UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
RICHARD D. MUDD, M.D., Appellant,
V. No. 01-5103
(C.A. No. 97-2946)
SECRETARY OF THE ARMY,l et al., Appellees.
APPELLEES' MOTION FOR SUMMARY AFFIRMANCE
Appellees respectfully move that the District Court's Order which granted
Summary Judgment for Appellees be summarily affirmed. The Order of the Honorable
Paul J. Friedman, dated March l 4, 2001,2 (Mudd II) (Order and Memorandum
Opinion attached hereto), is so clearly correct that summary affirmance is
justified. See, e.g., Ambach v. Bell, 686 F. 2d 974, 979 (D.C. Cir. 1982) (per
curiam); Walker v. Washington, 627 F. 2d 541,545 (D.C. Cir.) (per curiam), cert.
denied 449 U.S. 994 (1980); United States v. Allen, 408 F. 2d 1287, 1288 (D.C.
Cir. 1969) (per curiam).
I. FACTUAL BACKGROUND
On April 9, 1865, General Robert E. Lee surrendered to the Union Army at
Appomattox, Virginia. Less than a week later, on April 14, 1865, President
Abraham Lincoln was assassinated by actor John Wilkes Booth at Ford's Theater.
Muddv. Caldera, 26 F. Supp. 2d 113, 115(D.D.C. 1998). Booth broke his leg when he jumped
from the President's balcony onto the stage at Ford's Theater. However, he and his accomplice,
David Herold, managed to escape into the night. They rode on horseback to the house of Dr.
Samuel Mudd in Charles County, Maryland. They arrived sometime in the early
morning of April 15, 1865. Id. at 116. Dr. Mudd set Booth's broken leg. He also
gave the two assassins food, lodging, and fresh horses. Id. Booth and Herold
departed Dr. Mudd's house later that day. Id.
On April 21, 1865, Dr. Mudd was arrested. Thereafter, in early May, Attorney
General James Speed stated that a military commission would have jurisdiction to
try Dr. Mudd and the other alleged co-conspirators. President Andrew Johnson
then convened "The Hunter Commission." On May 8, 1865, Dr. Mudd and eight other
civilians were charged with conspiracy to kill the President and other
government officials. Id at 116. Dr. Mudd objected to the jurisdiction of the
Hunter Commission. The Commission overruled his objections and convicted him of
aiding and abetting the assassin of President Lincoln. Id at 116. The Hunter
Commission sentenced Dr. Mudd to life in prison.
Dr. Mudd was incarcerated at Dry Tortugas Prison in the Florida Keys. He
subsequently, filed a petition for a writ of habeas corpus with the United
States District Court for the Southern District of Florida. Id. at 117. On
September 9, 1868, Judge Thomas Boynton denied Dr. Mudd's petition. Based on the
Supreme Court's decision in Ex Parte Milligan, 71 U.S. 2 (1866) he rejected Dr.
Mudd's argument that the Hunter Commission lacked jurisdiction to try him. He
concluded that the Milligan case did not apply to Dr. Mudd and that his crimes
were military in nature. He further concluded that it was "not Mr. Lincoln who
was assassinated, but
the commander-in-chief of the Army for military reasons." Mudd I at 117. See Ex
Parte Mudd, 17 F. Cas. 954 (S.D. Fla. 1868). President Andrew Johnson pardoned
Dr. Mudd on February 8, 1869. Dr. Mudd's appeal of the district court's denial
of his habeas petition was later dismissed by the Supreme Court because he was
no longer incarcerated. Mudd I at 117.
One hundred and twenty-three years later, Appellant, Richard Mudd, the grandson
of Dr. Samuel Mudd, filed an application with the Army Board for Correction of
Military Records (ABCMR), seeking expungement of Dr. Samuel Mudd's conviction by
the Hunter Commission. Appellant argued that the Hunter Commission lacked
jurisdiction to try Dr. Mudd. He further argued that Dr. Mudd was not guilty of
the offenses of which he was charged. Mudd I at 117.
The ABCMR conducted a hearing and made the following findings: that Dr. Mudd had
never served in the military of either the Union or the Confederacy; that Dr.
