CAAF decided the certified Marine Corps case of Howell v. United States, 75 M.J. 386, Nos. 16-0289/MC & 16-0367/MC (CAAFlog case page) (link to slip op.) on Tuesday, July 19, 2016. Unanimously affirming that a CCA has jurisdiction to consider a Government petition for extraordinary relief under the All Writs Act, CAAF splits 3-2 to find that the military judge erred in finding that the Government violated the Article 13 prohibition against pretrial punishment in connection with a pay dispute. CAAF remands the case back to the NMCCA for further consideration of the Government’s request for a writ of prohibition to prevent application of the military judge’s award of 343 days of confinement credit.

Judge Sparks writes for the court (in his first opinion), joined by Senior Judge Lamberth of the United States District Court for the District of Columbia (sitting by designation). Judge Stucky writes separately, concurring in the result. Judge Ohlson dissents from the result, joined by Chief Judge Erdmann, both of whom would find that Article 13 was violated.

CAAF reviewed four issues certified by the Judge Advocate General of the Navy; one certified at the request of the Defense and three certified at the request of the Government:

Defense issue:
I. Whether the Government may invoke Article 66, UCMJ, as the jurisdictional basis for an extraordinary writ pursuant to the All Writs Act when the issue is not included as a basis for Government appeal under Article 62, UCMJ?

Government issues:
II. Whether the military judge, in finding an Article 13, UCMJ, violation, exceeded his authority by rejecting applicable holdings of the U.S. Court of Appeals for the Federal Circuit and the Court of Federal Claims, in order to conclude that appellee was entitled to pay at the A-6 rate pending his rehearing?

III. Whether the lower court erred by concluding that the setting aside of appellee’s findings and sentence rendered his reduction to pay grade E-1 prospectively unexecuted pending rehearing?

IV. If a member’s original sentence includes an executed reduction to pay grade E-1 and the sentence is subsequently set aside, does the action of paying that member at the E-1 rate pending rehearing constitute illegal pretrial punishment in the absence of any punitive intent?

This case was included in our #4 Military Justice Story of 2014, as the appearance of unlawful command influence led to the reversal of Staff Sergeant Howell’s conviction of sexual assault. A rehearing was authorized. Howell was restored to his rank of E-6 and to full duty pending that rehearing, however he was only paid at the E-1 rate (based on the Government’s interpretation of the applicable military pay statutes and Article 75(a) which addresses restoration after a court-martial is set aside).

Howell complained and the military judge agreed that he was entitled to be paid as an E-6, finding that the Government’s actions constituted illegal pretrial punishment in violation of Article 13. As a remedy the military judge ordered that Howell receive credit against any sentence to confinement in the form of one day of confinement credit for each day of pay at the E-1 rate.

The rehearing proceeded and Howell was convicted and sentenced to confinement for nine years, reduction to E-1, total forfeitures, and a dishonorable discharge. The military judge’s ruling resulted in 343 days of confinement credit due to Howell. But then, prior to the convening authority taking action, the Government filed a petition for a writ of prohibition at the Navy-Marine Corps CCA seeking to reverse the military judge’s award of confinement credit. The NMCCA stayed the post trial proceedings and (in an opinion discussed here) granted the Government petition in part, reducing the award of credit to 308 days. The Judge Advocate General of the Navy then certified the case to CAAF.

With yesterday’s opinion CAAF overwhelmingly affirms the Government’s ability to seek such relief, and narrowly interprets Article 13 to require evidence of actual intent to punish (and not merely punitive effect).

Addressing the first certified issue, Judge Sparks notes that Article 62 is not implicated by the Government’s writ petition in this case because of the case’s procedural posture:

Certified Issue I asks whether the Government may invoke Article 66, UCMJ, as the jurisdictional basis for an extraordinary writ to remedy an alleged Article 13, UCMJ, violation when the issue is not included as a basis for government appeal under Article 62, UCMJ.

As an initial matter, whether Article 62, UCMJ, limits the use of the All Writs Act is not before us. Article 62 limits interlocutory appeals – “[a]n appeal that occurs before the trial court’s final ruling on the entire case.” Black’s Law Dictionary 118 (10th ed. 2014). Here, the trial court issued findings and sentence, and the military judge authenticated the record before the Government petitioned for relief. This was not, therefore, an interlocutory appeal.

Slip op. at 5. The All Writs Act, however, applies to matters that have the potential to directly affect the findings and the sentence adjudged by the court-martial, and Judge Sparks explains that:

the Government’s specific complaint regarding the military judge’s ruling on confinement credit directly affects the findings and sentence. The convening authority is required “to direct application of all confinement credits for violations of Article 13 … against the approved sentence.” United States v. Spaustat, 57 M.J. 256, 263-64 (C.A.A.F. 2002).

