Consolidated with 24-5154

Appeals from the United States District Court for the District of Columbia (No. 1:21-cv-00418)

Bradley Hinshelwood , Attorney, U.S. Department of Justice, argued the cause for Appellant/Cross-Appellee. With him on the briefs were Brett A. Shumate , Assistant Attorney General, and Melissa N. Patterson , Attorney.

Page 2Eugene R. Fidell argued the cause for Appellee/CrossAppellant. With him on the briefs were Stephen I. Vladeck , Franklin D. Rosenblatt , and Stephen A. Saltzburg .

Before: SRINIVASAN, Chief Judge , WILKINS and KATSAS, Circuit Judges .

Opinion for the Court filed by Circuit Judge WILKINS.

WILKINS, Circuit Judge : In 2009, Robert B. Bergdahl was a soldier in the U.S. Army stationed in Afghanistan. During his deployment, Bergdahl left his post without permission to hike to headquarters to complain about conditions and leadership deficiencies within his unit. During the journey, he was captured by the Taliban-allied “Haqqani network' and held hostage for five years. In that time, Bergdahl was kept in brutal conditions and tortured. Bergdahl’s disappearance led to an extensive search and rescue mission, which resulted in several injuries of other military personnel. In 2014, President Obama approved Bergdahl's exchange for five Taliban members detained at Guantanamo Bay. The exchange was the subject of widespread political discussions. Upon his return, a general court martial followed. Military authorities preferred court martial charges against Bergdahl for desertion with intent to shirk hazardous duty and misbehavior before the enemy in violation of the Uniform Code of Military Justice. During his tribunal procedures, Bergdahl pled guilty to his charges, and at the conclusion of the general court-martial, the presiding military judge, Colonel Jeffery Nance, imposed a dishonorable discharge as opposed to the 14-year prison sentence requested by the prosecution.

Based on commentary from President Trump, as a candidate and as President, alleged partiality on behalf of the presiding military judge, and other issues, Bergdahl filed suit Page 3in the United States District Court for the District of Columbia seeking “collateral review of an unconstitutional conviction by a general court-martial” on due process grounds under the Fifth Amendment of the United States Constitution, the Rules for Court-Martial, and Rule 2.11 of Rules of Judicial Conduct for Army Trial and Appellate Judges. J.A. 557. The District Court granted in part and denied in part the government’s motion to dismiss and granted in part and denied in part Bergdahl's motion for summary judgment. Ultimately, the District Court vacated all orders and rulings by the military court as of October 16, 2017, and rendered them “void.” J.A. 559. Both parties filed timely appeals.

This case presents nuanced questions regarding jurisdiction and the evolving relationship between Article III courts and military courts. Jurisdiction here turns on whether the remedy sought falls within a district court’s power to grant. Because Article III district courts lack jurisdiction on collateral review to vacate court-martial judgments, the District Court lacked jurisdiction over Bergdahl's claims. Therefore, we remand the case to the District Court to dismiss for lack of jurisdiction.

“Military law . . . is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment.' Burns v. Wilson , 346 U.S. 137, 140 (1953) (plurality opinion). Pursuant to its authority to regulate the armed forces, Congress has long provided for a separate system of military courts to adjudicate charges brought against servicemembers. Ortiz v. United States , 585 U.S. 427, 431

Page 4Today, the military tribunal process begins with the court-martial proceeding itself, in which “an officer-led tribunal [is] convened to determine guilt or innocence and levy appropriate punishment, up to lifetime imprisonment or execution.” Id. at 432; see, e.g. , 10 U.S.C. §§ 816–867 (courtmartial and appellate procedures). A servicemember’s appeal generally proceeds to one of four service-specific Court of Criminal Appeals ('CCAs') for the Army, Navy-Marine Corps, Air Force, or Coast Guard. Id. Those appellate courts sit in panels of at least three judges, who are either military officers or civilians, and review cases within the jurisdiction prescribed by statute. 10 U.S.C. § 866(a)-(b). An appeal culminates in the highest court in the court-martial system: The Court of Appeals for the Armed Forces (“CAAF”), which is a “court of record” made up of five civilian judges appointed to serve 15-year terms. Id. §§ 941–942. “The CAAF must review certain weighty cases (including those in which capital punishment was imposed), and may grant petitions for review in any others.” Ortiz , 585 U.S. at 432. And since 1983, the Supreme Court has been the only Article III court with statutory authority to directly review specified CAAF decisions by writ of certiorari. 28 U.S.C. § 1259; 10 U.S.C. § 867a.

