CAAF decided the Air Force case of United States v. Blanks, __ M.J. __, No.17-0404/AF (CAAFlog case page) (link to slip op.), on Wednesday, February 28, 2018. Finding no persuasive reason to overrule 65 years of precedent holding that negligent dereliction of duty is an offense under the UCMJ, CAAF affirms the appellant’s conviction of negligent dereliction and the decision of the Air Force CCA.

Judge Ohlson writes for a unanimous court.

Senior Airman (E-4) Blanks was charged with willful dereliction of duty but convicted of the lesser included offense of negligent dereliction of duty. The factual basis for the conviction was that Blanks failed to provide adequate financial support to his wife. Blanks challenged the conviction on appeal, asserting that recent mens rea jurisprudence (the #8 Military Justice Story of 2017), including CAAF’s functionally-unanimous decision in United States v. Haverty, 76 M.J. 199, (C.A.A.F. Apr. 25, 2017) (CAAFlog case page), establishes recklessness as the lowest mens rea which separates wrongful conduct from otherwise innocent conduct, and therefore his conviction for negligent dereliction must be reversed.

Intrigued by the challenge, CAAF granted review to determine whether:

In light of this Court’s decision in United States v. Haverty, 76 M.J. 199 (C.A.A.F. 2017) [CAAFlog case page], did the military judge err when he instructed the members Appellant could be convicted of negligent dereliction of duty?

Today the court unanimously rejected the challenge. Acknowledging a “long line of precedent,” Judge Ohlson explains that “the military judge did not err, plainly or otherwise, by instructing the members on the negligent dereliction of duty offense.” Slip op. at 3. The reason is stare decisis.

“[W]hen this court considers a request to overrule a prior decision of the court, we analyze the matter under the doc-trine of stare decisis.” United States v. Quick, 74 M.J. 332, 335 (C.A.A.F. 2015). This doctrine provides that “adherence to precedent is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and con-tributes to the actual and perceived integrity of the judicial process.” United States v. Sills, 56 M.J. 239, 241 (C.A.A.F. 2002) (per curiam) (internal quotation marks omitted) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)).

Slip op. at 4. Put simply, “[a] party must present a ‘special justification’ for us to overrule prior precedent.” Slip op. at 4 (quoting Kimble v. Marvel Ent., LLC, 135 S. Ct. 2401, 2409 (2015)).

No such justification exists in Blanks to justify overruling precedent dating back to the earliest days of the UCMJ and holding that “when the nonperformance [of a duty] is the result of a lack of ordinary care, the omission is negligent,” and that such negligence can violate Article 92(3). United States v. Grow, 3 U.S.C.M.A. 77, 86-87 (C.M.A. 1953) (quoting Manual for Courts-Martial (1951 ed.), ¶ 171c).

Five factors support this conclusion.

First, CAAF “ha[s] determined that negligence is an appropriate mens rea for dereliction of duty.” Slip op. at 4.

Second, the court’s “recognition of a negligent dereliction of duty offense is not unreasonable or clearly wrong.” Slip op. at 5.

Third, “Congress has not acted to amend the dereliction of duty statute” in the wake of CAAF’s precedent affirming convictions of negligent dereliction. Slip op. at 5.

Fourth, “In light of the military nature of the offense and its limited authorized punishment [forfeiture of two-thirds pay per month for three months and confinement for three months], a negligence mens rea standard is appropriate for certain dereliction offenses.” Slip op. at 5-6.

And finally, a policy rationale:

overruling our precedent would have repercussions within the military justice system. . . . [It] would undermine an important facet of the commander’s ability to enforce accountability of military members’ responsibility to perform their duties.

Slip op. at 6.

Case Links:
• AFCCA decision
• Blog post: CAAF grants review
• Appellant’s brief
• Appellee’s (A.F. Gov’t App. Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview
Oral argument audio
CAAF opinion
• Blog post: Opinion analysis

4 Responses to “Opinion Analysis: Negligent dereliction of duty remains punishable, in United States v. Blanks”

  1. Wait A. Minute says:

    Not a single mention of Elonis.  The Thomas wing of the CAAF has taken over the court (Thomas was the Elonis dissenter).  This opinion makes it sound like the appellant just spontaneously asked the CAAF to overrule decades of precedent for no particular reason.  If that were true, the Court wouldn’t have granted review.  In truth, they granted review to decide if that precedent should be changed in light of Elonis, then they decided not to mention Elonis once in their opinion.  I don’t disagree with the opinion’s reasoning, or its conclusion.  But why this omission?

  2. Zachary D Spilman says:

    In light of Haverty, not Elonis. It’s right there in the granted issue. 

    Furthermore, there are some pretty stark differences between this case and Elonis, starting with the fact that Elonis objected at trial.

  3. Nathan Freeburg says:

    The lesson again being object, object, object. Play the long game (along with the short one). Make it hard on the appellate courts. 

  4. stewie says:

    Yes, Nathan, failure to do so would be…negligent.
    (I’ll see myself out)

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