1

2

J

4

5

6

7

8

9

10

11

t2

t3

t4

15

t6

l7

18

l9

20

2l

22

23

24

25

26

27

28

NAVY.MARINE CORPS TRIAL JUDICIARYSOUTITERN JUDICIAL CIRCUIT

GENERAL COURT MARTIAL

T]NITED STATES

v.

WILLIAM D.IIENRIQUESCAPTAIN, USPHS

DEF'ENSE MOTION TO DISMISS FORLACK OF JURISDICTION

3 September20l2

l. Nature of the Motion: Pursuantto Rule for Courts-Martial 905(b) and 907(b)(1XA),

MeNueL FoR CouRTs-MeRrnr,, UwttEo Srnres (2012 ed.), undersigned counsel moves to

dismiss the Charges and Specifications against Captain Henriques because this Court lacks in

personam jurisdiction pursuant to Article 2, Uniform Code of Military Justice ("UCMJ"). l0

U.S.C. $802. Alternatively, this motion seeks to dismiss the charges because the courts-martial

penal is not comprised of a majority of offrcers from Captain Henriques' own service.

2. Issues:

A. Is Captain Henriques, as a United States Public Health Service officer, amenable to

UCMJ jurisdiction where the Public Health Service failed to abide its own essential procedural

requirements for detailing PHS officers to the armed forces under Section 214 of the Public

Health Service Act,42 U.S.C. $215 (2006)?

B. Does the composition of the panel fail to adhere to the requirements of the guidance laid

out in the Discussion of R.C.M. 503(a) because it fails to include a majority of Public Health

Service officers as required under the Manual for Courts-Martial?

Page I of15

I

2

J

4

5

6

7

8

9

10

11

t2

t3

t4

15

r6

t7

l8

t9

20

2t

22

23

24

25

26

27

28

3. Statement of Facts:

A. The United States Public Health Service ("PHS") Commissioned Corps ("Corps") is an

all officer organization comprised entirely of health professionals; it is designated as one of the

"uniformed seryices" along with the armed forcesl and the Commissioned Corps of the

National Oceanic and Atmospheric Administration. 10 U.S.C. S 1072 (2006).

B. The Corps consists of more than 6,500 full-time, well-trained, highly qualified public

health professionals "to protect, promote, and advance the health and safety of our Nation."

U.S. Pub. Health. Serv., Comm'd Corps, http://www.usphs.gov/aboutus/mission.aspx.

C. PHS falls under the Department of Health and Human Services ("DHHS") and is

administered by the Assistant Secretary of Health and the Surgeon General under the

supervision of the Secretary of Health ("Secretary"). 42 U.S.C. $$ 202, 216.

D. In times of war or emergency involving the national defense, the President may

designate the Corps as a military service; while in this status, PHS officers are subject to the

ucMJ. 42U.S.C. 5217.

E. The PHS is organized along military lines, with each officer having a statutory military

rank and entitled to the same statutory benefits as the armed services to include: pay, medical

and retirement benefits, pension and veterans benefits. . See 42 U.S.C. $$ 207, 213a.

F. Congress authorized the Secretary to detail PHS Officers to other executive departments

within the federal government, including the armed forces. 42 U.S.C. $ 215(a).

I "Armed forces" is defined as the Army, Navy, Air Force, Marines, and Coast Guard. l0 U.S.C. S l0l.

Page 2 of 15

I

2

3

4

5

6

7

8

9

l0

11

t2

l3

l4

15

t6

t7

18

t9

20

2t

22

23

24

25

26

27

28

G. The Secretary issued Commissioned Corps Directive (CCD) 121.04 to promulgate

implementing regulations for 42U.5.C. $ 215. attached as Ex. A.

(l) CCD 121.04 requires that before PHS officers are detailed to the Armed Forces,

they must be "duly informed" that they will be subject to the laws and regulations

governing the armed forces component to which they are being detailed.

CCD12I.04 l|6-3(b). Ex. A.

@ CCDI21.04 also requires that PHS officers may only be detailed to the Armed

Forces with their "consent qnd acU,nowledgment" that they will be subject to the

UCMJ. CCD 121.0a t[6-8(a) (emphasis added). Ex. A.

