: I... I see this letter; it's written by a general.

Where do I go?

Where does he go?

Mr. Economidy: I'd go to personnel, try to work it through the personnel channels after that.

Chief Justice Rehnquist: Fine.

Justice Breyer: All that fails.

Now, where does he go?

Mr. Economidy: You can say ultimately he could possibly go to the Board for Corrections of Military Records.

Justice Breyer: Fine.

Now, it happens that his claim of this gross error is that it's an added punishment for a court-martial I previously had.

Can't he take the same route?

Why not?

What's the legal authority that says he can't?

Mr. Economidy: The Board of Corrections does not have the power to find these statutes unconstitutional.

Your case of McCarthy v. Madigan says you do not have to go through the administrative route to exhaust your administrative remedies if they cannot provide that particular remedy.

Justice O'Connor: What... what's the name of that case?

Mr. Economidy: McCarthy v. Madigan.

Justice Scalia: Well, you have the cite for that?

Justice Ginsburg: Isn't that inconsistent with Southy?

I mean, the argument that you are making, that you made in your brief, was that if the administrator can't give you the constitutional judgment that you want, you can skip over it and go directly to court.

And this Court, in Weinberger against Southy, said no, even though the administrative agency doesn't have authority to hold the law it administers unconstitutional, still, you can't skip over that route.

Because there are other questions to be resolved, you have to go that route.

And then you get to a court that can deal with the constitutional question.

So, why is this any different?

Mr. Economidy: My client at the time was dying.

I had to go somewhere pretty fast.

And that was the motivating factor.

Your average trips to the Board of Corrections run...

Justice Ginsburg: That's what you said in your brief.

Mr. Economidy: Yes.

Justice Ginsburg: But you've been changing the argument here.

And you're saying the reason that you went... one of the reasons... was that the Board of Corrections didn't... could not take such a case.

In your brief, you said you needed fast relief.

Mr. Economidy: I don't think that they can provide the remedy under the two statutory exceptions for military justice matters that exist, which is they can only act with regard to clemency or technical errors in the court-martial order, like they misspell a name or they misstate the sentence.

I do not think that they can go into this particular case.

Because, as we have viewed this case, it has always involved the sentence, which is how the Court of Appeals acted under Article 67.

And...

Justice Scalia: All right.

Suppose I don't view it that way.

Suppose I view the later action as having nothing to do with the court-martial order.

Then surely you could have gotten it corrected in the Board of Corrections, right?

Mr. Economidy: The Board of Corrections probably would not correct this, because they will say this is a commander's matter...

Justice Scalia: Well, I don't care about.

don't want to know what they'll do.

You can always get what they'll do...

Mr. Economidy: I misunderstood.

Justice Scalia: reviewed in a Federal court, which will tell them they're wrong.

But would they have jurisdiction to act upon it?

Mr. Economidy: You can bring most anything before the court.

They might...

Justice Scalia: Well, of course, you can bring most anything before any court...

Mr. Economidy: Yes.

Justice Scalia: and they'll throw it out.

But would this Court have jurisdiction to take it?

Mr. Economidy: The Board of Corrections?

Justice Scalia: The Board of Corrections...

Mr. Economidy: It... it...

Justice Scalia: assuming it had nothing...

Mr. Economidy: it's not a court.

Justice Scalia: assuming I do not agree with you...

Mr. Economidy: Yes, sir.

Justice Scalia: that... that this is related to the court-martial sentence.

Okay.

I mean, that's your premise.

Mr. Economidy: Mmm-hmm.

Yes.

Justice Scalia: Assuming I don't agree with that premise, would the Board of Corrections have had jurisdiction over the administrative action, severing your client from the military?

Mr. Economidy: If they agree with your position that they... that it is not a military justice action...

Justice Souter: Right.

Mr. Economidy: then they probably could, yes, sir.

Justice Scalia: They would.

Chief Justice Rehnquist: Okay.

Justice Stevens: May I ask you a question running through my mind?

Supposing a serviceman gets convicted of an offense and he gets sentenced to 6 months in the brig.

