A three-judge panel of the Navy-Marine Corps CCA issued a published opinion in United States v. Shields, __ M.J. __, No. 201600133 (N.M. Ct. Crim. App. Jan. 31, 2018) (link to slip op.), holding that a Secretary of the Navy Instruction (SECNAVINST) in effect at the time of the appellant’s misconduct (but since changed), that purported to automatically cancel any directive older than seven years, did not apply to regulations already older than seven years, including the Navy’s sexual harassment instruction of which the appellant was convicted of violating.

It’s the CCA’s second opinion in the case; the court previously reversed two of the appellant’s convictions with an unpublished opinion (available here), findings that a Hills error was not harmless. This new, published opinion restates the Hills analysis from the prior, unpublished opinion, and reaches the same result.

Aviation Boatswain’s Mate Third Class (E-4) Shields was convicted of two specifications of violating the Navy’s sexual harassment instruction, and two specifications of abusive sexual contact, in violation of Articles 92 and 120(c) (2012), by a special court-martial composed of members with enlisted representation. The panel sentenced Shields to a bad-conduct discharge.

The charges were based on unwanted sexual advances by Shields towards other service members while embarked on ship. Shields was ultimately convicted of sexually harassing and committing abusive sexual contact upon two alleged victims, and acquitted of similar allegations involving two others. But the prosecution used the charged sexual contact offenses as evidence of Shields’ propensity to commit the same charged sexual contact offenses; a tactic explicitly prohibited by United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) (our #3 Military Justice Story of 2016). The CCA was not convinced that this error was harmless, and so last June it reversed the abusive sexual contact convictions and authorized a rehearing.

After the CCA issued its decision last June, Shields moved for reconsideration and asserted that the sexual harassment convictions must also be reversed on the basis that the Navy’s sexual harassment instruction in effect at the time – “SECNAVINST 5300.26D issued on 3 January 2006” – had been automatically cancelled “by virtue of a self-canceling provision within SECNAVINST 5215.1E, issued on 28 October 2014.” Slip op. at 2. Specifically, that version of SECNAVINST 5215.1E (“The Secretary of the Navy Directives Policy”) stated:

All SECNAVINSTs and SECNAV manuals shall be reviewed beginning on the second anniversary of the document’s effective date and every 2 years thereafter to ensure necessity, currency, and consistency with Department of Defense (DoD) policy, existing law, and statutory authorities. Directives reaching a 6-year anniversary without reissuance may be certified as current for an additional year. After 6 years, the directive shall be revised. Extensions beyond the 6-year anniversary date must be requested through the Department of the Navy/Assistant for Administration (DON/AA) and approved by SECNAV. Directives reaching the 7-year anniversary that are not in the revision process are self-canceling on that date and continued use requires a full revision to the next available point number.

Slip op. at 10 (quoting ¶ 4.e, SECNAVINST 5215.1E (28 October 2014)) (emphasis added). Shield claimed that this self-cancellation language applied to the sexual harassment instruction that was already more than seven years old.

Shields’ appellate position was complicated by the fact that his civilian defense counsel at trial affirmatively stated that he had no objection to the military judge taking judicial notice of the sexual harassment instruction as a lawful general regulation, and instructing the members accordingly. Slip op. at 4. And so Shields also asserted that defense counsel was ineffective for failing to object (and possibly waiving the issue).

The CCA avoids the waiver issue with a citation to United States v. Chin, 75 M.J. 220 (C.A.A.F. Apr. 29, 2016) (CAAFlog case page), and it considers Shields’ claim that SECNAVINST 5215.1E automatically cancelled SECNAVINST 5300.26D. Writing for the unanimous panel, Senior Judge Hutchinson rejects Shields’ claim:

The first sentence of paragraph 4.e directs that SECNAV directives shall be reviewed on the second anniversary of their effective date and every two years thereafter. Clearly this language is prospective; the direction to review an instruction on its second anniversary cannot apply to instructions that are already more than two years old. . . . Here, the use of the present participle “reaching”—as opposed to the past tense/past participle “reached” or even the perfect participle “having reached”—when read in conjunction with the clearly prospective opening sentence of paragraph 4.e makes clear that SECNAVINST 5215.1E is concerned with “developing and maintaining [SECNAV] directives” going forward and not with canceling current, seven-year old instructions.

