Guide: Rules of Practice and Procedure

GUIDE
to the
RULES OF PRACTICE AND PROCEDURE
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

13th Edition Eugene R. Fidell
for the
GUIDE
to the
RULES OF PRACTICE AND PROCEDURE

for the
THIRTEENTH EDITION ______________ EUGENE R. FIDELL President, National Institute of Military Justice Senior Research Scholar in Law and Florence Rogatz Lecturer in Law, Yale Law School
NATIONAL INSTITUTE OF MILITARY JUSTICE AMERICAN UNIVERSITY WASHINGTON COLLEGE OF LAW WASHINGTON, DC 2010
For Linda and Hannah
Copyright 2010 Eugene R. Fidell. All rights reserved. Copyright is not claimed in the Rules of Practice and Procedure for the United States Court of Appeals for the Armed Forces, the commentary prepared by the Courts Rules Advisory Committee or any other part of the original work prepared by a United States Government officer or employee as part of that persons official duties. Contact Information Eugene R. Fidell Yale Law School 127 Wall Street New Haven, Connecticut 06511 eugene.fidell@yale.edu National Institute of Military Justice Washington College of Law American University 4801 Massachusetts Avenue, N.W. Washington, D.C. 20016 (202) 274-4322 nimj@wcl.american.edu www.wcl.american.edu/nimj/ Acknowledgements This Guide, the first edition of which was prepared in 1978, could not have been written or kept up to date without the cooperation of the staff of the United States Court of Appeals for the Armed Forces. Special thanks are due Clerk of the Court William A. DeCicco, Matthew S. Freedus, Dwight H. Sullivan, Irina Vayner, Michelle Lindo McCluer, Jonathan Tracy, Aurafe Nayna Malayang, the Open Society Institute and the Atlantic Philanthropies. Opinions expressed in the Guide do not necessarily represent the views of the National Institute of Military Justice. A searchable version may be downloaded from the NIMJ website. Citation Cite as: EUGENE R. FIDELL, GUIDE TO THE RULES OF PRACTICE AND PROCEDURE FOR THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES [page] (13th ed. 2010).
TABLE OF CONTENTS
Introduction .......................................................................................................... 1 The Annotated Rules. ......................................................................................... 9 GENERAL Rule 1. Name .......................................................................................................... 9 1983 Rules Advisory Committee Comment .............................................. 9 Discussion ................................................................................................... 9 Rule 2. Seal ......................................................................................................... 11 1983 Rules Advisory Committee Comment ............................................ 11 Discussion ................................................................................................. 12 Rule 3. Oath of Judges ..................................................................................... 12 1983 Rules Advisory Committee Comment ............................................ 12 Rule 3A. Senior Judges .................................................................................... 12 Discussion ................................................................................................. 14 Rule 4. Jurisdiction .......................................................................................... 15 1983 Rules Advisory Committee Comment ............................................ 16 1995 Rules Advisory Committee Comment ............................................ 16 Discussion ................................................................................................. 18 Rule 5. Scope of Review ................................................................................... 33 1983 Rules Advisory Committee Comment ............................................ 34 Discussion ................................................................................................. 34 Rule 6. Quorum .................................................................................................. 43 1983 Rules Advisory Committee Comment ............................................ 44 Discussion ................................................................................................. 44 Rule 7. Process ................................................................................................... 50 Discussion ................................................................................................. 50 Rule 8. Parties .................................................................................................... 51 1983 Rules Advisory Committee Comment ............................................ 52 1998 Rules Advisory Committee Comment ............................................ 53 Discussion ................................................................................................. 54 CLERKS OFFICE Rule 9. Clerk ....................................................................................................... 61 1983 Rules Advisory Committee Comment ............................................ 63 1999 Rules Advisory Committee Comment ............................................ 63 2006 Rules Advisory Committee Comment ............................................ 63
Discussion ................................................................................................. 64 Rule 10. Docket .................................................................................................. 67 1983 Rules Advisory Committee Comment ............................................ 68 1998 Rules Advisory Committee Comment ............................................ 69 2005 Rules Advisory Committee Explanatory Note ............................... 70 Discussion ................................................................................................. 70 Rule 11. Calendar .............................................................................................. 72 1983 Rules Advisory Committee Comment ............................................ 73 Discussion ................................................................................................. 73 Rule 12. Cases Involving Classified Information ...................................... 76 1983 Rules Advisory Committee Comment ............................................ 76 Discussion ................................................................................................. 78 ATTORNEYS Rule 13. Qualifications to Practice ............................................................... 78 1983 Rules Advisory Committee Comment ............................................ 79 2001 Rules Advisory Committee Comment ............................................ 80 Discussion ................................................................................................. 80 Rule 13A. Student Practice Rule ................................................................... 83 1995 Rules Advisory Committee Comment ............................................ 86 Discussion ................................................................................................. 87 Rule 14. Honorary Membership [rescinded] .............................................. 90 2006 Rules Advisory Committee Comment ............................................ 90 Discussion ................................................................................................. 90 Rule 15. Disbarment and Disciplinary Action ........................................... 91 1983 Rules Advisory Committee Comment [Obsolete] .......................... 92 1998 Rules Advisory Committee Comment [Obsolete] .......................... 93 2004 Rules Advisory Committee Explanatory Note .............................. 94 Discussion ................................................................................................. 94 Rule 16. Entry of Appearance and Withdrawal by Counsel ................... 97 1983 Rules Advisory Committee Comment ............................................ 97 Discussion ................................................................................................. 97 Rule 17. Assignment of Counsel .................................................................. 102 1983 Rules Advisory Committee Comment .......................................... 102 Discussion ............................................................................................... 103
APPEALS Rule 18. Methods of Appeal .......................................................................... 105 1983 Rules Advisory Committee Comment .......................................... 106 1998 Rules Advisory Committee Comment .......................................... 107 Discussion ............................................................................................... 107 Rule 19. Time Limits....................................................................................... 110 1983 Rules Advisory Committee Comment .......................................... 116 1995 Rules Advisory Committee Comment .......................................... 118 1998 Rules Advisory Committee Comment .......................................... 119 2006 Rules Advisory Committee Comment .......................................... 119 2009 Rules Advisory Committee Comment .......................................... 120 Discussion ............................................................................................... 120 PETITIONS FOR GRANT OF REVIEW Rule 20. Form of Petition for Grant of Review ........................................ 142 2001 Rules Advisory Committee Comment .......................................... 145 2009 Rules Advisory Committee Comment .......................................... 145 Discussion ............................................................................................... 145 Rule 21. Supplement to Petition for Grant of Review ........................... 147 1990 Rules Advisory Committee Comment .......................................... 151 2001 Rules Advisory Committee Comment .......................................... 152 2004 Rules Advisory Committee Explanatory Note ............................. 153 2005 Rules Advisory Committee Explanatory Note ............................. 153 2008 Rules Advisory Committee Comment .......................................... 153 2009 Rules Advisory Committee Comment .......................................... 154 Discussion ............................................................................................... 154 Rule 22. Certificate for Review, Answer, Reply ...................................... 167 1983 Rules Advisory Committee Comment .......................................... 169 2006 Rules Advisory Committee Comment .......................................... 170 Discussion ............................................................................................... 170 Rule 23. Mandatory Review Cases .............................................................. 170 1983 Rules Advisory Committee Comment .......................................... 171 BRIEFS Rule 24. Form, Content and Page Limitations......................................... 172 1983 Rules Advisory Committee Comment .......................................... 179 2001 Rules Advisory Committee Comment .......................................... 179 2004 Rules Advisory Committee Explanatory Note ............................. 180 2005 Rules Advisory Committee Explanatory Note ............................. 180 2007 Rules Advisory Committee Comment .......................................... 180 Discussion ............................................................................................... 181
Rule 25. When Briefs are Required............................................................. 189 1983 Rules Advisory Committee Comment .......................................... 189 1998 Rules Advisory Committee Comment .......................................... 190 Discussion ............................................................................................... 190 Rule 26. Amicus Curiae Briefs ..................................................................... 192 1983 Rules Advisory Committee Comment .......................................... 193 1998 Rules Advisory Committee Comment .......................................... 194 2004 Rules Advisory Committee Explanatory Note ............................. 194 2006 Rules Advisory Committee Comment ......................................... 194 Discussion ............................................................................................... 195 EXTRAORDINARY RELIEF Rule 27. Petition for Extraordinary Relief .............................................. 199 1983 Rules Advisory Committee Comment .......................................... 202 1995 Rules Advisory Committee Comment .......................................... 203 1998 Rules Advisory Committee Comment .......................................... 204 2007 Rules Advisory Committee Comment .......................................... 207 Discussion ............................................................................................... 207 Rule 28. Form of Petition for Extraordinary Relief, Writ Appeal Petition, Answer, and Reply .......................................................................... 209 1983 Rules Advisory Committee Comment .......................................... 213 1998 Rules Advisory Committee Comment .......................................... 213 2005 Rules Advisory Committee Explanatory Note ............................. 213 Discussion ............................................................................................... 213 PETITIONS FOR NEW TRIAL Rule 29. Filing, Notice, and Briefs .............................................................. 214 1983 Rules Advisory Committee Comment .......................................... 215 Discussion ............................................................................................... 215 MOTIONS Rule 30. Motions .............................................................................................. 217 1983 Rules Advisory Committee Comment .......................................... 218 1995 Rules Advisory Committee Comment .......................................... 218 1999 Rules Advisory Committee Comment .......................................... 218 2007 Rules Advisory Committee Comment .......................................... 218 Discussion ............................................................................................... 219 Rule 30A. Fact Finding .................................................................................. 221 1999 Rules Advisory Committee Comment .......................................... 221
RECONSIDERATION Rule 31. Petition for Reconsideration ....................................................... 222 1983 Rules Advisory Committee Comment .......................................... 223 1995 Rules Advisory Committee Comment .......................................... 223 1999 Rules Advisory Committee Comment .......................................... 223 Discussion ............................................................................................... 223 Rule 32. Form of Petition for Reconsideration ....................................... 227 1983 Rules Advisory Committee Comment .......................................... 228 2005 Rules Advisory Committee Explanatory Note ............................. 228 Discussion ............................................................................................... 228 PRACTICE BEFORE THE COURT Rule 33. Suspension of Rules ....................................................................... 229 1983 Rules Advisory Committee Comment .......................................... 229 Discussion ............................................................................................... 229 Rule 34. Computation of Time ..................................................................... 232 1983 Rules Advisory Committee Comment .......................................... 233 2005 Rules Advisory Committee Explanatory Note ............................. 233 Discussion ............................................................................................... 233 Rule 35. Filing of Record ............................................................................... 233 1983 Rules Advisory Committee Comment .......................................... 234 Discussion ............................................................................................... 234 Rule 35A. Use of Classified Information.................................................... 234 1999 Rules Advisory Committee Comment .......................................... 235 Discussion ............................................................................................... 235 Rule 36. Filing of Pleadings .......................................................................... 235 1983 Rules Advisory Committee Comment .......................................... 236 1999 Rules Advisory Committee Comment .......................................... 236 2005 Rules Advisory Committee Explanatory Note ............................. 236 Discussion ............................................................................................... 237 Rule 36A. Citations to Supplemental Authorities ................................... 238 1999 Rules Advisory Committee Comment .......................................... 238 2007 Rules Advisory Committee Comment .......................................... 239 Discussion ............................................................................................... 239 Rule 37. Printing, Copying and Style Requirements ............................. 239 1983 Rules Advisory Committee Comment .......................................... 240 1999 Rules Advisory Committee Comment .......................................... 241 2004 Rules Advisory Committee Explanatory Note ............................. 241 2006 Rules Advisory Committee Comment .......................................... 241
2009 Rules Advisory Committee Comment .......................................... 241 Discussion ............................................................................................... 242 Rule 38. Signatures ......................................................................................... 246 1983 Rules Advisory Committee Comment .......................................... 246 2004 Rules Advisory Committee Explanatory Note ............................. 247 Discussion ............................................................................................... 247 Rule 39. Service of Pleadings ....................................................................... 248 1983 Rules Advisory Committee Comment .......................................... 249 1999 Rules Advisory Committee Comment .......................................... 249 2005 Rules Advisory Committee Explanatory Note ............................. 250 Discussion ............................................................................................... 250 HEARINGS Rule 40. Hearings ............................................................................................ 252 1983 Rules Advisory Committee Comment .......................................... 252 2009 Rules Advisory Committee Comment .......................................... 253 Discussion ............................................................................................... 253 Rule 41. Photographing, Televising, Recording, or Broadcasting of Hearings ............................................................................................................. 263 1983 Rules Advisory Committee Comment .......................................... 263 2001 Rules Advisory Committee Comment .......................................... 263 2006 Rules Advisory Committee Comment .......................................... 263 Discussion ............................................................................................... 264 OPINIONS Rule 42. Filing, Reproduction, and Distribution .................................... 266 1983 Rules Advisory Committee Comment .......................................... 266 Discussion ............................................................................................... 266 Rule 43. Entry of Judgment .......................................................................... 271 1998 Rules Advisory Committee Comment .......................................... 271 Rule 43a. Issuance of Mandate .................................................................... 271 1983 Rules Advisory Committee Comment .......................................... 272 1998 Rules Advisory Committee Comment .......................................... 272 Discussion ............................................................................................... 272 JUDICIAL CONFERENCE Rule 44. Judicial Conference ....................................................................... 273 1998 Rules Advisory Committee Comment .......................................... 274 Discussion ............................................................................................... 274
REVIEW OF RULES Rule 45. Rules Advisory Committee ........................................................... 274 Discussion ............................................................................................... 275 Appendices Information Questionnaire to Supplement Mail Inquiries ................. 282 Discussion .................................................................................. 284 Application for Admission to Practice..286 Electronic Filing ..................................................................................... 288 2009 Rules Advisory Committee Comment ............................ 288 Code Provisions 867. Art. 67. Review by the Court of Appeals for the Armed Forces.................................................................................... 289 867a. Art. 67a. Review by the Supreme Court .................................. 290 941. Art. 141. Status .......................................................................... 290 942. Art. 142. Judges ......................................................................... 290 943. Art. 143. Organization and Employees ................................... 293 944. Art. 144. Procedure .................................................................... 295 945. Art. 145. Annuities for Judges and Survivors ........................ 295 946. Art. 146. Code Committee ......................................................... 295 Index.................................................................................................................... 298
Introduction Not for a generation, at least, has public and bar interest in military justice been as intense as it currently is. This is a result of high-profile cases that have arisen out of United States military operations in Afghanistan and Iraq, as well as the revival of military commissions for the first time since World War II. While the spotlight of public attention has understandably focused on the trial courts, attention will shift to the appellate courts established under the Uniform Code of Military Justice (UCMJ) and the Supreme Court of the United States as Iraq and Afghanistan courts-martial work their way through the system. It is more critical than ever that both the public and the bar have available reliable information about the functioning of the military appellate judicial process. The apex of that process, short of the Supreme Court, is the United States Court of Appeals for the Armed Forces. Article 144 of the UCMJ authorizes the Court of Appeals (known until 1994 as the United States Court of Military Appeals) to prescribe its own rules of procedure and determine the number of judges required to constitute a quorum. 10 U.S.C. 944 (2006). As a court established by Congress (under Article I of the Constitution), the Court also has power to make rules for the conduct of [its] business, under the Judicial Code. 28 U.S.C. 2071(a) (2006). Specific power to make rules for the use and conduct of senior judges was conferred on the Court in 1989. UCMJ art. 142(e)(5), 10 U.S.C. 942(e)(5) (2006). The Courts first rules were issued on July 11, 1951. 16 FED. REG. 7279 (1951); see 1961 CODE COMM. ANN. REP. 50 (1962); see also 16 FED. REG. 10,159 (1951). These were revised on March 1, 1952, 17 FED. REG. 2046 (1952); December 1, 1952, 17 FED. REG. 11,195 (1952); May 31, 1953, 1 C.M.A. XIX, 18 FED. REG. 3534 (1953); January 1, 1959; January 1, 1962, 1962 CODE COMM. ANN. REP. 67 (1963), 40 C.M.R. XVII; August 11, 1975, 3 MLR 2586; November 3, 1975, 3 MLR 2687; November 18, 1975, 3 MLR 2688; May 18, 1977, 3 M.J. 185, 5 MLR 4501; June 27, 1977, 3 M.J. XCIII, 4 MLR 4501; see 1977 CODE COMM. ANN. REP. 3 (1978); February 27, 1980, 8 M.J. 274, 8 MLR 1013; September 23, 1981, 12 M.J. 72; January 29, 1982, 12 M.J. 411; December 20, 1982, 15 M.J. 79; July 1, 1983, 15 M.J. CXV, 10 U.S.C.A. foll. 867 (West 1983); July 19, 1984, effective August 1, 1984; October 1, 1987; July 16, 1990, effective August 15, 1990, 31 M.J. 465; September 29, 1990, effective October 1, 1990, 32 M.J. 46; February 27, 1991, 32 M.J. 386; August 15, 1991, effective October 1, 1991; October 30, 1991, effective November 4, 1991; March 3, 1992, effective April 1, 1992; March 31, 1994, effective that day, 39 M.J. 446; May 11, 1994, effective that day, 40 M.J. 45, 59 FED. REG. 25,622 (1994); October 12, 1994; January 4, 1995, 42 M.J. 82; November 1, 1995, effective November 15, 1995, 43 M.J.
GUIDE TO THE RULES OF PRACTICE AND PROCEDURE
CLXXVII; February 27, 1996; June 9, 1997, 47 M.J. 70; January 12, 1998, effective February 2, 1998, 47 M.J. XXXI, 48 M.J. 448; March 26, 1998, effective May 1, 1998, 48 M.J. CI; April 30, 1998, also effective May 1, 1998, 48 M.J. CXI; January 20, 1999, effective February 1, 1999, 51 M.J. 309; May 25, 1999, effective July 1, 1999. 52 M.J. 306; September 20, 1999, effective October 1, 1999. 52 M.J. 440; October 22, 2001, effective November 1, 2001, 56 M.J. 195; July 27, 2004, effective October 1, 2004, 60 M.J. LXI, 290; October 25, 2005, effective January 1, 2006, 62 M.J. 323, 63 M.J. LI; December 8, 2006, effective January 1, 2007, 64 M.J. 358; June 4, 2007, effective in part on August 1, 2007 and in part on July 1, 2008. 65 M.J. 271, corrected, 65 M.J. 304; January 10, 2008, effective March 1, 2008, 66 M.J. 98; July 30, 2008, effective September 1, 2008, 67 M.J. 16; and July 15, 2009, effective September 1, 2009, 67 M.J. LXVII, 16. The Court also issued temporary rules concerning electronic filing on May 8, 2003, effective May 15, 2003, 58 M.J. 282, and on August 5, 2004, effective August 16, 2004. 60 M.J. 308. The latest such order, issued on July 15, 2009, effective September 1, 2009, 67 M.J. LXX, is reproduced in the Appendix. While, therefore, there have been many changes along the way, sweeping overhauls have been so rare that in 1972 it could still be said that the Courts original rules were substantially unchanged. Tribute in Honor of Alfred C. Proulx, 32 M.J. 225, 226 (1990) (quoting letter from Quinn, C.J., to Alfred C. Proulx (June 29, 1972)). The 1983 changes remain, at this writing, the latest complete revision. The Court publishes its rules in pamphlet form from time to time. E.g., Rule Book Order, 39 M.J. 13 (1993). These are available free of charge from the Clerk. The rules may also be accessed from the Courts website, www.armfor.uscourts.gov/Rules.htm. The latest pamphlet includes the text of the rules as amended through September 1, 2009. Rules Changes are published in the Military Justice Reporter and U.S. Code Congressional and Administrative News and the most recent version of the Rules themselves are reproduced following 10 U.S.C.A. 867. In 1959 the Court stopped publishing its rules in the Federal Register, 24 FED. REG. 474 (1959) (deleting chapter from 32 C.F.R.), although it has continued to publish notices of proposed rule changes in that medium. 74 FED. REG. 19,947 (2009); 72 FED. REG. 18,210 (2007); 71 FED. REG. 64,251 (2006); 70 FED. REG. 54,370 (2005); 69 FED. REG. 33,363, 39,440 (2004); 66 FED. REG. 35,226 (2001); 64 FED. REG. 35,633 (1999); 63 FED. REG. 6917, 54,460 (1998); 62 FED. REG. 27,592 (1997); 61 FED. REG. 18,724, 66,025 (1996); 60 FED. REG. 4893 (1995), corrected, 60 FED. REG. 13,780 (1995); 59 FED. REG. 25,622 (1994); 56 FED. REG. 10,240 (1991); 55 FED. REG. 34,048 (1990); 54 FED. REG. 20,631 (1989). The Judge Advocates Generals joint rules for the Courts of Criminal Appeals, 44 M.J. LXIII, continue to appear in the Code of Federal Regulations. 32 C.F.R. Pt. 150 (2009). Despite, or perhaps because of, the fact that the rules have been part of the legal scenery for nearly 50 years, they have received remarkably little attention in the professional literature on military justice. Useful older sources
such as HOMER E. MOYER, JUSTICE AND THE MILITARY (1972), WILLIAM B. AYCOCK & SEYMOUR W. WURFEL, MILITARY LAW UNDER THE UNIFORM CODE OF MILITARY JUSTICE (1955, Rep. 1972), LEE S. TILLOTSON, INDEX-DIGEST AND ANNOTATIONS TO THE UNIFORM CODE OF MILITARY JUSTICE (4th ed. 1956), RICHARD L. TEDROW, ANNOTATED AND DIGESTED OPINIONS OF THE UNITED STATES COURT OF MILITARY APPEALS (1967) (which had numerous references to unreported actions), ROBINSON O. EVERETT, MILITARY JUSTICE IN THE ARMED FORCES OF THE UNITED STATES (1956), and BENJAMIN FELD, A Manual OF COURTS-MARTIAL PRACTICE AND APPEAL (1957), included valuable material on the appellate process but are now hopelessly dated. The excellent and otherwise thorough newer treatises, DAVID A. SCHLUETER, MILITARY CRIMINAL JUSTICE: PRACTICE AND PROCEDURE (6th ed. 2004), FRANCIS A. GILLIGAN & FREDRIC I. LEDERER, COURT-MARTIAL PROCEDURE (3d ed. 2006), and DAVID A. SCHLUETER, KEN JANSEN, KEVIN J. BARRY & KENNETH A. ARNOLD, MILITARY CRIMINAL PROCEDURE FORMS (3d ed. 2009), do not stress this dimension of the military justice system. This in itself is neither surprising nor inappropriate. After all, procedural rulings are not where one ordinarily looks to learn either the nuts and bolts of trial practice or the jurisprudence, the great themes that shape the law. In the case of the Court of Appeals, however, the resolution of procedural issues can be an unexpectedly useful prism through which to examine the pertinent institutional relationships. Those relationships are of special interest because of the Courts unique responsibilities not merely as a dispenser of appellate justice but also as an embodiment of civilian control of the military. If there are themes to be discerned from a study of the Courts rules and manner of conducting its business, these can be distilled into the following broad propositions: First, questions about the availability of review were long resolved in favor of finding, exercising and preserving the Courts jurisdiction, if fairly arguable. This principle was apparent in its expansive approach to its power under the All Writs Act, 28 U.S.C. 1651(a) (2006), as well as in a variety of other jurisdictional and procedural rulings the overall effect of which has been the creation of an elaborate network of avenues, not all of equally firm statutory pedigree, by which its jurisdiction may be invoked. Other federal courts labor under a presumption against jurisdiction; subject matter jurisdiction must be affirmatively shown. E.g., Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 10 (1799); C.F.T.C. v. Nahas, 738 F.2d 487, 492 & n.9 (D.C. Cir. 1984). Animated by the goal of maximizing the availability of civilian review, the Court of Appeals has at times seemed to indulge nearly the opposite presumption. This traditional first principle is also reflected in the steps it has taken to ensure that access to it is not thwarted by actions of military commanders and subordinate tribunals that reduce sentences below the statutory jurisdictional threshold and in its hostility to pretrial agreements that preclude appellate review. While somewhat arcane, the Courts claim of authority to act where a service Court of Criminal Appeals has set aside a finding of guilt on the ground of fac-
tual insufficiency, United States v. Leak, 61 M.J. 234 (2005) (4-1 decision), may also be a manifestation of this first principle. The Courts jurisdictional rulings have become increasingly meticulous in light of the governments willingness to challenge those rulings before the Supreme Court. See United States v. Denedo, 66 M.J. 114 (2008), affd, 129 S. Ct. 2213 (2009). Second, doubts as to whether an accused desires to invoke the Courts jurisdiction were long resolved in the accuseds favor. This policy was manifest in the Courts unwillingness over half a century to treat time limits as jurisdictional or to reject petitions for grant of review for errors of form or even for noncompliance with what one would have thought was the congressional demand that the petitioner identify errors showing good cause for a grant of review under Article 67(a)(3). The foundation for this policy was, again, the view that unlike appellate review of other federal criminal convictions, review of courtsmartial by the Court of Appeals for the Armed Forces vindicates the distinct constitutional objective of providing civilian oversight of the military. This may explain procedural rulings such as those which, until the tide shifted in United States v. Rorie, 58 M.J. 399 (2003) (3-2 decision), required the abatement of proceedings and the dismissal of charges when, by dying before final disposition of a case or expiration of the time for seeking review, an accused had not had the benefit of review by the Court. At least with respect to petitions for grant of review the largest part of the Courts docket this generous policy is no longer effective. United States v. Rodriguez, 67 M.J. 110 (2009) (3-2 decision). Third, the Court will, subject to statutory limits, err on the side of generosity in its efforts to achieve substantial justice and protect the accused from potential lapses on the part of military or civilian defense counsel even where pursuit of these goals has the effect of setting the Court apart from the approach of other appellate courts. While no longer a basis for relief from the key time limit for invoking the Courts jurisdiction, Rodriguez, supra, this theme is apparent in a reluctance to invoke the doctrine of waiver and in the proposition that the Courts power of review will not be confined to the issues framed by the parties. The reluctance to invoke the doctrine of waiver has been a continuing source of friction with the service Courts of Criminal Appeals. More than any other aspect of its procedural tradition, the frequent practice of specifying issues not asserted by either party, and under circumstances that cannot fairly be considered an exercise of the power to correct plain error, sets it apart, if only as a matter of degree, from other federal courts of appeals. The specification of issues not assigned by an appellant or certified by a Judge Advocate General subordinates the conventional doctrine of waiver to the interest in treating like cases in like fashion by affording trailer case litigants the benefit of rulings in lead cases, even if they have not raised the issue in question. Fourth, the Court encourages the personal involvement of the accused in the pursuit of appellate remedies, in an effort to overcome the practical difficulties arising from its worldwide territorial jurisdiction and the fact that appellate defense counsel are unlikely ever to meet their clients. Appellate defense
counsel consult it is to be hoped by mail and telephone with their clients, but face-to-face meetings are rare. The Courts desire to encourage the personal involvement of the accused is illustrated by its insistence that counsel at least identify issues the accused believes may be meritorious and not withdraw untimely petitions for review without the clients consent. Similarly, in the limited category of cases with respect to which the Court exercised its power to establish a procedure for constructive service of decisions of the former Courts of Military Review (now the Courts of Criminal Appeals), it made it clear that constructive notice was to be employed only as a last resort, and even then it required three separate methods for achieving constructive notice. Fifth, although it could do more, the Court does make an effort to involve the private bar and other interests outside the military community in order to temper the strong tendency to insularity that is inherent in the institutional setting in which the Court performs its functions. This effort is apparent in its reliance on a Rules Advisory Committee that includes civilian and military members, its use of a civilian Court Committee for longer-range institutional assessments, its generally hospitable attitude toward amici curiae and occasional television coverage of hearings, its decision to promptly place audio recordings of oral arguments on its website, and its willingness to conduct hearings at civilian law schools and courthouses away from Washington as part of a longstanding public awareness project known as Project Outreach. Themes such as these manifest themselves from time to time in cases decided on full opinion, but to a considerable extent they can be discerned only through study of the memorandum orders reported in the Courts Daily Journal or other sources such as the Courts annual reports or congressional testimony. The task of understanding the Courts institutional philosophy is aided when its decisions refer in haec verba to the rules. But even the relatively few express references are typically conclusory. As was observed in the first edition of this GUIDE in 1978, the rules, citations to which are collected in Shepards Military Justice Citations, have rarely been determinative of the outcome of a case. Still, they are likely to play an increasing role in the appellate process. The military justice system came of age long before the Global War on Terrorism. As Judge Ripple observed a generation ago, A new maturity has come to military law. Kenneth F. Ripple, Foreword, DAVID A. SCHLUETER, supra (2d ed. 1987), at xxiii. After more than 50 years, it is not surprising that a good deal of lore has grown up around the highest court of the jurisdiction. This body of accumulated learning represents a substantial gloss on the black letter rules. Numerous other courts and those who study them have concluded that the judicial process is served by organizing this kind of lore and serving it up in a fashion that makes it more useful to the practitioner than relying solely on the skeletal provisions of procedural rules. E.g., EUGENE GRESSMAN, KENNETH S. GELLER, STEPHEN M. SHAPIRO, TIMOTHY S. BISHOP & EDWARD A. HARTNETT, SUPREME COURT PRACTICE (9th ed. 2007); CLERK OF THE COURT, SUPREME COURT OF THE UNITED STATES, GUIDE FOR COUNSEL IN CASES TO BE ARGUED
BEFORE THE SUPREME COURT OF THE UNITED STATES (Oct. Term 2008 rev.); U.S. CLAIMS COURT BAR ASSN, THE UNITED STATES CLAIMS COURT: A DESKBOOK FOR PRACTITIONERS (5th ed. 2008); FED. CIR., RULES OF PRACTICE BEFORE THE U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT (2008) (including Practice Notes and Guide for Pro Se Petitioners and Appellants); HANDBOOK OF PRACTICE AND INTERNAL PROCEDURES OF THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT (2009); cf. 28 U.S.C. 2077(a) (2006) (requiring courts of appeals to publish rules for the conduct of business, including operating procedures). So too, the cause of appellate military justice will be benefited if, rather than being the special preserve of a select few, this gloss can be organized and made available to a somewhat larger, if still limited, audience in a user friendly way. Doing so will serve three purposes. First, it will reduce the loss of continuity of procedural learning, a perpetual danger given the turnover of personnel in the appellate government and defense divisions of the Offices of the Judge Advocates General and the fact that appellate procedural issues often do not lend themselves to conventional research using Wests Military Justice Digest because the memorandum actions in which such issues typically figure are not digested. Computerized legal research is also unlikely to assist on these issues. Both counsel and the Court will be aided if procedural missteps can be avoided. Second, it will aid military practitioners in the field in framing trial strategies and extraordinary writ efforts by providing them with a firmer understanding of the rules of the road at the highest court. Many trial practitioners in the military justice system may assume that their need for specialized learning in the ways of the Court of Appeals is quite limited. The Courts at times expansive view of its extraordinary writ powers, however, means that trial-level counsel, either prosecution or defense, cannot permit themselves to remain unfamiliar with the intricacies of the appellate process. When the need arises for an Article 62 appeal or an extraordinary writ, time may not permit a crash course from officers assigned to the appellate divisions. Third, it will facilitate effective participation by civilian counsel both at trial and on appeal, since such counsel are unlikely to have the kind of personal experience with the appellate military justice process that a uniformed lawyer can expect to have as a result of normal career opportunities. By reducing the impression that the system is fundamentally arcane and inaccessible, this GUIDE will, it is hoped, increase the frequency of civilian practitioner involvement in courts-martial and thereby perhaps encourage the free flow of ideas and innovation between the military and civilian systems of criminal law. Both systems can benefit from such interaction. See generally Eugene R. Fidell, If a Tree Falls in the Forest . . ., Publication and Digesting Policies and the Potential Contribution of Military Courts to American Law, 32 JAG J. 1 (1982).
In 1989, the Court Committee referred to above claimed that [b]oth the Court and the system are now recognized as legitimate and vital elements of American jurisprudence by the civilian bench and bar. Presentation of Court Committee Report, 28 M.J. 99, 100 (1989). Regrettably, it must be said that that encouraging appraisal remains premature; the work is far advanced but not yet done. Many in the civilian bench and bar remain unimpressed by the Court and the system over which it presides in inverse proportion to their knowledge of each. Unfortunately, neither the legal profession nor the general public seem to have much understanding of the military justice system or awareness of the role of the Court of Military Appeals. Robinson O. Everett, The United States Court of Military Appeals: New Issues, New Initiatives, 36 FED. B. NEWS & J. 182, 184 (1989). For many, military justice is still, as one commentator observed a generation ago, a well-hidden cul-de-sac of American law. Charles R. Bruton, Book Review, 123 U. PA. L. REV. 1482, 1506 (1975). [A]s the years pass and members of the judiciary become less and less familiar with military justice, the greater is their tendency to accept the military viewpoint without giving it the critical, dispassionate and analytical treatment appropriate to appellate jurisprudence. Moreover, lack of scholarly civilian interest in military justice is reflected by its absence from most law school curriculums or law reviews. These trends are not healthy in a society that glorifies civilian control of the military. Jonathan Lurie, Military Law Marches to Own Drummer, L.A. TIMES, May 21, 1997, at B9; see also Donald N. Zillman, Where Have All the Soldiers Gone? Observations on the Decline of Military Veterans in Government, 49 ME. L. REV. 86 (1997). These conditions are likely to persist despite the progress made to date, continuing outreach efforts, and the heightened public interest in military justice as a result of the high-profile cases that have already arisen from operations in Afghanistan and Iraq as long as only a microscopic fraction of the American legal community has any current personal involvement with military justice. May this GUIDE help to hasten the day when the Court Committees assessment commands universal agreement. Such are the goals of this GUIDE. Periodic revisions are contemplated in order to maintain its usefulness. Relatively little has been retained intact from the first edition and the 1980 Supplement. Matters of purely historical or essentially academic interest have been kept to a minimum. The effort throughout is to strike a balance between the practical needs of counsel and others who work with the rules, on the one hand, and, on the other, remaining alert to major themes and areas of potential improvement. Suggestions from readers will be gratefully received. Suggestions for changes in the rules themselves should be addressed to the Clerk of the Court in accordance with Rule 45.
This edition reflects cases decided on full opinion, rule changes, and Daily Journal entries through September 30, 2009.
The Annotated Rules The official text of the rules appears in bold type. Comments prepared by the Courts Rules Advisory Committee in connection with the proposed version of the 1983 comprehensive revision and most later changes are headed Rules Advisory Committee Comment. The Committees commentary is not approved by the judges, and accordingly does not necessarily represent the views of the Court. The same is true of the Explanatory Notes. Because the Committees commentary is prepared at the time rule changes are proposed and the Court may modify the proposed text when promulgating final Rule Changes, caution is recommended. Portions of the commentary that relate to matters that do not appear in the promulgated text of rule changes have been omitted. The final numbering of most of the 1983 rules was different from that employed in the commentary and in a few instances statutory cross-references have been rendered obsolete by subsequent legislation. Notes by the author are headed Discussion. They have no official sanction.
General Rule 1. NAME Section 941 of Title 10, United States Code, provides that the name of the Court is the United States Court of Appeals for the Armed Forces. 1983 Rules Advisory Committee Comment This rule is unchanged from that contained in the Rules of Practice and Procedure effective July 1, 1977 defining the name of the Court in accordance with 10 U.S.C. 941. [Obsolete] Discussion The Court was styled simply the Court of Military Appeals when the Code was enacted. It helped itself to the fuller title in practice, see 1 C.M.A., and in time, by rule. See 1962 Rule 1. In 1968 Congress formally added the words United States. Pub. L. No. 90-340, 1, 82 Stat. 178 (1968). The addition underscores the concept that the Court is an independent judicial tribunal, see S. REP. NO. 98-53, at 9 (1983), rather than merely an administrative appendage of the Department of Defense. But see Edmond v. United States, 520 U.S. 651, 664 n.2 (1997) ([a]lthough the statute does not specify the courts location for
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non-administrative purposes, other provisions of the UCMJ make it clear that it is within the Executive Branch). A second sentence, stating that the Court is a separate judicial entity, had been adopted by the Court in 1977. The language was superfluous, Cf. WILLIAM SHAKESPEARE, HAMLET, act 3, sc. 2, line 243, and was removed six years later. Congress gave the Court its present name in 1994. National Defense Authorization Act for Fiscal Year 1995, Pub. L. No. 103-337, 108 Stat. 2663 (1994); see generally Special Session for Court Name Change, 41 M.J. LIII (1994); Notice of Court Name Change, 42 M.J. 9 (1994). The same legislation also changed the names of the Courts of Military Review to Courts of Criminal Appeals. The reason for the changes is to make the names more closely conform to the nature of work of each court. Letter from Sen. Strom Thurmond, ARMY TIMES, (Nov. 7, 1994), at 3, col. 1; see also Letter from Maj. Gen. William K. Suter, ARMY TIMES, (Oct. 10, 1994), at 3, col. 1. The Court amended Rule 1 and other rules in which its name and those of the intermediate courts appear by order dated October 12, 1994. A few days earlier, on October 6, 1994, it had issued a notice providing that [d]ecisions of the United States Court of Military Appeals shall constitute binding precedent on the United States Court of Appeals for the Armed Forces. 41 M.J. LIX (1994); 42 M.J. 11 (1994). Congress expressly provided that the Court is a court of record in 1989, UCMJ art. 141, 10 U.S.C. 941 (2006), although this was previously understood to be the case in any event. For example, the judges occasionally solemnized marriages which, under the District of Columbia Code, requires a judge of a court of record. 14 D.C. Code 46-406(b) (2001 ed., 2002 replacement vol.). See Discussion of Rule 6. Since 2008 the Judges have been authorized to administer oaths. UCMJ art. 136, 10 U.S.C. 936(c), 122 Stat. 114 (2008). The Court is by statute located in the Department of Defense for administrative purposes only, UCMJ art. 141, 10 U.S.C. 941 (2006), and Congress has repeatedly made it clear that it intends the Court to be free from the control and influence of the Department. S. REP. NO. 95-1264, at 112-13 (1978); see also H.R. CONF. REP. No. 101-331, at 657 (1989); S. REP. NO. 101-81, at 171 (1989); S. REP. NO. 100-326, at 137 (1988); S. REP. NO. 98-53, at 9 (1983); H.R. REP. NO. 98-549, at 16 (1983); Mundy v. Weinberger, 554 F. Supp. 811, 820-24 (D.D.C. 1982). The relationship between the Court and the Department was explored by the Court of Military Appeals Court Committee, reestablishment of which was announced at 25 M.J. 154 (1987). See also 25 M.J. XCIX (1987); 2 CODE COMM. ANN. REP. 16 (1954) (noting initial appointment of committee); 1961 CODE COMM. ANN. REP. 53 (1962) (committee meetings suspended after 1956 due, inter alia, to congressional failure to act on earlier recommendations). The Court Committees January 27, 1989 report recommended that the Code be amended to effect a greater logistical and administrative separation between the Department of Defense and the Court. Presentation of Court Committee Report, 28 M.J. 99, 101 (1989); see also 17 MLR 1024-25; DAVID A. SCHLUETER,
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The Twentieth Annual Kenneth J. Hodson Lecture: Military Justice for the 1990s, A Legal System Looking for Respect, 133 MIL. L. REV. 1, 25-27 (1991). For a general summary of the evolution of the Courts institutional role see Robinson O. Everett, Justice in Uniform, 26 JUDGES J., Fall 1987, at 29. Useful histories include WILLIAM T. GENEROUS, JR., SWORDS AND SCALES (1973), Frederick R. Hanlon, Ten-Year Chronology of the U.S. Court of Military Appeals, 1961 CODE COMM. ANN. REP. 47 (1962), and John T. Willis, The United States Court of Military Appeals: Its Origin, Operation and Future, 55 MIL. L. REV. 39 (1972). The definitive history has been written by the Courts former historian, Professor Jonathan Lurie, of Rutgers University: MILITARY JUSTICE IN AMERICA: THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES, 1775-1980 (rev. abridged ed. 2001); JONATHAN LURIE, ARMING MILITARY JUSTICE: THE ORIGINS OF THE UNITED STATES COURT OF MILITARY APPEALS, 17751950 (1992); JONATHAN LURIE, PURSUING MILITARY JUSTICE: THE HISTORY OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES, 1951-1980 (1998); see also Jonathan Lurie, The Everett Era: An Introduction and Informal Retrospective, 30 M.J. CCXXXVII (1990); Jonathan Lurie, Presidential Preferences and Aspiring Appointees: Selections to the U.S. Court of Military Appeals 1951-1968, 29 WAKE FOREST L. REV. 521 (1994). Through its decisions, the Court has a significant impact on the state of discipline in the armed forces, military readiness, and the rights of service members. The Court plays an indispensable role in promoting public confidence in the military justice system. S. REP. NO. 101-81, at 171 (1989). On the other hand, it is not given authority, by the All Writs Act or otherwise, to oversee all matters arguably related to military justice, or to act as a plenary administrator even of criminal judgments it has affirmed. Clinton v. Goldsmith, 526 U.S. 529, 536 (1999). Rule 2. SEAL The official seal of the Court is as follows: In front of a silver sword, point up, a gold and silver balance supporting a pair of silver scales, encircled by an open wreath of oak leaves, green with gold acorns; all on a grey-blue background and within a dark blue band edged in gold and inscribed UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES in gold letters. 1983 Rules Advisory Committee Comment
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The rule prescribing the seal of the Court established by Executive Order 10,295, September 28, 1951, is unchanged. [Obsolete] Discussion President Trumans Executive Order approved a design that the judges had themselves recommended. Exec. Order No. 10,295, 16 FED. REG. 10,011 (1951), 3 C.F.R. 825 (1949-53) ( 1); see also 16 FED. REG. 10,159 (1951) (Rule 2). The Court deleted a reference to the Executive Order when it updated Rule 2 after the Courts name was changed. 42 M.J. 82 (1995). Rule 3. OATH OF JUDGES Before undertaking the performance of the duties of his office, each Judge appointed to this Court shall take the oath or affirmation prescribed in Section 453 of Title 28, United States Code. 1983 Rules Advisory Committee Comment Rule 3 was added as part of the 1983 revision. Rule 3A. SENIOR JUDGES (a) With the Senior Judges consent, and at the request of the Chief Judge, a Senior Judge may perform judicial duties with the Court if an active Judge of the Court is disabled or has recused himself or if there is a vacancy in any active judgeship on the Court. For the periods of time when performing judicial duties with the Court, a Senior Judge shall receive the same pay, per diem, and travel allowances as an active Judge; and the receipt of pay shall be in lieu of receipt of retired pay or annuity with respect to these same periods. The periods of performance of judicial duties by a Senior Judge shall be certified by the Chief Judge and recorded by the Clerk of Court. The Clerk of Court shall notify the appropriate official to make timely payments of pay and allowances with respect to periods of time when a Senior Judge is performing judicial duties with the Court and shall notify the Department of De-
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fense Military Retirement Fund to make appropriate adjustments in the Senior Judges retired pay or annuity. See Article 142(e)(2), Uniform Code of Military Justice, 10 USC 942(e)(2). (b) In addition to the performance of judicial duties with the Court, a Senior Judge may, at the request of the Chief Judge and with the Senior Judges consent, perform such other duties as the Chief Judge may request or the Court may direct. Such other duties may include, but are not limited to, service as a special master or as an adviser on Court operations, administration, and rules; representation of the Court at conferences, seminars, committee meetings or other official or professional functions; coordination of or assistance with conferences being conducted by the Court; and assistance in compilation of history or archives of the Court. A Senior Judge shall not receive pay for the performance of such other duties with the Court but may be paid per diem and travel allowance to reimburse expenses incurred by the Senior Judge while performing such duties. (c) Whether in the performance of judicial duties or other duties, a Senior Judge shall be provided such administrative and secretarial assistance, office space, and access to the Courthouse, other public buildings, court files, and related information, as the Chief Judge considers appropriate for the performance of those duties by the Senior Judge. (d) The title of Senior Judge may not be used in any way for personal gain or in connection with any business activity, advertisement, or solicitation of funds. However, the title of a Senior Judge may be referred to in any professional biography or listing and may be used in connection with any judicial or other duties that the Chief Judge requests the Senior Judge to perform. (e) No Senior Judge of the Court may engage in the practice of law in connection with any matter that involves an investigation or trial for any matter arising under the Uniform Code of Military
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Justice or appellate review of any court-martial proceeding by a Court of Criminal Appeals, the United States Court of Appeals for the Armed Forces, or the Supreme Court of the United States. (f) These rules shall apply to senior judges as defined by Article 142(e)(1), UCMJ, 10 USC 942(e)(1), and are promulgated pursuant to Article 142(e)(5), UCMJ, 10 USC 942(e)(5). Discussion Before Congress made it official in 1989, see UCMJ art. 142(e)(5), 10 U.S.C. 945(e)(5) (2006), the Court never exercised the power it had long claimed to have to provide by rule for the use of senior judges, H.R. REP. NO. 901480, at 5 (1968) (statement of Kilday, J., also suggesting that chief judge could take such action under his responsibility for the administration of the court), although the absence of formal rules had not prevented it from relying on senior judges where necessary. Rules were finally proposed after Congress acted, 55 FED. REG. 34,048 (1990), and were promulgated as Rule 3A, 32 M.J. 46 (1990), in time for the retirement of Chief Judge Everett, who immediately commenced service as a senior judge, since neither his seat nor the two seats that had been added as of October 1, 1990 had been filled. No comments were received in response to the Courts Federal Register notice. FY90 CODE COMM. ANN. REP. 5 (1991). After the vacancies were filled, Judge Everett continued to sit when there were recusals. E.g., Goldsmith v. Clinton, 48 M.J. 84 (1998); United States v. Gorski, 47 M.J. 370 (1997). To the extent that senior judges are willing to serve, there is reason to prefer them to Article III judges sitting by designation because of their familiarity with the Courts jurisprudence, although there are also good reasons to involve Article III judges for the perspective they may bring to bear. See generally Discussion of Rule 6. Strict adherence to the portion of the Rule that forbids use of the title for personal gain or in connection with business activities is critical. See James V. Grimaldi, Hearsay: The Lawyers Column, A Case of Questionable Judgment, WASH. POST, Apr. 7, 2003, at E1, col. 2. The other duties authorized by Rule 3A(b) are not reflected in Article 142(e)(2), which refers only to the performance of judicial duties. It is presumably for this reason that time spent on such duties is compensated, under the last sentence of Rule 3A(b), only through per diem and reimbursement of expenses, rather than statutory pay. Article 142(e)(3) also authorizes office space and staff assistance only in respect of judicial duties, but Rule 3A(c) covers both judicial and other duties.
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The Court, by internal rule, may establish procedures for determining when a judge next in precedence to the Chief Judge may act for the Chief Judge (including acting under Articles 142(e) [designation of senior judges] and 142(f) [designation of Article III judges]) when the Chief Judge is unavailable or the position is vacant. H. CONF. REP. NO. 101-331, at 658 (1989). Rule 4. JURISDICTION (a) The jurisdiction of the Court is as follows: (1) Death sentences. Cases in which the sentence, as affirmed by a Court of Criminal Appeals, extends to death. See Rule 18(a)(3); (2) Certified by a Judge Advocate General. Cases reviewed by a Court of Criminal Appeals, including decisions on appeal by the United States under Article 62, UCMJ, 10 USC 862, or on application for extraordinary relief filed therein, which a Judge Advocate General forwards by certificate for review to the Court. See Rule 18(a)(2); (3) Petitions by the accused. Cases reviewed by a Court of Criminal Appeals, including decisions on appeal by the United States under Article 62, UCMJ, 10 USC 862, in which, upon petition of the accused and on good cause shown, the Court has granted review. See Rule 18(a)(1). (b) Extraordinary Writs. (1) The Court may, in its discretion, entertain petitions for extraordinary relief including, but not limited to, writs of mandamus, writs of habeas corpus, and writs of error coram nobis. See 28 USC 1651(a) and Rules 18(b), 27(a), and 28. Absent good cause, no such petition shall be filed unless relief has first been sought in the appropriate Court of Criminal Appeals. Original writs are rarely granted. (2) The Court may also, in its discretion, entertain a writ appeal petition to review a decision of a Court of Criminal Appeals on
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a petition for extraordinary relief. See Rules 18(a)(4), 19(e), 27(b), and 28. (c) Rules Not to Affect Jurisdiction. These Rules shall not be construed to extend or to limit the jurisdiction of the United States Court of Appeals for the Armed Forces as established by law. 1983 Rules Advisory Committee Comment Rule 4(a)(2) was revised to recognize the authority of the Court to consider cases certified by a Judge Advocate General of a Court of Military Review decision on an application for extraordinary relief. Thus, it provides procedurally for the jurisdiction recognized by the Court in United States v. Redding, 11 M.J. 100 (1981). Rule 4(b)(2) has been revised to authorize the Court to entertain a petition filed not only by or on behalf of an accused, but by other persons subject to the Uniform Code or by the United States or its agencies. The revision of the rule provides for situations such as that in United States v. Caprio, 12 M.J. 30 (1981), where a person, other than the accused or the United States, may have a legitimate claim for review of a Court of Military Review decision on a petition for extraordinary relief. 1995 Rules Advisory Committee Comment The purpose of the proposed changes to Rules 4(b) and 27(a)(i)(E) is to make clear to practitioners that a petition for extraordinary relief should not be filed with the Court unless efforts to obtain the requested relief from the appropriate Court of Criminal Appeals (formerly Court of Military Review) have been unavailing. See, e.g., United States v. Coffey, 38 M.J. 290, 291 (C.M.A. 1993) (per curiam). Since those courts have All Writs Act powers, and share with the Judge Advocates General responsibility for the administration of military justice in their branch of the service, it is only sensible that they be afforded an opportunity to address extraordinary writ issues before they reach the United States Court of Appeals for the Armed Forces (formerly Court
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of Military Appeals). This will give those closest to the issues a chance to bring their experience to bear, and in some number of cases may make it unnecessary for the Court of Appeals for the Armed Forces to become involved. Even if relief is denied by the Court of Criminal Appeals, their consideration may help to frame the issues and develop a record. Both of these factors will facilitate efficient and intelligent review by the Court of Appeals for the Armed Forces. It is presumed, on the other hand, that extraordinary writ cases will be addressed expeditiously by the Court of Criminal Appeals. Cf. Rule 19(d)-(e). In keeping with the policy underlying Article 36(a), that military practice should conform to the extent practicable with civilian federal practice, these proposed rule changes take into account the practice of the Supreme Court and the Article III courts of appeals. FED. R. APP. P. 22(a) requires that original habeas corpus petitions be filed in the district court. (The part of FED. R. APP. P. 22(a) that calls for resort to the district court merely made former practice explicit. 20 MOORES FEDERAL PRACTICE 322App.01[2], at 322 App.-2 (Matthew Bender 3d ed. 1997) (Advisory Committee Note)). The Supreme Court discourages the filing of original extraordinary writ petitions with it. S. Ct. R. 20.1, 20.4(a); ROBERT L. STERN, EUGENE GRESSMAN, STEPHEN M. SHAPIRO & KENNETH S. GELLER, SUPREME COURT PRACTICE 11.3, at 501-03 (7th ed. 1993) (last time Court granted original habeas petition was in 1925); see also 28 U.S.C. 2242 (1994) (habeas application directed to a Justice shall state the reasons for not making application to the district court of the district in which the applicant is held). Because courts-martial are not standing bodies, requiring resort to the trial court is not feasible in the military context. Requiring resort to the intermediate courts serves similar purposes. These proposed rule changes permit a petitioner to petition the Court of Appeals for the Armed Forces without having first sought relief from the Court of Criminal Appeals only if there is good cause to do so. This exception has been included only because it is impossible to anticipate all eventualities. It is intended
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that a stringent standard would be applied in this connection. The Committee believes that what constitutes good cause for this purpose will be spelled out by the Court in its opinions. While we have used the term already used by the Court for requests to suspend the Rules, see Rule 33, and by Congress in Article 67(a)(3) with respect to petitions for grant of review, we do not, by so doing, mean to imply that the standards would be comparable. Extraordinary writs are and should remain extraordinary, and bypassing the Courts of Criminal Appeals should be permitted sparingly and only for compelling reasons. 60 FED. REG. 4895 (1995). [See also 1995 Rules Advisory Committee Comment to Rule 4.] Discussion Rule 4(a)(1) was amended effective August 1, 1984 by deleting reference to cases affecting general or flag officers, as Congress repealed the special review provision for such officers in the Military Justice Act of 1983. Pub. L. No. 98-209, 7(d), 97 Stat. 1402. The first paragraph of the form set out in Rule 23(a) was similarly modified. Rule changes that took effect on October 1, 1987 modified Rule 4(a)(2)-(3) to include the references to decisions on appeal by the United States under Article 62, 10 U.S.C. 862 (2006). Article 67 does not in terms demand finality, but the Court early on adopted the view that it has jurisdiction only when the intermediate court has acted finally with respect to both the findings and the sentence. E.g., United States v. Burleson, 65 M.J. 315 (2007) (mem.) (dismissing petition for grant of review as unripe where Army Court had vacated it own earlier decision affirming findings and sentence and had stayed proceedings until appellant regain[ed] mental capacity to understand and cooperate in appeal or the JAG requests remand to a convening authority); United States v. McLaughlin, 46 M.J. 159 (1996) (mem.) (decision set aside because it appears that the Court of Criminal Appeals has not finished with its review, in that it has not taken any action with respect to the adjudged and approved sentence); United States v. Young, 14 M.J. 233 (1982) (mem.); United States v. Leffew, 4 C.M.A. 585, 16 C.M.R. 159 (1954); United States v. Best, 4 C.M.A. 581, 16 C.M.R. 155 (1954); cf. Webb v. United States, 1 M.J. 40, 41 & n.8 (1975) (mem.) (petitions for extraordinary relief after C.M.R. reversed and ordered cases returned to convening authorities; held, no extraordinary circumstances such as to warrant intervention by C.M.A. especially in light of the nonfinal nature of the decisions reached below); but see United States v. Henderson, 34 M.J. 174, 175 n.2 (1992)
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(reviewing C.M.R. decision which ordered rehearing on sentence in absence of government challenge to petition as premature); United States v. Vendivel, 40 M.J. 28 n.2 (1994) (mem.) (certified question answered despite apparent prematureness in light of Court of Military Reviews order for DuBay hearing; we will not prolong these proceedings); United States v. Lewis, 40 M.J. 28 n.3 (1994) (mem.) (same); United States v. Hunter, 40 M.J. 29 n.4 (1994) (mem.) (same); see generally Discussion of Rule 19. In United States v. Boudreaux, 35 M.J. 291, 295 (1992), the Court reaffirmed the definitions of finality found in Best and United States v. Papciak, 7 C.M.A. 224, 22 C.M.R. 14 (1956). In contrast to appeals from final decisions, interim (interlocutory) appeals . . . do not divest the lower court or convening authority of the authority to continue the case unless the higher court issues a stay of the proceedings or unless a stay is required by operation of a Rule for Courts-Martial or by law. Boudreaux, supra, at 295. If an accused wishes to halt proceedings during the pendency of an interlocutory appeal, and the government will not suspend voluntarily, a stay should be sought either from the lower court or from the Court of Appeals. Id. If it is unclear whether the lower court has determined the factual sufficiency of the evidence as well as its legal sufficiency, the case is remanded. United States v. Turner, 25 M.J. 324, 325 (1987). The Courts jurisdiction in petition cases depends on the sentence approved by the convening authority, not the sentence as acted on by the Court of Criminal Appeals. Thus, such a court cannot thwart Court of Appeals review by reducing the sentence below the statutory jurisdictional threshold. United States v. Johnson, 45 M.J. 88, 90 (1996); Boudreaux, supra, at 295; United States v. Bullington, 13 M.J. 184 (1982); United States v. Reid, 12 C.M.A. 497, 31 C.M.R. 83, 86-87 (1961); cf. Jones v. Ignatius, 18 C.M.A. 7, 39 C.M.R. 7 (1968) (extraordinary relief granted where illegal commutation of bad conduct discharge thwarted appellate review). Similarly, a subjurisdictional result on remand from a Court of Criminal Appeals does not prevent the case from returning to that court rather than simply being reviewed in the Office of the Judge Advocate General under Article 69. Boudreaux v. U.S. Navy-Marine Corps Court of Military Review, 28 M.J. 181 (1989); cf. United States v. Wilson, 20 M.J. 335 (1985) (per curiam). A Court of Criminal Appeals action can, however, make it unnecessary or inappropriate for the Court of Appeals for the Armed Forces to decide an issue as to the approved sentence. United States v. Valead, 32 M.J. 122 (1991) (bread and water). If the convening authoritys intent is unclear, the Court sets aside the decision of the Court of Criminal Appeals and returns the record of trial to the Judge Advocate General for submission to the convening authority with directions to withdraw the original action and substitute a corrected one. The record is thereafter returned directly to the Court, which in the mean time will not act on the petition. United States v. Madden, 32 M.J. 17 & n.1 (1990) (mem.). In any event, the Court need not determine that legal error has occurred in order to set aside a decision of a Court of Criminal Appeals. United States v. Hall, 45
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M.J. 255, 257 (1996) (per curiam). But see United States v. Hutchinson, 58 M.J. 744, 747 (C.G.C.C.A. 2003) (en banc) (Baum, C.J., dissenting), citing United States v. Flowers, 26 M.J. 463, 466 (1988) (Everett, C.J., concurring in the result). In United States v. Ginn, 47 M.J. 236, 238 n.2 (1997), the Court, citing Hall, explained what is supposed to happen when it sets aside such a decision: When this Court sets aside the decision of a Court of Criminal Appeals and remands for further consideration, we do not question the correctness of all that was done in the earlier opinion announcing that decision. All that is to be done on remand is for the court below to consider the matter which is the basis for the remand and then to add whatever discussion is deemed appropriate to dispose of that matter in the original opinion. The original decretal paragraph of the [intermediate courts] opinion . . . is not affected by the set-aside order unless resolution of the matter which is the subject of the remand dictates a different result. The amended opinion then becomes the decision which is subject to our review. This procedure does not permit or require starting the review process anew or setting aside action favorable towards an accused on other grounds. Access to the Court cannot be precluded by means of a pretrial agreement. United States v. Darring, 9 C.M.A. 651, 26 C.M.R. 431 (1958), noted in HOMER E. MOYER, JUSTICE AND THE MILITARY 2-456, at 449 (1972); DAVID A. SCHLUETER, MILITARY CRIMINAL JUSTICE: PRACTICE AND PROCEDURE 92(B)(2) (6th ed. 2004); see also R.C.M. 705(c)(1)(B); United States v. Jones, 23 M.J. 305, 308 (1987) (Cox, J., concurring in the result); United States v. Mills, 12 M.J. 1 (1981); United States v. Partin, 7 M.J. 409 (1979). Execution of a punitive discharge does not deprive the Court of jurisdiction to grant a petition for review. United States v. Engle, 28 M.J. 299 (1989) (per curiam); see also United States v. Campbell, 29 M.J. 464, 465 n.* (1989) (mem.) (erroneous order to execute discharge); United States v. Echols, 52 M.J. 448 (1999) (mem.) (rescinding prematurely executed dishonorable discharge). The Courts jurisdiction is also unimpaired by the fact that the accused has been released from active duty, e.g., United States v. Woods, 26 M.J. 372 (1988); United States v. Zlotkowski, 15 M.J. 320 & n.* (1983) (mem.) (Cook, J., dissenting); United States v. Jackson, 3 M.J. 153 (1977); United States v. Entner, 15 C.M.A. 564, 36 C.M.R. 62 (1965) (2-1 decision), noted in MOYER, supra, 1-244, at 60; United States v. Green, 10 C.M.A. 561, 28 C.M.R. 127 (1959); United States v. Speller, 8 C.M.A. 363, 368, 24 C.M.R. 173, 178 (1957) (2-1 decision); see also Steele v. Van Riper, 50 M.J. 89 (1999) (administrative discharge during pendency of appellate review did not affect power of convening authority or appellate courts to act on findings and sentence); United States v. Sippel, 4 C.M.A. 50, 52-54, 15 C.M.R. 50, 52-54 (1954) (C.M.A. jurisdiction unaffected by expira-
21
tion of officers commission), that the sentence has been served, United States v. Benson, 3 C.M.A. 351, 12 C.M.R. 107, 110 (1953); see also Sibron v. New York, 392 U.S. 40 (1968); cf. United States v. Pately, 17 M.J. 409 (1984) (mem.) (2-1 decision) (granting administrative credit for pretrial confinement even though sentence had already been served); United States v. Allen, 17 M.J. 126 (1984) (2-1 decision), reconsideration denied, 17 M.J. 360 (1984) (mem.) (2-1 decision) (refusing to direct alternative sentence relief where administrative credit for pretrial confinement was moot because sentence to confinement had been served), or even, in some circumstances, that the charges have been withdrawn. United States v. Browers, 20 M.J. 356 (1985) (Art. 62 appeal). In United States v. Stockman, 50 M.J. 50 (1998) (mem.) (4-1 decision), the appellant was honorably discharged before appellate review was completed on his punitive discharge. The Court set aside the sentence as moot and affirmed one of no punishment. One judge dissented and would have reached the granted and specified issues on the ground that the erroneous honorable discharge cannot rob this Court of its jurisdiction over appellant which this Court acquired . . . when the petition was granted. Id. at 52. The Courts action, however, does not suggest that it had lost jurisdiction, since if it had, the proper course would have been to dismiss the petition. Where, however, an accused is sentenced to confinement if a fine remains unpaid, payment of the fine will moot a certified question. United States v. Carmichael, 29 M.J. 271 (1989) (mem.); United States v. Arnold, 28 M.J. 338 (1989) (mem.). Similarly, release of a habeas corpus petitioner will moot the extraordinary writ proceeding. E.g., Ussery v. United States, 17 M.J. 338 (1984) (mem.); but see Ceraolo v. Snyder, 5 M.J. 1095 (1976) (mem.) (charges withdrawn and petitioner administratively separated; held, motion to dismiss extraordinary writ petition denied, and extraordinary writ petition itself denied); see also United States v. Wholley, 14 M.J. 284 (1982) (mem.) (remanding with instructions to dismiss as moot). Inexplicably, after an order in an extraordinary writ case was complied with, the Court denied the petition as moot, rather than dismissing it. United States v. Dombrowski, 47 M.J. 84 (1997) (mem.). The proper action in such a case would seem to be to dismiss for mootness. See also, e.g., McKinney v. Jarvis, 48 M.J. 15 (1997) (mem.) (denying request for T.R.O. as moot); Goldsmith v. Clinton, 48 M.J. 84, 90 (1998) (writ appeal petition regarding suspension of [former] inmates HIV medication by prison officials denied as moot), revd, 526 U.S. 529 (1999). Cases decided by a Court of Criminal Appeals, including those arising under UCMJ art. 62, 10 U.S.C. 862 (2006); United States v. Lopez de Victoria, 66 M.J. 67 (2008) (3-2 decision); United States v. Solorio, 21 M.J. 251 (1986), affd, 483 U.S. 435 (1987); United States v. Tucker, 20 M.J. 52 (1986), on petition for a writ of error coram nobis, United States v. Denedo, 129 S. Ct. 2213, 2223 (2009) (5-4 decision); on petition for new trial, United States v. Brooks, 49 M.J. 64 (1998); United States v. Niles, 45 M.J. 455 (1996); United States v. Chadd, 13 C.M.A. 438, 32 C.M.R. 438 (1963), or on petition for certificate of innocence un-
22
der 28 U.S.C. 2513 (2006), see Forrest v. United States, 3 M.J. 173 (1977); cf. McMurray v. United States, 12 M.J. 26 (1981) (mem.) (denying original petition for certificate of innocence), petition forwarded to C.M.R., 14 M.J. 216 (1982) (mem.), are subject to review by the Court of Appeals on petition for grant of review. The Courts jurisdiction over nonreviewable (subjurisdictional) courtsmartial (i.e., general and special courts-martial in which there is no punitive discharge and summary courts-martial, none of which are subject to automatic review by a Court of Criminal Appeals) changed dramatically in 1989. Now, any such case that is referred to a Court of Criminal Appeals may thereafter be certified to the Court of Appeals. UCMJ art. 69(d), 10 U.S.C. 869(d) (2006). For many years, only subjurisdictional general courts-martial could be referred to a Court of Military Review under the former text of Article 69(a), 10 U.S.C. 869(a) (1988). Very few were so referred, Eugene R. Fidell, Military Rights of Appeal, 8 DIST. LAW., July-Aug. 1984, at 42, 43-44; e.g., United States v. Beckermann, 27 M.J. 334 (1989); United States v. Moorehead, 20 C.M.A. 574, 44 C.M.R. 4 (1971); see also Unger v. Ziemniak, 27 M.J. 349, 351 & n.1 (1989), and not all of those were further certified to the higher court. In addition, the accused could not seek review of a Court of Military Review decision in such a case unless it was further certified by the Judge Advocate General. Monett v. United States, 16 C.M.A. 179, 36 C.M.R. 335 (1966); see also United States v. Spencer, 8 M.J. 30 (1979) (mem.) (subjurisdictional sentence in general courtmartial; petition dismissed); R.C.M. 1201(b) (Discussion). The accused could, however, file a cross-petition for grant of review, which the Court would consider even if it declined to answer the certified questions. United States v. Kelly, 14 M.J. 196, 200-01 (1982), partially overruling, by implication, United States v. Hardy, 17 C.M.A. 100, 101, 37 C.M.R. 364, 365 (1967) (noting dismissal of petition for grant of review); see also, e.g., United States v. Wehner, 18 M.J. 12 (1984) (mem.). Section 1302 of the National Defense Authorization Act for Fiscal Years 1990 and 1991, Pub. L. No. 101-189, 1302(a), 103 Stat. 1576 (1989), greatly altered this arrangement. First, it repealed the sentence of Article 69(a) which had permitted subjurisdictional general courts-martial to be reviewed by the Court of Appeals only pursuant to a second certification. Second, it provided that non-bad-conduct-discharge special courts-martial and summary courtsmartial can also be referred to a Court of Criminal Appeals. UCMJ arts. 69(b), (d), 10 U.S.C. 869(b), (d) (2006). Such cases are therefore now also potentially subject to review by the Court of Appeals either by certificate for review or on petition by the accused. Congresss view in enacting this legislation was that [t]he purposes of the [Code] would be better served if such review were conducted under a jurisdictional statute as opposed to the ad hoc procedures of the All Writs Act. S. REP. NO. 101-81, at 173 (1989). The Navy Court has relied on that legislative history as a basis for refusing to exercise All Writs Act authority over mast proceedings. Dukes v. Smith, 34 M.J. 803, 806 (N.M.C.M.R. 1991) (en
23
banc); see also Mulloy v. Grant, NMCM No. 930809 (N.M.C.M.R. May 25, 1994) (mem.) (no All Writs Act jurisdiction over general court-martial where sentence was subjurisdictional and case was not referred by Judge Advocate General); but see Dew v. United States, 48 M.J. 639, 645-47 (A.C.C.A. 1998) (accused has right to petition service court for review of adverse Article 69 ruling). Notwithstanding the legislative changes, if a court-martial is reviewed only by the Judge Advocate General under Article 69, but not referred to the Court of Criminal Appeals under Article 69(d), the Court of Appeals has no jurisdiction to review the case under Article 67(a)(3), and a petition for grant of review will be dismissed. United States v. Robinson, 45 M.J. 44 & n.* (1996) (mem.) (reviewed by Judge Advocate General under Article 69(a)); United States v. Caradang, 44 M.J. 73 (1996) (mem.); see also id., 44 M.J. 58 n.* (not reviewed under Article 66). The Court of Appeals has no direct appellate (as opposed to All Writs Act) jurisdiction to review nonjudicial punishments. United States v. Edwards, 46 M.J. 41, 43 (1997). As in Edwards, however, the validity of an Article 15 punishment can come before the Court collaterally if the punishment has been used as matter in aggravation. When that occurs, its ruling is properly treated as a holding. Robinson v. Dalton, 45 F. Supp.2d 1, 4 n.3 (D.D.C. 1999). The UCMJ includes a variety of explicit references to military commissions, but makes no specific provision for the appellate review of trials by military commissions. Instead, following President George W. Bushs reestablishment of commissions in 2001, the Defense Department sought to rely on a separate Review Panel for this purpose. See Dept of Defense, Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism, 32 C.F.R. Pt. 9.6(h)(4) (2005); see generally NATL INST. OF MIL. JUST., ANNOTATED GUIDE TO PROCEDURES FOR TRIALS BY MILITARY COMMISSIONS OF CERTAIN NON-UNITED STATES CITIZENS IN THE WAR AGAINST TERRORISM 73-75 (2002); NATL INST. OF MIL. JUST., MILITARY COMMISSION INSTRUCTIONS SOURCEBOOK 2D 270-78 (2004). In Al Qosi v. Altenburg, 60 M.J. 461 (2005) (mem.), the Court of Appeals dismissed without prejudice an extraordinary writ petition filed on behalf of a Guantnamo Bay detainee who was charged before a military commission. Congress later conferred direct appellate jurisdiction over military commissions on the United States Court of Appeals for the District of Columbia Circuit, Detainee Treatment Act of 2005, 1005(e)(3)(A) (Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006, Pub. L. No. 109-148, Div. A, tit. X, 119 Stat. 2680 (2005)), despite a suggestion of the National Institute of Military Justice that such appeals go to the Court of Appeals for the Armed Forces. Letter from Eugene R. Fidell, Pres., NIMJ, to Sens. Arlen Spector and John Warner (Nov. 14, 2005), at 2. When it enacted the Military Commissions Act of 2009, Congress again passed up an opportunity to confer appellate jurisdiction on that court. See National Defense Authorization Act for Fiscal Year 2010, Pub. L. No. 111-84, 123 Stat. 2190, 2574 (2009). Con-
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gresss choice is hard to defend, given the Court of Appeals for the Armed Forces specialized knowledge. See generally Eugene R. Fidell, Appellate Review of Military Commissions, Oct. 8, 2009, http://balkin.blogspot.com/2009/10/incoming-weeks-there-will-be-no.html. Although they will apparently remain merealbeit presumably interestedbystanders, it is noteworthy that even before the 2005 legislation, the judges had indicated their familiarity with the rules governing military commissions. See Schmidt v. United States, 59 M.J. 348 (2004) (mem.) (citing Military Commission Order No. 1 and Military Commission Inst. No. 5). For some years the received learning was that, where a case is not certified, rulings adverse to the government constitute the law of the case and bind the parties. United States v. Sales, 22 M.J. 305, 307 (1986); see also United States v. Grooters, 39 M.J. 269, 272-73 (1994) (law of case governed ruling that was not challenged by petition for review or certification by Judge Advocate General). However, a potentially disturbing wrinkle was added to the Courts jurisprudence on this subject in United States v. Hoff, 27 M.J. 70 (1988). Over an able partial dissent by Chief Judge Everett, the Court, by reinstating a finding that had been disapproved below, seemed to leave a petitioner worse off, contrary to precedent, see United States v. Riley, 55 M.J. 185, 187 (2001), quoting United States v. Crider, 22 C.M.A. 108, 110, 46 C.M.R. 108, 110 (1973), than he had been under the decision of the Court of Military Review, even though the case came on for review solely on petition of the accused. Opinions may differ as to whether Hoff himself actually was worse off, but if the decision is extended to other contexts, it could, as Chief Judge Everett cautioned, 27 M.J. at 75, have a chilling effect on the submission of petitions for grant of review. Thereafter, in United States v. Williams, 41 M.J. 134, 135 n.2 (1994), acknowledging Sales with a mere but cf. signal, the majority offered the following comment: Although the Judge Advocate General has not certified for this Courts review the holding of the Court of Military Review that Colonel Grants expert opinion testimony of appellants future dangerousness was inadmissible, . . . this Court may rule on the issue. . . . The lawof-the-case doctrine does not preclude this Court, once the case has been properly granted for review, from considering an erroneous conclusion of law made by the Court of Military Review. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 817, 108 S. Ct. 2166, 2178, 100 L.Ed.2d 811 (1988). The footnote suggests two thoughts. First, at least the Courts action left Sergeant Williams no worse off, unlike the appellant in Hoff. Second, and perhaps more importantly the Court should have been more straightforward if it was overruling Sales. Judge Gierke concurred in part and in the result, but properly faulted this aspect of the decision as an advisory opinion. 41 M.J. at
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140. Judge Wisss concurrence in part and in the result was at least as guarded, noting the Courts traditional reluctance to review intermediate court holdings the correctness of which has not been certified by the Judge Advocate General. Id. (collecting cases). It appeared that the Court might clarify this area in 1995 when it specified the issue [w]hether this Court may consider, on a petition for grant of review, the correctness of the portion of the decision by the Court of Military Review favorable to the accused when no certificate for review has been filed raising that issue. United States v. Garcia, 43 M.J. 144 (1995) (mem.). The Court ultimately found it unnecessary to answer the question. 44 M.J. 27, 28 n.3 (1996). In United States v. Walker, 57 M.J. 174 (2002) (3-2 decision), the majority, in an opinion by Judge Gierke, cited Grooters, supra, in declining to address an issue that the government had not challenged by certification, in its brief or at oral argument. Chief Judge Crawford joined in Judge Sullivans spirited dissent, which took issue with what it described as a new rule undermining our power to recognize plain error on our own motion. Id. at 180; see also id. at 181, citing GUIDE 9th ed. at 34-35. Chief Judge Crawford and Judge Sullivan also dissented on similar grounds in United States v. Doss, 57 M.J. 182, 186, 189 & n.* (2002), decided the same day as Walker. The issue is obviously an important one, and the Court continues to grapple with it. In United States v. Ford, 59 M.J. 163 n.* (2003) (mem.), without recorded dissent, it denied a government request to review the Army Courts holding that a plea was improvident, stating, If the Government desires to obtain review of a decision by the Court of Criminal Appeals, the appropriate avenue is through a request that the Judge Advocate General concerned certify an issue under Article 67(a)(2). Perhaps the clearest statement of where the law currently standsand one that is hard to quarrel withmay be found in United States v. Simmons, 59 M.J. 485, 488 (2004), where Judge Erdmann wrote: Although we are not precluded from examining the legal rulings of a service court in a case where the Judge Advocate General has not certified the issue for review, we are reluctant to exercise that power and, as a rule, reserve it only for those cases where the lower courts decision is clearly erroneous and would work a manifest injustice if the parties were bound by it. Chief Judge Crawford, dissenting, noted that [w]e are not bound by the lack of a Government challenge to the Court of Criminal Appeals opinion. See United States v. Williams, 41 M.J. 134, 135 (C.M.A. 1994). 59 M.J. at 494 n.* quoting Doss, supra. Where the Judge Advocate General has certified one issue for review, the argument for applying the law of the case doctrine to other issues is especially strong. See United States v. Kreutzer, 61 M.J. 293, 295 n.2 (2005) (4-1 decision).
