CAAFlog » SCOTUS MilJus Cases

Today – in an order available here – the Supreme Court granted the Solicitor General’s petitions for certiorari in United States v. Briggs, No. 19-108, and United States v. Collins, No. 19-184. The Court consolidated the cases and allotted one hour for oral argument.

I discussed the petition in Briggs in this post. The petition directly challenges CAAF’s decision in United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page), and indirectly challenges CAAF’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page) (the #3 Military Justice Story of 2018)

I discussed the petition in Collins in this post. The petition involves two CAAF summary decisions: United States v. Collins, 78 M.J. 415 (C.A.A.F. Mar. 12, 2019) (CAAFlog case page), and United States v. Daniels, No. 19-0345/AF (noted here). Both cases were Briggs trailers.

Last year, in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), a unanimous CAAF reversed 20 years of precedent and held that the statute of limitations for rape of adult occurring prior to January 6, 2006 (when Congress specifically eliminated the statute of limitations), is just five years. The decision was the #3 Military Justice Story of 2018. The Solicitor General did not ask the Supreme Court to review CAAF’s decision.

Earlier this year, in United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page), CAAF applied Mangahas and held that the 2006 elimination of the statute of limitations for the offense of rape was not retroactive. Accordingly, CAAF reversed Briggs’ conviction of an allegation dating to 2005. The Solicitor General asked the Supreme Court to review that decision in July, and the case is now pending conference on October 1, 2019.

After CAAF decided Briggs, it issued summary dispositions in two trailer cases: United States v. Collins, 78 M.J. 415 (C.A.A.F. Mar. 12, 2019) (CAAFlog case page), and United States v. Daniels, __ M.J. __ (C.A.A.F. Jul. 22, 2019) (noted here). The Solicitor General asked the Supreme Court to review those cases, too, in a combined petition that it also asked the Court to consolidate with the petition in Briggs (noted here). The posture of Collins and Daniels are very different from Briggs, however, because in Briggs the statute of limitations (as reinterpreted by Mangahas) had not yet expired when Congress eliminated it, creating the possibility of retroactive application of the new, unlimited statute of limitations, while the prosecutions in Collins and Daniels were both firmly time-barred under the new, Mangahas standard (because a statute of limitations may be extended retroactively, but only for charges where the preexisting statute of limitations has not yet expired; the allegation in Collins dates to 2000, and the allegation in Daniels dates to 1998).

Collins has filed his brief in opposition to the Solicitor General’s petition. It is available here.

Additionally, the alleged victims in Collins and Daniels have filed an amicus curiae brief in support of the Solicitor General’s petition. It is available here.

Here’s a link to a Washington Times story about a military judge’s ruling in an Air Force general court-martial, dismissing sexual assault charges with prejudice because the convening authority (a 2-star) “directed the trial counsel not to enforce their subpoenas, [resulting in] the government abdicat[ing] its obligations to the justice system.” The military judge’s 13-page ruling is available here. Reportedly, the prosecution will not appeal the ruling.

Additionally, here’s a link to a story about the arrest of Coast Guard Seaman Ethan Tucker for the murder a fellow Coast Guardsman in Alaska.

In other news, the Solicitor General filed a reply brief in support of the Government’s petition for certiorari in Briggs. The brief is available here.

Finally, CAAF’s 2019 orientation for new attorneys (an annual event) will be on Tuesday, September 24, 2019 at 9:30 a.m. Additional details available here.

Last month the Solicitor General filed a petition for certiorari in United States v. Briggs, No. 19-108. I discussed the petition in this post.

Yesterday Briggs responded, opposing the petition. The response is available here.

It begins:

The Petition relies upon a view of this Court’s jurisdiction over the Court of Appeals for the Armed Forces (CAAF) that the government has consistently rejected. On the merits, its principal objection is that CAAF misinterpreted the Uniform Code of Military Justice (UCMJ). As the government concedes, though, CAAF’s putative errors are limited not only to courts-martial, but to “a closed set of crimes committed before 2006.” Pet. 23. To explain why this case is nevertheless worthy of certiorari, the Petition invents nonexistent tension between CAAF’s rulings and those of the civilian courts, and it argues that the Eighth Amendment does not forbid imposition of the death penalty for rape in the military even though that important issue was not addressed by CAAF below; is not relevant to any forward-looking cases; and is in any event mooted by the UCMJ. Finally, and most importantly, the two CAAF rulings at issue were both correct. The Petition should therefore be denied.

In a petition filed yesterday and available here, the Solicitor General seeks Supreme Court review of CAAF’s summary affirmation of the Air Force CCA’s decision in United States v. Collins, 78 M.J. 415 (C.A.A.F. Mar. 12, 2019) (CAAFlog case page).

