NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

04-5141 DAVID EARL MOORE, Plaintiff-Appellant,

v. UNITED STATES, Defendant-Appellee.

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DECIDED: February 10, 2005

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Before MICHEL ∗ , Chief Judge , BRYSON, and LINN, Circuit Judges

. PER CURIAM. David Earl Moore (“Moore”) appeals the decision of United States Court of Federal Claims denying Moore’s collateral c hallenge to a court-martial conviction. Moore v. United States , 61 Fed. Cl. 146 (2004). Moore sought restoratio n of military pay, allowances, retirement, and other benefits. Id. at 147. Because the Court of Federal Claims correctly held that Moore was not denied du e process in the military tribunals and that Moore’s double j eopardy argument was waived, we affirm

.

∗ Paul R. Michel assumed the pos ition of Chief Judge on December 25, 2004.BACKGROUND In May 1996, Moore was stopped for drivi ng while intoxicated. As a result, Moore’s commanding officer ordered his driving privileges revoked for three years. In May 1998, Moore violated that order. On October 5, 1998, Moore was charged with driving while intoxicated, disobedience of an order not to drive, and assault on his wife (unrelated to the driving offenses). Moore , 61 Fed. Cl. at 147. Between March 31 and April 3, 1999, a court martial convened and convicted him, inter alia , of “one specification of drunken driving, and tw o specifications of disobeying a lawful order of a superior offi cer not to drive a vehicle on a government installation

. . . in violation of Articles 128, 111, and 90” of the Un iform Code of Military Justice. Id. at 148. Moore was sentenced to five years confinement, reduction in grade, and dishonorable discharge. Moore appealed to the Air Force Court of Criminal Appeals (“Air Force Court”). Upon the Ai r Force Court’s upholding the conviction, Moore petitioned the United St ates Court of Appeals for the Armed Forces, which denied his petition. Id. Having exhausted all remedies in the m ilitary courts, Moore asked the Court of Federal Claims to overturn his conviction and reinstate his military pay, allowances, retirement, and other benefits. The Court of Federal Claims addressed several arguments raised by Moore, in cluding that “the [Air Force Court] denied [Moore] due process by failing to require that he be charged under Articl e 92(2) rather than under Article 90.” Id. at 151, 153. The Court of Federal Claims held that the Air Force Court provided Moore “full and fair c onsideration” and deferred, as required, to the Air Force Court’s factual conclusions. Id. at 151-54. Although M oore made a double jeopardy

04-5141 2claim, the Court of Federal Claims held t hat Moore waived the argument because he did not raise double jeopardy in the military tribunals. Id. at 153 n.6. Moore timely appealed the Court of F ederal Claims’ decision. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). DISCUSSION We review Court of Federal Claims dec isions “for errors of law and clearly erroneous findings of fact.” Matias v. United States , 923 F.2d 821, 826 (Fed. Cir. 1990). “However, questions of fact resolved by milit ary courts are not subject to collateral attack.

. . . The [Court of Federal Claims’ ] limited function was to determine whether the military tribunal gave fair consideration to

. . . [Moore’s] claims” su ch that the military afforded Moore due process. Id. On appeal here, appearing pro se , Moore makes two arguments. First, Moore argues that the Court of F ederal Claims’ holding that his due process rights were not violated was in error. He asserts that his due process rights were violated because he was charged with violating the order revoking his driving privileges under Article 90 instead of Article 92(2). He claims that charging him under Article 90 was arbitrary because United States v. Byers , 40 M.J. 321 (1994), held that violating an order revoking driving privileges has to be c harged under Article 92(2) . Second, Moore argues that if we deny his due process cha llenge, then his right to be free from double jeopardy is violated. Specifically, Moor e contends that our denying his due process challenge means that we s anction the military’s rationale for charging Moore under Article 90 and distinguishing Byers : that the order revoking hi s driving privileges was a serious order punishing Moore for the driving while intoxicated offense (and worthy of

