United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 14, 2002 Decided June 7, 2002

No. 01-5172

Gene C. McKinney,
Appellant

v.

Thomas A. White,
Secretary of the Army,
and
W. B. Huffman, Major General,
The Judge Advocate General,
Appellees

Appeal from the United States District Court
for the District of Columbia
(No. 00cv00728)

Charles W. Gittins argued the cause and filed the briefs for
appellant.


Thomas M. Ray, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Roscoe C. Howard,
Jr., U.S. Attorney and R. Craig Lawrence, Assistant U.S.
Attorney.

Before: Sentelle, Rogers and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge: Gene C. McKinney, now retired,
was a Sergeant Major of the Army who was court martialed
in 1998 and found guilty of obstructing justice in violation of
Article 134 of the Uniform Code of Military Justice
("UCMJ"), 10 U.S.C. s 934. After unsuccessful attempts to
have his conviction set aside under the UCMJ, he sought
review in the United States District Court for the District of
Columbia under the Administrative Procedure Act ("APA"), 5
U.S.C. ss 701-706, of the Judge Advocate General's denial of
his request to set aside the court martial finding and sen-
tence. The district court dismissed the complaint on the
ground that the Judge Advocate General is not an "agency"
for purposes of the APA. We hold that the statutory scheme
created by Congress for review of courts martial precludes
review of the Judge Advocate General's decision under the
APA. Accordingly, we affirm the dismissal of the complaint.

I.

The relevant facts are undisputed. Pursuant to UCMJ
Article 32, 10 U.S.C. s 832, an Army investigation of allega-
tions of sexual harassment and assault by six female military
personnel resulted in McKinney's being court martialed. He
was charged in 18 counts with violations of military law
arising out of alleged sexual harassment and in a separate
count with obstruction of justice in violation of UCMJ Article
134, 10 U.S.C. s 934. In March 1998, a jury acquitted him of
the 18 sexual harassment counts and convicted him of the
obstruction count. He was sentenced to a reprimand and a
reduction in grade from Army Sergeant Major to Army
Master Sergeant.


McKinney sought a post-trial evidentiary hearing pursuant
to UCMJ Article 39(a), 10 U.S.C. s 839(b), to inquire into
allegations of prosecutorial misconduct in not disclosing and
destroying evidence and attempting to influence witnesses.
The Military Trial Judge denied the motion on the papers.
The Judge also denied McKinney's renewed Article 39(a)
request, to which he had attached the affidavit of his counsel
recounting a discussion with a prosecution witness. McKin-
ney then filed a petition for mandamus in the United States
Army Court of Criminal Appeals in a further effort to obtain
a post-trial evidentiary hearing; the court denied the petition.
His writ of appeal to the United States Court of Appeals for
the Armed Forces was also denied, without prejudice to his
right of review under UCMJ Article 69, 10 U.S.C. s 869.
McKinney v. United States, 51 M.J. 270 (C.A.A.F. 1998).

Pursuant to UCMJ Article 69, 10 U.S.C. s 869(a), the
Commander for the Military District of Washington affirmed
the findings and sentence and forwarded the record of the
trial to the Judge Advocate General for review. Following
an investigation of McKinney's allegations of prosecutorial
misconduct that included interviews of several prosecution
witnesses, including the witness referred to in McKinney's
Article 39(a) affidavit, the Judge Advocate General stated
summarily: "The finding and sentence are supported in law
and the sentence is appropriate. No modification of the
finding or sentence is warranted." The Judge Advocate
General did not refer the case to a Court of Criminal Appeals
for review as to matters of law. Id. s 869(d) & (e).

Having failed to obtain relief from the military justice
system, McKinney filed a complaint in the United States
District Court for the District of Columbia. He alleged that
the decision of the Judge Advocate General was arbitrary and
capricious and not based on substantial evidence within the
meaning of the APA, 5 U.S.C. s 706, because the Judge
Advocate General failed to provide an adequate explanation
for rejecting McKinney's claims of prosecutorial misconduct.
The Secretary of the Army and the other defendants ("the
Secretary") moved to dismiss the complaint for failure to
state a cause of action under Federal Rule of Civil Procedure


12(b)(6). The district court granted the motion to dismiss,
ruling that the Judge Advocate General is not an "agency" for
purposes of the APA.

II.

McKinney contends that the district court erred in ruling
that the Judge Advocate General's decision is not subject to
review under the APA. He maintains that because decisions
by the Judge Advocate General under UCMJ Article 69 are
reached independently and constitute final binding decisions
affecting the rights of individuals, the Judge Advocate Gener-
al is an "authority" within the meaning of 5 U.S.C. s 701(b)(1)
whose decisions are subject to judicial review under the APA
as final agency action. He relies on the broad definition of
the word "agency" in the APA, 5 U.S.C. s 701(b)(1), and the
presumption favoring review of final agency decisions that is
overcome only by clear and convincing evidence that Con-
gress intended to restrict access to the courts. See Abbott
Labs. v. Gardner, 387 U.S. 136, 141 (1967).