Prior to 1983, Congress had not “conferred on any Art. III court jurisdiction directly to review court-martial determinations.' Schlesinger v. Councilman , 420 U.S. 738, 746 (1975). Congress codified this principle in 1950 in Article 76 of the Uniform Code of Military Justice, which provides that final orders from completed court-martial “proceedings, findings, and sentences” are “final and conclusive,” and that orders publishing them are 'binding' upon the courts of the United States. Id. at 745; 10 U.S.C. § 876.

Page 5The Court in Councilman thus affirmed the longstanding “general rule” that “the acts of a court martial, within the scope of its jurisdiction and duty, cannot be controlled or reviewed in the civil courts, by writ of prohibition or otherwise.” Id. at 746 (quoting Smith v. Whitney , 116 U.S. 167, 177 (1886)). The Court also clarified that Article 76 does not restrict or expressly address Article III subject-matter jurisdiction. Id. at 749. Instead, its language marks the terminal point of proceedings within the military justice system after which military judgments become final. Id. at 749–50.

Notwithstanding that general rule, collateral review of court-martial judgments in Article III courts has generally arisen in a few narrow contexts 1 : (1) habeas corpus petitions from military prisoners serving court-martial sentences ( see 28 U.S.C. § 2241; Burns , 346 U.S. at 142); (2) Tucker Act claims for backpay or other economic benefits lost due to the courtmartial conviction ( see 28 U.S.C. §§ 1346(a), 1491; United States v. Hohri , 482 U.S. 64, 72 (1987)); and (3) judicial review of military correction-boards decisions concerning corrections of administrative records ( see 10 U.S.C. § 1552; Chappell v. Wallace , 462 U.S. 296, 303 (1983) ('Board decisions are subject to judicial review and can be set aside if they are arbitrary, capricious or not based on substantial evidence.”)). But these recognized avenues of collateral review provide relief from particular consequences under independent grants of jurisdiction; none confers authority to vacate the military judgment itself.

Bergdahl was stationed near the Paktika Province, Afghanistan in 2009. He left his post without authorization on June 29, 2009, to report perceived leadership deficiencies in his unit, but was immediately apprehended by the Talibanaffiliated Haqqani network. Bergdahl was held hostage for nearly five years, during which he was subjected to brutal conditions. He was ultimately released as part of a prisoner exchange executed in May 2014 involving five Taliban members previously detained at Guantanamo Bay, Cuba. Several American servicemembers sustained injuries during search operations launched to rescue Bergdahl prior to his release.

On March 25, 2015, once he was back on U.S. soil, military authorities preferred court martial charges against Bergdahl for desertion with intent to shirk hazardous duty and misbehavior before the enemy in violation of the Uniform Code of Military Justice. The matter was later referred to a general court-martial authorized to impose a broader array of punishments. And, between 2015 and 2017, the Army prosecuted Bergdahl before the general court-martial at Fort Bragg, North Carolina. J.A. 493. During the next two years, Bergdahl filed three motions to dismiss alleging unlawful command influence (“UCI”). Bergdahl’s UCI motions were based on statements made by then-Senator and Chairman of the Senate Armed Services Committee (“SASC”), John McCain, and then-candidate for President of the United States, Donald J. Trump.

The first UCI motion, filed on August 1, 2016, drew on Senator McCain’s comment that “if it comes out that [Bergdahl] has no punishment, we’re going to have to have a hearing in the Senate Armed Services Committee … it is well Page 7known that in the searches for Bergdahl, after we know now he deserted, there are allegations that some American soldiers were killed or wounded, or at the very least put their lives in danger, searching for what clearly is a deserter. We need to have a hearing on that.' J.A. 20 (citation modified). On September 28, 2016, the presiding military judge, Colonel Jeffery Nance, denied the motion on the grounds that 'no member of [C]ongress, not even the Chairman of the SASC, holds command authority over the military.” J.A. 495.

