The opinion of the court was delivered by: Paul L. Friedman United States District Judge
The Court previously granted plaintiff's first motion for summary judgment with respect to Count One, which resulted in a remand to the Secretary of the Army, and dismissed the other two counts of the complaint. See Mudd v. Caldera, 26 F. Supp. 2d 113 (D.D.C. 1998). After the Secretary's decision on remand, this case is back before the Court on plaintiff's second motion for summary judgment and defendants' cross-motion to dismiss or, in the alternative, for summary judgment. As a result of the remand, Count One effectively has become moot and the issue now before the Court relates to Count Four of plaintiff's amended and supplemental petition and complaint which addresses the new March 6, 2000 decision of the Secretary of the Army, once again denying plaintiff's request to amend military records.
The factual background and context of this case are fully set out in this Court's earlier opinion in Mudd v. Caldera, 26 F. Supp. 2d at 115-18. Briefly, plaintiff, Dr. Richard D. Mudd, is the grandson of Dr. Samuel Mudd, who was arrested, charged and convicted before a military commission, the Hunter Commission, of aiding and abetting as an accessory after the fact in the conspiracy to kill President Abraham Lincoln and other government officials. Specifically, on the night of Lincoln's assassination, the first Dr. Mudd provided shelter and medical treatment to John Wilkes Booth and his companion, David Herold, and the next day gave them horses so they could continue on their way. Id. at 116. Dr. Samuel Mudd argued at the time of his trial that the Hunter Commission lacked jurisdiction and that his trial before the Commission violated his constitutional right to a trial by jury in a civilian court with all its protections. The Commission itself, Attorney General James Speed, and Judge Thomas Jefferson Boynton of the United States District Court for the Southern District of Florida all rejected this argument. See id. at 116-17; Admin. Record at 360-66, 410-11, 432-33; Ex parte Mudd, 17 F. Cas. 954 (S.D. Fla. 1868). Dr. Mudd was convicted and sentenced to life imprisonment, but later was granted a full and unconditional pardon by President Andrew Johnson because of his service in battling the yellow fever epidemic while in prison. Mudd v. Caldera, 26 F. Supp. 2d at 117.
More than a century later, Dr. Mudd's grandson, Dr. Richard Mudd, filed an application with the Army Board for Correction of Military Records ("ABCMR"), asserting both that Dr. Mudd was in fact not guilty of the offense with which he was charged and that the Commission lacked jurisdiction to try him. After a hearing, the ABCMR found that it was not authorized to consider the actual innocence or guilt of Dr. Mudd, but it unanimously concluded that the Commission did not have jurisdiction to try him and recommended that his conviction therefore be set aside. Mudd v. Caldera, 26 F. Supp. 2d at 117. William D. Clark, Acting Assistant Secretary of the Army, denied the Board's recommendation. *fn1 Acting on Dr. Mudd's request for reconsideration, Assistant Secretary of the Army Sara Lister subsequently reviewed the matter and again concluded that the Commission had jurisdiction; she, too, denied Dr. Mudd's request for relief. Id. at 118.
When this case was first before this Court, the Court recognized its limited role and the deference it owed to the Secretary under the Administrative Procedure Act and the relevant case law. See Chappell v. Wallace, 462 U.S. 296, 303 (1983); Kreis v. Secretary of the Air Force, 866 F.2d 1508, 1512, 1514-15 (D.C. Cir. 1989). Applying this Circuit's decision in Frizelle v. Slater, 111 F.3d 172, 176-78 (D.C. Cir. 1997), the Court nevertheless found (1) that Assistant Secretary Lister's decision was arbitrary and capricious under the APA because it did not consider or address a seemingly meritorious and certainly non-frivolous argument raised by Dr. Richard Mudd; and (2) that her decision was based in part on the premise that Dr. Samuel Mudd could have judicially challenged the jurisdiction of the Commission even after he was pardoned, a premise for which there was no support either in the Administrative Record or in existing law at the time. See Mudd v. Caldera, 26 F. Supp. 2d at 120, 121-23.
At the hearing before the ABCMR, Dr. Richard Mudd presented the testimony of Dr. Jan Horbaly, an expert on court martial jurisdiction. Dr. Horbaly testified that there were four types of military jurisdiction, two of which were arguably relevant: "martial law" jurisdiction and "law of war" jurisdiction. Mudd v. Caldera, 26 F. Supp. 2d at 121. According to Dr. Horbaly, the Commission could not have been exercising martial law jurisdiction because the military only has martial law jurisdiction if the civilian courts are closed, which was not the case here. Id. Dr. Horbaly also testified that he did not believe the Commission had law of war jurisdiction because such jurisdiction only exists (1) when the civilian courts are closed and an American civilian is charged with treason, or (2) when a state of war exists and a non-citizen "belligerent" is accused of violating the accepted rules of war. Id. at 122. There is no dispute that the civilian courts were open. Dr. Horbaly testified that the Commission therefore could only have had law of war jurisdiction if there was still a state of war and if Dr. Mudd was a non-citizen belligerent and was charged with violating the accepted rules of war. Id. He concluded that because Dr. Mudd was a citizen of the United States and a citizen of Maryland, a state that had not seceded from the Union and was never at war with the Union, Dr. Mudd should not have been subject to "law of war" jurisdiction and tried before a military tribunal. Id. The ABCMR agreed. While Assistant Secretary Lister appeared to agree with Dr. Horbaly and the ABCMR that the Hunter Commission did not have martial law jurisdiction, she rejected the view of the ABCMR that there was no law of war jurisdiction. Id.
