CAAF decided the Air Force case of United States v. Arness, 74 M.J. 441, No. 14-8014/AF (CAAFlog case page) (link to slip op.), on Wednesday, August 19, 2015. Holding that the Air Force CCA did not have jurisdiction to consider the appellant’s case under Article 69, CAAF dismisses the writ-appeal of the CCA’s denial of the appellant’s petition for extraordinary relief.

Just Stucky writes for the court, joined by all but Judge Baker who writes separately but concurs in the result.

The appellant is an Air Force Lieutenant Colonel who was convicted of various offenses at a general court-martial and sentenced to confinement for 11 months and a reprimand. That sentence is below the jurisdictional threshold for automatic review by the Air Force CCA under Article 66(b), and so instead the court-martial was reviewed by the Judge Advocate General (JAG) of the Air Force pursuant to Article 69. Under that provision, the JAG reviews any general court-martial that does not trigger Article 66 jurisdiction, and the JAG can take corrective action or send the case to the CCA for further review.

In Arness the JAG found no error and affirmed the findings and sentence, and then the JAG denied the appellant’s request for reconsideration. The then appellant filed a writ petition with the AFCCA, asserting 13 errors and seeking extraordinary relief. The CCA found that it had jurisdiction to consider the petition, but denied relief. The appellant (appearing pro se) then sought CAAF review of the CCA’s denial of relief, but CAAF specified a different issue for its consideration:

Whether the United States Air Force Court of Criminal Appeals had jurisdiction to entertain a writ of error coram nobis where there was no statutory jurisdiction under Article 66(b)(1), UCMJ, on the underlying conviction and the case was not referred to the Court of Criminal Appeals by the Judge Advocate General under Article 69(d)(1), UCMJ, and where the Court of Criminal Appeals relied on potential jurisdiction under Article 69(d), UCMJ, as its basis for entertaining the writ (citing Dew v. United States, 48 M.J. 639 (Army Ct. Crim. App. 1998)).

In yesterday’s decision CAAF answers this question with a resounding no. “As the Judge Advocate General did not refer Appellant’s case to the CCA — a statutory prerequisite for its review — the CCA was without jurisdiction to review it.” Slip op. at 7.

Noting that the CCA’s consideration of the appellant’s case was based upon the All Writs Act – which does not grant jurisdiction but rather allows a court to act in furtherance of existing jurisdiction – Judge Stucky’s analysis is straightforward:

Consideration of extraordinary relief is not “in aid” of the CCA’s jurisdiction, because the CCA had none in the first place. The statute does not authorize the CCA to review every case which is subject to action by the Judge Advocate General pursuant to Article 69. Instead, it grants the CCA authority to review any action taken by the Judge Advocate General “under this section in such case” — a case that the Judge Advocate General elects to refer to the CCA. Article 69(d)(2), UCMJ (emphasis added). As the Judge Advocate General did not refer Appellant’s case to the CCA — a statutory prerequisite for its review — the CCA was without jurisdiction to review it. As this Court’s jurisdiction is predicated on the jurisdiction of the CCA, we are without jurisdiction to hear the writ-appeal.

Slip op. at 7. Judge Stucky also notes that the CCA’s contrary conclusion has some basis in precedent, and so insofar as that precedent conflicts with the court’s decision in Arness it is overruled.

CAAF therefore draws a bright line: A CCA’s jurisdiction under Article 69(d) is conditional upon referral of the case by a JAG.

In a concurring opinion Judge Baker identifies a second possibility of review similar to that claimed by the CCA in this case. He writes that Article 69(d):

presents the chapeau — “[a] CCA may review” — and subsections (1) and (2) present the two distinct circumstances in which a CCA would have jurisdiction under Article 69, UCMJ. First, the CCA may review any case subject to action by the TJAG that the TJAG refers to the CCA, per subsection (d)(1). Under such circumstances, although a case is “subject to action by the TJAG,” the TJAG may decide not to review the case and send it on to the CCA instead. Second, the CCA may review any case where the TJAG has taken “any action” under this section. This is a CCA review of what the TJAG has actually done, to ensure that it comports with the law. Under this reading, the CCA would not have jurisdiction in those cases where: (a) the accused waives or withdraws his right to appellate review, or (b) the TJAG reviews the case and takes no action, i.e., affirms the case “as is.”