He serves his 6 months and he... he gets out.

And he goes back on active duty.

He goes on a ship, say.

And his commanding officer says,

"I know what you did; 6 months wasn't a fair punishment for that. "

"I think you should have had 9 months. "

"I'm going to lock you up in the brig for 90 days more. "

What is his remedy?

Can he get an All Writs Act proceeding before the CAAF?

Mr. Economidy: I think that he can, because it is an increase in the sentence that was judged.

You basically have the situation here, because the convening authority in Goldsmith, General Griffith, is the same person who brought the DFR action, after he'd been promoted and moved to a different office.

Justice Stevens: Well, just in my hypothetical, you say that... that the All Writs Act would cover that case, as well as yours?

Mr. Economidy: If he meets the statutory criteria for review...

Justice Stevens: Well, his sentence has already been served.

The other judgment is final.

And no tampering with that judgment.

But the new commanding officer just thinks the punishment was insufficient and he's decided to give him an extra 90 days.

He could go directly to the CAAF, in your view?

Mr. Economidy: If he satisfies the statutory jurisdiction, the answer would be yes.

Justice Stevens: Well, how does he... does he satisfy the statutory jurisdiction requirement on my facts?

Justice Breyer: That's what I'm asking.

Mr. Economidy: On your facts of just 6 months, no punitive discharge, he would not be able to go to the Court of Appeals for the Armed Forces.

He could only go to the judge advocate general, perhaps, or through an Article 138.

Justice Stevens: But why couldn't he... why couldn't he go there on the same theory that you advocate here?

That's what I'm not... I'm a little puzzled by.

Mr. Economidy: Major Goldsmith was sentenced to 1 year of confinement.

Therefore, there was direct jurisdiction for the service court, under Article 66, potential jurisdiction under Article 66.

Justice Stevens: Well, I'm assuming that in my case the original sentence might have been 9 months instead of 6.

Mr. Economidy: It would... it would have to be at least 1 year to get service court review.

Justice Stevens: Well, make it a year and 18 months, then, because I don't want to get...

Mr. Economidy: All right.

If it's a year, then he would be able to go in... either to the service court or to CAAF, to seek habeas corpus.

Chief Justice Rehnquist: Well, can... can... do they still have company punishment, or captain's mast, where... can... can you get a review of... of those kind of courts' decisions in... in the Court of Appeals, Armed Forces?

Mr. Economidy: The... your question was twofold.

Justice Scalia: Yeah.

Mr. Economidy: Do they still have captain's mast?

Yes, that's nonjudicial punishment under Article XV, only in the Navy.

The answer is CAAF does not have jurisdiction.

The service courts do not have jurisdiction for review of Article XVs.

Chief Justice Rehnquist: Well... well, what if, under Justice Stevens' hypothesis, the... the commander just says, You're going to be... I don't... I don't think you got a tough enough sentence in your court-martial, so I'm going to restrict you... I'm going to restrict you to the ship for 3 months or I'm going to restrict you to base 3 months, and I intend this as further punishment?

Now, can the CAAF step in, in that case, and say, Look, it's double jeopardy?

Mr. Economidy: I think they can act on their sentence under Article 67.

I think it would be double jeopardy in the sense of an increased or multiple punishment, and that they could step in, in that hypothetical.

Justice Breyer: That... that's the question exactly.

What gives them the authority to do that?

Is it effect... there is no judgment that they're effectuating.

What... what... how... what is the authority that the... in that case, that the CAAF can step in?

Mr. Economidy: I would suggest to you...

Justice Breyer: Not the Court of Criminal Appeals, it's the CAAF, right?

Justice O'Connor: Right.

Justice Kennedy: Yeah.

Mr. Economidy: The CAAF would have to satisfy Article 67, to protect and effectuate the sentence.

When the sentence is increased, I feel that they have a right to protect the original sentence from being increased.

Justice Breyer: Well, it isn't their sentence, it's the sentence of the court-martial.

Mr. Economidy: It's the sentence of the court-martial.