26
For some time there was pending before the Court a proposed rule based on the Uniform Certification of Questions of Law Act which was issued in 1967 by the National Conference of Commissioners on Uniform State Laws. 12 U.L.A. 49 (1975). Similar rules for the transmission of certified questions had been adopted by the Second and Seventh Circuits. 2D CIR. R. 0.27; 7TH CIR. R. 52. The first edition of this GUIDE suggested creation of a mechanism for the receipt of questions of military law, rather than for the transmission of questions of state law. The Court referred the matter to the Rules Advisory Committee, which opened in 1989 that receipt of certified questions would require an Act of Congress but reported out favorably the provision for outgoing certifications. The judges invited public comment on both outgoing and incoming certifications, 54 FED. REG. 20,631 (1989), and elicited resistance from the Department of Defense. W. Gary Jewell & Harry N. Williams, COMA Watch 1989, 128 MIL. L. REV. 115, 152 (1990). The Committee thereupon advised that it believed legislation would be necessary to permit the receipt of incoming certifications. That being the case, it was suggested that the entire subject be deferred until Congress considers the more controversial question of incoming certifications. Letter from Col. Walter L. Lewis, USAF (Ret), Chairman, Rules Advisory Comm., to Chief Judge Everett (Sept. 26, 1990). One judge later commented informally that, if adopted, the rule would be read by the Court to deal with questions of military justice, rather than questions of military law. W. Gary Jewell & Harry L. Williams, supra, at 152. When the Committee revisited the issue in 1993, the consensus was that there was no practical need for a rule change on this subject. In 1990, 1 of the Uniform Act was amended to insert a reference to the Court of Military Appeals (among others) as a permissible certifier of questions to state courts. 12 U.L.A. 20 (Cum. Supp. 1991). The Courts first attempt at certification preceded that change. It was addressed to the New Mexico Supreme Court in an Article 134 case involving a charge of contributing to the delinquency of a minor in violation of state law. The state law issue had been specified by the Court of Military Appeals, rather than raised by the parties. United States v. Sadler, 29 M.J. 272 (1989) (mem.). The New Mexico court declined, without explanation, to entertain the certification, and the Court resolved the state law issue itself. 29 M.J. 370, 376 (1990). In 1998, the Florida Constitution was amended to require the State Supreme Court to adopt rules to allow it and the district courts of appeal to submit questions relating to military law to the Court of Appeals for the Armed Forces for an advisory opinion. FLA. CONST. art. V, 2(a). Simply because a state law issue might be framed scarcely compels certification. For example, the outcome may not turn on the state law issue, or the state law or its application may be unclear, e.g., United States v. Lark, 47 M.J. 435, 437 (1998); United States v. Browning, 29 M.J. 174 (1989), or the state in question may have no mechanism for the receipt of certified questions. See United States v. Bolden, 28 M.J. 127, 129 n.3 (1989). Issues of state law contin-
27
ue to arise from time to time, see, e.g., United States v. White, 47 M.J. 139, 140 (1997) (citing Browning, United States v. Hughes, 26 M.J. 119, 129 (1988), and United States v. Slovacek, 24 M.J. 140 (1987)), leading the Court in 1997 to suggest a Manual change on the question of admissibility of state convictions. 47 M.J. at 141. But there is little current interest in invoking the certification process. The first edition of this GUIDE observed that [u]nless and until the Supreme Courts jurisdiction is extended to provide direct review of decisions of the Court of Military Appeals, a certification rule can also be of assistance in avoiding the possible unseemliness of divergent results between the Article III courts and the Court of Military Appeals. C.M.A. GUIDE 73 & n.271 (1978). Experience gained since enactment of 28 U.S.C. 1259 (2006) suggests, however, either that such divergent results rarely arise or that they present less of an institutional embarrassment than the author feared. Since, even with the surprising flow of military cases to the Supreme Court during the 1990s, it is unlikely that military cases will ever loom particularly large on the Supreme Courts horizon, see generally Eugene R. Fidell, Review of Decisions of the United States Court of Military Appeals by the Supreme Court of the United States, 16 MLR 6001, 6005 (1988), a certification rule may still serve a useful purpose. For illustrations of how other federal courts may be called upon to resolve questions of military law see, e.g., Piersall v. Winter, 507 F. Supp.2d 23 (D.D.C. 2007) (vessel exception to right to refuse captains mast), affd mem., No. 07-5288 (D.C. Cir. Feb. 25, 2008); Robinson v. Dalton, 45 F. Supp. 2d 1 (D.D.C. 1998) (same); Sands v. Dalton, Civil No. 96-1472 (S.D. Fla. 1996) (validity of recall to active duty for pretrial investigation); Lower v. Secretary of the Air Force, Civil No. 90-2864 (D.D.C. 1991) (dismissed per stipulation) (validity of military search of off-base quarters in foreign country; action for return of unconstitutionally seized property); Repp v. United States, 23 Cl. Ct. 628 (1991) (collateral review of general court-martial conviction; Fourth Amendment and Mil. R. Evid. issues); Cochran v. United States, 1 Cl. Ct. 759 (1983), affd mem., 732 F.2d 168 (Fed. Cir. 1984), cert. denied, 469 U.S. 853 (1984) (nonjudicial punishment); Krzeminski v. United States, 13 Cl. Ct. 430 (1987) (failure to pay just debts); see generally Eugene R. Fidell, If a Tree Falls in the Forest . . .: Publication and Digesting Policies and the Potential Contribution of Military Courts to American Law, 32 JAG J. 1, 3-4 & nn.12-14 (1982). The Courts jurisdiction remains a hodge-podge of mandatory reviews, certificates from the Judge Advocates General (including extraordinary writ cases, for which the certification clause of the statute makes no provision, see United States v. Redding, 11 M.J. 100, 113 (1981) (Fletcher, J., dissenting)), review on petition of the accused, review on petition of the prosecution (for which the petition clause of Article 67 also makes no provision, see United States v. Caprio, 12 M.J. 30, 33 (1981) (Fletcher, J., dissenting)), petitions for extraordinary relief, new trial petitions and writ appeal petitions.
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The addition of Article 62 appeals was necessary, but only made things worse in terms of the complexity of the Courts legislative charter. These diverse jurisdictional bases overlap in ways that can needlessly complicate matters. The potential for complexity is illustrated by Frage v. Moriarty, 27 M.J. 341 (1988), where the Court was faced with (1) an extraordinary writ petition filed by an accused, (2) a writ appeal petition filed by the United States, and (3) a certificate for review. While the 1989 legislation discussed above certainly improves matters by exposing all courts-martial to the possibility of review by the military appellate tribunals, the Court of Appeals tangled jurisdictional grant should be further rationalized by providing a single form of appellate review available at the request of either the prosecution or the defense, with respect to all final decisions of the Courts of Criminal Appeals. See Discussion of Rule 19. This will reduce the time spent by the Court of Appeals on double reviews: once to decide whether to take the case, and again on the merits. The Court could act summarily on many cases, particularly those in which no errors were assigned. The mandatory jurisdiction in capital cases should be retained. Happily, it involves very few cases. The power of the Judge Advocates General to certify cases, rarely exercised for the benefit of the accused, see Discussion of Rule 8, should be abrogated because it is no longer necessary, particularly since the Court has held that it can entertain government petitions for grant of review. Plainly, there should be extraordinary writ jurisdiction similar to that exercised by the other courts of appeals under the All Writs Act, 28 U.S.C. 1651(a) (2006), but reflecting the special role of the Court in ensuring compliance with the provisions of the Code. See generally The Military Justice Act of 1982: Hearings on S. 2521 Before the Subcomm. on Manpower and Personnel of the Senate Comm. on Armed Services, 97th Cong. 226-28 (1982) (statement of the author on behalf of American Civil Liberties Union). It is not necessary that Congress confirm that the Court has All Writs Act authority, as the Court Committee recommended in 1989. Presentation of Court Committee Report, 28 M.J. 99, 101 (1989). That proposition has, after all, long been beyond dispute. Noyd v. Bond, 393 U.S. 683, 695 n.7 (1969); United States v. Frischholz, 16 C.M.A. 150, 36 C.M.R. 306, 308 (1966). In addition to the practical problems of employing extraordinary writs as a substitute for direct appellate review, see S. REP. NO. 98-53, at 31-32 (1983) (limits on direct review led the accused to rely on the extraordinary writ powers of these courts, a vehicle which may be ill suited to the particular circumstances of the case), the writs case law was too shifting and uncertain to provide the needed guidance to the military community. E.g., Fletcher v. Covington, 42 M.J. 116 (1995) (mem.) (4-1 decision) (on petitioners motion to withdraw, dismissing extraordinary writ petition arising out of withdrawal of charges from court-martial and referral to captains mast after evidentiary ruling adverse to government); Unger v. Ziemniak, 27 M.J. 349 (1989) (All Writs Act jurisdiction exists even though officers special court-martial case cannot qualify for [direct]
29
review by either C.M.R. or C.M.A.); U.S. Navy-Marine Corps Court of Military Review v. Carlucci, 26 M.J. 328 (1988) (All Writs Act jurisdiction exists even though underlying C.M.R. decision could not reach C.M.A. on direct review); compare Jones v. Commander, Naval Air Force, 18 M.J. 198 (1984) (asserting but refusing to exercise extraordinary writ power over nonjudicial punishment), and Dobzynski v. Green, 16 M.J. 84 (1983) (asserting jurisdiction over nonjudicial punishments), with United States v. Edwards, 46 M.J. 41, 43 (1997) (no direct review of nonjudicial punishment); Alvarez v. United States, 9 M.J. 14 (1980) (mem.) (petition for writ of error coram nobis regarding summary courtmartial dismissed as moot, no suggestion of lack of subject matter jurisdiction); Stewart v. Stevens, 5 M.J. 220 (1978) (mem.) (dismissing challenge to diversion of non-service connected offense from special court-martial to captains mast); McPhail v. United States, 24 C.M.A. 304, 1 M.J. 457 (1976) (C.M.A. has All Writs Act power following conviction by subjurisdictional special court-martial); Olsson v. Flynn, 23 C.M.A. 229, 49 C.M.R. 179 (1974) (habeas refused where special court-martial sentence was subjurisdictional); Ex parte Gooden, 5 M.J. 1087 (1976) (mem.) (coram nobis denied as to summary court-martial conviction); Thomas v. United States, 19 C.M.A. 639 (1970) (no All Writs Act jurisdiction over summary court-martial); Whalen v. Stokes, 19 C.M.A. 636 (1970), noted in Dukes v. Smith, 34 M.J. 803, 806 (N.M.C.M.R. 1991) (en banc); United States v. Snyder, 18 C.M.A. 480, 40 C.M.R. 192 (1969) (no All Writs Act jurisdiction over non-bad conduct discharge special court-martial). See generally Michael E. Brown, Note, Building a System of Military Justice Through the All Writs Act, 52 IND. L.J. 188 (1976); see also Daniel J. Wacker, The Unreviewable Court-Martial Conviction: Supervisory Relief Under the All Writs Act from the United States Court of Military Appeals, 10 HARV. CIV. RIGHTS-CIV. LIB. L. REV. 33 (1975). The matter has now been resolved. By a bare majority, the Court of Appeals had held in 1998 that since it can grant extraordinary relief in a case that it cannot possibly review directly, it is also empowered to grant extraordinary relief in a case in which the court-martial rendered a sentence that constituted an adequate basis for direct review even though such review had not been sought following mandatory Article 66 review by the Court of Criminal Appeals. Goldsmith v. Clinton, 48 M.J. 84, 87 (1998) (3-2 decision). The Supreme Court squarely rejected that analysis. 526 U.S. 529 (1999). The Court of Appeals All Writs Act authority does not reach matters that are outside its Article 67 grant of jurisdiction. On the other hand, the Court of Appeals has, after Goldsmith, exercised All Writs Act power over a non-BCD special court-martial in the interval between completion of the trial and convening authority action, since referral of the case to the Court of Criminal Appeals by the Judge Advocate General remained a possibility, and accordingly, the case remained potentially within the Court of Appeals appellate jurisdiction. United States v. Nguyen, 56 M.J. 252 (2001) (mem.). Not surprisingly, the Court dismissed for lack of jurisdiction a bizarre mandamus petition filed on behalf of a former President of Taiwan who contended he was the de facto civil administrator of
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Taiwan on behalf of the United States. Chen Shui-Bian v. United States, 68 M.J. __ (2009) (mem.). At least in the absence of a contention that a member punished under Article 15 was attached to or embarked on a vessel with a view to defeating the right to demand trial by court-martial, the Courts current approach is to not be drawn directly into mast cases. See Slater v. Kamrath, 33 M.J. 491 (1991) (mem.); cf. United States v. Edwards, supra. The nettlesome area of the Courts jurisdiction was much narrowed by the 1989 amendment to Article 69, discussed above. By subjecting subjurisdictional courts-martial to the prospect of referral to a Court of Military Review, Congress brought them within the Court of Appeals potential appellate jurisdiction and hence seemingly within its reach under the All Writs Act, see FTC v. Dean Foods Co., 384 U.S. 597, 603-04 (1966), although the language quoted above from the Senate Report suggests that expansion of access to the Courts of Military Review and Court of Appeals was intended to reduce reliance on the extraordinary writ process. S. REP. NO. 101-81, at 173 (1989). The right of a party to . . . review [on petition for extraordinary writ] seems limited only by the courts assessment of the importance of the question presented. John S. Cooke, The United States Court of Military Appeals: 198084, 31 FED. B. NEWS & J. 319, 323 (1984). The court has treated its authority to reach the merits of such petitions as very nearly discretionary. Id. Still, extraordinary writ jurisdiction, whatever its parameters, is exercised sparingly. A showing of compelling need or a recurring issue of concern to all of the services is typically required. Unger v. Ziemniak, supra, at 355-56; Murray v. Haldeman, 16 M.J. 74, 76-77 (1983). Any party may petition the Court of Military Appeals for extraordinary relief. However, in the interest of judicial economy, such petitions usually should be filed with and adjudicated before the appropriate Court of Military Review prior to submission to the Court of Military Appeals. R.C.M. 1204(a) (Discussion); Pearson v. Cox, 10 M.J. 317, 319 (1981); see also Dettinger v. United States, 7 M.J. 216 (1979) (C.M.R. has All Writs Act power). Resort to the lower court in the first instance is consonant with civilian practice. See FED. R. APP. P. 22(a) (habeas corpus petitions); cf. UCMJ art. 36(a), 10 U.S.C. 836(a) (2006). Even if relief in most instances . . . is more to be expected from the Court of Military Appeals, David S. Durbin, Book Review, 30 JAG J. 229, 230 (1978), the Court had at times indicated that writ petitioners should not begin their efforts there, United States v. Coffey, 38 M.J. 290, 291 (1993) (per curiam), but at other times had entertained and granted relief on a petition even though no effort had been made to seek relief from the intermediate court. E.g., Garrett v. Lowe, 39 M.J. 293 (1994), limited, Loving v. United States, 62 M.J. 235, 25657 (2005). Indeed, as recently as Gray v. Mahoney, 39 M.J. 299, 303 (1994), the Court stated that:
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[p]resently there is no requirement that a petition for extraordinary relief be filed in a Court of Military Review as a prerequisite to this Courts consideration of a matter. While petitioners might have done so and then appealed any adverse decision to this Court, they were not required to do so in order to ripen their claims. The lacuna referred to was remedied in 1995, when the Court added the second and third sentences to Rule 4(b)(1). Cases filed in violation of the exhaustion requirement have been dismissed without prejudice, e.g., Calhoun v. United States, 44 M.J. 274 (1996) (mem.), although the Courts practice on this score was inconsistent. For example, in ABC, Inc. v. Powell, 47 M.J. 363, 364 (1997), the Court commented that it would have welcomed the opinion of the Army Court of Criminal Appeals, but still found good cause to excuse a failure to seek relief from that court because public access to Article 32 investigations is a question of common concern to all services under the UCMJ and is not unique to the Army and because the Article 32 investigation was ready to proceed. In Goldsmith v. Clinton, supra, the Court invoked judicial economy as a reason to permit a petitioner to piggyback onto a writ appeal petition an original petition for extraordinary relief that raised an issue fundamentally unrelated to the one presented on the writ appeal. 48 M.J. at 88. Given the Supreme Courts holding, in reversing Goldsmith, 526 U.S. 529, 539-40 (1999), that the availability of other judicial (and perhaps administrative, see id. at 538 n.12) remedies makes it inappropriate to resort to the All Writs Act, one would think the Court of Appeals would adopt a firm policy of requiring exhaustion of intermediate court remedies. Nonetheless, it has remained flexible in this regard, and has permitted the filing of original writ petitions where there is good cause. E.g., Loving, supra, at 257 & n.150 (citing GUIDE (11th ed.) and noting futility of recourse to C.C.A. and fact that issues go to the lawfulness of this Courts prior judgment, raise important constitutional claims, and relate to this Courts statutory duty to review a death sentence). Counsel are well-advised to think long and hard as to whether they can make a cogent case for bypassing the intermediate court. Absent a showing of good cause, an original writ petition will be denied. E.g., Daniels v. United States, 65 M.J. 262 (2007) (mem.). Goldsmith certainly indicates that relief under the All Writs Act is neither necessary nor appropriate if relief can be afforded under the Tucker Act, 28 U.S.C. 1491 (2006), Little Tucker Act, 28 U.S.C. 1346(a)(2) (2006), or Administrative Procedure Act, 5 U.S.C. 706 (2006). Clinton v. Goldsmith, supra, at 539-40. Prior to Goldsmith, the Court of Appeals was also inconsistent on whether exhaustion of administrative remedies is required. Compare DAVID A. SCHLUETER, supra, 17-19 & n.27 (exhaustion not required under current philosophy), with Keys v. Cole, 31 M.J. 228, 230 (1990) (noting petitioners earnest efforts and likely futility of recourse to further administrative procedures), and HOMER E. MOYER, supra, 2-837, at 651-52 (collecting cases). In Lynch v.
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Thorsen, 32 M.J. 311 (1991) (mem.), where the adjudged sentence included neither confinement nor a punitive discharge, the Court denied a writ appeal petition on the ground that the appellant had not exhausted his remedies under Article 69. See also Sands v. Champagne, 46 M.J. 201 (1996) (mem.) (writ appeal petition denied without prejudice to post-trial review; general court-martial sentence to $3,000 fine and letter of reprimand); United States v. Pruner, 33 M.J. 272, 274 (1991) (extraordinary writ issue held premature in absence of ruling by military judge), citing Harrison v. United States, 20 M.J. 55, 57-58 (1985); see also United States v. House, 56 M.J. 201 (mem.) (writ appeal petition denied without prejudice where petitioner has not filed a formal motion and pleadings in support thereof with the military judge specifically addressing the circumstances from which he seeks relief in this Court). On the other hand, in Lemoine v. Baker, 36 M.J. 86 (1992) (mem.), the Court ordered an Air Force reserve officer removed from appellate leave pendente lite over Judge Crawfords objection that he had failed to exhaust administrative remedies. Coffey, supra, indicated a requirement for exhaustion of the Disciplinary Barracks grievance procedure as well as the Article 138 remedy absent some unusual or egregious circumstance. See also United States v. Miller, 46 M.J. 248, 250 (1997) (4-1 decision) (prison conditions not normally within Courts jurisdiction; appellant must establish clear record of legal deficiency in administration of prison and jurisdictional basis for Courts action). In Goldsmith v. Clinton, 48 M.J. 84, 87, where an inmate complained about a life-threatening suspension of his HIV medication, there was dictum asserting authority to grant extraordinary relief with respect to cruel or unusual punishment especially when the sentence adjudged was sufficient to authorize review under Articles 66 and 67. The Supreme Court reversed. Clinton v. Goldsmith, supra. [T]here is no source of continuing jurisdiction for the CAAF over all actions administering sentences that the CAAF at one time had the power to review. Clinton v. Goldsmith, supra, at 536. Consistent with this approach, All Writs Act relief has been refused with respect to military administrative matters such as pay, Keys v. Cole, supra, 31 M.J. at 234 & n.3 (encouraging petitioner to seek relief in Claims Court, which has special expertise in this field); cf. Slater v. Kamrath, supra (denying extraordinary relief with respect to mast without prejudice to right to seek relief from Claims Court or other appropriate forum); United States v. Allen, 33 M.J. 223, 229-30, 231 (1991), administrative discharge board proceedings, Zanella v. Ehrie, 30 M.J. 171 (1990) (mem.), conscientious objector discharges, Parisi v. Davidson, 405 U.S. 34 (1972), and certification of judges, In re Taylor, 12 C.M.A. 427, 31 C.M.R. 13 (1961), and 13 M.J. 204 (1982) (mem.); see also, e.g., Garcia v. Emerson, 5 M.J. 1075 (1976) (mem.) (return of seized property); Herrod v. Convening Authority, 19 C.M.A. 574, 42 C.M.R. 176 (1970) (mem.) (award of decorations); Hamilton v. United States, 18 M.J. 119 (1984) (mem.) (dismissing without prejudice to right to apply for relief from board for correction of military records). Goldsmith will require reexamination of a number of writ cases. E.g., Gray v. Mahoney, 39 M.J. 299, 303 n.2 (1994) (certification of defense counsel, while normally not within Courts statu-
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tory interest, might be within scope of Courts interest if certification status were adversely affected by reasonable performance of duties in vigorous pursuit of clients interests). The Court of Appeals approach to the jurisdictional issue in Gray v. Mahoney is disturbing in light of the settled rule that every Federal appellate court has a special obligation to satisfy itself . . . of its own jurisdiction . . . , even though the parties are prepared to concede it. Bender v. Williamsport Area School District, 475 U.S. 534, 541 (1986), quoting Mitchell v. Maurer, 293 U.S. 237, 244 (1934). After Clinton v. Goldsmith, careful attention must be paid to whether there is an available, potentially-effective administrative remedy. The Supreme Court disavowed any ruling on whether the BCMR was such a remedy in that case, but its language suggests that it will view with skepticism efforts to circumvent the record-correction process based on claims of futility. 526 U.S. at 538 n.12. For a perceptive albeit dated brief summary of the law on extraordinary writs see DEPT OF THE ARMY PAM. 27-173, LEGAL SERVICES, TRIAL PROCEDURE ch. 36 (1992). For a comprehensive treatment see CHESTER JAMES ANTIEAU, THE PRACTICE OF EXTRAORDINARY REMEDIES: HABEAS CORPUS AND THE OTHER COMMON LAW WRITS (1987). Subsection (c), which was added in 1977, restates hornbook law that rules of practice and procedure may not alter a courts lawful jurisdiction. Washington-Southern Nav. Co. v. Baltimore & Philadelphia Steamboat Co., 263 U.S. 629, 635 (1924); see also FED. R. APP. P. 1(b). It was invoked in Goldsmith v. Clinton, supra, where compliance with the exhaustion requirement and time limit for extraordinary writ petitions was at issue. 48 M.J. at 88-89 nn.6, 8. Rule 5. SCOPE OF REVIEW The Court acts only with respect to the findings and sentence as approved by reviewing authorities, and as affirmed or set aside as incorrect in law by a Court of Criminal Appeals, except insofar as it may take action on a certificate for review or a petition for review of a decision by a Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, 10 USC 862, or to grant extraordinary relief in aid of its jurisdiction, including the exercise of its supervisory powers over the administration of the Uniform Code of Military Justice. The Court may specify or act on any issue concerning a matter of law which materially affects the rights of the parties.
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1983 Rules Advisory Committee Comment This rule has not been changed from the former rule. Discussion The scope of the Courts review should not be confused with the standard of its review. 1 STEVEN A. CHILDRESS & MARTHA S. DAVIS, FEDERAL STANDARDS OF REVIEW 1.03, at 1-17 to -19 (3d ed. 1999). For example, where a case turns on the exercise of discretion by a military judge, the Court reviews for abuse of discretion. E.g., United States v. Cole, 31 M.J. 270, 272 (1990). Illustrative standards of review which the Court has employed are listed in the Discussion of Rule 24. The Court of Military Appeals does not sit to find facts. United States v. Rushatz, 31 M.J. 450, 457 & n.1 (1990), citing United States v. Harper, 22 M.J. 157, 161 (1986); see also United States v. Johnson, 31 M.J. 482 (1990) (mem.); United States v. Gray, 40 M.J. 25 (1994) (mem.). The scope of review is narrower than the review exercised by the Court of Military Review; so long as there is some competent evidence in the record to establish the elements of the offense beyond a reasonable doubt, the Court of Military Appeals will not reevaluate the facts. Ryder v. United States, 515 U.S. 177, 187 (1995), citing United States v. Wilson, 6 M.J. 214 (1979). It may not be asked to reevaluate the facts of a case under the guise of a certified question, United States v. Antonelli, 35 M.J. 122, 128 (1992) (emphasis in original), and is bound by factual determinations of the Courts of Criminal Appeals under Article 66(c), 10 U.S.C. 866(c) (2006), that are favorable to the accused. United States v. Johnson, 23 M.J. 209, 211 (1987) (per curiam); see generally HOMER E. MOYER, JUSTICE AND THE MILITARY 2-801, at 637 (1972) (collecting cases). It is also bound by factual determinations adverse to the accused unless the evidence is insufficient as a matter of law. See United States v. Marks, 29 M.J. 1 (1989) (evidence sufficient as matter of law for rational trier of fact to find appellant guilty). A Court of Criminal Appeals cannot insulate its rulings from review by the Court of Appeals by labeling a question of law or a mixed question as a question of fact. United States v. Bunting, 6 C.M.A. 170, 19 C.M.R. 296, 299 (1955). It is within the Courts authority to review a lower courts determination of factual insufficiency for application of correct legal principles. At the same time, this authority is limited to matters of law; [it] may not reassess a lower courts fact-finding. United States v. Leak, 61 M.J. 234, 241 (2005). Striking a warning note, the Court (per Baker, J.) added: To the extent our judgment today is perceived as encouraging the Governing to certify questions of law in cases where courts of criminal appeals have ruled against the Government on grounds of factual insufficiency, we note that this door has been open since the inception of the UCMJ and expressly so since [United States v. Thompson, 2 C.M.A. 460, 9 C.M.R. 90 (1953)] was de-
35
cided in 1953. The Judge Advocates General have not used their certification authority in such a manner. Were they to do so, this Court would be obliged to review all such cases, but consistent with Article 67, could not act with respect to cases it found presented questions of fact and not law. Where the issue raised was clearly one of fact, and not law, nothing in Article 67 would preclude this Court from reviewing a case in a succinct manner. 61 M.J. at 241 n.6. Chief Judge Gierke dissented on this aspect of the decision. Id. at 249. The Court of Appeals has no power to determine sentence appropriateness. United States v. Stene, 7 C.M.A. 277, 22 C.M.R. 67 (1956) (2-1 decision); United States v. Keith, 1 C.M.A. 442, 4 C.M.R. 34, 43 (1952). It may, however, review sentences for lawfulness, e.g., United States v. Lorance, 35 M.J. 382 (1992) (bread and water portion of sentence held contrary to Manual and Code); United States v. Yatchak, 35 M.J. 379 (1992) (bread and water portion of sentence held contrary to Art. 55); United States v. Fair, 26 M.J. 49 (1988) (mem.) (reversing pre-discharge forfeitures in excess of two-thirds pay); United States v. Warner, 25 M.J. 64 (1987) (2-1 decision) (same); United States v. Matthews, 16 M.J. 354 (1983) (invalidating death penalty); cf. United States v. Valead, 32 M.J. 122 (1991) (bread and water), and may set aside portions of a sentence in order, for example, to give effect to a pretrial agreement. E.g., United States v. Olson, 25 M.J. 293 (1987). In a proper case, moreover, the judges are not above alerting service authorities where a lawful sentence seems to be inappropriate, e.g., United States v. Conforti, 28 M.J. 363 (1989) (mem.) (Everett, C.J., concurring in denial of petition for grant of review), much as they have occasionally made suggestions for legislative or executive action. Examples of the practice go back a long way, see FY76 CODE COMM. ANN. REP. 7-8 (1977) (collecting cases), and are legion. E.g., United States v. Phillips, 64 M.J. 410, 414-15 n.* (2007) (noting need for guidance on contingent confinement procedures in cases involving delinquent, nonindigent servicemembers); United States v. Politte, 63 M.J. 24, 26 n.11 (2006) (recommending revision of Manuals Forms for Action); United States v. Miller, 63 M.J. 452, 461 (2006) (Crawford, J., concurring in the result) (Court should, instead of announcing prospective rule, recommend that President consider requiring defense counsel to notify accused of exposure to registration as sexual offender); United States v. Stebbins, 61 M.J. 366, 375 n.72 (2005) (recommending that Joint Services Comm. on Mil. Just. consider whether Manual [for Courts-Martial] should include standards for the imposition of fines); United States v. Palmer, 59 M.J. 362, 366 n.7 (2004) (recommending that the President consider amplification of rules for payment of fines); United States v. Emminizer, 56 M.J. 441, 445 (2002) (recommending that Executive Branch consider desirability of providing services with uniform guidance concerning interaction between adjudged and mandatory forfeitures); United States v. Carter, 54 M.J. 414, 421 n.3 (2001) (recommending use of more flexible language with respect to situations where the President did not intend to set forth specific military rules but, instead, intended to follow evolving civilian practice); United
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States v. Brown, 54 M.J. 289, 292 (2000) (urging that Executive Branch consider whether requests to defer forfeitures should be followed by recommendation of staff judge advocate served on accused with opportunity to respond); United States v. Reed, 54 M.J. 37, 45 (2000) (Sullivan, J., concurring) (recommending new punishment of discharge with no or partial loss of retirement benefits); United States v. Pablo, 53 M.J. 356, 363 (2000) (Crawford, C.J., dissenting) (Congress or President should adopt child hearsay exception); United States v. Chaney, 53 M.J. 383, 386 (2000) (Sullivan, J., concurring in the result) (recommending that Congress and President consider eliminating peremptory challenges); United States v. Hurn, 55 M.J. 446, 450 (2001) (Sullivan, J., dissenting) (same), citing United States v. Tulloch, 47 M.J. 283, 289 n.* (1997) (Sullivan, J., dissenting) (same); United States v. Steele, 53 M.J. 274, 278 n.* (2000) (President should consider applying district court limitation of practice to attorneys who have active status in bar); United States v. Davis, 50 M.J. 426, 435 (1999) (Crawford, J., concurring in the result) (noting Congresss option to change Article 45 to permit Alford-type pleas); Steele v. Van Riper, 50 M.J. 89, 91 n.1 (1999) (potential conflict between administrative and judicial procedures could be reduced, if not eliminated, by such means as a change in Manual for CourtsMartial); id. at 92 (Crawford, J., concurring in the result) (suggesting presidential or secretarial regulation); United States v. Upshaw, 49 M.J. 111, 114 (1998) (Sullivan, J., concurring) (noting legislative proposal on member selection); United States v. Clark, 49 M.J. 98, 101 (1998) (Cox, C.J., concurring) (inviting Joint Service Committee on Military Justice to consider a rule for postconviction attacks on courts-martial); United States v. Boone, 48 M.J. 380, 381 (1997) (mem.) (Sullivan, J., dissenting) (recommending congressional action to achieve truth in sentencing); United States v. Britton, 47 M.J. 195, 204-05 (1997) (Effron, J., concurring) (recommending Manual changes to provide for conditional dismissals and alternative terminology to deal with multiplicity); United States v. Williams, 63 M.J. 442, 443 (2006) (mem.) (Crawford, J., concurring in the result) (same); United States v. White, 47 M.J. 139, 141 (1997) (status of state conviction as recurring problem in the sentencing process); Smith v. Vanderbush, 47 M.J. 56, 61 (1997) (expiration of term of service discharge after arraignment not representative of significant or recurring pattern; corrective action rests with service secretary); United States v. Hughey, 46 M.J. 152, 156 (1997) (Sullivan, J., concurring); United States v. Walters, 45 M.J. 165, 167 (1996) (Cox, C.J., concurring in the result), citing United States v. Dykes, 38 M.J. 270, 272 n.* (1993) (opinion of Cox, J.) (recommending consideration by Joint-Service Committee on Military Justice), and quoted in Gilliam v. Bureau of Prisons, 2000 U.S. App. LEXIS 3684, at *4-5 (8th Cir. 2000); United States v. Sumrall, 45 M.J. 207, 211 n.3 (1996), citing United States v. Ives, 45 M.J. 22, 23 (1996) (mem.) (Sullivan, J., dissenting); United States v. Boone, 42 M.J. 308, 314 (1995) (Sullivan, C.J., dissenting); United States v. Lopez, 35 M.J. 35, 45-46 n.3 (1992) (Cox, J., recommending de-Manualiz[ing] Manual provisions on searches); U.S. Navy-Marine Corps Court of Military Review v. Carlucci, 26 M.J. 328, 335 & n.10 (1988); United States v. Caputo, 18 M.J. 259, 267-68
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(1984); id. at 275 (Cook, J., dubitante); United States v. Matthews, 16 M.J. 354, 381-82 (1983); United States v. Pitasi, 20 C.M.A. 601, 608, 44 C.M.R. 31, 38 (1971); but see United States v. Smith, 46 M.J. 263, 268 (1997) (Sullivan, J., concurring in part and dissenting in part) (cautioning against taking on policy making role of a congressional subcommittee or . . . a group of assistant secretaries in an Executive department by addressing certified issue that was moot in light of ruling on another issue). In United States v. Buller, 46 M.J. 467, 469 n.4 (1997), concerning the service on defense counsel of addenda to staff judge advocates recommendations, the Court noted the potential for litigation under the current rule but confined itself to the observation that the decision as to whether the rule should be changed to eliminate this source of appellate litigation rests with those responsible for rule-making in the Executive Branch. Such a comment would obviously alert the Joint Service Committee on Military Justice to the need to consider the desirability of a Manual change. By making no recommendation, however, it wisely preserves the separation of judicial and rulemaking functions. See also United States v. Dowty, 60 M.J. 163, 175-76 (2004) (noting past expressions of concern over member-selection, but declining to recommend changes). On occasion, a court of criminal appeals may also suggest a Manual change, as in United States v. Andreozzi, 60 M.J. 727, 738 n.25 (A.C.C.A. 2005). Where a question exists as to whether a remand for further consideration of sentence appropriateness has been properly effected, a second remand may be ordered. United States v. Baker, 29 M.J. 126 (1989) (per curiam); see also United States v. Peoples, 29 M.J. 426 (1990) (remanding with instructions either to disapprove discharge or to order rehearing on sentence); Waller v. Swift, 30 M.J. 139, 145 (1990) (commutation of bad-conduct discharge to 12 months confinement held improper; reinstatement of discharge barred because of time already spent in confinement). The Court has occasionally found cumulative error, e.g., United States v. Dollente, 45 M.J. 234, 236 (1996); United States v. Banks, 36 M.J. 150, 170-71 n.24 (1992) (collecting cases), and has exercised the power to dismiss in the interests of justice. E.g., United States v. Hilton, 32 M.J. 393, 394 (1991) (charge and specification dismissed [i]n view of the unusual time consumed in these proceedings [nearly 5 years from trial to final decision, two prior remands] and the improbability of a successful rehearing); compare United States v. Bruton, 18 M.J. 156 (1984) (lengthy unexplained delay in post-trial processing; prejudice in access to civilian employment), with United States v. Jenkins, 38 M.J. 287 (1993) (per curiam) (no substantial prejudice shown); United States v. King, 5 M.J. 1040 (1976) (mem.) (charges dismissed based on circumstances of the record, from which, among other things, it appears that the normal term of the accuseds enlistment has ended); United States v. Fjermestad, 17 C.M.A. 481, 38 C.M.R. 278 (1968) (per curiam) (sentence served; case already reviewed twice; minor offenses); United States v. Dixon, 17 C.M.A. 423, 38 C.M.R. 221, 225 (1966); United States v. Sheeks, 16 C.M.A. 430, 37 C.M.R. 50, 56 (1966);
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HOMER E. MOYER, supra, 2-802, at 638 (collecting cases); see also United States v. Hock, 31 M.J. 334, 336 (1990) (prematurely-executed bad-conduct discharge set aside in interest of judicial economy); compare United States v. Stoffer, 53 M.J. 26, 28 (2000) (4-1 decision) (finalizing 6-year-old case rather than prolonging litigation by remanding for sentence reassessment), with United States v. Harris, 53 M.J. 86 (2000) (remanding years-old case for rehearing on sentence). Even prolonged delay, however, will not entitle the accused to relief from a conviction in the absence of prejudice. United States v. Boudreaux, 35 M.J. 291, 296 (1992) (1974 court-martial); Jenkins, supra. The Court has also at times evinced a willingness to concern itself with sentencing issues under the rubric of policing the reassessment of sentences infected by procedural error. E.g., United States v. Turcola, 31 M.J. 445 (1990) (mem.) (2-1 decision); United States v. Sales, 22 M.J. 305 (1986); United States v. Suzuki, 20 M.J. 248 (1985); DAVID A. SCHLUETER, MILITARY CRIMINAL JUSTICE: PRACTICE AND PROCEDURE 17-16(C) (6th ed. 2004); compare United States v. Johns, 16 M.J. 140 (1983) (mem.) (2-1 decision), with United States v. Dukes, 5 M.J. 71 (1978) (2-1 decision). On the other hand, it has shown little inclination to monitor sentence appropriateness as between cases. See United States v. Olinger, 12 M.J. 458, 460-61 (1982) (Fletcher, J.); United States v. Henry, 42 M.J. 231, 234 (1995). The current analysis focuses on whether the cases are closely related, whether the sentences are highly disparate, and whether there is a rational basis for the differences between the cases. United States v. Lacy, 50 M.J. 286, 288 (1999); see also United States v. Fee, 50 M.J. 290 (1999). Claims of discriminatory or other illegal prosecution or referral aside, even this highly deferential review for sentence disparity does not extend to disparate decision making as to whether to invoke the military justice process. United States v. Noble, 50 M.J. 293, 295 (1999). The Court reviews the sentencing decisions of the Court of Criminal Appeals for obvious miscarriages of justice or abuses of discretion. United States v. Jones, 39 MJ 315, 317 (CMA 1994). United States v. Tardif, 57 M.J. 219, 223-24 (2002); see also United States v. Brock, 46 M.J. 11, 13 (1997) (Court may examine the Court of Criminal Appeals decision on sentence appropriateness for an abuse of discretion). For early cases in which the Court has acted in a sentencing capacity see John T. Willis, The United States Court of Military Appeals: Its Origin, Operation and Future, 55 MIL. L. REV. 39, 88 n.265 (1972). Where the Court dismisses a charge or specification but, in light of the leniency of the sentence, is highly confident that the dismissed offense played no appreciable role in the adjudication of the punishment, it may decline to remand for a fresh look at the sentence. E.g., United States v. Lee, 46 M.J. 384 (1997) (mem.); United States v. Broadway, 41 M.J. 378 (1994) (mem.); United States v. Burns, 41 M.J. 120 (1994) (mem.), both citing United States v. Fox, 10 M.J. 176, 177 (1981), quoting United States v. Thompson, 22 C.M.A. 88, 91, 46 C.M.R. 88, 91 (1972); see also United States v. Neill, 47 M.J. 75 (1997) (mem.) (noting appellants offenses and prior record); United States v. Henderson, 44 M.J. 232,
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234 (1996) (per curiam). Obviously such a decision requires the Court to reconcile the interest in judicial economy with the accuseds interest in having those with statutory sentencing and review authority revisit the matter. United States v. Sellers, 42 M.J. 212 (1995) (mem.), illustrates just how seriously the Court takes such matters; four judges voted to reverse and require reassessment of the sentence in light of an administrative error in the premature execution of a reduction in rank. Judge Cox dissented, citing Article 59(a) and the maxim De minimis non curat lex. Use of an exacting highly confident standard in connection with the Courts power to decline to remand in such cases is appropriate; it is doubtful that a more precise statement of the factors that might bear on the exercise of this power can be framed. An appellate court has discretion of consider issues not raised by the parties, see United States Natl Bank of Or. v. Independent Ins. Agents of Am., Inc., 508 U.S. 439, 445-48 (1993), and there are times when virtually any appellate court, even the Supreme Court of the United States, will require briefing of issues not assigned by the parties. E.g., Swint v. Chambers County Commn, 513 U.S. 958 (1995) (mem.); Payne v. Tennessee, 498 U.S. 1076 (1991) (mem.) (three Justices dissenting); Freytag v. Commissioner of Internal Revenue, 498 U.S. 1066 (1991) (mem.); United States v. Muoz-Flores, 493 U.S. 808 (1989); McKesson Corp. v. Div. of Alcoholic Beverages and Tobacco, Dept of Business Regulation of Florida, 492 U.S. 915 (1989) (mem.); American Trucking Assns v. Smith, 492 U.S. 915 (1989) (mem.); Patterson v. McLean Credit Union, 485 U.S. 617, 622-23 (1988) (per curiam) (collecting cases) (four Justices dissenting); Brown v. Board of Education of Topeka, 345 U.S. 972 (1953) (mem.) (ordering reargument); see generally EUGENE GRESSMAN, KENNETH S. GELLER, STEPHEN M. SHAPIRO, TIMOTHY S. BISHOP & EDWARD A. HARTNETT, SUPREME COURT PRACTICE 5.11, 6.25(h), at 341-422, 459-61 (9th ed. 2007) (collecting cases); Michael F. Sturley, Filing and Responding to a Petition for Certiorari, 24 J. MAR. L. & COM. 595, 604 & n.49 (1993). One such action led Justice Stevens to comment that the adversary process functions most effectively when we rely on the initiative of lawyers, rather than the activism of judges, to fashion the questions for review. New Jersey v. T.L.O., 468 U.S. 1214, 1216 (1984) (mem.) (Stevens, J., dissenting from order directing reargument). This was in keeping with his view that neither Article III of the Constitution nor the jurisdictional statutes enacted by Congress vest this Court with any roving authority to decide Federal questions that have not been properly raised in adversary litigation. Illinois v. Gates, 459 U.S. 1028 (1982) (mem.) (Stevens, J., dissenting). The Court of Appeals for the Armed Forces is no exception to this practice. Its exercise of the power to specify issues has been addressed at length elsewhere. Robinson O. Everett, Specified Issues in the United States Court of Military Appeals: A Rationale, 123 MIL. L. REV. 1 (1989); William N. Early, Lizann M. Longstreet & James S. Richardson, USCMA and the Specified Issue: The Current Practice, 123 MIL. L. REV. 9 (1989); Eugene R. Fidell & Linda Greenhouse, A Roving Commission: Specified Issues and the Function of the
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United States Court of Military Appeals, 122 MIL. L. REV. 117 (1988); Eugene R. Fidell, The Specification of Appellate Issues by the United States Court of Military Appeals, 31 JAG J. 99 (1980). Excessive use of the power to specify questions for review was faulted by the Court Committee in its January 27, 1989 report. Presentation of Court Committee Report, 28 M.J. 99, 101 (1989), cited in 2 FRANCIS A. GILLIGAN & FREDRIC I. LEDERER, COURT-MARTIAL PROCEDURE 25-60.00, at 25-35 & n.225 (3d ed. 2006). Whether or not the authors of that report can take credit for a change, the incidence of specified issues has declined since then, although they remain a surprisingly common occurrence on the Courts docket. Rulings on such issues rarely if ever confer any practical benefit on the accused. E.g., United States v. Lewis, 42 M.J. 1 (1995); United States v. Sanders, 41 M.J. 485 (1995); see also United States v. Shepperd, 57 M.J. 328 (2002) (mem.) (not reaching specified issue); United States v. Wilson, 6 M.J. 214, 215 (1979) (same); but see United States v. Campbell, 50 M.J. 154, 160 (1999). The only known study indicates that the Courts Central Legal Staff identifies 64% of the issues that are specified; the remainder are identified in chambers. William N. Early, Lizann M. Longstreet & James S. Richardson, supra, at 24. Ordinarily, when the Court specifies an issue, it requires the matter to be briefed in the usual manner; in United States v. Russell, 46 M.J. 413 (1997) (mem.), however, it specified an ineffective-assistance issue and simultaneously set aside the decision of the Court of Criminal Appeals, returning the case for resubmission to that court for consideration of the specified issue. The order directed that the record be returned directly to the Court of Appeals upon completion of the further proceedings below. The Court may also note an issue that is neither assigned nor specified. United States v. Pinero, 60 M.J. 31, 35 n.2 (2004). The Courts of Criminal Appeals can also specify issues. See, e.g., A.F.C.C.A.R. 18(c)(1). In the past, this was a comparatively infrequent occurrence, William N. Early, Lizann M. Longstreet & James S. Richardson, supra, at 27 n.54 (in FY88, A.C.M.R. specified issues in 18 cases, A.F.C.M.R. specified issues in 40 cases), but in recent years the practice has grown more frequent. E.g., United States v. Campbell, Dkt. No. 2003-818 (N-M.Ct.Crim.App. July 14, 2005), slip op. at 2; United States v. Sanchez, 47 M.J. 794, 795 n.2 (NM.Ct.Crim.App. 1998); United States v. Smith, 47 M.J. 588, 589 & n.2 (NM.Ct.Crim.App. 1997); United States v. Shavrnoch, 47 M.J. 564, 565 (A.F.Ct.Crim.App. 1997), affd, 49 M.J. 334 (1998); McKinney v. Jarvis, 46 M.J. 870, 872 n.2 (Army Ct.Crim.App. 1997); United States v. Olinger, 45 M.J. 644, 647 & n.2 (N-M.Ct.Crim.App. 1997); United States v. Kelly, 41 M.J. 833, 835 (NM.Ct.Crim.App. 1995) (en banc); United States v. Green, 39 M.J. 606, 607 (A.C.M.R. 1994); cf. United States v. Cook, 48 M.J. 434, 437 (1998) (deciding issues specified by C.A.A.F., and noting C.C.A.s sua sponte consideration of another, unrelated issue). Specification by these courts is more defensible than specification by the Court of Appeals for the Armed Forces since the Courts of Criminal Appeals are under an affirmative statutory obligation to review the record unless the accused waives appellate review.