(3) CCD121.04 also states that no PHS officer may be detailed to the armed forces

without notice and consent unless the President has militarized PHS pursuarrtto 42

U.S.C. S 217 . CCD12I.0a 'f6.8(a). Ex. A.

H. PHS uses Form PHS-1662 to "request all types of personnel actions excluding

separations and retirements." eCCIS2, Covl'o Conps PEns. MeNueL, CC23.6, attached as Ex.

B.

2 The CCPM operated as the offrcial medium for the publication of issuances and for the purpose ofmaintaining and updating policies, procedures, standards, and information governing personnel management of theCommissioned Corps of the PHS). On 4 Aug 2006, the CCPM was officially renamed the electronicCommissioned Corps Issuance System or eCCIS. The eCCIS constitutes the official medium forthe issuance ofpolicies, procedures, standards, insfiuctions, and information governing personnel management of the Corps andofficers shall remain subject to the policies, procedures, and standards contained therein. Because PHS is still inthe process of converting and updating its policies it maintains issuances in both the CCPM and the eCCISfonnats. Policies in the CCPM forrnat shall continue to remain in effect and applicable to officers until such timeas they are revised or replaced. During the transition all policies in effect are accessible through the eCCISinterface. available athttp:lldcp.psc.gov/eccis/CClSToc.aspx?ShowTOC=Y.

Page 3 of 15

1

2

aJ

4

5

6

7

8

9

l0

1l

12

t3

l4

15

t6

t7

18

l9

20

2t

22

23

24

25

26

27

28

I. PHS regulations require that for details to the Armed Forces, the PHS-I662 must

identiff that the tansfer is a detail and cite the relevant statutory authority. Id. CC23.5.8

atCached as Ex. C

J. All PHS personnel orders or amendments thereto or issued on form PHS-7063

('oPersonnel Order"). http:llccmis.usphs.gov/ccbulletin/articles/Personnel_Orders_03 2008.htm

K. On 24 Apil2006, Captain Henriques was detailed to the Department of Homeland

Securityffederal Emergency Management Agency ("FEMA";.

L. On or near 14 January 2010, Captain Henriques deployed to as part of the joint Coast

Guard-FEMA team to provide support and assistance to Joint Task Force Haiti following the

earthquake that struck Haiti on 12 January 2010.

M. No one duly informed Captain Henriques prior to his deployment as a part of FEMA

that he would be subject to the UCMJ while supporting U.S. Southern Command

('SOUTHCOM') and the Joint Task Force in Haiti.

N. Captain Henriques remained on temporary duty and continued to assist SOUTHCOM.

O. Recognizingthe value of having a PHS liaison, SOUTHCOM requested that Captain

Henriques work with the Command Surgeon General's offrce to act as a liaison officer between

SOUTHCOM and DHHS.

P. On or about 25 March 2011, SOUTHCOM told Captain Shmoyer that SOUTHCOM

could no longer fund Captain Henriques with temporary duty funds and requested Captain

Henriques be transferred. Email from Cdr. Michael Shmoyer, Dep't of Health and Human

Serv. Liaison Offtcer to Rebecca Michelle Martin, Human Resources Brach, Office of

Workforce Dev. (March25,20l1, 10:40 a.m. EST), at&ached as Ex D.

Page 4 of 15

I

)

J

4

5

6

7

8

9

10

ltt2

l3

l4

l5

r6

t7

18

19

20

2t

'))

23

24

25

26

27

28

Q. No one advised or otherwise communicated to Captain Henriques that by accepting an

assignment with a duty location at SOUTHCOM that he was subject to the UCMJ.

R. DHS Division of Commissioned Corps Personnel Readiness (*DCCPR") issued

Personnel Order Number 201 1091.008 (" 31 March Order") transferring Captain Henriques to

the Office of the Secretary, Office of the Assistant Secretary for Preparedness and Response,

Office of Preparedness and Emergency Operations on I April 20ll andan effective date of 3l

March 2011. attached as Ex E. There is no evidence that Captain Henriques received this

order.

