OCTOBER TERM, 1998
Syllabus
CLINTON, PRESIDENT OF THE UNITED STATES, ET AL.
v.
GOLDSMITH
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
No. 98-347. Argued March 22, 1999-Decided May 17, 1999
After respondent Goldsmith, an Air Force major, defied an order
by a superior officer to inform his sex partners that he was
infected with HIV and to take measures to block any transfer of
bodily fluids during sexual relations, he was convicted by general
court-martial of willful disobedience of an order and other
offenses under the Uniform Code of Military Justice and sentenced
to six years' confinement and partial forfeiture of pay. The Air
Force Court of Criminal Appeals affirmed, and when Goldsmith sought
no review of that decision in the Court of Appeals for the Armed
Forces (CAAF), his conviction became final. Subsequently, in
reliance on a newly enacted statute empowering the President to
drop from the rolls of the Armed Forces any officer who had both
been sentenced by a court-martial to more than six months'
confinement and served at least six months, the Air Force notified
Goldsmith that it was taking action to drop him from the rolls.
Goldsmith did not immediately contest that proposal, but rather
petitioned the Court of Criminal Appeals for extraordinary relief
to redress the unrelated alleged interruption of his HIV medication
during his incarceration. The court ruled that it lacked
jurisdiction to act, and it was in Goldsmith's appeal from that
determination that he first asserted the claim that the Air Force's
action to drop him violated the
Ex Post Facto and Double
Jeopardy Clauses. The CAAF granted his petition for extraordinary
relief and relied on the All Writs Act in enjoining the President
and other officials from dropping Goldsmith from the Air Force
rolls.
Held: Because the CAAF's process was neither "in aid of"
its strictly circumscribed jurisdiction to review court-martial
findings and sentences nor "necessary" or "appropriate" in light of
a servicemember's alternative opportunities to seek relief, that
court lacked jurisdiction to issue an injunction against dropping
respondent from the Air Force rolls. Pp. 533-540.
(a) The All Writs Act authorizes "all courts established by Act
of Congress [to] issue all writs necessary or appropriate in aid of
their respective jurisdictions." 28 U. S. C. § 1651(a). Although
military appellate courts are among those so empowered to issue
extraordinary writs, see
Noyd v.
Bond, 395 U. S. 683, 695, n. 7,
the All Writs Act
530
Syllabus
does not enlarge those courts' power to issue process "in aid
of" their existing statutory jurisdiction, see,
e. g.,
Pennsylvania Bureau of Correction v.
United States
Marshals Service, 474 U. S. 34,41. The CAAF
is accorded jurisdiction by statute to "review the record in
[specified] cases reviewed by" the service courts of criminal
appeals, 10 U. S. C. §§ 867(a)(2), (3), which in turn have
jurisdiction to "revie[w] courtmartial cases," § 866(a). Since the
Air Force's action to drop respondent from the rolls was an
executive action, not a "findin[g]" or "sentence," § 867(c), that
was (or could have been) imposed in a court-martial proceeding, the
elimination of Goldsmith from the rolls appears straightforwardly
to have been beyond the CAAF's jurisdiction to review and hence
beyond the "aid" of the All Writs Act in reviewing it. Goldsmith's
claim that the CAAF has satisfied the "aid" requirement because it
protected and effectuated the sentence meted out by the
court-martial is beside the point, for two related reasons. First,
his court-martial sentence has not been changed; another military
agency has simply taken independent action. Second, the CAAF is not
given authority, by the All Writs Act or any other source, to
oversee all matters arguably related to military justice, or to act
as a plenary administrator even of criminal judgments it has
affirmed. The CAAF spoke too expansively when it asserted that
Congress intended it to have such broad responsibility. Pp.
533-537.
(b) Even if the CAAF had some seriously arguable basis for
jurisdiction in these circumstances, resort to the All Writs Act
would still be out of bounds, being unjustifiable either as
"necessary" or as "appropriate" in light of alternative remedies
available to a servicemember demanding to be kept on the rolls. The
All Writs Act invests a court with a power essentially equitable
and, as such, not generally available to provide alternatives to
other, adequate remedies at law. See,
e. g.,
Carlisle
v.
