CAAFlog » End o' Term Stats » 2014 Term Stats

CAAF heard oral argument in 6 cases with issues certified by one of the Judge Advocates General (Muwwakkil, Quick, Katso, Piolunek, Morita, and Buford). The court resolved another 3 certified cases by summary disposition (Huey, Soto, and Bowser). In total the court acted in 9 cases with certified issues this term.

Of those 9 cases, 7 (78%) were from the Air Force. That’s a slight decrease from last term’s 82%, but still gives me reason to recall my post about the appearance of bias in the certification of cases by the Judge Advocate General of the Air Force. The other two certified cases this term were from the Army (Muwwakkil) and the Marines (Quick).

The Government won in 4 of the 9 certifications (44%): Katso, Piolunek, Buford, and Huey (resolved summarily as a Piolunek trailer that mooted the certified issue). Notably, Piolunek involved a cross-certification; the JAG certified an issue after CAAF granted review of the CCA’s decision. The certified issue in Piolunek was also summarily rejected by CAAF as presenting a question of fact that the court lacks jurisdiction to consider.

The court specified issues for oral argument in two cases (Gilbreath and Arness), a Marine Corps case and an Air Force case. The specified issues were dispositive in both cases.

Of the 37 cases heard at oral argument, the CCAs were represented as follows:

  • 13 were from the Air Force CCA.
  • 15 were from the Army CCA.
  • 8 were from the Navy-Marine Corps CCA.
  • 1 was from the Coast Guard CCA.

Of these:

  • The Air Force CCA was reversed in 8 out of 13 cases (62%).
  • The Army CCA was reversed in 6 out of 16 cases (38%).
  • The Navy-Marine Corps CCA was reversed in 4 out of 8 cases (50%).
  • The Coast Guard CCA was reversed in 0 out of 1 case.

Civilian defense counsel argued 6 of the 37 cases (16%) argued at CAAF this term: Gutierrez, Morita, Newton, Piolunek, Plant, and Sullivan. Of these, the Government won in 3 (50%).

In cases argued by military defense counsel, the Government won in 17 out of 31 (55%).

Of the 14 cases where military defense counsel argued and won:

  • 2 were Air Force cases (Jones and Morita Nettles).
  • 7 were Army cases (Adams, Bennitt, Blouin, Keefauver, Muwwakkil, Peters, and Stellato).
  • 3 were Marine Corps cases (Gilbreath, Quick, and Vargas).
  • 2 were Navy cases (Simmermacher and Woods).

So the success rates for military defense counsel at each of the four appellate defense divisions was:

  • Air Force Appellate Defense: 2 out of 9 (22%).
  • Army Appellate Defense: 7 out of 14 (50%).
  • Navy-Marine Corps Appellate Defense: 5 out of 8 (63%).
  • Coast Guard Appellate Defense: N/A (only Coast Guard case argued by a civilian).

Chief Judge Baker wrote a total of 16 opinions this term: 8 opinions of the court, 3 concurring opinions, and 5 dissenting opinions. He was with the majority in 30 out of 37 cases (81%). He voted for the Government in 23 out of 37 cases (62%), dissenting from 2 of the Government’s 20 victories and concurring in 2 of them.

Judge Stucky wrote a total of 16 opinions this term: 7 opinions of the court, 5 concurring opinions, and 4 dissenting opinions. He was with the majority in 32 out of 37 cases (86%). He voted for the Government in 19 out of 37 cases (51%), dissenting from 3 of the Government’s 20 victories and concurring in 2 of them.

Judge Erdmann wrote a total of 11 opinions this term: 7 opinions of the court, 2 concurring opinions, and 2 dissenting opinions. He was with the majority in 32 out of 37 cases (86%). He voted for the Government in 15 out of 37 cases (41%), dissenting from 5 of the Government’s 20 victories and concurring in 2 of them.

