Larrabee Brief

USCA Case #21-5012 Document #1900132 Filed: 05/26/2021 Page 1 of 75
[ORAL ARGUMENT NOT YET SCHEDULED]
No. 21-5012
IN THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT
STEVEN M. LARRABEE,
Plaintiff-Appellee,
v.
THOMAS W. HARKER,
in his Official Capacity as
Acting Secretary of the Navy, et al.,
Defendants-Appellants.
On Appeal from the U.S. District Court

for the District of Columbia
(No. 19-cv-654 (RJL))
BRIEF FOR PLAINTIFF-APPELLEE
Eugene R. Fidell Stephen I. Vladeck

Feldesman Tucker Leifer Fidell LLP Counsel of Record
1129 20th Street, N.W. 727 E. Dean Keeton Street
4th Floor Austin, TX 78705
Washington, DC 20036 (512) 475-9198
svladeck@law.utexas.edu
May 26, 2021

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
A. Parties and Amici Curiae
All parties, intervenors, and amici appearing before the district
court and in this Court thus far are listed in the Brief for Appellants.
B. Rulings Under Review
The rulings at issue in this appeal are Judge Leon’s final order and
memorandum opinion issued on November 20, 2020, granting Plaintiff-
Appellee’s Motion for Judgment on the Pleadings. The opinion is not yet
reported, but is available at 2020 WL 6822706, and is reprinted at JA 10.
C. Related Cases
This case is a non-custodial collateral attack on a conviction by a
court-martial conducted by the U.S. Navy-Marine Corps Trial Judiciary.
It has not previously been before this Court. Plaintiff-Appellee Steven
Larrabee’s direct appeal of his conviction was docketed as No. 201700075
in the U.S. Navy-Marine Corps Court of Criminal Appeals; No. 18-
0114/MC in the U.S. Court of Appeals for the Armed Forces; and No. 18-
306 in the U.S. Supreme Court. There are no other related cases that
satisfy D.C. Cir. R. 28(a)(1)(C).

ii
On March 9, 2021, the U.S. Court of Appeals for the Armed Forces
heard argument in a pair of consolidated appeals by a different defendant
that raise issues similar to those raised here. See United States v. Begani,
Nos. 20-0217/NA and 20-0327/NA (C.A.A.F.); see also post at 10–11
(discussing Begani’s procedural history).

iii
TABLE OF CONTENTS
TABLE OF AUTHORITIES.............................................................................. iv
GLOSSARY .................................................................................................. xi
INTRODUCTION ............................................................................................ 1
STATEMENT OF THE ISSUES PRESENTED ...................................................... 5
PERTINENT STATUTES AND REGULATIONS ................................................... 5
STATEMENT OF THE CASE ............................................................................ 6
SUMMARY OF ARGUMENT .......................................................................... 12
ARGUMENT................................................................................................ 16
I. ARTICLE I OF THE CONSTITUTION DOES NOT AUTHORIZE
COURTS-MARTIAL OF POST-RETIREMENT OFFENSES
BY MEMBERS OF THE FLEET MARINE CORPS RESERVE ....................... 16
A. Congress Does Not Receive Deference in Defining the
Scope of the “Land and Naval Forces”......................................... 16
B. Whether Individuals are “in” the “Land and Naval Forces”
Turns on Functional Considerations of Their Status,
Not Formal Assertions by Congress ............................................ 18
C. Members of the Fleet Marine Corps Reserve,
Like Mr. Larrabee, Have No Regular Military Authority
or Responsibilities ........................................................................ 23
D. Mr. Larrabee’s Receipt of “Retainer Pay” and His
Theoretical Amenability to Future Involuntary Recall
Do Not Support a Different Result .............................................. 27
E. Neither the Supreme Court Nor This Court Has
Ever Held Otherwise ................................................................... 34
II. MAINTAINING DISCIPLINE AMONG TROOPS IN ACTIVE SERVICE
DOES NOT DEPEND UPON THEIR AMENABILITY TO
COURT-MARTIAL WHILE INACTIVE ..................................................... 39
III. BECAUSE MR. LARRABEE’S OFFENSES DID NOT “ARIS[E] IN . . . THE
LAND OR NAVAL FORCES,” HIS COURT-MARTIAL WAS ALSO
FORECLOSED BY THE GRAND JURY INDICTMENT CLAUSE .................... 45
CONCLUSION ............................................................................................. 52
ADDENDUM ............................................................................................... 1a
iv
TABLE OF AUTHORITIES 1
CASES
al Bahlul v. United States,
840 F.3d 757 (D.C. Cir. 2016) (en banc) ................................................. 2
*Barker v. Kansas,
503 U.S. 594 (1992) ........................................................ 7, 29, 31, 35, 37
Billings v. Truesdell,
321 U.S. 542 (1944) .............................................................................. 34
Burns v. Wilson,
346 U.S. 137 (1953) .............................................................................. 23
Closson v. United States ex rel. Armes,
7 App. D.C. 460 (1896) ......................................................................... 36
Davis v. Mich. Dep’t of the Treasury,
489 U.S. 803 (1989) .............................................................................. 30
EEOC v. Aramark Corp.,
208 F.3d 266 (D.C. Cir. 2000)........................................................... 5, 45
Ex parte Milligan,
71 U.S. (4 Wall.) 2 (1866) ..................................................................... 51
Ex parte Quirin,
317 U.S. 1 (1942) .................................................................................. 15
Fletcher v. United States,
26 Ct. Cl. 541 (1891) ............................................................................. 36
Goldman v. Weinberger,
475 U.S. 503 (1986) .............................................................................. 50
Grisham v. Hagen,
361 U.S. 278 (1960) ........................................................................ 16, 29
Hooper v. United States,
326 F.2d 982 (Ct. Cl. 1964) .................................................... 6, 7, 38, 47
Kahn v. Anderson,
255 U.S. 1 (1921) .................................................................................. 22
*Kinsella v. United States ex rel. Singleton,
361 U.S. 234 (1960) ............................................................ 13, 16, 20, 40
Lee v. Madigan,
358 U.S. 228 (1958) ................................................................................ 1
1. Authorities on which this brief principally relies are marked with

an asterisk.
v
TABLE OF AUTHORITIES (CONTINUED)
Loving v. United States,

517 U.S. 748 (1996) .................................................................... 1, 15, 46
*McElroy v. United States ex rel. Guagliardo,
361 U.S. 281 (1960) .................................................................. 17, 20, 29
Murphy v. Garrett,
29 M.J. 469 (C.M.A. 1990).......................................................... 3, 18, 33
Nicely v. United States,
147 Fed. Cl. 727 (2020)......................................................................... 27
NLRB v. Noel Canning,
573 U.S. 513 (2014) .............................................................................. 38
Noyd v. Bond,
395 U.S. 683 (1969) .............................................................................. 17
O’Callahan v. Parker,
395 U.S. 258 (1969) ........................................................................ 46, 47
Ortiz v. United States,
138 S. Ct. 2165 (2018) ............................................................................ 1
Parker v. Levy,
417 U.S. 733 (1974) .............................................................. 3, 46, 47, 50
Pearson v. Bloss,
28 M.J. 376 (C.M.A. 1989).................................................................. 6, 7
People v. Duane,
121 N.Y. 367 (1890) .............................................................................. 21
Ramos v. Louisiana,
140 S. Ct. 1390 (2020) .......................................................................... 49
*Reid v. Covert,
354 U.S. 1 (1957) ...................................................................... 16, 19, 21
Ring v. Arizona,
536 U.S. 584 (2002) .............................................................................. 49
Runkle v. United States,
122 U.S. 543 (1887) .............................................................................. 36
Schlesinger v. Councilman,
420 U.S. 735 (1975) .............................................................................. 17
Solorio v. United States,
483 U.S. 435 (1987) .................................................. 3, 15, 17, 18, 46, 47
Stern v. Marshall,
564 U.S. 462 (2011) ................................................................................ 2
vi
Taylor v. Louisiana,
419 U.S. 522 (1975) .............................................................................. 49
United States ex rel. Pasela v. Fenno,
167 F.2d 593 (2d Cir. 1948) .................................................................. 38
*United States ex rel. Toth v. Quarles,
350 U.S. 11, 22 (1955) ............... 1, 3, 7, 14, 16, 18, 19, 20, 22, 37, 40, 45
United States v. Akbar,
74 M.J. 364 (C.A.A.F. 2015) ................................................................. 49
United States v. Ali,
71 M.J. 256 (C.A.A.F. 2012) ....................................................... 2, 17, 22
United States v. Averette,
41 C.M.R. 363 (C.M.A. 1970)................................................................ 22
United States v. Begani,
79 M.J. 620 (N-M. Ct. Crim. App. 2019) .............................................. 10
79 M.J. 767 (N-M. Ct. Crim. App. 2020) (en banc) ........................ 10, 24
80 M.J. 200 (C.A.A.F. 2020) (mem.) ..................................................... 11
80 M.J. 289 (C.A.A.F. 2020) (mem.) ..................................................... 11
80 M.J. 463 (C.A.A.F. 2020) (mem.) ..................................................... 11
United States v. Carpenter,
37 M.J. 291 (C.M.A. 1993)...................................................................... 4
United States v. Cole,
24 M.J. 18 (C.M.A. 1987)...................................................................... 20
United States v. Denedo,
556 U.S. 904 (2009) ................................................................................ 1
United States v. Dinger,
76 M.J. 552 (N-M. Ct. Crim. App. 2017) .............................. 8, 24, 31, 39
77 M.J. 447 (C.A.A.F. 2018) ................................................................... 8
139 S. Ct. 492 (2018) (mem.) .................................................................. 8
United States v. Fletcher,
184 U.S. 84 (1893) ................................................................................ 35
United States v. Hennis,
79 M.J. 370 (C.A.A.F. 2020) ................................................................. 47
United States v. Larrabee,
No. 201700075, 2017 WL 5712245
(N-M. Ct. Crim. App. Nov. 28, 2017) ..................................................... 9
vii
United States v. Larrabee,

78 M.J. 107 (C.A.A.F. 2018) (mem.) ....................................................... 9
139 S. Ct. 1164 (2019) (mem.) ................................................................ 9
United States v. Lwin,
42 M.J. 279 (C.A.A.F. 1995) ................................................................. 34
United States v. Morris,
54 M.J. 898 (N-M. Ct. Crim. App. 2001) .............................................. 30
United States v. Nettles,
74 M.J. 289 (C.A.A.F. 2015) ................................................................. 26
United States v. Tyler,
105 U.S. 244 (1882) .............................................................................. 35
United States v. Wales,
31 M.J. 301 (C.M.A. 1990).................................................................... 50
Wallace v. Chafee,
451 F.2d 1374 (9th Cir. 1971) .............................................................. 33
Weiss v. United States,
510 U.S. 163 (1994) .............................................................................. 50
Wellness Int’l Network, Ltd. v. Sharif,
135 S. Ct. 1932 (2015) .......................................................................... 48
CONSTITUTIONAL PROVISIONS
Make Rules Clause,
U.S. CONST. art. I, § 8, cl. 14...... 5, 6, 8, 13, 15, 16, 18, 20, 23, 39, 45, 48
Grand Jury Indictment Clause,
U.S. CONST. amend. V .............................................. 5, 14, 15, 45, 46, 48
STATUTES
4 U.S.C. § 111 .................................................................................... 30, 31
Hiss Act,
5 U.S.C. § 8311–22 ............................................................................... 41
10 U.S.C. § 750 ........................................................................................ 25
Uniform Code of Military Justice, 10 U.S.C.
§ 802(a)(10) ........................................................................................... 22
§ 802(a)(3)(A)(i)....................................................................................... 3
§ 802(a)(3)(A)(ii)...................................................................................... 3
viii
Uniform Code of Military Justice, 10 U.S.C.

