377 F.Supp.2d 1170 (2005)
Arley EAST, Plaintiff,
v.
Jo Anne B. BARNHART, Commissioner of Social Security, Defendant.
No. 3:04CV624-M.
United States District Court, M.D. Alabama, Eastern Division.
July 18, 2005.
James P. Frey, Jr., for plaintiff.
Angela G. Thornton-Millard, Frank V. Smith, III, and R. Randolph Neeley, for defendant.

ORDER ON MOTION
McPHERSON, United States Magistrate Judge.
This case is now before the court on the Plaintiff's motions for attorney fees and costs under the Equal Access to Justice Act ["EAJA"], 28 U.S.C. §§ 1920, 2412 (2004) (Docs.# 25, 26). The Commissioner *1171 responded to the motion without objection and requested an order awarding the amount sought (Doc. # 30).
Having reviewed the parties' submissions, the court concludes that the plaintiff is a prevailing party within the meaning of section 2412, the government's position was not substantially justified, and the plaintiff's application for fees was timely filed. The court does not agree with the plaintiff's calculation of attorney fees, however.

DISCUSSION
The plaintiff has requested attorney fees in the amount of $5,281.55 for 34.3 attorney hours, which represents an hourly rate of $153.98 (Doc. 26, ¶ 9). This rate reflects a base of $125 per hour, which is the maximum rate allowed under section 2412(d)(2)(A), adjusted in accordance with the Consumer Price Index ["CPI"] for March 2005. See United States Department of Labor, Bureau of Labor Statistics, Consumer Price Indexes, http://www.bls.gov/cpi/home.htm.
Calculating attorney fees under the EAJA in the Eleventh Circuit requires the court to determine first whether the "prevailing market rates for the kind and quality of the services furnished", which is how the EAJA defines what is a reasonable attorney fee, exceed the statutory ceiling of $125. § 2412(d)(2)(A); Meyer v. Sullivan, 958 F.2d 1029, 1033 (11th Cir.1992) (outlining a two-step process). Evidence provided by the plaintiff establishes that the prevailing market rate for his attorney's services is well above the statutory ceiling and well above the amount sought by the plaintiff.
The defendant has neither provided evidence to the contrary nor objected, and the court takes judicial notice of opinions that have approved similar fees in this area. See, e.g., Thornton v. Barnhart, No. 03-cv-683 (M.D.Ala. May 3, 2005) ($191); Ballard v. Barnhart, 329 F.Supp.2d 1278 (N.D.Ala.2004) ( $147.63). Therefore, the court finds that the hourly rate of $153.98 is reasonable in this case.
"The second step, which is needed only if the market rate is greater than [$125] per hour, is to determine whether the court should adjust the hourly fee upward from [$125] to take into account an increase in the cost of living or a special factor." Id.[1] The court finds that the increase in the cost of living since the EAJA was amended in 1996 to increase the fee cap to $125 merits an inflationary adjustment, and the court now turns its attention to the method of calculating the adjustment.
The plaintiff suggests that the adjustment should be based on the CPI for March 2005.[2] This results in an upward adjustment of 23.19 percent, which raises the $125 ceiling to $153.98, the plaintiff's figure.[3] All of the Circuit courts outside *1172 the Eleventh Circuit that have addressed this issue have determined that basing an inflationary adjustment on the most recent CPI without regard to the time when services were actually provided imposes upon the government a charge for delayed payments, which is tantamount to interest and is impermissible absent an express legislative waiver.[4]Sorenson v. Mink, 239 F.3d 1140, 1148-49 (9th Cir.2001); Kerin v. U.S. Postal Service, 218 F.3d 185, 194 (2d Cir.2000); Masonry Masters, Inc. v. Nelson, 105 F.3d 708, 710-714 (D.C.Cir.1997); Marcus v. Shalala, 17 F.3d 1033, 1038-40 (7th Cir.1994); Perales v. Casillas, 950 F.2d 1066 (5th Cir.1992); Chiu v. U.S., 948 F.2d 711, 719-22 (Fed.Cir.1991).
Each of these courts relied on the Supreme Court case of Library of Congress v. Shaw, 478 U.S. 310, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986), to reach this conclusion. The six-justice opinion in Shaw summarized the "no-interest rule" by stating that "interest cannot be recovered in a suit against the Government in the absence of an express waiver of sovereign immunity from an award of interest." 478 U.S. at 311, 106 S.Ct. 2957. The rule "permit[s] the Government to occupy an apparently favored position, by protecting it from claims for interest that would prevail against private parties." Id. at 315-16, 106 S.Ct. 2957 (internal quotations and citations omitted).
The district court in Shaw had determined that an award of attorney fees under Title VII should be adjusted "to compensate counsel for the delay in receiving payment for the legal services rendered." Id. at 313, 106 S.Ct. 2957. Doing so, the lower court held,
is appropriate because the hourly rates used for the lodestar represent the prevailing rate for clients who typically pay their legal bills promptly, whereas court-awarded fees are normally received long after the legal services are rendered. An increase for delay is designed to compensate the attorney for the money he could have earned had he been paid earlier and invested the funds.
Id.[5] The D.C. Circuit determined that the no-interest rule would preclude such an award because "compensation for delay" was the "functional[] equivalent" of interest. Id. Nevertheless, the court interpreted Title VII as an express waiver of sovereign immunity for such a charge. Id.
The Supreme Court disagreed on the latter point. Addressing first the contention that Title VII expressly waived sovereign immunity,[6] the Court instructed:
In analyzing whether Congress has waived the immunity of the United States, we must construe waivers strictly in favor of the sovereign, see McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 96 L.Ed. 26 (1951), and not enlarge the waiver beyond what the language requires. The no-interest rule provides an added gloss of strictness upon these usual rules:
*1173 "[T]here can be no consent by implication or by use of ambiguous language. Nor can an intent on the part of the framers of a statute or contract to permit the recovery of interest suffice where the intent is not translated into affirmative statutory or contractual terms. The consent necessary to waive the traditional immunity must be express and it must be strictly construed." United States v. N.Y. Rayon Importing Co., 329 U.S. [654] at 659, 67 S.Ct. 601, 91 L.Ed. 577 [(1947)].
Shaw, 478 U.S. at 318, 106 S.Ct. 2957 (emphasis added) (parallel citations omitted); see also 42 U.S.C. § 2000e-5(k) (2004). With this in mind, the Court held that Title VII did not waive the United States' immunity from interest charges. Id. at 320-21, 106 S.Ct. 2957.
The Shaw Court then provided insight into the rationale for concluding that an adjustment for delayed payment constitutes an interest charge.
"[T]he character or nature of `interest' cannot be changed by calling it `damages,' `loss,' `earned increment,' `just compensation,' `discount,' `offset,' or `penalty,' or any other term, because it is still interest and the no interest rule applies to it." United States v. Mescalero Apache Tribe, 207 Ct.Cl. 369, 518 F.2d 1309, 1322 ([Cl.Ct.]1975).
Respondent claims, however, that interest and delay represent more than mere semantic variations. Interest and a delay factor, according to respondent, have distinct purposes: the former compensates for loss in the use of money, while the latter compensates for loss in the value of money.
We are not persuaded. Interest and a delay factor share an identical function. They are designed to compensate for the belated receipt of money. The no-interest rule has been applied to prevent parties from holding the United States liable on claims grounded on the belated receipt of funds, even when characterized as compensation for delay. See United States v. Sherman, 8 Otto 565, 568, 25 L.Ed. 235 (1878). Thus, whether the loss to be compensated by an increase in a fee award stems from an opportunity cost or from the effects of inflation, the increase is prohibited by the no-interest rule. See Saunders v. Claytor, 629 F.2d 596, 598 (9th Cir.1980) ("In essence, the inflation factor adjustment is a disguised interest award."), cert. denied, 450 U.S. 980, 101 S.Ct. 1515, 67 L.Ed.2d 815 (1981); Blake v. Califano, 626 F.2d 891, 895, and n.9 (D.C.Cir.1980).
Shaw, 478 U.S. at 321-22, 106 S.Ct. 2957 (parallel citations omitted) (citations to the record omitted).[7]
The relevant EAJA provision states,
The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished except that ... attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living ... justifies a higher fee.
28 U.S.C. § 2412(d)(2)(A).
Applying Shaw in the context of EAJA fees, the circuit courts of appeals cited supra held that, while the language of the relevant EAJA provision allows for an inflationary adjustment it does "not waive the government's sovereign immunity *1174 with respect to interest." See also U.S. v. Aisenberg, 358 F.3d 1327, 1346 n. 28 (11th Cir.2004) (stating that each of the circuit court cases cited supra "are persuasive" and applying their rationale in a case involving the Hyde Amendment, which allows for an award of attorney fees in criminal cases, Pub. L. No. 105-119, § 617, 111 Stat. 2440, 2519 (1997)).