(1) Although the 31 March Order did contain the relevant statutory authority and a

UCMJ disclosure, it did not identiff the transfer as a detail to the DoD nor did it

reference, as required, the memoranda of agreement governing Captain Henriques'

position. See Ex. C & E.

(2) On 5 April 2011, CDR Angel M. Rivasrivera sent an email attaching a copy of

orders to CDR Michael Schmoyer and courtesy copying Dr. Tom Sizemore, Alyce

Bridges, Michael Schmoyer (it is unclear why the email was both sent to CDR Shmoyer

and copied to him), and Rebecca Martin. All personnel copied on the email are

personnel under the Assistant Secretary of Health for Preparedness and Response.

Attached as Ex. F.

(3) The PHS-l662,the for required to request all personnel actions, requesting

Captain Henriques' assignment was not frrlly approved as required until 7 April 2011.

See Ex G.

S. Captain Henriques neither saw nor received the March 31 Order.

Page 5 of 15

1

)

J

4

5

6

7

8

9

r0

ll12

t3

t4

15

t6

t7

18

t9

20

2t

22

23

24

25

26

27

28

T. Captain Henriques was told that he would receive his orders the following week.

U. Captain Henriques subsequently received Personnel Order 2011130.002 (*9 April

Order) with an issue date of 10 May 20l l and an ef,lective date of 9 April 2011. The 9 April

Order did not identifr the transfer as a detail to DoD, contain the relevant statutory authority, or

the UCMJ warning. Attached as Ex H.

V. On or around 3l March 2011, Captain Henriques was told that he needed to write a

memoranda stating that he was willing to accept a detail outside of PHS in the Office of the

Assistant Secretary for Preparedness & Response & Emergency Operations.

W. Captain Henriques was not asked or otherwise requested to acknowledge by taking this

assignment he would be subject to the UCMJ.

X. On l1 April, 2011, Captain Henriques was transferred to the Offrce of the Assistant

Secretary for Preparedness & Response & Emergency Operations, with a duty location of the

J9 Directorate of SOUTHCOM, in an "Agency Specific Billet"3. Attached as Ex H; Couv'o

Conps Pens. MeNUeL, CC23.5.4, attached as Ex. I

Y. On 9 April 2011, Captain Henriques began performing his duties as the ASPR Liaison

to SOUTHCOM.

Z. Subsequently, Captain Henriques discovered yet a third order, Personnel Order

2011308.008, issued nearly eight months later on 4 November 20ll which contained the

statutory authority and referenced the signed MOA, but contained no warning relating to the

UCMJ. Attached as Ex. J.

Page 6 of 15

1

2

aJ

4

5

6

7

8

9

10

11

12

13

T4

15

t6

17

18

t9

20

2l

22

23

24

25

26

27

28

4. Discussion

A. Captain llenriques is not amenable to Jurisdiction under Article 2(a)(8)' UCMJ'10 U.S.C.$ S02(aX8) because the Public Health Service failed to abide by its own

essential procedural regulations.

Article 2, UCMJ provides that members of the Pubtic Health Service are only subject to

UCMJ jurisdiction'hrhen assigned to and serving with the armed forces." Art. 2(aX8), UCMJ,

10 U.S.C. g SQ2(aXB) (emphasis added). Captain Henriques is not subject to UCMJ jurisdiction

because PHS failed to abide by its regulations requiring that he have prior notice that he would

be subject to the UCMJ, consent to such an assignment, and acknowledge UClvlJ jurisdiction.

Accordingly, because PHS failed to comply with its own regulations, the exercise of courts-

martial jurisdiction over him fails as a matter of law.

A jurisdictional defect goes to the underlying authority of a court to hear a case. United

States v. Alexander, 6l M.J. 266,269 (C.A.A.F. 2005). In order for courts-martial jurisdiction

to vest, three prerequisites must be met: (1) jurisdiction over the offense, (2) personal

jurisdiction over the accused, and (3) a properly convened and composed court-martial.