The petition in Collins presents the exact same question as the petition filed by the Solicitor General in Briggs (discussed here):

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.

The petition asks the Court to grant certiorari in both cases and consolidate them or briefing, for to hold the petition in Collins pending resolution of Briggs.

Update: The petition also includes CAAF’s summary disposition in United States v. Daniels, No. 19-0345/AF (noted here)

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.

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 a rape conviction from 2014 based on an allegation dating to 2005.

The Solicitor General has received an extension of time – until June 22, 2019 – to seek certiorari of CAAF’s decision. In a motion filed on May 10 and available here, the SG asserted:

The court [CAAF] stated that, under its decision in Mangahas, the UCMJ at the time of respondent’s offense in 2005 “established a five-year period of limitations,” id. at 5a, and the court concluded that the 2006 amendment to the UCMJ expressly eliminating any limitations period for rape charges did not apply, id. at 6a-10a. The court viewed its precedent to require treating the issue as a question of retroactivity; applied presumptions disfavoring the amendment’s application; and refused to find those presumptions overcome. See ibid. The court rejected the government’s contention that applying the 2006 amendment would not actually be a “‘retroactive’ 5 application of the law because the 2006 amendment did not attach any new legal obligations on” respondent, as well as its contention that Congress intended the 2006 amendment to apply to cases like respondent’s because it was simply codifying the CAAF’s then-extant decisions in Stebbins and Willenbring, id. at 8a-10a. The CAAF also rejected the government’s contention that respondent had relinquished the limitations defense by failing to raise it at trial. Id. at 10a-12a.

Today’s order list (available here) includes a denial of the petition for certiorari in Larrabee.  The petition (available here) challenged the constitutionality of court-martial jurisdiction over retired members of the armed forces who receive retired pay.

The exercise of such jurisdiction was our #1 Military Justice Story of 2017.

The #1 Military Justice Story of 2018 is the Supreme Court’s decision in Ortiz v. United States, 585 U.S. __, 138 S. Ct. 2165 (Jun. 22, 2018) (link to slip op.).

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Back in June, SCOTUS found no problem with concurrent service of appellate military judges on both a Court of Criminal Appeals (CCAs) and the Court of Military Commission Review (CMCR), in Ortiz v. United States, 585 U.S. __, No. 16-1423 (CAAFlog case page).

There were many trailer cases, including 167 court-martial appeals combined under Abdirahman, et al. v. United States, No. 17-206. One of those 167 appeals involved Air Force Lieutenant Colonel Michael Briggs, who was convicted of rape in 2014 for an offense that allegedly occurred in 2005. We noted the conviction in this post. The Air Force CCA affirmed in 2016 (link to slip op.). CAAF summarily affirmed in May, 2017.

But then CAAF decided United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), re-interpreting the statute of limitations for the offense of rape of an adult. Briggs promptly filed a supplemental brief (noted here) with SCOTUS seeing reversal on the separate basis that the military appellate courts should review his conviction in light of Mangahas.  The Solicitor General filed a response (noted here) that did not oppose remand to CAAF for that review.

In today’s order list, SCOTUS granted that review:

17-243 ABDIRAHMAN, LIBAN H. V. UNITED STATES

The petition for rehearing is granted. The order entered June 28, 2018, denying the petition for a writ of certiorari is vacated as to petitioner Michael Briggs. The petition for a writ of certiorari as to Michael Briggs is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Armed Forces for further consideration in light of United States v. Mangahas, 77 M. J. 220 (2018).

The Supreme Court decided Ortiz v. United States, 585 U.S. __, No. 16-1423 (link to slip op.) (CAAFlog case page) (SCOTUSblog case page), on Friday, June 22, 2018. In a 7-2 decision, the Court affirms the existence of appellate jurisdiction over CAAF and also affirms CAAF’s decision that found no violation in concurrent service of appellate military judges on both a Court of Criminal Appeals (CCAs) and the Court of Military Commission Review (CMCR).

Justice Kagan writes for the Court. Justice Thomas writes separately, concurring. Justice Alito dissents, joined by Justice Gorsuch, disagreeing that the Court has appellate jurisdiction over CAAF.

The Military Commissions Act of 2009 established the CMCR as an independent Article I court of record. Judges are appointed to the CMCR by the President, with Senate confirmation. Additionally, the Secretary of Defense may also assign commissioned officers of the armed forces to serve as appellate judges on the CMCR. Ortiz, and a large group of consolidated and trailer cases, involve commissioned officers who were assigned by the Secretary of Defense to the CMCR and then (to avoid a potential constitutional challenge to their CMCR assignments) nominated by the President and confirmed by the Senate, all while simultaneously serving as appellate military judges on CCAs. The court-martial convictions in Ortiz and the others cases were reviewed by CCA panels that included these dual-hatted officers, and the petitioners challenged the judges’ continued service as CCA judges under both the Appointments Clause of the Constitution and also a federal statute – 10 U.S.C. § 973 – that generally prohibits military officers from holding civil office.