Mudd was a civilian and a citizen of Maryland and that Maryland was a
non-secessionist state. A.R. 29. The ABCMR concluded it was not authorized to
consider the issue of Dr. Mudd's guilt. A.R. 28
The ABCMR further concluded that the Hunter Commission lacked jurisdiction to
try Dr. Mudd. A.R. 29 The ABCMR recommended to the Secretary of the Army that
Dr. Mudd's conviction be set aside. A.R. 30
Assistant Secretary of the Army, William D. Clark, rejected the ABCMR's
recommendation that Dr. Mudd's conviction be set aside. Mudd I at 118. Appellant
requested that the Department of Army reconsider its decision. On February 2,
1996, Assistant Secretary of the Army Sara Lister also denied the ABCMR's
recommendation that Dr. Mudd's conviction be set aside. In 1997, Appellant filed
suit in the District Court seeking a review of Secretary Lister's decision under
the Administrative Procedure Act (APA, 5 U.S.C. 706), the All Writs Act (28
U.S.C. 1651), and the Declaratory Judgment Act (28 U.S.C. 2201).
The Honorable Paul J. Friedman ruled that the District Court had no jurisdiction
to grant either a writ of mandamus or a declaratory judgment and dismissed those
claims. Mudd I at 118119. The District Court also concluded that Assistant
Secretary Lister's decision was "arbitrary and capricious" because it failed to
address the argument that Dr. Mudd was a citizen of a non-secessionist state,
and that the decision relied on evidence outside the administrative record (Id.
at 120-124).
The District Court specifically found that Secretary Lister had failed to
address the argument that Dr. Mudd was a citizen of the United States and the
testimony of Appellant's expert Dr. Jan Horbaly that the Hunter Commission could
not exercise jurisdiction over Dr. Mudd under such circumstances. Id. at 123.
The Court also found that Secretary Lister had been mistaken when she claimed
that Dr. Mudd could have pursued judicial relief for his conviction when, in
fact, Dr. Mudd had no such opportunity after his pardon was granted. Id. For
these reasons, the District Court granted summary judgment to Appellant on the
APA claim. On October 29, 1998, the District Court remanded Secretary Lister's
decision for additional consideration by the Army. Mudd I at 123-124.
Patrick Henry, Assistant Secretary of the Army for Manpower and Reserve Affairs,
made the decision on remand as to whether the Hunter Commission had jurisdiction
to try Dr. Mudd. A.R. 513 - 515. In his decision, Assistant Secretary Henry
noted that Dr. Mudd was a citizen of the State of Maryland, a non-secessionist
state, that Dr. Mudd was neither a member of the Union nor Confederate Army
during the Civil War and that civilian courts were open in Washington, D.C.A.R.
513. At the time that the Hunter Commission convened to try Dr. Mudd, Assistant
Secretary Henry then determined that two Supreme Court decisions, Ex parte
Milligan, 71 U.S. 2 (1866) and Ex parte Quirin, 317 U.S. 1 (1942), provided the
precedent for a legal analysis of whether the Hunter Commission had jurisdiction
to try Dr. Mudd. Id. Assistant Secretary Henry concluded that the Quirin
decision provided the basis for analysis because it involved "law of war"
jurisdiction rather than Milligan's "martial law" jurisdiction. Assistant
Secretary Henry specifically rejected argument Appellant's expert's
interpretation of Ex parte Quirin that citizens of the United States [could not]
be tried by a military commission when the civilian courts are in operation.
A.R. 514. Assistant Secretary Henry found that a military tribunal had
jurisdiction to try "civilian belligerents for law of war and military
violations" without regard to whether civilian courts were in operation. A.R.
514 Additionally, because as Dr. Mudd was charged with acting as an enemy
belligerent by aiding and abetting those who had violated the laws and customs
of war, Dr. Mudd's citizenship in the State of Maryland was not dispositive of
whether the military tribunal had jurisdiction to try Dr. Mudd. A.R. 514.