United States, 517 U. S. 416, 429. This
limitation operates here, since the Air Force Board for Correction
of Military Records (BCMR) has authority to provide administrative
review of the action challenged by respondent, and a servicemember
claiming something other than monetary relief may challenge the
BCMR's decision to sustain a decision to drop him from the rolls
(or otherwise dismiss him) as final agency action under the
Administrative Procedure Act. Moreover, in instances in which a
claim for monetary relief may be framed, a servicemember may enter
the Court of Federal Claims with a challenge to dropping from the
rolls (or other discharge) under the Tucker Act, or he may enter a
district court under the "Little Tucker Act." pp. 537-540.
48 M. J. 84, reversed.
SOUTER, J., delivered the opinion for a unanimous Court.
531
Deputy Solicitor General Dreeben argued the cause for
petitioners. With him on the briefs were Solicitor General Waxman,
James A. Feldman, Lisa Schiavo Blatt, and Judith A. Miller.
John M. Economidy argued the cause for respondent.
With him on the brief were Carol L. Hubbard, Karen L. Hecker,
and Douglas H. Kohrt.
JUSTICE SOUTER delivered the opinion of the Court.
The challenge here is to the use of the All Writs Act, 28 U. S.
C. § 1651(a), by the Court of Appeals for the Armed Forces, to
enjoin the President and various military officials from dropping
respondent from the rolls of the Air Force. Because that court's
process was neither "in aid of" its strictly circumscribed
jurisdiction to review court-martial findings and sentences under
10 U. S. C. § 867 nor "necessary or appropriate" in light of a
servicemember's alternative opportunities to seek relief, we hold
that the Court of Appeals for the Armed Forces lacked jurisdiction
to issue the injunction.
I
Respondent James Goldsmith, a major in the United States Air
Force, was ordered by a superior officer to inform his sex partners
that he was HIV-positive and to take measures to block any transfer
of bodily fluids during sexual relations. Contrary to this order,
on two occasions Goldsmith had unprotected intercourse, once with a
fellow officer and once with a civilian, without informing either
that he was carrying HI\!.
As a consequence of his defiance, Goldsmith was convicted by
general court-martial of willful disobedience of an order from a
superior commissioned officer, aggravated assault with means likely
to produce death or grievous bodily harm, and assault consummated
by battery, in violation of Articles 90 and 128 of the Uniform Code
of Military Justice (UCMJ), 10 U. S. C. §§ 890, 928(b)(1), (a). In
1994, he was sentenced to six years' confinement and forfeiture of
$2,500 of his pay
532
each month for six years. The Air Force Court of Criminal
Appeals affirmed his conviction and sentence in 1995, and when he
sought no review of that decision in the United States Court of
Appeals for the Armed Forces (CAAF), his conviction became final,
see § 871(c)(1)(A).
In 1996, Congress expanded the President's authority by
empowering him to drop from the rolls of the Armed Forces any
officer who had both been sentenced by a court-martial to more than
six months' confinement and served at least six months.1 See
National Defense Authorization Act for Fiscal Year 1996, 110 Stat.
325, 10 U. S. C. §§ 1161(b)(2), 1167 (1994 ed., Supp. III).2 In
reliance on this statutory authorization, the Air Force notified
Goldsmith in 1996 that it was taking action to drop him from the
rolls.
Goldsmith did not immediately contest the proposal to drop him,
but rather petitioned the Air Force Court of Criminal Appeals for
extraordinary relief under the All Writs Act, 28 U. S. C. §
1651(a), to redress the unrelated alleged inter-
1 When a servicemember is dropped from the rolls, he forfeits
his military pay. See 37 U. S. C. §803. The drop-from-the-rolls
remedy targets a narrow category of servicemembers who are absent
without leave (AWOL) or else have been convicted of serious crimes.
