UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) ROBERT B. BERGDAHL, ) ) Plaintiff, ) ) v. ) Civil Action No. 21-418 (RBW) ) UNITED STATES OF AMERICA, ) ) Defendant. ) ) MEMORANDUM OPINION The plaintiff, Robert B. Bergdahl, brings this civil action against the defendant, the United States of America, seeking collateral review of his conviction by a general court-martial, see Amended Complaint for Declaratory and Injunctive Relief (“Am. Compl.”) at 1, ECF No. 3, pursuant to the Due Process Clause of the Fifth Amendment of the United States Constitution, see id. ¶ 1; the Rules for Courts-Martial (“R.C.M.”) 104(a)(1) and 902, see id.; and “Rule 2.11 of the binding Rules of Judicial Conduct for Army Trial and Appellate Judges[,]” id. Currently pending before the Court are (1) the Defendant’s Motion to Dismiss (“Def.’s Mot.” or the “defendant’s motion”), ECF No. 16, and (2) the Plaintiff’s Cross-Motion for Summary Judgment (“Pl.’s Mot.” or the “plaintiff’s motion”), ECF No. 18. Upon careful consideration of the parties’ submissions,1 the Court concludes for the following reasons that it must grant in part and deny in 1 In addition to the filings already identified, the Court considered the following submissions in rendering its decision: (1) the Defendant’s Memorandum of Points and Authorities in Support of Defendant’s Motion to Dismiss the Amended Complaint (“Def.’s Mem.”), ECF No. 16-1; (2) the Plaintiff’s Opposition to Defendant’s Motion to Dismiss and Memorandum in Support of Cross-Motion for Summary Judgment (“Pl.’s Mem.”), ECF No. 17; (3) the Plaintiff’s Statement of Material Facts (“Pl.’s Facts”), ECF No. 18-1; (4) the Defendant’s Combined Reply in Support of Its Motion to Dismiss and Opposition to Plaintiff’s Summary Judgment Motion (“Def.’s Reply”), ECF No. 21; (5) the Defendant’s Response to Plaintiff’s Statement of Material Facts (“Def.’s Resp. to Pl.’s Facts”), ECF No. 21-4; and (6) the Plaintiff’s Reply to Defendant’s Opposition to Cross-Motion for Summary Judgment (“Pl.’s Reply”), ECF No. 23. part the defendant’s motion to dismiss and grant in part and deny in part the plaintiff’s motion for summary judgment. I. BACKGROUND A. Legal Framework “In the exercise of its authority over the armed forces, Congress has long provided for specialized military courts to adjudicate charges against service members.” Ortiz v. United States, __ U.S. __, 138 S. Ct. 2165, 2170 (2018). These courts “form[] part of an integrated ‘court-martial system’ that closely resembles civilian structures of justice.” Id. Under the Uniform Code of Military Justice (“UCMJ”), a general court-martial may be “convened” against a service member by any of the authorities set forth in 10 U.S.C. § 822, including “the President of the United States[,]” “the Secretary of Defense[,]” and any of the statutorily designated “commanding officer[s.]” 10 U.S.C. § 822(a). Once charges are brought by a convening authority, “[a] military judge shall be detailed to . . . [preside over the] court-martial[,]” id. § 826(a), which consists of “an officer-led tribunal . . . [tasked with] determin[ing the service member’s] guilt or innocence and levy[ing] …
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