CAAFlog » SCOTUS MilJus Cases

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 For 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.

In 2012 we wondered if petitions for certiorari in military cases were an endangered species. At that point a decade had passed since the last grant of a petition filed by a servicemember, and that was just a summary remand (535 U.S. 1014). Two decades have passed since the Supreme Court last conducted a plenary review of a case brought by a servicemember. See Edmond v. United States, 520 U.S. 651 (1997) (holding that Sec. of Trans. may appoint civilians to the Coast Guard CCA). The Solicitor General, however, has a better track record, getting certiorari more recently in United States v. Denedo, 556 U.S. 904 (2009) (the #8 Military Justice Story of 2008).

The number of petitions increased after 2012, but a successful petition for certiorari in a military case is a rarity. So much so that we idolize it with a little statue we call the Golden CAAF. Here it is in the hand of Marcus Fulton circa 2008, before it was awarded to the Navy-Marine Corps Appellate Government Division for their role in the grant in Denedo:

In 2017 we awarded the Golden CAAF II for a tripartite grant in Dalmazzi v. United States, Cox v. United States, and Ortiz v. United States, to University of Texas School of Law professor Stephen Vladeck, who is lead counsel. He introduced it to UT mascot Bevo, and forwarded a picture:

The Supreme Court’s grant of certiorari is our #2 Military Justice Story of 2017.

Read more »

Just filed and available here.

The summary of the argument includes:

I. The President’s appointments of Judges Burton, Celtnieks, Herring, and Mitchell to the CMCR did not violate 10 U.S.C. 973(b). And even if they did, petitioners would not be entitled to relief from the CCA decisions affirming their convictions because Congress specifically provided that Section 973(b) does not invalidate the subsequent actions of a military officer who accepts a covered civil office. . .

II. A military officer’s simultaneous service on a CCA and the CMCR does not raise questions under the Appointments Clause or the Commander-in-Chief Clause. Petitioners identify nothing in the text or history of the Appointments Clause, or in this Court’s decisions, to support their assertion that the Clause imposes an ill-defined “incompatibility” or “incongruity” limitation on the circumstances in which an individual may hold two separate federal offices. And even if such a limit existed, it would not be implicated here. A military judge’s simultaneous service on a CCA and the CMCR is no more “incongruous” or “incompatible” than a district judge’s service on the Foreign Intelligence Surveillance Court or a circuit judge’s service on a three-judge district court. And petitioners’ argument that the Commander-in-Chief Clause does not permit the restrictions on removal that petitioners assume are triggered by presidential appointment to the CMCR rests on the erroneous premise that Judges Burton, Celtnieks, Herring, and Mitchell are not subject to 10 U.S.C. 949b(b)(4), the statutory provision governing reassignment of military judges serving on the CMCR.

III. This Court lacks jurisdiction in Dalmazzi and Cox, but has jurisdiction in Ortiz. . . .

IV. If the Court concludes that it has jurisdiction in Dalmazzi and Cox, it should not disturb the CAAF’s discretionary denials of review. The CAAF did not abuse its discretion in vacating its grants of review and denying the petitions in those cases when it discovered that the questions it had agreed to decide were not squarely presented.

This week at SCOTUS: On September 28, 2017, the Supreme Court granted certiorari in Dalmazzi v. United States, No. 16-961Cox, et al., v. United States, No. 16-1017, and Ortiz v. United States, No. 16-1423, consolidating the cases and directing additional briefing on whether the Court has jurisdiction over those where CAAF vacated its grant of review. They are the first military cases to be granted cert. since United States v. Denedo, 556 U.S. 904 (2009). Our coverage of these cases will continue under the heading of Dalmazzi v. United States, No. 16-961 (CAAFlog case page) (SCOTUSblog case page).

In other SCOTUS news, the cert. petitions in Abdirahman, et at., and Alexander were distributed for conference on Oct. 13. Additionally, an extension of time to file a cert. petition was granted in Richards v. United States, No. 17A338, until November 10, 2017. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:

This week at CAAF: The next scheduled oral argument at CAAF is on October 10, 2017.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on October 24, 2017. The argument will be heard at the Florida International University College of Law.

This week at the CGCCA: The Coast Guard CCA has a new website, but the link to its docket doesn’t work.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.