§ 802(a)(5) ............................................................................................. 10
§ 802(a)(6) ......................................................................................... 5, 39
§ 803(a) ................................................................................................. 34
§§ 822–24 .............................................................................................. 26
§ 825 ...................................................................................................... 26
§ 825(e)(2) ............................................................................................. 49
§ 852(a)(3) ............................................................................................. 49
§ 888 ...................................................................................................... 50
10 U.S.C. § 8330 ...................................................................................... 24

10 U.S.C. § 8330(c)(1) .............................................................................. 29
10 U.S.C. § 8333(a) .................................................................................. 29
10 U.S.C. § 8385(b) .................................................................................. 26
10 U.S.C. § 10101 .................................................................................... 23
Military Extraterritorial Jurisdiction Act,

18 U.S.C. §§ 3261–67............................................................................ 41
Uniformed Services Former Spouses’ Protection Act,

Pub. L. No. 97-252, tit. X, 96 Stat. 718, 730 (1982) ............................. 32
ADMINISTRATIVE REGULATIONS AND REPORTS

Dep’t of Def. Directive 5500.7-R,
Joint Ethics Regulation (Aug. 30, 1993) .............................................. 25
Dep’t of Def. Instruction 1215.06,
Uniform Reserve, Training, and Retirement
Categories for the Reserve Components (Mar. 11, 2014) ...................... 43
Management of Regular and Reserve
Retired Military Members (Dec. 8, 2016) ............................................. 44
Dep’t of Def.,
Defense Manpower Requirements Report for
Fiscal Year 2020 (2019) ........................................................................ 43
Statistical Report on the Military Retirement System:
Fiscal Year 2019 (2020) ........................................................................ 44
ix
Marine Corps Order 1001R.1L,

Marine Corps Reserve Administrative Management
Manual (Mar. 25, 2018) ....................................................................... 25
Marine Corps Order 1900.16,
Marine Corps Separation and Retirement
Manual (Feb. 15, 2019) ...................................................... 24, 25, 26, 27
Marine Corps Order 5300.17A,
Marine Corps Substance Abuse Program (June 25, 2018) .................. 25
Marine Corps Physical Fitness and Combat
Fitness Tests (Feb. 23, 2021) ................................................................ 25
BRIEFS AND OTHER LEGAL MEMORANDA

Brief for the United States as Amicus Curiae,
Barker, 503 U.S. 594 (No. 91-611), 1992 WL 12012042 ...................... 31
Brief for the United States in Opposition,
Larrabee, 139 S. Ct. 1164 (No. 18-306), 2019 WL 157946 .................... 9
Supplemental Answer, Begani, No. 20-0217/NA .................................... 28
Supplemental Opening Brief, Begani, No. 20-0217/NA ......................... 32
Officers of the United States Within the Meaning of
the Appointments Clause, 31 Op. O.L.C. 73 (2007) ............................. 21
SECONDARY SOURCES
Joseph W. Bishop, Jr.,
Court-Martial Jurisdiction Over Military-Civilian Hybrids:
Retired Regulars, Reservists, and Discharged Prisoners,
112 U. PA. L. REV. 317 (1964) ............................................................... 36
FRANCIS A. GILLIGAN & FREDERIC I. LEDERER,
COURT-MARTIAL PROCEDURE
(5th ed. Matthew Bender & Co. 2020) ................................................. 47
J. Mackey Ives & Michael J. Davidson,
Court-Martial Jurisdiction Over Retirees Under Articles 2(4)
and 2(6): Time to Lighten Up and Tighten Up?,
175 MIL. L. REV. 1 (2003) ................................................................. 6, 37
x
John G. Kester,
Soldiers Who Insult the President: An Uneasy Look
at Article 88 of the Uniform Code of Military Justice,
81 HARV. L. REV. 1697 (1968) ............................................................... 50
Library of Congress,
Historical Attempts to Reorganize the Reserve Components (2007) .... 43
WILLIAM WINTHROP,
MILITARY LAW AND PRECEDENTS (2d ed. 1920) ..................................... 21
* * *
xi
GLOSSARY
UCMJ Uniform Code of Military Justice, 10 U.S.C. §§ 801–946a
* * *
1
INTRODUCTION
Throughout American history, military jurisdiction has been the
exception, not the norm. “[H]aving experienced the military excesses of
the Crown in colonial America, the Framers harbored a deep distrust of
executive military power and military tribunals.” Loving v. United
States, 517 U.S. 748, 760 (1996); see Lee v. Madigan, 358 U.S. 228, 232
(1958) (“The attitude of a free society toward the jurisdiction of military
tribunals . . . has a long history.”).
In part, that distrust reflected concerns that the military dispensed
“a rough form of justice emphasizing summary procedures, speedy
convictions and stern penalties with a view to maintaining obedience and
fighting fitness in the ranks.” United States v. Denedo, 556 U.S. 904, 918
(2009) (Roberts, C.J., concurring in part and dissenting in part) (internal
quotation marks omitted); see United States ex rel. Toth v. Quarles, 350
U.S. 11, 22 (1955) (“There are dangers lurking in military trials which
were sought to be avoided by the Bill of Rights and Article III . . . .”).
But this skepticism of military jurisdiction has persisted even as
courts-martial have evolved to better protect the rights of active-duty
personnel. See Ortiz v. United States, 138 S. Ct. 2165, 2174 (2018). First,
2
concerns remain that courts-martial—which still utilize procedures and
try offenses that would never pass muster in civilian courts, see post at
49–51—do not adequately protect the rights of those not in active service.
See United States v. Ali, 71 M.J. 256, 269 (C.A.A.F. 2012) (reiterating the
Supreme Court’s “repeated caution against the application of military
jurisdiction over anyone other than forces serving in active duty”).
Second, because “[e]very extension of military jurisdiction is an
encroachment on the jurisdiction of the civil courts,” al Bahlul v. United
States, 840 F.3d 757, 797 (D.C. Cir. 2016) (en banc) (Wilkins, J.,
concurring) (internal quotation marks omitted), this skepticism also
reflects the broader and more fundamental separation of powers concerns
that arise whenever the political branches divert adjudicatory authority
away from Article III courts—regardless of the quality of the non-Article
III forum. See, e.g., Stern v. Marshall, 564 U.S. 462, 503 (2011).
Courts-martial are a longstanding exception to Article III, but one
that the Supreme Court has strictly circumscribed, stressing that “the
scope of the constitutional power of Congress to authorize trial by court-
martial . . . call[s] for limitation to ‘the least possible power adequate to
the end proposed,’” i.e., “the narrowest jurisdiction deemed absolutely

3
essential to maintaining discipline among troops in active service.” Toth,
350 U.S. at 22–23 (citation omitted). As the district court put it, the
government bears the burden of demonstrating “why subjecting [the
personnel at issue] to court-martial jurisdiction is necessary to maintain
good order and discipline” among active-duty troops. JA 21.
For troops currently in active service, that question answers itself.
See Solorio v. United States, 483 U.S. 435 (1987). But inactive personnel
are another matter. Reservists are subject to the UCMJ only while on
active duty or inactive-duty training. 10 U.S.C. § 802(a)(3)(A)(i); Murphy
v. Garrett, 29 M.J. 469 (C.M.A. 1990) (court-martial of inactive reservist
would raise constitutional question). National Guard troops are subject
to the UCMJ only while in federal service. 10 U.S.C. § 802(a)(3)(A)(ii).
And ex-servicemembers may never be tried by court-martial, even for
offenses committed on active duty. See Toth, 350 U.S. at 21–23.
The linchpin across these categories—the constitutional condition
that compels compliance with the UCMJ and makes violators liable to
court-martial—is the power to give (and duty to obey) orders. Parker v.
Levy, 417 U.S. 733, 758 (1974) (“The fundamental necessity for obedience,
and the consequent necessity for imposition of discipline, may render

4
permissible within the military that which would be constitutionally
impermissible outside it.”). For those who lack the capacity to lawfully
give or receive orders, it necessarily follows that no such need exists.
Here, Plaintiff-Appellee Steven Larrabee, a member of the Fleet
Marine Corps Reserve, was court-martialed for offenses committed after
he left active service. But like any other retired servicemember, Mr.
Larrabee has no authority to give or receive binding orders. He “has no
duties.” United States v. Carpenter, 37 M.J. 291, 295 (C.M.A. 1993). And
he may not even wear his uniform except in specifically approved
circumstances; he appeared at his court-martial in civilian clothes. His
only obligation is to present himself in the highly unlikely event that he
is ever called to active duty—just like any of the other two million
military retirees or any of the 16 million Selective Service registrants.
The central question in this appeal is whether the Constitution
nevertheless allows Congress to require Mr. Larrabee to comply with the
UCMJ while he is retired—and to face a court-martial if he doesn’t. Given
that, like other military retirees, Mr. Larrabee wields no military
authority and bears no military obligations, the district court correctly
held that the answer is “no.” The decision below should be affirmed.
5
STATEMENT OF THE ISSUES PRESENTED
The government frames the issue presented as: “Did Congress
exceed its power under Article I of the U.S. Constitution by authorizing
court-martial jurisdiction over Fleet Marine Corps Reserve members in
Article 2(a)(6) of the Uniform Code of Military Justice, 10 U.S.C.
§ 802(a)(6)?” Gov’t Br. 3. Both on direct appeal and in the district court,
Mr. Larrabee argued in the alternative that, even if the answer to that
question is “no,” his offenses did not “aris[e] in . . . the land or naval
forces”—such that his court-martial in any event violated the Grand Jury
Indictment Clause, U.S. CONST. amend. V. Because this Court “may
affirm on any ground properly raised,” EEOC v. Aramark Corp., 208 F.3d
266, 268 (D.C. Cir. 2000), this appeal also raises the following issue:
Does the Fifth Amendment’s Grand Jury Indictment Clause bar the
court-martial of members of the Fleet Marine Corps Reserve for non-
military offenses committed against a civilian on private property?
PERTINENT STATUTES AND REGULATIONS
Except for those set forth in the Addendum to this brief, the
applicable statutes and regulations are contained in the Brief for the
Appellants.
6
STATEMENT OF THE CASE
In addition to the factual and procedural background to this appeal
ably summarized in the government’s brief, Gov’t Br. 3–11. it may be
helpful to situate this case within the broader context of recent litigation
on the constitutionality of subjecting military retirees to the UCMJ.
As the district court noted, “[t]he lack of any Supreme Court case
addressing the question is likely due in part to the fact that in the 70-
year period since the UCMJ explicitly authorized such jurisdiction, the
military has so rarely chosen to exercise it.” JA 23 n.8; see also J. Mackey
Ives & Michael J. Davidson, Court-Martial Jurisdiction Over Retirees
Under Articles 2(4) and 2(6): Time to Lighten Up and Tighten Up?, 175
MIL. L. REV. 1, 11 (2003) (“[R]eported courts-martial of military retirees
are relatively rare.”). Indeed, it has been 57 years since this question was
last resolved by an Article III appellate court. See Hooper v. United
States, 326 F.2d 982 (Ct. Cl. 1964). And at least when this brief was filed,
the last time that the (Article I) U.S. Court of Appeals for the Armed
Forces had considered the question was 32 years ago—when it was still
known as the U.S. Court of Military Appeals. See Pearson v. Bloss, 28
M.J. 376, 377 (C.M.A. 1989).