Since 1870, the President has had authority to drop from the rolls
of the Army any officer who has been AWOL for at least three
months. See Act of July 15, 1870, § 17,16 Stat. 319. The power was
subsequently extended to officers confined in prison after final
conviction by a civil court, see Act of Jan. 19, 1911, ch. 22, 36
Stat. 894, and then to "any armed force" officer AWOL for at least
three months or else finally sentenced to confinement in a federal
or state penitentiary or correctional institution, see Act of May
5, 1950, § 10, 64 Stat. 146.
2 Section 1161(b)(2) authorizes the President to "drop from the
rolls of any armed force any commissioned officer ... who may be
separated under Section 1167 of this title by reason of a sentence
to confinement adjudged by a court-martial." Section 1167 provides
that "a member sentenced by a court-martial to a period of
confinement for more than six months may be separated from the
member's armed force at any time after the sentence to confinement
has become final ... and the member has served in confinement for a
period of six months."
533
ruption of his HIV medication during his incarceration. The
Court of Criminal Appeals ruled that it lacked jurisdiction to act,
and it was in Goldsmith's appeal from that determination that he
took the first steps to raise the issue now before us, an entirely
new claim that the Air Force's action to drop him from the rolls
was unconstitutional. He did not challenge his underlying
court-martial conviction (the appeal period for which had expired,
see Rule 19(a)(1), CAAF Rules of Practice and Procedure). But he
charged that the proposed action violated the
Ex Post Facto
Clause, U. S. Const., Art. I, § 9, cl. 3 (arguing that the statute
authorizing it had been enacted after the date of his conviction),
and the Double Jeopardy Clause, U. S. Const., Arndt. 5 (arguing
that the action would inflict successive punishment based on the
same conduct underlying his first conviction). 48 M. J. 84, 89-90
(CAAF 1998). The CAAF, on a division of 3 to 2, granted the
petition for extraordinary relief and relied on the All Writs Act,
28 U. S. C. § 1651(a), in enjoining the President and various other
Executive Branch officials from dropping respondent from the rolls
of the Air Force.3 We granted certiorari, 525 U. S. 961 (1998), and
now reverse.4
II
When Congress exercised its power to govern and regulate the
Armed Forces by establishing the CAAF, see U. S. Const., Art. I, §
8, cl. 14; 10 U. S. C. § 941; see generally
Weiss
3 Because respondent had been released from confinement, the
CAAF denied respondent's writ-appeal petition concerning his
medical treatment claim as moot. See 48 M. J. 84, 87-88 (1998).
As a result of the CAAF's order, respondent has not been dropped
from the rolls, and has returned to active duty status. The Air
Force initiated an administrative separation proceeding against
respondent, see 10 U. S. C. § 1181, which has been deferred pending
resolution of this case. See Brief for Petitioners 8, n. 2.
4 In light of our holding that the CAAF lacked jurisdiction in
this case, we do not reach the merits of respondent's double
jeopardy and
ex post facto claims.
534
v.
United States, 510 U. S. 163, 166-169
(1994), it confined the court's jurisdiction to the review of
specified sentences imposed by courts-martial: the CAAF has the
power to act "only with respect to the findings and sentence as
approved by the [court-martial's] convening authority and as
affirmed or set aside as incorrect in law by the Court of Criminal
Appeals." 10 U. S. C. §867(c).5 Cf.
Parisi v.
Davidson,
405 U. S. 34, 44 (1972) (Court of Military Appeals lacked
express authority over claim for discharge based on conscientious
objector status). Despite these limitations, the CAAF asserted
jurisdiction and purported to justify reliance on the All Writs Act
in this case on the view that "Congress intended [it] to have broad
responsibility with respect to administration of military justice,"
48 M. J., at 86-87,6 a position that Goldsmith urges us to adopt.
This we cannot do.
While the All Writs Act authorizes employment of extraordinary
writs, it confines the authority to the issuance of process "in aid
of" the issuing court's jurisdiction. 28 U. S. C. § 1651(a) ("[A]ll
courts established by Act of Congress may issue all writs necessary
or appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law"). Thus, although
military appellate courts are among those empowered to issue
extraordinary writs under the Act, see
Noyd v.