Judge Sparks also gives a nod to the doctrine of potential jurisdiction. Slip op. at 6 n. 4. And so, the CCA had jurisdiction to entertain the writ petition. The entire court joins this portion of Judge Sparks opinion.

But the substantive merits of the petition – and the military judge’s ruling that granted Howell credit – fractures the court.

Judge Sparks finds that Article 75(a) required that Howell be paid as an E-6 during the period between the reversal of his first conviction and the conclusion of his second trial:

The Government is within its statutory rights to not restore to an accused any forfeiture of pay and allowances he has already suffered as a result of the original conviction and sentence until after the rehearing is completed. But, Article 75(a), UCMJ, does not provide for the withholding of pay during the interim period after the findings and sentence are set aside, and the accused is returned to full duty status and his previous rank. . . .

[I]f an accused is released from confinement awaiting rehearing, his pay status – at least insofar as the Uniform Code of Military Justice is concerned – should be the same as if he had never been tried in the first instance.

Slip op. at 8-9. This is consistent with the military judge’s ruling but contrary to interpretations by Article III courts. The remainder of CAAF concurs with this portion of Judge Sparks’ decision except for Judge Stucky, who finds the Article III decisions binding on this issue.

Yet while the military judge rightly interpreted Article 75(a), he wrongly found a violation of Article 13:

As discussed above, we disagree with the Government’s interpretation of Article 75(a), UCMJ. Nonetheless, there was a legitimate debate on the proper interpretation of Article 75(a), UCMJ, and disbursements to accused persons pending rehearings. From the record before us, we have no question that the Government legitimately believed that Appellant was not entitled to be paid as an E-6 pending the results of his rehearing. Accordingly, we conclude that there was no intent to punish Appellant by the Government’s decision to pay him at the E-1 rate pending the results of his rehearing.

We address briefly Appellant’s contention that even if there was no intent by the Government to punish, the Government’s action of paying him at the E-1 rate still had a punitive effect. To the extent that any dicta in United States v. Fischer, 61 M.J. 415, 420-22 (C.A.A.F. 2005), suggests that such an effect is sufficient to trigger an Article 13, UCMJ, violation, we reject that view. The record must disclose an intent to punish on the part of the Government.

Irrespective of any intent to punish, Article 13, UCMJ, is violated if the activity at issue serves no legitimate, nonpunitive purpose. The Government’s interpretation of Article 75(a), UCMJ, was in furtherance of a legitimate, nonpunitive governmental objective to provide an accused pending rehearing with the proper pay entitlement as prescribed by Congress. For these reasons, we hold that there was no Article 13, UCMJ, violation.

Slip op. at 12 (emphasis added).

Judge Ohlson (joined by Chief Judge Erdmann) dissents from this portion of Judge Sparks’ opinion, concluding instead that an Article 13 violation may occur because of punitive effect (even in the absence of punitive intent):

I agree with the majority that there is no evidence in the record that government officials at the command level had an intent to punish Appellant. However, I disagree with the majority’s decision not to consider the punitive effects of government action to determine whether an Article 13, UCMJ, violation occurred here. As I read this Court’s case law, the punitive effect inquiry is nothing more than an examination of whether the purpose of a condition had a legitimate, nonpunitive governmental objective. I find nothing of the sort in the instant case.

Diss. op. at 4 (emphasis added).

Notably, none of the opinions discuss the inference of punitive intent that may arise from arbitrary or purposeless conditions that are not reasonably related to a legitimate Government objective. See United States v. McCarthy, 47 M.J. 162, 167 (C.A.A.F. 1997) (citing United States v. James, 28 M.J. 214, 216 (C.M.A. 1989) (citing Bell v. Wolfish, 441 U.S. 520, 539 (1979))). Presumably an Article 13 violation may still be found in punitive consequences that support an inference of punitive intent.

Ultimately, CAAF’s unanimous conclusion that the CCA had jurisdiction to consider the writ petition is a significant victory for the Government. However, the court’s treatment of the pay dispute is more of a mixed bag, as the Government loses on the propriety of its pay determination but wins on the question of sentence credit as a remedy.

Case Links:
• NMCCA opinion
Blog post: The NMCCA splits 4-4 on the propriety of Art. 13 relief for a pay issue
Blog post: Navy JAG certified Howell
Blog post: Judge Ryan recuses herself from Howell
Howell’s brief: Certified issue 1
Government brief: Certified issue 1
• Howell’s reply brief: Certified issue 1
Government brief: Certified issues 2-4
• Howell’s brief: Certified issues 2-4
• Government reply brief: Certified issues 2-4
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

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