7
In both Hooper and Pearson, the courts based their analyses almost
entirely on the fact that, unlike the ex-servicemember in Toth, retirees
continue to receive pay from the military—which those courts treated as
a salary. E.g., Hooper, 326 F.3d at 987 (“[W]e believe that this plaintiff
was part of the land or naval forces. . . . because the salary he received
was not solely recompense for past services, but a means devised by
Congress to assure his availability and preparedness in future
contingencies.” (emphasis added)). In Barker v. Kansas, 503 U.S. 594
(1992), however, the Supreme Court “reversed course . . . when it
determined that for purposes of tax treatment, military retirement
benefits actually represent deferred pay for past services.” JA 22; see also
Barker, 503 U.S. at 605 (holding that, instead of qualifying as “current
compensation for reduced current services,” “military retirement benefits
are to be considered deferred pay for past services” for tax purposes).
Because of Barker, the constitutional question resurfaced in a trio
of court-martial prosecutions brought by the Navy and Marine Corps
beginning in 2015. The first involved Derrick Dinger, who was convicted
by court-martial for offenses committed both while he was a member of
the Fleet Marine Corps Reserve and after he was transferred to the
8
active-duty retired list. On appeal, the U.S. Navy-Marine Corps Court of
Criminal Appeals upheld the constitutionality of his court-martial—but
only after holding that, because of Barker, “we must call upon first
principles.” United States v. Dinger, 76 M.J. 552, 556 (N-M. Ct. Crim.
App. 2017). Because Barker vitiated the prior justification for subjecting
retirees to the UCMJ, the court was forced to analyze the question anew.
Reaching the question as a matter of first impression, the court
relied upon the fact that those in the Fleet Marine Corps Reserve and on
the retired list remain subject to recall to active duty—and that, for that
reason, Dinger remained “in” the “land and naval forces” under Article I,
and thus constitutionally subject to court-martial, while retired. See id.
at 556–57. The court also held that courts-martial have the authority to
sentence retirees to punitive discharges. See id. at 557–59.
Dinger sought discretionary review of both holdings from the U.S.
Court of Appeals for the Armed Forces. The court granted review only as
to the punitive discharge issue and affirmed. See United States v. Dinger,
77 M.J. 447 (C.A.A.F. 2018). Dinger then unsuccessfully petitioned the
Supreme Court, seeking review solely on the punitive discharge issue.
See Dinger v. United States, 139 S. Ct. 492 (2018) (mem.).

9
The procedural course of this case largely paralleled Dinger. After
its decision in Dinger, the Navy-Marine Corps Court of Criminal Appeals
rejected Mr. Larrabee’s appeal—summarily disposing of the issues
decided in Dinger. United States v. Larrabee, No. 201700075, 2017 WL
5712245, at *1 n.1 (N-M. Ct. Crim. App. Nov. 28, 2017). Mr. Larrabee
then petitioned the Court of Appeals for the Armed Forces for
discretionary review of three issues, including the retiree jurisdiction and
punitive discharge issues. Contra the district court’s recitation, JA 13,
that court granted review only as to the punitive discharge question—
summarily affirming after (and in light of) Dinger. United States v.
Larrabee, 78 M.J. 107, 107 (C.A.A.F. 2018) (mem.). After the Supreme
Court denied Mr. Larrabee’s petition for certiorari—which presented
only the jurisdictional question, see Larrabee v. United States, 139 S. Ct.
1164 (2019) (mem.)—he brought this non-custodial collateral challenge.2
2. In opposing certiorari, the government argued that the Supreme

Court lacked jurisdiction over the retiree jurisdiction issue—because the
court of appeals had not itself agreed to review it. Brief in Opposition at
10–16, Larrabee, 139 S. Ct. 1164 (No. 18-306), 2019 WL 157946.
Stressing the availability of collateral review and, thus, “the potential for
further consideration of the question presented in the [civilian] courts of
appeals,” the government explained that, “even if the question presented
warranted review, no need exists to stretch [the Supreme] Court’s direct-
review jurisdiction over the CAAF in order to consider it.” Id. at 15.
10
Like Mr. Larrabee’s case, the third of the three recent cases also
involves offenses committed by a retired servicemember in Japan.
Stephen Begani was court-martialed for offenses committed while he was
a member of the Navy’s Fleet Reserve. After pleading guilty, Begani
raised two constitutional challenges to the jurisdiction of his court-
martial on appeal. In addition to the argument rejected in Dinger, Begani
also argued that, insofar as retired reservists are subject to court-martial
only while receiving military hospitalization, 10 U.S.C. § 802(a)(5), the
UCMJ violates equal protection principles by treating similarly situated
retired servicemembers differently with respect to their amenability to
court-martial. After a three-judge panel sustained his equal protection
claim, United States v. Begani, 79 M.J. 620 (N-M. Ct. Crim. App. 2019),
the Navy-Marine Corps Court of Criminal Appeals reheard the case en
banc, issuing a fractured, 4-3 ruling affirming Begani’s conviction. United
States v. Begani, 79 M.J. 767 (N-M. Ct. Crim. App. 2020) (en banc). 3
3. Two of the four judges in the majority voted to reject Begani’s equal
protection claim on the merits. 79 M.J. at 772–82 (plurality opinion). The
other two would have held that Begani forfeited that jurisdictional claim
by failing to preserve it in his plea agreement. Id. at 783–87 (Gaston, J.,
concurring in part and in the result). Three judges dissented from both
of those conclusions. See id. at 787–97 (Crisfield, C.J., dissenting).
11
Begani then petitioned the Court of Appeals for the Armed Forces
for discretionary review of both the equal protection issue and the
broader constitutional challenge rejected in Dinger. Initially, review was
granted only as to the equal protection claim. United States v. Begani, 80
M.J. 200 (C.A.A.F. 2020) (mem.). The government subsequently certified
an additional issue—whether Begani had forfeited his equal protection
claim by not preserving it in his plea agreement. United States v. Begani,
80 M.J. 289 (C.A.A.F. 2020) (mem.). The Court of Appeals later agreed to
take up the Dinger question as well, but only after it was asked to do so
in light of the district court’s decision in this case. See United States v.
Begani, 80 M.J. 463 (C.A.A.F. 2020) (mem.). Oral argument on all three
issues took place on March 9, 2021; the court’s decision remains pending.
The upshot of this background is not just that the constitutionality
of court-martial jurisdiction over military retirees has not been given
plenary consideration by federal appellate courts in decades; it’s that a
practice that had historically been exceedingly “rare” has, for whatever
reason, become increasingly common—alongside intervening Supreme
Court decisions that have required military courts to resort to “first
principles” in order to sustain it.

12
SUMMARY OF ARGUMENT
The government frames the issue in this case as a question of
deference—a theme it returns to at least a dozen times across 45 pages.
In its view, the argument that Congress has the constitutional authority
to subject retired servicemembers like Mr. Larrabee to court-martial for
post-retirement offenses largely reduces to the fact that Congress has
decreed them to be “in” the “land and naval forces.” See, e.g., Gov’t Br. 12
(“It is clear that Fleet Marine Corps Reserve members are in the armed
services. Congress has declared by statute that members are part of the
armed services. It is entitled to deference for that determination, which
it made pursuant to its plenary constitutional authority to create and
organize the armed services.” (citation omitted)).
This call for deference is unfounded. The government is improperly
conflating the considerable deference the political branches enjoy when
regulating the “land and naval forces” with the antecedent question of
who falls within the “land and naval forces” in the first place. On this
latter question, as the district court correctly noted, see JA 19–20, the
Supreme Court has emphatically and consistently extended no deference
to Congress. Rather, an unbroken line of decisions makes clear that the

13
constitutionality of subjecting non-active-duty personnel to the UCMJ—
and to court-martial for any violations thereof—turns on functional
considerations, not formal ones. And the functional analysis of whether
non-active-duty personnel may constitutionally be subject to the UCMJ
reduces to whether they are truly in a military “status” when they are
tried, i.e., “whether the accused in the court-martial proceeding is a
person who can be regarded as falling within the term ‘land and naval
Forces.’” Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 241
(1960) (quoting U.S. CONST. art. I, § 8, cl. 14 (emphasis added)).
The answer to that question is not a matter of legislative ipse dixit.
And, contrary to what the government claims in its brief, no decision of
this Court or the Supreme Court holds otherwise. Instead, because
retirees like Mr. Larrabee meet no potentially relevant functional criteria
for military status, they are not part of the “land and naval forces” while
retired—and Congress therefore lacks the power to subject them to the
UCMJ (and to court-martial) so long as they remain in that status.
But even if members of the Fleet Marine Corps Reserve are still “in”
the “land and naval forces” for purposes of Congress’s Article I power
while they are retired, that conclusion is only necessary to establish the
14
government’s position; it is not sufficient. After all, the line of Supreme
Court decisions beginning in Toth demands that the exercise of military
jurisdiction be “absolutely essential to maintaining discipline among
troops in active service.” Toth, 350 U.S. at 22–23 (citation omitted).
To this precedent, the government offers two responses putatively
grounded in necessity—that otherwise, retirees like Mr. Larrabee might
escape prosecution; and that subjecting retirees to the UCMJ is
necessary to preserve their combat readiness. Gov’t Br. 42–45. The first
argument is not only inconsistent with Toth; it is simply incorrect on the
facts of this case. And the second argument is belied by the fact that, in
contrast to other inactive personnel (who are more likely to be called upon
in an emergency and yet not subject to the UCMJ while inactive), the
government imposes precisely zero training, health, or other readiness-
related obligations on military retirees while they are retired.
Finally, for courts-martial to constitutionally exercise jurisdiction,
they must not only have jurisdiction over the offender, but the offense
itself must “aris[e] in . . . the land or naval forces”—so that it is expressly
excepted from the Fifth Amendment’s requirement of a grand jury
indictment, and implicitly excepted from the petit-jury requirements of

15
Article III and the Sixth Amendment. See, e.g., Ex parte Quirin, 317 U.S.
1, 39–40 (1942).
Although the Supreme Court has held that all non-capital offenses
committed by active-duty servicemembers necessarily arise in the land
or naval forces, see Solorio, 483 U.S. 435, it has never held—or even
suggested—that the same is true for non-military offenses committed by
inactive personnel. Cf. Loving, 517 U.S. at 774 (Stevens, J., concurring)
(explaining that Solorio did not resolve even whether capital offenses by
active-duty troops always fall within the Fifth Amendment’s exception).
So long as the Fifth Amendment imposes any military nexus
requirement for offenses committed by non-active-duty personnel, Mr.
Larrabee’s case fails to meet it; it is undisputed that he was convicted of
civilian offenses committed against a civilian on private property after he
retired from active duty. Thus, unless every single offense committed by
those who are “in” the “land and naval forces” for purposes of Article I,
Section 8 necessarily “aris[es] in . . . the land or naval forces” for purposes
of the Grand Jury Indictment Clause’s exception, Mr. Larrabee’s court-
martial was also prohibited by the Fifth Amendment.

