United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 3, 2002 Decided November 8, 2002

No. 01-5103

Thomas B. Mudd,
Son of Richard D. Mudd and great-grandson of
Samuel A. Mudd, as heir and successor to
Samuel A. Mudd, deceased,
Appellant

v.

Thomas A. White, Secretary of the Army, et al.,
Appellees

Appeal from the United States District Court
for the District of Columbia
(No. 97cv02946)

Philip A. Gagner argued the cause and filed the briefs for
appellant.


R. Craig Lawrence, Assistant United States Attorney, ar-
gued the cause for appellees. With him on the briefs were
Roscoe C. Howard Jr., United States Attorney, Wyneva
Johnson, Assistant United States Attorney, and James R.
Agar II, Attorney, Office of the Judge Advocate General.

Before: Edwards and Rogers, Circuit Judges, and
Williams, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Edwards.

Edwards, Circuit Judge: The appellant, Thomas B. Mudd,*
whose great-grandfather, Dr. Samuel Mudd, was convicted by
a military tribunal for his alleged role in the assassination of
President Abraham Lincoln, seeks judicial review of the
Army's refusal to reverse that conviction more than a century
later. Appellant bases his claim on 10 U.S.C. s 1552(a)(1)
(2002), pursuant to which "[t]he Secretary of a military
department may correct any military record ... when the
Secretary considers it necessary to correct an error or re-
move an injustice." The Army Board for Correction of
Military Records ("ABCMR"), upon reviewing appellant's ap-
plication, recommended that Dr. Samuel Mudd's conviction
before a military commission be set aside. The Assistant
Secretary of the Army (the "Secretary"), however, denied
appellant's request for relief. Appellant then filed suit in the
District Court, claiming that the action of the Secretary was
arbitrary and capricious under the Administrative Procedure
Act ("APA"), 5 U.S.C. s 706(1)(A) (2002). The District Court
heard the case twice, see Mudd v. Caldera, 134 F. Supp. 2d
138 (D.D.C. 2001) ("Mudd II"); Mudd v. Caldera, 26 F. Supp.
2d 113 (D.D.C. 1998) ("Mudd I"), ultimately finding that the
Secretary's decision was not arbitrary, capricious, or other-
wise in violation of law. The District Court therefore granted
summary judgment for the Army. Mudd II, 134 F. Supp. 2d
at 147.

__________
* Richard D. Mudd, the original complainant in this case, passed
away earlier this year, leaving his son - the great-grandson of Dr.
Samuel Mudd - to pursue this appeal. See Richard D. Mudd, 101
Grandson of Booth Doctor, Wash. Post, May 22, 2002, at B07.


We agree that appellant cannot prevail on his claim. But
we rely on different grounds than those advanced by the
District Court. In our view, appellant's claim must be dis-
missed for want of standing. Under 10 U.S.C. s 1552(g),
"military record" pertains only to "an individual member or
former member of the armed forces." Dr. Samuel Mudd was
never a member of the armed forces. Therefore, even if
appellant can establish Article III standing, his action must
be still dismissed for want of prudential standing. Appellant's
interest in correcting the military record that relates to his
great-grandfather's conviction is not within the "zone of inter-
ests" protected by the statute covering the correction of
military records.

I. Background

The factual and procedural history in this case are recount-
ed fully and thoughtfully in the District Court's opinions in
Mudd I and Mudd II. We will thus not repeat the extensive
details of the actions before ABCMR, the Secretary, or the
District Court. Rather, we will focus on the portions of the
record that are most pertinent to this appeal.

On May 9, 1865, a special military tribunal charged eight
parties with conspiring to murder President Abraham Lin-
coln. One of these individuals was Dr. Samuel Mudd ("Dr.
Mudd"), a non-military physician who owned a tobacco farm
in Charles County, Maryland. Mudd II, 134 F. Supp. 2d at
140; Mudd I, 26 F. Supp. 2d at 116. Dr. Mudd was visited
by John Wilkes Booth and an accomplice following the well-
known events at Ford's Theater on April 14, 1865. After
fatally wounding President Lincoln on that evening, Booth
stopped at Dr. Mudd's farm - possibly in disguise - to receive
medical treatment for an injury that he sustained during the
escape. Id. Dr. Mudd told others about this encounter, and
authorities soon thereafter arrested him for assisting in the
infamous assassin's flight.

President Andrew Johnson convened a special military
tribunal to try all cases having to do with the plot to kill
President Lincoln. Known as the Hunter Commission, the


nine appointed members of this body considered the evidence
on the charges against Dr. Mudd. Id. Attorney General
James Speed announced his opinion that a military court
could preside over these hearings because the object of the
conspiracy was the murder of President Lincoln, who acted as
commander in chief. See 12 Op. Att'y Gen. 297-317 (1865),
reprinted in Joint Appendix ("J.A.") 19-25.

In his defense, Dr. Mudd argued that allowing the Commis-
sion to assert jurisdiction over his case was unlawful. Mudd
I, 26 F. Supp. 2d at 116. He reasoned that a non-military
citizen was entitled to adjudication in the civilian courts
during peace time. Since the state of Maryland was not part
of the Confederacy and local civilian courts remained open, a
military tribunal had no power to try the case. The Hunter
Commission rejected this argument, issued a final judgment
against Dr. Mudd, and then sentenced him to life imprison-
ment. Id.