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The power to modify, e.g., United States v. Forbes, 60 M.J. 334 (2004) (mem.); United States v. Lange, 52 M.J. 450 (1999) (mem.); United States v. Scott, 51 M.J. 336 (1999) (mem.); United States v. Brewer, 41 M.J. 359 (1994) (mem.); United States v. Anzalone, 41 M.J. 142, 143 (1994); United States v. Jones, 32 M.J. 430 (1991), recast, e.g., United States v. Blocker, 32 M.J. 190 (1990) (mem.), or go beyond the issues framed by the parties has been exercised or asserted in every category of case the Court of Appeals can hear. E.g., United States v. Kelly, 14 M.J. 196, 200-01 (1982) (claiming discretion to specify issues in cases reviewed by C.M.R. under Art. 69 and then certified to C.M.A.); United States v. Redmond, 5 M.J. 1024 (1976) (mem.), recasting issue certified at 5 M.J. 1008 (1976) (mem.); United States v. Simone, 6 C.M.A. 146, 19 C.M.R. 272 (1955) (certified case; issues enlarged at request of accused); United States v. Herndon, 1 C.M.A. 461, 4 C.M.R. 53, 54 (1952) (C.M.A. not confined to certified issues in case certified by Judge Advocate General); United States v. Schultz, 1 C.M.A. 512, 531, 4 C.M.R. 104, 123 (1952) (examination of whole record in certified case); United States v. Bradley, 68 M.J. 163 (2009) (mem.) (specifying issue in certificate case), 68 M.J. 279 (2010); United States v. Banks, 7 M.J. 92, 93 n.3 (1979) (issue specified in certificate case); United States v. Breseman, 24 M.J. 326 (1987) (mem.) (specifying issue in petition case); United States v. Bowling, 5 M.J. 1027 (1976) (mem.) (issue enlarged in petition case); Butler v. Kilcline, 5 M.J. 1048 (1976) (mem.) (issue specified in extraordinary writ case); United States v. South, 25 M.J. 226 (1987) (mem.) (issue specified on petition for new trial); United States v. Thomas, 8 M.J. 138 (1979) (same); cf. United States v. Lonetree, 34 M.J. 172 (1991) (mem.) (directing parties to brief particular issues on petition for new trial); United States v. Hilton, 32 M.J. 393, 394 (1991) (noting specification of issues, 32 M.J. 200 (1990) (mem.), following grant of petition for reconsideration, 31 M.J. 426 (1990) (mem.)); United States v. Hessler, 5 M.J. 277 (1978) (mem.) (issue specified on petition for reconsideration); United States v. Dickson, 60 M.J. 313 (2004) (mem.) (granting writ-appeal petition on specified issue); United States v. Nehring, 52 M.J. 482 (1999) (mem.) (specifying issue in writ-appeal petition). There are definitely limits, however. In United States v. Lennette, 41 M.J. 488, 489 n.* (1995), the Court decline[d] to consider . . . on [its] own motion a defense assertion that was irrelevant to the certified question. In such a case, a cross-petition should be filed. Counsel do not have license to paraphrase or revise the issue stated in the Grant Order. United States v. Mincey, 42 M.J. 376, 377 n.2 (1995); see also United States v. Perez, 45 M.J. 323, 324 n.* (1996). The Court typically specifies issues at the time it grants review. See Rule 21(d); e.g., United States v. Brown, 66 M.J. 491 (2008) (mem.), vacated, after oral argument, as improvidently granted, 67 M.J. 176 (2008). It can, however, grant a petition and announce that an issue will be specified at a later date, e.g., United States v. Rowsey, 11 M.J. 295 (1981) (mem.), or grant, specify an issue and summarily remand to the Court of Criminal Appeals for briefing and decision. E.g., United States v. Pipkin, 48 M.J. 42 (1997) (mem.); United States v. Jefferson, 18 M.J. 411 (1984) (mem.). It can also specify an issue after grant-
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ing review but prior to oral argument, e.g., United States v. Caraballo, 23 M.J. 421 (1987) (mem.); United States v. Elliott, 19 M.J. 258 (1984) (mem.); United States v. Ledbetter, 2 M.J. 37, 41 (1976), at oral argument, e.g., United States v. Appel, 31 M.J. 314, 315 n.2 (1990); United States v. Hughes, 28 M.J. 138 (1989) (mem.); United States v. Lawless, 18 M.J. 255, 257 n.2 (1984); United States v. Strangstalien, 7 M.J. 225, 227 (1979); United States v. Kelly, 14 M.J. 196, 199 (1982) (semble); cf. United States v. Hicks, 24 M.J. 3, 10 (1987) (Everett, C.J., concurring in part) (issue raised by Court ex mero motu during oral argument), or afterwards. E.g., United States v. Moran, 64 M.J. 388 (2007) (mem.); United States v. McCollum, 58 M.J. 323, 326 (2003); United States v. Baker, 57 M.J. 330, 331 (2002) (noting additional oral argument); United States v. Campbell, 50 M.J. 154, 155 (1999); United States v. Miller, 31 M.J. 247, 248 (1990); United States v. Castillo, 27 M.J. 480 (1988) (mem.); United States v. Talavera, 8 M.J. 14, 15 (1979); cf. United States v. Westmoreland, 31 M.J. 160, 161 n.1 (1990) (noting expansion of granted issue after oral argument, on unopposed motion by appellant). In United States v. Tanksley, 54 M.J. 169, 171 (2000), the Court, after oral argument, granted review of issues it had previously declined to grant. The Court may also specify issues repeatedly in the same case. See, e.g., United States v. Leak, 61 M.J. 234, 238 (2005); United States v. Jones, 60 M.J. 287 (2004) (mem.). The Court may also grant review of an issue personally asserted by the appellant, in addition to those raised by counsel. E.g., United States v. Perez, 64 M.J. 226 (2006) (mem.) (directing counsel to submit additional supplement to address four issues raised in appellants clemency submission); United States v. Sivits, 64 M.J. 226 (2006) (mem.) (directing counsel to submit additional supplement); United States v. Bresnahan, 61 M.J. 12 (2005) (mem.); United States v. Bertie, 50 M.J. 124 (1998) (mem.); United States v. Fee, 50 M.J. 125 (1998) (mem.); United States v. McClain, 50 M.J. 483, 484 (1999); United States v. Drayton, 43 M.J. 170 (1995) (mem.); United States v. Smith, 33 M.J. 486 & n.* (1991) (mem.), citing United States v. Grostefon, 12 M.J. 431 (1982); United States v. DeHart, 32 M.J. 19 & n.* (1990) (mem.) (same). In United States v. Meeks, 41 M.J. 150, 152 (1994), the Courts grant of review ran the gamut, including three issues raised by appellate defense counsel, one by the petitioner under Grostefon, and two specified by the Court. In United States v. Martinez, 51 M.J. 108 (1998) (mem.), and United States v. Mayo, 51 M.J. 114 (1998) (mem.), the only issues on which review was granted were ones personally raised by the appellants. Whether the Court will specify issues at the suggestion of nonparties remains to be seen. In United States v. Perry, 16 M.J. 135 (1983) (mem.), an amicus urged the Court to specify subissues, but review was denied without comment. In Murray v. Haldeman, 15 M.J. 297 (1983) (mem.), an amicus was cautioned to confine itself to the issues identified by the Court. If the specified issue is unclear, a motion for clarification can be made. E.g., United States v. Ellis, 29 M.J. 467 (1989) (mem.); United States v. Brad-
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ford, 28 M.J. 90 (1989) (mem.); United States v. Joines, 28 M.J. 86 (1989) (mem.); United States v. Sears, 17 M.J. 281 (1984) (mem.); United States v. Van Hullum, 13 M.J. 230 (1982) (mem.). By the same token, a motion will lie to modify, e.g., United States v. Powell, 49 M.J. 37 (1998) (mem.); United States v. Morris, 51 M.J. 134 (1998) (mem.) (granting motion to amend scope of issue presented), or clarify a granted issue (i.e., one raised by the petitioner). E.g., United States v. Lago, 16 M.J. 441 (1983) (mem.). Rule 6. QUORUM (a) A majority of the judges in regular active service authorized to constitute the United States Court of Appeals for the Armed Forces shall constitute a quorum. The concurrence of the majority of such judges, whether present and voting or voting telephonically or electronically, shall be required for a final resolution of any matter before the Court, subject to subsections (b), (c), and (d). In the event there are fewer than three active judges, such active judges shall constitute a quorum. See Article 144, UCMJ, 10 USC 944. (b) The Chief Judge, or the judge performing the duties of the Chief Judge, shall have the authority to issue temporary orders or stays pending the convening of a quorum. See Rules 15(f) and 27(a)(4). (c) If no judge is present, the Clerk may adjourn the Court from day to day. See Rule 9(d). (d) In the event a senior judge is recalled under Article 142(e), UCMJ, 10 USC 942(e), or an Article III judge is designated under Article 142(f), UCMJ, 10 USC 942(f), to sit on the Court, such judge shall be deemed to be a judge in regular active service under this rule with respect to those matters over which that judge has been recalled or designated to serve. To the extent that a judge in regular active service has been replaced under any circumstance set forth in Article 142(e)(1)(A)(i), (ii), or (iii), 10 USC 942(e)(1)(A)(i), (ii), or (iii), that judge shall not be included in the constitution of a quorum under this rule.
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1983 Rules Advisory Committee Comment The basic requirements of Rule 6(a) requiring two judges to constitute a quorum have not been changed. However, the rule has been modified to reflect the fact that the concurrence of two judges is required for final decision and only for the allowance of petitions for review, writ appeal petitions, petitions for new trial or for extraordinary relief. The former rule requiring the concurrence of two judges for both the allowance or denial of petitions presents the possibility of a deadlock in disposition of a petition in any situation where only two judges vote. Rule 6(b) has been modified to authorize a single judge to issue a show cause order. Discussion The text shown reflects the May 11, 1994 interim change to Rule 6. 40 M.J. 45, 59 FED. REG. 25,622 (1994). In enlarging the Court to five judges, Congress observed that [a]s under current law, the Court will sit as a whole for all its actions, rather than in panels, to ensure clarity and uniformity in the application of military law. S. REP. NO. 101-81, at 172 (1989); H.R. CONF. REP. No. 101-331, at 657 (1989). This language is precatory in light of the Courts express grant of statutory authority to determine its own quorum. UCMJ art. 144, 10 U.S.C. 944 (2006). Still, the notion that the Court should sit en banc at all times is a sound one and should be followed since doing so avoids the danger of doctrinal instability and the need for and delay entailed in en banc rehearings to correct errant panel decisions. A number of cases that were argued while there were only two judges in regular service (Chief Judge Sullivan and Judge Cox) were decided by only two judges even after the additional seats started to be filled. E.g., United States v. Barnes, 33 M.J. 468 (1992) (affirmance by two judges; Crawford, Gierke, Wiss and Everett, JJ., not participating); United States v. Cordes, 33 M.J. 462 (1991) (affirmance by two judges; Crawford, Gierke and Everett, JJ., not participating). The better practice would have been to set the cases down for reargument rather than proceed to judgment by what amounted to, in effect, a mere panel of the full Court. In 2006, the Court was again down to three judges with the expiration of the terms of Judges Gierke and Crawford. This had the effect of requiring a petitioner to obtain the votes of two of the remaining three judges, or 66%, in order to obtain a grant of review, as opposed to the 40% required if the bench had
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been fully staffed. After the Court announced that it would sit with only the three judges then in active service (i.e., without any of the senior judges), In re 2006-2007 Term of Court, 64 M.J. 224 (2006), the National Institute of Military Justice urged the Court to modify its internal procedures so that review would be granted on a single favorable vote until the Court again sat with a full Bench. Letter from Eugene R. Fidell and Kathleen A. Duignan, NIMJ, to William A. DeCicco, Clerk of the Court. Nov. 2, 2006, citing United States v. Roseboro, 50 M.J. 207, 208 n.* (1998) (mem.) (Sullivan, J., dissenting) (failure to fill out the Court [ . . .] at the petition stage can prejudice the petitioner simply because it makes it that much harder to round up a second vote for a grant). The Court considered the recommendation but it was not adopted. No explanation was furnished. Letter from William A. DeCicco, Clerk of the Court, to Eugene R. Fidell, NIMJ, Nov. 16, 2006. Prior to 1994, a single judge could issue a stay. See, e.g., United States v. Redding, 11 M.J. 100, 121 (1981) (Fletcher, J., dissenting) (noting stay granted by Cook, J., as acting C.J.). Whether the power of a single judge (other than the Chief Judge or one acting in that capacity) to issue stays survived the 1994 interim Rules Change is unclear. One would think that in an emergency, when only an Associate Judge, and not one acting as Chief Judge, is available, he or she could grant a stay, subject, as always, to its being lifted by the Court. A single judge can also allow papers to be removed from the courthouse, Rule 9(c), and solemnize marriages. E.g., Ann Gerhart & Annie Groer, The Reliable Source, WASH. POST, Oct. 7, 1997, at C3, col. 1 (Sullivan, J.); In re Hoots & Alsalami, 31 M.J. 477 (1990) (Everett, C.J.); In re Muschamp & Scudder, 27 M.J. 183 (1988) (Everett, C.J.); In re Cramer & Armao, 9 M.J. 246 (1980) (Cook, J.). For rulings that are outcome-determinative, the Court had previously prescribed a two-vote requirement. However, it also follow[ed] the practice that if for some reason only two judges are available to vote on a petition, e.g., in the event of a disqualification, protracted absence, or vacancy on the Court, then, upon vote of either judge, a petition for review will be granted . . . . The Military Justice Act of 1982: Hearings on S. 2521 Before the Subcomm. on Manpower and Personnel of the Senate Comm. on Armed Services, 97th Cong. 147 (1982) (response of Everett, C.J., to committee question); e.g., 1980 CODE COMM. ANN. REP. (1981) (describing practice during 7-month interval between departure of Perry, J. and elevation of Everett, C.J.). When only two judges act on a granted case and are equally divided, the decision is against the appellant. E.g., United States v. Rice, 33 M.J. 451 (1991), citing United States v. Owens, 23 C.M.A. 700, 50 C.M.R. 906 (1975). Where the Court has only four judges in regular active service, as occurred following the death of Judge Wiss, review will be granted if there are two votes for it. United States v. Fisher, 45 M.J. 159, 163 (1996) (Sullivan, J., concurring) (noting evolution from initial 3-1 vote to deny review to 4-1 vote to reverse on the merits). Congress declined to impose a minority-grant procedure (like the Supreme Courts informal but well-established rule of four) in the Military Jus-
46
tice Act of 1983, see S. 2521 Hearings, supra, at 213-17 (statement of the author on behalf of American Civil Liberties Union), but the Senate Report did urge the Court of Military Appeals to examine its current rules and procedures, such as the number of votes required to grant a petition for review, and other procedures, such as summary dispositions, in light of the fact that a denial of review has the effect of precluding even a chance for direct review by the Supreme Court. S. REP. NO. 98-53, at 34 (1983) (emphasis supplied); see also 129 Cong. Rec. 34,312 (1983) (statement of Sen. Kennedy) (Among other things, COMA might alter its internal practices to allow for review if a single judge desires to hear a case). No change has ensued in the Courts practice of requiring two votes for a grant of review. As a result, the Court, by continuing to apply that standard, in effect moved to a minority grant rule with five judges, as the Rules Advisory Committee had recommended. FY90 CODE COMM. ANN. REP. 5 (1991). The Committee also recommended that the Court raise the number required for a quorum to three. This eventually led to the 1994 change. On rare occasions, a member of the Court may dissent from a grant of review, e.g., United States v. Lanier, 52 M.J. 468, 469 (1999) (mem.) (Sullivan, J., dissenting in part); United States v. Field, 50 M.J. 359 (1999) (mem.) (Crawford, J., dissenting); United States v. Roberts, 38 M.J. 308 (1993) (mem.) (Cox, J., dissenting), especially where the Court specifies an issue. E.g., United States v. Holt, 15 M.J. 444 (1983) (mem.) (Cook, J., dissenting); United States v. Didas, 14 M.J. 446 (1982) (Cook, J., dissenting). Dissents from denials of review are more common. See Eugene R. Fidell & Linda J. Greenhouse, A Roving Commission: Specified Issues and the Function of the United States Court of Military Appeals, 122 MIL. L. REV. 117, 127 n.58 (1988) (collecting cases); e.g., United States v. Mayton, 56 M.J. 151 & n.* (2001) (mem.) (Sullivan, J., noting he would grant issue); United States v. Brown-Collins, 55 M.J. 476 (2001) (mem.) (same); United States v. Baker, 50 M.J. 358 (1998) (mem.) (same); United States v. Guest, 49 M.J. 132 (1998) (mem.) (same); United States v. McDonald, 48 M.J. 24 (1997) (mem.) (same); United States v. Marchesseault, 47 M.J. 86 (1997) (mem.) (Sullivan, J. dissenting and noting issue he would have specified); United States v. Colden, 47 M.J. 86 (1997) (mem.) (Sullivan, J., dissenting); United States v. Moore, 47 M.J. 86 (1997) (mem.) (Sullivan, J., dissenting); United States v. Young, 47 M.J. 86 (1997) (mem.) (Sullivan, J., dissenting, and noting Grostefon issue he would have allowed); United States v. Jankowski, 47 M.J. 86 (1997) (mem.) (Sullivan, J., dissenting); United States v. Shepherd, 47 M.J. 86 (1997) (mem.) (Sullivan, J., dissenting); United States v. Ives, 45 M.J. 22 (1996) (mem.) (Sullivan, J., dissenting); United States v. Williams, 45 M.J. 22 (1996) (mem.) (Sullivan, J., dissenting); United States v. Snell, 44 M.J. 195 (1996) (Sullivan, J., dissenting) (noting sunshine of a granted petition and a full public oral argument); United States v. Qualls, 43 M.J. 234 (1995) (Sullivan, C.J., dissenting); United States v. Johnson, 42 M.J. 414 (1995) (mem.) (Sullivan, C.J., dissenting); United States v. Rooney, 42 M.J. 414 (1995) (mem.) (Sullivan, C.J., dissenting); cf. United States v. Anderson, 48 M.J. 440, 441 (1998) (mem.) (Sullivan, J., dissenting from summary affirmance); United States v. McKinney, 44
47
M.J. 51 (1996) (Sullivan, J., dissenting from summary affirmance following remand). While there are presumably times when judges accommodate one another by agreeing to add their vote to make up the two needed for a grant, there are obviously times when this does not happen. Unless the one who remains alone in voting to grant elects to prepare a statement for publication, this part of the process remains shrouded in secrecy. The vast bulk of the Courts judicial decision making is done by a quorum. Decisions on whether to grant a petition for review are ordinarily taken by notation vote, i.e., without a conference such as those at which the Supreme Court decides whether to grant or deny certiorari petitions. Conferences on the disposition of cases on the master docket, see Discussion of Rule 10, at which the judges take tentative votes, were at one time conducted on Friday mornings. HAROLD F. NUFER, AMERICAN SERVICEMEMBERS SUPREME COURT: IMPACT OF THE U.S. COURT OF MILITARY APPEALS ON MILITARY JUSTICE 52 (1981). This is no longer the case, although there are regular post-argument conferences, according to the Courts brochure. THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES 7 (Dec. 2006). The 1994 change indicates that the judges can vote either in person or by telephone or electronic means. It was reported at a 2007 counsel orientation sessions that the judges meet at least once a month, and that when there is a split vote on a petition for grant of review, the case will go to the conference. If only one judge votes to grant, there will be a conference if that judge requests one. Early decisions referred to the principle that a judge who is not present at oral argument is not permitted to participate in the decision. United States v. Jewson, 1 C.M.A. 652, 659, 5 C.M.R. 80, 87 (1952); United States v. Stewart, 1 C.M.A. 648, 652, 5 C.M.R. 76, 80 (1952); United States v. Keith, 1 C.M.A. 493, 496, 4 C.M.R. 85, 88 (1952) (noting Latimer, J.s hospitalization); United States v. McConnell, 4 C.M.R. 100, 102 (C.M.A. 1952) (same); United States v. Smith, 4 C.M.R. 123, 124 (C.M.A. 1952) (same); United States v. Johnson, 4 C.M.R. 128, 130 (C.M.A. 1952) (same); United States v. Evans, 4 C.M.R. 133, 137 (C.M.A. 1952) (mem.). More recently, in U.S. Navy-Marine Corps Court of Military Review v. Carlucci, 26 M.J. 328 (1988), a judge who was not present for the argument was furnished a tape recording, see Discussion of Rule 40, and participated in the decision. In United States v. Rockwood, 52 M.J. 98 (1999), where the hearing was conducted at the Courtroom 21 Project at William & Mary School of Law, one judge participated from 150 miles away by two-way videoconferencing hook-up. Fredric I. Lederer, Courtroom Practice in the 21st Century, TRIAL (July 1999), at 38, 39. Where an even number of judges participate and they are unable to agree on the answer to a certificate for review, the Court declines to answer and dismisses the certificate. United States v. Keith, 21 M.J. 407 (1986) (mem.). The Court has also held cases in which two judges were unable to agree until such time as a third judge was appointed and a new oral argument could be scheduled. United States v. Cole, 21 M.J. 382 (1985) (mem.). The difference in ap-
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proach is not readily explained except to the extent that the Court either may feel more of an obligation to give the individual his or her day in court, or may indulge some basic distaste . . . for the underlying statutory provision which compels the court to answer questions certified to it by the Judge Advocate General, but allows it to exercise discretion whether to review an accuseds petition. Robinson O. Everett, Foreword, C.M.A. GUIDE viii (1978); compare United States v. Rorie, 58 M.J. 399, 408 (2003) (Effron, J., dissenting) (suggesting court must grant review if it finds good cause). In the Courts of Criminal Appeals, in contrast, an evenly-divided court on questions of law requires affirmance; as to cases involving those courts power to weigh evidence, judge credibility and determine issues of fact, the effect of an equal division remains undecided. United States v. Ohrt, 28 M.J. 301, 303 (1989); see also United States v. Acevedo, 50 M.J. 169, 174-75 (1999); United States v. Gilbert, 50 M.J. 176 n.1 (1999). Where the judges of the Court of Appeals are equally divided on a petition for reconsideration, the petition is described as not granted. Discussion of Rule 31 (collecting cases). The practical effect is the same as a denial. Senior judges of the Court, see Rule 3A, have sat at various times during the Courts history, but the power to designate a judge of another court was not exercised until 1990. In United States v. Rushatz, No. 64,410, with a recusal by Judge Sullivan, Chief Judge Everett certified that there was a necessity for the designation and assignment of an Article III judge to sit in accordance with Article 142(f). With the concurrence of Chief Judge Patricia M. Wald of the District of Columbia Circuit, Chief Justice Rehnquist designated Judge David B. Sentelle to hear and decide the case. See 32 M.J. 25 n.* (1990) (Hearing Notice). Judge Sentelle ultimately wrote the opinion for a unanimous court. 31 M.J. 450 (1990); see also United States v. Lonetree, 35 M.J. 396 (1992); United States v. Donley, 33 M.J. 169 n.* (1991) (mem.) (noting designation of Wilkins, J., vice Everett, J.). Judge Stanley Sporkin (D.D.C.) was the first district judge to sit on the Court by designation. United States v. Ivey, 35 M.J. 62 (1992); United States v. Burnette, 35 M.J. 58 (1992). Judge Royce C. Lamberth (D.D.C.) wrote the opinion of the Court in United States v. Williams, 41 M.J. 134 (1994), as did Judge James Robertson (D.D.C.) in United States v. Hughes, 45 M.J. 137 (1996). Judge Janet Bond Arterton (D. Conn.) wrote for a unanimous Court in United States v. Bygrave, 46 M.J. 491 (1997), as did Judge Ripple (7th Cir.) in United States v. Boone, 49 M.J. 187 (1998). In United States v. Schneider, 37 M.J. 387 (1993), the Court for the first (and, to date, only) time sat with a majority of Article III judges: Judges Sporkin, Ryan (6th Cir.) and Mayer (Fed. Cir.). That situation, which is unlikely to recur with any frequency, seems not to have been taken into account in the 1994 change to Rule 6(a). By its plain meaning, the second sentence of that provision would seemingly have permitted the two Court of Military Appeals judges who did sit to outvote the three Article III judges sitting by designation. (In United States v. Smith, 53 M.J. 168 (2000), two Article III judges sat, and Judge Effron concurred only in part and in the result. Thus, the opinion of the Court had the full assent of only a plurality of the judges in regular active service.)
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In United States v. Schweitzer, 67 M.J. 265, 266 n.1 (2009) (mem.), and United States v. Ashby, 67 M.J. 266, 268 n.1 (2009) (mem.), Chief Judge Effron and Baker and Ryan, JJ., all recused themselves. Judge Erdmann became acting Chief Judge and designated Senior Judge Everett, Cox, and Gierke to fill out the bench. Senior Judge Everett died before the cases could be heard, and was replaced by Goodwin, J., of the Southern District of West Virginia, by Chief Justice Roberts at Judge Erdmanns request. See United States v. Schweitzer, 68 M.J. 133 & n.* (2009). Typically, recusals are unexplained. But see United States v. Gorski, 48 M.J. 315 (1997) (Effron, J.); United States v. Boone, 48 M.J. 380, 381 & n.1 (1997) (mem.) (Sullivan, J., dissenting). The Court has not issued a policy statement concerning recusals along the lines of the one issued in 1993 by seven of the Justices of the Supreme Court. See Statement of Recusal Policy, 114 S. Ct. 52 (1993), or an earlier statement of Chief Justice Rehnquist in connection with Brutsche v. Cleveland-Perdue, 498 U.S. 949 (1990) (mem.) (denying certiorari). See 114 S. Ct. 54. In United States v. Curtis, 40 M.J. 31 (1994) (mem.), a motion was made to exclude one of Judge Wisss commissioners from participating because the commissioner had been Curtiss lead appellate defense counsel. The motion included a request that Judge Wiss consider recusing himself as well in light of any discussions the two may have had regarding the case. The motion to exclude the commissioner was denied as moot since the commissioner had already excluded himself from all cases with which he had previously had any involvement. Having explained the circumstances, Judge Wiss properly declined to recuse himself. In United States v. Gleason, 41 M.J. 356 (1994) (mem.) (3-1 decision), Judge Crawford declined to participate in the disposition of a motion to recuse that seems to have pertained to her law clerk. She also did not participate on the merits. 43 M.J. 69, 77 (1995). The procedural setting for Judge Effrons recusal in United States v. Gorski, 48 M.J. 317 (1997) (memorandum of Effron, J.), was highly unusual. Prior to his elevation to the bench, he had been minority counsel to the Senate Armed Services Committee during consideration of legislation that was at issue in Gorski (and some 150 other cases). At oral argument, one of the other Judges made a comment regarding Judge Effron that included the word recuse, and Judge Effron immediately interjected that he was not recusing himself from consideration of [the] case. Id. at 323. Three months later, however, Gorski moved that Judge Effron recuse himself. While concluding that recusal was not legally required, Judge Effron granted the motion as a matter of discretion because of the unique circumstances, which he described in a lengthy memorandum summarizing the law of recusal. The case was then reargued, with Senior Judge Everett completing the Court and writing for the majority. 47 M.J. 370 (1997).
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Quaere: Can a judge recuse himself or herself for only part of a case? Compare United States v. Gleason, supra, with ABC Inc. v. Powell, 47 M.J. 363, 364 n.2 (1997) (Sullivan, J., recusing himself from extraordinary writ proceedings to require Article 32 investigation to be open to the public, without prejudice to participat[ion] in any further proceedings). Senior judges and Article III judges may serve in the event of illness, disability or recusal of a regular judge in active service or if there is a vacancy on the Court. UCMJ arts. 142(e)-(f), 10 U.S.C. 942(e)-(f) (2006). (For a time only senior judges could fill out the Court when there was a vacancy. This discrepancy was corrected in 1991. National Defense Authorization Act for Fiscal Years 1992 and 1992, Pub. L. No. 102-190, 1061(b)(2)(A)(iii), 105 Stat. 1290, 1474-75 (1991).) In 2006, when the terms of Chief Judge Gierke and Judge Crawford expired, the Court proceeded with only the three remaining judges; neither the two new senior judges nor those who had previously become senior judges were called to fill out the bench during the vacancies. See In re 20062007 Term of Court (2006). Under Rule 6(a) as amended in 1994, senior judges are not counted for quorum purposes. The Court, by internal rule, may establish procedures for determining when a judge next in precedence to the Chief Judge may act for the Chief Judge (including acting under Articles 142(e) [designation of senior judges] and 142(f) [designation of Article III judges]) when the Chief Judge is unavailable or the position is vacant. H. CONF. REP. NO. 101-331, at 658 (1989). Rule 7. PROCESS All process of the Court, except mandates, shall be in the name of the United States and shall contain the names and the military rank or civilian office, if any, of the parties. Discussion This rule is, for all practical purposes, identical with the prior version. It had been suggested that it be revised to require process to contain service numbers of the parties and the military command or civilian office of parties who are agents or officers of the United States acting in their official capacities. The latter should be included, but there is usually little need for process to include service or Social Security account numbers. Social security numbers are required in the caption of a petition for grant of review because of the design of the Courts Case Tracking System software, but are not required on any other submissions to the Court.
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Military rank should be shown, but in the rare case where the appellant is a sentenced prisoner who has been discharged under a prior conviction, the caption should indicate sentenced prisoner. E.g., United States v. Ragan, 14 C.M.A. 119, 33 C.M.R. 331 (1963). A Guantnamo Bay detainee who sought extraordinary relief described himself as such and as a Presumptive Prisoner of War. The Court employed the same style when it dismissed without prejudice for reasons of comity in light of related proceedings before the U.S. Court of Appeals for the District of Columbia Circuit. Al Qosi v. Altenburg, 60 M.J. 461, 462 (2005) (mem.), citing Justiniano v. Nickels, 49 M.J. 47 (1998) (summary disposition). Officials who are named as respondents and then succeeded in office should be dropped as parties, and their successors added. E.g., Goldsmith v. Clinton, 49 M.J. 169 (1998) (mem.) (judicially noticing change in service secretaries, and substituting incumbents); Huckey v. Commander, U.S. Army Retraining Brigade, 3 M.J. 388 (1977) (mem.) (granting motion to substitute respondent); cf. FED. R. APP. P. 43(c); FED. R. CIV. P. 25(d)(1); see also Discussion of Rule 8. One way to avoid substitution issues is to identify respondents in extraordinary writ litigation by title rather than by name. Rule 8. PARTIES (a) The title of any case filed with the Court shall contain the name, military rank and service number of an accused and, where appropriate, the official military or civilian title of any named party who is an agent or officer of the United States acting in such official capacity. In the case of an appeal taken by the United States under Article 62, UCMJ, 10 USC 862, the appeal shall be docketed under the same title given to the action in the court-martial with the accused and the United States denominated as the sole parties therein. (b) The party petitioning for grant of review of a decision of a Court of Criminal Appeals, whether from a decision on appeal by the United States under Article 62, UCMJ, 10 USC 862, or from a decision affecting the findings or sentence or both of a court-martial, or from a decision on application for extraordinary relief, will be deemed to be the appellant. Other named parties will be deemed to be appellees.
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(c) When a certificate for review is filed by a Judge Advocate General, the party prevailing below on the certified issues will be deemed to be the appellee. The other party will be deemed to be the appellant. (d) When a mandatory review case is filed, the accused therein will be deemed to be the appellant. The other party will be deemed to be the appellee. (e) If a petition for grant of review or a certificate for review is filed after an action has been docketed in the same case, the party on whose behalf relief is sought in the second action will be deemed to be the appellant or cross-appellant, depending on whether such party has been deemed to be the appellant or appellee in the first action. The other party in the second action will be deemed to be the appellee or cross-appellee in a similar manner. (f) The party or parties filing a petition for extraordinary relief with the Court will be deemed to be the petitioner or petitioners. All parties to the proceeding below other than the petitioner or petitioners will be deemed respondents for all purposes. 1983 Rules Advisory Committee Comment The designation of the parties to actions before the Court has been substantially revised. Rule 8(a) will now provide that a party petitioning for a grant of review of the decision of a Court of Military Review, whether from a decision affecting the findings or sentence of a court-martial, or from a decision on application for extraordinary relief, will be deemed to be the appellant; other named parties will be deemed to be appellees. Use of the term accused in pleadings to identify a party is discontinued. Rule 8(c) provides that when a certificate for review is filed by the Judge Advocate General, the party prevailing below on the certified issues will be deemed to be the appellee. The other party will be deemed to be the appellant.
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Rule 8(e) provides that where a petition for grant of review or certificate for review is filed after an action has been docketed in the same case, the party on whose behalf relief is sought in the second action will be deemed to be the appellant or cross-appellant, depending on the status of such party in the initial action. The other party in the second action will be designated as the appellee or cross-appellee in a similar manner. Rule 8(f) requires the party or parties filing a petition for extraordinary relief with the Court to be deemed the petitioner or petitioners. Other parties named in such petition will be deemed the respondents. The purpose of these revisions is to clarify the position of the parties in proceedings before the Court and to make uniform the designation of the parties in each case based on their actual position in the proceedings rather than on the circumstance by which they come to seek the exercise of the Courts jurisdiction. The revision also recognizes the existence of cases in which none of the parties before the Court is an accused. 1998 Rules Advisory Committee Comment The purpose of the revisions to Rules 8(f), 18(a)(4), 19(d) and (e), 25, 27, and 28(b)(2) is to clarify, in the context of extraordinary writ practice, the identities of petitioners and respondents and the responsibilities of such parties. Such revisions also clarify the roles, in responding to petitions for extraordinary relief, of trial and appellate military judges whose decisions, judgments, or orders are at issue. Finally, the revisions seek to make these rules conform, as closely as possible, to recent revisions of FED. R. APP. P. 21 (Writs of Mandamus and Prohibition, and Other Extraordinary Writs), effective December 1, 1996. See 924 F. Supp. No. 3 at CCXXVII (July 1, 1996). The revision to Rule 8(f) makes it clear that any party below, who is not the moving party, shall be deemed a respondent. See FED. R. APP. P. 21(a)(1). The revision, however, is not intended to preclude a respondent from being realigned as a petitioner in an appropriate case.
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[See also 1998 Rules Advisory Committee Comment to Rule 27.] Discussion A party who is not subject to the Code can be either a petitioner, e.g., ABC, Inc. v. Powell, 47 M.J. 363 (1997), or a respondent, e.g., U.S. Navy-Marine Corps Court of Military Review v. Carlucci, 26 M.J. 328 (1988); Hendrix v. Warden, 49 C.M.R. 146 (C.M.A. 1974); Taylor v. Resor, 19 C.M.A. 405, 42 C.M.R. 7 (1970) Jones v. Ignatius, 18 C.M.A. 7, 39 C.M.R. 7 (1968); Latney v. Ignatius, 17 C.M.A. 677, reconsideration denied, 17 C.M.A. 678 (1967), in All Writs Act litigation in the military appellate courts. The names of the parties must ordinarily be stated. To avoid confusion, the Court has noted the fact that one appellant had no first name or middle initial, United States v. Valance, 30 M.J. 125 (1990) (mem.), and, where appropriate, has showed an appellants former name in the caption. E.g., Amen-Ra (Jefferson) v. Nickels, 48 M.J. 349 (1997) (mem.); United States v. Garcia, 48 M.J. 409 n.* (1997) (mem.); United States v. Davis, 26 M.J. 445 (1988). In United States v. Schoolfield (now known as KB X), 39 M.J. 420 (1994) (mem.), the Court granted Schoolfields motion to change his name on court documents to the extent indicated in the case name. In another case, it allowed a caption that described a writ petitioner only as a Navy judge advocate, in order to avoid potential reputational injury. Navy Judge Advocate v. Cedarburg, 12 M.J. 315 (1981) (mem.). Where an appellants name has been spelled in different ways, the Court has opted for consistency with the spelling employed in the service court caption. United States v. Frederickson, 63 M.J. 55, 56 n.1 (2006). In another unusual case, the Court was asked to suspend Rule 8(a) and permit a naval officer to proceed under a pseudonym, as the Navy Court had done without objection from the government. The Court of Appeals denied the officers motion to suspend without prejudice to filing a similar motion accompanied by a further motion for leave to file a sealed document that contains the identity of the party, including the partys status under the Uniform Code of Military Justice, and the basis for proceeding under a pseudonym. In re Motion to Suspend Rule 8(a) in Part and for Leave to Proceed Under a Pseudonym, Filed as John Doe, Lieutenant, U.S. Navy Reserve v. Commander, Naval Special Warfare Command (C.A.A.F. Jan. 5, 2005) (undocketed) (returning filing to counsel). Upon resubmission in conformity with that order, the Court promptly docketed the case under the pseudonym. Doe v. Commander, Naval Special Warfare Command, 60 M.J. 455 (2005) (mem.). Plainly, use of a pseudonym should be permitted only for weighty reasons. Cf. Qualls v. Rumsfeld, 228 F.R.D. 8, 10 (D.D.C. 2005) (assuming, without deciding, that pseudonymous litigation is acceptable in compelling circumstances).
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Care should be taken to avoid errors in Social Security numbers. United States v. Harwell, 33 M.J. 482 (1991) (mem.). They are required in the caption of a petition for grant of review because of the design of the Courts Case Tracking System software, but are not required on any other submissions to the Court. The last sentence of Rule 8(a) was added by the Court on February 27, 1991, 32 M.J. 386, after it was noted that the caption in United States v. Reinecke, 32 M.J. 63 (1990), showed the military judge, rather than the accused, as the appellant. See United States v. Reinecke, 32 M.J. 392 (1991) (mem.) (modifying caption); cf. Curtis v. Grant, 46 M.J. 187 (1996) (mem.) (removing military judge as party). The change brings the rules into conformity with civilian practice in prosecution appeals in federal criminal cases. The alternative caption formats prescribed in Rule 28 for petitions for extraordinary relief and writ appeal petitions have been a needless source of confusion. See Discussion of Rule 28. In writ cases initiated by the prosecution, the accused will be joined as the real party in interest if not named initially. E.g., United States v. Labella, 14 M.J. 436 (1982) (mem.); United States v. Wholley, 14 M.J. 284 (1982) (mem.). The same is true where the writ is filed by a witness. Carlson v. Smith, 43 M.J. 402 (1995) (mem.) (3-1 decision). Where the accused is the petitioner, the United States will be added as a respondent if not named in the petition. E.g., Vanderschuit v. United States, 50 M.J. 131 (1998) (mem.); Curtis v. Grant, supra; Gaulden v. Alexander, 2 M.J. 231 (1977) (mem.); McPherson v. McLaughlin, 5 M.J. 994 (1976) (mem.); see also Lovett v. United States, 64 M.J. 224 (2006) (mem.) (substituting United States for Judge Advocate General). Where appropriate, as where it treats a petition for extraordinary relief as a writ appeal petition, the Court will redesignate the parties. E.g., Ellis v. Jacob, 26 M.J. 90, 91 n.2 (1988). Where a respondent is a public official, and the named individual is replaced, the new incumbent will be substituted. E.g., U.S. Navy-Marine Corps Court of Military Review v. Cheney, 28 M.J. 244 (1989) (mem.), report accepted and filed, 30 M.J. 29, 30 (1990) (mem.); see FED. R. APP. P. 43(c)(1); FED. R. CIV. P. 25(d)(1). The Court retains authority to add parties in the interest of expeditious resolution of extraordinary writ cases. E.g., Allison v. Judge Advocate General of the Navy, 60 M.J. 341 (2004) (mem.) (sua sponte adding Judge Advocate General); Curtis v. Grant, supra (adding Judge Advocate General as respondent); U.S. Navy-Marine Corps Court of Military Review v. Carlucci, 26 M.J. 328, 342 (1988) (Judge Advocate General added despite fact that Secretary of Defense, who represents interests of Judge Advocate General, was named respondent); Adams v. Johnson, 12 M.J. 324 (1981) (mem.); see also ABC, Inc. v. Powell, 48 M.J. 25 (1997) (mem.) (granting network petitioners motion to add Washington Post nunc pro tunc). Conversely, inappropriate respondents will be dropped. McPherson, supra; see Discussion of Rule 7.
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It has been held that the Court has no jurisdiction to entertain class actions. United States v. Tommins, 23 C.M.A. 410, 50 C.M.R. 292, 1 M.J. 33 (1975); In re Watson, 19 C.M.A. 401, 42 C.M.R. 3 (1970) (mem.). Subsequent cases suggest that that principle has been eroded. For example, the Court can consolidate cases, e.g., United States v. Aflague, 42 M.J. 93 (1995) (mem.); United States v. Reap, 42 M.J. 61 (1995); United States v. Walthall, 39 M.J. 375 (1994) (mem.) (limited to issue certified by Judge Advocate General); United States v. Frezer, 36 M.J. 377 (1992) (mem.); Cox v. Ziemniak, 23 M.J. 259 (1986) (mem.); United States v. Jette, 23 M.J. 246 (1986) (mem.) (consolidating for purposes for oral argument); see Rule 11(e), or treat multiple petitioners as a group for practical purposes. E.g., Fletcher v. Commanding Officer, 2 M.J. 226 (1977) (mem.). It entertained group extraordinary writ petitions in In re Ali (a.k.a. Anwar Hassan), 66 M.J. 288 (2008) (mem.) (self-styled presumptive prisoners of war detained at Guantnamo Bay, Cuba), dismissed without prejudice, 66 M.J. 474 (2008) (mem.); ABC, Inc. v. Powell, supra; U.S. Navy-Marine Corps Court of Military Review v. Carlucci, 26 M.J. 328 (1988); and Artis v. Commandant, U.S. Disciplinary Barracks, 18 M.J. 436 (1984) (mem.). See also In re DArcangelo, 5 M.J. 1111 (1976) (mem.); Steve v. Dalton, 39 M.J. 396, 404 (1994) (mem.); Teague v. Altschwager, 42 M.J. 188 (1994) (mem.); Carlson v. Smith, 43 M.J. 368 (1995) (mem.) (mandamus petition filed by recipients of subpoenas duces tecum). It has both refused intervention, Bishop v. Johnson, 3 M.J. 58 (1977) (mem.), and permitted it, Kane v. Berry, 5 M.J. 1120 (1976) (mem.); see also ABC, Inc. v. Powell, supra, without explaining the difference in treatment. In United States v. Lewis, 40 M.J. 22 (1994) (mem.), trial defense counsel were refused leave to intervene as parties in interest. In Rowland v. Arledge, 5 M.J. 988 (1976) (mem.), extraordinary relief was denied to three joint petitioners, but the order raised no question as to the propriety of the joint petition, and the denial was based on mootness. These important aspects of practice before the Court are overdue for clarification. Consolidation may be ordered even where there is only one litigant. Thus, the Court has granted an appellants unopposed motion to consolidate where he had two petitions pending at the same time, and was seeking review of convictions by two courts-martial which he contended were interrelated. United States v. Aflague, supra. Notwithstanding the designation of parties for purposes of the appellate process, a certificate for review should refer to the accused in stating the issue, and the Court may order it changed to so read. United States v. Bailey, 18 M.J. 431 (1984) (mem.). The caption will also indicate if the accused is an inmate in the custody of the armed forces. E.g., United States v. Young, 61 M.J. 501 (2005); United States v. Smith, 35 M.J. 138 (1992); United States v. Vogan, 35 M.J. 32 (1992); United States v. Walker, 34 M.J. 264 (1992). Racial/ethnic/gender identifiers should not be included in allied papers. [T]he race or ethnic group of the accused has no bearing on military justice and shall not be referenced in official documents relating thereto. United States v.
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Brice, 33 M.J. 176 (1991) (mem.), citing United States v. Phillips and United States v. Holt, 27 M.J. 402 (1988) (mem.) (codes held inconsistent with the administration of military justice); see also United States v. Brannon, 33 M.J. 179 (1991) (mem.) (show cause order), pet. denied, 34 M.J. 9 (1991) (mem.); United States v. Smith, 37 M.J. 49 (1992) (mem.) (specifying issue of presumptive taint of prejudice where pretrial advice referred to accuseds race); but see United States v. Petty, 38 M.J. 438 (1993) (mem.) (granting review of question whether convening authority could refer to appellants race before taking action). The Court retreated from this view, holding in 1993 that a convening authority is not required to be race-ignorant; he or she is only required to be raceneutral. United States v. Green, 37 M.J. 380, 384-85 (1993) (absent plain error, failure to object to use of racial identifiers in posttrial recommendation forfeits later claim of error). If a petitioner is on unauthorized absence, the petition will be dismissed. E.g., United States v. Schreck, 10 M.J. 226 (C.M.A.), supplemented, 10 M.J. 374 (1981), following remand, 13 M.J. 856 (N.M.C.M.R. 1982); see Molinaro v. New Jersey, 396 U.S. 365 (1970); but see Ortega-Rodriguez v. United States, 507 U.S. 234 (1993) (5-4 decision) (pre-appeal flight and recapture held not a ground for sanction of dismissal of appeal). The Court allows absentees 30 days in which to return. E.g., United States v. Holmes, 19 M.J. 83 (C.M.A.) (mem.), petition dismissed, 19 M.J. 120 (1984) (mem.); United States v. Patterson, 17 M.J. 338 (1984) (mem.); United States v. Campbell, 17 M.J. 338 (1984) (mem.). If the petitioners status as a fugitive is unclear, the petition may be held in abeyance while further information is obtained. United States v. Sigala, 22 C.M.A. 264, 46 C.M.R. 264 (1973). Until 2003, it was the Courts rule that if a petitioner died while a petition is pending or while the period in which to petition for review is running, the proceedings were abated, the findings and sentence were set aside, the charges are dismissed and all rights, privileges and property of which he or she was deprived were ordered restored. Such cases are surprisingly numerous and over time the Court became closely divided on the issue. United States v. McGill, 55 M.J. 462 (2001) (mem.) (3-2 decision); United States v. Edwards, 52 M.J. 409 (1999) (mem.) (coram nobis) (3-2 decision); United States v. Carnley, 50 M.J. 112 (1998) (mem.) (3-2 decision); Witherspoon v. United States, 48 M.J. 315 (1997) (mem.) (coram nobis) (3-2 decision); United States v. Dvonch, 46 M.J. 388 (1997) (mem.) (3-2 decision); Sumbry v. Judges of U.S. Army Court of Criminal Appeals, 42 M.J. 88 (1995) (mem.) (3-2 decision); United States v. Jennings, 38 M.J. 454 (1993) (mem.) (petitioner died six days before C.M.A. denied petition; held, untimely petition for reconsideration of denial granted, denial vacated, A.C.M.R. decision reversed, and findings and sentence set aside); United States v. Edwards, 38 M.J. 321 (1993) (mem.); Berry v. Judges of U.S. Army Court of Military Review Sitting En Banc, 37 M.J. 158, 160 (1993) (3-2 decision) (distinguishing practice of Supreme Court), noted in 2 FRANCIS A. GILLIGAN & FREDRIC I. LEDERER, COURT-MARTIAL PROCEDURE 25-64.00, at 550 & n.249 (2d
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ed. 1999) (also noting contrary authority of People v. Robinson, 699 N.E.2d 1086 (Ill. App. 1998)); United States v. Brown, 34 M.J. 22 (1991) (mem.); United States v. Jarvis, 23 M.J. 359 (1987) (mem.); United States v. Anderson, 19 M.J. 295 (1985) (mem.) (death prior to expiration of time for filing petition for grant of review); United States v. Lange, 18 M.J. 162 (1984) (per curiam); United States v. Roettger, 17 M.J. 453 (1984); United States v. Wright, 17 M.J. 188 (1983) (mem.) (2-1 decision); United States v. Kuskie, 11 M.J. 253 (1981) (2-1 decision) (petition denied, 10 M.J. 179 (1980) (mem.), after petitioner died but before C.M.A. learned of death; held, findings and sentence set aside); see also United States v. McKenzie, 23 M.J. 797, 798 (C.G.C.M.R. 1987) (allowing untimely petition for reconsideration where accused died one day after expiration of period for seeking reconsideration but before expiration of period for seeking C.M.A. review; held, findings and sentence set aside, charges dismissed) (collecting cases). The Courts approach was different from that followed in the Supreme Court. Dove v. United States, 423 U.S. 325 (1976) (per curiam) (dismissing certiorari petition), and rested on the view that its role is so central to the congressional plan for military justice that convictions over which it has only discretionary appellate jurisdiction cannot be considered final unless and until that jurisdiction has been exercised or the time for invoking it has expired. Finally, with a new judge on the bench, the former 3-2 majority became a 2-3 minority in United States v. Rorie, 58 M.J. 399 (2003), noted in GILLIGAN & LEDERER, supra, at 25-41 (3d ed. 2006). Death pending review in the Court of Appeals no longer results in abatement. The majority and dissenting opinions are worthy of careful study not only on the main issue presented, but, perhaps more importantly, for what they say about the role of stare decisis and the centrality vel non of civilian review to the administration of appellate justice under the UCMJ. If review has been completed before the petitioner dies, the final decision stands. United States v. Dupree, 17 M.J. 113 (1983) (mem.). Where the petitioner dies after the Court has decided the case but before expiration of the period in which to seek reconsideration, the case does not abate. United States v. Ward, 55 M.J. 390 (2001) (4-1 decision). A petition [for new trial] may not be submitted after the death of the accused. R.C.M. 1210(a). Where a question is raised on appeal as to an appellants sanity, the usual course is to remand. Compare, e.g., United States v. Collins, 55 M.J. 470 (2001) (mem.) (remanding for sanity board limited to R.C.M. 706(c)(2) questions); United States v. Donley, 49 M.J. 164 (1998) (mem.) (remanding for R.C.M. 706 examination), United States v. Gonzalez, 31 M.J. 433 (1990) (mem.) (remanding for determination of competence to assist in appeal), and United States v. McGhee, 18 M.J. 418 (1984) (mem.) (remanding for sanity board), with United States v. Sample, 50 M.J. 130 (1998) (mem.) (4-1 decision), and United
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States v. Graves, 50 M.J. 328 (1998) (mem.) (denying stay pending determination of appellants capacity to participate in his defense on appeal); United States v. Johnson, 19 M.J. 281 (1985) (mem.) (leaving sanity board decision to C.M.R.), and United States v. Washington, 6 C.M.A. 114, 19 C.M.R. 240 (1955) (petitioner became insane during appellate process; case struck from docket). In any event, the Court should be fully advised of the circumstances. E.g., United States v. Sampson, 38 M.J. 467 (1993) (mem.) (injuries sustained in automobile accident), proceedings stayed, 39 M.J. 41 (1993) (directing appellate defense counsel to notify Court of appellants medical status). The accused is entitled to present post-trial evidence of insanity to a court-martial unless the appellate court is convinced beyond a reasonable doubt that a different result would not obtain if the trier of fact had had the new evidence before it. United States v. Dock, 28 M.J. 117, 120 (1989). In one case, the Court directed the government to produce psychiatric records. United States v. Curtis, 30 M.J. 22 (1990) (mem.). In United States v. Van Tassel, 36 M.J. 376 (1992) (mem.), the Court refused, without comment, to appoint a guardian ad litem for an accused who appeared to be incompetent. See also United States v. Van Tassel, 38 M.J. 91, 193 (1993). In United States v. Bell, 6 C.M.A. 392, 398-99, 20 C.M.R. 108 (1955), it indicated that the chief of an appellate defense division or the attorney who represented the accused in the intermediate court can play the role of a guardian ad litem (and perfect the appeal to the Court) when there exists doubt of an accuseds competence. See also United States v. Bell, 7 C.M.A. 744, 745, 23 C.M.R. 208 (1957). Where a civilian court has appointed a guardian for an appellant who is mentally disabled, see, e.g., United States v. Sampson, 40 M.J. 16 (1994) (mem.), counsel should of course consult with that guardian. If the interests of the parties will be unaffected by the outcome of a certificate for review, the Court will normally decline to answer the question. E.g., United States v. Hartsock, 15 M.J. 77 (1982) (mem.); United States v. Kelly, 14 M.J. 196, 200 & n.5 (1982); United States v. Bryant, 12 M.J. 307 (1981) (mem.); United States v. McAnally, 10 M.J. 270 (1981) (per curiam); United States v. Clay, 10 M.J. 269 (1981) (per curiam); but see United States v. Hart, 32 M.J. 101, 103-04 (1991) (certified question addressed despite inapplicability to case at bar); United States v. Kuehl, 11 M.J. 126, 127 (1981) (Fletcher, C.J., concurring in part and dissenting in part); United States v. Gutierrez, 11 M.J. 122, 123 (1981) (question answered, noting split among services). The Court may decline to answer a certified question that is overly broad. United States v. Brabant, 29 M.J. 259, 265 n.* (1989). It will also dismiss certified cases that are moot, e.g., United States v. Shada, 29 M.J. 302 (1989); United States v. Carmichael, 29 M.J. 271 (1989); United States v. Arnold, 28 M.J. 338 (1989) (mem.); United States v. Hartsock, 15 M.J. 77 (1982); United States v. Silvernail, 5 M.J. 1128 (1976) (mem.); United States v. McIvor, 21 C.M.A. 156, 44 C.M.R. 210 (1972); United States v. Gilley, 14 C.M.A. 226, 34 C.M.R. 6 (1963), or academic. United States v. Aletky, 16 C.M.A. 536, 37 C.M.R. 156 (1967); cf. United States v. Bryant, 12 M.J. 307 (1981) (resolution of issue
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would not materially alter situation for either party); United States v. Stuart, 50 M.J. 72, 73 n.2 (1999) (declining to answer moot certified question); United States v. Chisholm, 59 M.J. 151, 153 (2003) (refusing to rule on certified question where neither party challenged post-trial actions of military judge and appellee has no personal stake in the outcome of any views that we might express on the post-trial responsibilities of military judges); see also United States v. Claxton, 32 M.J. 159, 164 (1991) (declining to address correctness of mere discussion in C.M.R. opinion, absent ruling or order on the point). Academic or moot questions in a petition for grant of review, United States v. Valead, 32 M.J. 122, 123, 125 (1991); see also Bryant, supra, or petition for extraordinary relief, Gray v. Mahoney, 39 M.J. 299, 304-05 (1994) (Wiss, J.), will also not be decided. Whether these precedents, or at least those that concern issues certified by a Judge Advocate General, remain intact was thrown into question, however, by United States v. Russett, 40 M.J. 184 (1994), where a majority of the judges answered a certified question as to which the appellant took no position because the answer would not have affected him. The Court cited three decisions from the 1980s as having not refused to answer certified questions which would not or did not alter the position of the parties. Id. at 185. Judge Crawford wrote: As a supervisory court for the military criminal justice system, it is important for this Court to answer certified questions where decisions of this Court are being misinterpreted by appellate counsel and intermediate appellate courts. This is not an advisory opinion. . . . The decision below calls for this Court to give concrete meaning to our decisions for the bench and bar. Id. at 186. Judge Wiss concurred in the result but noted his reluctance to answer a certified question in the circumstances, commenting that [t]his is not the stuff of which sound and durable appellate decisions are made. Id. at 186 (Wiss, J., concurring in the result). Dissenting, Chief Judge Sullivan observed: Our Court may not be an Article III court, but it should behave as one. Id. at 188 (Sullivan, C.J., dissenting). Given Judge Gierkes views a short while later in United States v. Williams, 41 M.J. 134, 140 (1994) (Gierke, J., concurring in part and in the result), see Discussion of Rule 4, it is unclear why he voted as he did in Russett. In United States v. Smith, 46 M.J. 263, 268 (1997), both he and Judge Sullivan would not have reached one of two certified issues because it was moot in light of the Courts ruling on the other. Judge Sullivan, concurring in part and dissenting in part, cautioned against taking on the policy making role of a congressional subcommittee or . . . a group of assistant secretaries in an Executive department. Id. Thereafter, in United States v. Thompson, 46 M.J. 472 (1997), the Court shifted direction and properly declined to answer one of the two certified questions where its rationale made it unnecessary to do so. It reserved the underly-
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ing issue, whether an Article 32 investigating officer stands in the stead of the convening authority when acting on a request for delay or continuance in the investigation, . . . for another day when resolution of that issue will not be moot. See also United States v. Garcia, 44 M.J. 27, 28 n.3 (1996) (declining to answer specified issue in view of resolution of other issues). In United States v. Campbell, 52 M.J. 386, 387 (2000) (on reconsideration) (per curiam), the Court correctly pointed out, in response to the appellants suggestion that the clarification sought by the government would be an impermissible advisory opinion, that the case involved an actual case and controversy between two opposing parties with concrete, adverse interests as to the validity of a conviction. See also United States v. Foster, 40 M.J. 140, 145 n.5 (1994) (we will await the arrival of an actual case or controversy to decide), quoted in United States v. Lane, 60 M.J. 781, 787 (A.F.C.C.A. 2004). The Court claims to have applied the principles from the cases and controversies limitation as a prudential matter. United States v. Wuterich, 67 M.J. 63, 70 (2008) (citing United States v. Chisholm, 59 M.J. 151, 152 (2003)). In United States v. Leak, 61 M.J. 234, 252-53 (2005), Chief Judge Gierke, concurring in part and dissenting in part, implied that it was one thing for the Court to provide analysis to guide the lower court, but quite another to act on a case like this, i.e., a certified case where the lower court had set aside a finding on the ground of factual insufficiency. Rule 8(e) governs the treatment of cases in which a cross-petition or cross-certificate has been filed. Since the period for filing a petition for grant of review is longer than that for filing a certificate for review, see Rule 19(a)-(b), and since most, but not all, e.g., United States v. Booker, 42 M.J. 267 (1995) (certified at request of defense); United States v. Sweet, 42 M.J. 183 (1995) (same); United States v. Roettger, 17 M.J. 453 (1984), certificates are filed when the accused has prevailed in the Court of Criminal Appeals, United States v. Redding, 11 M.J. 100, 114 & n.1 (1981) (Fletcher, J., dissenting); but see United States v. Lennette, 41 M.J. 488 (1995), cross-petitions are far more likely to occur than cross-certificates. One of the leading treatises comments that [i]t is unclear whether the governments sole right to certify cases for review implicates equal protection. 2 FRANCIS A. GILLIGAN & FREDRIC I. LEDERER, COURTMARTIAL PROCEDURE 25-62.00, at 25-38 n.239 (3d ed. 2006). Clerks Office Rule 9. CLERK (a) Location of office. The Clerks office shall be located in the courthouse at 450 E Street, Northwest, Washington, D.C. 20442.
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(b) Oath of office. Before entering upon the execution of his office, the Clerk shall take the oath or affirmation prescribed in Section 951 of Title 28, United States Code. (c) Custodian of records. The Clerk shall serve as custodian of the records of the Court and shall not permit any documents relative to a case to be taken from the courthouse except by order of a judge of the Court. However, after final action on a case in which documents containing classified information have been filed with the Court under Rule 35A, the Clerk shall, as Court Security Officer, consult with the originating armed service to determine the appropriate disposition of such documents. See Rule 12. (d) Disposition of procedural matters. Notwithstanding the provisions of Rule 6, the Clerk, on behalf of the Court, may entertain and act on any motion seeking an enlargement of time not to exceed 30 days, leave to withdraw as counsel, or permission to file pleadings, or other papers relative to a matter pending before the Court, provided such motion is not opposed and such action does not substantially affect the rights of the parties or the ultimate decision in the case. The order of the Clerk shall be deemed the order of the Court. (e) Hours. The Clerks office shall be open for the filing of pleadings and other papers from 8:00 a.m. to 5:00 p.m. every day except Saturdays, Sundays, and legal holidays, or as otherwise ordered by the Court. See Rule 36(a). The Court is always open for the filing of pleadings and other papers. A pleading or other paper may be filed outside of normal operating hours of the Clerks office by delivery to the U.S. Marshal on duty in the front lobby of the courthouse. Pleadings will be deemed filed on the date and time delivered to the U.S. Marshal. The U.S. Marshal will notify the Clerk of the filing in accordance with procedures provided by the Clerk.
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1983 Rules Advisory Committee Comment The provisions of Rule 9(a) relating to the office of the Clerk are unchanged. The requirement is retained in Rule 9(b) that the Clerk take the oath prescribed in 28 U.S.C. 951, but the text of the oath has been deleted. The Clerks authority as custodian of Court records (Rule 9(c)) is unchanged. However, a provision has been added to provide for final disposition of documents containing classified information filed under new Rule 24(d). Rule 9(d) on disposition of procedural matters has been modified to permit the Clerk to act on motions seeking an enlargement of time of not more than [20, now 30] days for filing of documents with the Court. This is an increase from the enlargement of time up to 10 days authorized by the former rule. Recent experience of the Clerks office reflects that the increase in time provided by the new provision will allow the Clerk to resolve most requests for enlargement of time without requiring action by the Court. Rule 9(e) prescribes the hours in which the office of the Clerk shall be open for the filing of pleadings and other papers. The times described therein are unchanged from those in the former rule, but the wording of the rule has been modified to avoid any implication that the rule prescribes the administrative schedule for work by employees of the Clerks office or staff members of the Court. 1999 Rules Advisory Committee Comment Rule 36A having been promulgated, the reference to citations in Rule 9(d) has been deleted as no longer necessary. 2006 Rules Advisory Committee Comment The amendment to Rule 9(e) is proposed to expand the hours in which parties may file pleadings with the Court. It establishes that documents may be filed when the Clerks Office is closed by delivery to the U.S. Marshal on duty.
