Fahy, Burger and Leventhal, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Certiorari Denied October 10, 1966. Reported at: 385 U.S. 881.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FAHY
The appeal is from an order of the District Court dismissing a complaint for a mandatory injunction, and for other relief, to compel the Judges of the United States Court of Military Appeals to review on the merits the record of appellant's conviction, when a private in the army of robbery in violation of the Uniform Code of Military Justice, 10 U.S.C. § 922. The conviction and sentence were affirmed by a board of review in the Office of the Judge Advocate General of the Army. *fn1 He petitioned the Court of Military Appeals to review the record. On consideration and reconsideration of his petition the court denied review. United States v. Gallagher, 15 U.S.C.M.A. 391, 35 C.M.R. 363. He contends now in the civil courts that he has been denied equal protection of the laws in violation of the Due Process Clause of the Fifth Amendment because the Court of Military Appeals is required to review all cases in which a sentence, as affirmed by a board of review, affects a general or flag officer, whereas it is not required to review other cases, including his own, unless the sentence is death.
Thus, 10 U.S.C. § 867(b) provides:
(b) The Court of Military Appeals shall review the record in --
(1) all cases in which the sentence, as affirmed by a board of review, affects a general or flag officer or extends to death;
(2) all cases reviewed by a board of review which the Judge Advocate General orders sent to the Court of Military Appeals for review; and
(3) all cases reviewed by a board of review in which, upon petition of the accused and on good cause shown, the Court of Military Appeals has granted a review. *fn2
The first problem is whether the District Court had jurisdiction to dispose of the constitutional contention. While jurisdiction of the parties is not questioned, appellees urge that the civil courts are closed to anyone sentenced by a military tribunal except through petition for writ of habeas corpus to test the validity of an existing deprivation of liberty at the hands of such a tribunal. *fn3
The cases principally relied upon by appellees are set forth in the margin. *fn4 None of these cases questioned on constitutional grounds the validity of the Act of Congress under which the court-martial or other military trial was held. They involved alleged errors in the conduct of the trials, the use of habeas corpus as a remedy; *fn5 and in two instances the creation of the tribunals *fn6 was one of the matters considered.
Appellant does not challenge the trial itself. He challenges only the constitutional validity of the Act of Congress which denies him review of right by the Court of Military Appeals when such review is accorded to a general or flag officer. In this respect he raises a question which more closely resembles that considered in Ex parte Quirin, than in the other cases cited, although the issue in Ex parte, Quirin was raised by the time honored method of habeas corpus. *fn7
It would seem clear that the District Court in our case could have decided the constitutional question were petitioner in detention under the sentence and were he proceeding by way of habeas corpus. The question is whether the court must disclaim jurisdiction to decide the question because it is raised by one not in confinement but whose case, nevertheless, is alive and presents a "case" or "controversy." None of the cases relied upon by appellees flatly holds that there is no jurisdiction in such a case; and none in which it is stated that in the area of ...