Washington, D.C. was under a form of martial law at the time of President
Lincoln's assassination, conditions tantamount to a state of war existed at the
time of the assassination and Dr. Mudd's trial and that "the state of
hostilities we now call the Civil War was not legally declared at end until
1866." A.R. 514. Based on the forgoing, Assistant Secretary Henry denied the
ABCMR' recommendation to amend the records of Dr. Mudd's conviction. A.R. 515.
Appellant again proceeded to District Court.
Findings of the District Court
After the decision on remand, the District Court found that the Army had
addressed plaintiff's evidence before the ABCMR, that Dr. Samuel Mudd was a
citizen of the United States
and of a non-secessionist State, that he was not formally a member of either the
Union or Confederate Army, and that civilian courts were open. Mudd II at 142.
The District Court noted that Assistant Secretary Henry disagreed with
appellant's expert, Dr. Jan Harbaly, as to the significance of these facts. Mudd
II at 142. The District Court concluded that Assistant Secretary Henry was not
bound to accept Dr. Harbaly's opinion and that, after consideration of all the
evidence in the record, that Assistant Secretary Henry "was free to draw his own
reasonable inferences and conclusions from the evidence before him. (Citations
Omitted).
The District Court concluded that Assistant Secretary Henry provided a rational
explanation for his decision (Henry 2-3) and that his decision was based on
substantial evidence in the record and because it was not arbitrary, capricious
or an abuse of discretion. Mudd II at 147.
Inasmuch as Assistant Secretary Henry's decision involved an interpretation of
Ex parte Milligan, 17 U.S. 2 (1866) and Ex parte Quirin, 317 U.S. 1 (1942), the
District Court concluded that it must determine "whether in its view" the
Supreme Court's decision in Ex parte Quirin supported the Secretary's decision
that the Commission could properly exercise jurisdiction over Dr. Samuel Mudd,
or whether Ex parte Milligan foreclose [d] such a decision." The District Court
concluded that, "reading Milligan and Quirin together," that if Dr. Samuel Mudd
was charged with a law of war violation, it was permissible for him to be tried
before a military commission even though he was a United States and a Maryland
citizen and the civilian courts were open at the time of his trial. Mudd II at
146. Specifically, the District Court noted under Quirin, an "unlawful
belligerent"- a person not wearing a uniform, "[could] be tried and punished by
military Commission according to "the law of war." Ex parte Quirin 317 U.S. at
35." Mudd II at 145. The District Court stated that Quirin established no five part test to
determine "who was an "enemy belligerent" or when the exercise of "law of war"
jurisdiction [was] appropriate. Mudd II at 143. Although the Supreme Court used
both terms "enemy belligerent" and "unlawful belligerent, "the District Court
found that the Supreme Court intended "no distinction of significance." It was
clear, according to the District Court, that .Quirin did not exclude the
exercise o f jurisdiction by a military commission over those persons who were
not under the direction of enemy armed forces. See Ex parte Quirin, 317 U.S. at
37.
Indeed, even citizens and non-citizens could be subject to the jurisdiction ora
military commission for violation of law. In Quirin, it was unnecessary that an
unlawful belligerent be a citizen of an enemy sovereign, to relieve him of the
consequences of a belligerency which was unlawful because of a violation of law
of war. The District Court found that the unique facts of Milligan led the Court
to find that the law of war was inapplicable to Milligan. The Court in Mi lligan
had found that he was not subject to the of war jurisdiction.
Thus, the District Court concluded that Dr. Samuel Mudd had been appropriately
charged with a law of war violation and tried before the military commission
even though he was a citizen and Civilian courts were open at the time of his
trial. Second, the issue before the District Court was "whether Dr. Mudd was in
fact charged with a violation of the "law of war."Mudd II at 146. Here, both the
Hunter Commission and Judge Boynton and Assistant Secretary Henry found a law of
war violation.
Assistant Secretary Henry agreed that the charges that Dr. Mudd aided and
abetted President Lincoln's assassins constituted a military offense rendering
Dr. Mudd accountable for his conduct toward military authorities. A.R. 514 -
515. The District Court found that Assistant Secretary Henry's decision
finding a law of war violation was not arbitrary,
capricious or not in accordance with law and consistent with the District
Court's reading of MiIligan and Quirin. Mudd II at 146 - 147.