R.C.M.201(b); [JnitedStatesv. Harmon,63MJ.98, 101 (C.A.A.F.2006). Thetestfor

whether a military court-martial has jurisdiction to try an accused is the military status of the

accused. United States v. Murphy, 50 M.J. 4,7 (C.A.A.F. 1998), citing United States v.

Solorio,483 U.S. 435,439 (1987).

It is axiomatic that an agency of the government must scrupulously observe its own

rules, regulations, and procedures, particularly were the underlying purpose of those regulations

is the protection of personal liberties or interests. United States ex. Rel. Accardi v.

Shaughnessy, 347 U.S. 260,267 (195a); Service v. Dulles,354 U.S. 363, 388 (1957) (holding

that Secretary of State was bound by regulations he validly prescribed); Lindsay v. United

PageT of 15

I

2

aJ

4

5

6

7

8

9

10

11

t2

t3

t4

15

t6

t7

18

t9

20

21

22

23

24

25

26

27

28

States,zgsF.3d1252,1257 (Fed. Cir.2002) ("The military no less than any other organ of the

govemment is bound by statute, and even when granted unfettered discretion by Congress the

military must abide by its own procedural regulations should it choose to promulgate them.");

accord United States v. Dillard, S M.J. 213,213 (C.A.A.F. 1980); ("It is well-settled that a

government agency must abide by its own rules and regulations where the underlying purpose

of such regulations is the protection of personal liberties or interests."); United States v.

Harmon,63 M.J. 98, 104 (C.A.A.F 2006) (regulations issued by the military service on matters

within their authority have the force of law), citing United States v. Weeler,27 C.M.R. 981,

989 (A.F.B.R. 19s9).

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)hemust give consent to the assignment; and (3) he must acknowledge that he will

be subject to the UCMJ. CCD 121.04 (emphasis added). These requirements are critical

because of considerations peculiar to PHS officers. PHS officers are in a unique position as

they are neither fish nor fowl - they are not civilians, but neither are they wholly military. See

e.g. Verbackv. United States,89 Fed. Cl. 47,42 (Fed. Cl. 2009) (holding PHS officer is a

member of the uniformed service and, as such, is not covered under the civilian Whistleblower

Protection Act or the Military Whistleblower Protection Act). Although PHS officers may be

disciplined for purely military offenses such as being absent without leave or failure to obey

orders, such discipline does not extend to imprisonment. See DepeRtvreNT oF HEALTH AND

HnaeN SERvrcEs, Co\,narssloNeD CoRps PBRsoNNpL Mexlral, CC46.4,Instr. I (Apr.26,

1933). Moreover, unless assigned to the armed forces, PHS officers enjoy the full panoply of

Page 8 of 15

I

2

aJ

4

5

6

7

8

9

l0

11

t2

t3

l4

l5

t6

t7

18

t9

20

2t

22

23

24

25

26

27

28

constitutional rights and safeguards enjoyed in a civilian criminal court. Undoubtedly there can

be no more fundamental liberty interest than the loss of constitutional safeguards. See Toth v.

Quarles,350 U.S. 11,22 (1955). Thus, in light of such losses, it is reasonable that the

underlying pulpose of the relevant provisions is to protect the personal liberties and interests of

PHS officers.

As CCD 121.04 demonstrably has the force of law, the government must come forth

with affirmative evidence that the government complied with the essential procedures laid out

therein. See United States v. Arthur,2M.J. 481,484 (1974). First, for UCMJ jurisdiction to

attach, PHS must have "duly informed" Captain Henriques that he would be subject to the

UCMJ before his detail began. CCD 121.04n64. Second, he had to "consent' to the

assignment. Id. Finally, he had to "acknowledge" that he would be subject to the UCMJ. Id.