16
ARGUMENT
I. ARTICLE I OF THE CONSTITUTION DOES NOT AUTHORIZE

COURTS-MARTIAL OF POST-RETIREMENT OFFENSES BY
MEMBERS OF THE FLEET MARINE CORPS RESERVE
A. Congress Does Not Receive Deference in Defining

the Scope of the “Land and Naval Forces”
In a series of decisions in the 1950s and 1960s, the Supreme Court
repeatedly rejected court-martial jurisdiction over non-active-duty
personnel that Congress had expressly authorized in the UCMJ. In Toth,
for instance, the Court held that the Constitution bars the court-martial
of ex-servicemembers—even for offenses committed while on active duty.
See 350 U.S. at 21–23. In Reid v. Covert, 354 U.S. 1 (1957), the Court
likewise read the Constitution to prohibit the court-martial of civilian
dependents of servicemembers for capital offenses committed during
peacetime.4 Three years later, Singleton extended that holding to non-
capital offenses. 361 U.S. at 248–49. And in Grisham v. Hagen, 361 U.S.
278 (1960), and McElroy v. United States ex rel. Guagliardo, 361 U.S. 281
4. Justice Black’s plurality opinion in Covert would have gone further,

but the narrower opinions of Justices Frankfurter and Harlan, whose
votes were necessary to the result, were limited to capital offenses. See
Covert, 354 U.S. at 44–45 (Frankfurter, J., concurring in the result); id.
at 65 (Harlan, J., concurring in the result).
17
(1960), the Court likewise held that the Constitution forecloses peacetime
courts-martial of civilian employees of the armed forces for capital and
non-capital offenses, respectively.
In each of these rulings (from which the Supreme Court has never
retreated, see Ali, 71 M.J. at 269), Congress had explicitly subjected
persons not on active duty to the UCMJ (and, thus, to court-martial for
violations thereof), but the Supreme Court accorded no deference to
Congress’s determinations, nor to the application thereof by courts-
martial. Instead, the Justices considered the constitutional question first
and on a clean slate—because the accused “raised substantial arguments
denying the right of the military to try them at all.” Noyd v. Bond, 395
U.S. 683, 696 n.8 (1969); see also Schlesinger v. Councilman, 420 U.S.
735, 759 (1975) (“The constitutional question presented turned on the
status of the persons as to whom the military asserted its power.”).
In contrast, in every case in which the Supreme Court has accorded
Congress deference in regulating the military (including every case cited
by the government), the dispute involved active-duty personnel—where
there was no question as to the “military status of the accused.” See, e.g.,
Solorio, 483 U.S. at 440 (“Implicit in the military status test was the
18
principle that determinations concerning the scope of court-martial
jurisdiction over offenses committed by servicemen was a matter reserved
for Congress.” (emphasis added)); see also id. at 440 n.3 (distinguishing
Toth’s skepticism of military jurisdiction on precisely this ground).
Whatever the merits of such deference to Congress’s determinations in
that context, it simply has no bearing here—where the constitutional
question goes to whether the individuals at issue are properly understood
to be “in” the “land and naval forces” in the first place. 5
B. Whether Individuals are “in” the “Land and Naval

Forces” Turns on Functional Considerations of
Their Status, Not Formal Assertions by Congress
The importance of the government’s invocation of deference is that
its argument for why Mr. Larrabee is “in” the “land and naval forces” for
purposes of Article I—and, thus, subject to court-martial even for post-
retirement offenses—largely reduces to the fact that Congress has said
5. Thus, three years after Solorio, the Court of Military Appeals went
out of its way to flag the difficult constitutional question that would arise
from an attempt to court-martial an inactive reservist who had “no
contacts with an armed force.” Murphy, 29 M.J. at 471. Not only did the
Murphy court conduct its own analysis of whether the accused had
sufficient contacts to moot the constitutional issue, see also id. at 472
(Everett, J., concurring), but it did even mention Solorio (or, more
generally, the idea that it should simply defer to Congress) in its analysis.
19
so. See, e.g., Gov’t Br. 12, 18, 40. But the same line of cases in which the
Supreme Court declined to defer to Congress’s assertion of court-martial
jurisdiction over non-active-duty personnel cannot be reconciled with the
idea that the constitutional test for military status reduces to such
question-begging formalism. As the district court put it, “the Supreme
Court has never implied, much less held, that courts have no role in
determining whether the individuals whom Congress has subjected to
court-martial jurisdiction actually fall within the ordinary meaning of
the ‘land and naval forces’ in the Constitution.” JA 20. Instead, the
standard that emerges from the Supreme Court’s decisions is one
grounded in function, i.e., whether the personnel in question are presently
wielding—or otherwise subject to—military authority.
In Toth, for instance, the Court rejected the government’s argument
that it was enough that the accused’s offense had taken place while he
was on active duty. Instead, “the power granted Congress . . . would seem
to restrict court-martial jurisdiction to persons who are actually members
or part of the armed forces” when they are tried, and not just at the time
of their offense. 350 U.S. at 15 (emphasis added). Justice Black’s plurality
opinion in Covert was to the same effect, concluding that “the authority
20
conferred by Clause 14 does not encompass persons who cannot fairly be
said to be ‘in’ the military service,” 354 U.S. at 22 (plurality opinion)
(emphasis added), without regard to what Congress had provided. So too,
Singleton, where the majority stressed that “[t]he test for jurisdiction
. . . is one of status, namely, whether the accused in the court-martial
proceeding is a person who can be regarded as falling within the term
‘land and naval Forces.’” 361 U.S. at 240–41 (second emphasis added).
In those cases, unlike in this one, Congress had not also deemed the
accused to be “in” the “land and naval forces”; it had merely subjected
them to the UCMJ. But rather than seize on that formalistic defect, the
Supreme Court in each case focused on the functional question—whether
the accused could actually “be regarded as falling within the term ‘land
and naval forces.’” 6 See United States v. Cole, 24 M.J. 18, 22 (C.M.A. 1987)
(“The Supreme Court has not chosen to delineate a bright-line rule but
instead has proceeded on a case-by-case basis to identify those who are
civilians and not within the scope of Article I, section 8, clause 14.”).
6. Indeed, in Guagliardo, the Court suggested that if Congress truly

wanted to subject civilian employees of the military to court-martial, it
could conscript them into active service, see 361 U.S. at 286—rather than
simply declaring them to be “in” the armed forces going forward.
21
And in each of those cases, the reason why the accused did not meet
the Supreme Court’s test for military status was the fact that they had
no actual military role. They were civilians not only in form, but also in
function—as borne out by their lack of military duties, powers, or
responsibilities. E.g., Covert, 354 U.S. at 19 n.38 (plurality opinion)
(noting that the accused “‘render no military service, perform no military
duty, receive no military pay, but are and remain civilians in every sense
and for every capacity’” (quoting WILLIAM WINTHROP, MILITARY LAW AND
PRECEDENTS 106 (2d ed. 1920))).
In that respect, the Supreme Court’s analysis dovetails with the
consistent distinction courts have adopted between civilian and military
offices—which likewise turns not on a formal label, but rather on the
office’s functional duties. E.g., People v. Duane, 121 N.Y. 367, 373 (1890)
(“It is difficult to conceive of . . . a military office without the power of
command, the right of promotion or the obligation to perform some
duty.”); see Officers of the United States Within the Meaning of the
Appointments Clause, 31 Op. O.L.C. 73, 91 (2007) (“[Military offices] are
primarily characterized by the authority to command in the Armed
Forces—commanding both people and the force of the government.”).

22
Thus, although the Supreme Court has never precisely defined the
boundary between those who are “in” the “land and naval forces” and
those who are not, its decisions have consistently reflected the view that
the boundary is heavily informed by the accused’s military function—by
whether the accused has any authority or obligation to act in a military
capacity. Military prisoners, for example, may lack the capacity to give
lawful orders, but they remain obligated to follow them. See Kahn v.
Anderson, 255 U.S. 1 (1921) (upholding the jurisdiction of courts-martial
to try military prisoners for offenses committed while imprisoned). 7
This understanding of military status still leaves the ultimate
decision of who may constitutionally be subjected to military jurisdiction
to the political branches—just not in the manner that the government’s
brief claims. As the Toth line of cases makes clear, it is not enough to
7. The UCMJ also purports to authorize the court-martial, “[i]n time

of declared war or a contingency operation, [of] persons serving with or
accompanying an armed force in the field.” 10 U.S.C. § 802(a)(10). But
the only decision upholding this provision rested on the narrow, case-
specific ground that the accused was a non-U.S. citizen outside the
United States who, as such, lacked constitutional protections. See Ali, 71
M.J. at 266–69; see also United States v. Averette, 41 C.M.R. 363 (C.M.A.
1970) (interpreting an earlier version of § 802(a)(10), which applied only
“in time of war,” to require a declaration of war, in order to avoid the
constitutional questions that would otherwise have arisen from applying
it to a U.S. citizen during the war in Vietnam).
23
satisfy Article I’s definition that Congress has simply asserted that
particular personnel are in the “land and naval forces.” But insofar as the
status test is functional, it follows that Congress does determine who is
in the “land and naval forces” when it decides who to invest with the
functional authority to wield military power—and when. See, e.g., Burns
v. Wilson, 346 U.S. 137, 140 (1953) (plurality opinion) (“[T]he rights of
men in the armed forces must perforce be conditioned to meet certain
overriding demands of discipline and duty, and the civil courts are not
the agencies which must determine the precise balance to be struck in
this adjustment. The Framers expressly entrusted that task to
Congress.” (emphasis added)). Thus, the question becomes whether
Congress so empowered members of the Fleet Marine Corps Reserve.
C. Members of the Fleet Marine Corps Reserve, Like

Mr. Larrabee, Have No Regular Military Authority
or Responsibilities
Applying that distinction to members of the Fleet Marine Corps
Reserve like Mr. Larrabee is relatively straightforward. As Judge Leon
explained below, despite its name, the Fleet Marine Corps Reserve is not
a reserve component of the U.S. armed forces. See JA 11; see also 10
U.S.C. § 10101 (identifying the seven reserve components). Nor are its
24
members in active service. Instead, the Fleet Marine Corps Reserve is
the retirement status for enlisted Marines who have completed at least
20 years of active service. See 10 U.S.C. § 8330.
Indeed, the Marine Corps itself identifies transfer to the Fleet
Marine Corps Reserve as “retirement.” See Marine Corps Order 1900.16,
Marine Corps Separation and Retirement Manual ¶ 7001.1 (Feb. 15,
2019) (“MCO 1900.16”) (“This Chapter outlines policies and procedures
governing retirement and transfer of active duty enlisted Marines to the
Fleet Marine Corps Reserve.”), available at https://perma.cc/7P5R-
MHJH; see also id. ¶ 1012.1 (“An appropriate retirement ceremony is to
be held within the capabilities of the command for Marines retiring
(includ[ing] transfer to the [Fleet Marine Corps Reserve] . . . ).”). Thus,
when someone like Mr. Larrabee “transfers” to the Fleet Marine Corps
Reserve, as the Navy-Marine Corps Court of Criminal Appeals has
explained, “for all intents and purposes, he retired.” Begani, 79 M.J. at
770; see also Dinger, 76 M.J. at 554 n.3 (“We will refer generally to Fleet
Marine Reserve and retired list membership as ‘retired status,’ as
military courts have treated the two statuses interchangeably for
purposes of court-martial jurisdiction.”).

25
The reason why members of the Fleet Marine Corps reserve are “for
all intents and purposes . . . retired” is because they wield no actual
military authority while in that status. Among other things, they:
 Are not assigned to a specific command, and so have no immediate

commanding officer. See Marine Corps Order 1001R.1L, Marine
Corps Reserve Administrative Management Manual ch. 1 ¶ 5 (Mar.
25, 2018) (exempting members of the Fleet Marine Corps Reserve
from the Marine Corps’ command structure because “[t]he FMCR is
not part of total Reserve manpower as currently defined by
statute”), available at https://perma.cc/PBN5-H4KH.
 Lack authority to issue binding orders. Cf. 10 U.S.C. § 750 (“A

retired officer has no right to command except when on active
duty.”).
 May refer to their retired rank only if it does not “give[] the
appearance of sponsorship, sanction, endorsement, or approval” by
the Department of Defense. Dep’t of Def. Directive 5500.7-R, Joint
Ethics Regulation § 2-304 (Aug. 30, 1993), available at
https://perma.cc/N62H-WZDH.
 Are ineligible for promotion. See MCO 1900.16 ¶ 7013.
 Have no obligation to maintain any level of physical fitness. See

Marine Corps Order 6100.13A, Marine Corps Physical Fitness and
Combat Fitness Tests ch. 2 ¶ 2 (Feb. 23, 2021) (omitting members
of the Fleet Marine Corps Reserve from the categories of personnel
required to regularly pass a physical fitness test), available at
https://perma.cc/D2K7-LFKY. 8
8. Members of the Fleet Marine Corps Reserve are also not subject to
the Marine Corps’ random drug testing program, even though reservists
and brig prisoners are. See Marine Corps Order 5300.17A, Marine Corps
Substance Abuse Program app. B ¶ 1(c) (June 25, 2018), available at
https://perma.cc/J7LC-S5JH.
26
 Are not required to participate in any military activities. See MCO

1900.16 ¶ 1405.1 (noting that members of the Fleet Marine Corps
Reserve are obligated only to keep the relevant officials informed of
their current payment and physical mailing addresses). 9
 Cannot refer charges to a court-martial. 10 U.S.C. §§ 822–24.
 Cannot serve as a court-martial panel member (i.e., a juror). Id.

