United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 18, 2002 Decided December 6, 2002

No. 01-5319
& No. 01-5405

Robert Vinson Brannum,
Appellant

v.

William Lake, Brig. Gen., U.S.A.F., et al.,
Appellees

Appeals from the United States District Court
for the District of Columbia
(No. 00cv01461 & No. 00cv02333)

Richard B. Katskee, appointed by the court as amicus
curiae, argued the cause for appellant. With him on the
briefs were Evan M. Tager and Arnon D. Siegel.

Robert V. Brannum filed pro se briefs.


Laurie Weinstein, Assistant U.S. Attorney, argued the
cause for appellees. With her on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assis-
tant U.S. Attorney.

Before: Ginsburg, Chief Judge, Henderson, Circuit Judge,
and Williams, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
Williams.

Williams, Senior Circuit Judge: Robert Brannum is an
Individual Mobilization Augmentee ("IMA") in the United
States Air Force Reserves. He was recalled to active duty
pursuant to Article 2(d) of the Uniform Code of Military
Justice (the "Uniform Code"), 10 U.S.C. s 802(d), which
authorizes such recalls for a "member of a reserve compo-
nent." After the recall he was subjected to punishment
under the code. He sued in district court, claiming (among
other things) that as an IMA he was not a member of a
reserve "component" and therefore was not subject to recall
under Article 2(d) or, consequently, to the defendants' later
exercise of military jurisdiction. He sought damages and
injunctive relief vacating the punishment. The district court
dismissed all his claims, including the jurisdictional ones,
invoking the doctrine of Feres v. United States, 340 U.S. 135
(1950), which precludes actions against the government under
the Federal Tort Claims Act for injuries "incident to service"
and has since been extended to some other damage actions.
See, e.g., Chappell v. Wallace, 462 U.S. 296 (1983); United
States v. Stanley, 483 U.S. 669 (1987). We reverse, but solely
as to Brannum's jurisdictional claim for equitable relief.

* * *

According to the Air Force, IMAs such as Brannum "are
assigned to active-duty units in specific wartime positions and
train on an individual basis. Their mission is to augment
active-duty manning by filling wartime surge requirements."
Air Force Reserve Command, USAF Fact Sheet, availa-


ble at http://www.af.mil/news/factsheets/Air_Force_Reserve_
Command.html.

Brannum began an active duty tour at Holloman Air Force
Base in New Mexico on March 21, 2000. On March 26 the
Air Force began investigating complaints against him for
sexual harassment. Brannum learned of the investigation
and on June 8 departed Holloman, leaving a note saying that
he was "voluntarily terminating" his active-duty tour. Be-
cause the Air Force regarded Brannum's tour of duty as
requiring him to serve an additional ten days, it responded
with an order on June 18, 2000, purportedly under 10 U.S.C.
s 12301(d), recalling Brannum to active duty.

Brannum then filed suit in the United States district court
for the District of Columbia, alleging that various Air Force
officers and civilian employees had violated his due process
rights, had engaged in race discrimination and reprisals for
Brannum's having filed a complaint with the Inspector Gener-
al, and had committed defamation, malicious prosecution, and
various violations of Air Force regulations. He sought and
obtained a temporary restraining order barring enforcement
of the Air Force's recall order on the ground that s 12301(d)
did not authorize the involuntary recall of reservists to active
duty. The Air Force then rescinded the recall order, and the
court dissolved the TRO.

About a month later, the Air Force issued new orders--this
time under Article 2(d) of the Uniform Code, 10 U.S.C.
s 802(d)--directing Brannum to report for active duty at
Holloman so that he could be subjected to disciplinary punish-
ment involving both the sexual harassment allegations and his
allegedly premature departure. Brannum again sought a
TRO in the district court to enjoin enforcement of the recall
order. This time he argued principally that, although
s 802(d) authorizes involuntary recall of "member[s] of a
reserve component" for proceedings under the Uniform Code,
an IMA such as Brannum is not a member of any reserve
component and therefore is not subject to such a recall. The
district court denied the TRO, and Brannum reported again
to Holloman.