CAAF rejected some of the challenges as moot in United States v. Dalmazzi, 76 M.J. 1 (C.A.A.F. 2016) (CAAFlog case page), because the CCA decisions were issued before the challenged judges were appointed to the CMCR by the President. But CAAF addressed the substance of the challenges – and rejected them – in United States v. Ortiz, 76 M.J. 189 (C.A.A.F. 2017) (CAAFlog case page), holding that there was no error in the participation of a Presidentially-appointed and Senate-confirmed judge of the Court of Military Commission Review (CMCR), who is also an Air Force Colonel, on the CCA panel that reviewed the appellant’s case.

Many petitions for certiorari followed, and the Supreme Court granted review in three cases: Dalmazzi v. United States, No. 16-961; Cox, et al., v. United States, No. 16-1017 (the Dalmazzi trailer cases); and Ortiz v. United States, No. 16-1423. Those grants were the #2 Military Justice Story of 2017. The Court also held petitions for certiorari in a large number of Ortiz trailer cases (the largest of which is Abdirahman).

Those grants – and Friday’s decision – are the first plenary review of a court-martial by SCOTUS since United States v. Denedo, 556 U.S. 904 (2009) (the #8 Military Justice Story of 2008).

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In 2013, Army Staff Sergeant (SSG) Robert Bales pleaded guilty to the 2012 murder of 16 Afghan civilians. The case had been referred capital, and Bales’ plea avoided the possibility of the death sentence. A panel of members sentenced Bales to the maximum possible punishment of life without the possibility of parole. Our coverage of the case is available here.

The Army CCA affirmed the findings and the sentence in an opinion issued last September (link to slip op.). CAAF granted review and summarily affirmed on Feb. 15, 2018. Now Bales seeks certiorari. The petition is available here. The questions presented are:

Whether the Court of Appeals erred when it held that in a capital case, a prosecutor does not have to disclose exculpatory medical evidence in the government’s possession relating to the accused’s state-of-mind to commit 16 homicides where the United States ordered the accused to take mefloquine, a drug known by the U.S. Food and Drug Administration and the U.S. Military to cause long-lasting adverse psychiatric effects, including symptoms of psychosis that may occur years after use.

Whether the Court of Appeals erred when it held that in a capital case, a prosecutor does not have to disclose mitigating impeachment evidence in the government’s possession that Afghan sentencing witnesses flown into the United States left their fingerprints on bombs and improvised explosive devices, especially where the prosecution held the Afghan witnesses out to the jury as innocent “farmers.”

Available here.

Available here. Audio expected on Friday.

Excerpt (from pdf page 29):

With regard to how this Court could distinguish and save for another day the question of when Congress could give it direct appellate jurisdiction over an administrative tribunal, I do think the fact that Congress has called the Court of Appeals for the Armed Forces a court of record, that it acts like a court of record, and that it dispenses judgments in criminal cases are all reasons that distinguish it from administrative adjudication.

Here’s a link to SCOTUSblog’s analysis of today’s oral argument at the Supreme Court in Dalmazzi.

Excerpt:

[Assistant to the solicitor general Brian H.] Fletcher sat down without using all of his 30 minutes of argument time, having faced relatively few questions about the merits of the service members’ challenge. Assuming that the justices get that far, that’s a good sign for the government. But Fletcher faced more, and tougher, questions about whether the court has the authority to hear the service members’ cases at all. The government and the service members agree that it does, but a University of Virginia law professor, Aditya Bamzai, argued today that it does not. Bamzai told the justices that the court can only review decisions by the U.S. Court of Appeals for the Armed Forces (CAAF), which heard the service members’ appeals from the CCAs, if those decisions are “appeals.” But because the CAAF is part of the executive branch, he concludes, it does not exercise real judicial power.

The justices struggled with the broader implications of Bamzai’s assertion throughout the oral argument. Breyer outlined the problem in a question for Vladeck, telling him that there are “many adjudicatory bodies in the executive branch”: How, he asked, do we draw a line that will allow us to hear appeals from the CAAF, but not from other entities such as the National Labor Relations Board or the Securities and Exchange Commission? There were no clear-cut answers to Breyer’s question; a decision on both the jurisdictional issue and, if necessary, the dual-officeholding ban is expected by summer.