One of the most closely watched CAAF cases in recent years has been United States v. Ali, 71 M.J. 256 (C.A.A.F. 2012), which involves a challenge to the expansion of Article 2(10) to extend court-martial jurisdiction over civilians accompanying the military in contigency operations.  Now a Navy court-martial is considering this jurisdictional challenge to the court-martial of a Public Health Service captain.

Article 2(8) extends court-martial jurisdiction over “[m]embers of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces.”  The portion of Article 2(8) covering the Public Health Service was part of the UCMJ as originally enacted in 1950.

A large part of CAPT Henriques’s challenge to being subject to court-martial jurisdiction is an argument that governing regulations weren’t complied with.

CAPT Henriques is represented by David P. Sheldon, Esq.

6 Responses to “Jurisdictional challenge to court-martial of Public Health Service captain”

  1. Cloudesley Shovell says:

    Concur that this will be an interesting case. 
     
    I wonder what processes the Public Health Service has to discipline or otherwise terminate the commissions of its officers in the event of misconduct.  I’m wondering first what the underlying misconduct is, and second, whether the PHS has any disciplinary proceedings pending or contemplated against CAPT Henriques.  I think there’s more to this story.
     
    As to UCMJ jurisdiction, in theory, jurisdiction is strictly construed against jurisdiction.  In practice, CAAF and the service courts have been rather more liberal.  A lot may depend on the military judge’s factual findings, and whether those findings are ultimately treated as factual issues subject to abuse of discretion review or legal issues reviewed de novo.
     

  2. Zachary Spilman says:

    The Secretary of Health issued implementing regulations that mandate that before a PHS officer may be assigned to the armed forces three requirements must be met: (1) the officer must be “duly informed” that he will be subject to the UCMJ before the assignment begins; (2) he must give consent to the assignment; and (3) he must acknowledge that he will be subject to the UCMJ. CCD 121.04 (emphasis added).

    Seems like a good opportunity to make an analogy to Article 137…

  3. Gene Fidell says:

    Sir Cloudesley, wouldn’t findings of fact be subject to appellate review under the “clearly erroneous” standard?

  4. Cloudesley Shovell says:

    Gene, you are correct.   My mistake.  A product of not participating so heavily in the appellate world these days. 
    Yrs most humbly,
    CS

  5. David Sheldon says:

    Sir Cloudsley,

    There is always more to the story, isn’t there?

    Sid AKA 
    David Sheldon 

  6. Cloudesley Shovell says:

    Mr Sheldon,
     
    Yes, there is!  Best of luck in the litigation of your motion.  Jurisdictional issues are near and dear to me, and I am used to disappointment in this arena because CAAF consistently rules differently than what I think the law ought to be. 
     
    I think you should win, but alas the courts (all courts, not picking on the military here) have a long history of excusing the gov’t’s failure to follow its own rules.  I’m looking forward to seeing how “assigned to and serving with” is ultimately interpreted here.  Compare cases interpreting the phrase “entitled to pay” in Article 2(a)(4).
     
    Best regards,
    CS