Bond,
395 U. S. 683,
695, n. 7 (1969), the express terms of the Act confine the power of
the CAAF to issuing process "in aid of" its existing statu-
5 When Congress established the Court of Military Appeals (the
CAAF's predecessor), it similarly confined its jurisdiction to the
review of specified sentences imposed by courts-martial. See Act of
May 5, 1950, ch. 169, Art. 67(d), 64 Stat. 130. See also H. R. Rep.
No. 491, 81st Cong., 1st Sess., 32 (1949); S. Rep. No. 486, 81st
Cong., 1st Sess., 3, 28-29 (1949).
6 One judge was even more emphatic: "We should use our broad
jurisdiction under the [UCMJ] to correct injustices like this and
we need not wait for another court to perhaps act .... Our Court
has the responsibility of protecting the rights of all
servicemembers in court-martial matters." 48 M. J., at 91
(Sullivan, J., concurring).
535
tory jurisdiction; the Act does not enlarge that jurisdiction,
see,
e. g.,
Pennsylvania Bureau of Correction v.
United States Marshals Service, 474 U. S. 34, 41 (1985).
See also 16 C. Wright, A. Miller, & E. Cooper, Federal Practice
and Procedure § 3932, p. 470 (2d ed. 1996) ("The All Writs Act ...
is not an independent grant of appellate jurisdiction"); 19 J.
Moore & G. Pratt, Moore's Federal Practice § 204.02[4] (3d ed.
1998) ("The All Writs Act cannot enlarge a court's
jurisdiction").
We have already seen that the CAAF's independent statutory
jurisdiction is narrowly circumscribed. To be more specific, the
CAAF is accorded jurisdiction by statute (so far as it concerns us
here) to "review the record in [specified] cases reviewed by" the
service courts of criminal appeals, 10 U. S. C. §§ 867(a)(2), (3),
which in turn have jurisdiction to "revie[w] court-martial cases,"
§ 866(a). Since the Air Force's action to drop respondent from the
rolls was an executive action, not a "findin[g]" or "sentence," §
867(c), that was (or could have been) imposed in a court-martial
proceeding,7 the elimination of Goldsmith from the rolls appears
straightforwardly to have been beyond the CAAF's jurisdiction to
review and hence beyond the "aid" of the All Writs Act in reviewing
it.
Goldsmith nonetheless claims that the CAAF has satisfied the
"aid" requirement of the Act because it protected and effectuated
the sentence meted out by the court-martial. Goldsmith emphasizes
that the court-martial could have dis-
7 A court-martial is specifically barred from dismissing or
discharging an officer except as in accordance with the UCMJ, which
gives it no authority to drop a servicemember from the rolls. See
Rules for Courts-Martial 1003(b)(9)(A)-(C); Rule lO03(b)(9) ("A
court-martial may not adjudge an administrative separation from the
service"). Moreover, respondent brought the petition against the
President, the Secretary of Defense, and military officials who
were not even parties to the court-martial.
536
missed him from service, but instead chose to impose only
confinement and forfeitures.8 Hence, he says the CAAF merely
preserved that sentence as the court-martial imposed it, by
precluding additional punishment, which would incidentally violate
the
Ex Post Facto and Double Jeopardy Clauses. But this is
beside the point, for two related reasons. First, Goldsmith's
court-martial sentence has not been changed; another military
agency has simply taken independent action.9 It would presumably be
an entirely different matter if a military authority attempted to
alter a judgment by revising a court-martial finding and sentence
to increase the punishment, contrary to the specific provisions of
the UCMJ, and it certainly would be a different matter when such a
judgment had been affirmed by an appellate court. In such a case,
as the Government concedes, see Tr. of Oral Arg. 15, 19, 52, the
All Writs power would allow the appellate court to compel adherence
to its own judgment. See,
e. g.,
United States v.
United States Dist. Court for Southern Dist. of N.
Y., 334 U. S.