Those courts also held that adjustments for inflation must correlate in some way to the period during which services were performed and may not be based simply on the most recent CPI.[8] This court has concluded that the Eleventh Circuit's rationale should be followed, i.e., these cases are persuasive; thus, the court adopts these holdings as its own.
While the courts have thus defined a clear violation of the no-interest rule, they have not yet established the proverbial boundary beyond which an authorized inflationary adjustment becomes an impermissible interest charge. Nevertheless, and notwithstanding their reverence for Shaw, these courts (not including Aisenberg, which did not discuss the issue beyond the relevant holding of the other circuits) do suggest, without detailed explanation, that the CPI for the year in which services were rendered is the appropriate figure to use. See, e.g., Sorenson, 239 F.3d at 1149; Kerin, 218 F.3d at 194; Perales, 950 F.2d at 1076.[9]
Some courts in the Eleventh Circuit have applied this averaging method, which as a practical matter results in charging the United States a different rate for each month of litigation in a particular case based on a cumulative annual average CPI. U.S. v. Adkinson, 256 F.Supp.2d 1297, 1313 (N.D.Fla.2003) (addressing a claim for attorney fees under the Hyde Amendment); Gates v. Barnhart, 325 F.Supp.2d 1342 (M.D.Fla.2002). As a result, the rate the United States must ultimately pay varies-more often than not, increases-with time. The methods endorsed, therefore, do little if anything to eliminate the offense driving the principled refusal simply to apply the current CPI.
*1175 In holding that the most recent CPI was the inappropriate measurement, the Perales court stated:
We find no language in the EAJA authorizing fees at current adjusted rates for all hours whenever expended. The narrowest reasonable construction of the cost-of-living provision in the EAJA leads us to conclude that this was an attempt to allow the statute to be self-updating in light of he modern realities of inflation. This purpose is accomplished through the award of historic rates; anything more treads impermissibly across the line and is tantamount to interest.
Perales, 950 F.2d at 1076. The court continued: "Accordingly, following the teachings of Shaw, we conclude that cost-of-living compensation of attorneys under the EAJA merely for the delay in payment is a prohibited award of interest against the United States." Id. at 1077.
Similarly, the Ninth Circuit stated that calculating the rate using the current CPI "adjusts the fee to account for increases in the cost of living between the time that the fee was earned and the time that the government pays the fee. Such an adjustment compensates a lawyer for a delay in payment and is the functional equivalent of prejudgment interest." Sorenson, 239 F.3d at 1148.
This is as true when inflationary adjustments are made using the most recent CPI as when they are made using a variable (average) annual CPI regardless of when during the year those services were provided. The fact that the fluctuation is represented by an annual average does not eliminate the fact that the fee charged to the United States one month is different-most likely higher-the next month due to nothing more than the passage of time. To illustrate, in January 2004, the CPI was 185.2. Using the rate of $125 per hour and adjusting for inflation using the January CPI, the United States would pay $147.50 per hour. Relying on the 2004 annual average CPI of 188.9, however, the rate charged would be $150.50, an increase of two percent.
To be sure, in the context of a single case, the suggestion that an imposition of a two percent, $3 per hour, charge to the United States government is significant enough to cause concern may be viewed as excessively scrutinizing. But, the prohibition against charging the United States prejudgment interest does not depend upon the charge's fiscal impact.[10] Nor does it allow for a balancing of interests.
*1176 A table provided in Adkinson, a case arising in the Northern District of Florida, illustrates precisely how the averaging method imposes a penalty against the United States for the delay in payment. 256 F.Supp.2d at 1313.[11] Another approach illustrates how the averaging method not only imposes a charge for delayed payment but also results in a unique form of legal agreement not likely to be easily accepted by most private clients. Typically, in situations involving hourly fee agreements, an attorney bills a client for time spent working at an hourly rate that was agreed upon at the outset of the representation. Framing the current situation in those terms, the hourly rate would be billed to and paid by a third party payor, the United States, on a monthly basis. Because typical attorney-client contracts for single-purpose representation do not provide for inflationary adjustments, the same hourly rate would be charged and paid even though continual fluctuations in the economy (most likely inflationary) alter (most likely reduce) the value of the hourly fee. This stands in stark contrast to the "arrangement" resulting from the averaging method, wherein the charge to the United States varies, generally increasing,[12] with time, and the most readily available justification for the changing rate is a delay in payment.
Consequently, while theoretically simple to apply, the averaging method nonetheless risks (though it does not necessitate), and in most cases will result in, an impermissible interest charge to the government. Therefore, Shaw requires a different approach.
Basing inflationary adjustments on the CPI at the time counsel agreed to represent the prevailing party in a particular case guarantees that the United States will not be charged interest. In addition, it most closely replicates ordinary hourly fee agreements,[13] and because the EAJA does *1177 not supersede attorney-client contracts establishing mutually agreed-upon methods for calculating the reasonable charge for an attorney's services, this method will cause little if any hardship and will actually reduce the unwelcome surprise that may accompany a period of significant deflation.[14] The time-honored judicious values of accuracy, consistency and predictability will be well-served.
Therefore, the court will utilize the CPI for June 2004, which is the date of the earliest accounting for plaintiff's counsel's time. The CPI for that month was 189.7, a 20.9% increase from 1996. Consequently, plaintiff's counsel's hourly rate will be $151.13, and the total fee to be awarded is $5,183.76, a difference of $97.79 from the amount originally sought.
Plaintiff also seeks costs in the amount of $150 to reimburse him for the filing fee  an appropriate request under the EAJA.[15] 28 U.S.C. §§ 1920(1), 2412(a)(1), 2412(d)(1)(A).
Accordingly, it is the ORDER, JUDGMENT, and DECREE of this court that the plaintiff's motion be GRANTED in the amount of $5,183.76 for attorney fees and $150 for costs.
NOTES
[1]  At the time of the Meyer opinion, the EAJA imposed a $75 per hour ceiling.
[2]  The plaintiff and the court both rely on the CPI for "All Urban Consumers" with a base period of 1982-1984. See also Dewalt v. Sullivan, 963 F.2d 27, 28-30 (3d Cir.1992) (explaining the rationale underlying using the CPI reflecting the cost of living as opposed to the CPI that more accurately reflects the market value of legal services); Sullivan v. Sullivan, 958 F.2d 574 (4th Cir.1992) (same).
[3]  To get this figure, subtract the CPI for the base year ["base CPI"], 1996 (the year the statutory ceiling was changed from $75 to $125), from the CPI for the period the court uses as the appropriate measure for adjustment ["adjustment CPI"] during which services were performed. In this case, the plaintiff used the figure from March 2005, which was 193.3. The average CPI for 1996 was 156.9, leaving a difference of 36.4 index points. The difference is then divided by the base CPI and then multiplied by 100 to arrive at the percent by which the CPI increased or decreased (36.4/156.9 × 100 = 23.19).
[4]  The EAJA does allow for imposition of interest in the event the United States appeals an attorney fee award. 28 U.S.C. § 2412(f). The interest accrues "from the date of the award through the day before the date of the mandate of affirmance" of the award. Id.
[5]  Notably, the district court adjusted the fee beginning at the point the court had determined the case "should have ended" and not simply for the period during which litigation was pending. Shaw, 478 U.S. at 313, 106 S.Ct. 2957.
[6]  The argument relied upon the statute's language imposing liability for "costs the same as a private person", describing the attorney fees to be awarded as part of "costs", and requiring them to be "reasonable". Shaw, 478 U.S. at 317-18, 106 S.Ct. 2957.
[7]  At least one of the courts (cited supra) relying on Shaw for this issue had previously recognized that an amendment to Title VII superceded Shaw's holding that Title VII does not constitute a waiver of immunity from interest charges. Estate of Reynolds v. Martin, 985 F.2d 470, 472 (9th Cir.1993).
[8]  The Seventh Circuit perhaps best describes Shaw's application to EAJA fee awards:

In Shaw, the Court observed that an interest rate reflects two separate factors, the real opportunity cost of capital and the inflation rate. The Court held that principles of sovereign immunity generally dictate that neither of these elements may be awarded against the United States, regardless of how the award might be designated. An exception to this rule allows for such awards where the government has consented. However, because waivers of sovereign immunity are to be strictly construed in favor of the government, the exception is not applicable unless the consent is express and unambiguous. By indexing attorney's fees at current rates, the district court's award included interest. Although the EAJA provides for the award of post-judgment interest, 28 U.S.C. § 2412(f), its provisions for a cost of living adjustment is not an explicit waiver of sovereign immunity that would authorize a district court to award pre-judgment interest to compensate for delay. Plaintiffs argue that the EAJA's provision for an upward adjustment to compensate for an increase in the cost of living constitutes an explicit waiver of the inflation component interest. We agree, but only to the extent that the clause serves as the statute's built-in mechanism for automatically updating itself, ensuring that the [$125] per hour cap will not be eroded by inflation. We reach this conclusion strictly construing the language in favor of the government, as Shaw requires. Nothing in the remainder of the EAJA authorizes fees to be indexed at current rates regardless of when they were incurred.
Marcus, 17 F.3d at 1038-39 (emphasis added).
[9]  The Chiu court suggested one possible alternative: establishing "a single mid-point inflation adjustment factor applicable to services performed before and after that midpoint." Chiu, 948 F.2d at 722 n. 10. The court finds this method unsatisfactory for the same reasons it takes issue with the averaging method.
[10]  The impact in an individual case may seem minor, particularly in cases involving review of an administrative decision, which, more often than not, are resolved within a year. On a broader scale, however, the picture is much different.

