Lawrence R. Ragard v. United States

United States Court of Appeals for the Federal Circuit
05-5127
LAWRENCE R. RAGARD,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
David Patrick Sheldon, The Law Offices of David P. Sheldon, P.L.L.C., of
Washington, DC, argued for plaintiff-appellant.
Lauren S. Moore, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued for defendant-appellee. With
her on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen,
Director, and Brian M. Simkin, Assistant Director. Of counsel on the brief was Major
Louis A. Birdsong, Military Personnel Branch, Litigation Division, United States Army
Judge Advocate General’s Corps, of Arlington, Virginia.
Appealed from: United States Court of Federal Claims
Judge Susan G. Braden

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United States Court of Appeals for the Federal Circuit
05-5127
LAWRENCE R. RAGARD,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________________
DECIDED: March 6 , 2006
______________________________
Before MICHEL, Chief Circuit Judge, FRIEDMAN, Senior Circuit Judge, and LINN,
Circuit Judge.
FRIEDMAN, Senior Circuit Judge.
Under a pre-trial diversion agreement, the District of Columbia Corporation
Counsel agreed that, if the criminal defendant performed specified community service,
pending charges against him, a captain in the United States Army (“Army”), would be
dismissed. Both sides performed the agreement, and the criminal charges were
dismissed. The ultimate question in this appeal is whether that agreement barred the
Army from subsequently court martialling the defendant for a different offense arising
from the same conduct as the District of Columbia charge. We hold that the agreement
did not bar the court martial. We therefore affirm the Court of Federal Claim’s dismissal
of the present case challenging the court martial, but on a different ground than that
court gave.

