Here in the National Capital Region, our weather continues to be influenced by the El Nino effect. Last month, I asked whether the CCAs’ behavior would be influenced by a Moreno effect. See Moreno effect?,” CAAFlog, 2 Dec 2006. Would the CCAs issue fewer published opinions in an effort to pump out cases more quickly to avoid CAAF’s wrath?

We have since seen that NMCCA doesn’t seem to care about CAAF’s wrath. SeeNew published Navy-Marine Corps case: the Battle of New Orleans part deux,” CAAFlog, 31 Dec 2007; “Redeux,” CAAFlog, 5 Jan 2007.

Let’s go back to the numbers and see what they tell us about the first three months of what will be the first complete fiscal year under Moreno. Looking at the last five years, the CCAs have collectively issued fewer published opinions this year than during the comparable period in the previous years, though not by much. (For purposes of calculating the numbers, I excluded United States v. Orzechowski, NMCCA No. 200300711, 2006 CCA LEXIS 307 (N-M. Ct. Crim. App. Nov. 15, 2006), a decision that NMCCA issued on 21 September 2006 and then ordered published on 15 November 2006. See generallyNMCCA publishes previous order granting extraordinary relief,” CAAFlog, 6 Dec 2006. Since the heavy lifting was done during FY 06, I will treat it as a September 2006 opinion rather than a November 2006 opinion.)

Here are the numbers of published opinions issued by all of the CCAs combined during October, November, and December over the last five years:

FY 07: 12
FY 06: 18
FY 05: 13
FY 04: 14
FY 03: 19

It may be appropriate to throw out CGCCA’s numbers, since that court is so atypical. With its microscopic docket, it is unlikely to feel a Moreno effect because it simply has no backlog. And it also publishes a disproportionate share of its opinions compared to the other courts — probably because it has more time to work on each opinion, which is consistent with the Moreno effect hypothesis. But if we throw out the CGCCA numbers, the overall pattern changes very little:

FY 07: 10
FY 06: 13
FY 05: 11
FY 04: 11
FY 03: 16

Most striking is ACCA’s behavior. In FY 07 (post-Moreno), NMCCA issued more published opinions in October through December (4) than it did in FY 04 (pre-Moreno) (2). AFCCA issued more this fiscal year (5) than in any of the previous four years (4, 3, 3, 2). CGCCA issued the same number this fiscal year (2) as in FY 05.

Now look at ACCA: 1 published case during FY 07, compared to 3, 3, 6, and 5 for the comparable periods during the previous four fiscal years.

Let’s compare the FY 07 output of each CCA with its AVERAGE output over the comparable period during the previous four fiscal years:

————FY 07 ——FY 03-06 Oct-Dec average——- Difference
AFCCA: 5 ———–3———————————- +2
ACCA: —-1 ———–4.25 ——————————--3.25
NMCCA: 4 ———–5.5 ——————————–-1.25
CGCCA:2 ———–3.25 ——————————--1.25

[Blogger doesn’t seem to do well with charts — or I haven’t yet figured out how to make blogger show a chart correctly. I hope you can figure out what I’m trying to say here.]

Obviously if there is a Moreno effect, it is concentrated at the Army Court. Of course, we can’t draw any firm conclusions when dealing with numbers this small and periods of time this short. Maybe for some reason ACCA has been stockpiling to-be-published opinions and will issue a slew of them this month. CAAFlog will continue to follow these trends to see if any definitive pattern emerges over time.

–Dwight Sullivan

One Response to “A Moreno effect? (part deux)”

  1. Phil Cave says:

    And of the non-published opinions, were there some that were worthy of publication — that fit the generally accepted principles of why an appellate court publishes an opinion? For example, the AFCCA wrote an unpublished opinion a short while ago addressing the most excellent case of Randolph v. Georgia (a particular favorite of mine because it puts third-party consent vice first party denial of consent issues into a proper perspective). AFCCA did not publish, even though it seemed to be the first Service court to comment. Looking at the opinion they could have been the first to adopt Randolph into military practice. But, there appeared to be prudential reasons not to publish, and those reasons are unrelated to Moreno. So, can there ever be a meaningful connection between published/unpublished/ Moreno? On a different note for “unpublished” opinions and their effect would be the use of unpublished opinions. I’m increasingly seeing Trial Counsel in one Service (not mine, and they don’t have more boats than the Navy or more airplanes than the Air Force), arguing unpublished opinions as dispositive.