From its inception in fiscal year 1982 through fiscal year 1994 (the last year central reporting of government wide data was required), more than 6,200 applicants were awarded about $34 million under EAJA's administrative and judicial processes for reimbursement of attorneys' fees and related expenses. Of the $34 million, applications involving the Social Security Administration (SSA) accounted for at least 83 percent of the claims granted and 48 percent of the amounts awarded.
U.S. General Accounting Office, Health, Education, and Human Services Division, Equal Access to Justice Act: Its Use in Selected Agencies, Report No. B-278335 (Jan.1998), available at http://archive.gao.gov/paprpdf1/159815. pdf. Furthermore, the proper basis for calculating inflationary adjustments may have an even broader impact. "As of December 1996, approximately 180 other federal laws provide for fee shifting." Id. at 8 n. 6. From 1993 to 1994, the number of EAJA awards granted by the courts rose dramatically from 232 to 2,179, and the total fees for those years rose from $1 million to $8.2 million. Id. at 14. "The large increase in applications and awards in fiscal year 1994 was attributed to a change in data collection methods. Most of the increase was caused by SSA cases." Id. at 14 n.c (emphasis added). Thus, in all likelihood, the data from the previous years are inaccurate.
An earlier report details "data on the number of cases and amount of plaintiff attorneys' fees awarded over $10,000 against nine federal agencies, for cases closed during fiscal years 1993 and 1994." U.S. General Accounting Office, General Government Division, Private Attorneys: Selected Attorneys' Fee Awards Against Nine Federal Agencies in 1993 and 1994, Report No. B-259798 (Oct.1995), available at http://www.gao.gov/archive/1996/ gg96018.pdf. "More than 27 percent (123) of the reported awards over $10,000 for fiscal years 1993 and 1994 against the nine agencies were authorized under the [EAJA].... In addition, the highest amount of attorneys' fee awards against the nine agencies were authorized under the [EAJA] for both fiscal years, totaling over $9.4 million." Id. at 13. Notably, the amount awarded in 1994 under 28 U.S.C. § 2412, $5.2 million, was nearly double the amount awarded in 1993, $2.8 million (The report also provided numbers under the EAJA's provisions found in 5 U.S.C. § 504(a)(1), which is inapplicable to this case.). Id. at 14. It should be noted that the figures quoted in this paragraph do not include fees awarded for SSA cases. "HHS [U.S. Department of Health and Human Services] did not provide data on attorneys' fee awards over $10,000 for Social Security Administration cases. It said that attorneys' fee awards were paid in thousands of cases, and it would be too burdensome to search these cases to find those that met our criteria." Id. at 1 n. 2.
[11]  Neither of the district courts in the Eleventh Circuit applying the averaging method discussed Shaw or the interest resulting from their method. See generally Adkinson, 256 F.Supp.2d 1297; Gates, 325 F.Supp.2d 1342.
[12]  Since 1996, the CPI has risen every year. In the 112 month-to-month periods beginning in January 1996, the CPI has decreased a total of only 17 times. United States Department of Labor, Bureau of Labor Statistics, Consumer Price Indexes, http://www.bls.gov/cpi/home.htm.
[13]  A 2001 government report states that "59 agencies ... reported awarding 4,567 contracts for legal services during fiscal year 1991." Letter from Paul L. Jones, Director, Justice Issues, U.S. General Accounting Office, to Rep. William D. Delahunt (D-Mass.) 1 (July 3, 2001) available at http://www.gao.gov/new.items/d01887r.pdf. In fiscal years 1999, 2000 and 2001, the Department of Justice ["DOJ"] and the Administrative Office of the United States Courts paid private attorneys the "maximum hourly fee of $125" to represent federal employees, including judicial officers, when the DOJ was unable to provide representation. Id. at 2. No mention is made of cost of living adjustments. Id.
[14]  Incidentally, the Eleventh Circuit did not object to a district court's decision not to allow for an inflationary adjustment to attorney fees accumulated over five years (1998-2003). "The district court stated that `[n]o marked increase in the cost of living has occurred since 1998.'" U.S. v. Aisenberg, 358 F.3d 1327, 1342 n. 23 (11th Cir.2004). The annual average CPI for 1998 was 163 and for 2003 was 184, an increase of 12.9%. While this does not drive the court's reasoning, and the court does not suggest that a 12.9 percent loss in the value of money is not "marked", it does undermine somewhat any argument that a plaintiff will suffer a hardship as the result of the method adopted by the court.
[15]  The court declines the government's invitation to specify that the filing fee award be paid from the Judgment Fund established in 31 U.S.C. § 1304 (2004). Section 2412 provides for an award of costs as defined by section 1920, which includes filing fees. §§ 2412(a); 1920(1). Defendant provided no legal authority to the court to guide the court in this matter (including a citation to the provision establishing the judgment fund), and research has revealed no authority for this court to instruct the co-equal branches of government how and where to appropriate funds for the payment of fees, expenses and costs. Materials reviewed for this opinion indicate that the executive branch has implemented an internal procedure for administering the Judgment Fund. See U.S. General Accounting Office, General Government Division, Private Attorneys: Selected Attorneys' Fee Awards Against Nine Federal Agencies in 1993 and 1994, supra note 10, at 24 ("The Department of Justice and other agencies notify us of awards owed under certain judgments and settlements that are to be paid by the Judgment Fund. We are responsible for certifying payments from the Judgment Fund.") (These duties are now carried out by the Government Accountability Office. See 31 U.S.C. §§ 701 et seq. (2004)). In the context of the case before the court, where the government obtains the money to pay the filing fee is simply not a matter subject to a judicial determination. The court offers no opinion on the applicability of the Judgment Fund or the propriety of the procedure for administering it. To aid the administration, however, the court distinguishes between the amount awarded for fees, expenses and costs.


U.S. Bank N.A. v Spence (2019 NY Slip Op 04294)

U.S. Bank N.A. v Spence

2019 NY Slip Op 04294

Decided on May 30, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 30, 2019

Sweeny, J.P., Renwick, Manzanet-Daniels, Tom, Oing, JJ.

9501 381054/07

[*1]U.S. Bank National Association, etc., Plaintiff-Appellant,
vLascell Spence also known as Lacell A. Spence, Defendant-Respondent, Federal National Mortgage Association, et al., Defendants.

Parker Ibrahim & Berg LLP, New York (Anthony Del Guercio of counsel), for appellant.

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about February 21, 2017, which granted the Estate of Novlett Spence and defendant Lascell Spence's motion to vacate a judgment of foreclosure and sale, entered June 15, 2016, vacated an "Order Vacating Order of Reference and Granting Second Order of Reference," entered June 10, 2015, stayed the sale of the subject property until further order of the court, and ordered that a substitution for decedent Novlett Spence be made a party to the action, unanimously affirmed, with costs.
In a mortgage foreclosure action, a decedent who executed a note and mortgage on real property is not a necessary party if the decedent made an absolute conveyance of all of her interest in the property and if the plaintiff does not seek a deficiency judgment against the decedent's estate (see Wells Fargo Bank, NA v Emma, 161 AD3d 1131, 1132 [2d Dept 2018]; Countrywide Home Loans, Inc. v Keys, 27 AD3d 247, 247 [1st Dept 2006], lv denied 7 NY3d 702 [2006]; HSBC Bank USA v Ungar Family Realty Corp., 111 AD3d 673, 673-674 [2d Dept 2013]; Waterfall Victoria Master Fund, Ltd v Dingilian, 92 AD3d 593, 594 [1st Dept 2012]).
Here, the judgment of foreclosure and sale contains language providing for a potential deficiency judgment against the decedent if the sale of the property did not cover the amount due to plaintiff. Accordingly, the motion to vacate was properly granted (see U.S. Bank N.A. v Esses, 132 AD3d 847, 848 [2d Dept 2015]; cf. Waterfall Victoria Master Fund at 594; Countrywide Home Loans at 247).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 30, 2019
CLERK


129 F.3d 639
327 U.S.App.D.C. 147
Michael G. NEW, Appellant,v.William S. COHEN, Secretary of Defense and Togo D. West,Jr., Secretary of the Army, Appellees.
No. 96-5158.
United States Court of Appeals,District of Columbia Circuit.
Argued Sept. 26, 1997.Decided Nov. 25, 1997.

[327 U.S.App.D.C. 148] Appeal from the United States District Court for the District of Columbia (No. 96cv00033).
Michael P. Farris, Washington, DC, argued the cause for appellant, with whom Herbert W. Titus, Virginia Beach, VA, was on the briefs.  Ronald D. Ray, Alexandria, VA, entered an appearance.
Michael J. Ryan, Assistant U.S. Attorney, Washington, DC, argued the cause for appellees, with whom Mary Lou Leary, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney, were on the brief.
Before:  EDWARDS, Chief Judge, GINSBURG and TATEL, Circuit Judges.
Opinion for the Court filed by Chief Judge HARRY T. EDWARDS.
HARRY T. EDWARDS, Chief Judge.
Michael G. New was serving in the United States Armed Forces as a Medical Specialist in August 1995 when he received notice that his unit was to be deployed to the Republic of Macedonia as part of the United Nations Peacekeeping Force ("U.N. Force").  Subsequently, Specialist New refused to follow orders to appear in formation wearing U.N. insignia and headgear.  His brigade commander charged him with failure to obey a direct, lawful order, a violation of Article 92 of the Uniform Code of Military Justice.  Shortly before his court-martial, New petitioned for a writ of habeas corpus in the United States District Court, contending that the orders in question (1) violated the Constitution, federal law, and his enlistment contract and oath, (2) impermissibly contemplated [327 U.S.App.D.C. 149]  his transformation into a U.N. soldier, and, therefore, (3) converted his status from soldier to civilian.  New claimed that he was entitled to an immediate honorable discharge.  See Petition for a Writ of Habeas Corpus ("Habeas Petition"), Joint Appendix ("J.A.") 2.  The District Court, in a decision issued after the court-martial trial but before military appeals were completed, refused to reach the merits of New's petition for habeas corpus, holding that the equitable principle of comity required the court to stay its hand pending the military proceedings.  See United States ex rel. New v. Perry, 919 F.Supp. 491, 500 (D.D.C.1996).
We affirm the District Court's dismissal of New's habeas petition on the ground that he has failed to exhaust his remedies in the pending court-martial action.  In so holding, we follow the basic principle of comity set forth in Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975), that service members subject to military discipline must exhaust their military remedies before seeking collateral review in federal court.  Because New has not completed the appeals of his courtmartial conviction within the military justice system, he currently is barred from pursuing an action on a habeas corpus petition in District Court.