§ 825.
 Are limited in when and how they can wear their uniform. See MCO
1900.16 ¶ 1101.5(b)(4)(B).
These criteria are not meant to be either conclusive or exhaustive.
Rather, they are offered here to illustrate the extent to which, through
both the UCMJ and administrative regulations, Congress and the
Department of Defense have declined to invest members of the Fleet
Marine Corps Reserve with any of the substantive authorities or
responsibilities that could possibly be relevant to the preservation of
“good order and discipline” among troops in active service. 10 So long as
9. Members of the Fleet Marine Corps Reserve can only be required to

undergo training after they have been recalled to active duty. See 10
U.S.C. § 8385(b). Leaving aside that such training only follows recall, the
government has also offered no evidence that any member has ever been
recalled under this provision. Cf. United States v. Nettles, 74 M.J. 289,
292 & n.5 (C.A.A.F. 2015) (a statute that imposes an unenforced training
obligation on inactive reservists does not create a military duty).
10. Indeed, active-duty Marines who face “administrative separation
processing” for suspected military or civilian offenses may transfer to the
Fleet Marine Corps Reserve or retired list in a “restricted status”
27
the Supreme Court continues to require more than Congress’s say-so in
determining whether individuals are “in” the “land and naval forces,” any
functional test for military status simply cannot include members of the
Fleet Marine Corps Reserve while they are retired. 11
D. Mr. Larrabee’s Receipt of “Retainer Pay” and His

Theoretical Amenability to Future Involuntary
Recall Do Not Support a Different Result
Tellingly, the government’s brief does not dispute that members of
the Fleet Marine Corps Reserve lack each of the authorities and duties
identified above. Its argument that Mr. Larrabee satisfies the test for
military “status” instead focuses on what it describes as the two “indicia
of military service” that “confirm” the military status of members of the
Fleet Marine Corps Reserve while they are retired: their eligibility to
receive “retainer pay” and their amenability to involuntary recall to
active duty. Gov’t Br. 32. In the government’s view, these examples
(depending upon their time in active service), at least in part to preserve

some of their accrued benefits. See MCO 1900.16 ¶ 6106.4(a).
11. Even the government’s own Board of Correction for Naval Records
interprets the statutory phrase “civilians” in its enabling legislation to
include members of the Fleet Marine Corps Reserve. See Nicely v. United
States, 147 Fed. Cl. 727, 739–42 (2020).
28
satisfy whatever functional test the Constitution imposes.12 But as the
district court held, “[n]either factor . . . suffices to demonstrate why
military retirees plainly fall within the ‘land and naval forces’ or why
subjecting them to court-martial jurisdiction is necessary to maintain
good order and discipline.” JA 21. That’s because, just like the other
indicia the government invokes in its brief, neither supports the relevant
point, i.e., whether members of the Fleet Marine Corps Reserve continue
to exercise military functions while they are retired.
Taking the government’s pay argument first, the Supreme Court
has already effectively held that pay, standing alone, is an insufficient
constitutional basis on which to subject those receiving it to the UCMJ.
12. At least, that is the position that the government takes in this case.
In Begani, the government argued to the Court of Appeals for the Armed
Forces that “[m]ilitary compensation is neither a prerequisite to, nor a
basis for, court-martial jurisdiction” over members of the Fleet Marine
Corps Reserve. Supplemental Answer at 22–23 & n.3, Begani, No. 20-
0217/NA, available at https://perma.cc/ZC4G-YC4V. Likewise, the
government argued that “a servicemember’s amenability to recall does
not determine whether Congress may constitutionally subject a Fleet
Reservist to military jurisdiction.” Id. at 23. In Begani, at least, these
considerations were supposedly “irrelevant to the issue” of “whether
Fleet Reservists have a sufficient current connection to the military for
Congress to subject them to constant UCMJ jurisdiction.” Id. at 1, 24. But
see Gov’t Br. at 31–32 (describing the district court’s rejection of these
justifications in this case as “error”).
29
Thus, in both Grisham and Guagliardo, the Court held that civilian
employees of the military could not constitutionally be subjected to the
UCMJ in peacetime—even though they drew a regular salary from the
Department of Defense for their ongoing services to the military. See
Guagliardo, 361 U.S. at 282–84; Grisham, 361 U.S. at 279–80. Even if
retainer pay is properly understood as a form of compensation for ongoing
services, then, it is still insufficient to meet the military status test.
If, notwithstanding Grisham and Guagliardo, a salary could still
provide a sufficient constitutional basis for subjecting those receiving it
to the UCMJ, that still wouldn’t help the government here—because
“retainer pay” is not a salary at all; it is a pension. As the government’s
brief correctly explains, it is calculated based solely upon the retiree’s
previous active-duty service, including the nature and duration of their
service and their pay grade at retirement. Gov’t Br. 5 (citing 10 U.S.C.
§§ 8330(c)(1), 8333(a)). No feature of retainer pay relates in any way to
what a member of the Fleet Marine Corps Reserve does while retired.
Because of how it is calculated, the Supreme Court held in Barker
that, at least for purposes of a specific federal tax statute, such pay is
“deferred pay for past services,” rather than “current compensation for
30
reduced current services.” Id. at 605. At issue in Barker was whether
retired pay 13 could be taxed by Kansas under 4 U.S.C. § 111, through
which the United States has consented to state taxation of “pay or
compensation for personal service as an officer or employee of the United
States” only if “the taxation does not discriminate against the officer or
employee because of the source of the pay or compensation.” 4 U.S.C.
§ 111(a). Discriminatory taxes would otherwise be barred by the doctrine
of intergovernmental tax immunity. See Davis v. Mich. Dep’t of the
Treasury, 489 U.S. 803 (1989). Because Kansas taxed retired pay but not
state and local government retirement benefits, the question turned on
whether retired pay was better understood as current salary (in which
case, Kansas was not discriminating) or a pension (in which case, it was).
In holding that retired pay was a pension, the Supreme Court
focused its analysis on how such pay is computed. As Justice White wrote,
13. In contrast to “retainer pay,” which is what members of the Fleet

Reserve and Fleet Marine Corps Reserve are eligible to receive, “retired
pay” is what members on the retired list are eligible to receive. But this
distinction is purely terminological; as the district court noted, “[t]here is
not any material difference between ‘retainer pay’ for members of the
Fleet Marine Corps Reserve and ‘retired pay’ for individuals in retired
status.” JA 11 n.1; see United States v. Morris, 54 M.J. 898, 899 (N-M. Ct.
Crim. App. 2001) (“[The UCMJ] makes no distinction between retired pay
and retainer pay.”). The government has not argued otherwise.
31
The amount of retired pay a service member receives is

calculated not on the basis of the continuing duties he actually
performs, but on the basis of years served on active duty and
the rank obtained prior to retirement. By taking into account
years of service, the formula used to calculate retirement
benefits leaves open the possibility of creating disparities
among members of the same preretirement rank. Such
disparities cannot be explained on the basis of “current pay
for current services,” since presumably retirees subject to
these benefit differentials would be performing the same
“services.”
Id. at 599–600 (internal quotation marks omitted).
Barker decided the issue only in the context of 4 U.S.C. § 111. But
its characterization of retired pay had nothing to do with that statute; it
was based instead on the statutes governing the calculation of retired
pay—which apply in all relevant circumstances. See id. at 599 (citing
Brief for the United States as Amicus Curiae at 11 n.16, Barker, 503 U.S.
594 (No. 91-611), 1992 WL 12012042). Barker’s analysis thus underscores
that, by its nature, retainer pay is properly understood as deferred
compensation—and that it is therefore insufficient to provide the indicia
of current military service on which the government’s brief relies. See,
e.g., Dinger, 76 M.J. at 555–56 (“[I]t is clear that the receipt of retired pay
is neither wholly necessary, nor solely sufficient, to justify court-martial
jurisdiction. As a result, we must call upon first principles to assess the

32
jurisdiction of courts-martial over those in a retired status.”); see also JA
21 (“The Government’s position rests on the longstanding, but largely
inaccurate, assumption that this retainer pay represents reduced
compensation for current part-time services.”).14 Thus, although Barker
did not address the nature of retired pay in the context of subjecting
recipients of such pay to the UCMJ (it had no reason to do so), its analysis
indicates that, even if a current salary could be sufficient to satisfy the
military status test, retainer pay, like retired pay, isn’t.
As for the fact that members of the Fleet Marine Corps Reserve
remain subject to the specter of involuntary future recall to active service,
that’s true enough—at least on paper. 15 But that theoretical possibility
14. Congress has also adopted this understanding of retainer and

retired pay in the Uniformed Services Former Spouses’ Protection Act,
Pub. L. No. 97-252, tit. X, 96 Stat. 718, 730 (1982). That statute treats
retired pay as property that is divisible upon divorce according to state
martial property laws, rather than as income that is not.
15. As has been true throughout this litigation, the government keeps
offering evidence of voluntary recalls as proof that retirees face a
meaningful specter of involuntary recall. See Gov’t Br. 33 (“They were
asked to return to active duty . . . .” (emphasis added)). In Begani, the en
banc Navy-Marine Corps Court of Criminal Appeals went so far as to
order the government to produce data on involuntary recalls. When the
government explained that it was unable to do so, the court withdrew its
demand. See Supplemental Opening Brief at 4 & n.5, Begani, No. 20-
0217/NA, available at https://perma.cc/KXT6-P8BD.
33
does nothing to change the status, duties, or authority of members of the
Fleet Marine Corps Reserve while they are retired. After all, no one
would ever think that the 16 million men registered with the Selective
Service System could constitutionally be subjected to court-martial
simply because they might one day be called to active duty in a time of
war or national emergency. So too, here.
Nor, as Part II demonstrates, has Congress ever deemed it
necessary to subject other bodies of reserve manpower to court-martial
while off active duty and not in training—including the Selected Reserve,
the Individual Ready Reserve, and inactive National Guard troops. And
courts have repeatedly suggested that serious constitutional questions
would arise if Congress tried to do so. See, e.g., Murphy, 29 M.J. at 471;
Wallace v. Chafee, 451 F.2d 1374, 1381 (9th Cir. 1971) (“The principle
that court-martial jurisdiction should be narrowly construed on
constitutional grounds still stands; our conclusion is that the use of such
jurisdiction over on-duty reservists comports with such a construction.
Article 2(3) purports to extend only to on-duty periods, and we therefore
think it is valid.”). Likewise, although the military may court-martial
those currently subject to the UCMJ for offenses committed during prior
34
periods of active-duty service, it has no authority to court-martial the
same individuals for offenses committed in between their distinct
enlistments. See 10 U.S.C. § 803(a). 16
Ultimately, neither of the “objective indicia” the government
invokes as evidence that members of the Fleet Marine Corps Reserve
remain “in” the “land and naval forces” while retired has anything to do
with the military function that they serve in that status—or, more
precisely, the lack thereof. Unless the Constitution can be satisfied
merely by an empty statutory label, members of the Fleet Marine Corps
Reserve are not “in” the “land and naval forces” while retired.
E. Neither the Supreme Court nor This Court Has