Judge Ryan wrote a total of 10 opinions this term: 7 opinions of the court, 1 concurring opinion, and 2 dissenting opinions. She was with the majority in 33 out of 37 cases (89%). She voted for the Government in 24 out of 37 cases (65%), dissenting from none of the Government’s 20 victories and concurring in 1 of them.

Judge Ohlson wrote a total of 10 opinions: 8 opinions of the court and 2 dissenting opinions. He was in the majority in 33 out of 36 cases (92%). He voted for the Government in 18 out of 36 cases (50%), dissenting from 2 of the Government’s 20 victories. Of note, he recused himself from one case (that the Government won).

Senior Judge Cox participated in 1 case this term, siding with the Government in CAAF’s unanimous decision in Newton.

Of the 37 authored opinions of the term, 14 were unanimous (no separate opinions). The Government prevailed in 7 of these 14. An additional 9 cases involved only separate concurring opinions, for a total of 23 cases with no dissents (62% of the total of 37 cases). Of these 23 cases with no dissents, the Government prevailed in 13 (57%).

The other 14 cases involved a total of 15 separate dissenting opinions. Broken down by judge:

  • Chief Judge Baker dissented 7 times and wrote 5 dissenting opinions.
  • Judge Erdmann dissented 5 times and wrote 2 dissenting opinions.
  • Judge Stucky dissented 5 times and wrote 4 dissenting opinions.
  • Judge Ryan dissented 4 times and wrote 2 dissenting opinion.
  • Judge Ohlson dissented 3 times and wrote 2 dissenting opinions.

These dissents favored the Government as follows:

  • Chief Judge Baker sided with the Government in 5 out of 7 dissents (71%).
  • Judge Stucky sided with the Government in 4 out of 5 dissents (80%).
  • Judge Ryan sided with the Government in 4 out of 4 dissents (100%).
  • Judge Ohlson sided with the Government in 2 out of 3 dissents (67%).
  • Judge Erdmann sided with the Government none of his 5 dissents (0%).*

* Corrected. I originally wrote this backwards; that Judge Erdmann sided with the Government in all of his dissents. 

Senior Judge Cox participated in one case (Newton), which was decided in a unanimous decision.

Of the 14 cases with dissents, only 4 cases involved lone dissenters. Of these 4 cases, Chief Judge Baker was the lone dissenter in 2 (Vargas and Bannitt), siding with the Government in both. Judge Erdmann was the lone dissenter in 1 (Sullivan), siding with the Defense. Judge Ohlson was the lone dissenter in 1 (Katso), siding with the Defense.

Another interesting statistic is the comparison of who wrote for the court compared with when there were dissents and who dissented. In order of least-dissenters to most:

Chief Judge Baker wrote for the court in 8 cases, of which only 1 (13%) had dissenters. That was Judges Stucky and Ryan (both writing separately) in Peters.

Judge Stucky wrote for the court in 7 cases, of which 1 (14%) had dissenters. Judge Ohlson dissented in McFadden, joined by Chief Judge Baker.

Judge Ryan wrote for the court in 7 cases, of which 2 (29%) had dissenters. Chief Judge Baker dissented in one case (Bennitt) and Judge Ohlson dissented in the other (Katso).

Judge Erdmann wrote for the court in 7 cases, of which 4 (57%) had dissenters. Judge Stucky joined by Judge Ohlson dissented in 1 case (Quick), and Chief Judge Baker dissented in the other 3 cases (Blouin, Adams, and Vargas) joined by Judge Ryan in 2 (Blouin and Adams).

Judge Ohlson wrote for the court in 8 cases, of which 6 (75%) had dissenters. Judge Erdmann dissented in 5 cases (Akbar, Buford, Schloff, Torres, and Sullivan), Judge Stucky dissented in 3 cases (Buford, Schloff, and Torres), Chief Judge Baker dissented in 2 cases (Akbar and Plant), and Judge Ryan dissented in 1 case (Plant).

Interestingly, just like last year, while Chief Judge Baker dissented more than any other judge (7 in total – authoring separate opinions in 5), he was least likely to draw dissents when he wrote for the court.