I. BACKGROUND

1
Specialist New enlisted in the United States Army for an eight-year term, four years of which were to be served in the "Regular component of those forces," beginning on February 18, 1993.  New, 919 F.Supp. at 492.   After receiving basic training and Medical Specialist training, he was deployed for two months to Kuwait and then, in July 1995, to Germany.  Id. at 493.   On August 21, 1995, New was informed that his unit would be deployed in October of that year as part of the U.N. Force.  Id.  New learned that, as a member of that force, he would be required to wear a U.N. shoulder patch on his uniform and distinctive, blue U.N. headgear.

2
New objected to the particular uniform requirements as unlawful.  He informed his squad leader and platoon leader that he would not comply with those requirements unless they were shown to be justified by constitutional authority.  New's superiors responded by ordering him to rethink his position in light of the history and objectives of the U.N. Charter.  New also received counseling by three noncommissioned officers in the chain of command and a warning that he would be subject to discipline if he disobeyed the order to wear the U.N. insignia.  On September 19, 1995, New submitted a written statement of protest ("Statement") to his superior officers, in which he indicated a belief that the U.N. Charter was inconsistent with the United States Constitution.  In addition, he repeated his objection to the wearing of U.N. accoutrements, stating that he interpreted the wearing of a uniform as a sign of allegiance to the authority "so signified or which issues that uniform," and that, therefore, he could not wear the accoutrements because he was "not a citizen of the United Nations ... not a United Nations Fighting Person [and has] never taken an oath to the United Nations."   Statement, J.A. 147.  In the Statement, he also wrote that, "[i]n order to avoid controversy or to avoid placing the Army in a bad light," he had requested a transfer to another unit or, reluctantly as an alternative, an honorable discharge.  Id.  According to New, the Army had denied both of these requests.  Id.

3
On October 2, 1995, New, along with the rest of his battalion, attended an information briefing on the legal bases for the deployment of American troops as part of the U.N. Force in Macedonia.  At the briefing, and again at a company formation two days later, the soldiers who were to be deployed to Macedonia were ordered to appear on October 10, 1995, wearing the U.N. arm patches and headgear.  919 F.Supp. at 493.

4
New appeared in formation on October 10, 1995 wearing a uniform that did not display the ordered accoutrements.  He was subsequently charged with an Article 92 violation, and a trial by court-martial was set to follow.  On January 16, 1996, he moved in the District Court for an emergency stay of the court-martial and petitioned for a writ of habeas corpus.  The Court heard oral argument and denied the stay.  Memorandum Opinion and Order of January 16, 1996, J.A. [327 U.S.App.D.C. 150] 123-24.  Afterwards, New was convicted by a court-martial jury and sentenced to a bad conduct discharge.  J.A. 84-85.

5
In his petition for habeas corpus, New contended that he was "entitled to an immediate honorable discharge" on the theory that the United States illegally had attempted to transform him into a U.N. soldier.  Habeas Petition, J.A. 2. This attempted transformation was prohibited, according to New, for three reasons.  First, he claimed that the United States Constitution, federal statutes, and applicable regulations prohibited the acceptance by federal employees, including uniformed members of the Army, of "any present or emolument ... from a foreign government without the consent of Congress."  Id. at 6.   Second, New argued that the President of the United States was prohibited by the United States Constitution and sections 6 and 7 of the United Nations Participation Act of 1945 ("Participation Act"), as amended, 22 U.S.C. §§ 287d to d-1 (1994), from deploying United States troops as part of the U.N. Force in Macedonia unless he first obtained the consent of Congress, which he allegedly had not done.  Habeas Petition, J.A. 7.  Finally, New contended that the orders relating to his deployment and wearing of U.N. accoutrements conflicted with and breached his enlistment contract.  Id. at 8-9.   New asserted that the unlawful orders absolved him of his remaining obligation to serve in the Army;  changed his status such that he was a civilian, not subject to a court-martial;  and entitled him to an honorable discharge.  Id. at 2.

6
On March 28, 1996, in a published opinion, the District Court denied New's petition for habeas corpus.  See New, 919 F.Supp. at 500.   The trial court held that the equitable principle of comity prevented it from considering New's claims until all military appeals had run their course.  Id. Subsequently, on June 12, 1996, the court-martial convening authority approved New's bad conduct discharge.  J.A. 149;  Appellant's Br. at 6;  Appellee's Br. at 4.  New's conviction by court-martial and the resulting sentence are subject to review by the Army Court of Criminal Appeals.  See 919 F.Supp. at 494 (describing pending military proceedings).  If that appeal is unsuccessful, New may seek discretionary review in the Court of Appeals for the Armed Forces, which is composed of civilian judges.  Id.  New now appeals the District Court's denial of his petition for a writ of habeas corpus.

II. ANALYSIS
A. The Applicable Case Law
1. The Basic Principles of Comity

7
In Parisi v. Davidson, 405 U.S. 34, 92 S.Ct. 815, 31 L.Ed.2d 17 (1972), the Supreme Court outlined the "basic principles of comity that must prevail between civilian courts and the military judicial system."  Id. at 46, 92 S.Ct. at 822.   At the heart of these principles is the general rule that a federal court must await the final outcome of court-martial proceedings in the military justice system before entertaining an action by a service member who is the subject of the court-martial.  Although this rule often "is framed in terms of 'exhaustion,' it may more accurately be understood as based upon the appropriate demands of comity between two separate judicial systems."  Id. at 40, 92 S.Ct. at 819.

8
The Court in Parisi allowed the petitioner in that case--a service member seeking discharge as a conscientious objector--to pursue a habeas corpus petition in federal court even though court-martial charges were still pending against him.  The Court concluded that the demands of comity did not require dismissal of Parisi's habeas petition, because he had fully exhausted the administrative procedures that were in place for review of claims by persons seeking discharge as conscientious objectors.  Since the Court found that "[c]ourts martial are not convened to review and rectify administrative denials of conscientious objector claims or to release conscientious objectors from military service," id. at 42, 92 S.Ct. at 820, it followed that the petitioner was not required to await the disposition of a court-martial charge before seeking habeas relief in federal court.  However, the Court in Parisi made it clear that the decision, which merely "recognize[d] the historic respect in this Nation for valid conscientious objection to military service," id at 45, 92 S.Ct. at 822, was narrow and [327 U.S.App.D.C. 151] "should not be understood as impinging upon the basic principles of comity," id. at 46, 92 S.Ct. at 822.

