CAAF decided the Coast Guard case of Randolph v. HV and United States, 76 M.J. 27, No. 16-0678/CG (CAAFlog case page) (link to slip op.), involving a writ-appeal filed by an accused, on Wednesday, February 2, 2017. Sharply divided, the court narrowly concludes that it does not have jurisdiction to review an interlocutory decision by a Court of Criminal Appeals rendered under the victim-focused Article 6b when the accused seeks such review and regardless of how the accused seeks such review. Accordingly, a three-judge majority dismisses the writ-appeal petition.

Judge Stucky writes for the court, joined by Judges Ryan and Ohlson. Judge Ryan also writes a separate concurring opinion. Chief Judge Erdmann dissents, joined by Judge Sparks who also files a separate dissenting opinion.

The writ-appeal challenged the decision of the Coast Guard CCA that significantly expanded the scope of Mil. R. Evid. 513 (the psychotherapist-patient privilege). The CCA’s decision (discussed here) was made on an Article 6b petition for mandamus filed by HV, who is the alleged victim in a case against the petitioner, Coast Guard Damage Controlman Second Class (E-5) Randolph. Article 6b – our #6 Military Justice Story of 2016 – is known as the Military Crime Victims’ Rights Act, because its provisions generally mirror those of the federal Crime Victims’ Rights Act, 18 U.S.C. § 3771. Among those provisions is one allowing an alleged victim to appeal a trial-stage ruling that affects the victim’s rights, and HV used that provision to win additional protections from the CCA for her mental health records.

Randolph appealed the CCA’s decision to CAAF (discussed here). CAAF agreed to hear the appeal and replaced the military judge as a party with the United States (discussed here). However, the court also specified an issue that questions whether it has jurisdiction to consider the appeal in its current form:

I. Whether the United States Court Of Appeals for the Armed Forces has jurisdiction over a writ-appeal petition filed by an accused who is seeking review of a court of criminal appeals’ decision rendered pursuant to Article 6b(e), UCMJ.

II. Whether the “confidential communications” protected by MRE 513 includes records of diagnosis.

Implicit in the specified issue was the fact that last year, in EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. Jun. 21, 2016) (CAAFlog case page), a unanimous CAAF found that it has no jurisdiction under Article 6b to entertain a writ-appeal by an alleged victim. In Randolph, CAAF wondered if an accused is similarly deprived of the opportunity for review.

Judge Stucky answer this question in the affirmative, concluding that:

the same analysis applies to Appellant’s petition. Article 6b expressly provides that enumerated victims’ rights can be enforced through a writ of mandamus obtained at a Court of Criminal Appeals. There is no mention of additional appellate rights for the accused, or of a grant of jurisdiction to this Court. Accordingly, we lack jurisdiction to consider Appellant’s petition.

Slip op. at 4 (citations omitted). A footnote adds this bit of rhetoric:

it makes no sense to allow the accused to utilize Article 6b, a victim’s statute, to go where the victim may not.

Slip op. at 6 n.2.

CAAF’s rules, however, recognize a difference between an original writ petition and a writ-appeal. See C.A.A.F. R. 18(a)(4) and 18(b). Randolph sought a writ-appeal of the CCA’s decision under Article 6b, rather than an original writ that would invoke CAAF’s jurisdiction under Article 67. Judge Stucky suggests, however, that it doesn’t matter:

Article 6b(e) is a limited grant of CCA review . . . The statute cannot be stretched by an accused, even in tandem with Article 67(a)(3) or the All Writs Act, to authorize review by this Court.

Slip op. at 7. Judge Ryan’s concurring opinion is more explicit on this point. Explaining that Article 67(c) limits jurisdiction to cases with “findings and sentence approved by the convening authority,” Judge Ryan concludes that:

In the face of a statute that is eminently clear, as a matter of first impression it seems obvious that if we review the record in a case, pursuant to Article 67(a), UCMJ, and see no findings and sentence approved by the convening authority — which are the only cases that Article 67(c), UCMJ, places within our purview — we may not act. There are no findings or sentence in this case.

Ryan, J., op. at 2. This is a position not entirely consistent with CAAF’s precedent but wholly consistent with Judge Ryan’s. Judge Ryan has steadfastly opposed expansions of CAAF’s interlocutory jurisdiction. See United States v. Lopez de Victoria, 66 M.J. 67, 74 (C.A.A.F. 2008) (Ryan, J., dissenting); LRM v. Kastenberg, 72 M.J. 364, 374–76 (C.A.A.F. 2013) (Ryan, J., dissenting); Denedo v. United States, 66 M.J. 114, 135–36 (C.A.A.F. 2008) (Ryan, J., dissenting).

Chief Judge Erdmann and Judge Sparks dissent because they see a big difference between jurisdiction (or the absence of it) under Article 6b, and jurisdiction under Article 67. Chief Judge Erdmann explains:

Article 67(a)(3), UCMJ, states, “The Court of Appeals for the Armed Forces shall review the record in … all cases reviewed by a Court of Criminal Appeals in which, upon petition of the accused and on good cause shown, the Court of Appeals for the Armed Forces has granted a review.” We have defined a “case” as used in Article 67(a) to include any “final action” by a Court of Criminal Appeals (CCA). Moreover, we have deemed a CCA’s determination on an alleged victim’s writ-appeal to be within the scope of a “final action.”