The second UCI motion, filed on January 20, 2017, related to remarks made by President Trump before taking office. These statements included comments characterizing Bergdahl as a “traitor, responsible for the death of five or six soldiers.” J.A. 496. President Trump added that Bergdahl was “the worst, no good, [a] bum, a whack job, [a] piece of garbage, and a son of a bitch,” who “deserved the death penalty.” Id. (citation modified). On February 24, 2017, the military court denied this motion too, concluding that however “troubling,” “disturbing and disappointing” President Trump’s statements were, his status as a private citizen running for office was insufficient to meet the threshold for unlawful command influence. J.A. 41 – 42. The military court went on to stress that it would “take special care to ensure that the comments by Mr. Trump do not invade this trial.” J.A. 42.

On October 16, 2017, Bergdahl pled guilty to one-day desertion and misbehavior without a pretrial agreement or waiver of his UCI claims. J.A. 477, 497. Two other significant events occurred that same day: First, now-President Trump, in remarks in the Rose Garden, stated that he could not “comment on Bowe Bergdahl because … they’re setting up sentencing” while underscoring that “people have heard my comments in the past.” J.A. 484. Second, Judge Nance (who was nearing mandatory retirement) applied for a position as an immigration Page 8judge with the Department of Justice, and as his writing sample, he submitted his order denying Bergdahl’s UCI motion based on then-candidate Trump’s comments. J.A. 484, 505.

Bergdahl renewed his UCI motion as to President Trump’s Rose Garden comments the following day, asserting that these most recent remarks 'ratified former President Trump’s disparaging pre-Inauguration comments about him.” J.A. 498. Judge Nance held a hearing on October 23, 2017, to address Bergdahl's renewed motion and allowed defense counsel to examine him on voir dire about whether outside influences, including President Trump’s Rose Garden statements, would impact his ability to sit impartially and fairly. J.A. 498. In response, Judge Nance made three statements: (1) he was not going anywhere “but the retirement pastures”; (2) he had never aspired to any rank and could not continue to advance his career, even if he wanted to; and (3) alluding to his upcoming retirement and lack of career aspirations, he did not “expect to go anywhere but back home as soon as the Army is done with [him] in a year.” J.A. 498– 99. Judge Nance did not mention his pending application to the DOJ to become an immigration judge, and Bergdahl did not know of the application to DOJ during this voir dire , or at any time during his court-martial proceedings. J.A. 540. Ultimately, Judge Nance denied Bergdahl’s third UCI motion on October 30, 2017, concluding Bergdahl met his initial burden of UCI, but the government was able to prove beyond a reasonable doubt that the comments made by Trump did not constitute UCI. J.A. 144–48, J.A. 499.

On November 3, 2017, Bergdahl was sentenced to a dishonorable discharge, reduction to the lowest enlisted pay grade, and forfeiture of $10,000 in pay and allowances. J.A. 477. Bergdahl appealed his sentence, raising the same UCI claims and a new post-trial UCI claim, to the U.S. Army Court Page 9of Criminal Appeals (“ACCA”) and in September 2018, while Bergdahl's appeal was pending before the ACCA, DOJ publicly announced the appointment of Judge Nance as an immigration judge. J.A. 505-06. The ACCA affirmed Bergdahl's conviction by a vote of 2-1. J.A. 500; see also United States v. Bergdahl , 79 M.J. 512 (A. Ct. Crim. App. 2019).

Bergdahl next appealed this decision to the CAAF. J.A. 502. The CAAF by a vote of 3–2, affirmed the prior rulings. Id. While Bergdahl was before the CAAF, his counsel obtained a copy of Judge Nance's DOJ application, which included references to his role presiding over Bergdahl’s court-martial proceedings. J.A. 505–06. Specifically, Judge Nance’s sole writing sample was his ruling denying Bergdahl’s UCI claim. J.A. 505. Bergdahl filed a petition for reconsideration and a motion to supplement the record with the CAAF based, in part, on the information regarding Judge Nance’s DOJ application. J.A. 506. Bergdahl argued that Judge Nance’s earlier judicial application-which was never disclosed-amounted to a violation of due process and R.C.M. 902 (Failure to Disclose Ground for Disqualification). See J.A. 354, J.A. 402, J.A. 404, J.A. 487. The CAAF denied his motions without prejudice “to seek a writ of error coram nobis from the appropriate court.' J.A. 506.