9
Any doubt about the narrow reach of the judgment in Parisi was put to rest in Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975).  In Councilman, the Court reaffirmed the general rule that "federal courts normally will not entertain habeas petitions by military prisoners unless all available military remedies have been exhausted."   Id. at 758, 95 S.Ct. at 1313;  see also Noyd v. Bond, 395 U.S. 683, 693-98, 89 S.Ct. 1876, 1882-85, 23 L.Ed.2d 631 (1969);  Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146 (1950).  This rule was seen to be grounded in the same "considerations of comity," Councilman, 420 U.S. at 756, 95 S.Ct. at 1312-13, alluded to in Parisi.

10
Councilman indicates that there are two principal reasons why considerations of comity normally preclude a federal court from intervening in a pending court-martial proceeding.  First, the military justice system must remain free from undue interference, because "[t]he military is a 'specialized society separate from civilian society' with 'laws and traditions of its own developed during its long history.' "  Id. at 757, 95 S.Ct. at 1313 (quoting Parker v. Levy, 417 U.S. 733, 743, 94 S.Ct. 2547, 2555, 41 L.Ed.2d 439 (1974)).  Second, Congress sought to balance the competing interests in military preparedness and fairness to service members charged with military offenses, by "creat[ing] an integrated system of military courts and review procedures."  420 U.S. at 758, 95 S.Ct. at 1313.  "[I]t must be assumed that the military court system will vindicate servicemen's constitutional rights."  Id.  Thus, as suggested in Parisi, the doctrine of comity aids the military judiciary in its task of maintaining order and discipline in the armed services, eliminates needless friction between the federal civilian and military judicial systems, and gives due respect to the autonomous military judicial system created by Congress.  Parisi, 405 U.S. at 40, 92 S.Ct. at 819.

2. The Concept of Exhaustion

11
"The concept of 'exhaustion' in the context of the demands of comity," Parisi, 405 at 40 n. 6, 92 S.Ct. at 819 n. 6, is in part justified by the same "practical considerations" that justify exhaustion of administrative remedies generally, namely the "need to allow agencies to develop the facts, to apply the law in which they are peculiarly expert, and to correct their own errors."  Councilman, 420 U.S. at 756, 95 S.Ct. at 1312;  see also id. at 758, 95 S.Ct. at 1313.   In connection with court-martial proceedings, the exhaustion requirement is particularly important, because, given the reality that the military must "prepare for and perform its vital role" of fighting wars, it "must insist upon a respect for duty and a discipline without counterpart in civilian life."  Id. at 757, 95 S.Ct. at 1313.   Congress recognized these pressing needs when it created an integrated system of military courts and review procedures.  Id. at 758, 95 S.Ct. at 1313.

12
The Court in Councilman concluded that the same principles supporting the exhaustion requirement for habeas petitions by service members also governed the proper exercise of the federal courts' equitable jurisdiction over pending court-martial proceedings.  Absent truly compelling circumstances, service members are precluded from bringing suit in federal court seeking to enjoin court-martial proceedings on jurisdictional or other grounds, just as they are barred from seeking collateral review of their court-martials before they have exhausted their appeals within the military system.  Accordingly, the Court set forth the rule that "when a serviceman charged with crimes by military authorities can show no harm other than that attendant to resolution of his case in the military court system, the federal district courts must refrain from intervention, by way of injunction or otherwise."  Id.

13
The exhaustion requirement prevented the District Court in Councilman from hearing a suit for injunctive relief brought by an Army captain against whom court-martial charges had been preferred for drug-related activities.  The Army captain had claimed in his petition that the offenses charged were not "service connected" and hence were not within court-martial jurisdiction.  Id. at 741-42, 95 S.Ct. at 1304-05.   The Court held that [327 U.S.App.D.C. 152] this jurisdictional challenge, although not without support, first had to be fully considered by military authorities, and that the service member had to exhaust any other military remedies that were available to him before a federal court could exercise collateral review over the proceedings.  Id. at 759-61, 95 S.Ct. at 1313-15.

3. Exceptions to the Rule of Comity

14
As noted above, at the heart of the comity doctrine is the general rule that a federal court must await the final outcome of court-martial proceedings in the military justice system before entertaining an action by a service member who is the subject of the court-martial.  There are two principal exceptions to this rule.  One is noted in Parisi, where the Court held that, "[u]nder accepted principles of comity, the court should stay its hand only if the relief the petitioner seeks--discharge as a conscientious objector--would also be available to him with reasonable promptness and certainty through the machinery of the military judicial system in its processing of the court-martial charge."  405 U.S. at 41-42, 92 S.Ct. at 820.   It is clear from the Court's decision, however, that the Parisi exception--allowing a service member to pursue a collateral attack challenging a military action before the completion of court-martial proceedings--is limited to situations in which:  (1) a service member subject to military authority asserts a legal right against the military that has been clearly established by statute, regulation, or other applicable law;  (2) administrative procedures are in place to enforce that right;  and (3) the service member has fully exhausted these procedures and has been denied the relief attendant to the right asserted.

15
In claiming that he wrongly was denied conscientious objector status, the service member in Parisi asserted a right clearly recognized by military regulations.  See 405 U.S. at 38 n. 2, 92 S.Ct. at 818 n. 2 (citing Department of Defense Directive No. 1300.6 (May 10, 1968)).  Moreover, because the service member in Parisi had exhausted his administrative remedies for release from the military based on this asserted right, the district court had no good reason to stay its hand pending the court-martial proceedings.  The Supreme Court considered and rejected comity as a reason for denying the habeas petition, given that the relief sought by the service member--discharge as a conscientious objector--could not be obtained through the military judicial system.  Id. at 41-42, 92 S.Ct. at 819-20.   It is true, as the Court recognized in Parisi, that "the writ of habeas corpus has long been recognized as the appropriate remedy for servicemen who claim to be unlawfully retained in the armed forces."  Id. at 39, 92 S.Ct. at 818 (citations omitted).  But the Court in Parisi also made it clear that the decision in the case "should not be understood as impinging upon the basic principles of comity that must prevail between civilian courts and the military judicial system."  Id. at 46, 92 S.Ct. at 822.   Indeed, it is implicit in the Court's decision in Councilman that any attempt to extend the Parisi exception beyond the circumstances of that case would wreak havoc on military discipline.

16
The second exception to the exhaustion rule is quite simple:  a person need not exhaust remedies in a military tribunal if the military court has no jurisdiction over him.  In other words, the military has no authority to subject civilians to court-martial proceedings.  See, e.g., McElroy v. U.S. ex rel. Guagliardo, 361 U.S. 281, 80 S.Ct. 305, 4 L.Ed.2d 282 (1960);  Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957);  U.S. ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955).  In the cases embracing this exception, it has been undisputed that the persons subject to the court-martials either never had been, or no longer were, in the military.  The Court in Councilman held that those cases, in which " 'the complainants raised substantial arguments denying the right of the military to try them at all,' " 420 U.S. at 759, 95 S.Ct. at 1314 (quoting Noyd, 395 U.S. at 696 n. 8, 89 S.Ct. at 1884 n. 8) (emphasis added), were plainly distinguishable from the situation presented by a service member challenging the military's jurisdiction.  The service member in Councilman, the Court noted, "was on active duty when the charges against him were brought" and hence there was "no question that he [was] subject to military authority and in proper [327 U.S.App.D.C. 153] cases to disciplinary sanctions levied through the military justice system."  420 U.S. at 759, 95 S.Ct. at 1314.

