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October 29, 1998

RICHARD D. MUDD, M.D., Plaintiff,
LOUIS CALDERA, Secretary of the Army, et al, Defendants. 1

The opinion of the court was delivered by: FRIEDMAN

This case is before the Court on cross motions for summary judgment. After the Court heard argument, the parties filed supplemental briefs addressing an issue raised by the Court regarding the effect of the President's pardon of Dr. Mudd on the relief sought in this case. Upon consideration of the briefs and the arguments of counsel, the Court concludes that plaintiff has established that the decision of the Secretary of the Army to reject the unanimous recommendation of the Army Board for the Correction of Military Records was arbitrary and capricious and unsupported by substantial evidence in the record. Plaintiff's motion for summary judgment with respect to Count I of his complaint therefore will be granted. The other two counts must be dismissed.


 One sentence in a police log concisely summarizes the events of April 14, 1865. "At this hour the melancholy intelligence of the assassination of Mr. Lincoln, President of the U.S., at Fords Theater was brought to this office." District of Columbia Metropolitan Police Department Blotter, April 14, 1865. Perhaps it is appropriate that the sentence conveys no emotion; no one sentence could have captured the turmoil of the country or the anguish the assassination evoked at that moment in history.

 For four years, the nation had struggled against itself, north against south, one American killing another. The war dragged on. By early March 1865, the Union forces had made gains, and it appeared that they would prevail. President Lincoln faced the country on the occasion of his second inaugural address with apparent fatigue.

The progress of our arms, upon which all else chiefly depends, is as well known to the public as to myself, and it is, I trust, reasonably satisfactory and encouraging to all. . . . Neither party expected for the war the magnitude or the duration which it has already attained. Neither anticipated that the cause of the conflict might cease with or even before the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding. . . . . Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said "the judgments of the Lord are true and righteous altogether."
With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.


 By mid-April, Richmond had capitulated to the Union forces and Lee had surrendered to Grant. All not only hoped but knew that soon the war was to end and the soldiers were to come home and life was to return to normal. And so it was with a sense of euphoria or at least profound relief that the Union prepared to celebrate Good Friday, April 14, 1865.

 The rest of that evening, of course, is history. President and Mrs. Lincoln attended a benefit at Ford's Theater, a performance of the comedy Our American Cousin. A shot rang out, a man leaped from the presidential box to the stage and limped from the theater. President Lincoln died the next day.

 The flight of John Wilkes Booth and his companion David Herold, who earlier that evening had assisted Lewis Payne in a failed attempt to kill Secretary of State William Seward, led the two men to Charles County, Maryland, where Dr. Samuel Mudd was a physician and tobacco farmer. On the morning of April 15, 1865, the two fugitives who, according to Dr. Mudd, were wearing disguises knocked at Dr. Mudd's door and told him that Mr. Booth had fallen from his horse and broken his leg. They asked Dr. Mudd to set Mr. Booth's leg. Dr. Mudd set the leg and provided the two men with food, lodging for the night and horses to continue on their way.

 On April 21, 1865, Dr. Mudd and six others were arrested. Administrative Record ("AR"), Tab 5 (ABCMR Record of Proceedings and Recommendation) at 5. *fn2" In early May 1865, Attorney General Speed issued a one-sentence opinion that if a military commission was convened it would have jurisdiction to try the conspirators, and President Johnson promptly convened a nine-member Military Commission with Major General David Hunter as its presiding officer (the "Hunter Commission"). Id. On May 9, 1865, the eight co-conspirators were charged, inter alia, with conspiracy to kill the President and other government officials. Id. at 6.

 As part of his defense, Dr. Mudd argued that the Hunter Commission lacked jurisdiction to try him and that trial before the Commission violated his constitutional right to a jury trial. The Hunter Commission rejected that argument and found the conspirators guilty as charged. *fn3" Four were sentenced to death. By a one vote margin, Dr. Mudd was sentenced to life in prison rather than to death and was incarcerated at a military prison in Florida. Two of the remaining conspirators were sentenced to life in prison, and the other was sentenced to six years. AR, Tab 5 (ABCMR Record of Proceedings and Recommendation) at 6. The Attorney General subsequently issued a further and fuller explanation of his determination that the Hunter Commission had jurisdiction over the eight conspirators. AR, Tab 18 (Jurisdictional Opinion, Att'y Gen'l Speed).