Neither the directive, nor the Public Health Services Act defines "duly informed," "consent'o or

"acknowledgment". Nor are their additional policies or procedures promulgated to implement

CCD 121.04. Accordingly, the terms must be interpreted according to their ordinary or plain

meaning. United States v. McCollum,58M.J.323,340 (C.A.A.F. 2003). "Duly" is defined as

"in due or proper form or manner, according to legal requirements." Black's Law Dictionary

540 (8th ed,.2004). "Consent" is defined as "[a]greement, approval, or permission as to some

act or purpose." Id. at323. Acknowledgment may be defined as either "[t]o recognize

(something) as being factual or valid" or "[t]o show that one accepts responsibility for." Id. at

24. When read together these terms dictate that a PHS officer being detailed to the armed

forces must give a knowing and intelligent waiver of those fifttr and sixth amendment rights

that are forfeited as a member of the armed forces before he is detailed. See United States v.

Page 9 of l5

I

2

J

4

5

6

7

8

9

10

1l

t2

13

t4

15

t6

t7

18

t9

20

2t

22

23

24

25

26

27

28

Sweeny,70 M.J. 296,303-304 (C.A.A.F.20ll) (waiver is the'intentional relinquishment or

abandonment of a known right."'), citing United States v. Olano,507 U.S. 725,732, (1993).

Courts cannot presume acquiescence in the loss of fundamental rights. Barker v. l(ingo,

407 U.S. 514,525-526 (U.S. 1972). Moreover, a waiver will not be presumed where the

record is silent. 1d. The burden is on the government to come forward with affirmative

evidence that the accused waived his rights. 1d. Here, there is no evidence to support that

Captain Henriques made a knowing and intelligent waiver of his constitutional rights and

protections. No one informed Captain Henriques prior to the issuance of his orders that he

would be subject to the UCMJ as required by CCD 121.04. Even assuming Captain Henriques

saw the first set of orders (which he in no way concedes), his receipt of those orders, under the

circumstances, cannot reasonably viewed as proof that he knowingly and voluntarily waived

his right to refuse a position that would subject him to UCMJ jwisdiction. Cf. United States v.

Kilbreth,4T C.M.R. 327,330 (C.M.A. 1973) (failure to comply with essential procedural

requirements in calling up reservist constituted a denial of due process and invalidated the order

to active duty).

Likewise, there is no evidence that Captain Henriques acknowledged that he by taking

the transfer he would be subjecting himself to the UCMJ. The memorandum to Captain

Stevens only reveals that Captain Henriques (1) consented to an assignment an assignment with

the Assistant Secretary for Preparedness and Response of DHHS and that (2) he would have to

retum to a two year assignment within PHS before he could retire. Ex K. Even if Captain

Henriques' statement of his duty location could be deemed consent to an assignment to the

armed forces, it cannot cure the failure of PHS to abide by its own essential procedural

requirements. See UnitedStatesv. Sweeney,70 M.J.296,303-304 (C.A.A.F.2011).

Page 10 of 15

1

2

aJ

4

5

6

7

8

9

10

11

12

t3

t4

15

t6

t7

18

t9

20

2t

22

23

24

25

26

27

28

It is the government's burden to prove it has jurisdiction over Captain Henriques.

Unless the government can affirmatively show that the essential procedural requirements

relating to detailing PHS officers to the armed forces were complied with, it has failed to carry

its burden. Sweeny,70 M.J. at304 (noting that government must clearly establish intentional

relinquishment of known right for waiver of fundamental rights to be effective); accord United

States v. Arthur,2M.J. 481,484 (1974). Accordingly, absent such evidence, this Court must

dismiss all charges and specifications for want of personal jurisdiction over Captain Henriques.

B. The panel should be composed of a majority of PHS officers.

"Jurisdictional error occurs when a court-martial is not constituted in accordance with

the UCMJ." United States v. Adams, 66 M.J. 255,258 (C.A.A.F. 2008); citing United States v.

Colon,6 M.J. 73,74 (C.M.A. 1978). Jurisdiction depends upon a properly convened court,

composed of qualified members chosen by a proper convening authority, and with charges

properly referred. Art.25, UCMJ; R.C.M. 201(b); R.C.M. 503; R.C.M.504; R.C.M. 505.