During his incarceration, Dr. Mudd petitioned the federal
courts for habeas relief. See Mudd II 134 F. Supp. 2d at 140;
Mudd I, 26 F. Supp. 2d at 117; see also Ex Parte Mudd, 17
F. Cas. 954 (S.D. Fla. 1868), reprinted in J.A. 41-43. Dr.
Mudd relied on the Supreme Court's holding in Ex Parte
Milligan, 71 U.S. 2 (1866), a case adopting a limited view of a
military tribunal's jurisdiction over civilians from non-
secessionist states. See also Ex Parte Quirin, 317 U.S. 1
(1942). The District judge rejected these arguments and
denied the habeas petition. J.A. 43. An appeal of that ruling
on the merits never occurred due to intervening events
leading to Dr. Mudd's release from prison. On February 8,
1869, President Andrew Johnson issued a full and uncondi-
tional pardon to Dr. Mudd in recognition of his efforts to
assist medical officers during an epidemic of yellow fever.
See Pres. Pardon of Samuel A. Mudd, reprinted in J.A. 44-48;
Mudd I, 26 F. Supp. 2d at 117; see also Mudd Compl. at p 26.

More than a century later, Richard D. Mudd, Dr. Samuel
Mudd's grandson, filed a formal petition with the Army to
overturn the judgment of the Hunter Commission. Mudd II,
134 F. Supp. 2d at 140; Mudd I, 26 F. Supp. 2d at 117.


Richard Mudd based his claim solely on 10 U.S.C.
s 1552(a)(1), pursuant to which "[t]he Secretary of a military
department may correct any military record ... when the
Secretary considers it necessary to correct an error or re-
move an injustice." He asked the Army to expunge the
official documents relating to his grandfather's conviction.
He specifically argued that the judgment of the Hunter
Commission was invalid, because his grandfather was factual-
ly innocent of the conspiracy charge and because a military
tribunal had no jurisdiction to try civilians during times of
peace. Mudd II, 134 F. Supp. 2d at 140; Mudd I, 26
F. Supp. 2d at 117.

ABCMR conducted a hearing on the petition and deter-
mined that circumstances warranted a reversal of Dr. Mudd's
conviction on the ground that the Hunter Commission's juris-
diction did not extend to noncombatant civilians like Dr.
Mudd. Mudd I, 26 F. Supp. 2d at 122. On January 22, 1992,
ABCMR recommended that the Secretary of the Army alter
the necessary records and void the 19th Century conviction.
Id.

The Secretary rejected ABCMR's recommendation and
declined to alter the records relating to Dr. Mudd's convic-
tion. Mudd II 134 F. Supp. 2d at 141. Following a remand
from the District Court to conduct additional administrative
proceedings, see Mudd I, 26 F. Supp. 2d at 120, the Secretary
held steadfast to the view that the Hunter Commission acted
within its lawful jurisdiction in convicting Dr. Mudd. Mudd
II, 134 F. Supp. 2d at 142. The Secretary reasoned that John
Wilkes Booth was an unlawful belligerent who had committed
the Lincoln assassination as an act of war. Therefore, ac-
cording to the Secretary, the military tribunal's power to try
Dr. Mudd was appropriate because the laws of war applied to
all parts of the underlying conspiracy. Id.

Richard Mudd then sought judicial review in District Court,
claiming that the Secretary's action in denying relief under 10
U.S.C. s 1552(a)(1) was arbitrary and capricious under the
Administrative Procedure Act ("APA"), 5 U.S.C. s 706(1)(A).
On March 14, 2001, the District Court granted summary


judgment in favor of the Army. Mudd II, 134 F. Supp. 2d at
147-48. The trial judge found that the Army reached its
decision after properly weighing the evidence presented in
favor of reversing the conviction. Id. at 143-44. The District
Court also found that the Secretary's application of the "law
of war" principle instead of the martial law principle found in
Milligan was not arbitrary, capricious, or contrary to law.
Id. at 146-47. Appellant then sought review in this court.

Richard D. Mudd died earlier this year, leaving his son -
the great-grandson of Dr. Mudd - to pursue this appeal. On
August 20, 2002, after the initial submission of briefs, the
court directed the parties to provide supplemental briefing on
the issue as to whether appellant lacked standing to seek
judicial relief in federal court. See Mudd v. White, No.
01-5103 (D.C. Cir. Aug. 20, 2002) (Order).

II. Analysis

Most of the oral argument before this court focused on
appellant's standing to sue. Because standing is a threshold
requirement, and because (as we explain below) appellant has
failed to demonstrate standing in this case, this will be the
sole focus of our decision.