17
B. Application of the Relevant Law to Specialist New's Case

18
With the foregoing legal principles in mind, we now turn to consideration of New's claims before this court.

1. Comity and the Rule of Exhaustion

19
Given the record in this case, we hold that the District Court was fully justified in dismissing New's habeas petition on grounds of comity for lack of exhaustion.  In other words, as the District Court correctly found, Councilman is dispositive of this case.  When New first petitioned for habeas corpus, claiming that the military did not have jurisdiction over him and that he was entitled to an honorable discharge, he already had been charged with failing to obey orders and his court-martial was imminent.  The appeal of his court-martial and the decision of the military tribunal are still pending.  Moreover, New cannot demonstrate "harm other than that attendant to the resolution of his case" within the military system.  420 U.S. at 758, 95 S.Ct. at 1313.   Accordingly, under well established law, the District Court properly found that it lacked authority to intervene in the pending military proceedings.

2. New's Jurisdictional Challenge

20
New claims that the Army no longer has jurisdiction over him because of the military's allegedly unlawful attempt to require him to serve as a part of a U.N. mission.  There appear to be two parts to New's claim on this point:  first, the alleged unlawful action by the military relieved him from having to exhaust court-martial proceedings before filing a habeas petition in federal court;  and, second, the Army's actions relieved him from all further commitments to the military and, thus, as a "civilian," he is no longer subject to court-martial.  New's positions are without merit.

21
In Councilman, the Supreme Court made clear that military courts are capable of, and indeed may have superior expertise in, considering challenges to their jurisdiction over disciplinary proceedings.  Id. at 760, 95 S.Ct. at 1314 (question of whether service member's alleged offense is "service related" and therefore within jurisdiction of military courts raises issues "as to which the expertise of military courts is singularly relevant");  see also Apple v. Greer, 554 F.2d 105, 109 (3d Cir.1977) ("[T]he claim that there is a lack of jurisdiction can be made to a military tribunal.").  Thus, New must argue to the military authorities reviewing his case that the orders in question were unlawful and absolved him of any remaining military service obligations.  For this court to hold otherwise would produce a rule allowing service members to circumvent the exhaustion requirement merely by contending, without reference to an applicable statute or regulation, that an action by the military "released" them from further service.  This result would encourage premature federal judicial intervention in the affairs of the military, a scenario that was expressly rejected by the Court in Councilman.

22
The exhaustion requirement aims to give a military tribunal a full opportunity to consider the multitudinous claims that might be brought by service members regarding the terms and conditions of their service.  Comity demands that we give due respect to the military tribunal to carry out its congressionally prescribed responsibilities.  If the orders resulting in New's court-martial were "unlawful," as he claims, that is a matter that can be addressed by the military tribunal in their consideration of the charges against him.

23
Furthermore, notwithstanding his claims to the contrary, New is still a member of the military and subject to military discipline.  His contention that the disputed orders effectively discharged him from the military and rendered him a civilian before the occurrence of any administrative or judicial proceeding, and, therefore, that his case is controlled by McElroy v. U.S. ex rel. Guagliardo, et al., is meritless.  In his Statement submitted on September 19, 1995, New indicated that he had requested an honorable discharge as a secondary alternative to transfer to another unit;  by requesting the [327 U.S.App.D.C. 154] transfer, he acknowledged that he still was a member of the military.  In any event, as New's counsel conceded at oral argument, there is no authority to support the suggestion that New became a civilian immediately upon issuance of the allegedly unlawful orders.  On the record at hand, it is clear that when New disobeyed his orders, he was still in the service, and he cannot now present a "substantial argument[ ]," Councilman, 420 U.S. at 759, 95 S.Ct. at 1313-14, that he is not subject to military discipline and court-martial.

24
3. New's Claim that he is Covered by the Parisi Exception

25
New advances the further argument that his situation resembles that of the service member in Parisi, and, therefore, he should be allowed to bring a habeas petition in federal district court notwithstanding the pending court-martial proceeding.  We reject this contention, for it is clear that New can find no solace in Parisi.

26
The service member in Parisi had initiated an application for discharge as a conscientious objector nine months after his induction into the Army as a draftee, but before he committed the allegedly wrongful act (refusing to board an airplane for Vietnam) that led to his court-martial.  405 U.S. at 35-36, 92 S.Ct. at 816-17.   While the appeal of his court-martial conviction was still pending, the Army made a final decision denying him conscientious objector status.  In concluding that the district court should hear the service member's petition even though the Army had not yet issued a final determination on his court-martial charges, the Supreme Court reasoned that the service member's petition for habeas corpus was based on the Army's refusal of his application for discharge as a conscientious objector--an application which "antedated and was independent of the military proceedings" related to his courtmartial.  Id. at 41, 92 S.Ct. at 820.   Hence, the "case [did] not concern a federal district court's direct intervention in a case arising in the military court system."  Id. (citations omitted).  The doctrine of comity was seen to have no application in Parisi because the military tribunal could not award the service member the desired relief--conscientious objector discharge--in conjunction with the court-martial proceedings.  Id. at 41-44, 92 S.Ct. at 819-21.

27
New argues that Parisi controls his case because his petition for habeas corpus constitutes a collateral attack on the Army's allegedly wrongful denial of his claim for discharge.  New says his claim was presented prior to his disobeying the orders to appear in formation wearing U.N. accoutrements.  According to New, he "initiated his request for reassignment or for an honorable discharge" six weeks before his court-martial, when he first objected to the deployment to Macedonia and wearing of U.N. accoutrements as unlawful.  Appellant's Br. at 13.  Moreover, he "sought further review from his superior officers up the chain of command" on September 19, 1995 by submitting the Statement.  Id. at 14.   The fact that he took no further action on his request for discharge was excusable, he contends, for the simple reason that, as noted by the District Court, there were no formal procedures for him to pursue.  919 F.Supp. at 497;  Appellant's Br. at 11-12.

28
New's reliance on Parisi is misplaced.  Assuming, arguendo, that the military tried to transform him into a U.N. soldier, or that it otherwise issued him illegal orders, New cannot show that he has a clearly established right to discharge from the military as a result of such actions.  In other words, there is no authority for the proposition that a service member who receives an illegal order is entitled to immediate discharge from the military.  So even if New's substantive claims had merit, this would not provide a basis for his honorable discharge from the military.

29
It is also noteworthy that New concedes that there are no administrative procedures within the military to enforce the rights that he asserts.  Appellant's Br. at 12.  Thus, this case is controlled by Councilman, which requires New first to present his arguments about the legality of his orders as a defense to the court-martial action.  Under Councilman, New's personal beliefs about his orders afford him no immediate recourse to relief in federal court.  When he disobeyed the orders [327 U.S.App.D.C. 155]  of his superiors, he faced discipline and court-martial, and he cannot now seek judicial intervention before seeking relief in the system of military justice.