The District Court concluded that based on its analysis of Quirin and Milligan,
the decision to charge Dr. Mudd with a law of war violation could not to be
disturbed. Mudd II at 147.
II. ARGUMENT
A. The Standard Of Review.
In APA cases based on a review of an administrative record, the district court's
decision is reviewed de novo by this Court. Milk Industry_ Foundation v.
Glickman, 3d 1467, 1473 (D.C. Cir. 1998); Miller v. Lehman, 801 F. 2d 942 (D.C.
Cir. 1986). Although the district court's decision is not entitled to any
deference, "the review of the Secretary's findings are deferential." Milk
Industry Foundation at 147. "The scope of the review 'arbitrary and capricious'
standard is narrow, and a court is not to substitute its judgment for the
agency." Id.
B. The District Court Properly Found That The Decision Of Assistant Secretary
Henry Was Not Arbitrary Or Capricious, Or Contrary To Law, And Was Based On
Substantial Evidence In The Record.
The District Court could only vacate the decision of ASA Henry if it was
"arbitrary, capricious,...or otherwise not in accordance with law." 5 U.S.C.
706(2)(a). "Plaintiff has the burden of satisfying this standard by providing
"cogent and clearly convincing evidence" and must "overcome the presumption that
military administrators discharge their duties correctly, lawfully, and in good
faith." Smith v. Dalton, 927 F. Supp. 1,4 (D.D.C. 1996). "Under this
standard, Plaintiff has the burden of showing by cogent and clearly convincing
evidence that the military decision was the product of a material legal error or
injustice. McDougall v. Widnall, 20 F. Supp. 2d 78, 82 (D.D.C. 1998)
"The standard does not require a reweighing of the evidence, but a determination
whether the conclusion being reviewed is supported by substantial evidence."
Heisig v. United States, 719 F. 2d 1153, 1157 (Fed. Cir. 1983). All that is
required is that the Secretary's decision "minimally contain" a rational
connection between the facts found and the choice made." Frizelle v. Slater, 111
F. 3d 172, 176 (D.C. Cir. 1997). "Adjudication of these claims requires a court
to determine whether the Secretary's decision making process was deficient,
rather than whether his decision was correct." Charette v. Walker, 996 F. Supp
43, 50 (D.D.C. 1998).
"However, should a court find the Secretary's decision making process was
deficient, appropriate relief consists only of remand to the Secretary with
instructions to follow the appropriate legal standards and to explain his
reasoning more fully. Id. "We require only that the agency exercise its
discretion in a reasoned manner, but we defer to the agency's ultimate
decision." Kreis v. Sec'y of the Air Force, 866 F. 2d t508, 1512 (D.C. Cir.
1989). "Since the statute [ 10 U.S.C. 1552] authorizing the Secretary to
correct military records gives the Secretary a great deal of discretion, the
arbitrary and capricious standard is even more difficult to meet than in other
agency review cases. Mudd I 26 F. Supp. 2d at 120.
1. The District Court Properly Found that Dr. Samuel Mudd Could be Tried by A
Military Commission if He Were Charged With A Violation of The Law of War.
First, the District Court found that the Army had complied with the remand
directive by the Court. (Mudd II, at 143). The District Court found that
Assistant Secretary Henry had considered the testimony of Appellant's expert,
Dr. Jan Horbaly, with regard to Dr. Mudd's citizenship in Maryland, a
non-secessionist state (Id.) The District Court then determined that Assistant
Secretary Henry's decision should be evaluated on the basis of the Supreme
Court's ruling in Ex Parte Quirin, 317 U.S. 1 (1942).
In Ex Parte Quirin, Herbert Haupt, an American citizen was one of eight Nazi
saboteurs who came ashore in Florida and New York by German submarines in 1942.
Their aim was to destroy American War industries and war facilities. Id. at
21-22. As with Dr. Mudd, Haupt contended that his United States citizenship
precluded the application of the "Law of War" to him under the Court's previous
decision of Ex Parte Milligan. Quirin at 45. The Supreme Court rejected this
argument, holding that Haupt's acts constituted a violation of the "Law of War,"
and therefore, were. triable by a military commission. Quirin at 46.