Although the district court addressed McKinney's com-
plaint in terms of whether the Judge Advocate General was
an "agency" subject to APA review, we conclude that a
threshold jurisdictional issue must be addressed. The APA
provides for the non-reviewability of "courts martial and
military commissions," 5 U.S.C. s 701(b)(1)(F), but does not
expressly preclude review of Judge Advocate General deci-
sions reviewing courts martial pursuant to UCMJ Article 69,
10 U.S.C. s 869. Congress' establishment, pursuant to Arti-
cle I, Section 8 of the Constitution, of a separate judicial
system for courts martial review is, however, convincing
evidence that Congress could not have intended Judge Advo-
cate General review of courts martial to fall within APA
review of agency decisions.

In Schlesinger v. Councilman, 420 U.S. 738, 746 (1975), the
Supreme Court stated that it "repeatedly has recognized that
of necessity '(m)ilitary law ... is a jurisprudence which exists
separate and apart from the law that governs in our federal
judicial establishment.' " 420 U.S. at 746 (quoting Burns v.


Wilson, 346 U.S. 137, 140 (1953)). The Court also reiterated
in Schlesinger both the general rule that "the acts of a court
martial, within the scope of its jurisdiction and duty, cannot
be controlled or reviewed in the civil courts, by writ of
prohibition or otherwise," 420 U.S. at 746 (citations omitted),
and the limited exception for collateral attack seeking a
declaration that a judgment is void, having no res judicata
effect, "because of lack of jurisdiction or some other equally
fundamental defect." Id. at 747. Observing that "[t]he mili-
tary is 'a specialized society separate from civilian society'
with 'laws and traditions of its own (developed) during its
long history,' " id. at 757 (quoting Parker v. Levy, 417 U.S.
733, 743 (1974)), the Court noted that "Congress attempted to
balance ... military necessities against the equally significant
interest of ensuring fairness to servicemen charged with
military offenses." Id. The Court further observed that:

implicit in the congressional scheme embodied in the
[UCMJ] is the view that the military court system gener-
ally is adequate to and responsibly will perform its
assigned task. We think this congressional judgment
must be respected and that it must be assumed that the
military court system will vindicate servicemen's consti-
tutional rights.

Id. at 758.

As the proceedings in McKinney's case illustrate, Congress
has established a complete and distinct procedure for mem-
bers of the military who are charged with law violations
under the UCMJ. While direct parallels are imprecise, the
proceedings in his case suggest a process that begins with a
review that serves a function comparable to that of the grand
jury for Article III courts. This was followed by a jury trial,
imposition of a sentence, and post-trial motions proceedings.
Then, in a procedure unique to the military, the finding and
sentence were subject to the approval of the Commander of
the Military District. 10 U.S.C. s 860. Upon such approval,
the trial record was forwarded, in light of the length of
McKinney's sentence, to the Judge Advocate General for
review instead of a Court of Criminal Appeals. Id.


ss 866(b)(1), 869(a). UCMJ Article 69 provides that a soldier
who is convicted during a general court martial and sentenced
to less than one year of confinement is entitled to an automat-
ic review of the record of the trial by the Judge Advocate
General, unless the soldier affirmatively waives review. Id.
s 869. "If any part of the findings or sentence is found to be
unsupported in law or if reassessment of the sentence is
appropriate, the Judge Advocate General may modify or set
aside the findings or sentence or both." Id. s 869(a). Upon
referral by the Judge Advocate General, further review of
questions of law is available by a Court of Criminal Appeals
pursuant to UCMJ Article 69, 10 U.S.C. s 869. UCMJ
Article 76 provides that:

[t]he appellate review of records of trial provided by
[Chapter 47, UCMJ] ... are final and conclusive....
[and] are binding upon all departments, courts, agencies,
and officers of the United States, subject only to action
upon a petition for a new trial as provided in section 837
of this title (article 73) and to action by the Secretary
concerned as provided in section 847 of this title (article
74) [Remission and suspension], and the authority of the
President.

Id. s 876.

The proceedings under the UCMJ demonstrate that the
designated reviewing authorities have "heard [McKinney] out
on every significant allegation which [he] now urge[s]."
Burns, 346 U.S. at 144. The Military Trial Judge reviewed
McKinney's allegations of prosecutorial misconduct on two
occasions and the Court of Appeals for the Armed Forces
denied his writ of appeal. The Judge Advocate General
reviewed the court martial finding and sentence and also
conducted his own investigation into the allegations of prose-
cutorial misconduct. McKinney makes no claim that the
procedures established by Congress in the UCMJ were inade-
quate to the task, much less "fundamentally defect[ive]."
Schlesinger, 420 U.S. at 747.