Bergdahl then went back to the ACCA to file a petition for a writ of error coram nobis seeking review of his claims. Id. The ACCA denied his petition, without reaching the merits of his claims, noting that he did not meet the 'stringent threshold requirements to establish eligibility for coram nobis review.” J.A. 507 (citation modified).

On December 17, 2020, Bergdahl filed a writ-appeal petition with the CAAF seeking review of the ACCA’s denial Page 10of his coram nobis petition. Id. The CAAF denied his writappeal on February 2, 2021.

C.

On February 17, 2021, Bergdahl initiated a lawsuit against the government in the United States District Court for the District of Columbia seeking 'collateral review of an unconstitutional conviction by a general court-martial” on due process grounds under the Fifth Amendment of the United States Constitution, the Rules for Courts-Martial, and Rule 2.11 of the Rules of Judicial Conduct for Army Trial and Appellate Judges. J.A. 474-75. On August 2, 2021, the government filed a motion to dismiss. J.A. 507. On October 4, 2021, Bergdahl filed an opposition to the motion to dismiss and a cross-motion for summary judgment. Id. After a series of cross-motions, on July 25, 2023, the District Court granted in part and denied in part the government’s motion to dismiss and granted in part and denied in part Bergdahl’s motion for summary judgment. J.A. 553.

In its ruling, the District Court first addressed Bergdahl’s UCI claims and found no reason to doubt the military courts’ decisions. J.A. 533. However, on Bergdahl’s second claim regarding whether the military had a duty to disclose Judge Nance’s application to DOJ, the District Court concluded that the application should have been disclosed. J.A. 550–51. This decision was based in part on Judge Nance’s use of a writing sample from Bergdahl's case for the job application. The District Court vacated all orders and rulings by the military judge as of October 16, 2017 (the date Judge Nance submitted his application to DOJ) and rendered them “void.” J.A. 553– 54.

Page 11Between August and September 2023, the government filed a Rule 59(e) motion to amend the District Court’s July 25, 2023 order, seeking, among other things, clarification that further military proceedings were possible under the order. J.A. 559. Bergdahl filed his opposition to the Rule 59(e) motion. Bergdahl later filed a cross-motion for reconsideration, seeking reversal of the dismissed UCI claim, and the government opposed the motion. J.A. 559–60. The District Court granted the government’s request to amend the order to make it clear that the military could conduct further proceedings. J.A. 577. The District Court then denied Bergdahl’s motion for reconsideration on the UCI claim, citing the same reasons offered in the July 2023 opinion. J.A. 561– 71. The government timely appealed, and Bergdahl also filed a timely cross-appeal. At Bergdahl’s request, the District Court issued a stay pending appeal to this Court. J.A. 8.

This case turns on the nature of the relief requested. Because Bergdahl seeks to have his court-martial conviction declared expunged and without effect due to violations of the Constitution and military rules, and its consequences reversed, he effectively asked the District Court to vacate the military judgment. However, the authority to vacate a court-martial judgment belongs to tribunals exercising direct appellate review, not district courts conducting collateral review. Councilman , 420 U.S. at 746. Bergdahl’s claim thus conflicts with that longstanding limitation. We therefore vacate the District Court's judgment and remand with instructions to dismiss Bergdahl’s claim for lack of jurisdiction.²

Page 12Bergdahl sought to have the District Court enter a judgment that would declare his conviction and sentence were obtained in violation of the Constitution as well as various military rules. J.A. 487. In addition, he also sought an order in which “his conviction and sentence be expunged and that all rights, privileges, and property of which he has been deprived” because of his conviction “be restored.” J.A. 487–88. He was successful in the District Court. After granting in part and denying in part both Bergdahl’s and the government’s motions for summary judgment, the District Court “vacated” numerous military-court orders and rulings, including “all decisions by [the appellate military courts]” that reviewed any court-martial orders after October 16, 2017. J.A. 559. Our understanding of Bergdahl’s request for vacatur is confirmed by his request for relief in his opening brief on appeal. Bergdahl requested that we affirm the District Court’s orders and remand the case “with instructions to set aside the court-martial and all related proceedings and dismiss the charges and specifications with prejudice.” Bergdahl’s Opening Br. 60.

