Sacramentum has posted a fascinating piece on a new extraordinary writ that popped up on CAAF’s 18 July daily journal, which was posted today.

I’m sure you will recall the recent controversy about the Air Force judge advocate colonel (and BGen select!) who had been disbarred not once, but twice. See, for example, our post, “I’m not just a JAG, I’m also a client.” As Sacramentum discusses in detail here, Colonel Murphy is being court-martialed. Now his counsel are seeking extraordinary relief against the CA and the Article 32 IO.

Does our Air Force reader know who the defense counsel is/are and what the writ is about? Fitz? Fitz?

There is a conversation going on over in the Sacrementorium about whether CAAF has jurisdiction to consider such a writ. That directly implicates a recent lecture I gave — after which I’ve been vacillating about whether to take the time to turn it into an article. This now gives me a push in that direction. (Plus, I’m changing jobs soon and will be unemployed for six days in between. At least that would give me something to do.)

There seems to be little question that CAAF believes it has extraordinary relief jurisdiction over Article 32 investigations. Consider, for example, United States v. Morton, 65 M.J. 2 (C.A.A.F. 2007), where CAAF granted a motion to stay proceedings in an Article 32 investigation. While CAAF ultimately denied the request for extraordinary relief, United States v. Morton, __ M.J. ___, Misc. No. 07-8009/CG (C.A.A.F. Apr. 4, 2007), merely ordering the Article 32 investigation to stop is an exercise of extraordinary relief jurisdiction. In one prominent pre-Clinton v. Goldsmith case, CAAF ordered an Article 32 investigation open to the public and press. ABC v. Powell, 47 M.J. 363 (C.A.A.F. 1997).

CAAF is almost certainly correct in believing that it has jurisdiction in such cases. The concept that appellate courts have All Writs Act power over cases falling within their potential appellate jurisdiction is well established. See, e.g., FTC v. Dean Foods Co., 384 U.S. 597, 603 (1966) (holding that the All Writs Act permits an appellate court to grant extraordinary relief where “an appeal is not then pending but may be later perfected”). This concept seems to apply fully to military appellate courts. Consider what the Supremes said in Noyd v. Bond: “[W]e do not believe that there can be any doubt as to the power of the Court of Military Appeals to issue an emergency writ of habeas corpus in cases, like the present one, which may ultimately be reviewed by that court. A different question would, of course, arise in a case which the Court of Military Appeals is not authorized to review under the governing statutes.” 395 U.S. 683, 695 n.7 (1969). The Murphy 32 certainly seems to qualify as a case that “may ultimately be reviewed by” CAAF. Ergo All Writs Act power is available.

Scramentum points unfavorably to Unger v. Ziemniak, 27 M.J. 349 (C.M.A. 1989), where CMA said it was “convinced that we have jurisdiction to grant extraordinary relief” in the case, even though under the UCMJ at the time the case never could have reached CMA on appeal. Id. at 355. But Gene Fidell’s invaluable CAAF Rules Guide makes an important point. (It seems to me that Gene needs a CAAFlog nickname. Eugene Fidell the Sagacious (EFTS)?) If Unger v. Ziemniak were to arise today, it would fall within CAAF’ potential appellate jurisdiction. CMA issued Unger v. Ziemniak on 27 January 1989. Ten months and a day later, the National Defense Authorization Act for Fiscal Years 1990 and 1991 was enacted. Pub. L. No. 101-189, 103 Stat. 1576 (1989). Section 1302(a) of that Act greatly expanded CMA’s potential appellate jurisdiction. As EFTS explains:

The Court’s jurisdiction over “nonreviewable” (subjurisdictional) courts-martial (i.e., general and special courts-martial in which there is no punitive discharge and summary courts-martial, none of which are subject to automatic review by a Court of Criminal Appeals) changed dramatically in 1989. . . . Section 1302 . . . provided that non-bad-conduct discharge special courts-martial and summary courts-martial can also be referred to a Court of Criminal Appeals. . . . Such cases are therefore now also potentially subject to review by [CAAF] either by certificate for review or on petition by the accused.

Eugene R. Fidell, Guide to the Rules of Practice and Procedure for the United States Court of Appeals for the Armed Forces 20 (12th ed. 2006).

So it appears that not only is an Article 32 proceeding within CAAF’s potential appellate jurisdiction, so is a summary court-martial. But despite the breadth of its jurisdiction, CAAF exercises it extremely rarely, as we reviewed here. Indeed, in my view (and, much more importantly, Judge Erdmann’s view), Morton represents a case where CAAF exercised its extraordinary writ jurisdiction over Article 32s too narrowly.

8 Responses to “Murphy’s law”

  1. John O'Connor says:

    Maybe CAAF should start directing troop movements on trhe battlefield. If there is a screwup, the commander could potentially get court-martialed for dereliction, which potentially could fall within CAAF’s jurisdiction if it’s referred to an Article 32, and then to a court-martial, and then (if no dismissal is awarded), the JAG refers the case to the CCA. I can only hope that the Clinton v. Goldsmith slap-down will rein in the CAAF, but I sort of doubt it.

