Petition available here. The question presented is:

Whether the Court of Appeals for the Armed Forces erred in concluding—contrary to its own longstanding precedent—that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years.

Earlier this year, in United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page), CAAF applied last term’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), and held that the 2006 amendment to the statute of limitations for the offense of rape was not retroactive. Accordingly, CAAF reversed Briggs’ rape conviction from 2014 based on an allegation dating to 2005.

CAAF’s clarification of the statute of limitations for rape in Mangahas was the #3 Military Justice Story of 2018.

In Briggs, the Air Force Appellate Government Division argued to CAAF that “Congress, in passing the 2006 amendment, intended not to change the law, but rather to codify the holding of Willenbring and clarify the correct statute of limitations for rape.” Gov’t Div. Br. at 18 (emphases in original) (discussed here). CAAF explicitly rejected the argument for two reasons:

First, the 2006 amendment to Article 43(a), UCMJ, was not limited to rape; it also eliminated the previous five-year period of limitations for unpremeditated murder. Congress therefore did not intend the 2006 amendment simply to maintain the status quo. Second, even if Congress believed that the amendment was codifying existing law with respect to the statute of limitations for rape, that belief alone would not imply that Congress intended for the amendment to apply retroactively. In such circumstances, Congress would have had no reason to consider the issue of retroactivity. And if Congress did not actually decide to make the statute apply retroactively, then the presumption of non-retroactivity should control.

Briggs, 78 M.J. at 294.

The cert. petition repeats that argument, along with some others such as:

even assuming that Congress designed a statute of limitations for military rape that turns on whether capital punishment for that crime is constitutionally permissible, Congress correctly determined that the Constitution does not foreclose capital punishment for rape in the military context.

Pet. at 17. Additionally, the petition claims that:

Allowing the CAAF’s flawed construction of Article 43 to remain in place would subvert the military’s concerted effort to eradicate sexual assault, erode confidence in the military-justice system, and fuel the impression that “nothing will happen to the[] perpetrator” of military rapes, all of which could further deter sexual-assault reporting and ultimately undermine military effectiveness.

Pet. at 23-24 (quoting Response Systems Panel report at 60) (modification in original).

The petition also challenges CAAF’s decision in Mangahas – even though certiorari was not sought in that case – with the assertion:

The CAAF erred in United States v. Mangahas, 77 M.J. 220 (2018), by abandoning that longstanding construction [of the statute of limitations for rape].

Pet. at 11.

7 Responses to “The Solicitor General petitions for certiorari in Briggs”

  1. Not a SCOTUS lawyer says:

    So they are arguing that capital punishment is permissible for rape, and also that SCOTUS should review this case to encourage reporting of sexual assault…because the reason people aren’t reporting rapes is Mangahas.  
    Each of these arguments requires the Justices to agree that the military context requires results that are counter to federal civilian precedent.  I’m not a Supreme Court lawyer, but these arguments don’t seem to be very good.
    Anyone know the odds of cert, if the SG asks for it?

  2. DawG says:

    Odds of cert for an SG request vary from over time and depend on the type of case.  There was recently an interesting article on SCOTUSBlog.  See  Basically, it was 50/50 for Obama’s SG and a 40% chance under Trump (but quite a few cases still pending).

  3. Curious says:

    If the government is really challenging CAAF’s decision in Mangahas, not Briggs, doesn’t that run into the government’s own argument about the Supreme Court’s jurisdiction, i.e., that it doesn’t extend to issues CAAF didn’t decide below?

  4. Tami a/k/a Princess Leia says:

    The problem is the Government didn’t challenge CAAF’s decision in Mangahas in time.  How is this not an end runaround blowing the deadline?

  5. Anonymous says:

    A weak argument with regard to a previously set aside conviction to be possibly argued in front of Justice Kavanaugh? Good luck.  

  6. Contract Lawyer says:

    The argument seems dumbed down to appeal to the passions of the justices in the way that an “actual innocence” appeal seeks to argue that an innocent man is in prison.  Here it is a case of “actualguilt” where they hark on the supposed admission/apology (i.e., “sorry I raped you”) and the writ basically argues that CAAF wrongly used a technicality to let a guilty criminal walk.  Tami – This petition is for Briggs.  They cite Mangahas, but they are using Brigs as the vehicle to attack the Mangahas decision.  Ifsuccessful here, the government would win the holding they want,Briggs would be screwed, but Mangahas would still be free as only the precedent of his decision would be reversed and not his actual decision.Briggs only got five months confinement, so the procedural posture should not impact him, but if an accused were sitting in confinement, these petitions could cause someone to sit in confinement longer than they would ordinarily have to, though the S. Ct. is good about releasing prisoners on bail where they know the final holding is not going to end with an affirmed conviction, but this may not include type of appeal.  I note also that Briggs already benefited from S. Ct. review with the S. Ct. remanding Briggs back to CAAF due to Mangahas.

  7. David A. says:

    Article 55, UCMJ, states “Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by a court-martial or inflicted upon any person subject to this chapter.” This article is cited by CAAF in Mangahas at 5 n. 4. The Solicitor General fails to cite Article 55 at all in the cert. petition. Coker v. Georgia, 433 U.S. 598 (1977) held the death penalty fro rape of an adult was a constitutionally impermissible penalty in violation of the cruel and unusual punishment clause of the Eighth Amendment. Since a court martial may not inflict “any other cruel or unusual punishment” “upon any person subject to this chapter,” it is difficult to see how CAAF can be faulted for concluding that Supreme Court’s ban on the death penalty for rape in the civilian context is equally applicable in the military context. 
    The Solicitor references the observation from Chappell v. Wallace, 462 U.S. 296, 305 (1983), “The most obvious reason is that courts are ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have,” and that might be true in a state court or non-military federal court context. Yet, here we are dealing with the United States Court of Appeals for the Armed Forces, a court entrusted with determining “matters of law” (Art. 67(c)), and that includes “impact upon discipline.” See, e.g., Art. 134. 
    The Solicitor notes that “[t]he current version of the Manual for Courts-martial states that the maximum punishment for rape committed after June 28, 2012, is ‘confinement for life without eligibility for parole’.” Cert. pet. 8 n.Thus, there is no lingering “public policy” in the military making rape “punishable by death.” 
    The Solicitor states one of the objectives of the 2006 NDAA was “to conform” military law “more closely to other Federal laws and regulations that address such issues.” Cert. pet. at 7. The Solicitor then states, “Congress in 1986 repealed the federal criminal statute, 18 U.S.C. 2031 (1982), that had previously authorized the death penalty for rape in the civilian system.” Cert. pet. at 14-15. Given the objective of the statute–making military law more close to other federal law–why complain about CAAF turning to Coker and determining rape is not “punishable by death.” Just pointing out weaknesses and inconsistencies.