30
In addition, New's contention, tied vaguely to the judgment in Parisi, that the lack of administrative procedures for his claim for honorable discharge entitles him to an immediate habeas hearing, is unavailing.  Upon receiving the orders which he thought to be illegal, New had two options.  He could have chosen to obey the orders and then sought judicial review of the military's policies.  Cf. Goldman v. Weinberger, 475 U.S. 503, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986) (suit to enjoin application of Air Force regulation that forbade officer from wearing yarmulke while on duty and in uniform).  Or he could follow the path that he took:  disobey the orders and challenge their validity in the subsequent disciplinary proceedings.  Having chosen the latter course of action, New might yet obtain vindication through court-martial proceedings, or he may seek collateral review in federal court following an adverse judgment by the highest military tribunal.  However, any option contemplating an exception to the exhaustion requirement is foreclosed by the doctrine of comity imposed by Parisi and Councilman.   The Court's emphasis on the need for duty and discipline in the armed forces makes clear that, absent a clearly defined right enforceable in a proceeding other than a court-martial--for example, an administrative proceeding to address a service member's conscientious objector status--the federal courts normally should not interfere with the day-to-day operations of the military services.

31
This rule makes sense for obvious reasons.  Any other standard would invite military personnel to challenge disfavored orders of superiors touching upon uniforms, working hours, training procedures, assignments, and a host of other matters.  Such an absurd result surely was not contemplated by Parisi.   That case was decided prior to Councilman and has been extremely limited in application.  See, e.g., Cole v. Spear, 747 F.2d 217, 220 (4th Cir.1984) (en banc) (applying Parisi and reversing district court's grant of discharge to conscientious objector;  fact that pending disciplinary action against objector currently prevented final administrative action on her application for discharge did not constitute "valid reason to excuse her from the necessity of exhaustion").  Indeed, New's counsel could cite to no case, other than Parisi, justifying the claim that New should be free to challenge disfavored orders by civil action instead of court-martial.

32
C. Other Remedial Options Available to Specialist New

33
During the course of argument, New's counsel suggested that, absent consideration of his habeas petition, New would have no reasonable avenues of relief.  We disagree.

34
After New disobeyed the disputed orders and was charged with violating Article 92 of the Uniform Code of Military Justice, he faced three potential outcomes within the military system, two of which are still possible.  First, the court-martial jury could have convicted him of failing to obey a direct, lawful order and incarcerated him in military prison, and the military authorities reviewing his case could have sustained this sentence.  Obviously, in this scenario--which is now foreclosed by the fact that New was convicted and sentenced only to a bad conduct discharge as opposed to confinement--New could bring a habeas petition in federal district court challenging his conviction.  See Burns v. Wilson, 346 U.S. 137, 139-42, 73 S.Ct. 1045, 1047-49, 97 L.Ed. 1508 (1953);  Curry v. Secretary of the Army, 595 F.2d 873, 875 & n. 8 (D.C.Cir.1979);  cf. Councilman, 420 U.S. at 747-48, 95 S.Ct. at 1307-08.

35
Second, New could have, and still might, prevail in his defense against the Article 92 charge.  This outcome likely would render any claims in a habeas petition moot.

36
Finally, New still faces the possibility that the court-martial conviction and subsequent review by military tribunals and officials will result in an other than honorable discharge;  this outcome, no doubt, would not vindicate all of the interests currently asserted by New.  In these circumstances, New again has some options.  If he suffers monetary losses as a result of his discharge, he may be able to collaterally attack the underlying conviction in the United States Court of Federal [327 U.S.App.D.C. 156] Claims.  See Councilman, 420 U.S. at 748, 95 S.Ct. at 1308 (citing Runkle v. United States, 122 U.S. 543, 22 Ct.Cl. 487, 7 S.Ct. 1141, 30 L.Ed. 1167 (1887));  id. at 751, 95 S.Ct. at 1309-10;   Matias v. United States, 923 F.2d 821, 822-25 (Fed.Cir.1990) (exercising jurisdiction over former service member's back pay claim challenging court-martial conviction);  Bowling v. United States, 713 F.2d 1558, 1561 (Fed.Cir.1983).

37
New also might be able to bring an action in district court seeking nullification of the conviction underlying his bad conduct discharge.  See Hatheway v. Secretary of the Army, 641 F.2d 1376, 1379 (9th Cir.1981) ("The district court had equitable jurisdiction under 28 U.S.C. § 1331 and mandamus jurisdiction under § 1361.");  Kauffman v. Secretary of the Air Force, 415 F.2d 991, 994 (D.C.Cir.1969) (action to have court-martial conviction and sentence declared void);  Williamson v. Secretary of the Navy, 395 F.Supp. 146, 147 (D.D.C.1975) (exercising jurisdiction to review court-martial under 28 U.S.C. § 1331, citing Kauffman );  2 FRANCIS A. GILLIGAN & FREDRIC I. LEDERER, COURT-MARTIAL PROCEDURE § 26-11.00, at 181 (1991).

38
In delineating these scenarios, however, we do not mean to suggest that New's claims have merit or that a federal court would even reach the merits of his arguments.  New argues on appeal, as he did in substantial part before the District Court, that the orders relating to his deployment and wearing of U.N. insignia were illegal on the grounds that:  (1) the wearing of the insignia violates the United States Constitution's prohibition on office holders from accepting titles or offices from foreign states without Congressional consent, see U.S. CONST., art.  I, § 9, cl. 8, and also violates federal law and military dress regulations;  (2) the President did not have power under sections 6 and 7 of the Participation Act, 22 U.S.C. §§ 287d to d-1, to deploy U.S. soldiers as part of the U.N. Force without Congressional consent;  and (3) the contested orders breached New's enlistment contract and deprived him of basic rights as a soldier and a citizen.

39
It is difficult to see how any of these allegations, even if shown to be true, would support New's contention that he is entitled to an honorable discharge from the military.  New points to no legal authority supporting the proposition that unlawful orders potentially can transform a service member's "status" to that of a civilian.  Indeed, as the District Court pointed out, case law suggests that military enlistment is a special sort of contract "which changes the status, and where that is changed, no breach of the contract destroys the new status or relieves from the obligations which its existence imposes."  United States v. Grimley, 137 U.S. 147, 151, 11 S.Ct. 54, 55, 34 L.Ed. 636 (1890);  see Bell v. United States, 366 U.S. 393, 402, 81 S.Ct. 1230, 1235, 6 L.Ed.2d 365 (1961);  New, 919 F.Supp. at 498.

40
In any event, questions related to the legality of the deployment of troops to Macedonia and the orders to wear U.N. accoutrements need not be reached in this appeal, because New has failed to exhaust his remedies for relief in the pending court-martial action.

III. CONCLUSION

41
For the reasons given above, we affirm the judgment of the District Court dismissing New's petition for habeas corpus on grounds of comity.