The Air Force offered and Brannum chose the option of
proceeding by way of non-judicial punishment in lieu of trial
by court martial. The adjudicating officer dismissed the
sexual harassment charges but found Brannum guilty of
being absent without leave and ordered him demoted one
rank from Master Sergeant to Technical Sergeant. Brannum
appealed unsuccessfully to the appropriate higher officer.

When Brannum's active duty ended on September 28, 2000
he filed a second complaint in the district court, this time
naming a larger set of Air Force officers and civilian employ-
ees. In the second complaint he restated the claims from his
pending suit and added new claims under the Constitution
and various federal statutes and regulations. Most important
for our purposes, he renewed his contention that the defen-
dants had violated his constitutional and statutory rights by
subjecting him to punishment in excess of their jurisdiction
under the Uniform Code at a time when he was in fact in
civilian status and not subject to recall under Article 2(d).
He also alleged that they had violated his rights by, inter alia,
such procedural violations as pre-judging his case, failing to
disclose the identity of his accusers, and failing to produce
copies of the evidence against him. The second complaint
sought compensatory and punitive damages and an injunction
setting aside his non-judicial punishment.

The district court dismissed all of Brannum's claims for
lack of subject matter jurisdiction under the Feres doctrine.
Noting that this court had not yet addressed whether the
doctrine extended to equitable claims, the district court held
that the Feres doctrine applied to "non-facial constitutional
challenges of military decisions." (Emphasis supplied.) Ac-
cordingly it dismissed not only his claims for money damages
but also his claims to equitable relief. Brannum appealed.

In January, we issued an order granting defendants' mo-
tion for summary affirmance of the district court opinion with
regard to all but Brannum's equitable claims, but instructed
the clerk "to withhold issuance of the mandate herein until
resolution of the remainder of the appeal." See Order of
January 30, 2002. In addition, we ordered briefing and


argument on the issue of Brannum's equitable claims. We
now reverse the district court's decision that it did not have
jurisdiction to consider Brannum's equitable claim that the
military unlawfully recalled him for punishment. While non-
military courts are not generally permitted to intervene in the
operation of military justice, Brannum's complaint regarding
his allegedly illegal recall goes to whether the military had
jurisdiction over him under 10 U.S.C. s 802(d) in the first
place. The Feres doctrine poses no bar to such a claim.

* * *

First, as the district court correctly noted, the Feres doc-
trine forecloses damages actions by service members against
the government for injuries occurring "incident to service" in
the military. "The special nature of military life--the need
for unhesitating and decisive action by military officers and
equally disciplined responses by enlisted personnel--would be
undermined by a judicially created remedy exposing officers
to personal liability at the hands of those they are charged to
command." Chappell v. Wallace, 462 U.S. 296, 304 (1983).

The Supreme Court has made clear, however, that Feres
does not bar all suits by service personnel:

"[O]ur citizens in uniform may not be stripped of basic
rights simply because they have doffed their civilian
clothes." This Court has never held, nor do we now
hold, that military personnel are barred from all redress
in civilian courts for constitutional wrongs suffered in the
course of military service.

Id. at 304 (1983) (quoting Earl Warren, "The Bill of Rights
and the Military," 37 N.Y.U. L. Rev. 181, 188 (1962)); see also
United States v. Stanley, 483 U.S. 669, 683 (1987) (noting that
Chappell "referred to redress designed to halt or prevent the
constitutional violation rather than the award of money dam-
ages.").