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Discussion Rule 9(d) delegates to the Clerk limited power to rule on certain matters. The Court extended the Clerks power to grant enlargements from 20 days to 30 days by order dated March 31, 1994. 39 M.J. 446. Effective June 1, 2008, the Judges directed the Clerk to grant no more than 15 days of additional time to file pleadings beyond the time requirements in the Courts Rules unless the moving party makes a showing of extraordinary circumstances warranting a longer period of time. William A. DeCicco, Clerk of the Court, Memorandum for Appellate Counsel, Jan. 2, 2008. The full zip code for the Court is 20442-0001. Since October 31, 1952, the Court has occupied its own building, which was designed by Elliott Woods (1865-1923) (with the assistance of W.D. Kneesi and August Eccard, WORKS PROGRESS ADMIN., FEDERAL WRITERS PROJECT, WASHINGTON CITY AND CAPITAL 1074 (1937)) as a fireproof addition to the District of Columbia courthouse to house the United States Court of Appeals for the District of Columbia Circuit. The dignified, if bland, architecture dates from 1910, 1961 CODE COMM. ANN. REP. 55 (1962); see Act of May 30, 1908, 29, 35 Stat. 520, 544 (authorizing $200,000 for construction); Act of Mar. 4, 1909, 35 Stat. 907, 928 (appropriating $29,600 to furnish building), and blends with that of adjacent buildings occupied by units of the Superior Court of the District of Columbia and the Public Defender Service. Of note inside the building are a number of portraits and the particularly handsome skylight, gilded reredos and bench. The woodwork may be seen in an arresting sequence of old photographs of the judges of the District of Columbia Circuit on display in the attorneys waiting room outside that courts present courtroom in the United States Courthouse a few blocks to the southeast. The courthouse, which was placed on the National Register of Historic Places in 1974, 39 FED. REG. 8358 (1974), has been variously described as a faintly seedy edifice, Jon R. Waltz, The Court of Military Appeals: An Experiment in Judicial Revolution, 45 A.B.A.J. 1185 (1959), and as a particularly fine and remarkably early example of revived (20th century) Greek Revival architecture, . . . designed with great sensitivity to respect the adjacent former Washington City Hall of 1820. HAROLD F. NUFER, AMERICAN SERVICEMEMBERS SUPREME COURT: IMPACT OF THE U.S. COURT OF MILITARY APPEALS ON MILITARY JUSTICE 50 & n.5 (1981) (quoting nomination for National Register of Historic Places). There is in Woods building no false note of pomposity or meretricious display. A judicious restraint and fine sense of balance mark this judicial structure, one of the handsomest of its period among Government buildings. U.S. DEPT OF THE INTERIOR, NATL PARK SERVICE, NATIONAL REGISTER OF HISTORIC PLACES, Nomination Form for Federal Properties 8 (1974). Many a court would be pleased to have its work described in similar terms. Less restrained is the adjacent Joseph J. Darlington Memorial Fountain, which includes Carl Paul Jenneweins 1923 gilded life-size statue of a nude
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woman accompanied by a fawn. Jacob Stein, a lion of the Washington bar, has written that Darlingtons greatest successes were in the trial courts, but the U.S. Court of Appeals often reversed cases he had won and sent them back for retrial. Perhaps, one of Darlingtons friends noted, that is why the nymphs behind faces the old U.S. Court of Appeals. JACOB A. STEIN, LEGAL SPECTATOR AND MORE 303 (3d ed. 2003). I am indebted to Colonel Dwight H. Sullivans CAAFlog blog, www.caaflog.com, for this reference. The courthouse, security for which is provided by the Pentagon Force Protection Agency, is open to the public during business hours, and is convenient to the Judiciary Square Red Line subway station of the Washington Metropolitan Area Transit Authority. Parking in the vicinity is limited and expensive. The building is across the street from the National Law Enforcement Officers Memorial, see Memorial Proceedings for United States Marshal William F. Degan, Jr., 36 M.J. 369, 370 (1992), and is within easy walking distance of the National Gallery of Art, National Portrait Gallery, National Archives, National Museum of the American Indian, Hirshhorn Museum and Sculpture Gallery, Fords Theatre, Shakespeare Theatre, Air and Space Museum, Spy Museum, MCI Arena and other popular tourist attractions. Numerous restaurants in all price ranges are found nearby, including the bustling Chinatown district. The Court publishes a useful brochure describing its history and functions. See 1965 CODE COMM. ANN. REP. 14 (1966). The current edition, issued in April 2009, is available free of charge from the Clerks office and may be downloaded from the Courts website. It includes biographies of the Judges. A 15minute videotape made in 1987 which describes the Court is also available. Robinson O. Everett, The United States Court of Military Appeals: New Issues, New Initiatives, 36 FED. B. NEWS & J. 182, 184 (1989). Key telephone numbers at the Court are as follows: General Docket Room Deputy Clerk (Opinions) Chief Deputy Clerk Library Fax (202) 761-1448 (202) 761-1452 (202) 761-7361 (202) 761-1450 (202) 761-1466 (202) 761-4672
The Courts automatic voice network (AUTOVON) telephone number uses prefix 763 followed by the last four digits of the commercial number. The Courts Internet home page address is www.armfor.uscourts.gov. When seeking case information by telephone, it is very important to have the docket number available. Docket Room staff will assist in obtaining the docket number if necessary. The Courts staff is highly user friendly, but it
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remains good practice for counsel to check the Rules before making a procedural inquiry by telephone. In additional to fielding calls, the Clerk of the Court at times passes the word on procedural issues by correspondence to the appellate divisions, and periodically conducts an orientation program for newly reported appellate counsel as well as others with an interest. See, e.g., Memorandum from William A. DeCicco, Clerk of the Court, for Appellate Counsel, Aug. 2, 2007. The Clerk may also be directed by the Judges to bring key decisions to the special attention of the appellate dvisions. E.g., Memorandum from William A. DeCicco, Clerk of the Court, for Directors, Appellate Divisions, May 20, 2009 (noting professional responsibility implications of United States v. Angell, 68 M.J. 79 (2009) (mem.)). Rule 9(e) allows filings 24 hours per day. In an emergency, the Court has made special arrangements for the receipt of pleadings outside of normal business hours. U.S. Navy-Marine Corps Court of Military Review v. Carlucci, 27 M.J. 10 (1988) (mem.); Joseph H. Baum & Kevin J. Barry, United States NavyMarine Corps Court of Military Review v. Carlucci: A Question of Judicial Independence, 36 FED. B. NEWS & J. 242, 244 (1989) (courthouse opened at 7:00 a.m. by order of Everett, C.J.). After-hours filings are deemed filed on the date they are delivered to the courthouse. See Rule 36(d). Thus, a document delivered at 11:00 p.m. is deemed filed that calendar day, rather than the next. Given its global reach and the fact that the Court may be asked to issue stays and other extraordinary writs where time is of the essence, it should put in place a standing arrangement for emergency judge assignments. Pleadings delivered after business hours are considered as being filed on the next business day. Delivery to a member of the Courts staff after business hours does not constitute filing on the day of delivery. Notice of intent to deliver a pleading does not render timely a pleading which is delivered after business hours. United States v. Morgan, 30 M.J. 39 (1990) (mem.); cf. United States v. ONeal, 52 M.J. 374 (1999) (mem.) (construing notice of intent to file writ appeal as writ appeal petition). If a pleading is not ready until after the close of business, it may be filed by mail and will still be deemed timely if it is actually deposited in the United States mails. Rule 36(a); e.g., United States v. Dire, 50 M.J. 212 (1998) (mem.) (noting postmark date); United States v. King, 30 M.J. 40 n.* (1990) (mem.). Deposit in an office mail system is insufficient for this purpose. Cf. United States v. Ratleff, 32 M.J. 494 (1991) (mem.). On rare occasions, the Court has transacted business on Saturday. For example, at the end of the Term, special efforts are made to wrap up pending cases or other matters. Rule 3A was promulgated on Saturday, September 29, 1990. The Courts library is located at the rear (south end) of the building on the third floor, and is open on weekdays from 8:30 a.m. to 5:00 p.m. Visitors wishing to use the library should call in advance.
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Rule 10. DOCKET (a) Maintenance of docket. The Clerk shall maintain: (1) a regular docket for cases subject to mandatory review, petitions to review convictions or sentences affirmed by a Court of Criminal Appeals, and certificates for review of final decisions in a Court of Criminal Appeals; (2) a miscellaneous docket for petitions for grant of review and certificates for review of decisions by a Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, 10 USC 862, petitions for extraordinary relief, writ appeal petitions, and certificates for review of decisions on application for extraordinary relief in a Court of Criminal Appeals; and (3) a special docket of the matters arising under Rule 15 concerning complaints of unprofessional conduct against a member of the Bar of this Court, and petitions and other correspondence that are not docketed on another docket, and that are returned to the sender. The receipt of all pleadings or other papers filed, and any action by the Court relative to a case, will be entered in the appropriate docket. Entries in each docket will show the date, the nature of each pleading or other paper filed, and the substance of any action by the Court. From time to time, the Clerk shall, under the general direction of the Court, determine the appropriate manner for keeping and preserving the dockets. (b) Docket number. In a mandatory review case, a docket number will be assigned upon receipt of the record from the Judge Advocate General. In all other cases, a docket number will be assigned upon receipt of the initial pleading. All pleadings or other papers subsequently filed in the case will bear the assigned docket number.
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(c) Notice of docketing. The Clerk shall notify the appropriate Judge Advocate General and all parties of the receipt and docketing of a case and the docket number assigned. In the case of a petition for extraordinary relief, the Clerk shall also notify all named respondents of the petitions receipt and docketing. (d) Entry of judgment. The Clerk shall prepare, sign, date and enter the judgment immediately upon the filing of the opinion of the Court. If a judgment is rendered without an opinion, the Clerk shall prepare, sign, date and enter such judgment in an order following instruction from the Court. The Clerk shall, on the date a judgment is entered, distribute to all parties and the Judge Advocate General of the service in which the case arose a copy of the judgment and opinion, if any, or of the order if no opinion was written. See Rule 43. 1983 Rules Advisory Committee Comment Rule 10(a) has been substantially rewritten. It requires the Clerk to maintain three separate dockets. A regular docket is provided for (1) cases on mandatory review, (2) petitions for review of convictions or sentences affirmed by a Court of Military Review, and (3) cases certified by a Judge Advocate General for review of a final decision of a Court of Military Review, except in cases involving applications for extraordinary relief. A miscellaneous docket is provided for petitions for extraordinary relief and also for writ appeal petitions and certificates for review in cases involving applications for extraordinary relief before a Court of Military Review. A special docket is established for matters arising under Rule 15 concerning complaints of unprofessional conduct against a member of the Courts Bar. Each docket is required to have an entry for the receipt of all pleadings and other papers filed and for entry of any action by the Court relative to a particular
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case. The Clerk is authorized to determine the appropriate manner for keeping and preserving the dockets. Rule 10(b) makes no changes in the procedure for assignment of docket numbers and noting this number in subsequent pleadings in the case. Rule 10(c) has been revised to require the Clerk to notify the appropriate Judge Advocate General and the accused or his counsel of the receipt and docketing of a case and the docket number assigned. Appropriate procedures are established for docketing of a petition for extraordinary relief and notification of other parties. The substance of former Rule 9(c) has not been changed, but the rule has been modified editorially to put the more common type of case at the beginning of the rule provision. The title of Rule 10(d) has been changed to Entry of Final Decision to reflect more accurately the action taken. The terminology has been changed from Final Judgment to Final Decision to conform to the current practice in the Court. 1998 Rules Advisory Committee Comment The Rules Advisory Committee notes the absence in the prior Courts rules of any provision for the entry of a judgment and the distribution of a copy of the judgment to all parties when the Court issues an opinion. This omission made it impossible to determine with confidence the beginning of the 90-day period within which a petition for a writ of certiorari may be filed under Supreme Court Rule 13.1. To remedy this situation, changes have been made to Rule 10(d) and Rule 43 and a new Rule 43A has been added which reflect the relevant provisions of Rules 36 and 41 of the Federal Rules of Appellate Procedure (FRAP). The Courts prior practice differentiated between two types of case dispositions when an opinion was issued: (1) opinions which finally disposed of a case by affirmance or reversal, in whole or in part, of the lower courts decision were followed by a mandate of the Court issued under former Rule 43; and (2) opinions in which a case was remanded to the lower court or to a convening authority or court-martial for further interlo-
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cutory proceedings were followed by a Finality Order or Because Order which was issued in lieu of a mandate. The Rules Advisory Committee recommended that this distinction and practice be discontinued and that a judgment and mandate be issued in all cases in which an opinion has been filed, since the prior practice departed for no reason from that of the geographical circuits. Indeed, the Committee determined that, no matter what type or kind of dispositive action a court of appeals directs in an opinion in a criminal case, a judgment document is prepared and entered upon the filing of the opinion of the court under FRAP 36, and a mandate of the court is issued separately as required by FRAP 41. The Committee considers it appropriate to promulgate these changes in order to conform the Courts practice to that of the other courts of appeals and to remove present uncertainty as to when the 90-day period begins to run for filing a petition for a writ of certiorari. 2005 Rules Advisory Committee Explanatory Note This amendment establishes a new special docket for documents that are returned to the sender without the Court taking any action. The reason for this change is to retain a record of the receipt by the Court of the document as well as the decision to not take any action or to docket the document on the regular docket kept by the Court. 70 FED. REG. 54,370, 54,372 (2005). Discussion Under the Courts Management Information System, docket information has been computerized since FY82. FY82 CODE COMM. ANN. REP. 6 (1983). Actual docketing practices seem to be slightly different, at least as far as labeling is concerned, from what the text of the rule suggests. The annual reports refer to master, petition and miscellaneous dockets, but not to the special docket. E.g., FY87 CODE COMM. ANN. REP. 20-21 (1988). Cases move from the petition docket to the master docket upon a grant of review. Omission of the special docket from the Courts published data is presumably in deference to Rule 15(h), although there would seem to be no basis for objecting to publication of statistics relating to that docket. The miscellaneous docket was instituted on January 1, 1967. 1967 CODE COMM. ANN. REP. 5 (1968).
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Until September 30, 1992, cases on the regular docket were consecutively numbered from the beginning of the Courts history, and did not refer to the year or Term. With United States v. Watkins, 4 M.J. 326 (1978) (mem.) (No. 36001/AR), the Court had added a virgule followed by an indication of the branch of service (AR, NA, MC, AF, CG) after the docket number in some orders. This practice was expanded to all Daily Journal entries as of October 1, 1981, at the same time that the use of commas was discontinued in the fivedigit docket numbers. United States v. Coronado, 12 M.J. 82 (1981) (mem.) (No. 41140/AF). On October 1, 1992, the Court abandoned its prior case numbering system in favor of one that shows the Term of Court and branch of service, and includes five series of four-digit docket numbers. Notice of Case Docket Numbering System Change, 37 M.J. 1 (1992). For example, a Marine Corps non-Article 62 petition for grant of review filed in the year beginning that day would be numbered Dkt. No. 93-0001/MC. Non-Article 62 certificates for review are in the 5000 series: Dkt. No. 93-5026/AR. Article 62 petitions and certificates for review are in the 6000 series: Dkt. No. 93-6461/CG. E.g., United States v. McCullough, 60 M.J. 311 (2004) (mem.) (reassigning docket number); United States v. Dowty, 48 M.J. 43 (1997) (mem.) (same); United States v. Reed, 41 M.J. 111 (1994) (mem.) (same). Death penalty mandatory reviews are in the 7000 series: Dkt. No. 93-7002/AF. Extraordinary writ petitions and writ appeal petitions are in the 8000 series: Dkt. No. 93-8223/CG. Where a petition is filed for review of a Court of Criminal Appeals decision as to which a petition has previously been filed, the second (or subsequent) petition must use the same docket number as the first. E.g., United States v. Kelley, 52 M.J. 404 (1999) (mem.); United States v. Havers, No. 97-242/AR (1998) (mem.) (rescinding erroneously issued docket number); United States v. Boddie, 48 M.J. 354 (1997) (mem.); United States v. Charles, 43 M.J. 139 (1995) (mem.) (same); United States v. Green, 38 M.J. 175 (1993) (mem.). Reassignment of a docket number is also directed where a petition is merely a duplicate of one already on file. E.g., United States v. Gutierrez, 68 M.J. 141 (2009) (mem.); United States v. Hardy, 60 M.J. 417 (2004) (mem.); United States v. Marin, 52 M.J. 418 (1999) (mem.). If a case has previously been before the Court, the Clerks Office will docket the second (or subsequent) petition under the same docket number as was used in the earlier proceedings. See United States v. Berg, 44 M.J. 280 (1996) (mem.) (vacating Docketing Notice), citing United States v. Staten, 21 C.M.A. 493, 495, 45 C.M.R. 267, 269 (1972) (rehearing deemed continuation of the first trial); but see United States v. Jackson, 52 M.J. 446 (1999) (mem.) (assigning docket number of later certificate for review to prior petition for grant of review). Where this occurs, an explanatory footnote is added to the Daily Journal entry. E.g., United States v. Honzik, 60 M.J. 420 n.* (2004) (mem.); United States v. Jones, 41 M.J. 111 n.* (1994) (mem.). Counsel in such a case should show the original docket number when completing a subsequent petition for grant of review. In United States v. Kunkle, 51 M.J. 467
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(1999) (mem.), however, where a prior appeal had run its full course some 12 years earlier, the Court vacated the second Docketing Notice and directed the Clerk to return the petition to the appellant with a letter explaining that the case is now final. Rules 12 and 15(h) are the only provisions that expressly contemplate limiting public access to the records of the Court. The Courts general case files are ordinarily open to public inspection, although on rare occasions a filing, United States v. Key, 60 M.J. 467 (2005) (mem.), or pleading may be docketed under seal. E.g., United States v. Smith, 67 M.J.262 (2009) (mem.). In In re U.S. Navy-Marine Corps Court of Military Review, 27 M.J. 8 (1988) (mem.), sealing was based on the fact that the underlying Inspector Generals investigation had not been made public. Joseph H. Baum & Kevin J. Barry, United States NavyMarine Corps Court of Military Review v. Carlucci: A Question of Judicial Independence, 36 FED. B. NEWS & J. 242, 243 (1989); see also Navy Judge Advocate v. Cedarburg, 12 M.J. 315 (1981) (mem.) (generic term substituted for petitioners name). In United States v. Morris, 51 M.J. 112 (1998) (mem.), some of the exhibits were sealed; a request for copies was denied, but the record was made available to counsel for examination during normal business hours. In United States v. Aull, 52 M.J. 347 (1999) (mem.), the Court refused to permit appellate defense counsel to examine a sealed appellate exhibit. In United States v. Monroe, 52 M.J. 464 (1999) (mem.), counsel were permitted to review sealed documents in the Docket Room by appointment. See also United States v. Allen, 53 M.J. 256 (2000) (mem.) (granting leave to review sealed document). In exceptional circumstances, the Court may strike a case from the docket. United States v. Washington, 6 C.M.A. 114, 19 C.M.R. 240 (1955) (petitioner became insane during appellate process; divergent rationales for result reached); cf. United States v. Wittman, 33 M.J. 183 (1991) (mem.) (vacating Docketing Notice where petition was a duplicate of one denied 10 years earlier). The regular practice of the Clerks Office is to send the [Rule 10(c)] notice [of docketing] to the appellate divisions on the date of the notice. United States v. Shewmake, 29 M.J. 435 (1989) (mem.). The Court of course retains power to rescind a Docketing Notice that has been issued in error. See United States v. Haywood, 37 M.J. 48 (1992) (mem.). The portion of Rule 10(a)(3) that refers to documents returned to the sender was added in 2005, effective January 1, 2005. Rule 11. CALENDAR (a) The Clerk shall prepare a calendar, consisting of the cases that have become or will be available for hearing, which shall be arranged in the first instance in the chronological order in which petitions for grant of review have been granted or
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certified questions and mandatory appeals have been filed with the Court. The arrangement of cases on the calendar shall be subject to modification light of the availability of pleadings, extensions of time to file briefs, and orders to advance or specially set cases for hearing. (b) The Clerk shall periodically publish hearing lists in advance of each Court session for the convenience of counsel and the information of the public. (c) The Clerk shall advise counsel when they are required to be present in Court. See Rule 40(b)(1). (d) Cases may be advanced or postponed by order of the Court, upon motion duly made showing good cause therefore, or on the Courts own motion. See Rule 40(b). (e) Two or more cases involving the same question may, on the Courts own order or by special permission, be heard together as one case or on such terms as may be prescribed. 1983 Rules Advisory Committee Comment The substance of this rule has not been changed, but minor editorial revisions have been made in the language of the rule and cross-references to other rules have been changed to conform to the new numbers resulting from the 1983 revisions and additions to the Courts rules. Discussion The only cases that are afforded an explicit calendar preference are those arising under Article 62. See UCMJ art. 62(b), 10 U.S.C. 862(b) (2006); Rule 19(a)(7); see also Ct. Crim. App. R. 21(e). Perhaps to ensure that they are not inadvertently lost amid the great mass of regular Article 67(a)(3) petitions, Article 62 petitions are identified as such when their filing is recorded in the Daily Journal. E.g., United States v. Woods, 28 M.J. 103 & n.* (1989) (mem.). The Court may make special arrangements for expedited argument in other cases where circumstances warrant. E.g., Unger v. Ziemniak, 27 M.J. 449
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(1989) (mem.); U.S. Navy-Marine Corps Court of Military Review v. Carlucci, 26 M.J. 328 (1988). While the Court has granted stays on an emergency basis in a variety of cases, e.g., United States v. Nguyen, 56 M.J. 233 (2001) (mem.); Goldsmith v. Clinton, 48 M.J. 45 (1997) (mem.); Willenbring v. Neurauter, 48 M.J. 29 (1997) (mem.); ABC, Inc. v. Powell, 47 M.J. 77 (1997) (mem.); McKinney v. Jarvis, 47 M.J. 78 (1997) (mem.); Sands v. Commander, Naval Air Reserve Force, 44 M.J. 193 (1996) (mem.), there can be no guaranty that interim relief will be granted in time to prevent a threatened harm. As Justice Rehnquist said of the Supreme Court in Conforte v. Commissioner of Internal Revenue, 459 U.S. 1309, 1311 (Rehnquist, Circuit Justice 1983), [e]xcept in extreme circumstances the Court generally is unable to provide same-day service. See Discussion of Rule 40 (collecting cases). If the scheduled hearing date creates an irreconcilable conflict with another important obligation, a motion to reschedule should be filed, e.g., United States v. Anderson, 68 M.J. 188 (2009) (mem.); United States v. Ortiz, 65 M.J. 470 (2007) (mem.); United States v. Albaaj, 65 M.J. 94 (2007) (mem.); United States v. Shelton, 60 M.J. 455 (2005) (mem.); United States v. Simpson, 57 M.J. 446 (2002) (mem.) (4-1 decision); United States v. Thomas, 48 M.J. 384, 398 (1997) (mem.); United States v. May, 48 M.J. 376 (1997) (mem.); Loving v. Hart, 46 M.J. 191 (1996) (mem.); United States v. Gibson, 46 M.J. 191 (1996) (mem.); United States v. Ingham, 41 M.J. 362 (1994) (mem.); United States v. Stroup, 28 M.J. 79 (1989) (mem.) (lead civilian appellate defense counsel scheduled to be outside United States); Murray v. Haldeman, 15 M.J. 377 (1983) (mem.) (civilian counsel for amicus allowed to argue at separate session), but the Court may simply respond, as it did in United States v. Dillon, 16 M.J. 414 (1983) (mem.), that any counsel of record may argue the cause. In any event, counsel seeking a change in the announced argument date should state his or her reasons with particularity. See United States v. Bell, 37 M.J. 86 (1992) (mem.) (request denied without prejudice); see also United States v. Coleman, 49 M.J. 167 (1998) (mem.) (4-1 decision) (Sullivan, J., dissenting) (noting, among other things, possibility of argument by other counsel for appellant). In United States v. Davis, 37 M.J. 29 (1992) (mem.), the Court refused to postpone a hearing because lead appellate defense counsel, who had left active duty, had not moved for leave to withdraw. On September 30, 1988, anticipating a recommendation of the Court Committee, see Presentation of Court Committee Report, 28 M.J. 99, 101 (1989), the Court entered an order establishing a Term of Court to commence each October 1. In re Establishment of Term of Court, 27 M.J. 412 (1988). The purpose of the order, which reinstated an earlier system that had fallen into desuetude, William N. Early, Lizann M. Longstreet & James S. Richardson, USCMA and the Specified Issue: The Current Practice, 123 MIL. L. REV. 9, 10 & n.6 (1989); cf. 1977 Rule 41 (oral argument term to run from September through November and January through June), is to facilitate the prompt and timely disposition of those cases in which plenary consideration is warranted and which have been
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placed on the Master Docket. See Discussion of Rule 10. The Clerk is to announce on the last day of each Term a list of those cases which are then pending on the Master Docket and which shall be carried over for final disposition to the next Term of Court. The order was accompanied by a summary of the Courts caseload for FY88 and a list of cases carried over to the October 1988 Term for briefing, argument, summary disposition or final action. 27 M.J. at 413-14. Similar lists have been issued at the conclusion of subsequent Terms. E.g., 68 M.J. __ (2009) (2009 Term); 67 M.J. 30 (2008) (October 2007 to August 2008 Term (Transition)); 67 M.J. 353 (2007) (October 2007 Term); 2007 Term of Court, 65 M.J. 352 (2007); 64 M.J. 203 (2006) (October 2006 Term); 62 M.J. 315 (2005) (October 2005 Term); 60 M.J. 351, 364 (2004) (October 2004 Term); 59 M.J. 148 (2003) (October 2003 Term); 57 M.J. 450 (2002) (October 2002 Term); 56 M.J. 166 (2001) (October 2001 Term); 54 M.J. 339 (2000) (October 2000 Term); 52 M.J. 451 (1999) (October 1999 Term); 51 M.J. 99 (1998) (October 1998 Term); 48 M.J. 357 (1997) (October 1997 Term); 46 M.J. 126 (1996) (October 1996 Term); 43 M.J. 375 (1995) (October 1995 Term); 41 M.J. 381 (1994) (October 1993 Term); 39 M.J. 42 (1993) (October 1992 Term); 36 M.J. 389 (1992) (October 1991 Term); 34 M.J. 77 (1991) (October 1990 Term). At the end of the October 1995 Term, the Court announced that four cases that had been fully briefed and argued would be decided forthwith (i.e., after September 30) without re-argument. The Term of Court arrangement thus does not guarantee that argued cases will be decided by Terms end, and indeed, the day after the end of the 1998 Term, the Court extended that Term by one day [i]n light of certain [unstated] calendar considerations. Order Extending 1998 Term of Court, 51 M.J. 99 (1998). Nor of course does the Term of Court arrangement guarantee that cases will move any more swiftly than in the past, but it does demonstrate the judges determination to remedy the problem of appellate delay that long plagued the system. See United States v. Dunbar, 31 M.J. 70, 75 (1990) (Cox, J., concurring in the result); see also S. REP. NO. 101384, at 147 (1990) (noting potential for serious delays in case processing that the Court encountered in recent years); cf. United States v. Miller, 45 M.J. 149, 150 n.* (1996) (noting increased frequency of seemingly unexplainable delays between the end of trial and the convening authoritys action). At times, the Term of Court concept may take priority over the collegiality of decision making. E.g., United States v. Sager, 36 M.J. 137, 147 n.1 (1992) (Crawford, J., concurring in the result). It is difficult to read cases such as United States v. Kelly, 45 M.J. 259 (1996), where the Court is badly splintered, as anything other than a reflection of undue haste at the end of the Term. In 2003, the Court appeared to have made significant inroads on the end-of-Term crunch, issuing many opinions in June and July. On June 21, 2007, the Court modified the 1988 Term of Court policy so that, beginning in 2008, each 12-month term would run from September 1 to August 31. Under the new policy, Terms will be referred to as the September Term of Court of the year in which the term begins. In re Term of Court, 65
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M.J. 288 (2007). Thus, the term beginning September 1, 2008 will be the September Term, 2008. The Court explained the policy change in its FY08 Annual report: This will afford the Court greater opportunity to hear cases at the outset of the term, facilitate the timely issuance of opinions, and enhance the ability of counsel to incorporate the case law from one term to the next. The bobtailed term running from October 1, 2007 to August 31, 2008 was designated as the October 2007August 2008 Term of Court (Transition). 65 M.J. 288. Rule 11(b) contemplates the periodic publication of hearing lists, but until June 1993 the Court had not implemented a suggestion that it publish a calendar of arguments and conference dates. Presentation of Court Committee Report, 28 M.J. 99, 101 (1989). A calendar of oral arguments is prepared 30 days in advance, and is available to the public both in hard copy and on the Courts website. However, it still does not include conferences. The Court retains power to rescind the Hearing Notice. E.g., United States v. Ward, 41 M.J. 355 (1994) (mem.). Rule 12.
TION
CASES INVOLVING CLASSIFIED INFORMA-
(a) Court Security Officer. The Clerk shall serve as the Court Security Officer for the purposes of providing for the protection of classified information and may designate such assistants as are appropriate for such purposes. (b) Classified documents. Documents containing classified information will be stored and safeguarded by the Court Security Officer in accordance with the Department of Defense Information Security Program Regulation (DOD Regulation 5200.1-R) or the Security Procedures Established by the Chief Justice of the United States pursuant to Pub. L. 96-456, 94 Stat. 2025, as appropriate. See Rules 9(c) and 35A. (c) Security clearances. Security clearances for personnel on the staff of the Court will be obtained by the Court Security Officer in accordance with the Department of Defense Information Security Program Regulation. 1983 Rules Advisory Committee Comment The Court, dealing as it does with cases arising in the military services, has had a number of cases in
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which the record contained classified matter or was itself classified. Other cases have required the use of classified material to resolve the issues presented. Congress has, by statute (Public Law 96-456, 94 Stat. 2025), required the Chief Justice of the United States (in consultation with the Secretary of Defense and the Director of Central Intelligence) to establish procedures for protecting classified information in cases in the federal civilian judiciary. It is appropriate that the Courts Rules likewise provide procedures for processing cases and documents which involve such information. New Rule 12 and related rules establish these procedures. See Rules 9(c), [35A], and 30(c). Rule 12(a) designates the Clerk as the Court Security Officer responsible for the protection of classified information. The term Court Security Officer is adopted from the Procedures Established by the Chief Justice pursuant to Public Law 96-456. Rule 12(b) adopts the DOD Information Security Program Regulation and the Security Procedures Established by the Chief Justice, as appropriate, for storing and safeguarding classified documents. Adoption of the DOD Regulation insures conformity with procedures already used by the military services and conforms the processing of classified documents by the Court and within other elements of the Department of Defense. Adopting the Procedures Established by the Chief Justice assures that the protection of classified documents during judicial proceedings of this Court will be consistent with those used in federal civilian courts. Note that the Procedures Established by the Chief Justice expressly provide that no security clearance need be obtained for a justice or judge. Rule 12(c) provides for the Clerk as Court Security Officer to obtain (not grant) security clearances for staff personnel of the Court. To facilitate compliance with Rule 12, Rule [35A] provides procedures for filing with the Court documents which contain classified information and limits the number of copies of classified documents filed with the Court.
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Discussion The Classified Information Procedures Act is reproduced at 18 U.S.C.A. App. (LexisNexis 2000). The Chief Justices rules may be found following 9 of the Act. The Court received classified documents in United States v. Miller, 16 M.J. 169, 174 n.8 (1983) (negotiating history of Republic of Korea Status of Forces Agreement), and Cooke v. Ellis, 12 M.J. 17, 18 (1981) (mem.) (Everett, C.J., dissenting); see also id. at 11-14. In the early case of United States v. Grow, 3 C.M.A. 77, 84, 11 C.M.R. 77, 84 (1953), the Court omitted the text of a specification from its opinion because of the security aspects of its contents. Attorneys Rule 13. QUALIFICATIONS TO PRACTICE (a) No attorney shall practice before this Court unless the attorney has been admitted to the Bar of this Court or is appearing pro hac vice by leave of the Court. See Rule 38(b). (b) It shall be a requisite to the admission of attorneys to the Bar of this Court that they be a member of the Bar of a Federal court or of the highest court of a State, Territory, Commonwealth, or Possession, and that their private and professional character shall appear to be good. (c) Each applicant shall file with the Clerk an application for admission on the form prescribed by the Court, together with an application fee in an amount prescribed by Court order and a certificate from the presiding judge, clerk, or other appropriate officer of a court specified in (b) above, or from any other appropriate official from the Bar of such court, that the applicant is a member of the Bar in good standing and that such applicants private and professional character appear to be good. The certificate of good standing must be an original and must be dated within one year of the date of the application. (d) If the documents submitted demonstrate that the applicant possesses the necessary qualifications, the Clerk shall so notify the applicant and he or she may be admitted without appearing in Court by subscribing a written oath or affirmation. However, if the applicant so elects, the ad-
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mission may be on oral motion by a member of the Bar of this Court in open court. Upon admission, the Clerk shall issue to the attorney a wallet-size admission card and a large certificate suitable for framing. (e) Each applicant shall take or subscribe the following oath or affirmation: I * * *, do solemnly swear (or affirm) that I will support the Constitution of the United States, and that I will conduct myself, as an attorney and counselor of this Court, uprightly and according to law. So help me God. (f) Admissions will be granted on motion of the Court or upon oral motion by a person admitted to practice before the Court. Special admissions may be held by order of the Court. 1983 Rules Advisory Committee Comment The provisions of former Rule 11(a) and (b) have not been changed. Rule 13(c) revised former Rule 11(c) to require that application for admission to the Bar of the Court be on a form which will include a notarized certificate from the applicant that he or she is a member in good standing of a Bar of a Federal court or the highest court of a state, territory, or possession. The requirement for payment of an admission fee has been omitted in the revised rule. Provisions for admission upon subscribing a written oath or affirmation or upon oral motion in open court are retained in Rule 13(d). In addition, an attorney who desires a formal certificate of admission may obtain one upon payment of a $10 [now $35] fee to the Clerk. The provision in former Rule 12(e) with respect to taking a prescribed oath has been revised to change the word demean to conduct. New Rule 13(f) continues the practice of admitting attorneys to the Bar of the Court at special hearings held at locations outside of Washington. Minor changes have been made in the language of the rule.
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2001 Rules Advisory Committee Comment The current rule requires payment of $25.00 for admission to the Courts Bar. Due to an increase in the cost of printing bar admission certificates, the fee needs to be changed. Rather than simply changing the amount in the Rule, however, an easier solution is to allow the Court to modify the amount of the fee by court order instead of a formal rule change. This procedure is similar to that of other courts and will make future changes less cumbersome. It will also give the Court more flexibility. Discussion The bar of the Court is not officially organized, although the Judge Advocates Association, founded in 1943 (before the Court was created) and later affiliated with the American Bar Association, has been said to function as the Courts bar in some respects. See generally Robinson O. Everett & William N. Early, The United States Court of Military Appeals and the Judge Advocates Association: An Historical Relationship, 1 MIL. ADVOCATE, Summer 1990, at 1. Membership in the Courts bar is not a prerequisite to practice before courtsmartial or the Courts of Criminal Appeals. Cf. C.M.A. GUIDE 15 (1978) (noting abortive staff proposal); John S. Cooke, The United States Court of Military Appeals, 1975-77: Judicializing the Military Justice System, 76 MIL. L. REV. 43, 101 & n.219, 104 n.228 (1977). The latter courts have their own requirements. See In re Skewes, 52 M.J. 562 (A.F.C.C.A. 1999) (en banc) (denying application of graduate of law school not accredited by ABA, who had been admitted to practice before tribal court). If counsel is not admitted to the Courts bar, a motion to appear pro hac vice, rather than a motion to be admitted pro hac vice, is appropriate. E.g., United States v. Cooper, 57 M.J. 113 (2002) (mem.); United States v. Hollis, 56 M.J. 229 (2001) (mem.); United States v. Richards, 56 M.J. 151 (2001) (mem.); United States v. Fox, 51 M.J. 301 (1999) (mem.); Loving v. Hart, 46 M.J. 198 (1996) (mem.); United States v. Webster, 38 M.J. 459 (1993) (mem.); United States v. Thomas, 37 M.J. 275 (1993) (mem.) (confirming ruling on motion made at oral argument); United States v. Wellman, 37 M.J. 33 (1992) (mem.); United States v. Berg, 29 M.J. 437 (1989) (mem.); but see United States v. Smith, 67 M.J. 25 (2008) (mem.) (granting motion for admission pro hac vice); ABC, Inc. v. Powell, 47 M.J. 77, 78 (1997) (mem.) (motion for admission of counsel to appear pro hac vice). Filing of a pleading should not be delayed because counsel is applying for membership in the Bar of the Court. United States v. Evans, 30 M.J. 24 n.2 (1990) (mem.); see Rule 38(b). Given the ease with which an attorney can gain admission to the Courts bar, there is little reason to proceed pro hac vice. It does, however, occur from
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time to time, typically when appellate defense counsel or amicus curiae counsel are civilian practitioners. E.g., United States v. Smith, 67 M.J. 25 (2008) (mem.); United States v. Light, 48 M.J. 410 (1997) (mem.); ABC, Inc. v. Powell, supra (counsel for petitioning television networks); United States v. Destefano, 44 M.J. 263 (1996) (mem.); U.S. Navy-Marine Corps Court of Military Review v. Carlucci, 28 M.J. 84 (1989) (mem.); United States v. Dicupe, 19 M.J. 151 (1984) (mem.) (oral motion in open court to present argument pro hac vice); United States v. Simpkins, 19 M.J. 83 (1984) (mem.) (pending admission to C.M.A. bar). For rare cases of appearance pro hac vice by government counsel see United States v. Davis, 42 M.J. 408 (1995) (mem.); United States v. White, supra; United States v. Dean, 29 M.J. 452 (1989) (mem.). The Courts application form for admission may be downloaded from www.armfor.uscourts.gov/Bar.htm. In one instance, the Court on its own motion admitted a deceased attorney nunc pro tunc as of the date he had signed his application. In re Tramposch, 32 M.J. 462 (1991). Until United States v. Roberts, 52 M.J. 346 (1999) (mem.) (limited to filing of supplement to petition for grant of review), the Court refused to permit nonlawyer appellants to appear pro se. See United States v. Wattenbarger, 18 M.J. 448 (1984) (mem.); see also United States v. Evans, 25 M.J. 699 (A.C.M.R. 1987), affd mem., 27 M.J. 447 (1988). Earlier, in United States v. Mitchell, 48 M.J. 403 (1997) (mem.), it had noted that an appellant whose counsel had moved to withdraw had elected to proceed pro se. Observing that there are no appellate rules on self-representation, it entered a show cause order seeking the parties views and soliciting briefs amicus curiae from the other services appellate divisions. Given the holding in Martinez v. Court of Appeal of California, Fourth Appellate Dist., 528 U.S. 152 (2000), that there is no constitutional right to self-representation on direct appeal of a criminal conviction, see United States v. Forrest, 53 M.J. 249 (2000) (mem.), the question will remain whether the Court of Appeals will permit self-representation as a matter of discretion. The answer for the moment seems to be that it will not. Thus, in Goodwin v. Judge Advocate General of the Army, 61 M.J. 51 (2005) (mem.), Young v. Commandant, U.S. Disciplinary Barracks, 61 M.J. 51 (2005) (mem.), and Taylor v. Commandant, U.S. Disciplinary Barracks, 61 M.J. 51 (2005) (mem.), it dismissed pro se writ appeal petitions where the petitioners were represented by counsel. Colonel Gilligan and Professor Lederer have observed: It is unclear whether permitting service academy students to appear as amicus counsel would raise equal protection and due process interest[s] that might compel recognition of appellate pro se representation. After all, amicus counsel are not the representatives of the parties. Yet appearances by those without legal training clearly suggest[] such a possibility. 1 FRANCIS A. GILLI-
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GAN & DURE
FREDRIC I. LEDERER, COURT-MARTIAL PROCE5-81.00, at 11 n.240 (Cum. Supp. 2000).
While equal protection claims as fanciful as this have enjoyed surprising traction, see Bush v. Gore, 531 U.S. 98 (2000), it still seems unlikely that such an argument would prevail. The Courts latest word on the subject comes from United States v. Byington, 56 M.J. 145 (2001) (mem.), where it directed appellate defense counsel to file a supplement on the petitioners behalf notwithstanding his wish that no one from the Armys Defense Appellate Division file anything on his behalf. The Court denied Byingtons motion to practice before the Court pursuant to Rule 33 (which governs suspension of the rules) and ordered that no documents received directly from him be docketed. The Court, like the Supreme Court, admits far more attorneys to its bar than will ever conceivably appear before it. After 10 years, the Court had admitted 9,091 lawyers to its bar. 1961 CODE COMM. ANN. REP. 58 (1962). The 10,000th admission, that of Sen. Sam J. Ervin, occurred in 1963. 1963 CODE COMM. ANN. REP. 51 (1964). Through FY87, when the Courts cumulative docket of cases had just passed the 60,000-case mark, it had admitted 26,284 attorneys to its bar. FY87 CODE COMM. ANN. REP. 6 (1988). In FY94 the Court admitted 386 attorneys, for a total of 29,638. FY94 CODE COMM. ANN. REP. 2 (1996). By September 18, 1997, there were 31,000 admittees. See Bar Admission (In re Doster), 48 M.J. 339 (1997). By the end of the October 2007 to August 2008 Term (Transition), there were 34,399. FY08 CODE COMM. ANN. REP. 2, at 2 (2009). Given the number of attorneys who have been admitted to practice before the Court, consideration should be given to appointing counsel from its baror at least seeking volunteersto represent appellants on a pro bono basis, in light of the persistent problems of appellate delay the system has experienced. Until 1977, admission was free. At that time a $10 fee was imposed primarily to cover the cost of the admission certificate. C.M.A. GUIDE 16 (1978). In 1981, the Court authorized waiver of the admission fee where appropriate because of the official position or official duties of the applicant for admission. 12 M.J. 72. Later, the fee was abrogated. Most newly admitted attorneys requested the optional certificate of admission, which is among the most impressive and handsome examples of an otherwise dull genre. The cost of the optional certificate rose to $25 in 1990. 31 M.J. 465. In 1991, the Court amended the rule to require a $25 fee from all applicants and to issue a large certificate to all who are admitted. This reportedly sparked a protest, to which the Court is understood to have responded that if the fee was a hardship for any uniformed lawyer, application could be made for dispensation or leave could be sought to appear pro hac vice. Effective November 1, 2001 the fee was increased to $35, reflecting increased printing costs for admission certificates. In re Bar Application Fee, 56 M.J. 202 (2001).
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All newly-admitted attorneys receive a wallet-size card bearing their admission number. That number must be noted on pleadings. See Rule 38(a). In 1983, the judges rejected a proposal to substitute self-certification for the customary official certificate of good standing. Rule 13A. STUDENT PRACTICE RULE (a) Appearance by Law Student. With leave of this Court, an eligible law student acting under a supervising attorney may appear in a particular case, except a case in which any party is under or is potentially subject to a sentence of death, on behalf of any party, including the United States, provided that the student and supervising attorney comply with the provisions of this rule. (b) Eligibility of Student. To be eligible to appear and participate in any case, a law student must: (1) be a student in good standing in a law school approved by the American Bar Association, or be a recent graduate of such school awaiting the results of a state bar examination; (2) have completed legal studies amounting to at least four semesters, or the equivalent if the school is on some basis other than a 3 year, 6 semester basis; (3) have completed and received a passing grade in courses in criminal procedure and criminal law; (4) neither ask for nor receive any compensation or remuneration of any kind from the person on whole behalf the services are rendered; and (5) be familiar with the Uniform Code of Military Justice and the rules of this Court. (c) Supervising Attorney Requirements. A supervising attorney must: (1) be an attorney of record in the case;
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(2) be a member in good standing of the bar of this Court; (3) have been admitted to practice for a minimum of two years and have appeared and argued in at least one case before this Court or appeared and argued in at least three cases before state or Federal appellate courts; (4) not supervise more than five (5) students at any one time; (5) appear with the student in any oral presentations before this Court; (6) read, approve and sign all documents filed with this Court; (7) assume personal professional responsibility for the students work in matters before this Court; (8) be responsible to supplement the oral or written work of the student as necessary to ensure proper representation of the client; (9) guide and assist the student in preparation to the extent necessary or appropriate under the circumstances; (10) be available to consult with the client; and (11) neither ask for nor receive any compensation or remuneration of any kind from the person on whose behalf the services are rendered. (d) Authorization and Certification. (1) The party on whose behalf the student appears must consent to the representation by that student in writing. (2) The supervising attorney must indicate in writing approval of the appearance by the law student and consent to supervise the law student.
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(3) The law student must be certified by the dean of the students law school as being of good character and competent legal ability. (4) Before commencing student representation in any case under this rule, the supervising attorney shall file a motion for leave to allow student representation in such case. The motion shall put forth that the provisions of this rule have been met and that in counsels view the case is an appropriate one for student representation. The written consent, approval and certification referred to above shall be served on opposing counsel, but no answer will be allowed except with leave of the Court. Once these documents are filed, the Court will decide, using its discretion on a case-bycase basis, whether to allow the student representation. (e) Activities. Upon fulfilling the requirements of this rule, the student may enter an appearance in a case and: (1) assist in the preparation of briefs and other documents to be filed in this Court, but such briefs or documents must also be signed by the supervising attorney; (2) participate in oral argument, but only in the presence of the supervising attorney; and (3) take part in other activities in connection with the case, subject to the direction of the supervising attorney. (f) Termination. The deans certification of the student: (1) shall remain in effect, unless sooner withdrawn, until the publication of the results of the first bar examination taken by such student following the students graduation. For any student who passes that examination the certification shall continue
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in effect until the date the student is admitted to the bar; (2) may be withdrawn by the Court at any time; and may be withdrawn by the dean at any time. (g) Exceptions. (1) This rule does not apply to an appearance or an oral argument by a law student on behalf of an amicus curiae. (2) Nothing in this rule shall preclude the Government or any agency, firm, or organization from compensating a law student for services rendered under such rule. (3) The Court retains the authority, on good cause shown, to establish exceptions to these procedures in any case. See Rule 33. 1995 Rules Advisory Committee Comment The Rules Advisory Committee, with one member dissenting, recommends adoption of a Student Practice Rule. The proposed rule allows for the entry of appearance on behalf of a party by a third-year law student under the guidance of a supervising attorney who must also be the counsel of record. This rule is a natural extension of the Courts current policy allowing law students to argue on behalf of amici curiae. It facilitates the interest of the Court and the Armed Forces in training future judge advocates. The rule is similar to student practice rules in force in over half of the other Federal courts of appeals. The rule provides a structure that will assure that parties receive appropriate representation. It permits third-year law students who have been certified by the dean of their law school as being in good standing to enter an appearance on behalf of a party in any case except a capital case, under the guidance of the supervising attorney. In order to supervise participating law students, the supervising attorney must be an attorney of record for the case, must have been admitted to practice for at least two years, must be a member of the bar
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of this Court, and must have appeared and argued in at least one case before this Court or appeared and argued in at least three cases before state of Federal appellate courts. The rule is not self-executing. Permission of the Court to allow the student to participate in a case is always required. This discretion should allow the Court to monitor the progress of student practice under the rule as well as to adapt to unforeseen circumstances as they arise. 60 FED. REG. 4896 (1995). Discussion Rule 13A, which was added in 1995, reflects a prolonged evolution in the Courts policy regarding participation by nonlawyers. In 1983, the judges had declined to promulgate a rule permitting appearances by law students. The proposal, which was advanced initially by the National Military Discharge Review Project, C.M.A. GUIDE 15 (1978), received mixed reviews. One argument in opposition was the fact that the Court is a criminal court of last resort for the military, and that student responsibility for cases was inappropriate in such a context. In United States v. Strangstalien, 3 M.J. 204 (1977) (mem.), the Court had denied a motion for the special admission of legal interns to present oral argument, in the absence of evidence that the appellant had consented, a position to which it adhered even after the appellant requested such representation. 3 M.J. 208 (1977) (mem.); but see id., 7 M.J. 225, 226 (1979) (noting role of legal interns on brief); United States v. Martinez, 42 M.J. 327, 328 (1995) (same); cf. United States v. Curtis, 33 M.J. 159 (1991) (mem.) (amicuss motion for special admission of legal intern denied as moot). The Court remained cautious in this regard; in United States v. Almy, 36 M.J. 77 (1992) (mem.), it granted leave to file a pleading bearing the signature of a legal intern, but directed appellate defense counsel to inform it by a date certain whether the appellant has been advised of the request to allow a legal intern to represent him and whether appellant consented to the request. The Court encourages student involvement through the submission of amicus briefs by law school appellate advocacy programs. E.g., United States v. Morgan, 40 M.J. 389 (1994) (University of North Dakota School of Law); United States v. Jacobs, 31 M.J. 138, 145 n.1 (1990) (Everett, C.J., dissenting); United States v. Avila, 26 M.J. 72 (1988) (mem.); Cooke v. Orser, 12 M.J. 299 (1981) (mem.); see United States v. Ayala, 42 M.J. 418, 419 (1995) (Crawford, J., dissenting). Notwithstanding Strangstalien, as far back as United States v. Jefferson, 22 M.J. 87, 112 (1986) (mem.), it allowed a third-year law student (certified under a state rule for the practical training of law students) to argue as an amicus. See also, e.g., United States v. Schap, 48 M.J. 373 (1997) (mem.); United States v. Dubose, 48 M.J. 378 (1997) (mem.); Robinson O. Everett, State of the
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Court 2-3, 15th Ann. Homer Ferguson Conf. (May 4, 1990) (rules waived to permit students in appellate litigation clinics to present oral argument as amici); United States v. Kelly, 43 M.J. 462 (1996) (mem.); United States v. Jacobs, supra. Numerous students, from the law schools of Wake Forest, Catholic and Indiana Universities, were permitted to present oral argument as amici curiae in United States v. Graf, 35 M.J. 450 (1992). United States v. Graf, 36 M.J. 3 (1992) (mem.); see also, e.g., United States v. Chatfield, 67 M.J. 432 (2009) (Texas Tech School of Law); United States v. Delarosa, 67 M.J. 252 (2008) (mem.) (Dedman School of Law, Southern Methodist University); United States v. Macomber, 67 M.J. 214 (2009) (Washburn University); United States v. Gallo, 55 M.J. 51 (2001) (mem.); United States v. Gillette, 35 M.J. 468 (1992) (University of Dayton); United States v. Kelly, 44 M.J. 40 (1996) (mem.) (Georgetown University Appellate Litigation Program); United States v. Rivera, 46 M.J. 52 (1997) (Howard University); United States v. Hardy, 46 M.J. 67, 68 (1997) (Dickinson School of Law); United States v. Rodriguez, 49 M.J. 25 (1998) (mem.) (Catholic University of America); United States v. Monroe, 52 M.J. 326 (2000) (same); United States v. Brown, 49 M.J. 118 (1998) (mem.) (George Washington University). The Court has also allowed student interns to appear pro hac vice in connection with the filing of pleadings. United States v. Martinez, supra; United States v. Rousseau, 22 M.J. 413 (1986) (mem.). Two judges thought the process had been carried too far in United States v. Ayala, supra, where the Court permitted cadets at the United States Military Academy not only to file briefs but to argue as amici, even though there was no objection from the parties and the cadets were supervised by judge advocates. See also United States v. Martinez, 42 M.J. 418, 439 (1995) (mem.). In the authors view, even the briefs should not have been received. The House National Security Committee, as it was then called, responded with a measure that would have precluded appearances by undergraduates, first- and second-year law students, and third-year law students not involved in state-approved practical training programs. Third-year students could appear only for amici. The committees report stated: This provision responds to a recent case in which the Court of Appeals for the Armed Forces authorized undergraduate students to submit briefs and present oral argument before the court. Providing undergraduate students with educational experiences in the law is a laudable goal. However, the Court of Appeals for the Armed Forces is a Federal court, and as such it must adhere to high judicial standards of practice and procedure that befit the courts stature and preserve its dignity. Allowing undergraduate students to appear before the court is inconsistent with these standards and sets
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an ill-advised precedent. Section 547 [of the bill reported out] would ensure that in the future only properly licensed attorneys and third-year law students who are in state-approved law school training programs may appear before the court. H.R. REP. NO. 104-131, at 219 (1995); see also id. at 424. In 1998, the Court adopted Rule 26(e), which specifically addresses the participation of law students on behalf of amici. Chief Judge Cox and Judge Sullivan dissented, noting that they would allow the filing of an amicus curiae brief by persons other than law students as long as such persons are acting under the supervision of a member of the Bar of this Court. In re Change of Rules, 48 M.J. CI (1998); see generally Rule 26(e) and 1998 Rules Advisory Committee Comment to Rule 26(e). It can be a challenge to coordinate the briefing schedule with students other obligations. If a student brief is submitted to close to the hearing, the Court may deny leave. United States v. Ober, 66 M.J. 289 (2008) (mem.). The following form was used by the Georgetown University Law Centers Appellate Litigation Program in United States v. Rorie, 58 M.J. 399 (2003): CERTIFICATION BY DEAN OF LAW SCHOOL APPROVED BY THE AMERICAN BAR ASSOCIATION Re: [name of student] May it please the Court: I, Judith C. Areen, Dean of the Georgetown University Law Center, which was approved by the American Bar Association in 1924, do hereby certify that [name of student], whose signature appears hereon, is of good character and competent legal ability, and having complied with the requirements of Rule 13A, is adequately trained to perform as a legal intern. [Signature of Dean] STATEMENT OF LAW STUDENT I, [name of student], do hereby state that I read and understand the provisions of Rule 13A, pursuant to the Rules of Practice and Procedure of the United States Court of Appeals for the Armed Forces and that I will fully comply with all of the provisions thereof. [Signature of Student]
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AGREEMENT OF SUPERVISION I agree to work with [name of student] as supervising attorney in the United States Court of Appeals for the Armed Forces in the case of United States v. [appellant], Appeal No. [docket number]. [Signature of Supervisor] Rule 14. HONORARY MEMBERSHIP [rescinded] 2006 Rules Advisory Committee Comment This rule should be rescinded because honorary bar memberships are rarely, if ever, awarded, and there is no reason to have such a rule in place at this time. Discussion From 1983 to 2006, Rule 14 provided for honorary membership in the Bar of the Court for distinguished members of the legal profession of other nations who are knowledgeable in the fields of military justice or the law of war. The rule, which had been used from time to time, formalized a practice that had grown up over the years without specific provision having been made for it. Foreign lawyers had occasionally been admitted to the Courts bar and others had been admitted on an honorary basis. William H. Cook, Courts-Martial: The Third System in American Criminal Law, 1978 SO. ILL. U. L. REV. 1, 7 n.30. During the Courts first ten years, honorary membership was granted to 25 attorneys from eight foreign countries. 1961 CODE COMM. ANN. REP. 58 (1962). The practice continued. E.g., 1967 CODE COMM. ANN. REP. 7 (1968) (cumulative total of 66); 1966 CODE COMM. ANN. REP. 6 (1967) (eight honorary admittees); 1970 CODE COMM. ANN. REP. 8 (1971) (14 honorary admittees); 1973 CODE COMM. ANN. REP. 7 (1974) (eight honorary admittees); Israeli Ambassador Admitted as Honorary Member of Bar (In re Rosenne), 23 M.J. 234 (1986); Honorary Membership (In re Hermann), 34 M.J. 59 (1991) (justice of Supreme Court of Denmark); Honorary Membership (In re Lee & Joo), 34 M.J. 54 (1991) (South Korean judge advocates). In 2006, the Court rescinded Rule 14, 64 M.J. 358 (2006), in keeping with a suggestion made in an earlier edition of this GUIDE. Notwithstanding rescission of the rule, hospitality can still be extended to Distinguished Visitors. See, e.g., 1965 CODE COMM. ANN. REP. 14 (1966) (noting visits by foreign dignitaries); 1966 CODE COMM. ANN. REP. 7 (1967) (same); 1967 CODE COMM. ANN. REP. 7 (1968) (same); 1969 CODE COMM. ANN. REP. 9-11 (1970) (same); FY78 CODE COMM. ANN. REP. 6-7 (1979) (same). Even this, however, is carried too far when it is made a matter of publication in the Daily
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Journal, e.g., Ambassadors Visit Court, 46 M.J. 355 (1997) (ambassadors of China and Myanmar); Distinguished Visitor, 37 M.J. 31 (1992) (Kennedy, J.); Distinguished Visitors, 37 M.J. 39 (1992); Distinguished Visitor, 32 M.J. 241 (1990), or the Code Committees annual report to Congress. See FY92 CODE COMM. ANN. REP. 7 (1993) (OConnor, J.); FY91 CODE COMM. ANN. REP. 27 (1992). When foreign practitioners are present in the courtroom as guests of counsel, their attendance may appropriately be brought to the attention of the Chief Judge. Rule 15. DISBARMENT AND DISCIPLINARY ACTION (a) The Model Rules of Professional Conduct of the American Bar Association are hereby adopted as the rules of conduct for members of the Bar of this Court. To the extent that these rules are inconsistent with applicable service rules of professional conduct, the conduct of judge advocates will be reviewed under the rules of their service. To the extent that these rules are inconsistent with the rules of professional conduct which apply in the location where a civilian member of the bar maintains a principal office, the conduct of civilian counsel will be reviewed under the rules of their licensing jurisdiction. (b) Whenever a member of the Bar of this Court has been disbarred or suspended from practice in any court of record, the Court will enter an order suspending that member from practice before this Court and affording the member an opportunity to show cause, within 30 days, why a disbarment order should not be entered. Upon response, or if no response is timely filed, the Court will enter an appropriate order. (c) If it appears that a member of the Bar of this Court has engaged in conduct unbecoming a member of the Bar, or failed to comply with this Rule or any other Rule or order of the Court, the Court may enter an order affording the member an opportunity to show cause, within 30 days, why disciplinary action should not be taken. If the member, in responding to the show cause order, raises material questions of fact, the Court
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may appoint a special master who shall hold a hearing and prepare proposed findings of fact and recommendations. (d) After affording the member of the bar a reasonable opportunity to prepare written objections to the proposed findings of fact and recommendations, the proposed findings and recommendations, together with any written objections thereto, shall be submitted to the Court. Upon due consideration thereof, the Court may take such disciplinary action as it deems appropriate against the member of the Bar. 1983 Rules Advisory Committee Comment [Obsolete] This rule covers areas addressed in Rule 12 of the 1977 rules of the Court. The provisions of former Rule 12(a) have been retained in Rule 15(a). Rule 15(b) has been revised to require than on receipt and docketing of a written complaint, under oath, of unprofessional conduct against a member of the Bar, the Court will have a copy served on the attorney so accused by certified or registered mail. The Clerk will acknowledge by letter to the person filing such complaint its receipt in the Court. The accused attorney will file a formal pleading responsive to each allegation of the complaint within 30 days after he receives the complaint or within any extension of such time as may be granted. A complaint will be docketed in the Court only if the Court makes a preliminary determination that it is not frivolous. Rule 15(c) provides that after consideration of the complaint and the answer, if the Court finds that a substantial basis exists for the complaint, it will refer the matter to a committee of members of its Bar for investigation, including the taking of evidence and for submission of a report of that investigation to the Court. Otherwise, the complaint will be dismissed. Any investigation will be held privately, unless the accused attorney requests that it be open to the public. When the Court receives the report of the committee, Rule 15(d) permits it to order the matter set
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down for hearing, giving due notice to the accused attorney, or to dismiss the complaint. At the hearing, the accused attorney will be given an opportunity to present such matters as he deems appropriate and to examine witnesses against him. He will also be furnished a copy of any documents received in connection with the complaint against him. A majority vote of the Court is required to find an accused attorney guilty of professional misconduct and to fix any penalty. The former provisions of Rule 12(e) providing for disbarment upon a showing that a member of the Bar has been disbarred or suspended from practice in any other court are retained in Rule 15(e), but the time for filing an answer to a show cause order is reduced from 40 to 30 days. The penalties for unprofessional conduct provided in Rule 15(f) remain the same as those in former Rule 12(f). Rule 15(g) provides that, except for a court order of reprimand, suspension or disbarment, documents relating to a complaint and disciplinary proceeding will not be published or released to the public without the prior approval of the Court, and the docket of matters arising under this rule will not be available for public use. 1998 Rules Advisory Committee Comment [Obsolete] The addition of Rule 15(f)(2) establishes an alternative procedure for the initiation of a disciplinary action that would apply when a member of the Bar is convicted by court-martial or by other court of competent jurisdiction and the conviction has become final. If the conviction evidences conduct that constitutes a failure to comply with the ABA Model Rules of Professional Conduct, the Court may, sua sponte, commence a disciplinary action by issuing an order to show cause why the member of the Bar should not be disbarred. The revision allows the Court, at its discretion, to avoid formal investigations in cases where a record has already been developed through a judicial criminal process and there has already been a conviction that has become final.