The Secretary of the Navy could have explicitly cancelled then-existing seven-year-old instructions, but chose not to do so. Rather, the plain language of SECNAVINST 5215.1E and its use of the present participle verb tense convinces us that it only applied prospectively and did not cancel instructions such as SECNAVINST 5300.26D that had already reached their seventh anniversary by the time of SECNAVINST 5215.1E’s publication. Thus, SECNAVINST 5300.26D was a valid general regulation at the time of the appellant’s offenses.

Slip op. at 12 (citations omitted).

This “renders moot the appellant’s contention that he received ineffective assistance of counsel when his CDC failed to object to the military judge’s taking judicial notice of SECNAVINST 5300.26D.” Slip op. at 12.

10 Responses to “The NMCCA rejects a claim that back in 2014, the Navy cancelled all regulations over seven years old”

  1. Philip D. Cave says:

    Interesting.  Some RLSO’s started changing their charging practice because of this issue and charged the offense differently.

  2. Tom Booker says:

    And this is why I used to remind counsel, often to exaggerated rolling of the eyes, that somebody had paid for them to attend ALL THREE years of law school.  It also points out the danger, which I’ve often expressed (and we see where it got me), of creating a Military Justice Litigation “silo”.  Especially in a practice that prosecutes crimes that occur within the Executive Branch, it is critical that attorneys understand the effect of administrative law, to say nothing of the English language.
    Respectfully, LTB

  3. stewie says:

    I dunno Tom, if I have to pick between criminal justice litigators who don’t know crim law very well, or those who don’t know ad law very well, I’m going with the latter. That “silo” may create smaller problems, but it will solve a bigger one.

  4. Tom Booker says:

    Stewie, you make a good point, and maybe the problem is with the execution in the Navy more than it is with the concept.  On the other hand, as we’ve seen over the last 18 months, failure to understand administrative law also creates some pretty big headaches.  Very few attorneys have to visit their admin law “mistakes,” however, in jail.
    Respectfully, LTB

  5. Alfonso Decimo says:

    Tom is right, but I will go further. Every government lawyer should know adlaw expertly. Otherwise, they’re just lawyers.

  6. TC says:

    But was this such an open and shut adlaw issue?  And even if it was, who here did something you disagree with?  The appellate defense counsel made an argument, which ended up being unsuccessful.  Nothing unusual there.  According to Phil, RLSOs charged some cases differently because of the concern that this regulation was cancelled.  That seems like a prudent decision to me, as no appellate court had ruled on the issue.  There are multiple ways to charge sexual harassment, better to go with one you’re 100% sure is valid.  Why is this an example of miljus types not understanding other aspects of the law?

  7. Tom Booker says:

    TC:  I’m not so sure it’s an “open and shut” administrative law issue.  I am sure, however, that more than a mere nodding acquaintance with administrative law is necessary to practice criminal law under the UCMJ.  Look, for example, at all the Article 92 violations, some for violating general orders, some for violating other orders.  Was the order properly issued by competent authority?  Does it by its terms apply to the case at hand?  Is the statutory or regulatory basis for the order correct?  Is the order active on the date of the offense?  Those, I believe, were some of the issues involved in this prosecution.
    I compliment the Appellate Defense Counsel for their creativity in crafting the argument.  All I am saying is that a better understanding of administrative law at all levels would have been beneficial in framing and arguing the issues at the trial level and the appellate level.
    Respectfully, LTB

  8. TC says:

    OK.  I’m not sure I follow how the miljus track factored into anyone missing something in this case, I thought that was what you were suggesting. 

  9. stewie says:

    TC, agreed…and when you consider that plenty of folks don’t start in Ad Law even under the current broadly skilled paradigm.
    New folks out of OBC, at least in the Army, usually start in either LA or Ad Law. But after that first iteration, they could go anywhere. So maybe that LA atty goes to become a TC, then heads over to OPLAW, then becomes a DC, then goes to the Grad Course, then becomes a Chief of Justice.  That’s a totally possible path halfway through O4 that does not involve Ad Law at all but is still fairly broadly skilled.

  10. Random JA says:

    I agree with Stewie and TC.  While I can appreciate a military assignment in administrative law, I think an attorney who can read and self-educate can understand the issue presented in this case with little, to no, administrative law experience. Attorneys are required to educate themselves – reading, researching, and talking to other practitioners.  Therefore, I do not believe specializing in military justice poses an issue when our professional rules require us to gain the necessary education to represent our client(s).