  2. Christopher Mathews says:

    Wow. Someone files a petition with CAAF, CAAF cites the filing — as it does with all filings — on its website — and boom! Instant vituperation.

    My understanding is the Colonel Murphy tried his luck at the CCA, didn’t get the relief he wanted, and has now moved on. I’d wait to see what CAAF actually does with his petition before castigating them for it.

  3. John O'Connor says:

    Oh, I’m not castigating CAAF, or even reacting to the fract that it properly posted a filing it received in the daily journal. I’m reacting to CAAFlog’s premise that CAAF has writ jurisdiction over SCMs and SpCMs that don’t meet the Article 66 punishment threshold (such as an officer court-martial at SpCM) based on the possibility that a JAG might refer the case to the CCA.

    I will say that CAAF has (in my view) had a historically broad view of its powers, though reined in by Clinton v. Goldsmith somewhat.

  4. Sacramentum says:

    If Colonel Murphy tried the CCA, what relief was he asking for?

    If the CCA rendered a decision, wouldn’t you expect it to appear on the AFCCA website? They have been posting extraordinary writs in the past.

  5. Christopher Mathews says:

    John, point taken. Let’s see what they actually do in this case, though.

    Sacramentum, I didn’t see Murphy’s petition, so I can’t specifically say what it sought.

    As for the AFCCA website, two points: one, not every order from the court winds up there. There are many motions, even some heard on oral argument, that don’t get posted, and I can recall at least one petition for extraordinary relief that wasn’t posted, either. Two, the website’s not updated daily, so if this particular decision does get posted, it may not be available for a while yet.

  6. Sacramentum says:

    JOC’s concerns about CAAF and the exercise of All Writs Act jurisdiction are well-founded.

    Several years ago, some old JAGs told me about the strange case of cadets at the USMA at West Point who were administratively dismissed or were going to be dismissed, I think for cheating, but I no longer remember. The CMA docketed the case. Check out the following entries from the CMA’s Daily Journal.

    No. 76-64. In Re Cadet D’Arcangelo and all cadets of the United States Military Academy, known and unknown, who are similarly situated.

    In the foregoing cases, petitioners have complained of procedures being used at the U. S. Military Academy for alleged Honor Code violations. It is ordered that: the Judge Advocate General of the Army appoint appellate government counsel to represent the respondents and appoint appellate defense counsel to assist petitioners’ counsel in the above-entitled actions; the petitioners and respondents file briefs on the following specified issues on or before the 12th day of August 1976:

    I. Whether, except by sentence of court-martial, a U. S. Military Academy cadet is subject to dismissal from the academy for violation of the cadet honor code.’

    II. Whether dismissal of a cadet from the U. S. Military Academy is a criminal sanction. See Articles 4 and 66(b), Uniform Code of Military Justice. Compare10 U.S.C. 4352(b) with10 U.S.C. 4351(a).’

    III. Assuming dismissal is a criminal sanction, whether the government is barred from imposing dismissal upon a cadet of the U. S. Military Academy, absent enabling legislation, in other than formal judicial proceedings under the Uniform Code of Military Justice.’

    ‘IV. Assuming dismissal administratively from the U. S. Military Academy is precluded, whether this Court has jurisdiction to halt proceedings which do not satisfy Uniform Code of Military Justice standards for court-martial.’; and the petitioners and respondents be prepared to orally argue the above-specified issues at 2:00 p. m., the 16th day of August 1976.

    5 M.J. 1111 (Jul. 30, 1976). There were several other cases concerning cadets at the USMA docketed the same day that may have been similar, but it is not clear.

    A few days later, the Daily Journal contained the following entry:

    No. 76-64. In Re Cadet D’Arcangelo and all cadets of the United States Military Academy, known and unknown, who are similarly situated. Motion for leave to file brief on behalf of the Department of the Navy as amicus curiae is granted. Motion to file special appearance on behalf of the U.S.C.G. is granted.

    5 M.J. 1120 (Aug. 17, 1976).

    I can’t find any other reference to this case. Perhaps the court made it go away quietly without mention in the Daily Journal, or perhaps I just couldn’t find it. Nevertheless, I think it supports JOC’s theory. Only the CMA could conclude that being administratively dismissed from a military service academy could somehow be confused with being dismissed from the military service as a result of a court-martial sentence.

  7. Gene Fidell says:

    I’ll pass on the nickname, but let me mention that I plan to have the 13th edition of the CAAF Rules Guide ready in a few months, so anyone with suggestions or corrections should email them to me. We still have a few copies of the 12th edition on hand. Let me know if you need one.

  8. Christopher Mathews says:

    CAAF denied Murphy’s petition on 30 July 07: see CAAF Daily Journal – July 2007.