It is the adjudged and the affirmed sentence.

Justice Souter: But their only jurisdiction is to review the court-martial judgment.

They have done that.

The further imposition has nothing to do with the court-martial.

So, I don't see how they would have jurisdiction to review anything, and I don't see how they would have jurisdiction under the All Writs Act in aid of... of... of their... of some independent jurisdiction.

Mr. Economidy: If that is...

Justice Souter: I'm... I'm just missing the connection.

Mr. Economidy: Well, Justice Souter, if that is the case, then a commander can go out and increase punishment substantially.

You had that in the case that we cited, U.S. v. Maroney, which is exactly what happened.

It also happened the same way in United States/ Mc... McCray.

Justice Souter: Well, you're... you're setting up a parade of horribles, but you're not responding to... to my attempt to analyze the terms in the All Writs Act in relation to the jurisdictional statute here.

And... and I... I still am having trouble making the leap that you want me to... to make.

Mr. Economidy: I believe that if the judgment is changed, the adjudged and approved sentence, or the above adjudged and affirmed judgments in a civil case...

Justice Souter: Yeah, but we're playing with words.

Justice Scalia: In the hypothetical...

Mr. Economidy: Well, if they... if they change...

Justice Souter: no one is changing the judgment.

The... the officer is saying: You didn't get enough and I'm going to... I'm going to engage in a little justice of my own here

He's not changing anything.

He's saying, I'm going to do this.

Mr. Economidy: I think that when you change the court orders, then you have a right to protect it.

This Court did that in Will v. Calvert Insurance Company... Calvert Fire Insurance.

Justice Breyer: My impression is Justice Souter's point is there is no... if the... if there is a judgment somewhere, it's not in the CAAF.

The judgment is in either the Court of Criminal Appeals or back in the original court-martial.

So, if you have some right to protect something called a judgment, it isn't the CAAF you'd go to, it would be to the court that has it.

Mr. Economidy: The court-martial loses judgment as soon as the action is taken.

It lose... it loses jurisdiction at that particular point in...

Justice Breyer: Well, then... then what about the Court of Criminal Appeals?

Mr. Economidy: You could go there as a first step, if you satisfy their statutory criteria.

Justice Breyer: What would be the theory of going to a court that doesn't have a judgment, that has no appeal?

In other words, what's the theory of going to the CAAF, as opposed to, let's say, going to the Court of Claims or going to the Ninth Circuit, or any other place?

Mr. Economidy: We have viewed all along that the DFR action equates to a dishonorable discharge, which is the same as a dismissal.

That is the same punishment which he avoided in his court-martial and in... in his case.

It also increased his... his forfeitures.

He had partial forfeitures.

The DFR action now takes it from partial forfeitures to total forfeitures, not only of pay, but also of allowances.

That increases the sentence.

We believe that the CAAF has the right to protect the original sentence.

Justice Stevens: May I change my hypothetical just a little.

Supposing you've got a Captain Queeg here.

And he's got two servicemen he wants to discipline.

And one of them has served a year's sentence for something or other and it's over.

As to him, he says, I'm going to give you another 90 days because you didn't get enough punishment.

The second person has never been disciplined for anything, but he just doesn't like him.

And he puts him in the brig for 90 days because he didn't salute, or something like that.

And both of them are in the brig for 90 days.

One of the could go to the Court of the Armed Forces, the other could not?

Mr. Economidy: That's correct, under your hypothetical.

Chief Justice Rehnquist: Yeah.

Justice Ginsburg: Is there any other situation where a court of ultimate review in the hierarchy can act as the court of first view?

That's what makes this picture really anomalous, because the CAAF is stepping in to correct whatever it perceives as an error.

But it's taking a first view, when it's set up by the statute to be a court of review.

And it's not reviewing anything that has been said lower down in the hierarchy.

Is there any counterpart to that notion that...

Mr. Economidy: Not that I know of, Justice Ginsburg.

Justice Ginsburg: And you say that Congress set up this hierarchy, distinct from all others, so that the court of last resort in that hierarchy can also take a first view.