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The rule is consistent with the prior practice of the Court. In In re Trimper, Special Docket No. 89-04, the Court issued such an order to show cause without first referring the matter to the Investigations Committee under the current provisions of Rule 15(b)-(e). The order was issued to an active duty military lawyer, after the Court affirmed his court-martial conviction for wrongful use of drugs. 2004 Rules Advisory Committee Explanatory Note The current Rule 15 dates back to the early 1970s, and it mandates a cumbersome process for disciplining attorneys involving the appointment of a fivemember Investigations Committee. There is no record that it has ever been used. The new proposal, taken largely from Rule 8 of the Rules of the Supreme Court of the United States, along with process provisions in federal courts of appeals local rules, is more efficient, and it will provide a tool for the Court to impose needed discipline in a more timely manner. Instead of a five-member committee, the Court may appoint a special master to conduct a hearing, consider questions of fact, and make recommendations to the Court. Insubstantial questions of fact that are not relevant to the Courts disposition of the matter will not be considered material for purposes of this rule. The member would be afforded a reasonable opportunity to prepare written objections to the proposed findings of fact. The proposal adopts the ABAs Model Rules of Professional Conduct to the extent that they are not inconsistent with service regulations or rules of civilian licensing jurisdictions. Discussion In 1983, the American Bar Associations Code of Professional Responsibility was superseded by the Model Rules of Professional Conduct. In 1990, the Court modified Rule 15 to recognize this change. 31 M.J. 465. In accordance with R.C.M. 109(a), the Model Rules had already been adopted by the Army and Navy in 1987, Dept of the Army Pam. 27-26, Rules of Professional Conduct for Lawyers (1987), discussed in Bernard P. Ingold, Overview and Analysis of the New Rules of Professional Conduct for Army Lawyers, 124 MIL. L. REV. 1 (1989); Navy JAG Inst. 5803.1, Professional Conduct for Judge Advocates (1987), discussed in Eileen M. Albertson, Rules of Professional Conduct for the Naval
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Judge Advocate, 35 FED. B. NEWS & J. 334 (1988), and by the Air Force in 1989, see Myers, Rules of Professional Responsibility for Air Force Lawyers, 37 FED. B. NEWS & J. 312 (1990), although the services were unable to agree as to certain provisions. The Courts adoption of the Model Rules reduced the potential for a Tower of Babel in the key area of defining standards of professional conduct. It seems, however, not to have stimulated the services to reach agreement on the remaining discrepancies. The Navys updated rules on Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General, may be found, without the accompanying commentary, at 32 C.F.R. Pt. 776 (2009). The current Air Force Rules of Professional Conduct were issued on August 17, 2005. The Armys Rules of Professional Conduct for Lawyers appear in AR 27-26 (May 1, 1992). The power of the Judge Advocates General to make rules under R.C.M. 109(a) extends to professional supervision and discipline of military trial and appellate judges, judge advocates, and other lawyers who practice in proceedings governed by the UCMJ and Manual for Courts-Martial. The disciplinary reach of such rules, however, is confined to practice in courts-martial and in the Courts of Military Review. R.C.M. 109(a). Hence, the drafters of R.C.M. 109(a) apparently chose not to intrude on the Court of Military Appeals authority to govern practice before it. The official analysis notes that the previous rule was limited to conduct of counsel in courts-martial. MCM, 2008 ed., at A21-7. The Court and the Judge Advocates General should clearly reach agreement on a single set of professional standards that would govern every lawyer in every phase of the military justice process in each armed force. The fact that this has not been achieved suggests a breakdown in the collegial process contemplated by the congressional provision for a Code Committee under Article 146, 10 U.S.C. 946 (2006). This is an area in which the organized bar can play a leadership role to help bring about uniformity. Failing this, congressional intervention may be necessary. The Court has occasionally exercised reciprocal discipline under Rule 15(f), e.g., In re Wasser, 68 M.J. 154 (2009) (mem.) (Maryland consent disbarment; attorney failed to respond to order to show cause); In re Volzer, 66 M.J. 370 (2008) (mem.) A.C.C.A. indefinite suspension; no matters submitted in response to order to show cause); In re Partridge, 65 M.J. 471 (2007) (mem.) (reciprocal discipline with S.C. and 4th Cir.); In re McDaniel, 65 M.J. 420 (2007) (mem.); In re Bellino, 65 M.J. 419 (2007) (mem.); In re Jackson, 65 M.J. 419 (2007) (mem.); In re Lapham, 65 M.J. 419 (2007) (mem.); In re Feigenbaum, 65 M.J. 349 (2007) (mem.); United States v. Hilson, 65 M.J. 350 (2007) (mem.); United States v. Clayborne, 65 M.J. 350 (2007) (mem.); United States v. Bailey, 65 M.J. 350 (2007) (mem.); United States v. Kiernan, 65 M.J. 350 (2007) (mem.); United States v. Manson, 65 M.J. 350 (2007) (mem.); United States v. Shumate, 65 M.J. 351 (2007) (mem.); United States v. Vieira, 65 M.J. 351 (2007) (mem.), but there have been very few original disbarments in its history. See United States v. Zander, 65 M.J. 351 (2007) (mem.) (admission to bar gained by fraud);
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cf. United States v. Zander, 46 M.J. 558 (N-M. Ct. Crim. App.), pet. denied, 48 M.J. 18 (1997); In re DeFina, No. 13,600A (C.M.A. Feb. 17, 1960); see also DeFina v. Latimer, 79 F.R.D. 5 (E.D.N.Y. 1977); 1961 CODE COMM. ANN. REP. 57-58 (1962) (noting appointment of grievance committee and procedures in DeFina). Disciplinary proceedings were instituted in In re Trimper, Spec. Dkt. No. 89-04, noted in United States v. McKinney, 29 M.J. 297 (1989) (mem.). Trimper, who had been convicted of drug use in an Air Force general court-martial, United States v. Trimper, 28 M.J. 460 (1989), was ordered to show cause why he should not be disbarred. This was done without referring the matter to the Investigations Committee. 62 FED. REG. 27,592, 27,593 (1997). He was ultimately suspended from practice before the Court for five years. See Gafford v. Commandant, U.S. Disciplinary Barracks, 31 M.J. 404 (1990) (mem.). In 1998, the Court amended the rule to regularize the process employed in Trimper. In re Change of Rules, 48 M.J. CII, CIX (1998). The current text was substituted in 2004. 60 M.J. 290, 292. In United States v. Rivera, 33 M.J. 447 (1991) (per curiam), the Court denied a petition for grant of review filed on behalf of a Navy judge advocate convicted of taking part in a conspiracy to refer legal assistance clients to a civilian attorney in return for a share of the resulting fees. The decision observed that [a]lthough the conduct was not in connection with legal services that are within the statutory jurisdiction of this Court, any untoward professional behavior is of concern to us in connection with whether a member of this Courts bar ought to remain on our rolls in good standing. Lieutenant Rivera was directed to show cause why he should not be disbarred. In United States v. Quintanilla, 63 M.J. 29, 39 (2006), where there were repeated instances of unethical conduct, the Court directed its Clerk to transmit both its opinion and that of the Navy Court to the Judge Advocate General for appropriate consideration. In another case, the Court declined to discipline an attorney who wrote an article that the judges felt reflect[ed] conduct unbecoming a member of its bar. William H. Cook, Courts-Martial: The Third System in American Criminal Law, 1978 SO. ILL. U. L. REV. 1, 29 n.126. Rather than take formal disciplinary action where briefs submitted to it contain objectionable language, the Court has confined itself to striking the inappropriate matter. E.g., United States v. Hosie, 7 M.J. 208 (1979) (mem.). Given the historical paucity of disciplinary cases, it is not surprising that there was no standing Investigations Committee and that the Court abandoned that concept in the 2004 revision. In 2009, citing Rule 15(c), the Court drew the attention of the bar to the potential professional responsibility implications for counsel where counsels conduct causes a client to be denied access to the Court, cautioning that it could exercise its discretion in cases where counsel is or may be responsible for filing a petition for grant of review out of time and order the appellate counsel involved to show cause why disciplinary action should not be taken. United States v. Angell, 68 M.J. 79 (2009) (mem.). No action was taken in that case, but the Court thought the matter sufficiently important that it directed the Clerk to
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send copies of its order to the directors of the eight appellate divisions. It would be foolhardy to test the Courts willingness to initiate a Rule 15(c) inquiry. Rule 16. ENTRY OF APPEARANCE AND WITHDRAWAL BY COUNSEL (a) Counsel shall enter an appearance in writing before participating in the representation of a party to an action before the Court; however, the filing of any pleading or other paper relative to a case which contains the signature of counsel shall constitute such an entry of appearance. See Rules 13(a) and 38. (b) Leave to withdraw by any counsel who has entered an appearance under subsection (a) must be requested by motion in accordance with Rule 30. A motion by an appellate defense counsel must indicate the reasons for the withdrawal and the provisions which have been made for continued representation of the accused. A copy of a motion filed by an appellate defense counsel shall be delivered or mailed to the accused by the moving counsel. 1983 Rules Advisory Committee Comment This rule supersedes Rule 13 of the former rules of the Court. Rule 16(b) revises former Rule 13(b) to require that leave to withdraw by appellate defense counsel be requested by motion in accordance with new Rule 31. The motion must indicate the reasons for the withdrawal, describe the provisions which have been made for the continued representation of the accused and state whether the accused has consented to counsels withdrawal. Further, a copy of the motion to withdraw must be provided to the accused by the moving counsel. Discussion This rule is necessitated by the continuing problem of personnel turbulence in the appellate divisions of the Offices of the Judge Advocates General.
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Appellate counsel are assigned by the Judge Advocates General or their designees, UCMJ art. 70(a), 10 U.S.C. 870(a) (2006), and the Court has recognized the services broad powers in this regard. E.g., United States v. Herrera, 22 C.M.A. 163, 46 C.M.R. 163 (1973) (2-1 decision); United States v. Patterson, 22 C.M.A. 157, 46 C.M.R. 157 (1973) (mem.). The accused has no right to select appellate defense counsel. Under some circumstances, however, he may be entitled to request that detailed appellate defense counsel be replaced by another appellate defense counsel. Discussion, Rule for Courts-Martial 1202, Manual for Courts-Martial, United States, 1984. See United States v. Bell, 11 U.S.C.M.A. 306, 29 C.M.R. 122 (1960). A conflict of interest could be such a circumstance. Martindale v. Campbell, 25 M.J. 755, 757 (N.M.C.M.R. 1987). In United States v. Collier, 32 M.J. 48 (1990) (mem.), the Court held that Article 70 had been violated where a Court of Military Review took action following a remand without affording counsel an opportunity to brief or orally argue the issue on remand. The Code does not provide for continuity in representation by military counsel from the trial through the appellate process and in fact trial defense counsel almost never represents the accused on appeal. Dwight H. Sullivan, The Last Line of Defense: Federal Habeas Review of Military Death Penalty Cases, 144 MIL. L. REV. 1, 59-60 n.304 (1994), citing 2 FRANCIS A. GILLIGAN & FREDRIC I. LEDERER, COURT-MARTIAL PROCEDURE 25-41.00 (1991). Where there is such continuity, the party so represented is likely to have a substantial advantage. Cf. United States v. Sutton, 31 M.J. 11, 13 n.1 (1990) (appellate government counsel had also been trial counsel). If an accused refuses to be represented by appellate defense counsel who is not burdened with a conflict of interest, he or she may proceed pro se or employ civilian counsel at no expense to the government. Martindale, supra, at 758 n.3; but see Martinez v. Court of Appeal of California, Fourth Appellate District, 528 U.S. 152 (2000) (no constitutional right to represent self on direct appeal from criminal conviction). The Court strongly prefers that litigants before it be represented by counsel, and has gone so far as to direct appointment of appellate defense counsel where appellants have expressly requested that no such counsel be appointed. E.g., United States v. Frankenberger, 7 M.J. 136 (1979) (mem.) (2-1 decision); United States v. Prosper, 7 M.J. 136 (1979) (mem.); United States v. Lawson, 4 M.J. 201 (1978) (mem.); see also United States v. Forrest, 53 M.J. 249 (2000) (mem.) (where appellant and military appellate defense counsel had disagreements, government ordered to show cause why substitute military appellate defense counsel should not be appointed). In United States v. Byington, 56 M.J. 145 (2001) (mem.), it refused a would-be pro se litigants request to suspend the rules under Rule 33, and overrode his request that the Armys Defense Appellate Division not file anything on his behalf. What is more, it directed that nothing he filed directly be docketed. Whatever else this means, it certainly suggests that Grostefon issues should be submitted via counsel, rather than directly by the party. Moreover, Grostefon issues cannot be raised simply by blanket cross-reference to the clients post-trial submission
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under R.C.M. 1105. United States v. Glover, 59 M.J. 21 (2003) (mem.). If counsel wishes to raise the clients Grostefon issues, they have to be identified for the Court. E.g., United States v. Brown, 59 M.J. 13 (2003) (mem.). Appellate defense counsel will be required to file an amended supplement if the client raises issues in an attachment to his petition for grant of review and counsel fails to include them in the supplement. United States v. Spencer, 60 M.J. 397 (2004) (mem.). At a September 6, 2007 orientation session for appellate counsel, Clerk of the Court William A. DeCicco properly cautioned that appellate defense counsel should not simply file correspondence from their client raising Grostefon issues; counsel should distill the clients Grostefon concerns into intelligible legal issues. A later case commented that [w]hile it is appropriate to attach Appellants submission for consideration by the Court, this does not relieve appellate defense counsel of the obligation to identify the specific issues, even if they do not require extensive briefing. United States v. Gall-Martin, 67 M.J. 368 (2009) (mem.). Failing to do this needlessly shifts work to the Court and its staff and ill serves the client. The Court will not give effect to a waiver of the right to appellate representation executed on the day of trial, before the convening authority has acted. United States v. Buggs, 36 M.J. 365 (1992) (mem.), citing United States v. Smith, 34 M.J. 247 (1992) (invalidating premature waiver of appellate representation); United States v. Avery, 34 M.J. 160 & n.1 (1991) (mem.), citing United States v. Hernandez, 33 M.J. 145 (1991) (invalidating premature waiver of appellate review); United States v. Walker, 34 M.J. 317 (1992) (per curiam) (invalidating withdrawal of request for appellate review executed before convening authoritys action); United States v. Fields, 42 M.J. 112 (1995) (mem.) (semble) (denying motion to abate proceedings ab initio based on appellants earlier withdrawal from appellate review). Counsel who are the subject of pending disciplinary proceedings will not be allowed to represent clients before the Court. United States v. McKinney, 29 M.J. 297 (1989) (mem.); United States v. Gafford, 29 M.J. 297 (1989) (mem.), extraordinary relief petition mooted, Gafford v. Commandant, U.S. Disciplinary Barracks, 31 M.J. 404 (1990) (mem.). Where a case may be delayed because civilian counsel requires medical attention, the Court has required military appellate defense counsel to ascertain the clients wishes and to determine the availability of other counsel from civilian counsels law firm. United States v. Thomas, 30 M.J. 47 (1990) (mem.). The Clerk is authorized under Rule 9(d) to allow counsel to withdraw. Withdrawal has been allowed when it is impossible for counsel to continue to represent the client effectively, provided substitute counsel has been assigned. E.g., United States v. Boyd, 12 M.J. 408 (1982) (mem.); United States v. Grostefon, 11 M.J. 470 (1981) (mem.); see also William N. Early, Lizann M. Longstreet & James S. Richardson, USCMA and the Specified Issue: The Current Practice, 123 MIL. L. REV. 9, 23 n.50 (1989), discussing United States v. Knight, 15 M.J. 202, 203-04 (1983) (withdrawal of appellate defense counsel who submitted case
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on merits despite listing of issues in accuseds request for appellate representation). In United States v. Murphy, 42 M.J. 97 (1995) (mem.) (3-2 decision), the Court denied Army appellate defense counsels motion for leave to withdraw without prejudice to her right to resubmit her request to withdraw after oral argument. See also United States v. Murphy, 43 M.J. 398 (1995) (mem.) (same), show cause order issued, 46 M.J. 179 (1996) (mem.); United States v. Gray, 43 M.J. 398 (1995) (mem.) (same). In United States v. Gray, 43 M.J. 129 (1995) (mem.), Chief Judge Sullivan dissented without explanation from an order permitting appellants counsel to withdraw. Where withdrawing counsels representation that provision has been made for continued representation of the client is unrebutted, withdrawal will be permitted. Walker v. United States, 60 M.J. 336 (2004) (mem.). Absent a reason to sever the attorney-client relationship, the Court will insist that the Judge Advocate General continue to furnish appellate representation. Lovett v. United States, 64 M.J. 232 (2007) (mem.). If an attorney has been inadvertently listed as appellate counsel, a motion to withdraw his or her name should be filed. E.g., United States v. Wolfe, 31 M.J. 469 (1990) (mem.). The signature block of the counsel who withdraws must be included on a Rule 16(b) motion. United States v. McQuaig, 22 M.J. 186 n.* (1986) (mem.); United States v. Moye, 22 M.J. 184 n.* (1986) (mem.). A motion for leave to withdraw must be served on the client. E.g., United States v. Gray, 52 M.J. 470 (1999) (mem.) (unserved motion to withdraw denied without prejudice). Failure to comply with the withdrawal process outlined in the Rule can create needless complications and embarrassment later on. See United States v. Miller, 37 M.J. 34, 36 (1992) (mem.); United States v. Curry, 28 M.J. 139 n.* (1989) (mem.); United States v. Adames, 22 M.J. 234 (1986) (mem.); cf. United States v. Murphy, 40 M.J. 288 (1994) (mem.) (4-1 decision) (briefing schedule enlarged in capital case after Court satisfied itself that withdrawal requirements of Army Rules of Professional Conduct for Lawyers had been satisfied). For example, in United States v. Davis, 37 M.J. 29 (1992) (mem.), lead counse left active duty without moving for leave to withdraw. The Court, with a cf. citation of United States v. Hullum, 15 M.J. 261 (1983), and United States v. Tavolilla, 17 C.M.A. 395, 38 C.M.R. 193 (1968), held that she continues as lead counsel on behalf of appellant and is obligated to appear in that capacity at oral argument on order of this Court. A request to postpone the argument was denied. In United States v. Perez, 40 M.J. 22 (1994) (mem.), the Court granted a motion by the Chief of the Air Force Appellate Defense Division to remove former military appellate defense counsel from representation in the case. In United States v. Jones, 37 M.J. 251 (1993) (mem.), appellate defense counsel sought leave to withdraw less than a month before argument, on the ground that he was being transferred to another command. The client, speaking through successor appellate defense counsel, opposed the motion, pointing out the Rules Advisory Committees observation that the consent vel non of the ap-
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pellant should be indicated, and stressing the need to avoid severing an established attorney-client relationship. This part of the Committees comment goes beyond the text of the rule as promulgated. While the Committee had proposed that there be a requirement to indicate whether the accused had consented, the Court struck it in promulgating the 1983 Rules Changes, seemingly implying that the accuseds failure to consent could ordinarily be overridden (for example, in the event of a routine personnel transfer). Nonetheless, it is obviously preferable to seek the accuseds consent, and of course, if it is obtained, to so indicate in the motion. The issue in Jones is a substantial one, and merited more than the per curiam denial the Court afforded it. In United States v. Gray, 39 M.J. 351 (1993) (mem.), a capital case, the Court issued a lengthy order requiring the submission of detailed information and briefs where appellate defense counsel sought to withdraw upon his transfer from the Appellate Defense Division. Withdrawal of counsel received yet closer attention in United States v. Murphy, 46 M.J. 397 (1997) (mem.) (3-2 decision). There, two former Defense Appellate Division attorneys were permitted to withdraw over the objection of their client and successor counsel, and despite the fact that both attorneys retained a military connection (one as an Army Reservist and the other as a full-time officer of the District of Columbia National Guard). Judges Effron and Sullivan dissented from the Courts unexplained action. Noting that [w]ithdrawal of counsel is not a matter of right, they would have denied the motion without prejudice until such time as the Government (1) issues voluntary active-duty orders to these counsel and one or both of the counsel decline to consent or, in the case of Major Tall, there is an appropriate objection from the D.C. National Guard, or (2) otherwise demonstrates good cause for not issuing such orders. The Court of Appeals is certainly aware of the problem of revolvingdoor appellate defense counsel, see, e.g., Dwight H. Sullivan, The Last Line of Defense: Federal Habeas Review of Military Death Penalty Cases, 144 MIL. L. REV. 1, 60 & n.306 (1994), quoting Robinson O. Everett, Specified Issues in the United States Court of Military Appeals: A Rationale, 123 MIL. L. REV. 1, 4 (1989), but has not yet taken direct steps to remedy it. See United States v. Smith, 41 M.J. 385, 387 8-10 (1995) (Sullivan, C.J., dissenting) (noncapital case), discussing United States v. Loving, 41 M.J. 213, 299 && 129-30 (1994) (capital case). Where it is unclear who will represent a party, the case may be held in abeyance. United States v. Smith, 31 M.J. 461 (1990) (mem.) (civilian counsel directed to file document signed by appellant authorizing representation); United States v. Colvin, 19 M.J. 206 (1984) (mem.); cf. United States v. McKinney, supra (military appellate defense counsel directed to advise Court if appellant wishes to delay review until completion of civilian appellate defense counsels
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pending disciplinary proceeding); United States v. Gafford, supra (same). This may occur if the respective responsibilities of civilian and military appellate defense counsel have not been clearly allocated at the outset, or if, as unfortunately happens from time to time, one or more counsel ignores deadlines or otherwise drops the ball, as occurred in United States v. May, 47 M.J. 478 (1998), personalities clash, coordination is deficient or counsel have divergent, or, worse yet, irreconcilable theories as to how best to advance the clients interest. In addition to the danger of prejudice to the accused, these situations can be a source of professional embarrassment and a needless distraction to the Court. Where an appellant is represented by both civilian counsel and detailed military counsel, the performance of counsel is measured by the combined efforts of the defense team as a whole. Id. at 481 (citing United States v. Boone, 42 M.J. 308, 313 (1995)). Typically, when an accused has civilian counsel on appeal, that attorney will serve as lead counsel. Cf. UCMJ art. 38(b)(4), 10 U.S.C. 838(b)(4) (2006). This, however, is entirely up to the party and counsel. See United States v. Coppedge, 14 M.J. 286 (1982) (mem.). Civilian counsel may also be asked to serve as associate appellate defense counsel or of counsel on the briefs. At times, all the client (or the clients family) wants, needs or can afford is the comfort of a second opinion from a nonuniformed lawyer. Whatever the arrangement, care should be taken to make sure the Clerks Office knows whom to serve when orders or decisions are issued. Defense counsel, in turn, should consult one another whenever an order or decision is handed down not only to ensure compliance, see United States v. May, supra, and map strategy, but also simply to make certain all those who should be aware of the matter are aware, and to agree as to who will brief the client. Rule 17. ASSIGNMENT OF COUNSEL Upon receipt of a notice of the docketing of a case issued under Rule 10(c), the appropriate Judge Advocate General shall designate appellate military counsel to represent the parties, unless such counsel have previously been designated. In a case involving a petition for extraordinary relief wherein an accused has been denominated as the real party in interest by a filing party or has been so designated by the Court, the Judge Advocate General shall also designate appellate military counsel to represent such accused. 1983 Rules Advisory Committee Comment
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This rule covers matters controlled by Rule 14 of the 1977 Rules. The substantive provisions of Rule 14 of the 1977 Rules have not been changed. However, the material relating to the designation of counsel for indigent parties has been omitted as not appropriate in the operation of the military justice system. Discussion [T]he primary responsibility for the appointment of counsel and the validity of any allegations of conflict requiring the appointment of substitute counsel rests with the Judge Advocate General, . . . whose decision is reviewable only for abuse of discretion. United States v. Montanez-Pitre, 53 M.J. 421 (2000) (mem.). If counsel believes representation of particular parties may give rise to a conflict of interest, the matter can be explored within appropriate bar or military professional responsibility channels. A ruling may evidently also be sought from the Court. E.g., United States v. Brauchler, 17 M.J. 277 (1983) (mem.). Where it appears that civilian appellate defense counsel has a conflict of interest if a particular claim (ineffective assistance) is pressed, the Court may issue an order to show cause effectively requiring that the claim be dropped from the supplement to the petition for grant of review if counsel is to remain in the case. United States v. Niles, 43 M.J. 444 (1995) (mem.). In United States v. Foster, 25 M.J. 302 (C.M.A.) (mem.), motion denied, 25 M.J. 389 (1987) (mem.), an Army case, the Court denied a motion by civilian appellate defense counsel for assignment of associate military appellate defense counsel from another armed service. Cf. United States v. Demerse, 33 M.J. 159 (1991) (mem.) (remanding for consideration of request for military counsel from outside Appellate Defense Division). Former Rule 14 had provided for the appointment by the Court of a member of the bar to represent indigent parties. The provision was without precedent in the courts annals, C.M.A. GUIDE 21 (1978), was never used, and was deleted in the 1983 revision. When it was promulgated, the author commented that [a] particular case could conceivably engender sufficient hostility within a particular service as to render it unlikely that satisfactory legal assistance would be forthcoming from within that armed force, e.g., if the case involved serious issues going to the powers, organization or management of a judge advocate generals department, or allegations of pervasive command influence. Id. at 22 & n.84. Such considerations were at work in U.S. Navy-Marine Corps Court of Military Review v. Carlucci, 27 M.J. 11, 12 (1988) (mem.), protective order granted, 26 M.J. 328, 329 (1988), where the Court appointed civilian counsel (a former General Counsel of the Department of Defense) for the Court of Military
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Review, which had asserted that it was unable to obtain counsel for itself. The case is presumably sui generis, but it shows that there may well be times when participation by counsel outside the military community, and not simply as amici, see United States v. Curtin, 44 M.J. 46 (1996) (mem.) (permitting brief and argument by Department of Justice as amicus curiae), may be appropriate. After prevailing in efforts to obtain an extraordinary writ, counsel for the Navy Court applied to the Court of Military Appeals for a substantial award of attorney fees under the Equal Access to Justice Act, 28 U.S.C. 2412 (2006). The application was stoutly resisted by the Department of Defense and dismissed by the Court on the ground that the proceeding was not a civil action for purposes of that statute. U.S. Navy-Marine Corps Court of Military Review v. Cheney, 29 M.J. 98 (1989). The episode brings to mind a 1980 bar association suggestion that the Court be empowered to appoint a civilian attorney or bar association to participate in an appeal as amicus curiae, and that compensation for such service be available pursuant to the standards set forth in 18 U.S.C. 3006A. Letter from Steven S. Honigman, Chairman, Subcomm. on the Uniform Code of Military Justice, Assn of the Bar of the City of New York, to Rep. Richard C. White, Chairman, Subcomm. on Military Personnel, House Comm. on Armed Services (Feb. 7, 1980); Hearings on H.R. 6406 and H.R. 6298, Revision of the Laws Governing the U.S. Court of Military Appeals and the Appeals Process, Before the Military Personnel Subcomm. of the House Comm. on Armed Services, 96th Cong. 92, 93-94 (1980). The proposal sank without a trace. The Court denied a request for costs in United States v. Longhofer, 27 M.J. 285 (1988) (mem.). More recently, in a capital case, it directed the Judge Advocate General of the Navy to take appropriate action to ensure the availability of $15,000 to appellate defense counsel for such expenses as are determined by [counsel] to be reasonable and necessary in furtherance of the defense of the appellant in this appellate proceeding, subject to such procedures as are in effect within the Department of the Navy for the proper disbursement of public funds . . . the determination of such reasonable and necessary expenditures [to] be subject to review only by th[e] Court. United States v. Curtis, 31 M.J. 395, 396 (1990) (mem.), clarified, 31 M.J. 424, and amended, 31 M.J. 434. The funds had been sought in order to secure, among other things, expert assistance, travel, continuing legal education, and counsel qualified under the capital case guidelines of the American Bar Association. In Calhoun v. United States, 45 M.J. 20 (1996) (mem.), the Court dismissed without prejudice for failure to exhaust under Rule 4(b) where the petitioner sought, among other things, an order requiring the government to pay for civilian defense counsel after the Air Force seized documents from the Area Defense Counsels office files. On occasion, the Clerk of the Court has physically returned (and did not docket) petitions for extraordinary relief on the ground that the petitioner failed to demonstrate good cause for not requesting relief from the service court in the first instance. E.g., Rodriguez-Rivera v. Navy-Marine Corps Court of Criminal Appeals (undocketed petition for extraordinary writ, 2004); Letter from William A. De-
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Cicco, Clerk of the Court, to Eugene R. Fidell (June 24, 2004) in Forney v. U.S. Navy-Marine Corps Court of Criminal Appeals (undocketed petition for writ of procedendo, 2004), subsequent petition denied without prejudice, Forney v. United States, 60 M.J. 425 (2004) (mem.).This practice seems unwise because whether good cause has been shown or exhaustion should be required in particular circumstances is a judicial determination rather than a mere formal defect exposing the document to return under Rule 36(e). See Discussion of Rule 37. The better practice would be for the Clerk to docket the papers and for the Court to make such other order as may be appropriate. There is no right to be represented by appellate defense counsel at a limited rehearing. United States v. Torres, 5 M.J. 86 (1978) (mem.); United States v. Kelker, 4 M.J. 323 (1978). In addition, the Court has refused to exercise its supervisory authority to require the Judge Advocates General to appoint counsel in the Courts of Criminal Appeals if the appellant has not requested counsel and the government is not represented by counsel. United States v. Smith, 34 M.J. 247, 248 (1992). In Carlson v. Smith, 43 M.J. 402 (1995) (mem.) (3-1 decision), the Court refused to order the Judge Advocate General of the Navy to appoint counsel to represent writ petitioners at trial in connection with issues arising out of subpoenas duces tecum. In the case of one petitioner who was subject to the Code, however, the Court noted that its denial was without prejudice to her rights under Article 27. In United States v. Roach, 66 M.J. 109 (2008) (mem.), the Court denied a motion by appellate government counsel to disqualify a civilian attorney employed by the Air Force for appellate defense representation, commenting that [n]othing in Article 70, UCMJ, 10 U.S.C. 870, limits the discretion of the Judge Advocate General to offer Appellant the additional services of a civilian appellate defense counsel at government expense. Appeals Rule 18. METHODS OF APPEAL (a) The Court will entertain the following appeals: (1) Cases under Article 67(a)(3), UCMJ, 10 USC 867(a)(3), including decisions by a Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, 10 USC 862, may be appealed by the filing of a petition for grant of review by an appellant or by counsel on behalf of an appellant substantially in the form provided in Rule 20(a) or (b).
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(2) Cases under Article 67(a)(2). Cases under Article 67(a)(2), UCMJ, 10 USC 867(a)(2), including decisions by a Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, 10 USC 862, which are forwarded by a Judge Advocate General by a certificate for review must be substantially in the form provided in Rule 22(a). (3) Cases under Article 67(a)(1). Cases under Article 67(a)(1), UCMJ, 10 USC 867(a)(1), will be forwarded by a Judge Advocate General by the filing of the record with the Court, together with the form prescribed by Rule 23(a). (4) Cases under Rule 4(b)(2). Decisions by a Court of Criminal Appeals on petitions for extraordinary relief may be appealed by filing a writ appeal petition in accordance with Rules 27(b), and 28. (b) In addition, the Court may, in its discretion, entertain petitions for extraordinary relief including, but not limited to, writs of mandamus, writs of prohibition, writs of habeas corpus, and writs of error coram nobis. See Rules 4(b)(1), 27(a) and 28. 1983 Rules Advisory Committee Comment This rule deals with matter contained in Rule 15 of the 1977 Rules. Rule 18(a) lists the kinds of appeals which will be entertained by the Court. These include cases in which the accused or his counsel file a petition for grant of review under Article 67(a)(3), UCMJ; cases forwarded by a Judge Advocate General by a certificate for review under Article 67(a)(2), UCMJ; cases requiring review by the Court under Article 67(a)(1), UCMJ; and appeals from decisions of a Court of Military Review on petitions for extraordinary relief as provided by new Rule 4(b)(2). Cases arising under Article 67(a)(1) (mandatory review) are required to be accompanied by an assignment of errors presented by appellate counsel.
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Rule 18(b) provides for cases seeking exercise of the Courts original jurisdiction to grant extraordinary relief. 1998 Rules Advisory Committee Comment [See 1998 Rules Advisory Committee Comment to Rule 27.] Discussion Contrary to the Rules Advisory Committees 1983 comment, the Court lacks original jurisdiction. Clinton v. Goldsmith, 526 U.S. 529, 537 & n.10 (1999). A new petition for grant of review is not required when the record of a case is returned to the Court in accordance with an order directing that it be returned following a remand. See United States v. Gregorio, 32 M.J. 401, 402 n.2 (1991), citing United States v. Acosta, 31 M.J. 460 (1990) (mem.). The denial of a petition for grant of review is of no precedential value and should not be cited, except as a matter of appellate history, or relied upon as authority. United States v. Mahan, 24 C.M.A. 109, 1 M.J. 303, 307 n.9 (1976) (emphasis in original); see Eugene R. Fidell, The Specification of Appellate Issues by the United States Court of Military Appeals, 31 JAG J. 99, 103 n.26 (1980); cf. Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 919 (1950) (opinion of Frankfurter, J., respecting the denial of the petition for a writ of certiorari); Singleton v. Commr of Internal Revenue, 439 U.S. 940 (1978) (opinion of Stevens, J., respecting the denial of the petition for writ of certiorari). [T]he fact of a grant of review does not constitute authority either for or against the issue granted . . . . United States v. Gardner, 27 C.M.R. 941, 944 (A.F.B.R. 1958); see also United States v. Mabra, 35 C.M.R. 823, 825 (A.F.B.R.), petition denied, 15 C.M.A. 683, 35 C.M.R. 478 (1965). The suggestion in Dees v. United States Commandant, 744 F. Supp. 1044, 1046 (D. Kans. 1990), that denial serves sub silentio as affirmation of the lower courts decisions is therefore mistaken. For the meaning of a denial of review by the Court of Appeals for the Armed Forces in the context of subsequent Federal habeas see Dwight H. Sullivan, The Last Line of Defense: Federal Habeas Review of Military Death Penalty Cases, 144 MIL. L. REV. 1, 21 n.101 (1994) (collecting cases). A consecutive petition for review of a case in which review has previously been denied will be dismissed. United States v. Wittman, 33 M.J. 183 (1991) (mem.) (10-year interval between petitions). In United States v. Gallegos, 57 M.J. 113 (2002) (mem.), the petition recited that Im just trying to get my discharge upgraded. The Court directed the appointment of counsel and ordered the appellant to advise the Court
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whether he wished to petition for review, or, if not, that he wishes to withdraw the petition. Eventually the petition was dismissed. United States v. Gallegos, 57 M.J. 454 (2002) (mem.). Where a Court of Criminal Appeals has denied a petition for extraordinary relief before sentencing, review should ordinarily be sought by writ appeal petition under Rule 18(a)(4) rather than by instituting a new original action for an extraordinary writ in the Court of Appeals for the Armed Forces. Ellis v. Jacob, 26 M.J. 90, 91 n.2 (1988); see, e.g., United States v. Kesterson, 43 M.J. 124 (1995) (mem.) (construing motion for writ of error coram nobis as writ appeal petition out of time); Crites v. Commanding Officer, 30 M.J. 113 (1990) (mem.). If a petition for grant of review is filed following action by a Court of Criminal Appeals on a petition for extraordinary relief, the Court of Appeals will treat the petition for grant of review as a writ appeal petition, and docket it as such. E.g., Vanover v. Clark, 27 M.J. 453 (1988) (mem.); Unger v. Ziemniak, 27 M.J. 449 (1988) (mem.); Smithee v. United States, 25 M.J. 433 (1987) (mem.). Where the adjudged sentence includes neither confinement nor a punitive discharge and Article 69 remedies have not been exhausted, a writ appeal petition will be denied. Lynch v. Thorsen, 32 M.J. 311 (1991) (mem.).
OF THE
Five of the commoner types of extraordinary writs are described in DEPT ARMY PAM. 27-173, LEGAL SERVICES, TRIAL PROCEDURE 36-1b (1992), but the rule does not so limit the types of writ the Court may grant. For example, in U.S. Navy-Marine Corps Court of Military Review v. Carlucci, 26 M.J. 328 (1988), the Court, having previously entered a temporary restraining order, 27 M.J. 11, 12 (1988) (mem.), issued a protective order. 26 M.J. at 342. In Saunders v. U.S. Army Court of Military Review, 25 M.J. 234 (1987) (mem.), the Court denied a petition for a writ of procedendo ad judicium seeking to compel the Army Court to proceed to adjudicate a matter. See also Forney v. United States, 60 M.J. 425 (2004) (mem.); cf. Higdon v. Bailey, 5 M.J. 951 (1976) (mem.) (dismissing writ petition seeking relief from C.M.R. delay); Maust v. Carne, 5 M.J. 1099 (1976) (mem.) (denying writ petition seeking order that C.M.R. reconsider case and decide remaining substantive issues). Other cases have involved requests for stays, e.g., Goldsmith v. Clinton, 48 M.J. 45 (1997) (mem.) (proceeding to drop from rolls); United States v. King, 53 M.J. 219 (2000) (mem.) (Art. 32 investigation); Willenbring v. Neurauter, 48 M.J. 29 (1997) (mem.) (court-martial); ABC, Inc. v. Powell, 47 M.J. 77 (1997) (mem.) (Art. 32 investigation); McKinney v. Jarvis, 47 M.J. 78 (1997) (mem.) (same); Sands v. Commander, Naval Air Reserve Force, 44 M.J. 193 (1996) (mem.); Samples v. Vest, 38 M.J. 482 (1993); Gard v. Cook, 33 M.J. 484 (1991) (mem.) (Art. 32 investigation); Murphy v. Garrett, 30 M.J. 51 (1990) (mem.) (order to active duty), extended, 30 M.J. 109 (1990) (mem.), stay granted pending petition for writ of certiorari, 30 M.J. 114 (1990) (mem.), and extended, 30 M.J. 115 (1990) (mem.), stay denied, No. A89-562 (U.S. Feb. 9, 1990) (Brennan, J.); Woodrick v. Divich, 24 M.J. 147 (1987) (mem.); temporary restraining orders,
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McKinney v. Jarvis, 48 M.J. 15 (1997) (mem.) (denying request for T.R.O. as moot), and injunctions, MacDonald v. Hodson, 19 C.M.A. 582, 42 C.M.R. 184 (1970); habeas corpus, Moore v. Akins, 30 M.J. 249 (1990) (2-1 decision); Gragg v. United States, 10 M.J. 286 (1981) (mem.) (2-1 decision); Levy v. Resor, 17 C.M.A. 135, 37 C.M.R. 399 (1967); mandamus, Kreutzer v. United States, 60 M.J. 453 (2005) (mem.) (4-1 decision) (ordering transfer from death row); Goddard v. Navy-Marine Corps Court of Criminal Appeals, 52 M.J. 436 (1999) (mem.); ABC, Inc. v. Powell, 47 M.J. 80 (1997) (mem.); Cooke v. Orser, 12 M.J. 335 (1982); United States v. Caprio, 12 M.J. 30 (1982); United States v. Redding, 11 M.J. 100 (1981); prohibition, CBS Broadcasting Inc. v. U.S. Navy-Marine Corps Court of Criminal Appeals, 67 M.J. 6 (C.A.A.F. 2009); Murray v. Haldeman, 16 M.J. 74 (1983); Fleiner v. Koch, 19 C.M.A. 630 (1969) (mem.); certiorari, Ansari v. Judges of U.S. Navy-Marine Corps Court of Military Review, 16 M.J. 303 (1983) (mem.); United States v. Board of Review Nos. 2, 1, 4, 17 C.M.A. 150, 37 C.M.R. 414 (1967); error coram nobis, Alexander v. United States, 38 M.J. 309 (1993) (mem.); Bellino v. United States, 36 M.J. 38, 79 (1992) (mem.); Martin v. U.S. Air Force Court of Military Review, 22 M.J. 13 (1986) (mem.); and error coram vobis. Thornton v. Bruton, 18 M.J. 412 (1984) (mem.). Labels are not critical. In Spriggs v. United States, 39 M.J. 429 (1994) (mem.), the Court entered an Order Pendente Lite that had the same effect as a writ of habeas corpus, although it did not resolve the entire controversy. The standards for granting stays should be basically the same as the four which are applied in the federal courts. UCMJ art. 36(a), 10 U.S.C. 836(a) (2006). Thus, irreparable harm is required. Murphy v. Garrett, supra. The other three factors would be (1) whether the applicant has made a strong showing that he is likely to succeed on the merits, (2) whether issuance of the stay will substantially injure the other parties interested in the proceeding, and (3) where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776 (1987). The Court has taken affirmative action . . . to prevent the exercise of court-martial jurisdiction, when the action was considered necessary to prevent a waste of the time and energy of the military tribunals involved throughout the trial and appellate stages when it was abundantly clear that any verdict of guilty returned by the court-martial would be overturned. Cunningham v. Gilevich, 36 M.J. 94, 95 n.* (1992) (3-2 decision) (collecting cases), quoting Chenoweth v. Van Arsdall, 22 C.M.A. 183, 188, 46 C.M.R. 183, 188 (1973). Rule 28(a) calls upon the petitioner to identify the type of writ sought, but the particular writ applied for is not critical, and petitioners often frame their requests in the alternative. HOMER E. MOYER, JUSTICE AND THE MILITARY 2-832, at 645 (1972). The Courts decisions suggest that the judges look to the underlying substance rather than the labeling in any event. E.g., United States v. Payne, 51 M.J. 305 (1999) (mem.) (construing pro se documents and correspondence as petition for reconsideration); Yarn v. United States, 51 M.J. 141 (1998) (mem.) (construing request for reconsideration as petition for extraordinary relief); Sands v. Champagne, 46 M.J. 201 (1996) (mem.) (redesignating
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case as writ appeal petition); United States v. Kesterson, 43 M.J. 124 (1995) (mem.) (motion for writ of error coram nobis accepted and docketed as writ appeal petition); Crites v. Commanding Officer, 30 M.J. 113 (1990) (mem.) (petition for habeas corpus construed as writ appeal petition); United States v. Garcia, 18 C.M.A. 5 n.1, 39 C.M.R. 5 n.1 (1968) (petition for coram nobis or habeas corpus; [i]n substance, however, it amounts to a petition for reconsideration); Murphy v. Judges of United States Army Court of Military Review, 34 M.J. 310, 312 (1992) (per curiam) (petition for extraordinary relief treated as motion for clarification); Charles v. Gregory, 38 M.J. 309 (1993) (notice of appeal construed as writ-appeal petition for review); United States v. Walker, 34 M.J. 317 (1992) (per curiam) (petition for extraordinary relief construed as writ-appeal petition), citing Ellis v. Jacob, 26 M.J. 90, 91 n.2 (1988); Gosa v. United States, 19 C.M.A. 327, 41 C.M.R. 327 (1970) (motion to vacate findings and sentence treated as petition for reconsideration), noted on collateral review, Gosa v. Mayden, 413 U.S. 665, 670 (1973); cf. United States v. Ramsey, 28 M.J. 370, 373 n.6 (1989) (no difference whether the action of the United States is characterized as a government appeal under Article 62(a) or as an extraordinary writ); United States v. Zrike, 67 M.J. 37 (2008) (mem.) (motion to dismiss petition for grant of review construed as motion to withdraw petition for grant of review); United States v. Nickey, 67 M.J. 38 (2008) (mem.) (same); United States v. Dossey, 67 M.J. 43 (2008) (mem.). In Loving v. United States, 62 M.J. 235 (2005), however, the Court declined to construe a coram nobis petition as a petition for a writ of habeas corpus, apparently because the petitioner may not have squarely focused on the potential impact of having sought habeas on subsequent efforts to obtain habeas relief in the Article III courts. Id. at 259-60. Coram nobis is inappropriate if the petitioner is in custody and habeas is available to present the issues to the Court. Id. at 255-57. The Court has no filing fees. Goodman v. Secretary of the Navy, 21 C.M.A. 242, 45 C.M.R. 16 (1972) (mem.) (declining to act on unnecessary motion to perfect appeal in forma pauperis); see also Robinson O. Everett, Foreword, C.M.A. GUIDE vii (1978) (no appeal bond required). Rule 19. TIME LIMITS (a) Petition for grant of review/supplement/ answer/reply. (1) A petition for grant of review shall be filed no later than 60 days from the earlier of: (A) the date on which the appellant is notified of the decision of the Court of Criminal Appeals; or
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(B) the date on which a copy of the decision of the Court of Criminal Appeals, after being served on appellate counsel of record for the appellant (if any), is deposited in the United States mails for delivery by firstclass certified mail to the appellant at an address provided by the appellant or, if no such address has been provided by the appellant, at the latest address listed for the appellant in his official service record. Under circumstances where certified mail is not available, registered mail may be used. See Article 67(b), UCMJ, 10 USC 867(b). (2) A certificate of notification shall be placed in the appellants record of trial setting forth the manner and date that the appellant was notified of the decision of the Court of Criminal Appeals or the date that a copy of such decision was mailed to the appellant after service of a copy of such decision on appellate defense counsel of record. (3) For purposes of this rule, a petition for grant of review will be deemed to have been filed on the date when the petition has been mailed or delivered by an appellant or by counsel on behalf of an appellant directly to the Court. (4) Any petition for grant of review received from an appellant or counsel on behalf of an appellant shall, upon receipt, be accepted and docketed by the Clerk. If it appears that such petition is not in accord with Article 67, UCMJ, 10 USC 867, or with the Courts Rules, the United States may move to dismiss such petition. (5)(A) In all cases where the petition is filed by counsel, a supplement to the petition establishing good cause in accordance with Rule 21 shall be filed contemporaneously with the petition. A motion for leave to file the supplement separately from the petition will be considered under Rule 30. If
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granted, the supplement shall be filed within 20 days of the order. Any further motion for enlargement of time to file the supplement, while disfavored, will be granted for good cause shown. An appellees answer to the supplement to the petition, except for cases on appeal by the United States under Article 62, UCMJ, 10 USC 862 (2000), may be filed no later than 20 days after the filing of the supplement. See Rule 21(e). A reply may be filed by the appellant no later than 5 days after the filing of the appellees answer. An appellees answer to the supplement in a case under appeal by the United States under Article 62, UCMJ, may be filed no later than 10 days after the filing of the supplement; an appellant may file a reply no later than 5 days after the filing of appellees answer. (B) In all cases where the petition is filed by the appellant, a supplement to the petition shall be filed by counsel no later than 20 days after the issuance by the Clerk of a notice of docketing of the petition. See Rule 10(c). An appellees answer to the supplement to the petition and an appellants reply may be filed in accordance with the time limits contained in Rule 19(a)(5)(A). (C) Grostefon Issues. Issues raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), if not raised earlier, may be presented to the Court by motion filed pursuant to Rule 30(a) no later than 30 days following the filing of the supplement to the petition. (6) The Court shall act promptly on a petition for grant of review. See Article 67(b), UCMJ, 10 USC 867(b) (1994). (7) Granted petitions. (A) Article 62, UCMJ, appeals. Where a petition has been granted in a case involving a decision by a Court of Criminal Appeals on appeal by the United States under Article
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62, UCMJ, 10 USC 862, no further pleadings will be filed and the Court will, whenever practicable, give priority to such cases. (B) Other appeals. Where a petition has been granted in all other appeal cases and briefs have been ordered, an appellants brief shall be filed in accordance with Rule 24 no later than 30 days after the date of the order granting the petition. An appellees answer shall be filed no later than 30 days after the filing of an appellants brief. A reply may be filed by the appellant no later than 10 days after the filing of the appellees answer. (b) Certificate for review/brief/answer/reply. (1) Article 62, UCMJ, cases. In cases involving a decision by a Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, 10 USC 862, a certificate for review, together with a supporting brief in accordance with Rule 24 on behalf of the appellant, shall be filed with the Court by the Judge Advocate General no later than 30 days after the date of the decision of the Court of Criminal Appeals. See Rules 22 and 34(a). An appellees answer shall be filed no later than 10 days after the filing of such certificate for review and supporting brief. A reply may be filed by the appellant no later than 5 days after the filing of the appellees answer. (2) Extraordinary relief cases. In cases involving a decision by a Court of Criminal Appeals on application for extraordinary relief filed therein, a certificate for review, together with a supporting brief in accordance with Rule 24 on behalf of the appellant, shall be filed with the Court by the Judge Advocate General no later than 30 days after the date of the decision of the Court of Criminal Appeals. See Rules 22 and 34(a). An appellees answer shall be filed no
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later than 10 days after the filing of such certificate for review and supporting brief. A reply may be filed by the appellant no later than 5 days after the filing of the appellees answer. (3) Other cases. In all other cases involving a decision by a Court of Criminal Appeals, a certificate for review filed by the Judge Advocate General shall be filed either (a) no later than 30 days after the date of the decision of the Court of Criminal Appeals, see Rules 22 and 34(a), or (b) no later than 30 days after a petition for grant of review is granted. In cases that involve both granted and certified issues, the Clerk may establish a consolidated briefing schedule for all issues. In cases that involve only certified issue(s), an appellants brief shall be filed in accordance with Rule 24 no later than 30 days after the issuance by the Clerk of a notice of docketing of the certificate for review. An appellees answer shall be filed no later than 30 days after the filing of an appellants brief. A reply may be filed by the appellant no later than 10 days after the filing of the appellees answer. (c) Mandatory review case. The record in a mandatory review case shall be filed with the Court by the Judge Advocate General, together with the form prescribed by Rule 23(a), upon the expiration of the time for filing a petition for reconsideration of the decision of the Court of Criminal Appeals or, in the event of the filing of such petition, upon the final disposition thereof. A brief setting forth assigned errors shall be filed by the appellant in accordance with Rule 24 no later than 60 days after the issuance by the Clerk of a notice of docketing of the case. An appellees answer shall be filed no later than 60 days after the filing of the appellants brief. A reply may be filed by the appellant no later than 20 days after the filing of the appellees answer. (d) Petition for extraordinary relief. A petition for extraordinary relief under Rule 4(b)(1) shall
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be filed as soon as possible but, in any event, no later than 20 days after the petitioner learns of the action complained of. However, a petition for a writ of habeas corpus or writ of error coram nobis may be filed at any time. See Rules 27(a) and 28. The Court will, whenever practicable, give priority to such cases. (e) Writ appeal petition. A writ appeal petition under Rule 4(b)(2) for review of a decision by a Court of Criminal Appeals acting on a petition for extraordinary relief shall be filed no later than 20 days after the date the decision of the Court of Criminal Appeals is served on the appellant or appellants counsel. An appellees answer shall be filed no later than 10 days after the filing of the writ appeal petition. A reply may be filed by the appellant no later than 5 days after the filing of the appellees answer. See Rules 27(b) and 28. The Court will, whenever practicable, give priority to such cases. (f) Petition for new trial. When a petition for new trial has been filed with the Court in a case pending before the Court, a brief in support thereof, unless expressly incorporated in the petition, shall be filed no later than 30 days after the issuance by the Clerk of a notice of the filing of the petition. An appellees answer shall be filed no later than 30 days after the filing of an appellants brief. A reply may be filed no later than 10 days after the filing of the appellees answer. See Rule 29. (g) Timely Motion for Reconsideration Before the Court of Criminal Appeals. If an appeal is filed in this Court before the expiration of time to file a motion for reconsideration in a Court of Criminal Appeals, this Court, upon the prompt filing of a motion to dismiss by a party stating that a timely motion for reconsideration is pending in a Court of Criminal Appeals, may dismiss the appeal without prejudice and remand the case to the Court of Criminal Appeals for resolution of the motion for reconsideration. Following a decision by the Court of Criminal Appeals on the motion for reconsideration, review may be sought in this
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Court under Article 67, Uniform Code of Military Justice. 1983 Rules Advisory Committee Comment This rule addresses matters covered in Rule 16 of the 1977 Rules. Rule 19(a). Petition for Grant of Review. This Rule requires that a petition for grant of review be filed no later than 60 days after the appellant has been notified of the final decision of the Court of Military Review or no later than 60 days after a copy of the Court of Military Review decision, having previously been served on appellate defense counsel, is deposited in the United States mails for delivery by first class certified mail to the accused at an address which the accused has provided or, if he has failed to furnish such, at the latest address listed in his official military record. These provisions conform with the 1981 Code amendment prescribing new time limits for petitions to the Court. . . Rule 19(a)(5)(B). A Supplement to Petition establishing good cause in accordance with Rule 21 must be filed not later than 30 days after the filing of a petition for grant of review. This provision increases the existing 20-day filing period to 30 days for filing a supplement to petition without any accompanying brief under a new supplement to petition procedure established in new Rule 21. An answer to the supplement to petition may be filed not later than 30 days after the supplement to petition is filed. See Rule 21(c)(2). This answer time has also been enlarged from the present 20-day answer period. The appellant may thereafter file a reply to this answer within 10 days after the filing of the answer. This 10-day reply period is the same as that allowed under the present rule. Rule 19(a)(6). . . . This provision . . . implements the requirements of Public Law 97-81, 95 Stat. 1085, requiring the Court to act upon petitions promptly in accordance with the rules of Court. Rule 19(a)(7)(B) extends the filing periods for a final brief and answer from 20 to 30 days.
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Rule 19(b)(3). Certificates for Review. Certificates for review [in Article 67(a)(2) cases] are required to be filed within 30 days of the date of the decision of the Court of Military Review and the appellant must file a brief not later than 30 days (increased from 20 days) after the filing of the certificate for review. This provision for filing of appellants brief clarifies the former provisions of Rule 16(b) which do not identify the party required to file the initial brief. Within 30 days (increased from 20 days) after filing of appellants brief the appellee must file an answer. A reply to this answer may be filed within 10 days thereafter. Rule 19(c). Mandatory Review Cases. In cases where review by the Court is mandated by Article 67(a)(1), UCMJ, an assignment of errors and accompanying brief are required to be filed not later than 60 days after service of the Court of Military Review decision on the appellant or his counsel. The appellee shall file an answer no later than 60 days (increased from 20 days) after the filing of the assignment of errors and brief. A reply may be filed by the appellant not later than 20 days after the filing of the answer. Rule 19(d). Petition for Extraordinary Relief. Petitions for extraordinary relief seeking exercise of the Courts original jurisdiction in such matters should be filed as soon as possible but no later than 20 days after [the petitioner learns of] the action complained of. An escape clause is provided which permits the filing of a petition for a writ of habeas corpus at any time. Rule 19(e). Writ Appeal Petitions. Writ appeal petition is a new term adapted to describe pleadings for appealing decisions by a Court of Military Review acting on a petition for extraordinary relief. See Rule 27(b) and related commentary. This term is intended to apply to pleadings seeking exercise of the Courts discretionary power to review final decisions of a Court of Military Review on petition by the appellant. Writ appeal petitions are required to be filed with a supporting brief no later than 20 days after the date the Court of Military Review decision has been served on the appellant or his counsel. An answer may be filed by the appellee not later than 10 days after filing of the appellants brief. The appellant thereafter has 5 days in which to file a reply. Rule 19(d) and 19(e) establish provisions to deal sepa-
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rately with petitions for extraordinary relief in the exercise of the Courts original jurisdiction and the processing of discretionary appeals from action on a petition for extraordinary relief in a Court of Military Review. Rule 19(f). Petition for New Trial. This is a new provision which has been adopted from former Rule 22(a) relating to the filing of briefs where a petition for new trial is received in a case pending before the Court. A supporting brief, unless expressly incorporated in the petition, shall be filed no later than 30 days after issuance of the Clerks notice of the filing of the petition. The appellee may file an answer no later than 30 days after the filing of the appellants brief. A reply may be filed no later than 10 days after the filing of the answer. 1995 Rules Advisory Committee Comment The Courts Rules Advisory Committee, with one member dissenting, recommends that Rule 19(d) be changed to eliminate the apparent 20-day time limit for petitioning the Court for a writ of error coram nobis. Noting that only petitions for writ of habeas corpus are expressly exempted from the 20-day time limit established by Rule 19(d), the Committee suggests the failure also to exempt petitions for writ of error coram nobis may be due to an oversight by the drafters of Rule 19. The All Writs Act, 28 U.S.C. 1651(a), which is the basis for the Courts extraordinary relief jurisdiction, establishes no fixed time limit for applications for writs of error coram nobis. See United States v. Morgan, 346 U.S. 502 (1954) (writ available after sentence already served when the conviction was sought to be used to enhance sentence on a later conviction). When Rule 19 was drafted, the Court of Appeals for the Armed Forces had not previously suggested any time limit for the filing of a petition for writ of error coram nobis. See Del Prado, 23 C.M.A. 132, 48 C.M.R. 748, 749 (1974) (citing United States v. Morgan, supra). Nor has the Court strictly enforced its present rule. Cf. Garrett v. Lowe, 39 M.J. 293, 295 & n.2 (1994). Coincidentally, the joint Courts of Criminal Appeals (formerly
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Courts of Military Review) Rules do not impose a time limit on any petitions for extraordinary relief, including those for writs of error coram nobis. Joint Ct.Crim.App.R. 20, 22 M.J. at CXXXV (1985) [now 44 M.J. at LXXII (1996)]; see Tillman v. United States, 32 M.J. 962 (A.C.M.R. 1991); but see A.F.C.M.R.R. 5-2b (1992) (time limits same as Ct. Crim. App. R. 19(d)). Accordingly, the Rules Advisory Committee recommends that the last sentence of Rule 19(d) be amended to read as follows: However, a petition for writ of habeas corpus or writ of error coram nobis may be filed at any time. 60 FED. REG. 4895-96 (1995). 1998 Rules Advisory Committee Comment [See 1998 Rules Advisory Committee Comment to Rule 27.] 2006 Rules Advisory Committee Comment [Rule 19(a)(5)(C)] There is no time limit for when Grostefon issues may be raised before the Court. This lack of a deadline can create procedural problems when they are raised well after the supplement to the petition is filed. This rule would set a limit requiring such issues to be presented no later than thirty days after the supplement to the petition is filed. In light of this deadline, appellate defense counsel should advise their clients of this rule, and the need to raise Grostefon issues in a timely fashion. The new rule will integrate the litigation of Grostefon issues into the normal decisional process. In appropriate situations, such as where the appellant claims that counsel did not advise of the obligation to raise these issues as provided herein, the appellant may move to suspend the operation of this rule pursuant to Rule 33 for good cause shown. Rule 19(b)(3)] This amendment allows the Judge Advocate General to certify issues within 30 days of the granting of a petition for grant of review. This opportunity to certify issues is believed to be appropriate because in some cases, the Judge Advocate General may be reluctant to certify issues and require review by this Court unless the Court will otherwise be reviewing the case at the appellants request. Once review is granted,
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the Judge Advocate General should be able to certify additional issues and thereby maximize the Courts opportunity to provide complete review. It is not anticipated that this rule will produce a significant increase in the number of certified issues presented. Also, the rule provides a mechanism whereby cases involving certified and granted issues will be consolidated for purposes of briefing. This eliminates the need for separate briefing cycles for both sets of issues. [Rule 19(g)] The rules of the Courts of Criminal Appeals allow a party thirty days to seek reconsideration. That time may be cut short if the other party files a petition in this Court which cuts off jurisdiction to entertain a petition for reconsideration in the lower court. Rule 19(b), CCA Rules of Practice and Procedure, 44 M.J. LXXI. If that party wishes to resurrect the right to file, it would necessitate filing a motion with this Court seeking a remand to allow the lower court to consider the motion for reconsideration. This mechanism is cumbersome and rarely if ever used. Petitions for reconsideration give the deciding court the ability to correct errors without the need for review by a higher court. They are a desirable correcting mechanism that should not be foreclosed by the filing of an appeal in a higher court while the time for a petition for reconsideration is running. This amendment will provide an expeditious means of restoring the right to seek reconsideration in this situation. 2009 Rules Advisory Committee Comment The changes will accelerate the case disposition process. The accelerated time limits are accompanied with a provision to obtain extensions for good cause shown to address concerns that there may be circumstances where additional time may be justified. 74 FED. REG. 22,898 (2009). Discussion The end of the time period is marked by submission of the petition, not by actual receipt by the Court. By noting that the accused may petition . . . within 60 days, Article 67(b) indicates that submission of a petition by an appellant within that period is sufficient, regardless [of] whether the petition is
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received by [the] Court within the 60-day period. United States v. Byrd, 53 M.J. 35, 37 (2000). From the Courts earliest days it had been the rule that the time limits prescribed in Rule 19 may be enlarged on a proper showing. Id.; see Rule 33. This was in keeping with the view that Congress did not wish to have an accuseds effort to appeal thwarted by the omissions, indifference, or ineptitude of the military counsel provided to him. United States v. Ortiz, 24 M.J. 323, 324 (1987); see also United States v. Morgan, 30 M.J. 39 (1990) (mem.) (accepting pleadings delivered after business hours at end of extension of time, so as not to penalize accused); United States v. Engle, 28 M.J. 299, 300 (1989) (per curiam) (disapproving appellate defense counsels effort to dismiss untimely petitions for review; held, petitions dismissed sua sponte). The standard set by Rule 33 is the ill-defined (and probably indefinable) one of good cause. Nonetheless, [a] missed filing date may keep your client out of court. Richard A. Morgan, Appellate Practice Rules, 27 A.F. L. REV. 229, 231 & n.5 (1987), citing United States v. Mathews, 22 M.J. 101 (1986) (mem.). At the same time, the Court made it clear that an issue of timeliness ought to be raised in a timely fashion. Thus, in United States v. Reyoso, 65 M.J. 249 (2007) (mem.), it denied a government motion to dismiss a petition for untimeliness where the motion was not filed until more than two months after the government received notice of the petition and more than a month after the appellant submitted his supplement. The government, in other words, cannot sleep on its rights. The possibility of misunderstanding of the rules, United States v. Morris, 16 M.J. 101 (1983) (mem.), confusion in light of recent legislation, United States v. Landers, 14 M.J. 150 (1982) (mem.), delay due to actions of military or civilian confinement facility personnel, United States v. Bruins, 12 M.J. 330 (1981) (mem.) (military prison regulations); United States v. Turner, 12 M.J. 87 (1981) (mem.) (nonfeasance by trusty in civilian jail), or doubts about whether adequate instructions were furnished to an accused concerning the filing of a petition for grant of review, e.g., United States v. Mills, 12 M.J. 225 (1982) (2-1 decision); United States v. Sanchez, 12 M.J. 89 (1981) (mem.); United States v. Hazel, 8 M.J. 248 n.2 (1980) (mem.), were resolved in the accuseds favor. See also, e.g., United States v. Kitchen, 58 M.J. 211 (2003) (mem.) (denying motion for leave to file petition for grant of review out of time as moot as the petition . . . was timely filed (client having been sent two different promulgation packages)); United States v. Habon, 59 M.J. 161 (2003) (mem.) (motion for leave dismissed as moot where record contained no evidence of service of C.C.A. decision on appellant or appellate defense counsel); United States v. Brinton, 59 M.J. 15 (2003) (mem.) (granting motion to file petition for grant of review out of time); United States v. Armann, 55 M.J. 471 (2001) (mem.) (same); United States v. Knabe, 14 M.J. 105 (1982) (mem.) (same); cf. United States v. Pringle, 48 M.J. 31 (1997) (mem.) (requiring appellant to file affidavit setting forth circumstances of untimely petition); United States v. Lay, 53 M.J. 7 (1999) (mem.) (requiring submission of evidence regarding when and how appellant received
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decision and manifested desire to appeal); see also United States v. Ward, 51 M.J. 308 (1999) (mem.) (seeking clarification of appellants intentions where petition was unsigned); United States v. Smith, 48 M.J. 394 (1997) (mem.) (seeking clarification of appellants intentions where petition stated [t]his is an appeal to upgrade my discharge); United States v. Hurt, 43 M.J. 149 (1995) (mem.) (seeking clarification of appellants intentions where petition was unsigned); United States v. Wallace, 46 M.J. 306 (1997) (mem.) (seeking clarification of appellants intention where petition recited I dont wish to petition the Court to review my conviction. I would like to have final action taken as soon as possible). Similarly, in United States v. Gregorio, 32 M.J. 401 (1991), the Court considered a case in the absence of a petition for grant of review because its prior order had apparently inadvertently failed to specify that the record was to be returned to it automatically following decision on a remand. See Discussion of Rule 21; United States v. Wynn, 26 M.J. 405 (1988). Gregorios case had been the subject of a successful petition for review at an earlier stage, and the Court commented in a footnote that it will treat the record as properly being here because any mistake in this regard was not made by appellant. It added that when the record is to be returned to th[e] Court without a petition for grant of review, [the Court] shall so indicate. See United States v. Acosta, 31 MJ 460 (CMA 1990) [(mem.)]. 32 M.J. at 402 n.2. In United States v. Streit, 12 M.J. 110 (1981) (mem.) (2-1 decision), a late petition was allowed where the petitioner took steps within the appeal period to employ a civilian attorney with military experience. The attorney was on vacation until, at best, the day the petition was due. For other illustrations of good cause for late petitions see C.M.A. GUIDE 58 n.201 (1978 & Supp. 1980) (collecting cases). The Daily Journal entry typically does not reveal why the Court has permitted an untimely petition to be filed, e.g., United States v. Terrel, 64 M.J. 389 (2007) (mem.); United States v. Reid, 52 M.J. 418 (1999) (mem.), or has refused to do so. E.g., United States v. Fleming, 65 M.J. 425 (2007) (mem.); United States v. Hansen, 60 M.J. 273 (2004) (mem.). It would have been helpful to the bar if such rulings had been explained, however briefly. In United States v. Byrd, supra, the Court planted the seeds for what promised to be a reexamination of settled law that the statutory deadline for seeking review could be enlarged on a proper showing. The case was odd, the lower court having taken it upon itself to hold that the Court of Appeals had lacked jurisdiction at an earlier phase. On certificate for review, the Court of Appeals noted that the Court of Criminal Appeals did not address the import of our precedents for taking jurisdiction when there is good cause for an untimely filing. In light of our holding in the present case that the Government has failed to establish that the petition was untimely, we decline to revisit those precedents until a case squarely presenting an untimely petition is before us. 53 M.J. at 41. In light of this language, it would have been surprising if the government did not pursue the issue in other cases where the record was stronger.