 On April 3, 1866, the Supreme Court entered an order granting a petition for a writ of habeas corpus in an unrelated case involving Lambdin P. Milligan and six others who had been tried before a military tribunal in Indiana. By subsequent opinion, the Court explained its conclusion that the military commission lacked jurisdiction over Milligan and the other defendants:

Milligan, not a resident of one of the rebellious states, or a prisoner of war, but a citizen of Indiana for twenty years past, and never in the military or naval service, is, while at his home, arrested by the military power of the United States, imprisoned, and, on certain criminal charges preferred against him, tried, convicted, and sentenced to be hanged by a military commission, organized under the direction of the military commander of the military district of Indiana. Had this tribunal the legal power and authority to try and punish this man?
No graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole people; for it is the birthright of every American citizen when charged with a crime, to be tried and punished according to law. . . .
It is insisted that the safety of the country in time of war demands that this broad claim for martial law shall be sustained. If this were true, it could well be said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation. Happily, it is not so.

 Ex Parte Milligan, 71 U.S. 2, 118-19, 126, 18 L. Ed. 281 (1866).

 After the decision in Milligan, Dr. Mudd filed his own petition for a writ of habeas corpus with the Supreme Court. The petition was denied apparently because he had failed to bring the petition first in the district court. *fn4" Dr. Mudd subsequently filed a habeas petition in the United States District Court for the Southern District of Florida, arguing, inter alia, that in light of the Supreme Court's decision in Milligan, the Hunter Commission lacked jurisdiction over him. On September 9, 1868, Judge Thomas Jefferson Boynton denied Dr. Mudd's petition. See AR, Tab 21 (Opinion). Judge Boynton found that the Supreme Court's decision in Milligan did not apply to the Hunter Commission because President Lincoln "was assassinated not from private animosity nor any other reason than a desire to impair the effectiveness of military operations and enable the rebellion to establish itself into a government. . . . It was not Mr. Lincoln who was assassinated, but the commander-in-chief of the Army for military reasons." Id. See Ex parte Mudd, 17 F. Cas. 954 (S.D. Fla. 1868).

 Dr. Mudd appealed the denial of his habeas petition to the Supreme Court. On February 8, 1869, however, President Andrew Johnson fully and unconditionally pardoned Dr. Mudd and released him from prison because of his service in battling the yellow fever epidemic. AR, Tab 22 (Pardon of Dr. Mudd). It seems that while incarcerated Dr. Mudd had treated numerous patients suffering from yellow fever, both prisoners and military personnel, and had saved many lives; in fact, he had contracted the disease himself while treating others, but survived. AR, Tab 5 (ABCMR Record of Proceedings and Recommendation) at 6-7. The Supreme Court then dismissed as moot Dr. Mudd's appeal of the district court's denial of habeas relief because Dr. Mudd was no longer incarcerated.

 One hundred and twenty-one years later, Dr. Richard Mudd, the grandson of Dr. Samuel Mudd, filed an application with the Army Board for Correction of Military Records ("ABCMR"), a civilian board set up pursuant to 10 U.S.C. § 1552, to make recommendations to the Secretary of the Army regarding the correction of Army records. Dr. Richard Mudd sought to have the ABCMR correct the record of his grandfather to declare him innocent. AR, Tab 12 (Original Application to ABCMR). Dr. Mudd asserted two errors: (1) that the Hunter Commission lacked jurisdiction to try Dr. Mudd, and (2) that Dr. Mudd was not in fact guilty of the offense with which he was charged.

 The ABCMR conducted a hearing, and on January 22, 1992, found, inter alia, that (1) Dr. Mudd never served in the military and continued to practice medicine during the Civil War; (2) at the time Lincoln was shot Dr. Mudd was a civilian and a citizen of Maryland; (3) Maryland was a non-secessionist state; and (4) the Hunter Commission had overruled all requests for a change in venue to the civilian courts in the District of Columbia "which were open and functioning." AR Tab 5 (ABCMR Record of Proceedings and Recommendation) at 3, 6, 12. It unanimously concluded that the Hunter Commission "did not have jurisdiction to try [Dr. Mudd], and that in so doing denied him his due process rights, particularly his right to trial by a jury of his peers. This denial constituted such a gross infringement of his constitutionally protected rights, that his conviction should be set aside. To fail to do so would be unjust." Id. at 12. *fn5" The ABCMR therefore recommended that the Secretary of the Army order the Archivist of the United States to correct Dr. Mudd's record by showing that the conviction was set aside. Id. at 13.

 Six months later, William D. Clark, Acting Assistant Secretary of the Army, denied the Board's recommendation and Dr. ...

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