In accordance with these jurisdictional principles, Randolph petitioned this court for review of the CCA’s determination on the alleged victim’s Article 6b, UCMJ, 10 U.S.C. § 806b (2012), petition—a CCA determination which clearly satisfies our definition of a “case” for purposes of jurisdiction under Article 67. Yet, despite our prior holding that all “cases” include a “final action” by a CCA, the majority takes the position that HV’s Article 6b petition somehow changes the jurisdictional landscape, and, thus, the applicability of Article 67(a)(3).

Erdmann, C.J., diss. op. at 1 (citations omitted).

And Judge Sparks explains:

I am not persuaded that simply asserting that this is an Article 6b, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 806b (2012) (amended 2015), case satisfactorily answers the question why this is not an Article 67, UCMJ, 10 U.S.C. § 867 (2012), case. The majority makes an effort to answer this question in the negative with repeated references to the fact that Article 6b, UCMJ, is meant to confer rights on victims. I agree, but this is little more than a statement of the obvious. It is just as obvious to me that the accused in this case is not attempting to vindicate the victim’s rights. Rather, he is seeking to vindicate his own interests, interests that are wholly separate and apart from any interest a victim might have at trial.

Sparks, J., diss. op. at 1.

Both Chief Judge Erdmann and Judge Sparks also fault the majority for equating the interests of an alleged victim – who is a nonparty and not on trial – with the rights of an accused. Chief judge Erdmann writes:

The majority contends that it “makes no sense to allow the accused to utilize Article 6b, a victim’s statute, to go where the victim may not.” Randolph, __ M.J. at __ (6 n.2). This assertion is flawed for two reasons. First, Randolph did not petition this court through Article 6b. Rather, he sought review of the CCA’s Article 6b determination through Article 67. Additionally, unlike an alleged victim, the accused is a real party in interest who has been given clear statutory authority to appeal a final action by the CCA. Therefore, unlike the majority, I find Randolph’s right to exercise certain appellate rights that are denied to a nonparty not only logical, but statutorily grounded.

Erdmann, C.J., diss. op. at 2-3.

Judge Sparks adds:

It makes sense to hold, as we did in EV v. United States, that a victim can seek relief no further than the court of criminal appeals. 75 M.J. 331, 334 (C.A.A.F. 2016). After all, the victim is a nonparty. The accused, however, is in a very different position.

Sparks, J., diss. op. at 1.

Another interesting angle on this issue is the effect of certification by a Judge Advocate General under Article 67(a)(2), which is functionally the Government’s way to appeal a decision of a CCA (though the JAGs may – and occasionally do – certify an issue for a servicemember). Certification is a separate route to CAAF review. A few years ago, in LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) (CAAFlog case page), CAAF considered a certified case involving an alleged victim’s petition for extraordinary relief. But last year’s decision in EV – also written by Judge Stucky but for a unanimous court – seemingly eliminated certification as a way to put an alleged victim’s interlocutory claims before the court. In Randolph, Judge Stucky makes that elimination clear:

[W[e pointed out just last term that “[t]he LRM decision was rendered without the benefit of Congress’s direction in the matter. Congress having now legislated in the area, we are bound by the choices it made.” EV, 75 M.J. at 334. The victim protections afforded by Article 6b expressly provide for enforcement by the CCA, and nothing further. Id.

Slip op. at 5.

The net result is that no matter how outrageous the decision may be, there is now no way to appeal an Article 6b decision by a court of criminal appeals within the military justice system prior to the end of a trial that results in a conviction. Not for the alleged victim, not for the accused, and not for the Government. CAAF has ceded any claim it had to jurisdiction.

Our #5 Military Justice Story of 2015 was the trend towards narrower readings of jurisdiction. It seems we spoke too soon.

And because I know you’re wondering, the standard of review for a collateral challenge in the civil courts is, well, complicated. See Sanford v. United States, 586 F.3d 28 (D.C. Cir. 2009) (discussed here).

Case Links:
CGCCA opinion
Blog post: CGCCA opinion analysis
Blog post: Randolph appeals
• Blog post: CAAF grants
• Petitioner’s (Randolph) brief
Respondent’s (HV) Answer
Petitioner’s (Randolph) reply brief
Respondent’s (HV) brief on specified (jurisdiction) issue
United States’ brief
Amicus Curiae brief: Coast Guard Appellate Defense
Amicus Curiae brief: Air Force Appellate Government
Amicus Curiae brief: Navy-Marine Corps Appellate Government
Amicus Curiae brief: Air Force Appellate Defense (joined by Army Appellate Defense and Navy-Marine Corps Appellate Defense)
• Blog post: Argument preview
• Oral argument audio.
CAAF opinion
Blog post: Opinion analysis

Note: This post has been edited to provide some additional detail about Article 6b in the third paragraph.

3 Responses to “Opinion Analysis: CAAF closes all doors for review of Article 6b decisions in Randolph v. HV and United States, No. 16-0678/CG”

  1. k fischer says:

    In Courts martial involving a divorcing spouse or baby momma fighting for sole or primary custody who is possibly borderline or bipolar, having a local attorney who can enter an appearance in the divorce , then jump on the court martial would be a good way to get around that pesky SVC attorney client relationship problem.  Good opportunity to depose complaining witness and obtain mental health records in civilian family law court.

  2. Philip D Cave says:

    KF, agreed.  Know what you mean    :-)

  3. k fischer says:

    And, don’t forget about a lawsuit for slander if it does not involve a child custody issue……