Con. op. at 7-8. Judge Baker’s reading would provide the CCAs with the authority to review corrective actions taken by a JAG under Article 69 (such as reversals of findings due to legal error) but it would not allow a CCA to review a JAG’s denial of relief. This would effectively create a Government-only appeal of the JAG’s actions – a strange result.

Notably, Judge Baker does join the majority’s analysis, writing that “the presumptive view that CCA review is not triggered unless and until the TJAG refers an Article 69, UCMJ, case to the CCA is — at this stage in UCMJ practice — the better view.” Con. op. at 9-10.

However, Judge Baker ends his concurring opinion with some strong language:

Whatever was intended with Article 69, UCMJ, the fact is TJAGs do not as a matter of practice refer cases to the CCA or to this Court pursuant to Article 69, UCMJ, review. That means that a majority of cases arising under the UCMJ are sub-jurisdictional. That also means that a majority of courts-martial are not subject to appellate judicial review or civilian judicial review.

TJAGs are not independent or impartial judicial entities. TJAGs represent the government and, while in theory they are to exercise independent judgment when it comes to Article 69, UCMJ, review — and I do not doubt the sincerity with which they do so — the fact is, they are closely aligned with the government. TJAG review, as a matter of appearance, is neither independent of government interest nor impartial.

Con. op. at 11-12 (emphasis added). I’ve written in the past about the appearance of bias in actions taken by the Judge Advocate General of the Air Force. Judge Baker appears to conclude that such appearances are – at a minimum – to be expected.

Ultimately, CAAF’s decision closes a door on appellants in cases that do not trigger Article 66 review. Yet as I discussed in my argument preview, this case has the added factual twist that the appellant did not raise allegations of legal error to the JAG before the initial Article 69 review (the brief to CAAF claimed that the appellant was unaware of this review – something I considered unlikely considering the R.C.M. 1010 requirement that he receive an appellate rights advisory before the adjournment of the court-martial).

As a result, I believe that CAAF’s decision in this case underscores the importance of an appellant diligently pursuing all avenues for relief. While there is no guarantee that the JAG would have referred this case to the CCA had the appellant raised allegations of error earlier, such a referral would certainly have been more likely.

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Blog post: Two interesting grants and a really interesting order from CAAF
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

7 Responses to “Opinion Analysis: CAAF finds that a CCA’s jurisdiction under Article 69(d) is conditional upon JAG referral, in United States v. Arness, No. 14-8014/AF”

  1. stewie says:

    This is another of those “not quite like the civilians” areas folks who think changes are fine since they make us “look more like the civilians” should keep in mind.

  2. John O'Connor says:

    Well, I hope that this signals the death knell for the preposterous handful of cases in which CCAs have claimed All Writs Act jurisdiction over ongoing summary court-martial proceedings on the theory that the JAG theoretically has the power to certify those cases for CCA review after they are tried.  That’s on the short list of the worst line of cases in military appellate history (right up there with the expansive jurisdiction asserted in Clinton v. Goldsmith).

  3. Zachary D Spilman says:

    Well, John O’Connor, I think Arness is distinguishable on the basis that the CCA claimed jurisdiction after the JAG acted (and didn’t refer).

    Had the CCA acted before the JAG, and based its jurisdiction on the potential of referral, then I don’t think that would be any different than CAAF’s extraordinary relief actions in any number of interlocutory cases.

  4. John O'Connor says:

    I see a fundamental difference between (1) cases that can impose a sentence meeting the Article 66 threshold but which might not reach the CCA because of actions at trial by the members or the court (acquittal or a subjurisdictional sentence), and (2) courts-martial that cannot adjudge a sentence that triggers Article 66 review, where CCA involvement is entirely dependent on the clearly unreviewable (and rarely exercised) executive decision whether to certify over to the CCA under Article 69.  