Here, the District Court correctly found that there was no distinction between
civilians and soldiers in regard to those who commit law of war violations (Id.
at 145-146). Similarly, as the Supreme Court found in Quirin, Dr. Mudd, an
American citizen, could be tried by a military commission. The District Court
carefully distinguished the holding of Ex Parte Milligan, 71 U.S. 2 (1866). In
Ex Parte Milligan, the court held that a military commission did not have
jurisdiction to try a civilian. The District Court noted that the fundamental
inquiry under Quirin and Milligan was whether the accused had been charged with
a violation of the law of war Mudd II at 146). The District Court stated that "this court concludes
that if Dr. Samuel Mudd was charged with a law of war violation, it was permissible for
him to be tried before a military commission even though he was a citizen of the
United States and a Maryland citizen while the civilian courts were open at the
time of his trial." Mudd II at 146. The District Court's conclusion was well
supported by the law of Ex Parte Quirin and Ex Parte Milligan. Accordingly, the
decision of the District Court should be summarily affirmed.
2. The District Court's Finding That Dr. Samuel Mudd was Charged With A
Violation of the Law of War is Based on Substantial Evidence in The Record.
The District Court noted that Appellant's own expert could not easily define a
violation of the law of war. Mudd II at 146. The District Court found that while
the United States Supreme Court did not draw meticulous boundaries with regards
to law of war jurisdiction, it would look to Judge Boynton's decision to
determine the applicability of the Secretary's assertion that Dr. Mudd was a
"belligerent," as charged by the Hunter Commission. Id.
Dr. Mudd had initially challenged the jurisdiction of the Hunter Commission in
the United States District Court for the Southern District of Florida. Dr. Mudd
argued that Ex Parte Milligan, 71 U.S. 2 (1866) prevented his trial before the
military commission. Judge Boynton, however, determined that Mudd's crimes were
a "military offense" (A.R. 151). and "that the military commission not only had
jurisdiction, but was the proper tribunal for the purpose" of trying the war
crimes ofMudd (A.R. 152). Judge Boynton also found that Mr. Lincoln had been
assassinated, not in his capacity as President, but as Commander-In-Chief of the
army, for military reasons. Mudd II at 147; Ex Parte Mudd, 17 F. Cas. at 954.
The District Court correctly found that Dr. Mudd's acts, rather than his status,
governed the jurisdiction of the Hunter Commission. Mudd II at 146. Dr. Mudd's war crime
involved thae assassination of the Commander-in-Chief . Dr. Mudd's aid to John Wilkes Booth
enabled the known assassin of President Abraham Lincoln to evade federal authorities for
eleven days after the assassination. Mudd II at 146-147. Thus, the District Court correctly
determined that the Supreme Court's decision in Quirin and Judge Boynton's decision provided
ample support for Assistant Secretary Henry's decision that the Hunter Commission had
jurisdiction to try Dr. Mudd.
Conclusion
For the foregoing reasons, appellees respectfully request that this Court
summarily affirm
the District Court's decision granting appellees' cross motion for summary
judgment.
Footnotes:
1 Louis Caldera is no longer the Secretary of the Army. Thomas A. White, Jr. is
now the Secretary of the Army.
2 Judge Friedman's initial decision in this case was Mudd v. Caldera, 26 F. Supp,
2d 113(1998, D.D.C.) (Mudd I). Mudd v. Caldera, 134 F. Supp 2d 138 (D.D.C. 2001) (Mudd
II) is the only decision before this Court.
3 Booth was later killed on April 26, 1865. Id. 2
KENNETH L. WAINSTEIN
United States Attorney
LIEUTENANT COLONEL JILL M. GRANT R. CRAIG LAWRENCE
MAJOR JAMES R. AGAR II Assistant United States Attorney
U.S. Army Litigation Division
Office of the Judge Advocate General
WYNEVA JOHNSON
Assistant United States Attorney
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