258, 263-264 (1948). Second, the CAAF is not given authority,
by the All Writs Act or otherwise, to oversee all matters arguably
related to military justice, or to act as a plenary administrator
even of criminal judgments it has affirmed. Simply stated, there is
no source of continuing jurisdiction for the CAAF over all actions
administering sentences that the CAAF at one time had the power to
review. Thus the CAAF spoke too expansively when it held itself to
be "empowered by the All Writs Act to grant extraordinary relief in
a case in which the court-martial rendered a sentence that
constituted an
8 At the court-martial, respondent faced a maximum punishment of
dismissal, confinement for 10 years, forfeiture of all pay and
allowances, and a fine.
9 Indeed, the approved findings and sentence in Goldsmith's case
had become final over one year before the Air Force initiated its
action to drop him from the rolls.
537
adequate basis for direct review in [the CAAF] after review in
the intermediate court," 48 M. J., at 87.10
III
Even if the CAAF had some seriously arguable basis for
jurisdiction in these circumstances, resort to the All Writs Act
would still be out of bounds, being unjustifiable either as
"necessary" or as "appropriate" in light of alternative remedies
available to a service member demanding to be kept on the rolls.ll
The All Writs Act invests a court with a power essentially
equitable and, as such, not generally available to provide
alternatives to other, adequate remedies at law. See,
e. g.,
Carlisle v.
United States, 517 U. S. 416, 429 (1996)
(" 'The All Writs Act is a residual source of authority to issue
writs that are not otherwise covered by statute'" (quoting
Pennsylvania Bureau of Correction, 474 U. S., at 43)). See
also 19 Moore's Federal Practice § 201.40 ("[A] writ may not be
used ... when another method of review will suffice"). This
limitation operates here, since other ad-
10 The court, moreover, was simply wrong when it treated itself
as a court of original jurisdiction, see
supra, at 535.
11 These remedies are in addition to the review as of right by
the military department's Court of Criminal Appeals of any
court-martial sentence that includes punitive dismissal or
discharge. See 10 U. S. C. § 866(b)(1); § 867(a) (decisions of the
Court of Criminal Appeals subject to discretionary review by the
CAAF). And of course, once a criminal conviction has been finally
reviewed within the military system, and a servicemember in custody
has exhausted other avenues provided under the UCMJ to seek relief
from his conviction, see
Noyd v.
Bond, 395 U. S. 683, 693-699
(1969), he is entitled to bring a habeas corpus petition, see 28 U.
S. C. § 2241(c), claiming that his conviction is affected by a
fundamental defect that requires that it be set aside. See,
e.
g., Burns v.
Wilson, 346 U. S. 137, 142 (1953)
(opinion of Vinson, C. J.). See also
Calley v.
Callaway, 519 F.2d
184, 199
(CA5 1975);
Gorko v.
Commanding
Officer, Second Air Force, 314 F.2d
858, 859 (CAW 1963). In this case, however, respondent chose
not to challenge his underlying conviction. See
supra, at
533.
538
ministrative bodies in the military, and the federal courts,
have authority to provide administrative or judicial review of the
action challenged by respondent.
In response to the notice Goldsmith received that action was
being considered to drop him from the rolls, he presented his claim
to the Secretary of the Air Force. See Tr. of Oral Arg. 4-5. If the
Secretary takes final action to drop him from the rolls (as he has
not yet done), Goldsmith will (as the Government concedes) be
entitled to present his claim to the Air Force Board for Correction
of Military Records (BCMR). This is a civilian body within the
military service, with broad-ranging authority to review a
servicemember's "discharge or dismissal (other than a discharge or
dismissal by sentence of a general court-martial)," 10 U. S. C. §
1553(a), or "to correct an error or remove an injustice" in a
military record, § 1552(a)(1).12
12 Respondent argues nonetheless that seeking BCMR review in his
case would have been futile (especially in light of his
life-threatening illness) since BCMR's lack authority to declare
statutes unconstitutional, cannot consider records of
courts-martial and related administrative records (with two
inapplicable exceptions), and are generally "'unresponsive,
bureaucratic extensions of the uniformed services,'" Brief for
Respondent 16 (quoting H. R. Com. Rep. No. 104-450, p. 798
(1996)).