In vacating and remanding Assistant Secretary Lister's decision to the Secretary of the Army, this Court found that the "fundamental problem" with her decision lay in the fact that she never addressed the argument that Dr. Samuel Mudd was a citizen of the United States and a citizen of Maryland, a non-secessionist state. Because of this failing, Assistant Secretary Lister also never considered the expert opinion of Dr. Horbaly that for these reasons the Commission could not lawfully exercise law of war jurisdiction over Dr. Mudd. Mudd v. Caldera, 26 F. Supp. 2d at 123. Assistant Secretary Lister therefore never indicated whether she believed that such citizenship would or would not preclude the exercise of law of war jurisdiction. This Court concluded under Frizelle that it was arbitrary and capricious for her not even to address Dr. Richard Mudd's law of war argument and the evidence he had presented in support of it. Id.
On remand, the matter fell to Assistant Secretary of the Army Patrick T. Henry for decision. In his decision, Assistant Secretary Henry did not find it necessary to deal with that portion of Assistant Secretary Lister's decision finding that Dr. Samuel Mudd had failed to seek judicial relief after receiving a pardon and this Court's opinion that that portion of her decision was not supported by substantial evidence. See Notice of Filing of March 6, 2000 Decision of Patrick Henry, Assistant Secretary of the Army for Manpower and Reserve Affairs ("Henry Decision") at 1. *fn2 Instead, he focused exclusively on the "dispositive issue" of whether the Commission had jurisdiction to try Dr. Mudd. Id. Assistant Secretary Henry acknowledged in his decision that Dr. Mudd was a citizen of the State of Maryland, a non-secessionist state, that Dr. Mudd was not formally a member of either the Union or Confederate Army during the Civil War, and that the civilian courts in Washington, D.C. were open at the time the Commission tried Dr. Mudd. Id. He concluded, however, that these facts "are not critical" to deciding whether the Commission had jurisdiction in this case. Id.
Assistant Secretary Henry then turned to two decisions of the United States Supreme Court, Ex parte Milligan, 71 U.S. 2 (1866), the case primarily relied upon by the ABCMR, and the later decision of the Court in Ex parte Quirin, 317 U.S. 1 (1942). He found that Quirin, a decision that dealt with "law of war" jurisdiction, was more relevant than Milligan, which he concluded dealt primarily with "martial law" jurisdiction. Henry Decision at 1. Assistant Secretary Henry stated expressly that he fully considered Dr. Horbaly's testimony and acknowledged the facts on which Dr. Horbaly relied but did not agree with Dr. Horbaly's opinion that a United States citizen could not be tried by a military commission: "I do not agree with his opinion and interpretation of Ex Parte Quirin that citizens of the United States cannot be tried by a military commission when the civilian courts are in operation." Id. at 2. Assistant Secretary Henry concluded that regardless of these facts a military tribunal has jurisdiction to try "civilian belligerents for law of war and military violations." Id. He found that "Dr. Mudd's citizenship in the State of Maryland is not dispositive of the issue of whether the military tribunal had jurisdiction because Dr. Mudd was charged with acting as an enemy belligerent by aiding and abetting those who have violated the laws and customs of war." Id. Assistant Secretary Henry also noted that Washington, D.C. "remained under a form of martial law at the time of the Lincoln assassination," that 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 an end until 1866." Id.
The plaintiff, Dr. Richard Mudd, argues that the new decision of the Department of the Army is as flawed as the first one and that this Court must again conclude that the Army acted arbitrarily, capriciously and contrary to law. He also argues that there is no substantial evidentiary basis in the record for some of Assistant Secretary Henry's predicate facts. Specifically, he argues that there is no record evidence to support the characterization of Dr. Samuel Mudd as an "unlawful enemy belligerent"; he maintains that as a "non-enemy belligerent" Dr. Mudd necessarily was a civilian and an American citizen and that he therefore had to be tried in a civilian court, as the Supreme Court required for such persons in Milligan. In plaintiff's view, Quirin is not to the contrary because the Supreme Court in Quirin required that the Army meet a five-part test in order to classify someone as an "enemy belligerent" and subject him to law of war jurisdiction before a military commission - a test he says the Army failed to meet here. Plaintiff also argues that there is no support in the record for Assistant Secretary Henry's finding that the Civil War was still going on or that "conditions tantamount to a state of war existed" at the time of President Lincoln's assassination and Dr. Mudd's trial.
The Army argues that it now has fully addressed the only dispositive question this Court required it to consider on remand - namely, the issue of whether Dr. Mudd was a citizen of the United States and a citizen of Maryland, a non-secessionist state - and that it now has considered the expert testimony of Dr. Horbaly that the Commission could not exercise law of war jurisdiction over such a citizen when the civilian courts were open. It has acknowledged that Dr. Mudd was a citizen of the United States and of non-secessionist Maryland, but it simply found those facts not to be critical to the question of jurisdiction. Specifically, the Army maintains that while American citizenship may be relevant under Milligan in determining whether a military tribunal has martial law jurisdiction, it is not relevant in determining whether it has law of war jurisdiction. It argues that the Supreme Court's opinion in Quirin supports its position that the civilian courts do not have exclusive jurisdiction over law of war violations merely because certain criminal acts were committed by a "civilian belligerent."
Because it is not bound by Dr. Horbaly's opinion and because it says its findings are supported by substantial evidence in the record, the Army argues that this Court should defer to its reasonable judgment on this matter and hold that its ultimate conclusion that the Commission properly ...