Ever Held Otherwise
The government’s brief contends that both the Supreme Court and
this Court have “uniformly upheld” statutes subjecting retired
servicemembers to court-martial, Gov’t Br. at 13, and have “concluded
that military retirees, who have similar indicia of military service, are in
16. The military may also court-martial those who wrongfully refuse to
appear when lawfully called to active duty. See, e.g., Billings v. Truesdell,
321 U.S. 542 (1944); United States v. Lwin, 42 M.J. 279 (C.A.A.F. 1995).
Those individuals were not court-martialed while inactive, however; they
were court-martialed for refusing to acknowledge their lawful activation.
35
the armed services.” Id. at 14. In fact, neither court has ever squarely
confronted the constitutional question presented in this case.
Taking the Supreme Court first, United States v. Tyler, 105 U.S.
244 (1882), did not even involve a court-martial. In that case, the
Supreme Court considered only whether a military retiree receiving pay
was still “serving” in the military for purposes of a statute that tied
servicemembers’ pay raises to five-year periods of “service.” The Court’s
purely descriptive reference to court-martial jurisdiction over retirees
(which correctly summarized the statutes then on the books) was
necessarily dicta given that Tyler himself had never been tried—and that
the substantive issue did not turn in any way on the military’s
jurisdiction. See 105 U.S. at 246. 17
United States v. Fletcher, 184 U.S. 84 (1893), is equally unavailing
for the government. Although the plaintiff in that case had been court-
martialed while retired, he did not challenge whether the court-martial
properly exercised jurisdiction. Instead, the dispute was over whether
17. The government portrays the Supreme Court’s decision in Barker

as consciously reiterating this dictum from Tyler. Gov’t Br. 30. But
Barker quoted this passage from Tyler only as one part of a block quote
that was offered to support an unrelated point. See 503 U.S. at 600 & n.4;
see also JA 22–23 (rejecting this reading of Barker).
36
(and when) his sentence had been approved by the President—resolution
of which affected his entitlement to back pay. See Fletcher v. United
States, 26 Ct. Cl. 541 (1891), rev’d, 148 U.S. 84. Neither the Court of
Claims nor the Supreme Court ever so much as hinted at the
jurisdictional question. See also Runkle v. United States, 122 U.S. 543
(1887) (invalidating the dismissal of a retired Army officer because it was
not properly approved by President Grant, without discussing whether
the court-martial itself presented constitutional questions).
The same can be said of this Court’s predecessor’s decision in
Closson v. United States ex rel. Armes, 7 App. D.C. 460 (1896). The only
issue in that case was where a retired Army officer could be confined
pending court-martial—whether he had a right to be confined to quarters
or could instead be detained in “quarters not his own.” Id. at 468; see also
Joseph W. Bishop, Jr., Court-Martial Jurisdiction Over Military-Civilian
Hybrids: Retired Regulars, Reservists, and Discharged Prisoners, 112 U.
PA. L. REV. 317, 352 (1964) (“The court, deciding the only issue before it,
held the arrest and confinement proper.”). Given that Toth and its
progeny were still six decades away, the lack of attention to whether the
exercise of jurisdiction was itself constitutional is not exactly surprising.

37
In addition to reading into these decisions far more than their text
supports, see Gov’t Br. 13 (“The Supreme Court and this Court have
uniformly upheld [statutes subjecting retirees to court-martial].”
(emphasis added)), the government’s brief also makes much of what it
calls the “longstanding historical practice” supporting court-martial
jurisdiction over retired servicemembers, which dates in some form to the
initial creation of retired lists for the Army and Marine Corps in 1861.
Id. at 1, 2, 25. Here, though, the government is confusing historical
practice for the historical existence of mostly untested legal authorities.
The reality, as noted above, is that “reported courts-martial of
military retirees are relatively rare.” Ives & Davidson, supra, at 11. Rarer
still are judicial decisions upholding such courts-martial against
constitutional challenges; as noted below, in the 160 years that such
jurisdiction has been on the books, there have been exactly two such
rulings by Article III appellate courts. Whatever the wisdom of those
rulings, they are not binding on this Court—and have in any event been
overtaken by subsequent events, especially the Supreme Court’s
decisions in Toth and its progeny and its clarification of the nature of
retired pay in Barker. Thus, the government’s historical examples

38
bespeak nothing more than “a self-aggrandizing practice adopted by one
branch well after the founding, often challenged, and never before blessed
by this Court . . . [which] does not relieve us of our duty to interpret the
Constitution in light of its text, structure, and original understanding.”
NLRB v. Noel Canning, 573 U.S. 513, 573 (2014) (Scalia, J., concurring
in the judgment).
As for those two Article III appellate rulings, the first came from
the Second Circuit in 1948. In United States ex rel. Pasela v. Fenno, 167
F.2d 593 (2d Cir.), cert. dismissed, 335 U.S. 806 (1948), the court upheld
the court-martial of a member of the Navy’s “Fleet Reserve”—based
entirely on the facts that the accused received retainer pay and remained
amenable to future recall. See id. at 595. And 18 years later in Hooper,
the Court of Claims rejected a retired admiral’s challenge to his post-
retirement court-martial “because the salary he received was not solely
recompense for past services, but a means devised by Congress to assure
his availability and preparedness in future contingencies.” 326 F.2d at
159. Even then, the decision stressed, “we have certain doubts” as to the
constitutionality of such jurisdiction. Id.

39
That’s why, in its 2017 ruling in Dinger, the Navy-Marine Corps
Court of Criminal Appeals concluded that whether the Constitution
allows retirees to be subjected to the UCMJ for post-retirement offenses
was, contra the government, not settled by precedent, and instead had to
be decided based upon “first principles.” 76 M.J. at 556. Properly
understood, those “first principles” demonstrate that, notwithstanding
their eligibility to receive retainer pay and their amenability to future
recall, members of the Fleet Marine Corps Reserve are not “in” the “land
and naval forces” for purposes of Congress’s constitutional authority to
subject them to the UCMJ under the Make Rules Clause. As the district
court held below, 10 U.S.C. § 802(a)(6), which subjects members of the
Fleet Marine Corps Reserve to the UCMJ, is therefore unconstitutional.
II. MAINTAINING DISCIPLINE AMONG TROOPS IN ACTIVE SERVICE

DOES NOT DEPEND UPON THEIR AMENABILITY TO COURT-
MARTIAL WHILE INACTIVE
Even if this Court concludes that members of the Fleet Marine
Corps Reserve are “in” the “land and naval forces” for purposes of Article
I, the government still bears the burden of demonstrating that subjecting
those individuals to court-martial for offenses committed while retired is

40
“absolutely essential to maintaining discipline among troops in active
service.” Toth, 350 U.S. at 22–23 (citation omitted).
Implicitly acknowledging this additional requirement, the
government closes its brief by offering two reasons why court-martial
jurisdiction over members of the Fleet Marine Corps Reserve is, in its
view, “necessary”: (1) to ensure that offenders don’t “escape prosecution”;
and (2) because “it is imperative that Fleet Marine Corps Reserve
members retain their training before being recalled to active duty.” Gov’t
Br. 43–44. Neither of these arguments is remotely persuasive.
Taking the “escape prosecution” argument first, the Supreme Court
in Toth specifically rejected the suggestion that court-martial jurisdiction
could be made necessary by the (potential) unavailability of a civilian
forum. As Justice Black explained, “[t]here can be no valid
argument . . . that civilian ex-servicemen must be tried by court-martial
or not tried at all. If that is so it is only because Congress has not seen fit
to subject them to trial in federal district courts.” 350 U.S. at 21; see also
Singleton, 361 U.S. at 246 (suggesting that “the answer to the
disciplinary problem” raised by the Court’s holding would be for Congress
to expand the jurisdiction of the civilian courts, not courts-martial).

41
In any event, on the facts of this case, the only reason why “military
authorities determined that [Mr. Larrabee] could not be tried by a
civilian court in the United States,” Gov’t Br. 43, is because the Military
Extraterritorial Jurisdiction Act, 18 U.S.C. §§ 3261–67, does not apply to
those who are subject to prosecution under the UCMJ. Id. § 3261(d)(1);
see also Gov’t Br. A15–16 (reflecting this understanding). If Mr. Larrabee
is correct that the Constitution forbade his court-martial, he necessarily
would have been subject to prosecution in a civilian federal court. Indeed,
the government does not argue otherwise. 18 Nor does the government
dispute that Japan had concurrent jurisdiction over Mr. Larrabee’s
offenses—and could also have tried them if the Marine Corps did not. See
Gov’t Br. A15. Simply put, it’s only because the government claimed the
authority to try Mr. Larrabee by court-martial that these other criminal
remedies were unavailable in this case.
18. In addition to facing prosecutions in civilian state or federal court

for post-retirement offenses, retired servicemembers are also subject to
the Hiss Act, 5 U.S.C. § 8311–22, which, among other things, disqualifies
them from continuing to receive retainer pay or retired pay if they are
convicted of any number of criminal offenses. See id. § 8312. The
government also represented to the district court that military retirees
convicted of civilian offenses could also be stripped of their other
remaining military benefits, as well. See JA 26.
42
The government’s broader argument—that subjecting members of
the Fleet Marine Corps Reserve to the UCMJ is necessary to retain their
training pending recall—runs headlong into two insuperable obstacles.
First, as noted above, members of the Fleet Marine Corps Reserve don’t
have an obligation to maintain any level of training or physical readiness
while they are retired. They are exempt from the Marine Corps’ annual
physical fitness test and drug screening program. And they are subject to
no training requirements of any kind unless and until they are recalled
to active duty. See ante at 26 & n.9. To the contrary, some members joined
the Fleet Marine Corps Reserve because of their unsuitability for active-
duty service. See id. at 26 n.10. If it is truly “imperative” to preserve the
combat utility of members of the Fleet Marine Corps Reserve and other
retirees pending their (highly unlikely) involuntary recall to active duty,
one might reasonably expect the government to take at least some steps
to … preserve their combat utility.
Second, and more fundamentally, no such imperative has presented
itself with respect to other classes of personnel that are far more likely
than the Fleet Marine Corps Reserve to be involuntarily called upon to
augment active-duty troops during a crisis. Indeed, were the United

43
States to face an emergency requiring significantly more manpower than
the 1.3 million active-duty troops currently in uniform, 19 the first—and
primary—source for additional troops would necessarily be the Ready
Reserve, including the Selected Reserve, the Individual Ready Reserve,
and inactive National Guard units. See Dep’t of Def. Instruction 1215.06,
Uniform Reserve, Training, and Retirement Categories for the Reserve
Components, encl. 5, § 2 (Mar. 11, 2014), available at https://perma.cc/
B28F-EWXN. This reflects the rise of—and increasing reliance upon—
the modern reserve system, the most important shift in the structure of
the U.S. armed forces since the end of the Cold War. See Library of
Congress, Historical Attempts to Reorganize the Reserve Components, at
1, 15–17 (2007), available at https://perma.cc/SG43-7KMR.
But even though the Selected Reserve “consists of those units and
individuals in the Ready Reserve designated by their respective
Service . . . as so essential to initial wartime missions that they have
priority over all other Reserves,” Dep’t of Def. Instruction 1215.06 § 2(a)
(emphasis added), its members are not subject to the UCMJ while
19. See Dep’t of Def., Defense Manpower Requirements Report for Fiscal
Year 2020, at 2 tbl.1-1 (2019), available at https://perma.cc/QP9F-NXGP.
44
inactive. Neither are members of the Individual Ready Reserve or
inactive National Guard troops—many of whom are subject to readiness
requirements. See ante at 25 & n.8 (citing MCO 6100.13A). Apparently,
subjecting those personnel to the UCMJ while they are inactive has not
been deemed essential to preserving their combat readiness—or their
availability to be called to active duty if and when they are needed. See
JA 25 (“Congress’s current treatment of inactive members of the Reserve
components calls into question whether court-martial jurisdiction over
military retirees is actually necessary to such end.”).
Throughout this litigation (and the litigation in Dinger and Begani),
the government has never explained why it is at once “necessary” for the
very last personnel it would involuntarily recall in a crisis to be subject
to trial by court-martial while they are inactive, 20 but not necessary to
20. Even in an emergency, the government’s own mobilization criteria

effectively disqualify over two-thirds of military retirees from being
recalled to active duty. Compare Dep’t of Def. Instruction 1352.01,
Management of Regular and Reserve Retired Military Members,
¶ 3.2(g)(2) (Dec. 8, 2016) (noting that Category III retirees—those who
are disabled and/or more than 60 years old—are not to be utilized for
military positions), available at https://perma.cc/W52D-4BPF, with Dep’t
of Def., Statistical Report on the Military Retirement System: Fiscal Year
2019, at 16, 29–30, 59 (2020) (showing that, of 2,002,695 retirees
receiving pay in 2019, 67% were either more than 60 years old or
disabled), available at https://perma.cc/9BRH-TN8H.
45
subject to court-martial any of the inactive personnel who are far more
likely to augment active-duty troops if and when circumstances demand.
Whether or not this distinction between retired servicemembers and
other inactive personnel is, as the district court suggested, “arbitrary,”
id., it is at the very least fatal to the government’s claim that subjecting
members of the Fleet Marine Corps Reserve to the UCMJ in perpetuity
is somehow “absolutely essential to maintaining discipline among troops
in active service.” Toth, 350 U.S. at 22–23 (citation omitted).
III. BECAUSE MR. LARRABEE’S OFFENSES DID NOT “ARIS[E] IN . . .