Is there anything that suggests that Congress had that in mind?

Mr. Economidy: I think the... you know, as we have viewed this all along, they have a right to protect the serviceman for unconstitutional acts within the court-martial systems.

They did that in Goldsmith, where they saw the increase of sentence.

They also did that in Woodrick v. Divich, where they basically stopped the court-martial.

Chief Justice Rehnquist: But the D... the DFR is not a court-martial proceeding, is it?

Mr. Economidy: It is not a court-martial proceeding as such, but it's not necessarily a personnel action.

I would call it a military justice action.

Chief Justice Rehnquist: Well, then, you're really saying that the CAAF has rather broad authority just to see to it that the Army doesn't get out of line when it's treating individuals, or the Navy...

Mr. Economidy: I think it can only act under Article 67 with regard to findings and sentence of a specific court-martial within its jurisdiction, which is what they did in this particular case.

They specifically talked in their opinion, in Goldsmith, particularly paragraph 1(b), about the sentence.

They talk about acting on the sentence four times in the opinion.

Chief Justice Rehnquist: Well, but that doesn't make it so, as anyone who's written an opinion before knows.

Unidentified Justice: [Laughter]

Mr. Economidy: I guess not, sir.

We have believed all along that the drop from the rolls action basically equates to a dishonorable discharge under 38 U.S.C., 101(2), the definition of a veteran.

Also, the old 1891 reg that says a person who has a DFR leaves in a dishonorable status.

That's the very sentence which we avoided in the court-martial, was the dismissal, which is basically a dishonorable discharge.

Thank you, Mr. Chief Justice.

Rebuttal of Michael R. Dreeben

Chief Justice Rehnquist: Thank you, Mr. Economidy.

Mr. Dreeben, you have 5 minutes remaining.

Mr. Dreeben: If the Court has no further questions, I would waive rebuttal.

Justice Breyer: Well, actually, I do.

I mean, what... what do you say to his point, that... as I take it, he says that the... that the CAAF has very broad jurisdiction, that... that if a commander decides to put somebody in prison for 3 extra months or extra duty or any of these things intended as a punishment, yes, you can go to the CAAF, because that's the most practical route, it's somehow related to the basic sentence, and that's all you need?

So... so, if you were to say there's authority here that says to the contrary... and this is all military law, I... I don't know what the military... we have an expert military court saying he's right.

So... so, what authority do you have to say he's not right?

Mr. Dreeben: Justice Breyer, the question of... of the meaning and interpretation of All Writs Act jurisdiction is not a question of expertise in military law.

The fundamental issue here is, what does the All Writs Act allow a sentencing court or, in this case, an appellate court that might have, but did not, actually review an underlying criminal judgment if somebody else threatens actions that conceivably would implicate double jeopardy rights.

Justice Breyer: Well, I suppose he'd say that the... in the military, perhaps though not in the civil system, what... there... there is some kind of a remedy, where a commander takes a person and subjects him to punishment growing out of a conviction, and that conviction specified you shouldn't have that punishment.

And maybe you have to go back to the original court-martial and attack it first.

But if you do do that, there might be an appeal, so they're preserving their appellate jurisdiction.

Mr. Dreeben: I think the answer comes from Justice Stevens' hypothetical, which is that, if that kind of unauthorized punishment is being meted out, whether it be with a prior court-martial...

Justice Breyer: Meted out.

Mr. Dreeben: or without it, your remedy is Federal habeas corpus.

Justice Stevens: Let me change the hypothetical to say that, in doing this the extra 90 days, the... the body that does this says, to the extent necessary, this shall constitute a modification of the criminal judgment entered on such and such a date.

Mr. Dreeben: Well, I... I think I conceded earlier that if there were a formal modification of the actual judgment that had been before a reviewing court, traditional All Writ... Writs Act authority would permit it to rectify the...

Justice Stevens: What if it purported to be a modification but there was no actual power to modify; the wrong tribunal did it, but they thought they had the power to modify the earlier judgment, but they didn't?