In finding Brannum's suit barred, the district court drew a
line between facial challenges (permitted) and as-applied chal-
lenges (not permitted). This cannot be correct. First, as


Brannum points out, the Supreme Court and this court have
heard numerous as-applied challenges to military policies.
See, e.g., Goldman v. Weinberger, 475 U.S. 503 (1986) (as-
applied Free Exercise challenge to Air Force's prohibition
against wearing yarmulke while in uniform); Steffan v. Perry,
41 F.3d 677, 693 (D.C. Cir. 1994) (en banc) (facial and as-
applied Equal Protection challenges to regulations prohibiting
homosexuals from attending the Naval Academy or serving in
the Navy). Thus some as-applied challenges are plainly
permitted. Furthermore, the district court's proposed dis-
tinction would create the anomalous result that suits seeking
facial or wholesale invalidation of military policies would be
permitted, while those seeking more targeted as-applied relief
would be barred. In light of Feres's concern about excessive
judicial interference with military decision-making, and the
general constitutional preference for as-applied challenges
over facial ones, see, e.g., United States v. Salerno, 481 U.S.
739 (1987), such a result would be bizarre. To the extent that
Speigner v. Alexander, 248 F.3d 1292 (11th Cir. 2001), in-
voked such a distinction in denying jurisdiction over a sepa-
rated National Guard officer's suit for reinstatement, we
respectfully disagree.

While we think it clear that at least some equitable claims
relating to military service are not barred by the Feres
doctrine, this case does not require us to ascertain Feres's
exact bounds. Here Brannum asserted that his due process
and other rights were violated by the military taking actions
against him in excess of its jurisdiction under the Uniform
Code. This jurisdictional claim falls squarely within the
Supreme Court's decision in Schlesinger v. Councilman, 420
U.S. 738 (1975). There the Court held that the Article III
courts had jurisdiction to entertain an Army captain's suit
seeking an injunction against pending court martial proceed-
ings based on conduct that he claimed was not "service
related" and thus not within the court martial jurisdiction.
Id. at 740, 744-53. See also McKinney v. White, 291 F.3d
851, 853 (D.C. Cir. 2002) (summarizing Schlesinger). In light
of Schlesinger, the Feres doctrine cannot preclude equitable
suits challenging military jurisdiction under the Uniform


Code. (For these purposes we see no distinction between
courts martial and non-judicial punishments under the Uni-
form Code; "correctional custody" of up to seven days is
permissible under the latter. See Article 15(b)(2)(B), 10
U.S.C. s 815(b)(2)(B).)1 Because Feres does not apply, the
defendants' argument that our summary affirmance in Janu-
ary created "law of the case" that Brannum's alleged injuries
arose "incident to service" under Feres is irrelevant; even if
Brannum's alleged injuries were "incident to service," Schles-
inger permits an equitable suit claiming that the military has
exercised Uniform Code authority without jurisdiction.

Here, Brannum's contention that his position as an IMA
excludes him from the reach of Article 2(d) and thus from
recall and Uniform Code proceedings is just such a jurisdic-
tional claim. Indeed, during argument counsel for the Air
Force conceded that a civilian court could review an allega-
tion that the military had made a "fundamental mistake in
jurisdiction." Thus while Brannum may yet face other obsta-
cles to the equitable relief he seeks, neither Feres nor the
facial vs. as-applied distinction relied upon by the district
court would be among them.

While we see Feres as no bar to Brannum's jurisdictional
claim, we affirm the district court's dismissal of his other
claims. As the Court said in Schlesinger,

"[T]he 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 (quoting Smith v. Whitney, 116 U.S. 167, 177
(1886)). Indeed, that rule long antedates Feres and, although
reflecting similar sensitivity to the special requirements of

__________
1 Although the district court in its recitation of the facts noted
that "plaintiff, pursuant to 10 U.S.C. s 802(d) was properly recalled
to active duty," we do not consider the language to constitute a
finding as to the recall's propriety, especially in light of the court's
dismissal of the entire case for lack of subject matter jurisdiction.


the military, does not depend on Feres. See also McKinney,
291 F.3d at 853; Doe v. Sullivan, 938 F.2d 1370, 1381 n.16
(D.C. Cir. 1991). This prohibition surely includes challenges
to non-judicial punishment offered in lieu of a court martial.

* * *

We affirm the district court's dismissal with respect to
Brannum's non-jurisdictional claims, reverse as to the claim
for equitable relief against the defendants' alleged excess of
jurisdiction, and remand to the district court for further
proceedings consistent with this opinion.

So ordered.