There are two principal forms of standing: "Article III
(case or controversy)" and "prudential." The former, which
is jurisdictional and cannot be modified by Congress, entails
three requirements:

First, the plaintiff must have suffered an "injury in
fact"--an invasion of a legally protected interest which is
(a) concrete and particularized, and (b) "actual or immi-
nent, not 'conjectural' or 'hypothetical.' " Second, there
must be a causal connection between the injury and the
conduct complained of--the injury has to be "fairly ...
trace[able] to the challenged action of the defendant, and
not ... th[e] result [of] the independent action of some
third party not before the court." Third, it must be
"likely," as opposed to merely "speculative," that the
injury will be "redressed by a favorable decision."


The party invoking federal jurisdiction bears the bur-
den of establishing these elements. Since they are not
mere pleading requirements but rather an indispensable
part of the plaintiff's case, each element must be sup-
ported in the same way as any other matter on which the
plaintiff bears the burden of proof, i.e., with the manner
and degree of evidence required at the successive stages
of the litigation.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)
(citations omitted).

Prudential standing "denies a right of review if the plain-
tiff's interests are so marginally related to or inconsistent
with the purposes implicit in the statute that it cannot
reasonably be assumed that Congress intended to permit the
suit." Clarke v. Sec. Indus. Ass'n, 479 U.S. 388, 399 (1987).
The Court has amplified the doctrine, as follows:

In addition to the immutable requirements of Article III,
"the federal judiciary has also adhered to a set of pru-
dential principles that bear on the question of standing."
Like their constitutional counterparts, these "judicially
self-imposed limits on the exercise of federal jurisdiction"
are "founded in concern about the proper--and properly
limited--role of the courts in a democratic society"; but
unlike their constitutional counterparts, they can be mod-
ified or abrogated by Congress. Numbered among these
prudential requirements is the doctrine of particular
concern in this case: that a plaintiff's grievance must
arguably fall within the zone of interests protected or
regulated by the statutory provision or constitutional
guarantee invoked in the suit.

Bennett v. Spear, 520 U.S. 154, 162 (1997) (citations omitted).

The Government argues strenuously that appellant cannot
satisfy the "case" or "controversy" requirements of Article
III, because he has not demonstrated that his alleged injury
is fairly traceable to the actions of the Secretary, or that the
alleged injury will likely be redressed by a decision from this
court ordering the Army to correct its records. In particular,


the Government argues that the reputational injury alleged
by appellant is more likely the result of the ravages of history
than of any official decision by the Secretary. The Govern-
ment also contends that an action by the Army to change its
records will not remedy the alleged reputational harm suf-
fered by appellant. We need not address these arguments,
however, because we find that appellant's claim assuredly
fails for want of prudential standing.

Appellant's insurmountable problem in this case is that his
claim, resting on 10 U.S.C. s 1552(a)(1), is not "arguably
within the zone of interests to be protected or regulated by
the statute ... in question." Ass'n of Data Processing Serv.
Orgs. v. Camp, 397 U.S. 150, 153 (1970). The "zone of
interests" requirement has neither been eliminated nor ad-
justed by Congress with respect to the coverage of claims
arising under 10 U.S.C. s 1552(a)(1). Therefore, appellant
must show that his asserted interest is among the group of
claims that is envisioned by the relevant statute. See Sierra
Club v. EPA, 292 F.3d 895, 902 (D.C. Cir. 2002); Cement Kiln
Recycling Coalition v. EPA, 255 F.3d 855, 870 (D.C. Cir.
2001). He fails this test if his interests are so marginally
related to or inconsistent with the implicit purposes in the
statute "that it cannot reasonably be assumed that Congress
intended to permit the suit." Clarke v. Sec. Indus. Ass'n, 479
U.S. at 399; see also Scheduled Airlines Traffic Officers, Inc.
v. Dep't of Def., 87 F.3d 1356, 1359 (D.C. Cir. 1996).

In this case, appellant asserts an interest in correcting
records to vacate the criminal conviction of his great-
grandfather. The applicable federal statute that gives rise to
appellant's claim was last amended by Congress before the
present lawsuit was initiated. Compare 10 U.S.C. s 1552
(1998) (amending subsection (g)), with Mudd I, 134 F. Supp.
2d at 140 (noting Army's final denial of Richard Mudd's
petition on Mar. 6, 2000). The amended subsection 1552(g)
defines a "military record" as a document that "pertains to (1)
an individual member or former member of the armed forces,
or (2) ... any other military matter affecting a member or
former member of the armed forces...." 10 U.S.C.
s 1552(g). And 10 U.S.C. s 1552(b) makes it clear that only


a "claimant or his heir or legal representative" may file a
petition under s 1552(a) to correct a "military record." See
also 32 C.F.R. s 581.3(d)(1)(iii) (2002). Therefore, the statute
plainly contemplates that only the claimant member of the
armed forces (or his heir or legal representative) may seek to
alter a "military record" pertaining to the claimant. We
assume arguendo that Dr. Mudd's grandson and great-
grandson indeed qualify as heirs or legal representatives.
However, as Dr. Mudd was not a "member or former member
of the armed forces," neither the grandson nor the great-
grandson is an heir or legal representative of the type of
"claimant" contemplated by the statute. In other words,
their petition does not pertain to "a member or former
member of the armed services." Appellant is thus not within
the "zone of interests" protected or regulated by the statute.

III. Conclusion

For the reasons enumerated above, the appeal is denied
and the case is dismissed.