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Cf. United States v. Douglas, 56 M.J. 168, 169 n.1 (2001) (refusing to revisit Byrd issue because record was similarly flawed). For a while the storm seemed to have blown over. The Court continued to grant leave to file late petitions without dissent. E.g., United States v. Fabra, 59 M.J. 164 (2003) (mem.); United States v. Ramirez, 56 M.J. 406 (2002) (mem.); United States v. Armann, 55 M.J. 471 (2001) (mem.); United States v. Tate, 54 M.J. 429 (2001) (mem.); see also United States v. Valigura, 53 M.J. 438 (2000) (mem.) (cross-petition). It remained loath to penalize the accused for confusion or potential miscues on the part of revolving-door appellate defense counsel. See United States v. Tamez, 63 M.J. 201, 203 & n.2 (2006) (mem.) (cautioning counsel against relying solely on a special power of attorney without also consulting with the client on the decision to submit the case on its merits). Finally, in 2009, the Court reversed course under the impetus of Supreme Court precedent, Bowles v. Russell, 551 U.S. 205 (2007), and ruled that the period for filing a petition for grant of review is jurisdictional. United States v. Rodriguez, 67 M.J. 110 (2009) (3-2 decision). Although, as Chief Judge Effron (joined by Judge Baker) has noted, the Judge Advocates General have power, through certification under UCMJ art. 67(a)(2), 10 U.S.C. 867(a)(2) (2006), to rescue accuseds from the neglect of their counsel, United States v. Angell, 68 M.J. 79, 80 (2009) (per curiam) (Effron, C.J., and Baker, J., concurring in the result), it remains to be seen whether any of them will exercise that power (and what they, the appellate division directors and and the Court will do in light of the professional responsibility concerns the Court repeatedly indicated were raised by the spate of untimely petitions). Moreover, the Court will have to decide whether it must amend Rule 19(a)(3), as Judge Baker suggested in Rodriguez. 67 M.J. at 120 n.2 (Baker, J., dissenting). The only good news for accuseds in this saga is that the Court does police the services uneven efforts to effect constructive service of C.C.A. decisions. E.g., United States v. Esposito, 68 M.J. 78,85 (2009) (mem.); United States v. Schweitzer, 68 M.J. __ (2009) (mem.); United States v. Sanga, 68 M.J. 78 (2009) (mem.). Where many petitioners raise an issue previously rejected by the Court, and that issue is pending before the Supreme Court, the Court of Appeals has in the past denied review with the announcement that it will entertain out-oftime requests for reconsideration or other appropriate relief. United States v. Lewis, 39 M.J. 280 (1994) (per curiam); United States v. Schneider, 36 M.J. 364 (1993); United States v. Rice, 36 M.J. 264 (1993) (per curiam); United States v. Selby, 42 M.J. 87 n.2 (1995) (mem.). In effect, the Court in these situations was announcing in advance that an intervening Supreme Court decision would be deemed good cause for a late filing. See also United States v. Tanksley, 54 M.J. 169, 171 (2000) (granting post-argument motion to reconsider previous partial denial of petition for grant of review, and granting review); cf. United States v. Banker, 60 M.J. 216, 225 & n.6 (2004) (granting leave to file supplemental issue, in light of intervening C.A.A.F. decision, while case was under review). This approach is no longer workable in light of Rodriguez.
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Most of the cases relaxing filing deadlines have involved petitions for grant of review, e.g., United States v. Dowd, 30 M.J. 104 (1990) (mem.), but other types of proceedings have also been filed out of time. E.g., Silcio v. United States, 24 M.J. 48 (1987) (mem.) (extraordinary relief); United States v. Heisler, 59 M.J. 54 (2003) (mem.) (writ appeal). The deadline for filing certificates for review is judge-made, and thus is not governed by Rodriguez. The deadline was criticized as an unfounded curtailment of the right of the Judge Advocates General to obtain review in the Court. See Robert M. Mummey, Judicial Limitations Upon a Statutory Right: The Power of the Judge Advocate General to Certify Under Article 67(b)(2), 12 MIL. L. REV. 193 (1961); BENJAMIN FELD, A MANUAL OF COURTS-MARTIAL PRACTICE AND APPEAL 141 (1957). The controversy soon abated, and there seems little reason to fear a recurrence. In United States v. Lowe, 11 C.M.A. 515, 29 C.M.R. 331, 333 (1960), the Court allowed the late filing of a certificate for review on a showing of excusable neglect. See also United States v. Smith, 43 M.J. 156 (1995) (mem.); United States v. Cowles, 14 M.J. 105 (1982) (mem.); but see United States v. Velasco, 14 M.J. 169 (1982) (mem.); United States v. Young, 14 M.J. 169 (1982) (mem.). A motion for leave to file out of time should be filed when a certificate is late. E.g., United States v. Wheeler, 66 M.J. 486, 494 (2008) (mem.); United States v. Wild, 65 M.J. 446 (2007) (mem.), removed from docket upon filing of notice of intent not to file certificate, 65 M.J. 482 (2007) (mem.); United States v. Smith, 46 M.J. 122 (1996) (mem.); United States v. Smith, 43 M.J. 156 (1995) (mem.). Such leave has been denied very infrequently. See C.M.A. GUIDE 27 n.107 (1978 & Supp. 1980); United States v. Dean, 34 M.J. 20 (1991) (mem.). Alternatively, appellate defense counsel may move to dismiss a certificate that is believed to be untimely. E.g., United States v. Perlman, 46 M.J. 163 (1996) (mem.). Where the timeliness of a certificate is subject to question, the Court may issue a show cause order, as in petition cases. United States v. Richardson, 7 M.J. 215 (1979) (mem.). The Court is probably less inclined to forgive tardiness on the part of the government than on the part of the defense. E.g., United States v. Depew, 36 M.J. 27 (1992) (mem.) (dismissing untimely government petition for reconsideration); cf. United States v. Krause, 44 M.J. 276 (1996) (mem.) (directing submission forthwith of brief in support of certificate). If delay is encountered in the decision on whether to file a certificate for review, the prudent course is to move for an extension of time, e.g., Wild, supra; United States v. Quintanilla, 61 M.J. 29 (2005) (mem.), although doing so does not guarantee the desired result. See, e.g., United States v. Swartz, 44 M.J. 948 (1971) (mem.) (denying request for extension of time to consider certification and noting lack of adequate explanation for delay to justify waiver of rulebased time limit); United States v. Jackman, 44 M.J. 948 (1971) (mem.) (same). If the decision is later made not to file a certificate for review, a notice of intent not to file may be submitted, United States v. Burk, 67 M.J. 399 (2009) (mem.); Wild, supra, or the the motion for an extension can be withdrawn. E.g., United
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States v. Smith, 46 M.J. 160 (1996) (mem.); United States v. Reynolds, 46 M.J. 160 (1996) (mem.). Article 73 prescribes a two-year time limit for new trial petitions. The Courts power to allow untimely filings had been treated as extending to petitions for new trial if the petitioner was incompetent during the statutory period. United States v. Van Tassel, 38 M.J. 91, 93 (1993); United States v. Washington, 6 C.M.A. 114, 19 C.M.R. 240 (1955). This is no longer defensible in light of Rodriguez and Bowles. In another provision of the Code, Congress made express allowance for tardy filings if the accused establishes good cause for failure to file within the statutory two-year period. See UCMJ art. 69(b), 10 U.S.C. 869(b) (2006). The Court has made no secret of its exasperation over late filings in the context of supplements to petitions for grant of review, e.g., United States v. Harris, 33 M.J. 174 (1991) (mem.) (denying motion to extend time to file supplement to petition until counsel explains why it cannot be filed by original due date), even going so far as to admonish counsel that sanctions such as suspension or disbarment may be imposed in cases of flagrant or repeated disregard of the rules. United States v. Ortiz, 24 M.J. 323 (1987); see also United States v. Gaston, 46 M.J. 201 (1996) (mem.) (motion for leave to file untimely supplement denied without prejudice to submission in compliance with Ortiz); United States v. Smith, 30 M.J. 28 (1990) (mem.); United States v. Lovato, 38 M.J. 311 (1993) (mem.) (motion for leave to file untimely supplement denied without prejudice to submission in compliance with Ortiz); United States v. Browder, 38 M.J. 311 (1993) (mem.) (same). This problem has become both severe and chronic in cases coming from the Navy Court, leading the Court of Appeals to demand additional briefing, Rodriguez-Rivera v. United States, 60 M.J. 431 (2004) (mem.), impose virtual deadlines, Toohey v. United States, 60 M.J. 100 (2004) (per curiam) (inviting counsel to notify Court of Appeals and seek further relief if Navy Court does not decide case within 90 days), and threaten sanctions. United States v. Brunson, 59 M.J. 41, 43 (2003). It is exacerbated by the indefensibly slow pace of post-trial processing in the naval justice system. E.g., United States v. Oestmann, 61 M.J. 103 (2005); United States v. Jones, 61 M.J. 80 (2005). In United States v. Sumpter, 22 M.J. 33, 34 (1986), the Court ruled that a late petition for grant of review must show good cause for the lateness and state errorsthe latter being a requirement not otherwise imposed. See Discussion of Rules 21 and 33; e.g., United States v. Smith, 52 M.J. 345 (1999) (mem.) (denying leave to file petition for grant of review out of time); United States v. Jones, 50 M.J. 212 (1998) (mem.) (leave to file untimely petition for grant of review denied where supplement assigned no issue); United States v. Bradshaw, 24 M.J. 201 & n.* (1987) (mem.) (pro forma petition and no adequate explanation for tardy supplement; held, leave to file denied and petition denied); see also United States v. Dinaso, 36 M.J. 385 (1992) (mem.) (leave denied without prejudice to right to file motion for extension of time with specific statement of rea-
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sons for untimely submission of supplement); United States v. Foreman, 22 M.J. 7 (1986) (mem.) (Cox, J., concurring in the result); United States v. Aho, 23 M.J. 171 (1986) (mem.) (2-1 decision); United States v. Randolph, 23 M.J. 171 (1986) (mem.) (2-1 decision). Counsel seeking to file an untimely petition for grant of review should therefore file a supplement at the same time. E.g., United States v. Bethea, 60 M.J. 372, 396 (2004) (mem.); United States v. Moreno, 60 M.J. 345 (2004) (mem.). The Court added Rule 19(a)(5)(C) in 2006 to permit the submission of additional issues under United States v. Grostefon, 12 M.J. 431 (1982), no later than 30 days after submission of the supplement to the petition, presumably in response to the disruptive effect of late-filed issues on the appellate process. In comments on the proposed change, NIMJ cautioned without success that paternalism in this respect seems less and less justified as experience under the Code grows, standards for recruitment of personnel and training of judge advocates continues to rise, and military justice ever more closely resembles civilian criminal justice. Letter from Eugene R. Fidell, NIMJ, to Fed. Dkt. Mgt. Sys. Off., Nov. 16, 2006, at 2. This is an invitation to appellate chaos and likely to add to the time required to complete appellate review. Id. Despite the 2006 change and the Courts traditional interest in ensuring that the accused have had a real opportunity to participate in the process, it has denied leave to file Grostefon issues submitted beyond the new deadline. E.g., United States v. Reinelt, 65 M.J. 277 (2007) (mem.). The Court has granted leave to file a supplemental assignment of error out of time where a similar issue has been granted in another case. United States v. Brewer, 61 M.J. 51 (2005) (mem.). In two situations, filing prior to the formal deadline is preferred. These include petitions for extraordinary relief, Rule 19(d); e.g., Myers v. United States, 5 M.J. 960 (1976) (mem.), and petitions for grant of review with respect to Article 62 appeals. In the latter category, the Court has stated that, in determining whether good cause has been demonstrated, it will consider whether an appellant proceeded expeditiously in filing his petition. United States v. Tucker, 20 M.J. 52, 54 (1986); see also Discussion of Rule 30. A petition filed before the triggering event, however, will be dismissed without prejudice, as premature. E.g., United States v. Blevins, 61 M.J. 334 (2005) (mem.); United States v. Sistrunk, 59 M.J. 161 (2003) (mem.); United States v. Bishop, 59 M.J. 160 (2003) (mem.); United States v. Powell, 46 M.J. 383 (1997) (mem.); United States v. Bowles, 39 M.J. 33 (1993) (mem.) (granting appellants motion to dismiss without prejudice to filing timely petition thereafter); United States v. Smith, 10 M.J. 84 (1980) (mem.); United States v. Harville, 9 M.J. 64 (1980) (mem.); United States v. Brinson, 5 M.J. 250 (1978) (mem.) (no final C.M.R. decision on findings and sentence); United States v. Seberg, 5 M.J. 250 (1978) (mem.) (C.M.R. ordered limited evidentiary hearing; held, petition was premature); see also United States v. Hinkel, 15 M.J. 67 (1982) (mem.) (new
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trial petition prematurely referred to C.M.A.); compare United States v. Boudreaux, 23 C.M.A. 728 (1975) (mem.), with Boudreaux v. U.S. Navy-Marine Corps Court of Military Review, 28 M.J. 181, 182 n.2 (1989); see United States v. Boudreaux, 35 M.J. 291, 296 (1992) (Sullivan, C.J., concurring in the result); cf. Stewart v. Stevens, 4 M.J. 176 (1977) (mem.) (denying petition for extraordinary relief pending action on appeal from captains mast). Where the Court of Criminal Appeals has not completed its review under Article 66(c), the Court of Appeals may grant review and remand. United States v. Wheeler, 67 M.J. 399 (2009) (mem.) (citing Boudreaux, 28 M.J. 181 (C.M.A. 1989)). If the service court has remanded for further proceedings, the better practice is to await completion of those proceedings. Then, if need be, the entire caseincluding issues believed not to have been correctly resolved by the first service court decision can be the subject of a petition for grant of review from the second service court decision. Timeliness will be calculated from the second service court decision rather than the first. A premature petition for grant of review may also be withdrawn, United States v. Diaz, 41 M.J. 132 (1994) (mem.), and counsel should not hesitate to do so when the prematureness is recognized, so as not to unduly clutter up the Courts docket. Even so, however, the matter should certainly be discussed with the client beforehand. Cf. United States v. Engle, 28 M.J. 299, 300 (1989) (per curiam). In United States v. Graham, 21 M.J. 97 n.* (1985) (mem.), the Court asserted that it had discretion to entertain a premature petition, but decided not to do so in the circumstances presented. Cf. Webb v. United States, 1 M.J. 40, 41 & n.8 (1975) (mem.) (denying extraordinary relief where C.M.R. reversed with provision for rehearings; noting nonfinal nature of decisions below). In United States v. Henderson, 34 M.J. 174, 175 n.2 (1992), it granted review despite the fact that the rehearing on sentence [ordered by the Court of Military Review] ha[d] not yet been conducted, while noting that the government had not challenged the filing of the petition as premature. Cf. United States v. Vendivel, 40 M.J. 28 (1994) (mem.) (certified question answered despite C.M.R.s order for DuBay hearing). On one level, it seems questionable that acceptance of such a petition should be a function simply of the governments discretion in deciding whether to object. But, more practically, the decisions reference to the lack of objection by the government makes sense because a rehearing on sentence would have been wasteful if Hendersons contention on the merits (that Article 125 does not reach private, noncommercial consensual fellatio) had ultimately been accepted. The governments preferences (like the appellants) are appropriately taken into account from that perspective, although the decision ultimately remains the Courts to make. A timely petition for reconsideration at the Court of Criminal Appeals tolls the period in which to seek review by the Court of Appeals for the Armed Forces. United States v. Smith, 5 C.M.A. 460, 18 C.M.R. 84 (1955); United States v. Sparks, 5 C.M.A. 453, 18 C.M.R. 77 (1955). A petition for grant of re-
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view filed while a motion for reconsideration is pending below is therefore premature and a nullity. Stone v. U.S. Army Court of Military Review, 21 M.J. 152, 153 (1985) (mem.), quoting United States v. Weeden, 3 C.M.A. 404, 407, 12 C.M.R. 160, 163 (1953). A petition for grant of review filed before expiration of the time for seeking reconsideration by the Court of Criminal Appeals is equally premature and will be dismissed without prejudice. R.C.M. 1203(d)(1)-(2); e.g., United States v. Powell, 46 M.J. 383 (1997) (mem.). Where a timely petition for reconsideration is filed with the Court of Military Review after a petition for grant of review is filed . . . , it would be necessary to remand the record to the Court of Military Review in order for it to act further in the case. Remand is appropriate only where the petition for grant of review is properly filed in [the] Court [of Appeals for the Armed Forces]. A premature petition is not properly filed. Stone, supra, at 153 n.*; see also United States v. Hernandez, 33 M.J. 145 (1991) (appellate review may be waived within 10 days after service of convening authoritys action on accused or defense counsel); cf. United States v. Avery, 34 M.J. 160 (1991) (mem.) (waiver of right to appellate representation executed on day of trial held, ineffective); United States v. Smith, 34 M.J. 247, 249 (1992) (invalidating waiver of right to appellate representation 58 days before convening authoritys action). The Court seems to have ironed out the reconsiderationrelated procedural issues in the 2006 amendment to Rule 19(g). According to Guert Gansevoort, a pseudonymous blogger on the CAAFlog blog presided over by Col. Dwight H. Sullivan, that particular change appeared to be a response to United States v. Buber, 62 M.J. 227 (2005) (mem.). The same blogger suggested that the 2006 change to Rule 19(b)(3) can be traced to Judge Erdmanns dissent in United States v. Parker, 62 M.J. 459, 466 (2005). Submission of a new trial petition also affects the deadline for seeking review by the Court of Appeals. If a new trial is sought after service of the decision of the Court of Criminal Appeals but before a petition for grant of review has been filed or the expiration of the period for filing such a petition, the appeal period will run from the date the accused is served with notice of the ruling on the new trial petition. United States v. Owen, 6 C.M.A. 466, 20 C.M.R. 182 (1955); see generally Rule 29. The right to appellate review cannot be waived prior to action by the convening authority. United States v. Hernandez, 33 M.J. 127, 129-31 (1991); UCMJ art. 61(a), 10 U.S.C. 861(a) (2006); R.C.M. 1107(f). The Court was originally required by Congress to act on petitions for grant of review within 30 days. Even though the rule was substantially relaxed by counting the 30 days from the last pleading filed, rather than from receipt of the petition, it still proved difficult to meet the deadline and the Court frequently had to enter orders enlarging the period. E.g., In re Extension of Time Under Rule 19(a)(4), 16 M.J. 131 (1983). In 1981, Congress amended Article 67 to require merely that the Court act promptly on petitions in accordance with its rules. UCMJ art. 67(c), 10 U.S.C. 867(c) (1988), as amended by Pub. L. No. 9751, 5, 95 Stat. 1088 (1981). (The provision now appears in Article 67(b). 10 U.S.C. 867(b) (2006).) According to a useful brochure issued by the Court in
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June 1995, [b]y its own internal policy, the Court usually acts on the petition within 30 days after the pleadings have been filed. In 1998, the Court modified Rule 19(d)-(e) to provide that, whenever practicable, it would give priority to petitions for extraordinary writs and writ appeal petitions. In re Change of Rules, 48 M.J. CIII (1998). The 1981 legislation referred to above extended the period for seeking review from 30 to 60 days and included provision for constructive service of Court of Criminal Appeals decisions in order to prevent cases from falling into prolonged appellate limbo because an accused is an unauthorized absentee or, if on appellate leave, has left no forwarding address. See H.R. REP. NO. 97-306, at 7-8 (1981); S. REP. NO. 97-146, at 34-36 (1981); cf. United States v. Davis, 28 M.J. 456 (1989) (mem.) (appellant served in civilian prison eight years after C.M.R. decision; government directed to explain circumstances of service and efforts to locate appellant); see also United States v. Campbell, 29 M.J. 464 (1989) (mem.) (2-1 decision) (remanding for explanation of 12-year delay). Appellate government counsel who move to dismiss for untimeliness should allege that the requirements for service of the decision of the Court of Criminal Appeals have been met. United States v. Sedgwick, 50 M.J. 137 (1998) (mem.) (denying motion to dismiss without prejudice). Where the inadequacy of the governments effort to serve the lower courts decision is clear, a remand for further explanation serves no purpose. United States v. White, 30 M.J. 120, 121 (1990) (mem.) (Cox, J., dissenting). If there is no evidence in the record reflecting service of the Court of Criminal Appeals decision on the appellant or appellate defense counsel, the petition will be entertained and a motion for leave to file out of time will be dismissed as moot. United States v. Habon, supra. Absent evidence of service on the appellant or existence of a special power of attorney, the Court will not presume that appellate defense counsel has been authorized to file a petition for review. Rather, it will dismiss without prejudice a motion to file a petition filed in those circumstances. Sistrunk, supra; United States v. Bishop, supra. Before the 1981 legislation, the rule had been that the appeal period ran from the time the accused had actual knowledge of the decision of the Court of Military Review. United States v. Larneard, 3 M.J. 76 (1977). In United States v. Myers, 28 M.J. 191 (1989), the Court ultimately authorized a constructive service method for pre-1981 cases in which efforts to effect personal service had proven ineffective. Myers permits the appeal period to run only after notice is (1) published in a newspaper of general circulation in the appellants home-ofrecord community, (2) placed in the service record, and (3) published in the Federal Register. The Judge Advocate General of the Navy thereupon instituted a Promulgation Project, United States v. Boudreaux, 33 M.J. 649, 651 (N.M.C.M.R. 1991), affd, 35 M.J. 291 (1991), publishing a notice in the Federal Register with respect to 144 old cases in which the Court of Military Reviews decision had not been otherwise served. 55 FED. REG. 7769 (1990); see generally United States v. Hock, 31 M.J. 334 (1990) (per curiam); United States v. Wyatt,
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33 M.J. 495 (1991) (mem.) (requiring government to explain delay and allowing appellant to show harm resulting from delay). The 60-day appeal period prescribed in Article 67(b)(2) contemplates actual deposit of the Court of Criminal Appeals decision in the United States mail. Placing it in military channels for delivery to the Postal Service to be dispatched by certified mail does not comply with the statute. United States v. Ratleff, 32 M.J. 494 (1991) (mem.). A certificate of personal service should be included in the record as a matter of course. United States v. Howlett, 34 M.J. 165 (1991) (mem.). Failure to include the Rule 19(a)(2) certificate showing the date on which the appellant was notified of his right to petition for a grant of review makes it harder, although not necessarily impossible, for the government to show that a petition was untimely. United States v. Byrd, supra, 53 M.J. at 40. While it has a petition for grant of review under consideration, the Court may direct the submission of an additional supplement and answer in light of an intervening decision. United States v. Clayton, 67 M.J. 70 (2009) (mem.). Even if the Court specifies an issue for supplemental briefing at the petition stage, it may nonetheless deny review in the end. E.g., United States v. Hall, 65 M.J. 325 (2007) (mem.). Where a petition for grant of review has been granted, plenary review is not as automatic as Rule 19(a)(7)(B) might be thought to imply. The Court may, for example, dispense with plenary briefs, see Rule 25; e.g., United States v. Martinez, 65 M.J. 431 (2007) (mem.) (summarily affirming [o]n further consideration of the tranted issues); United States v. White, 65 M.J. 337 (2007) (mem.) (same); United States v. Lawrence, 65 M.J. 302 (2007) (mem.); United States v. Seawell, 65 M.J. 302 (2007) (mem.) (4-1 decision); United States v. Kozek, 41 M.J. 73 (1994) (mem.) (oral argument on granted petition in Article 62 case, heard without additional briefs); United States v. Lipscomb, No. 68201/AF (C.M.A. Aug. 20, 1992) (mem.); see also United States v. Nguyen, 56 M.J. 252 (2001) (mem.) (granting writ-appeal petition without plenary briefs or oral argument); United States v. Robinson, 53 M.J. 56 (2000) (mem.) (granting writappeal petition and ordering that no briefs be filed), or oral argument, Discussion of Rule 40; e.g., United States v. Brozzo, 60 M.J. 310 (2004) (mem.) (rescinding Hearing Notice); United States v. Henderson, 44 M.J. 232 (1996); United States v. Stinson, 36 M.J. 20 (1992) (mem.), or it may require briefs on fewer than all of the issues. E.g., United States v. Haney, 61 M.J. 334 (2005) (mem.), vacated, 62 M.J. 361 (2005) (mem.) (case deemed submitted). Where a number of cases raise the same issue, briefing may be dispensed with in trailer cases. E.g., United States v. Walsworth, 61 M.J. 464 (2005) (mem.) (does U.S. Senators service on C.C.A. violate separation of powers?). Upon reflection, the Court may also dismiss, e.g., United States v. Snyder, 46 M.J. 202 (1996) (mem.) (noting lack of factual basis for granted issue); United States v. Anderson, 41 M.J. 75 (1994) (mem.), vacate the grant as impro-
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vident, e.g., United States v. Brown, 67 M.J. 176 (2008) (mem.) (vacating, after oral argument, order that specified issue); United States v. Hendon, 4 M.J. 256 (1978) (mem.), 6 M.J. 171, 172 (1979); United States v. Vick, 4 M.J. 235, 236 (1978) (mem.); United States v. Kennedy, 13 M.J. 465 (1982) (mem.); United States v. Chesney, 21 C.M.A. 358, 45 C.M.R. 132, 133 (1972); cf. United States v. Delacruz, 50 M.J. 221 (1998) (mem.) (3-1 decision) (dismissing specified issue as improvidently granted, and affirming), vacated, 50 M.J. 334 (1998) (mem.); United States v. Wilson, 46 M.J. 297 (1997) (mem.) (grant vacated without explanation); United States v. Counterman, 42 M.J. 81 (1995) (mem.) (grant vacated without explanation; petition denied); see also Eugene R. Fidell & Linda Greenhouse, A Roving Commission: Specified Issues and the Function of the United States Court of Military Appeals, 122 MIL. L. REV. 117, 129 & n.63 (1988) (collecting cases), or, affirm summarily, e.g., United States v. Nichols, 60 M.J. 47 (2004) (mem.), if, for example, it concludes that the error was harmless. United States v. Brocks, 58 M.J. 11 (2002) (mem.). Obviously, even if it grants, receives plenary briefs and hears oral argument on an issue, its resolution of the case may make it unnecessary to decide that issue. E.g., United States v. Lundy, 60 M.J. 52, 53-54 n.1 (2004); United States v. Baker, 32 M.J. 290 n.1 (1991). Even after plenary briefing and oral argument, the Court may conclude that all a case merits is a short Daily Journal order. E.g., United States v. Stargell, 60 M.J. 452 (2005) (mem.); United States v. Hawkins, 57 M.J. 164 (2002) (mem.); United States v. Alvarado-Albelo, 53 M.J. 237 (2000) (mem.). Or it can direct the parties to further develop some issue that arose at the hearing. E.g., United States v. Hawkins, 56 M.J. 312 (2002) (mem.) (4-1 decision) (directing parties to jointly file stipulation and further briefs). Denial of a petition for review precludes Supreme Court review on writ of certiorari. UCMJ art. 67a(a), 10 U.S.C. 867a(a) (2006); 28 U.S.C. 1259(3) (2006); Davis v. Marsh, 876 F.2d 1446, 1448 n.3 (9th Cir. 1989); Matias v. United States, 923 F.2d 821, 824 (Fed. Cir. 1990); e.g., In re Ayers, 469 U.S. 1104 (1985) (mem.), denying mandamus to review United States v. Ayers, 19 M.J. 7 (1984) (mem.). The time has come to reconsider allowing the Court of Appeals, in Judge Coxs phrase, United States v. Johnston, 53 M.J. 420 (2000) (mem.) (Cox, J., dissenting), to hold the door to the United States Supreme Court. It is difficult to frame a reasoned basis for distinguishing between appellants before the Court of Appeals for the Armed Forces and those whose cases are heard in the geographical circuits. But see United States v. Rorie, 58 M.J. 399, 405 (2003) (3-2 decision) (rejecting analogy to courts of appeals for purposes of abatement practice). Once a petition for grant of review is granted, the entire case (including issues that were not granted) should be viewed as eligible for review on petition for certiorari. Eugene R. Fidell, Review of Decisions of the United States Court of Appeals for the Armed Forces by the Supreme Court of the United States, in EVOLVING MILITARY JUSTICE 149, 150-51 (Eugene R. Fidell & Dwight H. Sullivan eds. 2002); James P. Pottorff, The Court of Military Appeals and the Military Justice Act of 1983: An Incremental Step Towards Article III Status?, 149 ARMY LAW., May 1985, at 1, 14 & nn.96-100.
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The Supreme Court has not yet expressly decided this question. The Solicitor General for a time suggested that the answer is not clear given the use of the term decisions in Article 67(h)(1) and 28 U.S.C. 1259(3) and Article 67(h)(1)s ban on certiorari to review a refusal by the Court of Appeals for the Armed Forces to grant review, e.g., Brief for the United States in Opposition 5 n.3, Jacobs v. United States, 498 U.S. 1088 (1991) (mem.) (denying certiorari); Brief for the United States in Opposition 3 n.2, Williams v. United States, 506 U.S. 941 (1992) (mem.) (denying certiorari), but more recently has taken the position that [u]nder the terms of [Article 67a(a)], the Court may not review the CAAFs action in refusing to grant review of a claim in a case in which some other issue has been granted. Brief for the United States in Opposition 6, United States v. McKeel, 549 U.S. 1019 (2006) (mem.) (denying certiorari); see generally Letter from Michael R. Dreeben, Deputy Solicitor General, to the author, Oct. 17, 2006. This means the issue will linger until the Office of the Solicitor General alters its view, the Supreme Court reveals what it makes of the issue, or Congress changes the statute. It is to be hoped that legislation removing the current perverse and indefensible limitation will be enacted soon so that military personnelwho lay their lives on the line for the Nationwill have the same right of access to the highest court in the land as do fellow citizens in civilian life, resident aliens, nonresident aliens (such as tourists, exchange students, and illegal immigrants) who are convicted in the federal district courts or state courts, and even alien unprivileged belligerents who are convicted by military commissions. See generally Eugene R. Fidell, Appellate Review of Military Commissions, Oct. 8, 2009, http://balkin.blogspot.com/ 2009/10/in-comingweeks-there-will-be-no.html. Until legislation is enacted, for most serious courts-martial, the Court of Appeals for the Armed Forces is the end of the line unless habeas corpus, error coram nobis or Tucker Act relief is sought. In Fiscal Year 1994, for example, the Court granted review in 531 cases and denied review in 1000. FY94 CODE COMM. ANN. REP. 15 (1996). Since there were only 42 certiorari petitions during the same period, id. at 1 n., it is obvious that appellate defense counsel are exercising judgment in deciding, with their clients, whether to seek certiorari. Unlike cases in the other federal courts of appeals, Congress has not provided for review on petition for certiorari prior to judgment by the Court of Appeals for the Armed Forces. Compare 28 U.S.C. 1254(a)(1) (2006) with id. 1259. Had Congress included the Court in 1254, certiorari prior to judgment could presumably be sought as soon as it granted a petition for grant of review. See generally The Military Justice Act of 1982: Hearings on S. 2521 Before the Subcomm. on Manpower and Personnel of the Senate Comm. on Armed Services, 97th Cong. 137 (1982) (Everett, C.J., dubitante). This omission is of little moment since grants of certiorari prior to judgment in the Courts of Appeals are exceedingly rare. See generally EUGENE GRESSMAN, KENNETH S. GELLER, STEPHEN M. SHAPIRO, TIMOTHY S. BISHOP & EDWARD A. HARTNETT, SUPREME COURT PRACTICE 4.20, at 284-86 (9th ed. 2007) (collecting cases).
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The government may confess error, e.g., United States v. Williams, 53 M.J. 293, 296 (2000), citing United States v. Hardcastle, 53 M.J. 299 (2000) (Sullivan, J.); United States v. Oquendo, 35 M.J. 24, 25 (1992); see also United States v. Snyder, 67 M.J. 44 (2008) (mem.) (granting motion to concede assignment of error), and a letter can suffice where this is the case. See Rule 21(c)(2). As the Court is not bound by a confession of error, United States v. Anderson, 51 M.J. 447, 448 n.2 (1999) (rejecting government concession); United States v. Savage, 50 M.J. 244, 246 (1999) (Crawford, J., concurring in the result); United States v. Taylor, 47 M.J. 322, 328 (1997) (Crawford, J., dissenting) (collecting cases); Smith v. Vanderbush, 47 M.J. 56, 60 (1997); United States v. Emmons, 31 M.J. 108, 110 (1990); United States v. McNamara, 7 C.M.A. 575, 578, 23 C.M.R. 39, 42 (1957); see Lawrence ex rel. Lawrence v. Chater, 516 U.S. 163, 170-71 (1996) (per curiam), prudence may dictate a more formal submission. Cf. Rule 21(d)-(e). In any event, the confession of error should do more than merely state a conclusion. Where the government confesses error, the Court makes its own examination of the record. E.g., United States v. Gogue, 67 M.J. 169 (2008) (mem.) (adopting parties agreement that appellant was entitled to additional confinement credit); United States v. Owens, 67 M.J. 178 (2008) (mem.) (same); United States v. Holt, 58 M.J. 227, 232 (2003) (accepting well-founded government concession); United States v. Hall, 58 M.J. 90, 91 (2003) (finding concession reasonable and correct); United States v. Oquendo, supra; United States v. Cook, 24 M.J. 407 (1987) (mem.); United States v. Chasteen, 24 M.J. 62 (1987) (mem.); see also United States v. Thompson, 51 M.J. 335 (1999) (mem.) (4-1 decision) (Sullivan, J., dissenting) (arguing that majoritys reliance on government concession was misplaced); see generally Eugene R. Fidell, The Specification of Appellate Issues by the United States Court of Military Appeals, supra, at 118-19. Just as a confession of error does not bind the Court, so too, a motion to dismiss may be denied even where appellate defense counsel offers no resistance. United States v. Haskins, 17 M.J. 64 (1983) (mem.) (Cook, J., dissenting). Such action may be a vestige of the Courts traditional paternalism in ensuring that the right to civilian review is not thwarted. See generally United States v. Johnson, 42 M.J. 443, 447 (1995) (Cox, J., concurring in part and in the result); see also United States v. Engle, 28 M.J. 299 (1989). The writ appeal petition provision was added in 1983. The term is cumbersome, but the underlying concept is not. In essence, the Court has asserted authority to review, on the same discretionary good cause basis as it reviews final Court of Criminal Appeals decisions under Article 67(a)(3), decisions of those courts in cases in which their extraordinary writ powers have been invoked. The addition of this category of cases suggests that the time has come for Congress to overhaul the Courts jurisdiction. One model that could profitably be considered would be to have (1) mandatory review of any capital case, (2) appeal as of right (by notice of appeal) from any final decision of a Court of Criminal Appeals, (3) original jurisdiction to grant extraordinary writs
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as to any case arising under the Code, see Clinton v. Goldsmith, 526 U.S. 529, 537 n.10 (1999) (Court lacks original jurisdiction), and (4) discretionary jurisdiction to entertain certified questions relating to the Code and Manual for Courts-Martial from state and other federal appellate courts. See Discussion of Rule 4. The rule appears to permit, rather than require, the filing of an answer to a supplement to a petition for grant of review. See Rule 19(a)(5)(B); see also Rule 21(c)(1)-(2) (answer required in Art. 62 cases, permitted in other cases). Similarly, replies are not required, Rule 21(c)(1)-(2), and in practice, replies are relatively uncommon in military appeals. In addition to the fact that a reply brief, properly prepared, can be an extraordinarily effective tool of appellate advocacy, see Andrew L. Frey & Roy T. Englert, Jr., How to Write a Good Appellate Brief, 20 LITIGATION NO. 2, at 6, 63 (Winter 1994) (it is the rare case, if any case at all, in which it makes sense to forgo the opportunity to file reply brief), declining to respond to an adversarys argument entails a risk of being found to have conceded the point. See United States v. Alexander, 34 M.J. 121, 124 (1992) (we stop short of considering this defense inactivity a concession). In any event, brevity is essential, and reargument of points previously made is to be avoided at all costs. Needless to say, new arguments should not be injected in a reply as this either disadvantages the other side or forces the preparation of a motion for leave to file a further pleading, thus turning the appellate process into a kind of prolonged legal ping-pong match. The rule makes no provision for cross-petitions, i.e., petitions filed in cases that have been certified by a Judge Advocate General. See Rule 8(e). Such cases are identified in the Daily Journal, e.g., United States v. Remai, 17 M.J. 29 n.* (1983) (mem.), but are afforded no special treatment other than the provision of Rule 40(b)(2) that the accused is deemed the appellant for purposes of oral argument. The deadline for filing a cross-petition is calculated under Rule 19(a)(1), and is not extended by submission of the certificate for review. See also Discussion of Rule 33. As originally written, Rule 19(d) properly exempted habeas petitions from the normal 20-day deadline for extraordinary writ petitions. Petitions for writs of error coram nobis were exempted by the 1995 rule changes (as suggested in earlier editions of this GUIDE), since such writs are traditionally available at any time. In Garrett v. Lowe, 39 M.J. 293, 295 n.2 (1994), where coram nobis was sought more than 10 years after the court-martial and more than six years after the Court had affirmed, Judge Wiss wrote that [w]e are unaware that there are time limits for petitioning for a writ of error coram nobis, citing Rule 19(d) with the tell-tale cf. introductory signal. Applying a time limit to bar a coram nobis petition would violate the All Writs Act because it would not be agreeable to the usages and principles of law, as required by that statute. Cf. Lemoine v. Baker, 36 M.J. 86, 89-91 (1992) (mem.) (Crawford, J., dissenting). The Court will scrutinize threatened agency action to determine whether the 20-day deadline has been triggered; even as to the numerous types
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of writ that are subject to it, the deadline is not jurisdictional. Goldsmith v. Clinton, 48 M.J. 84, 89 n.8 (1998), revd on other grounds, 526 U.S. 529 (1999). Contrary to the Rules Advisory Committees 1983 comment, the Court lacks original jurisdiction. Clinton v. Goldsmith, supra. The 2009 changes will slightly accelerate appellate review. More could have been done. In comments on the Rules Advisory Committees proposal, the National Institute of Military Justice observed: Nothing could be clearer than the need to reduce delay in the disposition of court-martial appeals. From that perspective, NIMJ applauds the proposed changes. However, we would like to suggest a more profound change that would produce even greater savings of time (and effort). We recommend collapsing the petition and plenary stages of the Courts review, so that only a single round of briefing would occur in the ordinary course. Rather than continuing to go through the time-consuming certiorari-style process that has characterized the petition docket for many years, we urge the Court to adopt the practice of the geographical circuits. The petition for grant of review would function in essence as a notice of appeal. Once a petition has been filed, either party could move for summary disposition. If the Court agrees that the case lends itself to summary disposition, there would be no occasion for oral argument or plenary briefing, and the result would be an order that simultaneously grants review (thereby affording the losing party the right to seek certiorari) and disposes of the case. Of course, if the Court lacks jurisdiction (e.g., if the petition is untimely or the case is outside the Courts substantive jurisdiction), review could not be granted and the petition would simply be dismissed. One would assume that the numerous merits cases that continue to clutter the docket would be disposed of summarily. Unless a case were dismissed or otherwise disposed of summarily, the Court would set it down for plenary briefing and oral argument. NIMJ believes that such an approach, which is consistent with the spirit of Article 36(a), UCMJ, would violate no provision of the Code and would generate very substantial savings in case processing time and effort. Given the current fiscal picture with which all parts of the government must grapple, this is a particularly auspicious time to adopt this approach. The proposed approach would also eliminate the current unpredictability as to whether certain cases will lead to a grant (and summary affirmance) simply because they satisfy some internal rule-of-thumb related to the approved sentence.
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Letter from Eugene R. Fidell, Pres., Natl Inst. of Mil. Just., NIMJ Comments on Proposed USCAAF Rule Changes, May 21, 2009, available at http://www.nimj.org/myGrid.aspx?base=News&thisPageno=1&perpage=10&fin d=proposed. The Court did not embrace this approach. The following summarizes the current deadlines applicable to each form of appellate review or original action over which the Court has jurisdiction: Petitions for Grant of Review Triggering event Earlier of (1) date appellant is notified of decision of Court of Criminal Appeals or (2) date a copy is mailed to appellant after appellate defense counsel has been served (Rule 19(a)(1); see also R.C.M. 1203(d)(2)(A)) 60 days (deposit in mail or delivery to Court) (Rule 19(a)(1), (3))
Petition deadline
Notice of docketing is- No time specified (Rules sued by Clerk to Judge 10(c), 20(d)) Advocate General and appellate counsel Supplement to petition Contemporaneously with petition if petition is filed by counsel; otherwise, 20 days after issuance of notice of docketing (Rule 19(a)(5)) No later than 30 days after filing of the petition
Grostefon issues
Optional letter response 10 days after filing of supto supplement plement Appellees answer to 20 days after filing of supsupplement to petition plement (Rules 19(a)(5),
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21(c)(2)) Reply to answer Appellants merits brief 5 days after filing of answer (Rules 19(a)(5), 21(c)(2)) 30 days after order granting petition (Rule 19(a)(7)(B)) 30 days after filing of appellants brief (Rule 19(a)(7)(B)) 5 days after filing of appellees brief (Rule 19(a)(7)(B))
Appellees merits brief
Reply brief
Article 62 Appeals Triggering event Earlier of (1) date appellant is notified of decision of Court of Criminal Appeals or (2) date a copy is mailed to appellant after appellate defense counsel has been served (Rule 19(a)(1)) 60 days (deposit in mail or delivery to Court) (Rule 19(a)(1), (3))
Petition deadline
Notice of docketing is- No time specified (Rules sued by Clerk to Judge 10(c), 20 (d)) Advocate General and appellate counsel Supplement to petition Contemporaneously with petition if petition is filed by counsel; otherwise, 20 days after issuance of notice of docketing (Rule 19(a)(5))
Appellees answer to 10 days after filing of supsupplement to petition plement (Rules 19(a)(5),
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21(c)(1)) Reply to answer Plenary briefs 5 days after filing of answer (Rules 19(a)(5), 21(c)(1)) None (Rule 19(a)(7))
Cases Certified by Judge Advocate General Triggering event Decision of Court of Criminal Appeals or grant of a petition for grant of review 30 days (Rules 19(b), 22(b)) With certificate in Article 62 and extraordinary writ cases; in other cases, 30 days after issuance of notice of docketing (Rules 19(b), 22(b)) 10 days after filing of certificate and supporting brief in Article 62 and extraordinary writ cases; in other cases, 30 days after filing of appellants brief (Rules 19(b), 22(b)) 5 days after filing of answer in Article 62 and extraordinary writ cases; in other cases, 10 days after filing of answer (Rules 19(b), 22(b))
Certificate for review Appellants brief
Answer
Reply
Mandatory Review (Capital) Cases Triggering event Expiration of period for filing motion for reconsideration in Court of Criminal Appeals, see Ct. Crim. App.
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R. 19(a) (30 days after C.C.A. decision is served on appellate defense counsel or accused), or following final decision on such a motion (Rule 19(c)) Notice of docketing is- No time specified (Rules sued to Judge Advocate 19(c), 23(b)) General by Clerk Appellants brief 60 days after issuance of notice of docketing (Rules 19(c), 23(b)) 60 days after filing of appellants brief (Rules 19(c), 23(b)) 20 days after filing of appellees brief (Rules 19(c), 23(b))
Appellees brief
Reply brief
Petitions for Extraordinary Relief (Non-Habeas Corpus or Error Coram Nobis) Triggering event Petition Action complained of As soon as possible and no later than 20 days after petitioner discovers action complained of (Rules 19(d), 27(a)) 10 days after service of order to show cause, unless otherwise ordered (Rule 28(b)(1)) 5 days after filing of answer (Rule 28(c)) 20 days after filing of appellees brief (Rules 19(c),
Answer
Reply Reply brief
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23(b))
Petitions for Writs of Habeas Corpus or Error Coram Nobis Triggering event Petition Answer Action complained of As soon as possible no fixed deadline (Rule 19(d)) 10 days after service of order to show cause, unless otherwise ordered (Rule 28(b)(1)) 5 days after filing of answer (Rule 28(c))
Reply
Writ Appeal Petitions Triggering event Service of decision of Court of Criminal Appeals on appellant or appellants counsel (Rule 19(e)) 20 days (Rule 19(e)) 10 days after filing of petition (Rules 19(e), 28(b)(2)) 5 days after filing of answer (Rules 19(e), 28(c)(2))
Petition Answer
Reply
Petitions for New Trial Triggering event Petition Convening authority proval of sentence ap-
Filed with Judge Advocate General within two years
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(UCMJ art. 73, 10 U.S.C. 873 (2006); R.C.M. 1210(a)) Referral to Court of Ap- No time specified (R.C.M. peals by letter 1210(e)) Notice of filing issued by No time Clerk 29(b)) specified (Rule
Brief in support of peti- 30 days after issuance of tion notice of filing (Rule 29(c)) Answer Reply 30 days after filing of appellants brief (Rule 29(c)) 10 days after filing of appellees brief (Rule 29(c))
Petitions for Reconsideration, Modification or Rehearing Triggering event Petition Answer Reply Date of order, decision or opinion 10 days (Rule 31(a)) 5 days after filing of petition (Rule 31(b)) 5 days after filing of answer (Rule 31(c))
Motions No general deadline; motions made orally during a hearing must be reduced to writing and filed within 3 days after hearing (Rule 30(e)) Answer Reply 5 days after filing of motion (Rule 30(b)) 5 days after filing of answer
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(Rule 30(c)) General Record of trial Filed as soon as possible after docketing (Rule 35). If the record of trial has been lost and cannot be reconstructed relief can be sought by writ of error coram nobis. Ross v. United States, 43 M.J. 770 (N-M. Ct. Crim. App. 1995) For appellate divisions, 10 days after filing of answer of appellee/respondent (Rule 26(b)); for other amici there is no specific deadline but under Rule 26(c), neither the hearing nor the disposition of a case will be delayed pending action on a motion for leave to file an amicus brief or participate in argument or to await filing of an amicus brief 90 days (extendable for an additional 60 days for good cause shown) after the later of (1) decision of Court of Appeals or (2) decision on timely petition for reconsideration (S. Ct. R. 13, 30.2; see UCMJ art. 67a(a), 10 U.S.C. 867a(a) (2006); 28 U.S.C. 1259, 2101(g) (2006); R.C.M. 1205(a))
Amicus curiae briefs
Supreme Court review on petition for certiorari (only in cases other than denials of petitions for either grant of review or extraordinary relief)
Petitions for Grant of Review Rule 20. FORM OF PETITION FOR GRANT OF REVIEW (a) Form to be used by an appellant.
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A petition for grant of review under Rule 18(a)(1) filed personally by an appellant will be substantially in the following form: IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES UNITED STATES, Appellee v. (Full typed name, rank & service of appellant) (Service no. ), Appellant ) ) ) ) ) ) ) ) ) PETITION FOR GRANT OF REVIEW Crim. App. Dkt. No. USCA Dkt. No. [For Court use only]
TO THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES: 1. I hereby petition the Court for review of the decision of the Court of Criminal Appeals [on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 USC 862] [on appeal under Article 66, Uniform Code of Military Justice, 10 USC 866. 2. I understand that, unless I specifically request the contrary, a military lawyer will be designated by the Judge Advocate General to represent me free of charge before the U.S. Court of Appeals for the Armed Forces. SIGNED: DATED: MAIL TO: (Put your signature here) (Put mailing date here) U.S. Court of Appeals for the Armed Forces 450 E Street, N.W. Washington, D.C. 20442 (b) Form to be used by an appellants counsel. A petition for grant of review under Rule 18(a)(1) filed by counsel on behalf of an appellant will be substantially in the following form:
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IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES UNITED STATES, Appellee v. (Full typed name, rank & service of appellant) (Service no. ), Appellant ) ) ) ) ) ) ) ) ) PETITION FOR GRANT OF REVIEW Crim. App. Dkt. No. USCA Dkt. No. [For Court use only]
TO THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES: The undersigned counsel, on behalf of (insert appellants full name here), hereby petitions the United States Court of Appeals for the Armed Forces for a grant of review of the decision of the Court of Criminal Appeals [on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 USC 862] [on appeal under Article 66, Uniform Code of Military Justice, 10 USC 866], pursuant to the provisions of Article 67(a)(3), Uniform Code of Military Justice, 10 USC 867(a)(3). (Signature of counsel) (Typed name of counsel) (Address of counsel) (Telephone no. of counsel) (E-mail address, if any) (Date and manner of filing, see Rules 36 and 39) (c) An appellant or counsel on behalf of an appellant shall file a petition for grant of review in the manner and within the time limits set forth in Rule 19(a). Upon receipt, the Clerk shall stamp the petition indicating the date it was received and, if filed by mail under Rule 36(c), shall retain the envelope showing the postmark thereon. (d) When a petition for grant of review is filed with the Court, the Clerk will cause a copy thereof to be delivered to the Judge Advocate General of the appellants service, to the appellants counsel, if named in the petition, and to govern-
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ment counsel. Upon receipt of a copy of the petition from the Clerk, the Judge Advocate General shall designate counsel to represent the parties unless such parties are already represented by counsel. See Rule 17. (e) Upon issuance by the Clerk under Rule 10(c) of a notice of docketing of a petition for grant of review filed personally by an appellant, counsel for the appellant shall file a supplement to the petition in accordance with the applicable time limit set forth in Rule 19(a)(5)(B), and the provisions of Rule 21. 2001 Rules Advisory Committee Comment The proposed revision to Rule 20(b) will require counsel to include on the petition for grant of review an e-mail address, if any, and information regarding the date and manner of filing. Having counsels e-mail address will aid the Court in contacting counsel should questions arise while the case is pending. Requiring the date and manner of filing will clarify exactly when the petition was filed and whether it was mailed or delivered by hand to the Court. The proposed revision to Rule 20(c) requires the Clerk to stamp the petition with the date it was received and, for petitions filed by mail, to retain the envelope showing the postmark thereon. This change will better enable the Court to record the filing date of the petition in case the timeliness of filing becomes an issue in the case. 2009 Rules Advisory Committee Comment This change is a conforming amendment to bring Rule 20(e) into alignment with the change in Rule 19(a)(5). 74 FED. REG. 22,899 (2009). Discussion The petition [for grant of review] is a simple document, which merely notes that appellant seeks review in [the] Court. There is no requirement to specify issues or otherwise engage in legal analysis. A servicemember who relies on counsel to file the petition may do so with confidence that he or she is
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not asking counsel to undertake a burdensome task that would preclude a timely submission. United States v. Byrd, 53 M.J. 35, 37 (2000). The petition may be filed pro se or by counsel. If it is not signed, the Court may seek clarification as to the appellants intentions. United States v. Ward, 51 M.J. 308 (1999) (mem.); United States v. Hurt, 43 M.J. 149 (1995) (mem.). A petition filed by counsel is effective only if it has been authorized by the client. United States v. Schreck, 9 M.J. 217 (1980) (power of attorney); see also United States v. Smith, 22 C.M.A. 247, 46 C.M.R. 247 (1973), noted in Comment, The Court of Military Appeals: A Survey of Recent Decisions, 63 MIL. L. REV. 115, 133-34 (1974). A court-appointed conservator may also direct the conduct of litigation. Phillips v. Cedarburg, 14 M.J. 304 (1982) (mem.) (semble); but see United States v. Van Tassel, 36 M.J. 376 (1992) (mem.) (refusing to appoint guardian ad litem). The authorization may in any event be oral. United States v. Hodges, 19 M.J. 148 n.** (1984) (mem.), citing United States v. Larneard, 3 M.J. 76 (1977); United States v. Daly, 4 M.J. 145 n.1 (1977) (mem.). The withdrawal of petitions and other submissions is addressed in the Comment to and Discussion of Rule 21. The Court regularly construes correspondence as a petition for extraordinary relief, e.g., Beattie v. United States, 27 M.J. 472, 473 (1988) (mem.); United States v. Avila, 24 M.J. 346 (1987) (mem.); see also Cole v. United States, 14 M.J. 119 (1982) (mem.) (letter construed as petition for reconsideration); Lowery v. United States, 5 M.J. 1086 (1976) (mem.) (construing petition for grant of review as petition for extraordinary relief), although it will not recast an untimely petition for grant of review into a petition for extraordinary relief, in keeping with the familiar principle that extraordinary relief is not a substitute for a timely appeal. E.g., United States v. Williams, 4 M.J. 353 (1978) (mem.); but cf. United States v. Adames, 22 M.J. 234 (1986) (mem.) (treating untimely petition for reconsideration as petition for extraordinary relief; held, relief denied on the merits); Quintanilla v. United States, 64 M.J. 88 (2006) (mem.) (recharacterizing mandamus petition as writ appeal petition). Nor will it construe a notice of appeal nunc pro tunc (in effect, an untimely petition for grant of review) as a petition for extraordinary relief where the document fails to articulate the basis for a contention that constitutional rights were violated. Goodman v. Secretary of the Navy, 21 C.M.A. 242, 243, 45 C.M.R. 16 (1972) (mem.). The Court has also been lenient as regards the form in which a new trial is requested. HOMER E. MOYER, JUSTICE AND THE MILITARY 2-860, at 661 (1972), citing United States v. Ferguson, 5 C.M.A. 68, 17 C.M.R. 68 (1954) (supplemental assignment of error to board of review treated as new trial petition). One of the few pleading requirements the Court has seriously policed is the identification of the date a petition for grant of review has been mailed to the Court. E.g., United States v. Farrell, 9 M.J. 38 (1983) (mem.); but see United States v. Haskins, 17 M.J. 64 (1983) (mem.) (Cook, J., dissenting).
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It has been correctly suggested that the term this Honorable Court should be sparingly used, for it tends to nauseate even those judges most susceptible to flattery. BRYAN A. GARNER, A DICTIONARY OF MODERN LEGAL USAGE 407 (2d ed. 1995); but see, e.g., United States v. Ruppel, 48 M.J. 411 (1997) (mem.); United States v. Baker, 48 M.J. 346 (1997) (mem.); United States v. Velasco, 14 M.J. 114 (1982) (mem.). The Courts rules no longer require this archaic salutation. But see Ct.Crim.App.R. Attachments 1-2. The Court regularly receives correspondence from pro se litigants. To deal with such inquiries, the Clerks office has developed an Information Questionnaire to Supplement Mail Inquiries, USCA Form 201 (rev. June 2005). The form is reproduced in the Appendix to this GUIDE. A rule change that was issued on February 27, 1996 updated docket number formats to refer to the renamed Courts of Criminal Appeals here and elsewhere in the Rules. The order was not published in the Daily Journal but was reproduced in a since-superseded version of the rulebook published by West Group (formerly West Publishing Co.). Social security numbers are required in the caption of a petition for grant of review because of the design of the Courts Case Tracking System software, but are not required on any other submissions to the Court. Rule 21. Supplement to Petition for Grant of Review (a) Review on petition for grant of review requires a showing of good cause. Good cause must be shown by the appellant in the supplement to the petition, which shall state with particularity the error(s) claimed to be materially prejudicial to the substantial rights of the appellant. See Article 59(a), UCMJ, 10 USC 859(a). (b) The supplement to the petition shall be filed in accordance with the applicable time limit set forth in Rule 19(a)(5)(A) or (B), shall include an Appendix required by Rule 24(a), shall conform to the provisions of Rule 24(b), 35A, and 37, and shall contain: (1) A statement of the errors assigned for review by the Court, expressed concisely in relation to the circumstances of the case, without unnecessary detail. The assigned errors should be short and should not be argumentative or repetitive.
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(2) A statement of statutory jurisdiction, including: (A) the statutory basis of the Court of Criminal Appeals jurisdiction; (B) the statutory basis upon which this Courts jurisdiction is invoked; (3) A statement of the case setting forth a concise chronology, including all relevant dates. The chronology shall specify: (A) the results of the trial; (B) the actions of the intermediate reviewing authorities and the Court of Criminal Appeals; (C) the disposition of a petition for reconsideration or rehearing, if filed; and (D) any other pertinent information regarding the proceedings, including, if set forth in the record, the date when service upon the accused of the decision of the Court of Criminal Appeals was effected; (4) A statement of facts of the case material to the errors assigned, including specific page references to each relevant portion of the record of trial; (5) A direct and concise argument showing why there is good cause to grant the petition, demonstrating with particularity why the errors assigned are materially prejudicial to the substantial rights of the appellant. Where applicable, the supplement to the petition shall also indicate whether the court below has: (A) decided a question of law which has not been, but should be, settled by this Court; (B) decided a question of law in a way in conflict with applicable decisions of (i) this Court, (ii) the Supreme Court of the United States, (iii) another Court of Criminal Appeals, or (iv) another panel of the same Court of Criminal Appeals;
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(C) adopted a rule of law materially different from that generally recognized in the trial of criminal cases in the United States district courts; (D) decided the validity of a provision of the Uniform Code of Military Justice or other Act of Congress, the Manual for Courts-Martial, a service regulation, a rule of court or a custom of the service the validity of which was directly drawn into question in that court; (E) decided the case (i) en banc or (ii) by divided vote; (F) so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by a courtmartial or other person acting under the authority of the Uniform Code of Military Justice, as to call for an exercise of this Courts power of supervision; or (G) taken inadequate corrective action after remand by the Court subsequent to grant of an earlier petition in the same case and that appellant wishes to seek review from the Supreme Court of the United States; and (6) A certificate of filing and service in accordance with Rule 39(g). (c)(1) Answer/reply in Article 62, UCMJ, appeals. An appellees answer to the supplement to the petition for grant of review in an Article 62, UCMJ, 10 USC 862, case shall be filed no later than 10 days after the filing of such supplement. A reply may be filed by the appellant no later than 5 days after the filing of the appellees answer. (2) Answer/reply in other appeals. An appellees answer to the supplement to the petition for grant of review in all other appeal cases may be filed no later than 20 days after the filing of such supplement, see Rule 21(e); as a discretionary alternative in the event a formal answer is deemed unwarranted, appellee may file with the Clerk of
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the Court a short letter, within 10 days after the filing of the appellants supplement to the petition under Rule 21, setting forth one of the following alternative positions: (i) that the United States submits a general opposition to the assigned error(s) of law and relies on its brief filed with the Court of Criminal Appeals; or (ii) that the United States does not oppose the granting of the petition (for some specific reason, such as an error involving an unsettled area of the law). A reply may be filed by the appellant no later than 10 days after the filing of the appellees answer. (d) The Court may, in its discretion, examine the record in any case for the purpose of determining whether there appears to be plain error not assigned by the appellant. The Court may then specify and grant review of any such errors as well as any assigned errors which merit review. (e) Where no specific errors are assigned in the supplement to the petition, the Court will proceed to review the petition without awaiting an answer thereto. See Rule 19(a)(5). (f) An appellant or counsel for an appellant may move to withdraw his petition at any time by filing a motion oursuant to Rule 30. Such a motion shall substantially comply with the requirements of Rule for Courts-Martial 1110, and be accompanied by a written request for withdrawal that includes the following: (1) A statement that the appellant and counsel for the appellant have discussed the appellants right to appellate review, the effect of withdrawal, and that the appellant understands these matters; (2) A statement that the motion to withdraw the petition is submitted voluntarily and cannot be revoked; and (3) The signatures of the appellant and counsel for the appellant.