It’s time again for our annual tradition of end-of-term number crunching.

CAAF heard oral argument in 37 cases this term and issued 37 authored opinions of the court. Summaries of each case, with links to CAAFlog case pages, are available on the September 2014 Term page.

The court also issued summary dispositions in 46 cases, including 6 cases involving the appointment of Mr. Lawrence Soybel to the Air Force CCA (see United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page)), and 7 cases involving the brief revival of the ultimate offense doctrine at the Army CCA (see United States v. Phillips, 74 M.J. 20 (C.A.A.F. Jan. 6, 2015) (CAAFlog case page)).

Of the 37 authored opinions of the court:

  • Chief Judge Baker wrote 8.
  • Judge Ohlson wrote 8.
  • Judge Erdmann wrote 7.
  • Judge Stucky wrote 7.
  • Judge Ryan wrote 7.

Notably, Chief Judge Baker’s appointment to CAAF expired on July 31 and Judge Erdmann is now the Chief Judge of CAAF. However, for these stats, I will identify them as Chief Judge Baker and Judge Erdmann.

Judge Ohlson recused himself from one case this term: United States v. Newton, 74 M.J. 69 (C.A.A.F. Feb. 25, 2015) (CAAFlog case page), in which CAAF interpreted the 2008 Sentencing, Monitoring, Apprehending, Registering, and Tracking (“SMART”) Guidelines promulgated by the Attorney General of the United States. Prior to joining the court Judge Ohlson worked in the Department of Justice. Senior Judge Cox participated in CAAF decision in that case in place of Judge Ohlson

The 37 authored decisions break down by service as follows:

  • Army: 15 (41%).
  • Air Force: 13 (34%).
  • Navy: 4 (11%).
  • Marine Corps: 4 (11%).
  • Coast Guard: 1 (3%).

Readers may recall that in the 2013 term CAAF did not hear oral argument or issue an authored opinion in any Navy cases.

The court had a less active extraordinary writ docket in the 2014 term than in the 2013 term (when it considered 23 petitions). In the 2014 term the court considered 19 petitions (12 writ-appeals, 4 habeas petitions, 1 petition for mandamus, 1 petition for relief pendente lite, and 1 petition filed under the All Writs Act and dismissed for lack of jurisdiction). It denied all of them.

Calling winners and losers can be tough, but I’m calling 20 (54%) of the term’s authored opinions as wins for the Government. Those 19 cases are: Phillips, Piren, Castillo, Newton, McFadden, Buford, Piolunek, Olson, Norman, Torres, Castillo, Carter, Ward, Katso, McIntosh, Murphy, Schloff, Arness, Akbar, and Sullivan.

Broken down by service, among authored opinions the Government won in:

  • 8 out of 13 Air Force cases (62%)
  • 8 out of 15 Army cases (53%)
  • 2 out of 4 Navy cases (50%)
  • 1 out of 4 Marine Corps cases (25%)
  • The single Coast Guard case (100%)

Each of the judges sided with the Government as follows:

  • Judge Ryan: 24 out of 37 (64%)
  • Chief Judge Baker: 23 out of 37 (62%)
  • Judge Stucky: 19 out of 37 (51%)
  • Judge Ohlson 18 out of 36 (50%)
  • Judge Erdmann 15 out of 37 (41%)
  • Senior Judge Cox: 1 out of 1 (100%)

CAAF oral argument schedule for the September 2014 term originally included one more oral argument day, on June 9, 2015. However, Chief Judge Baker made a comment at the end of Tuesday’s oral arguments that implied that the court would not hear any more cases this term, and the court’s website no longer shows a June 9 date.

So it seems that the 2014 term’s oral argument calendar is complete. CAAF heard 36 37 (see note in comments) arguments this term. CAAF’s FY14 annual report shows how this number of arguments compares to prior years:

FY14 Oral Arguments Per Year

The court issued decisions in 18 of those. Here is a brief synopsis of the issues in the undecided 19 cases (listed in the order argued):

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