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I
The basic facts are undisputed. Following the arrest of the appellant Lawrence
R. Ragard, then a Captain in the Army, by the United States Park Police for engaging in
lewd acts in violation of D.C. Code § 22-1312(a) (formerly D.C. Code § 22-1112(a)), an
Assistant District of Columbia Corporation Counsel charged him in a District of
Columbia court with indecent exposure, also in violation of D.C. Code § 22-1312(a).
(On May 26, 2004, the Office of the Corporation Counsel for the District of Columbia
was renamed the Office of the Attorney General for the District of Columbia. See
Mayor’s Order 2004-92, 51 D.C. Reg. 6052 (2004).) Ragard then entered into a pre-
trial diversion agreement with the District of Columbia, under which he agreed to
perform 40 hours of community service and the Corporation Counsel agreed to dismiss
the pending indecent exposure charge. (This is a procedure under which certain
defendants are “diverted” from the criminal justice system into an alternative
rehabilitation program.) Ragard performed his community service and the Assistant
Corporation Counsel nolle prossed the criminal charge.
In the interim, the Army instituted court martial proceedings against Ragard,
based on the same conduct. It charged him with sodomy, conduct unbecoming an
officer, and commission of an indecent act. Ragard moved to dismiss the charges as
constituting double jeopardy and barred by the diversion agreement. The court martial
denied the motion, ruling that the military prosecution would not constitute double
jeopardy and that the District of Columbia Corporation Counsel could not bind the Army.
Ragard pled guilty to the sodomy charge, and was sentenced to be dismissed
from the Army, fined $5,000.00, and reprimanded. He appealed his conviction and
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sentence through the military appellate courts, which rejected his contentions of double
jeopardy and breach of contract. United States v. Ragard, 56 M.J. 852, 854 (CCA
2002), summarily aff’d, 57 M.J. 468 (CAAF 2002), motion for rehearing denied, 58 M.J.
130 (CAAF 2003).
He then filed the present case in the United States Court of Federal Claims,
challenging his court martial conviction and sentence, and seeking reinstatement and
backpay. (The Court of Federal Claims has jurisdiction to collaterally review a court
martial “if the action is otherwise within [its] jurisdiction, as it is . . . for back pay and
reinstatement. Bowling v. United States, 713 F.2d 1558, 1560 (Fed. Cir. 1983). See
Matias v. United States 923 F.2d 821 (Fed. Cir 1993).) That court dismissed the suit for
lack of jurisdiction. It first held that Ragard had not been subjected to double jeopardy.
It then ruled that the question of whether the diversion agreement barred the court
martial was a factual issue that the military courts had resolved against Ragard, and
that the court had no jurisdiction to re-examine that factual determination.
Ragard did not raise the double jeopardy point before us either in his brief or in
his oral argument. We therefore view that argument as abandoned before this court
and shall not discuss it further.
II
Without reaching the merits, the Court of Federal Claims dismissed the suit for
want of jurisdiction, on the ground that the military courts’ interpretation of the diversion
agreement as not barring the Army court martial was a factual determination that it did
not have jurisdiction to review. The interpretation of a contract, however, is a question
of law, not of fact, see Cienega Gardens v. United States, 194 F. 3d 1231, 1239 (Fed.
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Cir. 1998), which the Court of Federal Claims had jurisdiction to decide, see Longva v.
United States, 41 Fed. Cl. 291 (1998). The answer to that legal question is clear,
however: the agreement did not bar the court martial. Accordingly, rather than
remanding the case to the Court of Federal Claims to decide the question initially, we
affirm the Court of Federal Claim’s dismissal of the complaint on the alternative ground
that Ragard failed to state a claim upon which relief could be granted.
The record on appeal does not contain any document identified as the “diversion
agreement” and we do not know whether such a document exists. Other documents in
the record and the parties’ presentations, however, leave no doubt what that agreement
states. It provides that if Ragard performed 40 hours of community service, the District
of Columbia Corporation Counsel would dismiss the pending criminal charges against
him for violation of the District of Columbia Code.
Nothing in the diversion agreement even suggests, let alone provides, that
performance of the agreement will bar the Army from court martialling Ragard for
conduct that violates the Uniform Code of Military Justice. The agreement purports to
deal only with the pending District of Columbia criminal proceeding, not with other
criminal proceedings that might be brought by some other entity.
Indeed, there is no basis here upon which the District of Columbia Corporation
Counsel would have authority to prohibit the Army from court martialling Ragard.
Ragard cites cases stating that, in other contexts, the District of Columbia is a federal
entity. He points out that the Army also is a federal entity, and then argues that the
agreement by the first entity to dismiss the District of Columbia criminal case should
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somehow be extended to bar the military entity from court martialling him for the same
conduct on which the District of Columbia criminal prosecution was based.
Although the District of Columbia is a federal entity, it is also an independent one.
It has its own laws, its own government, and its own elected and appointed officials.
The District of Columbia Corporation Counsel (now the Attorney General of the District
of Columbia), appointed by the Mayor, is the District of Columbia’s chief legal officer.
The United States Attorney for the District of Columbia generally is in charge of
“conduct[ing] in the name of the United States” “criminal prosecutions” for offenses
under the District of Columbia Code. D.C. Code § 23-101(c). That statute contains
exceptions, however, under which prosecution for certain minor offenses “shall be
conducted in the name of the District of Columbia by the Corporation Counsel for the
District of Columbia or his Assistants . . . .” One of the categories of offenses that the
Corporation Counsel is to prosecute in the name of the District of Columbia is “lewd,
indecent, or obscene acts.” D.C. Code § 23-101(b).
When the Assistant Corporation Counsel filed charges of indecent exposure
against Ragard and then agreed in the diversion agreement to dismiss those charges if
Ragard performed specified community service, he was acting solely for the District of
Columbia pursuant to the foregoing statutory authority. The United States Attorney for
the District of Columbia had no involvement in Mr. Ragard’s prosecution or the
execution and performance of the diversion agreement. Only the District of Columbia,
not the United States, was a party to and bound by that agreement. The Corporation
Counsel had no authority in the diversion agreement to bind the Army not to court
martial Ragard, and the agreement did not do so.
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CONCLUSION
The judgment of the Court of Federal Claims dismissing Ragard’s suit is
AFFIRMED.
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