This court has long acknowledged that it lacks jurisdiction
of a direct appeal of a court martial. Although McKinney
does not seek review of a decision of the Court of Appeals for


the Armed Forces, he, like the petitioners in Shaw v. United
States, 209 F.2d 811, 813 (D.C. Cir., 1954), seeks review of a
decision by the military authority that Congress has designat-
ed to review his direct appeal and his collateral attack on his
general court martial conviction. The fact that he did not
receive a more severe sentence, whereby his appeal would
have gone to a Court of Criminal Appeals, is a distinction
without difference with regard to the jurisdiction of this
court. As in Shaw, then, "we are clear" that Congress has
not granted jurisdiction to this court to review direct appeals
from the highest military official of a general court martial.
209 F.2d at 812-13.

Furthermore, Congress has expressly provided that "courts
martial" are not subject to review under the APA. 5 U.S.C.
s 701(b)(1)(F). While McKinney contends that this prohibi-
tion does not extend to the final decision of the Judge
Advocate General, the logic of his position is illusive. Con-
gress has provided a separate justice system in the UCMJ for
military personnel and it has expressly determined that
"courts martial" are not to be subject to APA review. Hence,
it is difficult to understand the reasoning that Congress would
have utilized in making the final UCMJ review of "courts
martial" subject to review by Article III courts under the
APA. To adopt that position would not only be contrary to
the long-established understanding that "[m]ilitary law, like
state law, is a jurisprudence which exists separate and apart
from the law which governs in our federal judicial establish-
ment," Burns, 346 U.S. at 140, "[i]t is well settled that 'by
habeas corpus the civil courts exercise no supervisory or
correcting power over the proceedings of a court martial' "
and that "[t]he correction of any errors it may have commit-
ted is for the military authorities which are alone authorized
to review its decision." Hiatt v. Brown, 339 U.S. 103, 111
(1950) (citations omitted). In Shaw, this court rejected the
view that the Court of Military Appeals (now the Court of
Appeals for the Armed Forces), was anything other than "a
court in every significant respect, rather than an administra-
tive agency." 209 F.2d at 813. Although the Judge Advocate
General has independent fact-finding authority under UCMJ


Article 69, unlike a Court of Criminal Appeals under UCMJ
Article 66 or an Article III appellate court, McKinney points
to nothing that would indicate that Congress viewed the
UCMJ Article 69 procedures for review of courts martial
involving sentences of less than one year to be so inferior as
to warrant review by Article III courts under the APA.
Although review by the Judge Advocate General is in the
nature of a collateral proceeding akin to coram nobis, Curci
v. United States, 577 F.2d 815, 818 (2d Cir. 1978) (citing inter
alia S. Rep. No. 1601, 90th Cong., 2d Sess. (1968), reprinted in
1968 U.S.C.C.A.N 4501, 4515), for the military justice system
where "Congress has taken great care both to define the
rights of those subject to military law[ ] [and to] provide a
complete system of review within the military system to
secure those rights," Burns, 346 U.S. at 140, the Judge
Advocate General's decision is properly viewed as what Con-
gress concluded should be the final decision under military
law in McKinney's court martial. So understood, Congress'
preclusion of APA review of "courts martial" reaches the
Judge Advocate General's decision in McKinney's case.

Although McKinney contends only that the Judge Advocate
General's summary statement of his decision is inadequate to
reveal the basis of his reasoning, and arguably is not seeking
review of the underlying court martial finding that he ob-
structed justice in violation of UCMJ Article 134, by assum-
ing jurisdiction in his case the court would be unable to deny
review in later cases where it would be required to review
courts martial findings. As framed, moreover, McKinney's
allegations of prosecutorial misconduct would effectively re-
quire this court to determine whether the alleged misconduct
so affected his court martial that he was denied a fair trial.
Cf. United States v. Bagley, 473 U.S. 667, 678-79 (1985);
Greer v. Miller, 483 U.S. 756, 765 (1987). Yet this is the type
of question that Congress has determined is to be conducted
by the Judge Advocate General when a court martial sen-
tence imposes less than one year's confinement. See Schles-
inger, 420 U.S. at 746-47. Moreover, as the Second Circuit
has suggested, the Judge Advocate General's decision to use a
short form of response in claims seeking discretionary review
is not unexpected where there are a large number of claims.


See Curci, 577 F.2d at 818. McKinney's attempt to invoke
the APA amounts, then, to an attempt to end run a military
justice system wherein Congress has afforded him the direct
review procedures it deemed appropriate.

Accordingly, we hold that this court has no jurisdiction
under the APA to review the decision of the Judge Advocate
General denying McKinney's request to set aside the court
martial finding and sentence, and we affirm the dismissal of
the complaint.