THE LAND OR NAVAL FORCES,” HIS COURT-MARTIAL WAS ALSO
FORECLOSED BY THE GRAND JURY INDICTMENT CLAUSE
The district court held that Congress lacked the power under
Article I to subject members of the Fleet Marine Corps Reserve like Mr.
Larrabee to court-martial for post-retirement offenses. JA 18. It therefore
did not reach Mr. Larrabee’s alternative argument, advanced both on
direct appeal and in his pleadings below, that the Fifth Amendment’s
Grand Jury Indictment Clause limits the jurisdiction of courts-martial to
cases “arising in . . . the land or naval forces.” U.S. CONST. amend. V. It
is black-letter law that this Court “may affirm on any ground properly
raised.” Aramark Corp., 208 F.3d at 268. Because Mr. Larrabee was
46
convicted of civilian offenses against a civilian victim on private property,
his offenses did not “aris[e] in . . . the land or naval forces.” The district
court’s ruling can therefore also be affirmed on this alternative basis.
In Solorio, the Supreme Court rejected the argument—adopted in
O’Callahan v. Parker, 395 U.S. 258 (1969)—that the Fifth Amendment
requires that offenses by active-duty personnel be connected to their
military service in order to be subject to court-martial. 483 U.S. at 450–
51 (“The requirements of the Constitution are not violated where, as here,
a court-martial is convened to try a serviceman who was a member of the
Armed Services at the time of the offense charged.”).
But just as O’Callahan’s service-connection requirement applied
only to offenses by active-duty personnel, so, too, did Solorio’s overruling
of it. There, Chief Justice Rehnquist’s analysis was predicated entirely
on the view that, where active-duty servicemembers were concerned,
their status necessarily brought them within the scope of the Make Rules
Clause—and thereby settled their amenability to court-martial. See 483
U.S. at 439–40. To underscore Solorio’s limited scope, four Justices would
later suggest that it did not even resolve that issue for capital offenses
committed by active-duty personnel, let alone for offenses by non-active-

47
duty personnel. See Loving, 517 U.S. at 774 (Stevens, J., concurring)
(“The question whether a ‘service connection’ requirement should obtain
in capital cases is an open one both because Solorio was not a capital
case, and because Solorio’s review of the historical materials would seem
to undermine any contention that a military tribunal’s power to try
capital offenses must be as broad as its power to try noncapital ones.”).
Whether or not Solorio is so limited as to active-duty personnel, see
United States v. Hennis, 79 M.J. 370, 379 (C.A.A.F. 2020) (“We hold that
Solorio applies to capital cases.”), it underscores that the Supreme Court
has not settled the scope of the Grand Jury Indictment Clause’s exception
as applied to non-active-duty personnel. Indeed, as the district court
suggested, for offenses committed by individuals outside any active chain
of command, Solorio’s analysis points in the opposite direction. See JA
19–20; cf. FRANCIS A. GILLIGAN & FREDRIC I. LEDERER, COURT-MARTIAL
PROCEDURE § 2-22.30 (5th ed. Matthew Bender & Co. 2020) (“Rather than
demonstrating the need for general jurisdiction over retired personnel,
Hooper suggests a need for a limited jurisdiction contingent upon a strong
‘service connection’ test similar to that which was required under the
Supreme Court’s now-abandoned decision in O’Callahan v. Parker.”).

48
After all, even if, contrary to the analysis above, Mr. Larrabee
remains a member of the “land and naval forces” for purposes of Article
I’s Make Rules Clause, his offenses must still “aris[e] in . . . the land or
naval forces” for his court-martial to be constitutional. And whatever
offenses by military retirees might fit that description, Mr. Larrabee’s
don’t: He was convicted for civilian offenses committed after he retired
against a civilian victim on private property.
Thus, unless the Constitution allows for the exercise of military
jurisdiction over all retirees in all cases (in which case, the exception to
the Grand Jury Indictment Clause would serve no purpose independent
of the scope of the Make Rules Clause), Mr. Larrabee’s offenses did not
“arise in the land or naval forces,” and the Fifth Amendment forbade his
trial by court-martial separate and apart from the limits intrinsic to the
Make Rules Clause of Article I.21
21. Nor is there any argument that Mr. Larrabee consented to his
court-martial because he chose to be transferred to the Fleet Marine
Corps Reserve rather than be discharged and forego his pension. Even if
a party to a civil case can consent to an otherwise unconstitutional
exercise of jurisdiction by a non-Article III federal court, see Wellness Int’l
Network, Ltd. v. Sharif, 575 U.S. 665 (2015), the same is not true of
criminal defendants before military tribunals. See al Bahlul, 840 F.3d at
760 n.1 (Kavanaugh, J., concurring); see also JA 23–24 (rejecting the
government’s suggestion that Mr. Larrabee “consented” to jurisdiction).
49
* * *
Despite their advancements in recent years, courts-martial today
still employ numerous procedures that would be clearly unconstitutional
in civilian courts. Among many other examples, guilty verdicts in non-
capital cases require the concurrence of only three-fourths of the panel
members. 10 U.S.C. § 852(a)(3). But see Ramos v. Louisiana, 140 S. Ct.
1390 (2020) (holding that the Sixth Amendment creates a fundamental
right against non-unanimous verdicts). And the panel members, in turn,
are those who, “in [the convening authority’s] opinion, are best qualified
for the duty by reason of age, education, training, experience, length of
service, and judicial temperament.” 10 U.S.C. § 825(e)(2). But see Taylor
v. Louisiana, 419 U.S. 522, 528–30 (1975) (holding that the Sixth
Amendment protects a fundamental right to the “selection of a petit jury
from a representative cross section of the community”). In capital cases,
courts-martial have not been required to follow Ring v. Arizona, 536 U.S.
584 (2002). See United States v. Akbar, 74 M.J. 364, 404 (C.A.A.F. 2015).
And in general, the Supreme Court has instructed reviewing courts to
accord more deference to courts-martial than to civilian courts in
reviewing all procedural due process claims, see Weiss v. United States,
50
510 U.S. 163, 177–78 (1994), including challenges to military judges’ lack
of even statutory tenure protections. See id.
Alongside these procedural departures, the government continues
to employ courts-martial to prosecute substantive conduct that would be
constitutionally shielded from civilian prosecution—including anti-war
speech otherwise protected by the First Amendment, see Parker, 417 U.S.
at 735; wearing religious attire, see Goldman v. Weinberger, 475 U.S. 503
(1986); adultery and fraternization, see United States v. Wales, 31 M.J.
301 (C.M.A. 1990); and contemptuous speech toward the President or
other senior political officials. See 10 U.S.C. § 888. 22 In all of these
respects, among countless others, military justice remains a system
apart. See Parker, 417 U.S. at 743 (“[T]he military is, by necessity, a
specialized society separate from civilian society.”).
On the government’s view, Congress can subject individuals to the
separate procedural and substantive rules of the military justice system
22. During World War II, for instance, the Army brought charges under
Article 88’s predecessor against a retired officer associated with the
America First Committee for giving a speech in which he impugned
President Roosevelt’s loyalty—dropping the matter only to avoid drawing
more attention to the remarks. John G. Kester, Soldiers Who Insult the
President: An Uneasy Look at Article 88 of the Uniform Code of Military
Justice, 81 HARV. L. REV. 1697, 1733 n.225 (1968).
51
solely by decreeing them to be “in” the “land and naval forces,” no matter
how far removed from active duty they may be in both time and function
or how unlikely it is that they will ever be called to serve—or serve again.
But “[a]s necessity creates the rule, so it limits its duration.” Ex
parte Milligan, 71 U.S. (4 Wall.) 2, 127 (1866); see also JA 16 (“Experience
has clearly demonstrated the baseline proposition that court-martial
jurisdiction must be narrowly limited.”). As the district court correctly
concluded below, given both the systematic inapplicability of the UCMJ
to other inactive personnel and the lack of duties and authorities
possessed by members of the Fleet Marine Corps Reserve like Mr.
Larrabee, there is simply no good argument for why these military
retirees need to be subject to the UCMJ while they are retired. And so
long as military jurisdiction in this country is to remain the exception,
rather than the norm, there are compelling prudential, historical, and
constitutional reasons why they should not be.

52
CONCLUSION
The decision below should be affirmed.
Respectfully submitted,
Stephen I. Vladeck
727 East Dean Keeton Street
Austin, TX 78705
(512) 475-9198
svladeck@law.utexas.edu
Eugene R. Fidell
Feldesman Tucker Leifer Fidell LLP
1129 20th Street, N.W., 4th Floor
Washington, DC 20036
Counsel for Plaintiff-Appellee
May 26, 2021

ADDENDUM
1a
ADDENDUM
TABLE OF CONTENTS

Uniform Reserve, Training, and Retirement Categories for
the Reserve Components (Mar. 11, 2014) 2a

Management of Regular and Reserve Retired
Military Members (Dec. 8, 2016) 2a
Marine Corps Order 1001R.1L,

Marine Corps Reserve Administrative Management
Manual (Mar. 25, 2018) 3a
Marine Corps Order 1900.16,

Marine Corps Reserve Administrative
Management Manual (Mar. 25, 2018) 4a

Marine Corps Substance Abuse Program (June 25, 2018) 7a

Marine Corps Physical Fitness and Combat
Fitness Tests (Feb. 23, 2021) 7a
2a
Dep’t of Def. Instruction 1215.06, Uniform Reserve, Training, and

Retirement Categories for the Reserve Components (Mar. 11, 2014)
Encl. 5 ¶ 2:
READY RESERVE CATEGORIES. The Ready Reserve is comprised of

Service members of the Reserve and National Guard, organized in units
or as individuals, or both. These Service members are accessible for
involuntary order to AD in time of war or national emergency pursuant
to sections 12301 and 12302 of Reference (d) and section 712 of Reference
(i) in the case of members of the Coast Guard Reserve. The Ready Reserve
consists of three subcategories: the Selected Reserve, the Individual
Ready Reserve (IRR), and the ING.
a. Selected Reserve. The Selected Reserve consists of those units

and individuals in the Ready Reserve designated by their respective
Service, and approved by the Chairman of the Joint Chiefs of Staff, as so
essential to initial wartime missions that they have priority over all
other Reserves. All Selected Reservists are in an active status. They are
trained as prescribed in section 10147(a) of Reference (d) or section 502(a)
of Reference (f), as appropriate. In addition to the involuntary call-up
authorities described in this section, members of the Selected Reserve
may also be involuntarily called to AD to augment the active forces for
any operational mission pursuant to sections 12304, 12304a, and 12304b
of Reference (d). . . .
Dep’t of Def. Instruction 1352.01, Management of Regular and

Reserve Retired Military Members (Dec. 8, 2016)
¶ 3.2(g):
Utilization of Retired Military Members.