R.C.M. 201(b) provides: "For a court martial to have jurisdiction. . . the court-martial

must be composed in accordance with [the Rules for Court-Martial] with respect to number and

qualifications of its personnel." Although, R.C.M. 503(aX3) allows a convening authority to

appoint members of a different armed force than the accused, the Discussion section of 503(a)

instructs:

Members should ordinarily be of the same armed force as theaccused. When a court-martial composed of members of differentarmed forces is selected, at least a majority of the membersshould be of the same anned force as the accused unless exigentcircumstances make it impractical to do so without manifesti"j"ry to the service.

Page 11 of15

1

2

J

4

5

6

7

8

9

l0

1l

t2

I3

T4

15

I6

l7

18

t9

20

2l

22

23

24

25

26

27

28

R.C.M. 503(a)(3), Discussion.

While the UCMJ allows for the selection for court membership of officers in armed

forces different from the accused, the guidance laid out in the Manual is intended to control the

risks of such liberality of choice. Accordingly, where possible such provisions on the selection

of eligible persons as court members should not be dismissed as o'mere policy." United States

v. Houston,33 C.M.R. 78, 83 (C.M.A. 1967) (J. Quinn, concurring).

Accordingly, as Captain Henriques is a PHS officer, it is reasonable that where the

convening authority can comply without causing manifest injury, he should be accorded a panel

where at least the majority of the members are from his own service. This is particularly

important where, as here, the operation of the relevant service differs so greatly from the other

services.

5. Evidence

A. CCD t21.04.

B. Courvr'o Conps PERs. MaNU,Ll-, CC23.6.

C. COuu'D CoRPS PBns. MANUAL, CC23.5.8.

D. Email from Cdr. Michael Schmoyer, Dep't of Health and Human Serv. Liaison Officer

to Rebecca Michelle Martin, Human Resources Brach, Offrce of Workforce Dev. (March

25,2011, 10:40 a.m. EST).

E. Personnel Order Number 2011091.008.

F. Email from Cdr. Angel Rivasrivera, ASPR Commissioned Corps Liaison, to Cdr

Michael Schmoyer, Dep't of Health and Human Serv. Liaison Officer (April 5,2011 12:20

P.M.)

Page 12 of15

I

2

aJ

4

5

6

7

8

9

l0

llt2

t3

l4

15

I6

t7

18

l9

20

2l

22

23

24

25

26

27

28

G. PHS-1662 Request for Personnel Action William D. Henriques.

H. Personnel Order 2011130.002

I. Couvr'o Conps Ppns. MAr.ruAL, CC23.5.4

J. Personnel Order 2011308.008

K. Memorandum from Captain William Henriques to Captain Gregory A. Stevens, Acting

Director, Office of Commissioned Corps Operations. (Mar. 3l,20ll)

6. Burden ofProof

The burden of persuasion is on the govemment to prove by a preponderance of the

evidence that this courts-martial may properly exercise jurisdiction over Captain Henriques.

R.C.M. eos(b), 907(bxlxA).

7. Oral Argument. The defense respectfully requests oral argument on this motion.

il

il

lt

il

il

il

il

il

Page 13 of15

I

)aJ

4

5

6

7

8

9

l0

11

t2

t3

I4

15

t6

17

18

t9

20

2t

22

23

24

25

26

27

28

8. ReliefRequested:

Captain Henriques respectfully requests the dismissal of all charges and specification,

and other relief as is just.

Respectfu lly Submitted,

illlutt-DAVID P. SHELDON512 8th Street, SEWashington, DC 20003

Q02) 546-9 57 5 Telephone(202) 546-0 I 3 5 FacsimileCivilian Defense Counsel

TARYN MEEKS, LT, JAGC, USNDetailed Defense Counsel

Page 14of15

I

)

J

4

5

6

7

8

9

10

11

t2

13

l4

l5

l6

T7

18

l9

20

2T

22

23

24

25

26

27

28

CERTIFICATION OF' SERVICE

A true copy of this motion was served on the Court and

3 September2012.

opposing counsel via electronic mail on

DAVID P. SHELDON512 8th Street, SEWashinglon, DC 20003(202) 5 46-9575 Telephone(202) 546-01 3 5 FacsimileDEFENSE COLINSEL

Page 15 of15