In light of the fact that respondent chose to circumvent BCMR
review, we need not address whether the Air Force BCMR has the
power to correct a record that is erroneous as a result of a
constitutional violation. Cf.
Guerra v.
Scruggs,
942 F.2d
270, 273
(CA4 1991) ("The [Army BCMR] has authority to
consider claims of constitutional, statutory, and regulatory
violations");
Bois v.
Marsh, 801
F.2d 462, 467 (CADC 1986) ("[Appellant's] claims based on [the]
Constitution, executive orders and Army regulations 'could readily
have been made within the framework of this intramilitary
procedure'" (quoting
Chappell v.
Wallace, 462 U. S. 296, 303
(1983))). And while it is true that unless specifically authorized
a BCMR may not correct a court-martial record, see 10 U. S. C. §
1552(f), it may still consider the record, especially where, as
here, the court-martial record is relevant in determining the
validity of the subsequent dropping from the rolls. Finally, the
alleged unresponsive nature of the BCMR's, if true, would in
539
Respondent may also have recourse to the federal trial courts.
We have previously held, for example, that "[BCMR] decisions are
subject to judicial review [by federal courts] and can be set aside
if they are arbitrary, capricious, or not based on substantial
evidence."
Chappell v.
Wallace, 462 U. S. 296, 303
(1983). A service member claiming something other than monetary
relief may challenge a BCMR's decision to sustain a decision to
drop him from the rolls (or otherwise dismissing him) as final
agency action under the Administrative Procedure Act (APA), 5 U. S.
C. § 551
et seq.; see §§ 704, 706. For examples of such
challenges entertained in the district courts or courts of appeals,
see
Roelofs v.
Secretary of Air Force, 628 F.2d
594, 599-601 (CADC 1980) (proceeding in District Court under
APA raising due process challenge to administrative discharge based
on conviction of civilian offense);
Walker v.
Shannon, 848 F. Supp. 250, 251, 254-255 (DC 1994) (suit
under APA for review of Army BCMR decision upholding involuntary
separation). In the instances in which a claim for monetary relief
may be framed, a servicemember may enter the Court of Federal
Claims with a challenge to dropping from the rolls (or other
discharge) under the Tucker Act, 28 U. S. C. §
1491.13 See,
e. g., Doe v.
United States, 132
F.3d 1430, 1433-1434
(CA Fed. 1997) (suit for backpay
and correction of military records following administrative
discharge);
Mitchell v.
United States, 930 F.2d
893, 896-897
(CA Fed. 1991) (suit for back-
no way alter the fact that BCMR's are legislatively authorized
to provide the relief sought by respondent.
In any event, it is clear as noted in the text that follows that
respondent's constitutional objections could have been addressed by
the federal courts.
13 Under the Tucker Act, the Court of Federal Claims has
exclusive jurisdiction over nontort claims against the Government
for greater than $10,000. See 28 U. S. C. § 1491. Determinations of
the Court of Federal Claims may be appealed to the Federal
Circuit.
540
pay, reinstatement, and correction of records). Or he may enter
a district court under the "Little Tucker Act," 28 U. S. C. §
1346(a)(2).14 See,
e. g.,
Thomas v.
Cheney,
925 F.2d
1407, 1411, 1416 (CA Fed. 1991) (reviewing challenge to action
to drop plaintiff from the rolls);
Sibley v.
Ball,
924 F.2d
25, 29 (CA1 1991) (transferring to Federal Circuit case for
backpay because within purview of "Little Tucker Act").
In sum, executive action to drop respondent from the rolls falls
outside of the CAAF's express statutory jurisdiction, and
alternative statutory avenues of relief are available. The CAAF's
injunction against dropping respondent from the rolls of the Air
Force was neither "in aid of [its] jurisdictio[n]" nor "necessary
or appropriate." Accordingly, we reverse the court's judgment.
It is so ordered.
14 The "Little Tucker Act," 28 U. S. C. § 1346(a)(2), confers
jurisdiction on district courts for claims of $10,000 or less.
Appeals are taken to the Federal Circuit.
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