  5. Zachary D Spilman says:

    That’s a totally fair point, though one that will have to wait for a future case.

  6. Dew_Process says:

    “Back in the day,” (at least in the AF), AF DC were expected to file Art. 38(c), “Briefs” in all “sub-jurisdictional” cases that would accompany a RoT for an Art. 69, TJAG, review.  That in theory at least, would preserve meritorious issues. That process, like the dinosaur, has pretty much gone extinct from what I can ascertain, although I can’t speak for the other Services defense practices. And perhaps more importantly at the time, some relief was had in a good number of cases and the TJAG Art. 69, branch, published their decisions.  A colleague of mine in the then Pacific Circuit, after losing a Motion to Dismiss for Failure to State an Offense at trial, had the conviction reversed and dismissed on that ground by TJAG.
    Arness is an important case for practitioners, regardless of which side of the aisle one sits on.  Maybe (hopefully) the “lessons learned” from the defense side will be a revival of Art. 38(c), practice.  But, unfortunately in today’s climate, the TJAGs have just been told that if they do nothing in such cases, they and the conviction are virtually guaranteed to be insulated from attack.  It would have [and for the CAAF staff reading this] been beneficial imho for CAAF to have “invited” amicus curiae participation from groups such as NIMJ, the JAA, etc., on this issue because, in one sense, the Court’s decision ignores the Legislative history and goals Congress had in mind in enacting such an appellate procedure.
    At the time [1949], there were no CCA’s or CAAF – an aggrieved accused could seek review via the TJAG or if confined, habeas corpus.  Congress intended a robust appellate system for all courts-martial convictions albeit by different procedures.  Arness pretty much slams the door on meaningful TJAG relief unless something is so egregious as to shock his/her conscience.  That was not what Congress intended, but as another poster noted, “is another of those ‘not quite like the civilians’areas. . . .” where a convicted military member is treated as a second-class citizen.
    Indeed, this is another instance where an accused facing trial by a Military Conviction, has greater “rights” than a U.S. servicemember, as the MCA 2009, at 10 U.S.C. 950(c), states:

    (a) AUTOMATIC REFERRAL FOR APPELLATE REVIEW.— Except as provided under subsection (b) [waiver], in each case in which the final decision of a military commission (as approved by the convening authority) includes a finding of guilty, the convening authority shall refer the case to the Court of Military Commission Review. [Emphasis added].

    While such is clearly consistent with the UCMJ’s Legislative history, the reality in light of Arness is that Private Snuffy is SOL if he’s unfortunate enough to get a sub-jurisdictional sentence if there are meritorious appellate issues, while Abdul the Assassin at GTMO, if convicted will have a full panoply of appellate rights before an Article I, court.
    Daily rant concluded.

  7. McPhail Lives Yet! says:

    In the majority opinion, has Judge Stuckey left a tiny bit of room remaining for CCA All Writs Act review of a very narrow sort of issues in “subjurisdictional” cases?  Specifically, the majority decision includes this line: “McPhail is distinguishable from the present case in that it involved a fundamental problem of jurisdiction not present here.”
    Are “fundamental problems of jurisdiction” still reviewable by the CCAs under the All Writs Act?  Are other “fundamental problems” other than jurisdiction also reviewable?  Perhaps the holding in Arness is nothing more than a finding that the All Writs Act can only be invoked to deal with fundamental questions of law… Not the sort of grievances Arness asserted – namely that his application for additional Art 69 review by TJAG was rejected as untimely.  It seems to me that’s not revolutionary – extraordinary writs have always been limited to, well, extraordinary issues raising questions of fundamental justice.  
    It it could be that Arness is merely an articulation of the standard for granting review of an extraordinary writ: Does the claim establish a prima facile case for the sort of error which is a “fundamental problem?”  Nothing substantively new there.