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1990 Rules Advisory Committee Comment The purpose of this rule is to help the individual preparing a petition for grant of review to write a document that will aid the Court in making a decision whether to grant review. As required by Article 67, UCMJ, the rule indicates that good cause must be shown before the Court will grant a petition. Not only must errors be stated with reasonable specificity, but the test of prejudice prescribed by Article 59, UCMJ, and Military Rule of Evidence 103(e) must be met. The rule includes a catalog of considerations that should be brought to the attention of the Court in an effort to persuade it to exercise its discretion in granting review. These are not requirements, and good cause may be shown without satisfying any of the seven items listed in Rule 21(b)(4). Nonetheless, the Committee believes it is desirable to encourage appellants to bring these matters to the Courts attention. The listed items spring from a variety of sources, including, significantly, the Supreme Courts rule on the considerations governing grants of certiorari. [S. Ct. R. 10.] Use of that rule as a model is not intended to suggest that the Supreme Courts certiorari jurisdiction is a perfect analogy to the Courts petition jurisdiction. There are differences, but these are outweighed by the similarities. Indeed, the analogy to Supreme Court practice has often been noted. E.g., Paul W. Brosman, The Work of the United States Court of Military Appeals, 7 MIAMI L. Q. 211, 212 (1953); Hearings on Department of Defense Appropriations, Fiscal Year 1980, Before the Senate Comm. on Appropriations, 96th Cong. 125 (1979) (statement of Fletcher, C.J.); Benjamin Feld, Development of the Review and Survey Powers of the United States Court of Military Appeals, 12 MIL. L. REV. 177, 182 (1961). It is the Committees view that useful lessons may be drawn from the Supreme Courts practice as it has evolved over the years. Rule 21(b)(4)(C) serves to highlight for the Court any departures from the rules applied in criminal trials in the U.S. District Courts, consonant with the Congressional policy expressed in Article 36(a), UCMJ, that such departures be permitted only where it would be impracticable to apply the usual federal rule. The Committee recognizes that claims of deviation from the civi-
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lian model may be contested or justified in response to a petition. Rule 21(d) preserves the Courts historic practice of specifying errors not assigned by an appellant. Page limits for supplements to petitions, answers, and replies are established by Rule 24(b). The provision of Rule 21(f) authorizing motions to withdraw a petition at any time is predicated on the assumption that a withdrawal without leave of court is invalid. See Goodman v. Secretary of the Navy, 21 C.M.A. 242, 45 C.M.R. 16 (1972). The rule leaves to case-by-case development the grounds which will support a motion to withdraw. The 1990 amendment to Rule 21(b)(4) is in substantial part identical to a proposed amendment referred to the Court by the Rules Advisory Committee in 1982 which was . . . not adopted by the Court with the 1983 changes. In light of the provisions of the intervening Military Justice Act of 1983 which provide for direct review of this Courts decisions by the Supreme Court of the United States and the similarity between some of the provisions of this . . . amendment and Rule 10 of the Rules of the Supreme Court, the Committee recommends that this . . . amendment be reconsidered by the Court for inclusion in its Rules of Practice and Procedure at this time. In addition, new subsection (G) of this . . . amendment was more recently drafted in response to the procedural problem which was the subject of the Courts decision in United States v. Wynn, 26 M.J. 405 (1988). 2001 Rules Advisory Committee Comment Revised subsection (b)(2) is based upon Supreme Court Rule 14(e)(iv) and Federal Rule of Appellate Procedure 28(a)(4). Its purpose is to demonstrate that the petition is based upon a decision or order from which review may be sought and that the petition falls within the ambit of the Courts jurisdictional authority to grant review. An example of a statement of statutory jurisdiction under this section would read as follows:
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The jurisdiction of the [service] Court of Criminal Appeals rested upon Article 66(b)(1), UCMJ. This Courts jurisdiction is revoked [sic; should read invoked] under Article 67(a)(3), UCMJ. The purpose of the revision to the extent [sic] subsection (b)(2) is to provident [sic; should read provide] a concise but comprehensive summary of the history of the case with respect to which review is sought. The changes will make more information available to the Court, including the statutory basis for invoking the jurisdiction of the Court. To the extent that dates relevant to the jurisdiction of the Court are established in the record, they are to be included in this section. 2004 Rules Advisory Committee Explanatory Note The added language [after the first clause of Rule 21(b)(1)] is taken from Rule 14 of the Rules of the Supreme Court of the United States. Its purpose is to encourage counsel to be concise and clear in drafting issues for review. The rule recognizes, however, that conciseness is a relative term and the length of the statement of the errors assigned for review will vary, depending on the circumstances of each case. Nevertheless, within that framework, counsel should strive to make the statement of errors as precise as possible and avoid argumentative or repetitive language. 2005 Rules Advisory Committee Explanatory Note Rules 21(b)(6), 24(a), 28(a), 32, and 34(b) pertaining to certificates of filing and service have been amended to reflect the changes in Rules 36 and 39. 70 FED. REG. 54,370, 54,372 (2005). 2008 Rules Advisory Committee Comment The requirements for submitting a motion to withdraw a petition for grant of review should be changed to ensure that the appellant is personally aware of the motion and that it is submitted voluntarily with full knowledge of its meaning and effect. 73 FED. REG. 35,127 (2008), corrected, id. at 36,378.
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2009 Rules Advisory Committee Comment This change conforms Rule 21(c)(2) to the change in Rule 19(a)(5). 74 FED. REG. 22,899 (2009). Discussion In light of the text of Article 67(a)(3), the second sentence of Rule 21(a) correctly places on the appellant the duty to show good cause. 10 U.S.C. 867(a)(3) (2006); see also Rule 19(a)(5)(B). The basic vehicle for showing good cause is the supplement to the petition, filed under Rule 21, which should identify and argue, at least preliminarily, the issues deemed by counsel to be meritorious. While appellate defense counsel need not advance contentions considered frivolous or lacking in merit, United States v. Baker, 28 M.J. 121, 122 (1989), it is not improper to press a case in which the petition is known to be untimely. United States v. Engle, 28 M.J. 299, 300 (1989) (per curiam). Counsel are, however, under an affirmative obligation to call to the Courts attention any claims of error which had been noted by an accused or by his trial defense counsel, United States v. Rainey, 13 M.J. 462, 463 n.1 (1982) (mem.) (Everett, C.J., dissenting); see generally United States v. Grostefon, 12 M.J. 431 (1982), and this too can show good cause, although this is fairly rare. E.g., United States v. Craig, No. 03-0321/AR (C.A.A.F. 2003) (mem.) (granting review of issue personally asserted by Appellant); United States v. Youngberg, 40 M.J. 261 (1994) (mem.) (granting review of two issues personally assigned by appellant); United States v. Bowerman, 37 M.J. 266 (1993) (mem.); United States v. Raymond, 37 M.J. 14 (1992) (mem.); United States v. Smith, 33 M.J. 486 & n.* (1991) (mem.); United States v. DeHart, 32 M.J. 19 & n.* (1990) (mem.); but see United States v. Johnson, 42 M.J. 195 (1995) (mem.) (denying leave to file additional matters pursuant to Grostefon). The choice whether to merely call the attention of an appellate court to an issue through a Grostefon footnote or to affirmatively advocate an issue by briefing it rests with counsel. That choice, however, is subject to scrutiny under the circumstances of each individual case. United States v. Quigley, 35 M.J. 345, 348 (1992) (3-2 decision), citing Strickland v. Washington, 466 U.S. 668 (1984). It matters not who signs a listing of Grostefon issues so long as the accused has adopted them, United States v. Peel, 29 M.J. 235, 243 (1989) (error, but harmless, to reject 55-page submission signed by appellants mother), although he has a right to have his handwritten statement of issues received by the Court of Criminal Appeals. United States v. Gunter, 34 M.J. 181 (1992) (per curiam). Grostefon issues that are submitted late may be rejected by the Court. E.g., United States v. Clark, 34 M.J. 27 (1991) (mem.) (semble); United States v. Austin, 34 M.J. 3 (1991) (mem.) (semble). Where a Grostefon submission included allegations of senatorial interference, the Court directed appellate defense counsel to obtain an affidavit from the appellant, and other documentation, to support the allegation. United States v. Smith, 34 M.J. 158 (1991)
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(mem.). Counsel for personnel who express a desire to submit Grostefon issues should remind them that they may be asked to back up their allegations under oath. If the record does not permit a determination as to whether good cause exists, a remand for further factual development may be ordered. E.g., United States v. McGillis, 28 M.J. 462 (1988) (mem.); compare United States v. Miller, 36 M.J. 68 (1992) (mem.) (remanding where absence of explanation from trial defense counsel made it impossible for Court to determine whether good cause exists to grant review in case alleging ineffective assistance of counsel), with United States v. Shafer, 36 M.J. 61 (1992) (mem.) (requiring submission of affidavit from trial defense counsel in order to permit Court to determine whether good cause exists to grant review in case alleging ineffective assistance of counsel; no remand). The Court remains loath to invoke the doctrine of waiver. For example, in United States v. Gorski, 47 M.J. 370, 375 (1997), the majority, in an opinion by Senior Judge Everett, refused to consider whether the appellant and some 150 similarly situated litigants had waived a meritorious ex post facto argument, in light of the number of cases in which waiver would have to be addressed, doubts about the cost-effectiveness of doing so, the interest in treating cases alike, and the interest in speeding finality. Finding waiver would presumably also have dictated consideration of claims of ineffective assistance of counsel in some number of cases. In United States v. Burdine, 29 M.J. 306 (1989) (mem.), it remanded to the Army Court for consideration of the effectiveness of trial defense counsel, even though that issue had evidently not previously been raised. See also, e.g., United States v. Smith, 48 M.J. 352 (1997) (mem.) (interpretation of state National Guard orders peculiarly within competence of court of criminal appeals); United States v. Ware, 40 M.J. 307 (1994) (mem.) (allegation of ex parte communications by military judge); United States v. Johnson, 40 M.J. 304 (1994) (mem.) (claim that plea to disobedience charge was improvident where government exhibit clearly indicate[d] that appellant was never issued a lawful order); United States v. Johnson, 31 M.J. 482, 483 (1990) (mem.) (2-1 decision) (Cox, J., dissenting on ground that appellant is playing games with the system Congress provided for appeals). This stance is an artifact of the Courts early paternalism. See generally United States v. Johnson, 42 M.J. 443, 447 (1995) (Cox, J., concurring in part and in the result). It has been a continuing source of friction with the Courts of Criminal Appeals. See, e.g., United States v. Shavrnoch, 47 M.J. 564, 565-66 (A. F. Ct. Crim. App. 1997), affd, 49 M.J. 334 (1998). The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them. Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.). Nor is a judge a knighterrant roaming at will in pursuit of his own ideal of beauty or of goodness. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 141 (1921); see
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also Jett v. Castaneda, 578 F.2d 842, 845 (9th Cir. 1978); Haitian Refugee Center v. Civiletti, 503 F. Supp. 421, 461 (S.D. Fla. 1980), modified, 676 F.2d 1023 (5th Cir. 1982); Discussion of Rule 5. As the Eighth Circuit has commented, points which simply invite the court to search for error present no question for decision by this court. Kiilvent Metal Awning Corp. of America v. Bottom, 205 F.2d 209, 214 (8th Cir. 1953), quoted in Slack v. St. Louis County Government, 919 F.2d 98, 99 (8th Cir. 1990) (per curiam) (dismissing appeal). Nevertheless, there is support for the view that good cause also may be shown by the [C]ourts own staff, or even by a judge who concludes that the record of trial should be reviewed in greater depth. Robinson O. Everett, Specified Issues in the United States Court of Military Appeals: A Rationale, 123 MIL. L. REV. 1, 2 (1989). The result is that even if no errors are assigned, see Rule 21(e), the Courts jurisdiction can be invoked, and its internal review process triggered, simply by filing a petition for grant of review. E.g., United States v. Gunter, 34 M.J. 181 (1992) (per curiam) (no errors cited in supplement to petition; C.M.R. decision set aside and case returned with instructions to permit filing of petitioners handwritten Grostefon submission); United States v. Scranton, 30 M.J. 322-23 (1990) (noting that petition presented case on the merits without specific assignment of error); United States v. Hullum, 15 M.J. 261 (1983); United States v. Grostefon, 12 M.J. 431, 436 n.12 (1982); United States v. Frierson, 20 C.M.A. 452, 43 C.M.R. 292 (1971); United States v. Dalrymple, 14 C.M.A. 307, 308-09, 34 C.M.R. 87, 88-89 (1963); see also United States v. Kelly, 14 M.J. 196 (1982). This happens surprisingly often. E.g., FY90 CODE COMM. ANN. REP. 46 (1991) (errors assigned in only 120 of 692 Navy and Marine Corps cases submitted to C.M.A.). The only constraint the Court seems disposed to apply in this regard is that it will not readily grant leave to file untimely supplements to petitions for grant of review where the supplements identify no particular issues. United States v. Ortiz, 24 M.J. 323 (1987). Rule 21(e) provides that where no errors are assigned, the Court will proceed to review the case without awaiting an answer. Given the plain meaning of Article 67(a)(3), the Court should, in the absence of plain error, see Rule 21(d); see generally Johnson v. United States, 520 U.S. 461 (1997); cf. United States v. Powell, 49 M.J. 460, 464-65 (1998) (operation of plain error rule in C.C.A.); United States v. Riley, 47 M.J. 276, 279 (1997) (applying 3-pronged test of United States v. Fisher, 21 M.J. 327, 328 (1986)); United States v. Czekala, 42 M.J. 168, 170 (1995) (4-1 decision) (test for plain error), citing United States v. Olano, 507 U.S. 725 (1993); United States v. Dresen, 43 M.J. 372 (1995) (mem.) (misleading advice to convening authority); United States v. Demerse, 37 M.J. 488, 491-92 (1993) (4-1 decision); cf. United States v. Paoni, 19 M.J. 119 & n.* (1984) (mem.) (error noted sua sponte; held, nonprejudicial), deny or dismiss a petition that fails to cite errors of any kind. See Rule 19(a)(4). But the Courts practice has long been to the contrary. Compare Robinson O. Everett, supra, and William N. Early, Lizann M. Longstreet & James S. Richardson, USCMA and the Specified Issue: The Current Practice, 123 MIL. L. REV. 9 (1989), with
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Eugene R. Fidell & Linda Greenhouse, A Roving Commission: Specified Issues and the Function of the United States Court of Military Appeals, 122 MIL. L. REV. 117, 126 & nn.48, 50 (1988), and Eugene R. Fidell, The Specification of Appellate Issues by the United States Court of Military Appeals, 31 Jag J. 99, 104-06 (1980). In FY91, errors were assigned in only 159 of the 550 Navy and Marine Corps cases submitted to the Court. FY91 CODE COMM. ANN. REP. 47 (1992). In FY94, 770 cases presented to the Navy-Marine Corps Court of Criminal Appeals were summarily assigned, while only 618 were fully briefed. FY94 CODE COMM. ANN. REP. 42-43 (1996). The Courts approach to plain error has historically been more forgiving than that of the Supreme Court. Compare Johnson v. United States, 520 U.S. 461 (1997), with, e.g., United States v. Riley, 47 M.J. 276 (1997). Such an approach may be warranted where the Courts of Criminal Appeals are concerned, in light of their broad mandate under Article 66(c). United States v. Powell, supra, 49 M.J. at 464. Paternalism on this subject may have been an artifact of the Court of Appeals early years; when it is applied today, the Court would do well to articulate what it is doing and why. Specifically, under the Supreme Courts teaching, even after the three-pronged test for plain error has been applied, the Court of Appeals still must determine whether the forfeited error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings before it may exercise its discretion to correct the error. Johnson, supra, at 469-70. One would think that the final step in the Johnson analysis is properly performed with particular reference to the system of justice at issue. Perhaps, then, the Court of Appeals adoption of a more lenient approach on that step is supportable as a recognition of the special circumstances of the military justice system, including the Courts own unique role as civilian reviewer of otherwise military proceedings. Such an approach is at least plausible since the public reputation of military justice remains distinct from the reputation of the administration of federal criminal justice generally, and under the constitutional plan serves additional, if not entirely different purposes. The Court has asserted that the plain error test may also function differently in capital cases. United States v. Thomas, 46 M.J. 311, 315 (1997). If a party has not been afforded an opportunity to address an issue first identified by the Court, the Court should extend such an opportunity before taking action. E.g., United States v. Taylor, 28 M.J. 256 (1989) (mem.) (show cause order). The Courts willingness to entertain cases in which no issues are identified was faulted in the Court Committees January 27, 1989 report, which recommended (at 4) that absent plain error the Court should not review these no issue cases. See also Presentation of Court Committee Report, 28 M.J. 99, 101 (1989) (practice of specifying issues not raised by appellate counsel should be limited to those few cases where plain error has occurred or where emerging issues require further briefing). By a one-vote margin, the Rules Advisory
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Committee submitted a proposal on the subject in 1994, but the Court rejected it without explanation. See Discussion of Rule 45. The Court may, in its discretion, decline to grant review of a pro forma petition where the Court of Criminal Appeals has set aside the sentence and ordered a rehearing. In doing so it has noted that its action is without prejudice to the petitioners right to petition again in the normal course of appellate review. United States v. Graham, 21 M.J. 97 n.* (1985) (mem.). In light of Boudreaux v. U.S. Navy-Marine Corps Court of Military Review, 28 M.J. 181 (1989), it would seem that such an order guarantees that the subsequent normal course of appellate review will include access to the Court of Appeals even if the result on remand does not meet the jurisdictional threshold of Articles 66 and 67. The practice of the Courts of Military Review had, prior to Boudreaux, apparently varied as to whether cases that result in subjurisdictional sentences on remand formally return to them under Article 66 following the further triallevel proceedings. Given the Court of Appeals commitment to preventing the insulation of interlocutory rulings from appellate review either by it, see, e.g., FY79 CODE COMM. ANN. REP. 4 (1980); United States v. Bullington, 13 M.J. 184 (1982), or by the Supreme Court, United States v. Belz, 20 M.J. 325 (1985) (mem.); United States v. Wynn, 26 M.J. 405, 406 & n.2 (1988); Rule 21(b)(4)(G) and Comment, a subjurisdictional result on such a remand would be eligible for Article 66, and therefore Article 67, review. The Court of Criminal Appeals should docket such a case following a subjurisdictional result on remand, but if it does not (thereby tolling the statutory period in which to petition for grant of review), the situation would present an appropriate occasion for issuance of an extraordinary writ. In reporting out the Military Justice Act of 1983, the Senate Armed Services Committee wrote that it believes that the question of what cases are heard by the Court of Military Appeals is a matter of internal management, properly left to that Courts decision in accordance with guidelines expressed in that Courts rules. S. REP. NO. 98-53, 34 (1983), quoted in United States v. Rorie, 58 M.J. 399, 405 & n.6 (2003) (citing GUIDE 10th ed. at 126-28). The absence of such guidelines was a matter of growing concern, and this concern only increased when it became apparent that Supreme Court review would be confined, at least at the beginning, to cases in which the Court of Appeals had granted discretionary review. As Senator Kennedy stated, COMA should articulate the considerations it weighs in deciding whether to grant review. This will benefit litigants and will also aid the Supreme Court by giving that tribunal a better sense of what it means when COMA grants or denies review. 129 CONG. REC. 34,312 (1983). Rule 21(b)(4) was adopted by the Court in 1990 and is virtually identical with the earlier version proposed by the Rules Advisory Committee, the text of which appears in Eugene R. Fidell, Review of Decisions of the United States
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Court of Military Appeals by the Supreme Court of the United States, 16 MLR 6001, 6006 (1988). Among those urging the Court to spell out what became the Rule 21(b)(4) considerations were the Association of the Bar of the City of New York and the Association of Trial Lawyers of America. A portion of the rule which was not adopted by the Court would have expressly encouraged opposing counsel to respond directly where a claim is made that civilian practice has not been followed. Another cautioned that the power to specify issues will be exercised sparingly. Rule 21(e) as proposed would have indicated that an appellee need not respond to a pro forma petition. The Committees draft Comment observed that where this occurs, the Court may still invite the filing of an answer. The Courts discretionary authority over cases arising on petition for grant of review may be analogized to the former power of the geographical courts of appeals (withdrawn by the Federal Courts Improvement Act of 1996, Pub. L. No. 104-317, 207, 104 Stat. 3847, 3850-51 (1996)) to grant leave to appeal certain decisions of United States magistrate judges under 28 U.S.C. 636(c)(5) (2006). See FED. R. APP. P. 5.1 (obsolete). Several circuits framed their 636 criteria in decisions. E.g., Yoonessi v. State University of New York, 56 F.3d 10, 12-13 (2d Cir. 1995) (per curiam) (summarizing standards); Keller v. Petsock, 849 F.2d 839, 844 n.8 (3d Cir. 1988); Pushard v. Russell, 815 F.2d 1, 2 (1st Cir. 1987) (per curiam), cert. denied, 485 U.S. 965 (1988); Adams v. Heckler, 794 F.2d 303, 308-10 (7th Cir. 1986); Wolff v. Wolff, 768 F.2d 642, 646-49 (5th Cir. 1985); Penland v. Warren County Jail, 759 F.2d 524 (6th Cir. 1985) (en banc). Others opted to exercise their rulemaking authority. E.g., 6th Cir. R. 29(a) (obsolete); 8th Cir. R. 28(a) (obsolete); see also Ionescu v. Dettmers, 53 A.2d 287 (D.C. Mun. App. 1947) (per curiam) (discretionary review of small claims and petty offense cases generally allowed only where there is a showing of apparent error or a question of law which has not been, but should be decided by this court). The Courts willingness to articulate the factors set forth in the 1990 rule change is a major evolution and is in keeping with the practice of appellate courts with discretionary jurisdiction. As tempting as it may have been to analogize on the basis of the geographical circuits formerly discretionary role in 636 appeals, even if that power had not been withdrawn it would have been a mistake to embrace such an analogy uncritically. Rather, the Court should be viewed as, in a sense, the functional equivalent of a state supreme court. E.g., S. REP. NO. 101-81, at 171 (1989); cf. S. REP. NO. 98-53, at 35 (1983) (analogizing C.M.A. to state courts for purposes of establishing time limits for seeking certiorari); United States v. Valead, 32 M.J. 122, 125 (1991) (Cox, J., concurring) (equating military justice system with both state and federal judicial hierarchies); but see Brown v. United States, 365 F. Supp. 328, 343 (E.D. Pa. 1973). The Courts unique responsibility for providing direct civilian review of courts-martial of course distinguishes it from both the geographical circuits and state courts. Counsel familiar with Supreme Court practice should not confuse the good cause standard with certiorari. Those courts that may review a case by
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issuing a writ of certiorari are not required to hear a case merely because a party demonstrates viable legal issues requiring relief. DEPT OF THE ARMY PAM. 27-173, LEGAL SERVICES, TRIAL PROCEDURE 35-5c(3), at 248 (1992); compare Berry v. Judges of U.S. Army Court of Military Review Sitting En Banc, 37 M.J. 158, 160 (1993) (3-2 decision) (rejecting analogy to Supreme Court practice), and United States v. Kuskie, 11 M.J. 253, 254-55 (1981) (2-1 decision) (same), with United States v. Rorie, 58 M.J. 399, 405 (2003) (3-2 decision) (discretionary nature of this Courts petition jurisdiction is more analogous to the Supreme Courts discretionary certiorari practice; abatement denied following petitioners death); see also BENJAMIN FELD, A MANUAL OF COURTS-MARTIAL PRACTICE AND APPEAL 132 (1957) (distinguishing C.M.A. functions from those of Supreme Court); but see DAVID A. SCHLUETER, KEN JANSEN, KEVIN J. BARRY & KENNETH A. ARNOLD, MILITARY CRIMINAL PROCEDURE FORMS 12-5(d), at 569 (2d ed. 2003) (Supplement serves to some degree the same purpose as certiorari petition); 2 FRANCIS A. GILLIGAN & FREDRIC I. LEDERER, COURTMARTIAL PROCEDURE 25-61.00, at 544 (2d ed. 1999) (petition procedure similar to certiorari); Dwight H. Sullivan, The Last Line of Defense: Federal Habeas Review of Military Death Penalty Cases, 144 MIL. L. REV. 1, 60 n.305 (1994) (supplement functions much like a petition for certiorari). Given Rorie, it is no longer clear that the denial of a petition for grant of review should lack precedential value. See Discussion of Rule 18. The factors set forth in Rule 21(b)(4) are not exhaustive any more than those set forth in Courts of Criminal Appeals Rule 17 cover the field for en banc consideration in those courts. See United States v. Felix, 40 M.J. 356, 359 (1994). Petitions will unquestionably be granted where none of the identified criteria even arguably apply. Unlike the Supreme Courts certiorari jurisdiction, the petition jurisdiction of the Court of Appeals is often, and properly, exercised merely to correct an isolated error or injustice. The Supreme Court, in contrast, requires that there be compelling reasons for a grant of certiorari, S. CT. R. 10, and ordinarily, although not invariably, will withhold discretionary review where all that can be said of a lower courts decision is that it was incorrect. See generally EUGENE GRESSMAN, KENNETH S. GELLER, STEPHEN M. SHAPIRO, TIMOTHY S. BISHOP & EDWARD A. HARTNETT, SUPREME COURT PRACTICE 4.17, at 276-80 (9th ed. 2007). Adoption of such a yardstick by the Court of Appeals would contravene longstanding expectations that the Court will furnish meaningful civilian review to prevent individual injustice. In other respects, however, such as the decision whether to entertain an interlocutory Article 62 appeal, the Courts reference to Supreme Court practice as a model seems entirely appropriate simply as a matter of sound judicial administration. See United States v. Mollison, 26 M.J. 220 (1988) (mem.); United States v. Morris, 26 M.J. 219 (1988) (mem.). The first case the Supreme Court heard on writ of certiorari to the Court of Military Appeals arose on an interlocutory government appeal. See Brief of American Civil Liberties Union as Ami-
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cus Curiae in Support of the Petition for a Writ of Certiorari 10-14, Solorio v. United States, 483 U.S. 435 (1987). One would have expected the Courts decisions to embroider on the criteria set forth in Rule 21(b)(4), but there has been precious little of that in the years since they were promulgated. The text itself is fairly self-explanatory and largely tracks the Supreme Courts model. Paragraph (C) reflects the congressional presumption in favor of applying district court standards. See UCMJ art. 36(a), 10 U.S.C. 836(a) (2006). Where a petitioner seeks to bring a case within the reach of Rule 21(b)(4)(C), the respondent will presumably endeavor to show either that there has been no departure from district court practice or that any such departure is warranted by reason of factors peculiar to the military setting. Such issues have long been inherent in military law. Eugene R. Fidell & Linda Greenhouse, supra, at 120-22; Eugene R. Fidell, Judicial Review of Presidential Rulemaking Under Article 36: The Sleeping Giant Stirs, 4 MLR 6049 (1976). Thus, the drafters of the Military Rules of Evidence endeavored to point out and justify a number of departures from civilian federal doctrines. E.g., MIL. R. EVID. 104(a)-(b), 201(b), 804(a)(6), 901(b), 902(4a) (Drafters Analysis). If the 1990 rule change brings Article 36(a) conformity issues more sharply into focus, the appellate process will have been well-served. In addition, perhaps the change will stimulate the Judge Advocates General to follow suit and articulate the criteria they employ in deciding whether to certify cases to the Court in order that counsel may intelligently frame their requests to the Judge Advocates General for such certification. In connection with nonreviewable courts-martial, Congress has indicated its expectation that at a minimum, cases involving the interpretation of the Manual for Courts-Martial, the Uniform Code of Military Justice, and the Constitution, as well as other important questions of law, be referred for decision by the Courts of Military Review. H. CONF. REP. NO. 101-331, at 658 (1989). One would expect that a similar approach would apply in certifications from the Courts of Criminal Appeals to the Court of Appeals. The rule implies that the factors set forth in subsection (b)(4) will bear on whether review ought to be granted. However, the same information would also be pertinent in deciding whether to dispense with plenary briefing, see Rule 25 and Discussion, remand, cf. United States v. Vyskocil, 27 M.J. 406 (1988) (mem.) (remanding for further proceedings in light of other decision of C.M.R. that may impact on issues); United States v. White, 27 M.J. 193 (1988) (mem.) (intervening decision of Supreme Court); United States v. Thompson, 46 M.J. 208 (1996) (mem.) (intervening decision of Court of Appeals); United States v. Gregorio, 27 M.J. 180 (1988) (mem.) (same); United States v. Lopez, 26 M.J. 40 (1988) (mem.) (conflict with decision of other panel of same C.M.R.); dispense with or enlarge the time usually allotted for oral argument, see Rule 40(b)(3), or invite the participation of amici curiae under Rule 26(a)(2).
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Congress has not required strict inter-service uniformity in punitive regulations, United States v. Hoesing, 5 M.J. 355, 358 (1978), and inter-service diversity can serve the public interest in testing new concepts. Eugene R. Fidell, Judicial Review of Presidential Rulemaking Under Article 36: The Sleeping Giant Stirs, supra, at 6057 & n.97, citing New State Ice Co. v. Liebman, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). But the policy behind Article 36 and indeed, the Code as a whole, clearly favors military justice uniformity as a general point of departure. E.g., The Military Justice Act of 1982: Hearings on S. 2521 Before the Subcomm. on Manpower and Personnel of the Senate Comm. on Armed Services, 97th Cong. 140 (1982) (statement of Everett, C.J.); William N. Early, Lizann M. Longstreet & James S. Richardson, supra, at 25; Jonathan Lurie, Professor Morgans Original Proposals, in JUDICIAL CONF. OF THE U.S. COURT OF APPEALS FOR THE ARMED FORCES (1999) (1948 proposal would have given Judicial Council jurisdiction over cases where, among other things, determination of the Board of Review is in conflict with that of a Board of Review of another service); cf. WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 35 & nn.59-61 (2d ed. 1920, repr. 1979). To this end, the existence of a split among the Courts of Criminal Appeals has long been a factor in deciding whether to respond to a certificate for review that otherwise might not be entertained. United States v. Gutierrez, 11 M.J. 122, 123 (1981). The fact that the goal of interservice uniformity is served by the certification process, United States v. Redding, 11 M.J. 100, 114 (1981) (Fletcher, C.J., concurring in part and dissenting in part); United States v. Monett, 16 C.M.A. 179, 36 C.M.R. 335, 337 (1966), does not, of course, render it inapposite in the context of deciding whether to grant review under Article 67(a)(3), which forms by far the largest component of the Courts docket. See, e.g., United States v. Falcon, 65 M.J. 270 (2007) (mem.) (granting review on gamblers defense issue as to which C.C.A.s had split); United States v. Robbins, 61 M.J. 60 (2005) (mem.) (granted issue noted split among service courts);United States v. Banker, 58 M.J. 245 (2003) (mem.) (granting review on issue that asserted direct conflict between A.F.C.C.A. and C.G.C.C.A. decisions). Although the Court of Appeals has never held that Article 66(a) or any other legal authority requires that [it] ensure a panel decision of an intermediate appellate court is followed by another panel of that same court in a subsequent case, and refused to do so in United States v. Townsend, 49 M.J. 175, 177 (1998), inconsistent results within an armed force are no less objectionable, under the Uniform Code, than inconsistent results between services. See United States v. McKinley, 48 M.J. 280, 283 (1998) (Effron, J., concurring in part and in the result); Corley v. Thurman, 3 M.J. 192, 195 (1977) (Perry, J., dissenting); United States v. Jackson, 3 M.J. 101, 102 (1977) (per curiam); see also United States v. Sapigao, 9 M.J. 111, 113 n.3 (1980) (mem.) (Fletcher, J., dissenting). Congress acted to permit rehearings en banc by the Courts of Military Review in the interest of resolving conflicts among panels and promot[ing] finality of Court of Military Review decisions within the respective services, without the necessity to certify individual panel decisions to the Court of Military Appeals.
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S. REP. NO. 98-53, at 28 (1983); see UCMJ art. 66(a), 10 U.S.C. 866(a) (2006); see also Felix, supra, at 358-59 (en banc consideration appropriate where (1) necessary for uniformity, (2) there is disagreement among the judges and panel reached result that makes bad law or is contrary to majority view, or (3) question is of exceptional importance). But the availability of en banc consideration in the Courts of Criminal Appeals hardly renders it inappropriate for the Court of Appeals to take intraC.C.A. conflicts into account when determining whether to grant review or take other action in response to a petition. Where panels of a single Court of Criminal Appeals are split, the Court of Appeals may so note in its opinion, e.g., United States v. Warner, 25 M.J. 64, 66 (1987), perhaps implying that this militated in favor of review. In other cases the Court has, by remanding, correctly recognized that such conflicts should be resolved in the first instance by the intermediate court. E.g., United States v. Coles, 29 M.J. 322 (1989) (mem.); United States v. Lopez, 26 M.J. 40 (1988) (mem.); but see McKinley, supra. A grant of review in a case that falls within Rule 21(b)(4)(B)(iv) thus serves the same objective as Congress overruling of United States v. Wheeler, 20 C.M.A. 595, 44 C.M.R. 25 (1971), and United States v. Chilcote, 20 C.M.A. 283, 43 C.M.R. 123 (1971); cf. Ct. Crim. App. R. 17(a)(1) (en banc consideration or reconsideration ordinarily not ordered except, inter alia, when . . . necessary to secure or maintain uniformity of decision). Accordingly, it makes sense to require that such conflicts be called to the Courts attention in the supplement to the petition. Far from intruding on matters of parochial concern to the separate services, this practice will strengthen the integrity of each services jurisprudence, and may make intrusion by the Court of Appeals on the merits less, rather than more, likely to occur. On the other hand, it is worth recalling that a case in which panels of one Court of Criminal Appeals are split may also involve an interservice conflict. In that event, remand would address only part of the problem and unnecessarily delay a resolution of the underlying issue. In other words, if there is an interservice conflict, that should rule out a remand to resolve an intraservice conflict. Prior to Wynn, referred to in the Rules Advisory Committees Comment, it was necessary to ask the Court to modify its rulings in remanded cases to provide that the matter be returned to it for final disposition following action in the Court of Military Review, in order to preserve the access to the Supreme Court that follows from a grant of review. E.g., United States v. Belz, 20 M.J. 325 (1985) (mem.), discussed in Eugene R. Fidell, Review of Decisions of the United States Court of Military Appeals by the Supreme Court of the United States, supra, at 6006 & n.48 (collecting cases). In Wynn, the Court of Military Appeals simplified the process by announcing that: [h]enceforth, we shall require an appellant to file a second petition for grant of review if, after corrective ac-
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tion below, he wishes to seek further review here or to preserve his opportunity for seeking review of his case by the Supreme Court. If an appellant who submits such a petition calls to our attention [the fact] that an earlier petition was granted in his case and asserts that the corrective action was inadequate and that he wishes to seek review from the Supreme Court, we shall treat the prior grant as good cause to grant review of the subsequent petition. 26 M.J. at 406 & n.2. The Courts objective in doing so was to advance the interests of economy, efficiency, and orderly administration of the appellate process. Boudreaux v. U.S. Navy-Marine Corps Court of Military Review, 28 M.J. 181, 183 n.4 (1989). In 1988, as part of its effort to reduce the time for reviewing cases, the Court approved a suggestion by the Rules Advisory Committee that, in cases in which appellate defense counsel have set forth one or more errors of law in the supplement to the petition, appellate government counsel be allowed to file a letter with the Clerk of Court, within 10 days after the filing of a Supplement to the Petition under Rule 21, as a discretionary alternative to filing an Answer within the 30-day period permitted under Rule 19(a)(5)(B). The measure was evaluated after a year for possible incorporation in the rules. In re Rules Advisory Committee Suggestion (1988); William N. Early, Lizann M. Longstreet & James S. Richardson, supra, at 10 & n.5. The pilot program offered government counsel the option of filing (and serving) either an answer to the supplement or a 10-day letter stating either (1) That the United States submits a general opposition to the assigned error(s) of law and relies on its brief filed with the Court of Military Review; or (2) That the United States does not oppose the granting of the petition (for some specific reason set forth in such letter, such as an error raised involves an unsettled area of the law). Apparently content with the trial run, the Court incorporated the procedure in the 1990 rule changes, and the procedure is now covered in Rule 21(c)(2). The Court of course reserves the right to require a fuller expression of the governments views, e.g., United States v. Forney, 66 M.J. 295 (2008) (mem.) (directing submission of government answer to one issue in petitioners supplement); United States v. Sapp, 65 M.J. 279 (2007) (mem.) (same); United States v. Piotrowski, 64 M.J. 312 (2006) (mem.) (same); United States v. Pitre, 60 M.J. 464 (2005) (mem.); United States v. Shelton, 52 M.J. 484 (1999) (mem.) (directing submission of formal answer to supplement where such an answer would be helpful to the Court in disposing of the petition); United States v. Thompson, 30 M.J. 158 (1990) (mem.) (directing submission of answer to supplement), but such orders are uncommon. In any event, a 10-day letter should comply with the rule and be factually accurate; if not, the Court will strike it and order submission of a proper letter or a plenary Answer. E.g., United States v. Tynes, 60 M.J. 46 (2004) (mem.); United
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States v. Ruggia, 60 M.J. 46 (2004) (mem.); United States v. Beatty, 60 M.J. 46 (2004) (mem.). A 10-day letter should be in letter form, rather than pleading form. It should not make any argument. If it does, the Clerk may return it to counsel. A 10-day letter should not be filed if there is a substantial issue in the case. Cases submitted on the merits are appropriate for 10-day letter treatment. Filing such a letter where there is a substantial issue ill serves the appellate process and does not assist the Court. The order promulgating the 1990 changes urged counsel to note that the amendment to Rule 21(c)(2) applies only to an appellees answer to a supplement to the petition for grant of review filed in cases other than Article 62, UCMJ, 10 USC 862, cases. 31 M.J. 456 (emphasis in original). In Article 62 cases, the appellee must file an answer. The 10-day letter option is for other appeals not filed under Article 62 and the filing of such a letter in an Article 62 case does not comply with Rule 21(c)(1). United States v. Davis, 62 M.J. 401 (2005) (mem.). The 10-day period for submitting Rule 21(c)(2) letters obviously requires early attention to and screening of incoming supplements. If need be, the letter can be withdrawn, E.g., United States v. Paulk, 66 M.J. 494 (2008) (mem.); United States v. Petty, 38 M.J. 186 (1993) (mem.), or corrected by a further submission. United States v. Rhea, 32 M.J. 8 (1990) (mem.). It goes without saying that a 10-day lettera document whose very name implies a time limit ought to be submitted within the prescribed period, but, even so, leave can be requested to file such a letter out of time. E.g., United States v. Carelas, 67 M.J. 372 (2009) (mem.) (denying leave); United States v. Shaw, 67 M.J. 10 (2008) (mem.) granting leave); United States v. Stephens, 67 M.J. 10 (2008) (mem.) (same); United States v. Betts, 60 M.J. 306 (2004) (mem.); United States v. Howard-Pinson, 60 M.J. 45 (2004) (mem.); United States v. Prince, 53 M.J. 48 (2000) (mem.); United States v. Woodson, 53 M.J. 253 (2000) (mem.); United States v. Shorter, 52 M.J. 495 (1999) (mem.); United States v. Weathersby, 52 M.J. 468 (1999) (mem.); United States v. Stumphauser, 46 M.J. 185 (1996) (mem.); United States v. Winter, 34 M.J. 58 (1991) (mem.); cf. United States v. Sutton, 42 M.J. 92 (1995) (mem.) (motion for leave to file letter out of time denied as moot). It should also be noted that submission of such a letter can dramatically shorten the time available under Rule 26(b) for submission of amicus briefs in support of a petition for grant of review, since the period provided in that rule would presumably run from the time of submission of the letter, there being no answer under Rules 19(a)(5)(B) and 21(c)(2). It may be assumed that the Court would enlarge the Rule 26(b) period in these circumstances if asked to do so under Rule 33. A party on the receiving end of a 10-day letter may respond to it, but this is not addressed in the Rule. Leave of court is apparently not necessary in order to do so. Such replies are not unheard-of, and are are entirely warranted
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in some instances, such as where the 10-day letter simply attaches a copy of the governments brief in the lower court and thus takes no account of either what that court decided or how the supplement may have framed the issues. E.g., United States v. Lee, No. 07-0725/MC (C.A.A.F. 2007). Sometimes these deficiencies will be so glaring that no purpose is served by submitting a reply, but at other times it may be best to leave nothing to chance, and submit a reply in hopes of improving the prospects for a grant. The Courts review under Rule 21(e) is performed by the Central Legal Staff and the judges and their chambers staffs. The process is summarized in a helpful article by three members of the Central Legal Staff. William N. Early, Lizann M. Longstreet & James S. Richardson, supra. Among the issues the review may address are providence of pleas, legal errors as to the sentence, and denial of military due process. United States v. Roukas, 21 M.J. 293 (1985) (mem.), discussed in Eugene R. Fidell & Linda Greenhouse, supra, at 125-27. Also considered are the timeliness of a petition, e.g., United States v. Bryant, 5 M.J. 120 (1978) (mem.), and whether the approved sentence brings the case within the Courts jurisdiction. See United States v. Spencer, 8 M.J. 30 (1979) (mem.) (sua sponte dismissal). A petition for grant of review may be withdrawn by the petitioner with leave of court, Rule 21(f); Goodman v. Secretary of the Navy, 21 C.M.A. 242, 243, 45 C.M.R. 16, 17 (1972) (mem.); and such leave is ordinarily freely granted. E.g., United States v. Diaz, 41 M.J. 132 (1994) (mem.) (premature petition); United States v. Chollet, 31 M.J. 488 (1990) (mem.); United States v. Woods, 5 M.J. 1067 (1976) (mem.); cf. United States v. Seawell, 64 M.J. 311 (2006) (mem.) (granting motion to withdraw two issues from supplement); but see United States v. Simon, 62 M.J. 311 (2005) (mem.) (denying motion to withdraw; granting motion would render conviction final, a result inconsistent with reasons cited in motion; appellant ordered to file supplement to petition for grant of review); United States v. White, 60 M.J. 373 (2004) (mem.) (same); United States v. Willis, 60 M.J. 341 (2004) (mem.) (motion denied because allowing conviction to become final would be inconsistent with stated reasons to withdraw); United States v. Bailey, 18 M.J. 431 (1984) (mem.) (denying motion to withdraw cross-petition for grant of review); United States v. Vicente, 18 M.J. 5 & n.* (1984) (mem.) (denying motion to withdraw petition). Unless he has obtained permission from his client to do so, an appellate defense counsel should not on his own initiative move to withdraw a petition for review even if the petition is known to be untimely. United States v. Engle, 28 M.J. 299, 300 (1989) (per curiam). The filing of an untimely petition is not analogous to a fraud on the Court or a misrepresentation, in which instance counsel must intervene even at the risk of being at odds with the client. Id. A request for appellate review may not be withdrawn before the convening authority acts. United States v. Walker, 34 M.J. 317 (1992) (per curiam). Consistent with its approach to no issue cases, the Court has permitted withdrawal of an issue presented in a sup-
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plement and the filing of a supplement identifying no issue. United States v. Faus, 51 M.J. 297 (1999) (mem.). Withdrawal may also be sought with respect to petitions for extraordinary relief, e.g., Dent v. Ott, 5 M.J. 1110 (1976) (mem.); but see Davies v. Secretary of the Army, 16 M.J. 142 (1983) (mem.) (denying motion to withdraw extraordinary writ petition without prejudice), or certificates for review. E.g., United States v. Tarver, 5 M.J. 987 (1976) (mem.). When an accused is acquitted pending consideration of an Article 62 appeal, counsel need only file a motion to withdraw petition and state in said motion that appellant was tried and acquitted on a specified date. United States v. Scholz, 20 M.J. 17 n.* (1985) (mem.). Rule 22. CERTIFICATE FOR REVIEW, ANSWER, REPLY (a) A certificate for review under Rule 18(a)(2) will be substantially in the following form: IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES UNITED STATES, (Appellee) (Appellant) v. (Full typed name, rank & service of appellant) (Service no. ), (Appellant) (Appellant) ) ) ) ) ) ) ) ) ) ) ) CERTIFICATE FOR REVIEW Crim. App. Dkt. No. USCA Dkt. No. [For Court use only]
TO THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES: 1. Pursuant to Article 67(a)(2) of the Uniform Code of Military Justice, 10 USC 867(a)(2), the record of trial and decision of the United States Court of Criminal Appeals in the above-entitled case are forwarded for review. 2. The accused has been found guilty by a (type of court-martial) of a violation of Article(s) _____ of the Uniform Code of Military Justice and has been
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sentenced to (include entire adjudged sentence) on the (insert trial date). The trial took place at (location). The convening authority approved the following findings and sentence: _____. The officer exercising general court-martial jurisdiction (where applicable) took the following action: ______. The Court of Criminal Appeals (state action taken). [Substitute different case history facts as appropriate when the Court of Criminal Appeals decision involves an application for extraordinary relief or an appeal by the United States under Article 62, UCMJ, 10 USC 862.] 3. It is requested that action be taken with respect to the following issues:
The Judge Advocate General Received a copy of the foregoing Certificate for Review this day of Appellate Government Counsel Address and telephone no. Appellate Defense Counsel Address and telephone no. , .
(b)(1) Article 62, UCMJ, cases. A certificate for review of a decision by a Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, 10 USC 862, shall be filed, together with a supporting brief in accordance with Rule 24 on behalf of the appellant, no later than 30 days after the date of the decision of the Court of Criminal Appeals. See Rule 34(a). An appellees answer shall be filed no later than 10 days after the filing of such certificate for review and supporting brief. A reply brief may be filed by the appellant no later than 5 days after the filing of the appellees answer. (2) Extraordinary relief cases. A certificate for review of a decision by a Court of Criminal Appeals on application for extraordinary relief filed therein shall be filed, together with a supporting brief in accordance with Rule 24 on behalf of the appellant, no later than 30 days after the date of the decision of the Court of Criminal Appeals. See Rule 34(a). An appellees answer shall be filed no later than 10 days after the filing of such certificate for review and supporting brief. A reply may
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be filed by the appellant no later than 5 days after the filing of the appellees answer. (3) Other cases. In all other cases involving a decision by a Court of Criminal Appeals, a certificate for review shall be filed (a) no later than 30 days after the date of the decision of the Court of Criminal Appeals (see Rule 34(a)) or (b) no later than 30 days after a petition for grant of review is granted. In cases that involve both granted and certified issues, the Clerk may establish a consolidated briefing schedule for all issues. In cases that involve only certified issue(s), a brief in support of the certified issues shall be filed by the appellant in accordance with Rule 24 no later than 30 days after the issuance by the Clerk of a notice of docketing of the certificate for review. An appellees answer shall be filed no later than 30 days after the filing of an appellants brief. A reply may be filed by the appellant no later than 10 days after the filing of the appellees answer. 1983 Rules Advisory Committee Comment This rule replaces former Rule 19 and prescribes the form for certificate of review cases ordered to be sent to the Court by a Judge Advocate General pursuant to Article 67(a)(2), UCMJ. The first paragraph of the form recites that the record of trial and the decision of the Court of Military Review are forwarded. The second paragraph of the certificate sets out the history of the case in the same manner that the counsels petition on behalf of an appellant does with respect to petition cases under Rule 20. The form also provides for recitation of a somewhat different history if the case being forwarded by certificate involves a decision by a Court of Military Review on an application for extraordinary relief. Each certificate requires the signature of the Judge Advocate General and a signature reflecting receipt of a copy of the certificate by the appellate government counsel and appellate defense counsel. Subsection (b) of the rule requires that certificates for review . . . be filed not later than [30] days af-
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ter the date of decision of the Court of Military Review and that a brief in support of the certified issues be filed by the appellant. . . . Again, the requirement for filing of the brief by the appellant permits the application of the standards set out in Rule 8 to determine who has the responsibility for filing initial pleadings with the Court. 2006 Rules Advisory Committee Comment [See comment to Rule 19(b)(3) above.] Discussion The rule establishes different briefing deadlines for Article 62 and extraordinary relief cases, on the one hand, and regular cases, on the other. In the first two categories, the supporting brief must be filed with the certificate; in the third, the supporting brief must be filed within 30 days after issuance of the docketing notice. The periods for filing answers and reply are also different: in the first two cases, only 10 and five days, respectively, are allowed, as opposed to 30 and 10 days, respectively, in all other cases. The promulgated version of the rule reflects the Courts modification of the certificate briefing deadlines that were recommended by the Rules Advisory Committee. The reference to Article 62 appeals in the bracketed matter at the end of & 2 of the form set forth in Rule 22(a) was added by the Court on February 27, 1996. A certificate for review should refer to the accused in stating the issue. United States v. Bailey, 18 M.J. 431 (1984) (mem.); Discussion of Rule 8. The submission of a brief in support of a certificate for review is not optional. See United States v. Krause, 44 M.J. 276 (1996) (mem.) (directing filing of brief forthwith). Rule 23. Mandatory Review Cases (a) The record in a mandatory review case under Rule 18(a)(3) will be filed, together with the following form: IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES UNITED STATES, ) MANDATORY REVIEW CASE
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Appellee v. (Full typed name, rank & service of appellant) (Service no. ) Appellant
) ) ) ) ) ) ) )
Crim. App. Dkt. No. USCA Dkt. No. [For Court use only]
TO THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES: 1. The appellant, having an approved sentence to death, is entitled to mandatory review under Article 67(a)(1) of the Uniform Code of Military Justice, 10 USC 867(a)(1). 2. The appellant was notified of the decision of the Court of Criminal Appeals on (insert notification date). The Judge Advocate General Received a copy of the foregoing this Appellate Government Counsel Address and telephone no. day of , .
Appellate Defense Counsel Address and telephone no.
(b) In a mandatory review case, a brief setting for assigned errors shall be filed by the appellant in accordance with Rule 24 no later than 60 days after the issuance by the Clerk of a notice of docketing of the case. Such brief shall not incorporate by reference that filed before a Court of Criminal Appeals, the convening authority, or the military judge. An appellees answer shall be filed no later than 60 days after the filing of the assignment of errors and supporting brief. A reply may be filed by the appellant no later than 20 days after the filing of the appellees answer. 1983 Rules Advisory Committee Comment
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This rule prescribes the form for filing an assignment of errors in those cases which the Court is required to review under Article 67(a)(1), UCMJ. This rule replaces former Rule 20 and makes only minor editorial changes in the substances of the form. The former certificate of service is replaced by the standardized certificate of filing and service prescribed in new Rule 24(a). The appellant or his counsel must file an assignment of errors not later than 30 days after service of the decision of the Court of Military Review on the appellant. A brief supporting the assigned errors must accompany the assignment. Briefs used below may not be incorporated by reference in this brief. The appellees answer must be filed no later than 30 days after the filing of the assignment of errors and brief. A reply may be filed not later than 10 days after the filing of the answer. Briefs Rule 24. Form, Content and Page Limitations (a) Form and content. All briefs shall conform to the printing, copying, and style requirements of Rule 37, shall be legible, and shall be substantially as follows: IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES UNITED STATES, (Appellee) (Appellant) (Respondent) ) v. (Full typed name, rank & service of accused) (Appellant) (Appellee) (Petitioner) ) ) ) ) ) ) ) ) ) ) ) ) BRIEF ON BEHALF OF (APPELLANT, APPELLEE, ETC.)
Crim. App. No. USCA Dkt. No.
Index of Brief [See Rule 37(c)(1)]
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Table of Cases, Statutes, and Other Authorities Issue(s) Presented [Set forth, in a concise statement, each issue granted review by the Court, raised in the certificate for review or mandatory review case, or presented in the petition for extraordinary relief, writ appeal petition, or petition for new trial. Issues presented will be set forth in upper case letters.] Statement of Statutory Jurisdiction [Set forth the statutory basis of the Court of Criminal Appeals[] jurisdiction and the statutory basis for this Courts jurisdiction.] Statement of the Case [Set forth a concise chronology including all relevant dates, to include: (A) the results of the trial; (B) actions of the intermediate reviewing authorities and the Court of Criminal Appeals; (C) the disposition of a petition for reconsideration or rehearing, if filed; and (D) any other pertinent information regarding the proceedings, including, where applicable, the date the petition was granted.] Statement of Facts [Set forth a concise statement of the facts of the case material to the issue or issues presented, including references to each relevant portion of the record of trial. Answers may adopt appellants or petitioners statement of facts if there is no dispute, may state additional facts, or, if there is a dispute, may restate the facts as they appear from the appellees or respondents viewpoint. The repetition of uncontroverted matters is not desired.] References to the Record [References to the parts of the record contained in the Joint Appendix filed with the appellants brief must be to the pages of the Joint Appendix.] Summary of Argument [Each brief and answer shall contain a summary of argument, suitably paragraphed to correspond to each issue presented. The summary should be a
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succinct, but accurate and clear condensation of the arguments made in the body of the brief.] Argument [Discuss briefly the point of law presented, citing and quoting such authorities as are deemed pertinent. The argument must also include for each issue presented a statement of the applicable standard of review. The standard of review may appear in the discussion of each issue or under a separate heading.] Conclusion [State the relief sought as to each issue presented, for example, reversal of the Court of Criminal Appeals decision and dismissal of the charges, grant of a new trial, the extraordinary relief sought, etc. No particular form of language is required, so long as the brief concludes with a clear prayer for specific Court action.] Appendix [The brief of the appellant or petitioner shall include an appendix containing a copy of the Court of Criminal Appeals decision, unpublished opinions cited in the brief, and relevant extracts of rules and regulations. The appellee or respondent shall similarly file an appendix containing a copy of any additional unpublished opinions and relevant extracts of rules and regulations cited in the answer.] (Signature of Counsel) (Typed name of counsel) (Address of counsel) (Telephone no. of counsel) Certificate of Filing and Service I certify that a copy of the foregoing was [delivered] (or) [mailed-specify class] (or) [delivered to-specify the name of the third-party commercial carrier-for delivery and specify within how many days delivery will be effected] to the Court and [delivered] (or) [mailed-specify class] (or) [delivered to-specify the name of the third-party commercial carrier-for delivery and specify within how many days delivery will be effected] (or) [transmitted by electronic means with the consent of the counsel being served] to __________________________________ on ____________________________. (date) (email or facsimile no.)
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Where more than one counsel or party is being served, the certificate should specify how each party or counsel was served. (Typed name and signature) (Address and telephone no.) (b) Page limitations. Unless otherwise authorized by order of the Court or by motion of a party granted by the Court (see Rule 30), or by Rule 24(c), the page limitations for briefs filed with the Court, not including appendices, shall be as follows: (1) Briefs of appellants/petitioners shall not exceed 30 pages; (2) Answers of appellees/respondents shall not exceed 30 pages; (3) Replies of appellants/petitioners shall not exceed 15 pages. (c) Type-volume limitations. (1) A brief of the appellants/petitioners and an answer of the appellees/respondents is acceptable if: it contains no more than 14,000 words; or contains no more than 1,300 lines of text. (2) A reply is acceptable if it contains no more than half of the type-volume specified in Rule 24(c)(1). (3) Headings, footnotes, and quotations count toward the word and line limitations. The index, table of cases, statutes, and other authorities, the appendix and any certificates of counsel do not count toward the limitation. (d) Certificate of Compliance. A brief submitted under Rule 24(c) must include a certificate stating that the brief complies with the typevolume limitation and Rule 37. The person preparing the certificate may rely on the word or line
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count of the word-processing system used to prepare the brief. The certificate must state either: (1) the number of words in the brief; or (2) the number of lines of monospaced type in the brief. (e) Form of Certificate of Compliance.
CERTIFICATE OF COMPLIANCE WITH RULE 24(d) 1. This brief complies with the type-volume limitation of Rule 24(d) because: [principal brief may not exceed 14,000 words or 1,300 lines; reply or amicus brief may not exceed 7,000 words or 650 lines; line count can be used only with monospaced type] This brief contains _____ [state the number of] words, or This brief contains _____ [state the number of] lines of text. 2. This brief complies with the typeface and type style requirements of Rule 37 because: [12-point font must be used with monospaced typeface, such as Courier or Courier New] This brief has been prepared in a monospaced typeface using _____________________ [state name and version of word processing program, e.g., Microsoft Word Version 2000 with ________________ [state number of characters per inch and name of type style]. /s/_____________________________________________ Attorney for ___________________________________ Dated: _____________________
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(f) Joint Appendix. The appellant or petitioner shall be responsible for filing eight copies of a Joint Appendix, which shall be a separate document filed contemporaneously with the brief. (1) Contents. contain: The Joint Appendix shall
(A) a copy of the decision of the Court of Criminal Appeals; (B) copies of unpublished opinions cited in the brief of the appellant or petitioner; the appellee or respondent will include copies of unpublished opinions cited in its brief as an attachment to its brief; (C) relevant extracts of rules and regulations; (D) relevant docket entries from the proceeding below; (E) relevant portions of the pleadings, charges, findings from the proceeding below; and (F) other parts of the record of trial to which the parties wish to direct the Courts attention set out in chronological order. (2) Format. The Joint Appendix will be produced on 8 by 11 inch white paper, be bound in a manner that is secure and does not obscure the text, and will permit the contents to lie reasonably flat when open. The cover must be white and contain the caption of the case and docket number. The cover shall be followed by a table of contents. Pages in the Joint Appendix shall be sequentially numbered in a manner that does not obscure any page numbers reflected in the record of trial. If the Joint Appendix consists of less than 100 pages, it may be reproduced by single-sided or double-sided copying. If it consists of 100 pages or more, the Joint Appendix shall use double-sided copying.
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Classified material or matters under seal that are to be included in a Joint Appendix shall be submitted in a separate volume, clearly designated as containing classified or sealed material. Classified material will be handled in accordance with Rule 12. (3) Deadline. Unless otherwise ordered by the Court, the Joint Appendix shall be filed contemporaneously with the brief of the appellant or petitioner. If a cross-appeal is filed, a single Joint Appendix shall be filed for both appeals subject to a briefing schedule established by the Clerk. The appellant or petitioner shall serve one copy on opposing counsel. (4) Agreement and Designation. The parties are encouraged to agree on the contents of the Joint Appendix. In the absence of agreement, the appellant or petitioner must, within 10 days of the order granting the petition, the filing of a certificate for review by a Judge Advocate General, the notice of the docketing of a mandatory review case, or the filing of a petition for new trial, petition for extraordinary relief or a writ appeal petition, serve on the appellee or respondent a designation of the issues to be raised on appeal and of the parts of the record to be included in the Joint Appendix. The appellee or respondent may, within 10 days after receiving the designation, serve on the appellant or petitioner a designation of the additional parts of the record to draw to the attention of the Court. The appellant or petitioner must include the parts designated by the appellee or respondent in the Joint Appendix. The parties must avoid engaging in unnecessary designation of parts of the record because unnecessary designation is wasteful, and the entire record is available to the Court. In the event a cross-appeal is filed, the deadlines for designations shall be established by the Clerk.
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(5) Dispensing With Requirement. The Court, on its own motion or that of a party, may dispense with the requirement for a Joint Appendix and may permit a case to be heard on the original record with any copies of the record or parts thereof that the Court may order the parties to file. 1983 Rules Advisory Committee Comment Rule 24(a) addresses matters relating to the substance and contents of briefs formerly contained in Rule 21. Rule 24(b) establishes a 50 page limit for briefs of appellants or petitioners. Answers of appellees and respondents are subject to the same limit, and replies may not exceed 15 pages. Exceptions to these page limitations may be authorized by order of the Court or on motions made and granted for this purpose. Rule 24(c) incorporates in this rule matters formerly addressed in Rule 36, relating to the style of briefs. The new rule recognizes that, in practice, pleadings and other papers are submitted in typewritten double-spaced format rather than in printed form. Pleadings ten pages or more in length are required to include a subject index, page references, and a table of authorities cited. The rule also requires that citations conform to the Uniform System of Citation. All references to the record of trial must include page numbers and exhibit designations, as appropriate. [Note: Now covered by Rule 37.] The penultimate subsection is new and deals with submission of documents containing classified material. Only one complete copy of a classified pleading need be submitted. Expurgated copies from which the classified matter has been deleted may be substituted for the additional required copies of the pleading. [Note: Now covered by Rule 35A.] 2001 Rules Advisory Committee Comment This revision is based upon Supreme Court Rule 24(e) and Federal Rule of Appellate Procedure 28(a)(4).