04-5141 3the Article 90 charge for its violation). M oore asserts he is being punished twice for the same driving while intoxicated offense: init ially by the driving revocation order, and again by the court martial. Because he cannot be punished twice, Moore contends not that the court-martial conviction for driving while intoxicated is unl awful, but that the initial driving revocation order is unlawful ( and thus that his court-martial conviction for violating the order is unlawful). The government counters t hat the Court of Federal Claims’ holdings on due process were correct and that Moore waived the double jeopardy claim by not raising it to the military tribunals. Alte rnatively, the government argues that even if Moore did not waive the double jeopardy claim, Moore loses on the merits. Moore responds that the Court of Federal Claims erred by failing to hold that he did not waive his double jeopardy claim and by failing to consider double jeopardy. Moore asserts that because he raised in the military tr ibunals the argument that t he driving revocation order contravened military regulat ion, he preserved the doubl e jeopardy challenge. The Court of Federal Claims rejected Moore’s argument t hat the military’s charging him under Article 90 violated his due process rights, explaining that: the [Air Force Court] considered th is argument, and determined that there was sufficient evidence in this case to charge plaintiff under Article 90. The [Air Force Court] noted that in plaintiff’s case [as opposed to the plaintiff in Byers ] a superior officer was personally involved and that plaintiff’s revocation order related to the serious crime of drunk driving rather than a “mere routine traffic offense.” Moore , 61 Fed. Cl. at 153 (internal citations omitted). Because the Air Force Court employed reasoned decisionmaking by factua lly distinguishing Moore’s case from Byers , we reject Moore’s argument that the military acted arbitr arily. The military distinguished its own case law on the facts, and our standard of review precludes our

04-5141 4reexamining those facts. We thus hold that there is no legal error in the Court of Federal Claims’ conclusion on Moore’s due process claim. As to double jeopardy, because the Court of Federal Claim s is correct that Moore waived this argument, we cannot consider whether the merits favor Moore. To collaterally attack a court-martial convic tion, an appellant must claim a serious deprivation of constitutional rights. Bowling v. United States , 713 F.2d 1558, 1561 (Fed. Cir. 1983). “Absent a showing of good cause and prejudice, an appellant’s failure to raise his constitutional claims in the military court system bars him fr om raising them in federal court.” Martinez v. United States , 914 F.2d 1486, 1488 (Fed. Cir. 1990). Moore neither raised the issue of double jeopardy until his appearance in the Court of Federal Claims nor showed good cause for failing to do so. The Double Jeopardy Clause protects an accused from, inter alia , suffering multiple punishments for the same offense. See United States v. Dixon , 509 U.S. 688, 695-96 (1993). Though Moore may not have had to speak the words “double jeopardy” to preserve the issue, in a collateral cha llenge in the Court of Federal Claims and the subsequent appeal to this court, it was incum bent on Moore to point to where in the record of the proceedings in the military tr ibunals he argued that his constitutional rights were violated because he was being twic e punished for the same offense. See Nelson v. Adams USA, Inc. , 529 U.S. 460, 469 (2000) (“[Avoidi ng waiver] does not demand the incantation of particular words; rather, it requires that the lower court be fairly put on notice as to the substance of the issue.”). Instead of poi nting to where he raised the argument, Moore asserts that the officials pr esiding over the milit ary tribunals should have taken judicial notice of the double jeopardy issue. Alte rnatively, Moore argues that

04-5141 5by contending that his superio r’s driving revocation order violated applicable Air Force regulations, he impliedly raised double jeopardy and preserved his rights. Both of these arguments are without merit. First, asserting that the driving revocation order was invalid because it wa s inconsistent with a regulation did not preserve the claim that t he driving revocation order was invalid on double jeopardy grounds. Cf. Martinez , 914 F.2d at 1488 (“Asserting the vi olation of a given law for reason ‘x’ does not preserve later claims that the same law has been violated for reasons ‘y’ and ‘z.’”). Second, an issue is not preserved for a collateral challenge based on the mere assertion that t he military tribunal should have ta ken judicial notice of the issue. A party must fairly put the military tribunal on notice as to the substance of the issue, see Nelson , 529 U.S. at 469, and show the cour t in which the collateral challenge is brought that it did so. Because Moore did not point to where in the record he adequately put the military tri bunals on notice of his double jeopardy claim, he waived the argument in his collateral challenge. CONCLUSION Because the Court of Federal Claims co rrectly held that Moore was not denied due process in the military tribunals and that Moore’s doubl e jeopardy argument was waived, we affirm.

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