The government argues that the District Court’s exercise of jurisdiction was improper because district courts lack authority to vacate the judgments of the coordinate courtmartial system. Government’s Opening Br. 23–30. We agree.³

Councilman squarely governs the jurisdictional issue before us. The case arose from the court-martial of Bruce R. Councilman, an Army officer charged with possessing and selling marijuana. Councilman , 420 U.S. at 739. At the time, Supreme Court precedent provided that military courts only had jurisdiction over court-martial charges when the preferred charges were 'service connected.' Id. at 740-43; see also O’Callahan v. Parker , 395 U.S. 258, 272–73 (1969) (establishing 'service connection' rule). Before his court-martial officially began, Councilman filed suit in federal district court seeking a temporary restraining order and a preliminary injunction to prevent his impending court-martial. Id. at 741–42. He argued, among other things, that the courtmartial lacked jurisdiction over his alleged offenses under the 'service connection' rule in Parker as his drug related charges were not connected to his service in the Army. Id. The district court permanently enjoined the military from continuing with the court-martial proceedings, and the Tenth Circuit affirmed. Id. at 742. The Supreme Court reversed.

Although Councilman involved a pending court-martial, its discussion of the scope of Article III courts’ review of courtmartial proceedings establishes the governing distinction here between direct and collateral review. The Court explained that the 'valid, final judgments of military courts . . . [are] not subject to direct review for errors of fact or law” by Article III courts. Id. at 746. Drawing on Councilman , we have explained that “[w]ith the exception of a collateral attack challenging the validity of a judgment for ‘lack of jurisdiction or some other equally fundamental defect,' review by a civil court of a judgment issued by a military court is barred.' Piersall v. Winter , 435 F.3d 319, 324 (D.C. Cir. 2006) (quoting Councilman , 420 U.S. at 747).

Page 14Accordingly, the jurisdiction of the District Court turns on the requested relief. A 'collateral attack seeks, as a necessary incident to relief otherwise within the court’s power to grant, a declaration that a judgment” suffers some fundamental defect. Councilman , 420 U.S. at 746-47; see also id. at 747 n.13 (citing FLEMING JAMES, CIVIL PROCEDURE § 11.5 (1965)). But that declaration must reach no further than 'the matter at hand.' Id. at 747. The writ of habeas corpus, for instance, tests the lawfulness of the detention without exerting any “correcting power over the proceedings of a court-martial.” Hiatt v. Brown , 339 U.S. 103, 111 (1950) (citation modified). Put another way, collateral relief operates on the consequences of the judgment rather than the judgment itself. Reviewing a court-martial conviction for the purpose of vacating and rendering it “invalid for all purposes,” Councilman , 420 U.S. at 747, is thus more akin to direct appellate review, which seeks to 'revise[] and correct[] the proceedings in a cause already instituted,” Ortiz , 585 U.S. at 436 (quoting Marbury v. Madison , 5 U.S. (1 Cranch) 137, 175 (1803)); see 28 U.S.C. § 2106 (permitting “court[s] of appellate jurisdiction” to “affirm, modify, vacate, set aside or reverse any judgment”). And “the review of a judgment on appeal” is “universally regarded as direct rather than collateral.” JAMES, CIVIL PROCEDURE § 11.5; see Councilman , 420 U.S. at 747 n.13 (citing JAMES, CIVIL PROCEDURE § 11.5).