3a
(1) Categories I and II retired military members who are physically

qualified may be identified for potential deployment to positions that
must be filled within 30 days after mobilization.
(2) The nature and extent of the mobilization of Category III

retirees will be determined by each Military Service, based on the
retiree’s military skill and, if applicable, the nature and degree of the
retiree’s disability. Category III retirees generally should be deployed to
civilian defense jobs upon mobilization, unless they have critical skills or
volunteer for specific military jobs.
(3) Retired military members who live overseas will be considered

first by the Military Service concerned to meet mobilization
augmentation requirements at overseas, U.S., or allied military
installations or activities that are near their places of residence.
Marine Corps Order 1001R.1L, Marine Corps Reserve Administrative

Management Manual (Mar. 25, 2018)
Ch. 1 ¶ 5:
Retired Reserve. The Retired Reserve consists of Reserve Marines who

fall into one of the categories described below.
a. Retired Reserve Awaiting Pay (Gray Area Retirees). This

category consists of Reserve Marines who have completed at least 20
qualifying years of service and have requested transfer to the Retired
Reserve. When the Marine reaches age 60 (or reduced retirement age
eligibility as defined in reference (d) and covered in Chapter 4 of this
Order), retired pay commences upon application by the member.
b. Retired Reserve in Receipt of Retired Pay. This category is

comprised of Reserve Marines who have completed at least 20 years of
qualifying service, are at age 60 (or reduced retirement age eligibility as
4a
defined in reference (d) and covered in Chapter 4 of this Order), and have
applied for and are receiving retired pay.
c. Reserve Active Duty Retirees. These Reserve Marines have

completed at least 20 years of active-duty service for retirement pay and
have been approved for an active-duty retirement.
d. Physical Disability. Reserve Marines retired for physical

disability under sections 1201, 1202, 1204, or 1205 of reference (c).
e. Others. Reserve Marines drawing retired pay based on

retirement for reasons other than age, service requirements, or physical
disability fall into this category. Marines in this category are retired
under special conditions.
Note: The Retired Reserve does not include members of the Fleet Marine
Corps Reserve (FMCR). The FMCR consists of enlisted personnel who
have completed 20 but less than 30-years of active-duty service and are
receiving retainer pay. The FMCR is not part of total Reserve manpower
as currently defined by statute (reference (c)); however, it is a pool of
trained personnel available for mobilization consistent with the Retired
Reserve.
Marine Corps Order 1900.16, Marine Corps Reserve Administrative

Management Manual (Mar. 25, 2018)
¶ 1012.1:
An appropriate retirement ceremony is to be held within the

capabilities of the command for Marines retiring (includes transfer to the
FMCR, TDRL, and PDRL).
¶ 1101.5(b)(4)(B):
5a
FMCR and Retired Marines. These Marines are entitled to wear the
prescribed uniform of the grade held on the retired list when wear of the
uniform is appropriate under the provisions of reference (ci) MCO
P1020.34
¶ 1405.1:
Retired and FMCR Marines will:
a. Keep the Director, Defense Finance and Accounting Service

(DFAS) informed at all times of their current check mailing address and
current home mailing address using the address in paragraph 1404.1. All
retired/FMCR Marines must be on direct deposit.
b. Keep the CMC (MMSR-6) informed at all times of their current

home mailing address. Provide address changes and submit with
signature over the EDIPI for identification purposes. Report address
changes to:
United States Marine Corps

Manpower and Reserve Affairs (MMSR-6)
3280 Russell Road
Quantico, VA 22134-5103
Telephone: 1-800-715-0968.
¶ 6106.4(a):
FMCR/Retirement-Eligible Marines
a. Marines with 20 or more years of service are subject to

administrative separation per this Manual. The DC, M&RA is the
separation authority.
(1) A Marine being considered for administrative separation

6a
processing who is eligible for transfer to the FMCR or retired list may
request that transfer before the command initiates administrative
separation processing. See paragraph 7012 and use Figures 7-3, 7-4 and
7-5.
(2) The CMC (MM) may approve the request for transfer to
the FMCR/retired list, or the CMC (MM) may disapprove such a
request, and based on adverse information submitted by the
Marine’s chain of command or adverse material contained in the
Marine’s official records, direct administrative separation
processing to ensure the Marine is afforded the procedural rights of
a respondent prior to making a separation, characterization of
service, and grade determination.
(3) The CMC (MM) may only direct administrative separation

processing if the information submitted by the Marine’s chain of
command or material contained in the Marine’s official records
forms one of the specific reasons for involuntary administrative
separation per this Chapter.
¶ 7001.1:
This Chapter outlines policies and procedures governing retirement

and transfer of active duty enlisted Marines to the Fleet Marine Corps
Reserve (FMCR). This Chapter also contains administrative instructions
including retirement procedures for Marines while members of the
FMCR. Retirement of Reserve enlisted Marines not on active duty and
disability retirements are covered in Chapters 3 and 8, respectively.
¶ 7013:
Grade While a Member of the FMCR. A Marine who transfers to

the FMCR does so in the grade held on the day released from active duty
unless otherwise directed to transfer to the FMCR in the last grade
7a
satisfactorily held by the DC M&RA per paragraph 701. Advancement to

any officer grade upon retirement is explained in paragraph 7018.
Marine Corps Order 5300.17A, Marine Corps Substance Abuse

Program (June 25, 2018)
App. B ¶ 1(c):
The above requirement does not preclude participation in special

testing:
(1) Brig staff are tested quarterly.
(2) Prisoners are tested as directed by their commander.
(3) Marines assigned as SACOs, UPCs, and observers are

tested monthly, except for Recruiting Command SACOs, who are
tested quarterly and as directed by the commander.
(4) Reservists are tested no later than 72 hours after the

beginning of scheduled annual training or initial active duty
training.
(5) Commanders direct testing of Marines reporting in from

Permanent Change of Station (PCS), Unauthorized Absence (UA),
and extended leave periods (exceeding seven days) within 72
hours of arrival/return to the unit.
Marine Corps Order 6100.13A, Marine Corps Physical Fitness and

Combat Fitness Tests (Feb. 23, 2021)
Ch. 2 ¶ 2:
8a
Requirement
a. Active Component. The PFT is a scored, calendar year annual

requirement for all active duty Marines, regardless of age, gender, grade,
or duty assignment. It is required to be conducted between 1 January and
30 June of each year.
b. Reserve Component. The PFT is a scored, calendar year annual

requirement for all Selected Marine Corps Reserve (SMCR) and
Individual Mobilization Augmentee (IMA) Marines, regardless of age,
gender, grade, or duty assignment. PFT scores will remain valid for two
years for promotional purposes should operational constraints prevent
annual testing. It is required to be conducted between 1 January and 30
June of each year.
c. Activated Reservists. Activated Reserve Marines, to include

Active Reserve (AR), mobilized or those performing Active Duty
Operational Support (ADOS) will comply with the active component
annual PFT requirement. Exceptions and waivers will be administered
in accordance with this Order.
d. End of Active Service/Retirement. Marines are required to

complete a PFT during the annual period preceding their End of Active
Service (EAS) or retirement date, unless otherwise directed. The
terminal leave date will not be utilized to determine PFT requirements.
e. End of Active Service (EAS)/Retirement Final Physical Examination.
Completion of the required final physical examination, regardless of
when completed, does not exempt a Marine from performing a PFT. A
Marine, who elects to complete their final physical examination 7-12
months prior to EAS or retirement, is still required to perform the annual
PFT for that period. This policy is also applicable to the reserve
component annual requirement. For example, a Marine who completes
their final physical examination in March, but does not EAS or retire
until October, is still required to perform the annual PFT for the
January-June timeframe.
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rules of Appellate Procedure 32(a)(7)(B) and
32(g)(1), I hereby certify that this brief contains 11,332 words, as
calculated by the word count function in Microsoft Word, and excluding
the items that may be excluded under Federal Rule of Appellate
Procedure 32(a)(7)(B)(iii) and D.C. Cir. Local R. 32(e)(1). This brief uses
a proportionally spaced typeface, Century Schoolbook, with 14-point
typeface, in compliance with Federal Rules of Appellate Procedure
32(a)(5)(A) and 32(a)(6).
Stephen I. Vladeck
May 26, 2021

CERTIFICATE OF SERVICE
I hereby certify that on this 26th day of May, 2021, a true and
correct copy of the foregoing Brief for Appellee was served on all counsel
of record in this appeal via the D.C. Circuit’s CM/ECF utility.
Stephen I. Vladeck
May 26, 2021

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USCA Case #21-5012 Document #1900132 Filed: 05/26/2021 Page 1 of 75

[ORAL ARGUMENT NOT YET SCHEDULED]

IN THE UNITED STATES COURT OF APPEALS FOR

On Appeal from the U.S. District Court

BRIEF FOR PLAINTIFF-APPELLEE

Eugene R. Fidell Stephen I. Vladeck

May 26, 2021

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

A. Parties and Amici Curiae

All parties, intervenors, and amici appearing before the district

B. Rulings Under Review

memorandum opinion issued on November 20, 2020, granting Plaintiff-

reported, but is available at 2020 WL 6822706, and is reprinted at JA 10.

This case is a non-custodial collateral attack on a conviction by a

court-martial conducted by the U.S. Navy-Marine Corps Trial Judiciary.

It has not previously been before this Court. Plaintiff-Appellee Steven

Larrabee’s direct appeal of his conviction was docketed as No. 201700075

in the U.S. Navy-Marine Corps Court of Criminal Appeals; No. 18-

satisfy D.C. Cir. R. 28(a)(1)(C).

heard argument in a pair of consolidated appeals by a different defendant

Nos. 20-0217/NA and 20-0327/NA (C.A.A.F.); see also post at 10–11

(discussing Begani’s procedural history).

1. Authorities on which this brief principally relies are marked with

TABLE OF AUTHORITIES (CONTINUED)

Loving v. United States,

TABLE OF AUTHORITIES (CONTINUED)

TABLE OF AUTHORITIES (CONTINUED)

United States v. Larrabee,

TABLE OF AUTHORITIES (CONTINUED)

Uniform Code of Military Justice, 10 U.S.C.

10 U.S.C. § 8330 ...................................................................................... 24

Military Extraterritorial Jurisdiction Act,

Uniformed Services Former Spouses’ Protection Act,

ADMINISTRATIVE REGULATIONS AND REPORTS

TABLE OF AUTHORITIES (CONTINUED)

Marine Corps Order 1001R.1L,

BRIEFS AND OTHER LEGAL MEMORANDA

TABLE OF AUTHORITIES (CONTINUED)

Throughout American history, military jurisdiction has been the

exception, not the norm. “[H]aving experienced the military excesses of

the Crown in colonial America, the Framers harbored a deep distrust of

executive military power and military tribunals.” Loving v. United

(1958) (“The attitude of a free society toward the jurisdiction of military

tribunals . . . has a long history.”).

In part, that distrust reflected concerns that the military dispensed

“a rough form of justice emphasizing summary procedures, speedy

convictions and stern penalties with a view to maintaining obedience and

(2009) (Roberts, C.J., concurring in part and dissenting in part) (internal

But this skepticism of military jurisdiction has persisted even as

courts-martial have evolved to better protect the rights of active-duty

concerns remain that courts-martial—which still utilize procedures and

Supreme Court’s “repeated caution against the application of military

jurisdiction over anyone other than forces serving in active duty”).

Second, because “[e]very extension of military jurisdiction is an

encroachment on the jurisdiction of the civil courts,” al Bahlul v. United

concurring) (internal quotation marks omitted), this skepticism also

reflects the broader and more fundamental separation of powers concerns

that arise whenever the political branches divert adjudicatory authority

away from Article III courts—regardless of the quality of the non-Article

Courts-martial are a longstanding exception to Article III, but one