On July 31, a three-judge panel of the NMCCA issued an astonishing opinion in United States v. Begani, No. 201800082 (N.M. Ct. Crim. App. Jul 31, 2019) (link to slip op.), concluding that Articles 2(a)(4) and 2(a)(6) of the UCMJ – which apply court-martial jurisdiction to retired members of the regular components – violates the Due Process Clause’s guaranty of equal protection of the laws because it does not also apply court-martial jurisdiction to retired reservists.
I analyzed the decision in a pair of posts here and here, the latter of which called the opinion fundamentally flawed because reserve (non-regular) retirement is a pension while regular retirement is very much not; a significant distinction between reserve and regular retirees that justifies their different treatment under the UCMJ.
In this order issued last week, the NMCCA withdrew the opinion and announced en banc reconsideration:
Upon consideration of Appellee’s Motion for Reconsideration and Suggestion for En Banc Consideration, filed on 4 September 2019, it is, by the Court, this 1st day of October 2019,
1. That the Motion is GRANTED. The Court En Banc will consider the case.
2. That the Court’s 31 July 2019 decision is hereby WITHDRAWN.
3. That no briefs or arguments will be accepted unless required by further order of the Court.