They said, instead of... we're going to modify the judgment by changing it in this respect.

Then would they have jurisdiction?

Mr. Dreeben: To correct the sentence, yes, but not to adjudge the lawfulness of the administration of a sentence.

There...

Justice Stevens: Would they have jurisdiction to correct the attempted modification of the judgment?

Mr. Dreeben: If I understand your hypothetical correctly, they would have authority to say that you cannot modify the judgment in the fashion that you thought you had authority to do.

I don't want to speak too broadly on that, because there is actually authority of the JAG to reduce a sentence even after it has been affirmed.

And so, to a large extent, you really have to understand that the CAAF's authority is limited to ensuring fair rights under the UCMJ for the court-martial sentences that are brought before it for review.

And thereafter, other bodies in the military and other bodies in the Federal court system have responsibility for adjudicating the constitutional and statutory claims that servicemembers might render.

And I don't think that that's terribly different from the civilian courts, but it should be reinforced by an additional principle here.

The purpose of military justice is to reinforce discipline and order within the military system.

And there are a whole host of jurisdictional and statutory bases within the military for maintaining discipline, of which the CAAF and the UCMJ are just one.

Congress divided up the world in the way that it did and assigned responsibilities to various bodies within the military and to the Federal courts outside the military.

And the... the CAAF, in this case, has not adhered to the firewalls that were put on its jurisdiction, but has reached out to review actions by other parties under the military that are really to be reviewed elsewhere.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Dreeben.

The case is submitted.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 98-347, Clinton versus Goldsmith will be announced by Justice Souter.

This case comes to us on writ of certiorari to the United States Court of Appeals for the Armed Forces.

Respondent Goldsmith is a Major in the United States Air Force who disobeyed an order to tell his sex partners that he was infected with HIV and to take precautions in having sexual relations.

He was convicted by General court-martial of lawful disobedience and sentenced to six years confinement and partial forfeiture of his salary.

The Air Force Court of Criminal Appeals affirmed and when Goldsmith did not seek review of that decision his conviction became final.

Subsequently, the Air Force invoked a newly enacted statute authorizing the President to drop from the rolls of the armed forces.

Any officer who had both been sentenced by court-martial more than six months confinement and had served at least six months time and the Air Force notified Goldsmith that it was taking action to drop him from the rolls.

Goldsmith did not contest the Air Forces' plan immediately, but instead petitioned to Court of Criminal Appeals for extraordinary release to redress the unrelated alleged interruption of his HIV medication while in confinement.

The court ruled that it lacked jurisdiction to act and it was in Goldsmith's appeal from that decision that he first asserted a claim that the Air Forces' decision to drop him violated the Ex Post Facto and Double Jeopardy Clauses of the Constitution.

The Court of Appeals for the Armed Forces responded favorably to these claims and relied on the All Writs Act to enjoin the President and other officials from dropping Goldsmiths from Air Force rolls.

We granted certiorari and now reverse.

The Court of Appeals for the Armed Forces is an Article I Court with strictly circumscribes statutory authority to review findings and sentences imposed by courts-martial.

The All Writs Act authorizes the court only to issue all writs necessary or appropriate in aid of its jurisdiction.

Since the Air Force's action to drop Goldsmiths in the rolls was not a finding or a sentence that was or could have been imposed in a court-marshal proceeding.

It was beyond the court's jurisdiction to review and hence beyond the aid of the All Writs Act in reviewing it.

Even if the Court of Appeals for the Armed Forces had some arguable bases for jurisdiction, resort to the All Writs Act would still be out of bounds, it is not a necessary or appropriate in light of the alternative remedies available to a service member demanding to be kept on the rolls.

In this case Goldsmith could present his claim to the Air Force Board of Correction for Military Records.

A civilian body with broad ranging authority to consider service members claims.

He may also have recourse to the Federal Trial Courts by bringing either a challenge under the Administrative Procedure Act or else a claim for monetary relief under the Tucker Act.

The opinion of the Court is unanimous.