The Court then further explained that jurisdiction over a collateral claim also depends on “whether the relief is sought in an action otherwise within the court’s subject-matter jurisdiction, on a ground that recognizes the distinction between direct and collateral attack, and in a form that the court is able with propriety to grant.” Councilman , 420 U.S. at 752– 53. In other words, collateral challenges should rest on an independent grant of jurisdiction, preserve the distinction between direct and collateral review, and seek relief that the Page 15Article III court may properly grant. Id. If no recognized basis for jurisdiction is identified by a petitioner, then collateral review is impermissible.

The type of review and relief sought by Bergdahl is not consistent with Councilman 's articulation of collateral relief. First, Bergdahl does not seek relief in the form of habeas corpus, back pay under the Tucker Act, or military correction of records. Thus, Bergdahl is not seeking relief under one of the three narrow circumstances in which collateral review of court-martial proceedings and convictions is routinely recognized as described supra in Part I.A.

Second, Bergdahl’s argument that he is requesting that the judgment simply be declared void is significantly undercut by his description of the relief itself. See J.A. 487-88. Regardless of how Bergdahl styled his relief, we examine the complaint’s “substance, not merely its form.” Crowley Gov’t Servs., Inc. v. GSA , 38 F.4th 1099, 1105 (D.C. Cir. 2022) (citation modified); see also Am. Airlines, Inc. v. Austin , 778 F. Supp. 72, 76 (D.D.C. 1991) (“The label attached to the prayer for relief contained in the pleadings is not controlling; the true nature of the relief must be determined.”). Accordingly, when Bergdahl requested the District Court to 'order[] that his conviction and sentence be expunged,” J.A. 487–88, and “that all rights, privileges, and property” that were lost because of the conviction be restored, id. , he crossed the line between potentially permissible collateral relief and direct review of a court-martial judgment. Bergdahl is ultimately seeking to have his conviction set aside through the direct review of the merits of his claims. See Bergdahl’s Opening Br. 60. Without an independent ground for jurisdiction, Article III courts cannot be used as an “opportunity to make a new record, [and] to prove Page 16de novo in the District Court precisely the case” which was unsuccessful in the military court. Burns , 346 U.S. at 146.

Our conclusion here does not displace the holding in Councilman regarding a district court’s ability to deem a courtmartial judgment as void 'as a necessary incident to relief otherwise” within the district court’s authority to grant. 420 U.S. at 747-48. In that setting, deeming a judgment void means denying it res judicata effect so that it cannot justify or bar relief from its consequences; it does not mean vacating the judgment itself. Id. at 747. The problem here is that Bergdahl sought relief operating directly upon the conviction itself, rather than relief otherwise within the District Court’s authority to grant, to which the validity of the conviction was merely incidental.

Bergdahl invoked federal question jurisdiction as the basis for the District Court's ability to hear his claims. Bergdahl's Opening Br. 2, 7-9. He appears to argue that Councilman implicitly confirmed federal-question jurisdiction, 28 U.S.C. § 1331, as a sufficient basis for collateral review because in that case, the Supreme Court requested supplemental briefing on jurisdiction and then proceeded to address the merits of the case without finding a jurisdictional defect. Bergdahl’s Opening Br. 8. That may be correct insofar as Councilman recognized district-court jurisdiction over a proper collateral action. Responding to specific arguments advanced by the litigants, the Court expressly rejected the proposition that Article 76 categorically strips Article III courts of jurisdiction over collateral challenges. Councilman , 420 U.S. at 748-53. The Court nevertheless held that Congress did not confer on federal district courts jurisdiction directly to review court-martial determinations. Id. at 746. As we have since indicated, § 1331 may support a non-habeas collateral challenge to a court-martial judgment. See Larrabee v. Del Page 17Toro , 45 F.4th 81, 86 (D.C. Cir. 2022). But because § 1331 confers original, not appellate, jurisdiction, it does not authorize a district court to vacate or set aside the military judgment itself.

Accordingly, we vacate the lower court’s decision because the District Court lacked jurisdiction on collateral review to vacate this court-martial judgment, as that authority belongs exclusively to tribunals with the authority to exercise direct appellate review. See Councilman , 420 U.S. at 746. We remand this case to the District Court to dismiss Bergdahl’s claims for lack of jurisdiction.

So ordered .