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As in the case of the [2001] amendment to Rule 21(b), its purpose is to set out the statutory authorities vesting this Court with jurisdiction. The Statement of the Case is modified to require a brief but comprehensive summary of the prior disposition of the case. 2004 Rules Advisory Committee Explanatory Note The proposal contains several changes. The first is to delete the requirement to include the appellants service number (since 1972, the military has used the Social Security number). This change is recommended to protect privacy interests and is consistent with recent action of the Judicial Conference. It also anticipates the possible future privacy issue where pleadings are filed electronically and are available on line. The Certificate of Compliance is to ensure that the briefs comply with Rule 24 and Rule 37 as to size and typeface. It is taken from a similar certificate used in the federal circuit courts of appeal. Counsel are reminded that the Court requires the use of monospaced typeface, e.g., Courier or Courier New, and that the use of proportional typeface, such as Times New Roman, is not authorized under these rules. 2005 Rules Advisory Committee Explanatory Note Rules 21(b)(6), 24(a), 28(a), 32, and 34(b) pertaining to certificates of filing and service have been amended to reflect the changes in Rules 36 and 39. 70 FED. REG. 54,370, 54,372 (2005). 2007 Rules Advisory Committee Comment The purpose of requiring a more comprehensive appendix prepared cooperatively by the parties and designated as a Joint Appendix is to assist the Court in identifying and readily obtaining the pages of the record of trial that are relevant to the issue or issues before the Court. Presently, without the requirement of a Joint Appendix, the chambers of each Judge is required to identify and then make its own copy of what each
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chambers believes are the relevant pages of the record, often without the familiarity with the case necessary to make this decision effectively. Counsel, however, have the familiarity with the record to prepare a Joint Appendix that will enable the Judges to commence efficient review when the briefs are distributed. This change should enable each chambers to commence review sooner and more effectively. . . . 72 FED. REG. 18,210, 18,213 (2007) (notice of proposed rule changes). Discussion A petitioner may present issues of law and supporting argument or may submit the case on the merits without specific assignment of errors. The supplement should make clear which approach is being taken. See United States v. Williams, 36 M.J. 35 (1992) (mem.) (directing submission of corrected supplement that conforms with Rules 21(b) and 24); see also United States v. Williams, 43 M.J. 136 (1995) (mem.) (directing submission of corrected supplement and page from response; supplement . . . contains statements that do not apply to this case). Counsel do not have license to paraphrase or revise the issue stated in the Grant Order. United States v. Mincey, 42 M.J. 376, 377 n.2 (1995); see also United States v. Perez, 45 M.J. 323, 324 n.* (1996). The issue should be stated in the index as well as in the body of the brief. United States v. Cook, 48 M.J. 385 (1997) (mem.). The rule explicitly requires that the issues be set forth in capital letters. This is consistent with the style long used in the Courts decisions, even though it tends to impair readability. See generally BRYAN A. GARNER, A DICTIONARY OF MODERN LEGAL USAGE 130 (2d ed. 1995), noted in Dwight H. Sullivan, A Capital Idea, CAAFlog, Jan. 17, 2007, at http://caaflog.blogspot.com/2007/01/capital-idea.html (faulting requirement as micromanagement and urging Rules Advisory Committee to propose a change). Early in his all-too-brief tenure, Judge Wiss usefully suggested that all appellate counsel uniformly address at the outset of their pleadings on any issue: What is this Courts standard of review? United States v. White, 36 M.J. 284, 289 & n.* (1993) (Wiss, J., concurring). These are distinct from the Courts scope of review, see Discussion of Rule 5, and vary from issue to issue. United States v. Hanna, 2 M.J. 69, 72 (1976). Standard of review is the element of advocacy that distinguishes the good appellate advocate. Leonard I. Garth, How to Appeal to an Appellate Judge, 21 LITIGATION NO. 1, at 20, 22 (Fall 1994). For an effective appeal, both the brief and the oral argument should be structured around the appropriate standard of review. Id. at 23. In 1998, the Court adopted a rule change requiring counsel to identify the applicable standard(s) of review. 47 M.J. XXXIII (1998). The change had been proposed in 1994 by Judges Gierke and Wiss, referred to the Rules Advisory Committee, and issued
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for public comment in 1996. 61 FED. REG. 18,724 (1996). The 1998 change also requires that the date review was granted be indicated, directs preparation of a Summary of Argument, and dispenses with the prior practice of stating the questions presented in upper case letters (although the latter requirement was reinstated in the 2001 changes). The order in which the required elements of a brief was also modified, so that the Issue(s) Presented now comes first rather than after the Statement of the Case and Statement of Facts. Illustrative standards of review to which the Court has spoken include: Factfinding: United States v. Owens, 51 M.J. 204, 209 (1999) (clearly erroneous or unsupported by record); United States v. Bins, 43 M.J. 79, 83 (1995) (clearly erroneous); United States v. Phillips, 42 M.J. 346 (1995) (intent to punish contrary to Article 13, clearly erroneous review) (compare United States v. Smith, 53 M.J. 168, 173 (2000) (Effron, J., concurring in part and in the result) (suggesting majority was conducting de novo review)); see also United States v. Mosby, 56 M.J. 309, 311 (2002) (Effron, J., concurring in part and in the result); United States v. Starr, 53 M.J. 380, 382 (2000) (Effron, J., concurring in part and in the result); United States v. Wallace, 39 M.J. 284, 286 (1994) (same); United States v. French, 38 M.J. 420, 424 (1993) (same); see also United States v. Kelley, 45 M.J. 275, 280 (1996) ([w]e will reverse for an abuse of discretion if the military judges findings of facts are clearly erroneous or his decision is influenced by an erroneous view of the law) Preliminary questions of fact: United States v. Quigley, 40 M.J. 64, 66 (1994) (clearly erroneous); e.g., United States v. Shover, 45 M.J. 119, 122 (1996) (preliminary factfinding regarding primary purpose of inspection subject to reversal if clearly erroneous); United States v. McGeeney, 44 M.J. 418, 423 (1996) (findings on whether decision to prosecute and government evidence were independent of immunized testimony should not be overturned on appeal unless [they are] clearly erroneous or unsupported by the evidence), citing Samples v. Vest, 38 M.J. 482, 487 (1994); United States v. Longstreath, 45 M.J. 366, 373 (1996) (necessity of abridging Sixth Amendment requirement of face-to-face confrontation; same test); United States v. Siroky, 44 M.J. 394, 399 & n.2 (1996) (when determining correctness of C.C.A. decision, we typically have pierced through that intermediate level and have examined the military judges ruling for clear error; then, on the basis of that examina-
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tion, we have decided whether [C.C.A.] was right or wrong in its own examination for clear error); see also United States v. Cabrera-Frattini, 65 M.J. 241, 246 (2007) (same); United States v. Shelton, 64 M.J. 32, 37 (2006) (same); United States v. Feltham, 58 M.J. 470, 474 (2003) (same); cf. United States v. Wuterich, 67 M.J. 63, 70 (2008) (reviewing military judges ruling directly, without remand, where case involves issue of law that does not pertain to C.C.A.s unique factfinding powers). Legal conclusions: United States v. Deisher, 61 M.J. 313, 317 (2005) (3-2 decision) (de novo review of military judges rulings on lawfulness of order and decision to submit issue of lawfulness to members); United States v. Reister, 44 M.J. 409, 413 (1996) (de novo); United States v. Morris, 49 M.J. 227, 230 (1998) (voluntariness of confession reviewed de novo, after examining the totality of the circumstances); United States v. Curry, 48 M.J. 115 (1998) (per curiam) (emergency search; 4th Amendment issues reviewed de novo); United States v. Nash, 44 M.J. 456, 457 (1996) (de novo; ruling based on erroneous view of law is abuse of discretion); United States v. Payne, 47 M.J. 37, 44 (1997) (voluntariness of confession; issue of law reviewed de novo); United States v. Bubonics, 45 M.J. 93, 94-95 (1996) (same); United States v. Washington, 46 M.J. 477, 481-82 (1997) (same); United States v. Wallace, 39 M.J. 284, 286 (1994) (command influence; question of law reviewed de novo); United States v. Kaliski, 37 M.J. 105, 109 (1993) (inevitable discovery; same); United States v. Miller, 48 M.J. 49, 54 (1998) (is interviewee a suspect?); United States v. Davis, 36 M.J. 337, 340 (1993) (same), affd, 512 U.S. 452 (1994); United States v. Maxwell, 45 M.J. 406, 41920 (1996) (sufficiency and breadth of warrant); id. at 425 (instruction on community standards for obscenity), cited in United States v. Smith, 50 M.J. 451, 455 (1999) (de novo review of decision to give instruction as well as substance of instruction) Mixed questions of law and fact: compare United States v. Smith, 45 M.J. 459, 460 (1996) (de novo), with United States v. Garcia, 44 M.J. 496, 497 (1996) (mistake of fact as mixed question; findings of fact tested for clear error, conclusions of law reviewed de novo), citing United States v. Ayala, 43 M.J. 296, 298 (1995); compare United States v. Wean, 45 M.J. 461, 463 (1997) (effec-
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tiveness of counsel as mixed question; ultimate determination whether the ineffective representation was prejudicial is determined de novo), with United States v. McClain, 50 M.J. 483, 487 (1999) (de novo review as to ineffectiveness of counsel); United States v. Diaz, 45 M.J. 494, 496 (1997) (per curiam) (prejudice flowing from erroneous evidentiary ruling reviewed de novo), quoted in United States v. Jones, 61 M.J. 80, 84 & n.22 (2005); United States v. Argo, 46 M.J. 454, 457 (1997) (findings of fact regarding command influence reviewed under clearly-erroneous standard; we review de novo the question of command influence flowing from those facts; prejudice from prosecutorial misconduct reviewed de novo) Probable cause: United States v. Figueroa, 35 M.J. 54, 57 (1992) (Wiss, J., concurring in the result, noting divergent standards of review for searches with (substantial basis) or without (de novo) warrant); see also United States v. Light, 48 M.J. 187, 192 (1998) (Sullivan, J., concurring in the result) (noting divergent approaches); United States v. Hester, 47 M.J. 461 (1998) (de novo review of probable cause for justice of peaces issuance of warrant) Legal sufficiency of the evidence: e.g., United States v. Davis, 44 M.J. 13, 17-18 (1996) (whether, considering evidence in light most favorable to government, reasonable factfinder could have found all essential elements beyond reasonable doubt); United States v. Rollins, 61 M.J. 338, 343 (2005) (constitutional and legal sufficiency claims reviewed de novo) Severance: United States v. Southworth, 50 M.J. 74, 76 (1999) (abuse of discretion); United States v. Foster, 40 M.J. 140, 148 (1994) (same); United States v. Mayhugh, 44 M.J. 363, 367 (1996) (same, but noting that standard for review of trial courts refusal to reconsider question of improper joinder is correct as a matter of law, seemingly implying that review of that question is de novo) Violation of speedy trial rule: United States v. Anderson, 50 M.J. 447, 448 (1999) (abuse of discretion), citing United States v. Hatfield, 44 M.J. 22 (1996); but see United States v. Pratchard, 61 M.J. 279, 280 (2005) (mem.) (waiver of speedy trial objection reviewed de novo)
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Continuance: United States v. Weisbeck, 50 M.J. 461, 464 (1999) (abuse of discretion); United States v. Sharp, 38 M.J. 33, 37 (1993) (same) Abatement: United States v. Monroe, 42 M.J. 398, 402 (1995) (abuse of discretion), cited in United States v. Richter, 51 M.J. 213, 223 (1999) Recusal: United States v. Campos, 42 M.J. 253, 263 (1995) (abuse of discretion); United States v. Loving, 41 M.J. 213, 253 (1994) (same) Systematic exclusion from panel: United States v. McClain, 22 M.J. 124 (1986) (de novo); United States v. Kirkland, 53 M.J. 22, 24 (2000) (same) Excusing member for cause: United States v. Daulton, 45 M.J. 212, 217 (1996) (clear abuse of discretion in applying the liberal-grant mandate); United States v. Ingham, 42 M.J. 218, 227 (1995) (abuse of discretion); United States v. Hamilton, 41 M.J. 22, 25 (1994) (clear abuse of discretion); United States v. White, 36 M.J. 284, 287 (1993) (same); see also United States v. Lavender, 46 M.J. 485, 488 (1997) (different levels of deference for actual and implied bias) Acceptance of guilty plea: United States v. Newbold, 45 M.J. 109, 111 (1996) (does record show substantial basis in law and fact for questioning plea), quoting United States v. Prater, 32 M.J. 433, 436 (1991); United States v. Eberle, 44 M.J. 374, 375 (1996) (abuse of discretion); United States v. Gallegos, 41 M.J. 446 (1995) Interpretation of pretrial agreement: United States v. Acevedo, 50 M.J. 169, 172 (1999) (de novo) Request for witness: United States v. Ruth, 46 M.J. 1, 3 (1997) (abuse of discretion); United States v. Gagan, 43 M.J. 200 (1995) (same); United States v. Reveles, 41 M.J. 388, 393 (1995) (same) In-court identification: United States v. Rhodes, 42 M.J. 287, 290 (1995) (abuse of discretion) Government-funded investigative assistance: United States v. Washington, 46 M.J. 477, 480 (1997) (abuse of discretion) Sequestration of witness: United States v. Langston, 53 M.J. 335, 337 (2000) (abuse of discretion in applying
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three-part test; de novo as to whether Mil. R. Evid. 615 applies) Admission or exclusion of evidence: United States v. Thomas, 49 M.J. 200, 202 (1998) (abuse of discretion such that the ruling is manifestly erroneous); United States v. Miller, 46 M.J. 63, 65 (1997) (clear abuse of discretion), citing United States v. Lake, 36 M.J. 317, 322 (1993); United States v. Johnson, 46 M.J. 8, 10 (1997) (same), quoting United States v. Redmond, 21 M.J. 319, 326 (1986); United States v. Curtis, 45 M.J. 480, 482 (1997) (abuse of discretion); United States v. Nash, 44 M.J. 456, 457 (1996) (same); United States v. Bell, 44 M.J. 403, 408 (1996) (clear showing of abuse of discretion), quoting United States v. Brenizer, 20 M.J. 78, 82 (1985) Evidence of bias, prejudice, or motive to misrepresent: United States v. Bins, 43 M.J. 79, 83 (1995) (abuse of discretion) Uncharged misconduct: United States v. Dorsey, 38 M.J. 244, 246 (1993) (abuse of discretion) Residual hearsay: United States v. Hyder, 47 M.J. 46, 48 (1997) (abuse of discretion); United States v. Pollard, 38 M.J. 41, 49 (1993) (considerable discretion) Remedy for destruction of evidence: United States v. Manuel, 43 M.J. 282 (1995) (abuse of discretion) Striking argument sua sponte: United States v. Webb, 38 M.J. 62, 69 (1993) (abuse of discretion) Order for production of additional evidence: United States v. Mosley, 42 M.J. 300, 303 (1995) (abuse of discretion); see also United States v. Rivers, 49 M.J. 434 (1998) (denial of discovery on grounds of privilege reviewed for abuse of discretion) Sentence appropriateness: United States v. Tardif, 57 M.J. 219, 223-24 (2002) (obvious miscarriages of justice or abuses of direction), quoting United States v. Jones, 39 M.J. 315, 317 (1994) Sentence disparity: United States v. Brock, 46 M.J. 11, 13 (1997) (abuse of discretion); United States v. Henry, 42 M.J. 231, 234 (1995) (same) Instructions: United States v. Maxwell, 45 M.J. 406, 424 (1996) (refusal to give requested instruction; abuse
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of discretion); United States v. Damatta-Olivera, 37 M.J. 474, 478 (1993) (abuse of discretion) Mistrial: United States v. Dancy, 38 M.J. 1, 6 & n.6 (1993) (abuse of discretion) Prejudice from erroneous evidentiary ruling: United States v. Diaz, 45 M.J. 494, 496 (1997) (per curiam) (de novo) Grant or denial of remedial action by Court of Criminal Appeals: United States v. Cook, 46 M.J. 37, 39-40 (1997) (abuse of discretion) Sentence reassessment: United States v. Harris, 53 M.J. 86, 88 (2000) (abuse of discretion) New trial: United States v. Brooks, 49 M.J. 64, 69 (1998) (clear abuse of discretion); United States v. Rios, 48 M.J. 261, 268 (1998) (abuse of discretion); United States v. Niles, 45 M.J. 455, 457 (1996) (same); United States v. Sztuka, 43 M.J. 261 (1995) (same); United States v. Dock, 28 M.J. 117, 120 (1989) (to deny new trial based on newly discovered evidence of lack of mental responsibility, court must be convinced beyond reasonable doubt that evidence would not produce different result) Refusal of certificate of innocence: Forrest v. United States, 3 M.J. 173, 175 (1977) (abuse of discretion) For additional examples of the Courts identification of standards of review see Leroy F. Foreman, Standards of Review, in JUDGE ADVOCATES ASSN, Military Appellate Advocacy Symposium (2002). Section IV.G(5) of the Courts online Digest also notes recent decisions on Standards of Review. When it reviews a decision of the Court of Criminal Appeals for abuse of discretion, the Court uses the same standard as it uses in reviewing a decision of a military judge. United States v. Taylor, 47 M.J. 322, 325 (1997); see also United States v. Benner, 57 M.J. 210, 212 (2002). If the Court of Criminal Appeals decision is unclear as to the standard of review it applied, the Court of Appeals need not remand; it may simply apply the proper standard itself, in effect directing reviewing the decision of the trial judge. Curry, supra. Fundamental issues relating to the standards of review remain to be addressed, and could significantly affect aspects of the Courts jurisprudence that were previously regarded as settled. See United States v. Payne, 47 M.J. 37, 42 (1997). An invaluable aid to research on standards of review is STEVEN A. CHILDRESS & MARTHA S. DAVIS, FEDERAL STANDARDS OF REVIEW (3d ed. 1999). For a practical, shorter treatment see Martha S. Davis, A BASIC GUIDE TO
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STANDARDS OF JUDICIAL REVIEW, 33 S.D. L. REV. 369 (1988), quoted with approval in Siroky, supra, at 398 & n.1, 399. Institutional issues related to the Courts standards of review are discussed in Eugene R. Fidell, Going on 50: Evolution and Devolution in Military Justice, 32 WAKE FOREST L. REV. 1213 (1997). Rule 24(b) sets page length and type-volume limitations for plenary briefs, but the same limits apply to supplements to petitions and corresponding answers and replies. See Rule 21(b). Certificates of filing and service do not count for purposes of the limitations. See United States v. Weiss, 37 M.J. 16 (1992) (mem.) (applying Rule 26(d)). If the limitations create a problem, counsel may seek relief by motion. E.g., United States v. Curtis, 34 M.J. 21 (1991) (mem.); United States v. Holt, 33 M.J. 482 (1991) (mem.). Counsel should not assume such a motion will be granted. E.g., United States v. Roderick, 61 M.J. 467 (2005) (mem.). Occasionally such motions are resisted, e.g., United States v. Schneider, 36 M.J. 80 (1992) (mem.), but, as a practical matter, this is one of those aspects of the appellate process that is best left to the Court and its staff to police, rather than burden it with yet more paper in the form of oppositions, replies and motions to strike. If a brief exceeds the page limit but complies with the word count limitations (and includes the requisite Certificate of Compliance), there is no need to move for leave to file. United States v. Leonard, 61 M.J. 334 (2005) (mem.). Counsel should not assume that a motion to exceed the limits will be granted. E.g., United States v. Weston, 67 M.J. 20 (2008) (mem.); United States v. Thomas, 64 M.J. 389 (2007) (mem.); United States v. Harrow, 63 M.J. 205 (2006) (mem.). The usual practice is to file a motion for leave to file a nonconforming brief at the same time as the brief itself is filed. Cf. United States v. Hoagland, 63 M.J. 290 (2006) (mem.) (noting that petition offered for untimely filing accompanied motion for leave). In United States v. Loving, 37 M.J. 196 (1993) (mem.), a capital case with numerous issues, the appellant apparently moved for leave in advance of filing the brief, and was required to state the specific number of pages requested in excess of the limit then set in the rule. In a later phase of United States v. Curtis, 39 M.J. 416 (1994) (mem.), which was also a capital case, the Court denied a motion for leave to exceed the former page limitation without prejudice to appellants right to resubmit said motion together with the brief in question. This seems a more sensible approach. Where the issues include both systemic and case-specific questions, special format requirements may be imposed, as in United States v. Simoy, 46 M.J. 382 (1997) (mem.), and United States v. Thomas, 43 M.J. 466 (1996) (mem.). In United States v. Cruz, 22 M.J. 255 (1986) (mem.), the Court denied leave to file an 84-page answer to a 42-page opening brief where the party seeking leave was supporting a favorable decision that contained an extensive explanation of its rationale. Ab-
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sent further clarification, the Court observed, there is no basis for permitting a relaxation of [its] rules. For some reason, there seems to be a greater reluctance to file reply briefs in military practice than in civilian appellate practice. Plainly, where an appellees brief misstates a material matter, a reply brief should be filed. See United States v. Lubitz, 34 M.J. 9, 13 n.7 (1991) (mem.) (Everett, J., concurring). A Reply Brief should always be filed, and the government should never be given the last word. DAVID A. SCHLUETER, KEN JANSEN, KEVIN J. BARRY & KENNETH A. ARNOLD, MILITARY CRIMINAL PROCEDURE FORMS 12-5(g)(3), at 616 (2d ed. 2003). Social security numbers are required in the caption of a petition for grant of review because of the design of the Courts Case Tracking System software, but are not requiredand should not be includedon any other submissions to the Court. The provisions for filing and service by third-party commercial carrier and for service by electronic means were added in 2005, effective January 1, 2006. 63 M.J. LI (2005). The provisions for a joint appendix, drawn from civilian federal practice, were added in 2007. In its Order of June 4, 2007 (corrected on July 16, 2007), the Court provided for a transition period between the effective date of August 1, 2007 and July 1, 2008, during which compliance with Rule 24(f)(1)(D)-(F) may be accomplished by including a list of the items stated in those sections to which the parties wish to direct the Courts attention. In re Change of Rules, 65 M.J. 271, 304 (2007). The Court may consider statutes without the filing of a motion to submit documents. United States v. Moran, 65 M.J. 3 (2007) (mem.). A joint appendix is not submitted in connection with a supplement to a petition for grant of review. Rule 25. When Briefs are Required Unless otherwise ordered by the Court, briefs shall be filed in all mandatory review cases and in support of all granted petitions, certificates for review, and petitions for new trial. The appellees answer and appellants reply in any of the foregoing instances shall also be in the format specified in Rule 24. The answer and reply to the supplement to a petition for grant of review shall be in accordance with Rule 21(c). 1983 Rules Advisory Committee Comment
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The new rule substantially revises former Rule 22 requirements and reflects the change in the petition procedures effected by the Supplement to Petition required by Rule 21. Rule 25 requires briefs in support of granted petitions, certificates for review, assignments of errors in mandatory review cases, petitions for extraordinary relief [obsolete], writ appeal petitions [obsolete], petitions for new trial, and in other cases where the Court orders briefs. An appellees or respondents answer and appellants or respondents reply are required to conform to the form specified in Rule 24. 1998 Rules Advisory Committee Comment [See 1998 Rules Advisory Committee Comment to Rule 27.] Discussion To expedite the disposition of cases, the court has occasionally waived certain briefing requirements and proceeded directly to hear oral argument. Robinson O. Everett, The United States Court of Military Appeals: New Issues, New Initiatives, 36 FED. B. NEWS & J. 182, 184 (1989). Such cases are relatively rare. E.g., United States v. Lamer, 32 M.J. 208 (1990) (mem.); United States v. Yates, 23 M.J. 360 (1987) (mem.); United States v. Harvey, 23 M.J. 271 (1986) (mem.). It may also leave further briefing to counsels discretion, see United States v. Givens, 34 M.J. 26 (1991) (mem.) (granting motion for leave to file discretionary brief), particularly where briefing at the petition stage has been extensive, as in United States v. Breseman, 25 M.J. 194 (1987) (mem.). In Murphy v. Garrett, 30 M.J. 51 (1990) (mem.), a habeas case, the Court authorized the parties to submit written memoranda or merely rely on oral presentations. A Rule 25 order may also draw the parties attention to particular issues the Court wishes to have addressed in the briefs. E.g., United States v. Suarez, 34 M.J. 172 (1991) (mem.). The Court can also direct the parties to file supplemental briefs on particular questions prior to oral argument, e.g., United States v. Von Bergen, 67 M.J. 181 (2008) (mem.); United States v. Josey, 57 M.J. 434 (2002) (mem.), or afterwards. E.g., United States v. Smead, 67 M.J. 253 (2009) (mem.); United States v. Larson, 65 M.J. 449 (2007) (mem.); United States v. Wilson, 65 M.J. 254 (2007) (mem.); United States v. Hawkins, 56 M.J. 312 (2002) (mem.). Dispensing with plenary briefs can raise questions of fairness when the Court also specifies issues, as in Lamer. More commonly, the Court will grant review and act summarily, without oral argument, where it appears that conservation of judicial time and effort makes summary disposition appropriate. E.g., United States v. Hayes, 19 M.J.
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6 (1984) (mem.) (quoting United States v. Fox, 10 M.J. 176 (1981) (per curiam)); see also, e.g., United States v. Dixon, 66 M.J. 488 (2008) (mem.); United States v. Lee, 52 M.J. 51 (1999) (failure to mention trial judges allotment recommendation in staff judge advocates recommendation); United States v. Curry, 48 M.J. 115 (1998) (per curiam); United States v. Smith, 43 M.J. 390 (1996) (per curiam) (intermediate court apparently applied wrong standard of review); United States v. Ireland, 17 M.J. 181 (1983) (mem.) (issue concerned only one out of 30 offenses and could reduce sentence from 802 to 772 years); United States v. Gentry, 14 M.J. 209 (1982) (mem.) (noting inordinate 490-day delay in convening authoritys action on 91-page record of trial); United States v. Perry, 12 M.J. 112, 113 (1981) (mem.). Upon reflection, the Court may always conclude that its initial inclination to act summarily was improvident. In such cases it will vacate its prior action and direct plenary briefing. E.g., United States v. Thomas, 23 M.J. 278 (1986) (mem.). It may also order briefs without vacating a prior order. E.g., United States v. Sapp, 52 M.J. 363 (1999) (mem.); United States v. Mabe, 32 M.J. 190 (1990) (mem.). A grant of review and summary affirmance is obviously to be preferred to a denial of review because it at least keeps the door open for seeking certiorari from the Supreme Court. The Court of Appeals patterns in granting review and summarily affirming rather than denying reviewa subset of the larger question of when good cause has been shownhave not received the study they merit. Among the factors that it would seem logical to take into account are the duration of the confinement portion of the sentence and whether the case is a trailer to some other case in which review was granted. At an orientation session for appellate counsel in 2008, for example, the Clerk of the Court commented that as a general rule the Court will grant review in any case in which the sentence is at least 30 years. In Murphy v. Judges of United States Army Court of Military Review, 34 M.J. 310, 311 (1992) (per curiam), the Court took the unusual step of conducting a status call to determine the future course of the matter, although it thereafter had to clarify its remand order. See also United States v. Thomas, 46 M.J. 363 (1997) (mem.); United States v. Murphy, 42 M.J. 209 (1995) (mem.) (status call concerning the issues to be argued and any other matters pending in this case); United States v. Gray, 42 M.J. 49 (1994) (mem.) (status call concerning issues to be argued and any other pending matters), 46 M.J. 111 (1996) (same); United States v. Curtis, 42 M.J. 14 (1994) (mem.) (status call concerning issues counsel wish to argue); United States v. Fitch, 42 M.J. 10 (1994) (mem.) (status call to address military appellate defense counsels motion to withdraw from representation). It has been suggested that [t]here are issues that must clearly be addressed, but which no one expects to grab the courts interest. Consider petitioning for a grant of review before [the Court of Appeals], but asking for summary disposition of the matter, ostensibly to save judicial time and effort. Richard A. Morgan, Appellate Practice Rules, 27 A.F. L. REV. 229, 233 & n.19 (1987). The
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difficulty with this approach is that it would tend to devalue the summary disposition mechanism by crying wolf too often. A petitioner should suggest summary disposition only if the case is a compelling one for reversal or involves an issue which the Court has previously deemed worthy of plenary briefing but has decided adversely. Where the latter is true, summary affirmance is appropriate as a means of opening the door to potential Supreme Court review. Savings of judicial time and effort, always a desirable goal, should not be made the basis for a request for summary disposition if the actual reason for seeking summary disposition is something else. At times, the Court has perhaps gone too far in acting summarily, as Judge Wiss suggested in United States v. Dominguez, 42 M.J. 189, 190 (1995) (mem.) (Wiss, J., dissenting in part) (summary, fast-track treatment). The Courts summary disposition procedures date from 1977, Hearings on Dept of Defense Appropriations for Fiscal Year 1978 Before the Senate Comm. on Appropriations, 95th Cong. 1191 (1977) (statement of Fletcher, C.J.), although the technique has been employed by the Court since its earliest days. E.g., United States v. McRory, 1 C.M.A. 274, 3 C.M.R. 8 (1952). A typical basis for summary disposition is the existence of an intervening precedent on the question presented. E.g., United States v. Walton, 15 M.J. 470 (1983) (mem.). The fact that a case is before the Court on certificate for review does not preclude summary disposition. Id. (certificate and cross-petition). Show cause orders are generally associated with extraordinary writ procedures. See Rule 27(a)(4). They may, however, also be employed in cases arising under Article 67(a)(3). E.g., United States v. Caldararo, 67 M.J. 210 (2009) (mem.) (ordering government to show cause why answer should not be stricken for including matter dehors the record); United States v. Brannen, 33 M.J. 179 (1991) (mem.) (ordering government to show cause why staff judge advocates recommendation and convening authoritys action should not be set aside and record returned for corrective action where recommendation referred to accuseds race and gender); United States v. Green, 28 M.J. 103 (1989) (mem.) (ordering government to show cause why racial/ethnic/sex codes should not be expunged from court-martial order); United States v. Nunezverdoore, 28 M.J. 103 (1989) (mem.) (same). A show cause order may also be issued to test the timeliness of a certificate for review. United States v. Richardson, 7 M.J. 215 (1979) (mem.). A requirement that supporting briefs be filed with petitions for extraordinary relief and writ appeal petitions was deleted in 1998. In re Change of Rules, 48 M.J. CVII (1998). The Court furnishes copies of briefs to LexisNexis for incorporation in that firms electronic military justice database. Rule 26. Amicus Curiae Briefs
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(a) A brief of an amicus curiae may be filed (1) by an appellate government or defense division of an armed service other than that in which the case has arisen, (2) by invitation of the Court, or (3) by motion for leave to file granted by the Court. (b) Unless otherwise ordered by the Court, a brief of an amicus curiae in support of a party may be filed no later than 10 days after that party has filed its brief. If neither party is supported, the brief of an amicus curiae shall be filed no later than 10 days after the first brief is filed. (c) Neither the hearing nor the disposition of a case will be delayed pending action on a motion for leave to file an amicus curiae brief or a motion of an amicus curiae to participate in a hearing, or to await the filing of a brief of an amicus curiae under this rule. (d) Except by the Courts permission, a brief of an amicus curiae may be no more than one-half the maximum length authorized by Rule 24 for a brief for an appellant/petitioner. If the Court grants a party permission to file a longer brief, that extension does not affect the length of an amicus brief. (e) A member of the Bar of the Court who represents an amicus curiae and is authorized to file a brief under paragraph (a) of this rule may file a motion for leave to have a law student enter an appearance on behalf of the amicus curiae. To be eligible to participate under this rule, a law student must be acting under the attorneys supervision and the attorney and the law student must substantially comply with the requirements of Rule 13A(b)(1)-(5) and (c)(1)-(11). Argument by a law student granted permission to appear on behalf of an amicus curiae may be requested by motion filed under Rule 30. 1983 Rules Advisory Committee Comment This rule has been redrafted and substantially expanded. It permits amicus curiae briefs to be filed by
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the appellate counsel divisions of an armed force other than that in which the case arises. Other amici may file briefs on motion for leave to file granted by the Court . . . or at the invitation of the Court. . . . Although the time limit in Rule 26(b) is the only time limit for the filing of an amicus curiae brief, Rule 26(c) expressly provides that hearing or disposition of a case will not be delayed awaiting participation by an amicus curiae. The brief of an amicus is limited to 30 pages, although presumably an exception may be obtained on motion to the Court, as is provided for the briefs of parties. See Rule 24(b). 1998 Rules Advisory Committee Comment The Court previously allowed students to appear on behalf of an amicus curiae on an ad hoc basis. Although the Court will continue to do so, the rule is amended to provide some guidance to those seeking leave of court to have law students appear in this capacity. While literal compliance with the requirements for law student practice on behalf of parties is not necessary, the rule reflects a desire to limit amicus participation to students who have completed a substantial portion of their legal studies and are undertaking representation with appropriate supervision from a member of the Bar of this Court. Only law students who substantially comply with the requirements of Rule 13A(b)(1)(5) and who are under the supervision of attorneys who substantially comply with Rule 13A(c)(1)-(11) will be considered eligible for participation under this rule. 2004 Rules Advisory Committee Explanatory Note The purpose of this change is to make Rule 26 consistent with the changes proposed in Rule 24. It follows Rule 29(d) of the Federal Rules of Appellate Procedure. 2006 Rules Advisory Committee Comment This rule would establish a filing deadline for all amicus briefs. As currently written, an appellate division of the armed forces may file an amicus brief within ten days after the filing of the answer by the appellee or
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respondent. This structure does not give the appellee/respondent any opportunity to respond to the arguments raised by the amicus in the normal briefing cycle. Moreover, it sets no deadlines for amicus briefs filed by entities other than the appellate divisions. This amendment integrates amicus briefs in the general briefing scheme and eliminates the need for supplemental briefs and motions for leave to file them. Absent leave of the Court, the amicus must file within ten days of the filing of the brief by the party that the amicus supports and, if the amicus does not wholly support either side (an occasion the current rule does not contemplate), it must file within ten days of the filing of the first brief filed in the normal cycle. The rule applies to all amicus briefs, regardless of who is filing. This rule is consistent with the approach taken in other courts of appeals. The rule puts the burden on the amicus to seek special leave outside this cycle. Discussion The appellate government and defense divisions may appear as amici as of right, and need not seek leave to do so. Curtis v. Navy-Marine Corps Court of Military Review, 36 M.J. 79 n.* (1992) (mem.). Where an appellate defense counsel for third parties wish to express the views of their clients as amici, they should do so individually rather than as a division. See United States v. Jenkins, 59 M.J. 339, 347 (2004) (mem.). The Court encourages the submission of amicus curiae briefs, and has periodically expressed its appreciation to amici. 1975 CODE COMM. ANN. REP. 6 (1976); e.g., United States v. Jacobs, 31 M.J. 138, 145 n.1 (1990) (Everett, C.J., dissenting); United States v. Avila, 27 M.J. 62, 63 n.2 (1988); Murray v. Haldeman, 16 M.J. 75, 77 (1983) (mem.); United States v. Larneard, 3 M.J. 76, 79 n.9 (1977); see also Stewart v. Stevens, 5 M.J. 220, 221 (1978) (mem.) (Cook, J., concurring). From time to time the Court invites the submission of amicus briefs. E.g., United States v. Michael, 65 M.J. 416 (2007) (mem.); United States v. Lopez de Victoria, 65 M.J. 415 (2007) (mem.); United States v. Wilson, 65 M.J. 254 (2007) (mem.) (ordering additional briefs following oral argument); United States v. Tamez, 61 M.J. 289, 290 (2005) (mem.); United States v. Baker, 58 M.J. 133, 134 (2003) (mem.) (ineffective assistance of counsel); United States v. Mitchell, 48 M.J. 403 (1997) (mem.) (self-representation on appeal); United States v. Kelly, 43 M.J. 226 (1995) (mem.) (effect of intervening S. Ct. decision on prior C.M.A. decision); United States v. Mitchell, 38 M.J. 313 (1993) (mem.) (fitness reports for C.M.R. judges); United States v. Weiss, 36 M.J. 92 (1992) (mem.)
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(Appointments Clause issue); United States v. Quigley, 35 M.J. 222 (1992) (mem.); United States v. Curtis, No. 63,044/MC (C.M.A. Dec. 12, 1989) (mem.) (capital case); United States v. Jefferson, 21 M.J. 283 (1985) (mem.); United States v. Gipson, 19 M.J. 301 (1985) (mem.); Murray v. Haldeman, 15 M.J. 173 (1985) (mem.); United States v. Murphy, 15 M.J. 170 (1983) (mem.); United States v. Matthews, 14 M.J. 447 (1982) (mem.); Cooke v. Orser, 12 M.J. 116 (1981) (mem.); United States v. Cortes-Crespo, 11 M.J. 363, 364 (1981) (mem.); Wickham v. Hall, 11 M.J. 357 (1981) (mem.); United States v. Schreck, 8 M.J. 136 (1979) (mem.) (case invited to attention of potential amici by letter from Clerk); Hyre v. Brady, 5 M.J. 1131 (1976) (mem.); Butler v. Kilcline, 5 M.J. 1005, 1048 (1976) (mem.) (requesting assignment of counsel versed in international law); Stewart v. Stevens, 4 M.J. 290 (1978) (mem.); Barnett v. Scott, 4 M.J. 289 (1978) (mem.); United States v. Booker, 4 M.J. 137 (1977) (mem.) (granting reconsideration); United States v. Jackson, 2 M.J. 156 (1976) (mem.); United States v. Jordan, 1 M.J. 334, 336 (1976) (United States participation in foreign search); Courtney v. Williams, 1 M.J. 267 (1976), noted in Michael E. Brown, Note, Building a System of Military Justice Through the All Writs Act, 52 IND. L.J. 189, 195 & n.42 (1976); United States v. Wilson, 9 C.M.A. 60, 25 C.M.R. 322 (1958); see also RICHARD L. TEDROW, ANNOTATED AND DIGESTED OPINIONS, U.S. COURT OF MILITARY APPEALS 219 (1966) (collecting cases); BENJAMIN FELD, A MANUAL OF COURTS-MARTIAL PRACTICE AND APPEAL 146 (1957), citing United States v. Goodwin, 5 C.M.A. 647, 18 C.M.R. 271 (1955). Oddly, even when invited, the appellate divisions do not invariably file. For example, in Wilson, supra, an Army case, only the Navy Appellate Defense Division submitted an amicus brief. Amici may also be allowed to present oral argument. Discussion of Rule 40. In one case an amicus was permitted to file within five days of the hearing. United States v. Ellis, 56 M.J. 404 (2002) (mem.). In United States v. Lane, 63 M.J. 1 (2006), the Court granted leave to the National Institute of Military Justice and the American Civil Liberties Union of the National Capital Area only a few days before a scheduled hearing, but then put the hearing off for a week. The generally smooth sailing accorded amici is not without exceptions. From time to time, the Court has denied would-be amici leave to file, e.g., United States v. Green, 68 M.J. 206 (2009) (mem.) (3-2 decision) (denying leave to counsel for litigant whose case would be affected); United States v. Ober, 66 M.J. 289 (2008) (mem.); United States v. Dearmond, 65 M.J. 424 (2007) (mem.) (motion filed by attorney in propria persona and as pro bono victim advocate); United States v. Frazier, 51 M.J. 366 (1999) (mem.); United States v. Haney, 43 M.J. 242 (1995) (mem.); United States v. Murphy, 43 M.J. 137 (1995) (mem.) (41 decision) (out of time), on reconsideration, 43 M.J. 164 (1995) (mem.); United States v. Kossman, 38 M.J. 197 (1993) (mem.) (denying leave to appellate government division to file out of time); United States v. Graf, 35 M.J. 249, 250 (1992) (mem.) (denying leave to individual Air Force officer); Ward v. Hall, 13 M.J. 470 (1982) (mem.); United States v. Fimmano, 8 M.J. 256 (1980) (mem.);
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United States v. Slubowski, 8 M.J. 108 (1979) (mem.) (brief tendered after issuance of decision; held, moot); United States v. Lightfoot, 4 M.J. 271 (1978) (mem.) (denying individual servicemans motion for leave to file amicus brief); United States v. Fricke, 53 M.J. 214 (2000) (mem.) (denying leave to counsel for litigant whose case involved same issue); United States v. Yager, 2 M.J. 162 (1976) (mem.) (post-argument brief), cautioned an amicus to confine itself to the issues identified by the Court, Murray v. Haldeman, 15 M.J. 297 (1983) (mem.), or granted leave to file while denying the amicus an opportunity to present oral argument. E.g., United States v. Bagstad, 68 M.J. 232 (2009) (mem.); United States v. Loving, 67 M.J. 171 (2008) (mem.); United States v. Jenkins, 59 M.J. 347 (2004) (mem.); United States v. Newak, 16 M.J. 322 (1983) (mem.). Overall, the Court ordinarily goes further out of its way to accommodate amici than do other appellate courts, e.g., Murray v. Haldeman, 15 M.J. 337 (1983) (mem.) (special hearing arrangements), and the repeated denials of leave to would-be amici whose cases might be affected is not in keeping with that general approach. As Judge Baker (joined by Chief Judge Effron) commented in dissent in Green, supra, at n.*, the Courts rules do not preclude amicus briefs that seek to inform it as to how the issue(s) presented in a case will impact the broader and uniform application of the law, including in [the amicuss] case. Nor do the rules indicate the standards by which this court should evaluate such a request. In that context, the courthouse door should be open, not closed. Id. In other respects, amicus curiae briefs are governed by the formal requirements of Rule 24, but their length is governed by Rule 26(d). Since the limit is half that normally allowed to parties under Rule 24(b), amici may be welladvised to abbreviate if not dispense with a statement of the case or of the facts (assuming the parties have adequately covered these) and proceed directly to the argument. The Court is unlikely to object to this approach. Cf. Rules 24(a), 28(b)(1). For example, in Fletcher v. Covington, 42 M.J. 116 (1995) (mem.), the National Institute of Military Justice filed a memorandum as amicus curiae which was only a few pages long and was confined to a jurisdictional issue, leaving it to the parties to elaborate on the facts. An amicus may also elect to address fewer than all of the issues. E.g., United States v. Lewis, 42 M.J. 1, 2 (1995) (presentation limited to specified issue). Like parties, e.g., United States v. Smith, 56 M.J. 229 (2001) (mem.), amici may be permitted to file supplemental briefs. E.g., United States v. Ellis, supra (supplemental statement); United States v. Fogg, 52 M.J. 306 (1999) (mem.) (supplemental citation without additional argument); United States v. Williams, 42 M.J. 206, 416 (1995) (mem.) (supplemental citations of authority); Dobzynski v. Green, 15 M.J. 394 (1983) (mem.); United States v. Brownd, 6 M.J. 63 (1978) (mem.) (reply brief); United States v. Booker, 4 M.J. 223 (1977) (mem.) (reply to brief of another amicus). They may also, on motion, be permitted to file briefs that exceed the page limit, United States v. Lewis, 41 M.J. 113 (1994), although that should rarely be necessary.
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Most amicus briefs are filed in cases before the Court for plenary consideration on petition for grant of review or extraordinary writ. At times, such a brief may be offered at the petition stage, e.g., United States v. Yatchak, 34 M.J. 173 (1991) (mem.); United States v. Graf, 34 M.J. 8 (1991) (mem.); United States v. Perry, 16 M.J. 135 (1983) (mem.), or at the reconsideration stage. E.g. United States v. Lopez de Victoria, 66 M.J. 369 (2008) (mem.); United States v. Stirewalt, 60 M.J. 395 (2004) (mem.); United States v. Schneider, 36 M.J. 364 (1993) (per curiam); United States v. Quillen, 28 M.J. 79 (1989) (mem.). If there is concern that the Court may not grant review in a meritorious Article 67(a)(3) case, an amicus brief should be filed at the petition stage, rather than waiting for a grant of plenary review that may never occur. Given the fact that most petitions are denied, the amicus may not have a second chance to present its views. Submission of a 10-day letter under Rule 21(c)(4) has the apparent effect of accelerating the deadline for Rule 26(a)(1) amicus briefs in support of a petition, Discussion of Rule 21, and this is the way it was understood by the petitionstage amici in Graf, supra. If necessary, leave can always be sought to enlarge the period under Rule 33, and it seems improbable that such leave would be denied. Would-be amici typically file their motion for leave with the brief, but in some cases the motion has been filed first. E.g., United States v. Quillen, 28 M.J. 79 (1989) (mem.). The amicus memorandum referred to above in Fletcher v. Covington, supra, was literally combined with the motion for leave; it was accepted for filing by the Court without comment. See also ABC, Inc. v. Powell, 47 M.J. 363 (1997) (amicus memorandum for National Institute of Military Justice and Judge Advocates Association). In one inexplicable Army case, the appellee moved for leave to file an amicus brief on behalf of the Air Force. United States v. Williams, 40 M.J. 48 (1994) (mem.). Ordinarily, there is no occasion for an amicus brief to be filed by counsel from the service in which the case arises, but in United States v. Lewis, supra, where the Court of Appeals specified an issue concerning the obligations of trial defense counsel when the accused claims ineffective assistance, the Army Trial Defense Service was permitted both to file such a brief and to argue. See also United States v. Grady, 44 M.J. 44 (1996) (mem.). Motions for leave to file must be served on the parties. United States v. Wheeler, 21 M.J. 94 (1985) (mem.). Once an amicus has appeared, all pleadings should be served on amicus counsel. Rule 39(a); United States v. Hood, 6 M.J. 105 (1978) (mem.) (granting motion to compel service of motions and briefs on amicus). Typically counsel for the parties will, upon request, furnish courtesy copies of pleadings that have been filed prior to the amicuss entry into the case. A party may also seek leave to reply to an amicus brief. United States v. Frazier, 51 M.J. 106 (1998) (mem.); see also United States v. Edmond, 63 M.J. 249 (2006) (mem.) (allowing government 10 days in which to reply to student amicus brief).
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In issuing the 1983 rule changes, the Court rejected proposed provisions that would have (1) allowed filing of amicus briefs by consent of the parties and (2) encouraged organizations wishing to be advised of cases in which the Court invites the submission of briefs as amicus curiae may inform the Clerk in writing of their interest in such matters. It also modified a provision that would have required the brief of an amicus curiae filed by an appellate counsel division to be filed within the time allowed the party whose position the brief will support. Despite its rejection of the second of these proposals, and its failure to be proactive in soliciting amicus submissions in a variety of cases that one would have thought would benefit from such presentations, the Court is certainly not unaware of the interest of outside organizations that might be invited to file as amici in a proper case. Such organizations should make known their interest by addressing a letter to the Clerk, and identifying a point of contact. Under Rule 26(a)(1), appellate divisions of the armed forces need not seek leave to file briefs as amici curiae. United States v. Curtis, 36 M.J. 79 n.* (1992) (mem.). Indeed, aside from law students, the appellate divisions are the most frequent filers of amicus briefs. See Dwight H. Sullivan, Amicus Practice in the Military Appellate Courts: Why Cant We Be Friends? 3, in JUDGE ADVOCATES ASSN, MILITARY APPELLATE ADVOCACY: A SYMPOSIUM (2002) (32 amicus briefs filed by appellate divisions in 1991-2002). Based on his review of the cases, Col. Sullivan concludes, however, that [a]ppellate divisions should not expend significant resources engaging in amicus practice in other services cases on the merits. Id. at 4. Certificates of filing and service do not count for purposes of the page limit. United States v. Weiss, 37 M.J. 16 (1992) (mem.). Rule 26(e) was added in 1998 over the dissent of Chief Judge Cox and Judge Sullivan, who indicated that they would allow the filing of an amicus curiae brief by persons other than law students as long as such persons are acting under the supervision of a member of the Bar of this Court. See Discussion of Rule 13A. This was the Courts first disclosed dissent from a rule making order. Extraordinary Relief Rule 27. PETITION FOR EXTRAORDINARY RELIEF, WRIT APPEAL PETITION, ANSWER, AND REPLY (a) Petition for extraordinary relief. (1) A petition for extraordinary relief shall be filed within the time prescribed by Rule 19(d), shall conform in length to Rule 24(b), and, in accordance with Rule 39, be accompanied by proof of service on all named respondents. The petitioner shall also provide a copy of the petition to any trial
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or appellate military judge whose decision, judgment, or order is the subject of the petition. (2)(A) The petition for extraordinary relief shall be captioned In re [name of petitioner]. (B) The petition shall contain: (i) A history of the case including whether prior actions or requests for the same relief have been filed or are pending in this or any other forum and the disposition or status thereof; (ii) the reasons relief has not been sought from the appropriate Court of Criminal Appeals, if that is the case (see Rule 4(b)(1)); (iii) (iv) the relief sought; the issues presented;
(v) the facts necessary to understand the issues presented by the petition; (vi) and the reasons the writ should issue;
(vii) the mailing address, telephone and facsimile telephone numbers of each respondent. (C) The petition shall include copies of any order or opinion or parts of the record that may be essential to understand the matters set forth in the petition. (D) Service on Judge Advocate General. The Clerk shall forward a copy of the petition to the Judge Advocate General of the service in which the case arose. (3) Denial; Order Briefs; Precedence. Directing Answer;
(A) The Court may deny the petition without answer. Otherwise, it may order the respondent or respondents to answer within a fixed time. See Rule 28(b)(1). The
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Court may also take any other action deemed appropriate, including referring the matter to a special master, who may be a military judge or other person, to make further investigation, to take evidence, and to make such recommendations to the Court as are deemed appropriate. See United States v. DuBay, 17 USCMA 147 (1967). (B) When the Court directs that an answer be filed, two or more respondents may answer jointly. (C) The Court may invite any trial or appellate military judge whose decision, judgment or order is the subject of the petition to respond or may invite an amicus curiae to do so. A trial or appellate military judge may request permission to respond but may not respond unless invited or ordered to do so by the Court. (D) The Court may set the matter for hearing. However, the Court may grant or deny the relief sought or issue such other order in the case as the circumstances may require on the basis of the pleadings alone. (E) If further briefing or oral argument is required, the Clerk shall advise the parties and, when appropriate, any judge or judges or amicus curiae. (4) Electronic message petitions. The Court will not docket petitions for extraordinary relief submitted by means of an electronic message or facsimile without prior approval of the Clerk. (b) Writ appeal petition, answer, and reply. A writ appeal petition for review of a decision by a Court of Criminal Appeals acting on a petition for extraordinary relief shall be filed by an appellant, together with any available record, including the items specified by subsection (a)(2)(C), within the time prescribed by Rule 19(e), shall conform in length to Rule 24(b), shall be accompanied by proof of service on the appellee in accordance
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with Rule 39, and shall contain the information required by subsection (a)(2)(B). The appellee shall file an answer no later than 10 days after the filing of the writ appeal petition. A reply may be filed by the appellant no later than 5 days after the filing of the appellees answer. See Rule 28(b)(2) and (c)(2). Upon the filing of pleadings by the parties, the Court may grant or deny the writ appeal petition or take such other action as the circumstances may require. 1983 Rules Advisory Committee Comment This rule deals with topics addressed in Rule 25 of the former Rules of the Court. Rule 27(a) requires that a petition for extraordinary relief be filed within the time prescribed by Rule 19(d), accompanied by proof of service on all named respondents. Material which must be included in the petition is listed. This material has been expanded to require that the jurisdictional basis for the relief sought include the reasons why the relief requested cannot be obtained during the ordinary course of trial or appellate review or through administrative procedures. The Clerk is required to forward a copy of the petition to the Judge Advocate General of the service of which the petitioner is or was a member. Each petition for extraordinary relief must be accompanied by a brief in support of the petition unless it is filed in propria persona. The Court may thereupon issue a show cause order, in which event the respondent(s) shall file an answer and the petitioner may file a reply to any answer. The Court may, depending on the circumstances of a particular case, dismiss or deny the petition, order the respondent(s) to show cause and file an answer, or take other appropriate action. It may also direct that the Judge Advocate General furnish counsel to represent the petitioner and respondents. The Court may set the matter for oral argument or, on the basis of the pleadings alone, may grant or deny the relief sought or issue any other order which the circumstances require. [Caution: portions of the foregoing were rendered obsolete by the 1998 changes; consult the text of the Rule and 1998 Rules Advisory Committee Comment.]
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Rule 27(a)(6) [see new Rule 27(a)(4)] adds a provision for submitting petitions by electronic message, but only in exceptional circumstances and then from petitioners located outside the contiguous 48 states. Administrative requirements are set forth to ensure that these messages are received by the Court. A written petition and brief must be in the mail, addressed to the Court and to named respondents, on or before the day that the electronic message is transmitted. Such messages must be sent to the chief of the appropriate appellate division. When the message is received in an appellate division office, legible copies will be reproduced and filed with the Court by an appellate counsel appointed within that office. [Caution: portions of the foregoing were rendered obsolete by the 1998 changes; consult the text of the Rule and 1998 Rules Advisory Committee Comment.] A new subsection 27(b) to this rule provides for a writ appeal petition as a new style of pleading. A writ appeal petition is a petition for discretionary review of a decision of a Court of Military Review on application for extraordinary relief. Such a petition must be filed by an appellant not later than 20 days after the date the Court of Military Review decision is served on the appellant or his counsel (see Rule 19(e)). Unless the appellant has filed the petition himself, the petition shall be accompanied by a brief in the format specified in Rule 24. If the appellant is not represented by counsel, the Court will normally direct the appointment of counsel and the filing of a supporting brief not later than 20 days after the filing of the writ appeal petition. The appellee files an answer no later than 10 days after the filing of appellants brief. A reply may be filed within 5 days after the filing of the answer. Upon filing of pleadings by the parties, the Court may grant or deny the writ appeal petition or take such other action as may be appropriate. [Caution: portions of the foregoing were rendered obsolete by the 1998 changes; consult the text of the Rule and 1998 Rules Advisory Committee Comment.] 1995 Rules Advisory Committee Comment The Committee considered inserting in Rule 27(a)(1)(E) a clause requiring counsel to state the excep-
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tional circumstances that are believed to warrant an exercise of the Courts discretionary powers. This proposal was not adopted because the Committee believes that such a requirement is already implicit in Rule 27(a)(1)(F), which requires counsel to state the [r]easons for granting the writ. Subdivision (E) speaks to jurisdiction, rather than the divers prudential factors that bear on whether the Courts All Writs Act authority should be exercised. [Caution: portions of the foregoing were rendered obsolete by the 1998 changes; consult the text of the Rule and 1998 Rules Advisory Committee Comment.] These proposed rule changes originated with a version proposed by Judge Richard M. Mollison of the United States Navy-Marine Corps Court of Criminal Appeals. 60 FED. REG. 4895 (1995). [See also 1995 Rules Advisory Committee Comment to Rule 4.] 1998 Rules Advisory Committee Comment As revised, Rule 27(a)(1) requires that the petitioner provide a copy of the petition to any trial or appellate military judge whose decision, judgment, or order is the subject of the petition. The purpose of this requirement is to alert the judge or judges to the filing of the petition, a necessity because members of the lower court are not treated as respondents and are therefore not served. This revision conforms to revised FED. R. APP. P. 21(a)(2). As revised, Rule 27(a)(2)(A) requires that the caption of the petition merely identify the moving party rather than the name of the judge or judges whose order is subject to challenge, as has been the practice in some cases. In this respect, the amendment clarifies that such judge or judges are not to be considered as respondents. Revised Rule 27(a)(2)(B) and (C) modifies those subsections to conform more closely to FED. R. APP. P. 21(a)(2)(B) and (C) in connection with the required contents of a petition for extraordinary relief. In substance, the revision does not deviate substantially from the Courts prior Rule 27(a)(1).
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In contrast with the Courts prior Rule 27(a)(3), the revision adopts the federal practice of dispensing with separate briefs accompanying petitions for extraordinary relief. The submission of such multiple pleadings fosters redundancy and is inconsistent with the time-sensitive context in which such petitions are typically filed. Any necessary legal argument is properly contained in the explanation of why the writ should issue in subsection (a)(2)(B). In the event the Court deems supplemental briefing necessary following the submission of the petition and any answer, the new rule affords ample authority to direct such briefing. See Rule 27(a)(3)(A) and (E). Subsections (d) and (e) of Rule 19, which is captioned Time Limits, have been revised to delete references to the submission of supporting briefs. Rules 18(a)(4) and 28(b)(2) have been similarly revised. References to the submission of any available record in these rules is also unnecessary as such a requirement is imposed by new Rule 27(a)(2)(C). Rule 25, which is captioned When Briefs Are Required, has been revised to omit reference to petitions for extraordinary relief as well as to a respondents answer and a petitioners reply. Revised Rule 27(a)(3) conforms more closely to FED. R. APP. P. 21(b). Subsections (a)(3)(B) and (E) are new. Subsection (a)(3)(C) clarifies the responsibilities of a trial or appellate military judge or judges whose decision, judgment, or order is the subject of a petition for extraordinary relief. It anticipates that the views of such judge or judges will normally have been stated on the record or in an order in the usual course and that, as in a direct appeal, the lower courts interests in defending such an order will ordinarily be fulfilled by the prevailing party. Accordingly, in language adopted from FED. R. APP. P. 21(b)(4), it makes clear that such judge or judges are not expected to respond to a petition and have no right to respond except in the extraordinary instance where invited or ordered to do so by the Court. The Rules Advisory Committee recognizes that there may be instances where the respondent chooses not to defend the decision of the trial or appellate military judge whose decision is the subject of the petition. United States v. Harper, 729 F.2d 1216, 1217 (9th Cir. 1984) (noting refusal by government to defend, in a mandamus proceeding, order of district court). In such in-
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stances, the new rule permits that judge to request permission to respond on his or her own behalf. The Court has discretion whether to permit such a response by or on behalf of a judge. It is the view of the Rules Advisory Committee that, due to the mobility of sitting military trial judges, as well as former military appellate judges, the Judge Advocates General are better situated than the Court to ensure that such judges are promptly notified of orders granting or denying extraordinary relief. Accordingly, in contrast with FED. R. APP. P. 21(b)(7), the new Rule makes no provision for such service by the Court. See Rules 10(d), 43(b), 43A(b). As revised, Rule 27(b) eliminates, for the reasons set out above, the requirement that separate briefs accompany writ appeal petitions. As in the case of petitions filed in the first instance, writ appeal petitions should ordinarily contain ample legal analysis to permit disposition without further briefing. Rules 18(a)(4), 19(e), and 25 have been amended to omit reference to the submission of briefs in connection with writ appeal petitions. Rule 27(a)(4) has been revised to preclude the submission of petitions for extraordinary relief by electronic means, including facsimile, except by authorization of the Clerk. When counsel in the field find it necessary to submit, by electronic means, a petition for immediate transmission to the Court, it should normally be transmitted to the Chief of the Appellate Defense Division or the Appellate Government Division, as appropriate, within the Office of the Judge Advocate General of petitioners service, with copies to all named respondents and to any trial or appellate military judge whose decision, judgment, or order is the subject of the petition, in accordance with subsection (a)(1). Upon receipt, the appropriate Appellate Division should reproduce the submission and it should be filed by an appellate counsel appointed within such office in accordance with Rule 37. Finally, Rules 19(d) and 19(e) have been amended to afford a preference in disposition to petitions for extraordinary relief and writ appeal petitions.
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[See also 1998 Rules Advisory Committee Comment to Rule 8.] 2007 Rules Advisory Committee Comment Current Rule 27(b) regarding writ-appeal petitions does not contain a page limit. The proposed change amends this oversight. 72 FED. REG. 67,599 (2007). Discussion The Rule covers two kinds of proceedings, and must be read in this light. They are not treated identically. Thus, it prescribes a length limit for petitions for extraordinary writs but not for writ appeal petitions. Compare Rule 27(a)(1) with Rule 27(b). When a stay is sought in connection with a petition for extraordinary writ, a certificate of compliance may be needed for the petition but not for what may be a longer motion for a stay, as there is no page limit for motions. See Discussion of Rule 30. Unless the Court enters a show cause order, the respondent in an extraordinary writ case need take no action in response to the petition. Indeed, an answer cannot be filed absent an order of the Court, although such pleadings as a motion to dismiss for lack of jurisdiction apparently can be filed without an order to show cause. Entry of an order directing the appointment of counsel, see Rule 17, indicates only that the Court believes a substantial question may be presented. It by no means guarantees a favorable ruling on the merits. See, e.g., Dansby v. Commanding Officer, 15 M.J. 287 (mem.), app. dismissed as moot, 15 M.J. 464 (1983) (mem.). In a writ appeal case, the rule requires submission of an answer, and seems to suggest[u]pon the filingthat the Court will not act until the parties pleadings have been received. In practice, however, it apparently does not deem itself bound to wait for an answer, much less to insist that one be filed. In United States v. Tate, 60 M.J. 275 (2004) (mem.), for example, it denied a writ appeal petition without waiting for an answer. The rule provides for service of the petition on the Judge Advocate General by the Clerk before (and therefore whether or not) the Court enters an order directing submission of an answer. Such orders are entered in only a small percentage of writ cases. Nonetheless, the Clerks service of the petition on the Judge Advocate General is worthwhile because it may alert that official to systemic or other problems which, while not within the Courts jurisdiction or otherwise rising to the level required for an order to show cause or grant of extraordinary writ, may warrant consideration by the Judge Advocate General or other service personnel.
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The Court may, under Rule 27(a), grant ex parte relief. For example, in Johnson v. Thurman, 3 M.J. 373 (1977) (mem.), a pro se original habeas application, the Court, over the dissent of Judge Cook, summarily issued the writ ex parte where it was alleged that an accuseds conviction had been reversed but he had been retained in confinement for 60 days thereafter without being brought before a magistrate. An ex parte stay was granted in Murphy v. Garrett, 30 M.J. 51 (1990) (mem.). The stay issued the day the petition was filed. In Samples v. Vest, 38 M.J. 482 (1994), a stay request was filed and served at approximately 8:00 a.m., and the Court granted a stay at approximately 9:15 a.m., without having heard from the government. In Fletcher v. Covington, 42 M.J. 113, 215 (1995) (mem.) (3-2 decision), it stayed a Navy captains mast before hearing from the government. Soon after, it vacated the stay when Fletcher moved to withdraw his petition. 42 M.J. 116 (1995) (mem.) (4-1 decision). Ex parte writs are extremely rare since it is ordinarily possible to schedule a hearing on short notice, as the Court has frequently done. See Discussion of Rule 40. The Court may also set a case down for hearing, e.g., Loving v. United States, 68 M.J. 1 (2009) (capital habeas), and can even do so based solely on the petition and supporting papers. Gard v. Cook, 33 M.J. 480 (1991) (mem.). Under a 1990 rules change, a senior judge may be designated as a special master. Rule 3A(b). In U.S. Navy-Marine Corps Court of Military Review v. Carlucci, 26 M.J. 328, 341 (1988), report accepted and filed, 30 M.J. 29 (1990) (mem.), the Court appointed one of its own regular judges as a special master, but that should no longer be necessary. More commonly, it will appoint a member of its staff. E.g., United States v. Madden, 31 M.J. 407 (1990) (mem.); United States v. Hock, 31 M.J. 334, 335 (1990) (per curiam); United States v. Everhart, 30 M.J. 164 (1990) (mem.); United States v. Malaterre, 30 M.J. 165 (1990) (mem.); United States v. Capps, 23 M.J. 405 (1987) (mem.). The Court had to reassign one group of cases when the special master took a position with a federal agency, leading to unspecified practical difficulties. United States v. LeCroy, 31 M.J. 481, 482 (1990) (mem.). It has also relied on military judges to perform tasks resembling those of a special master. United States v. Vietor, 10 M.J. 69, 73 (1980); United States v. Killebrew, 9 M.J. 154, 162 (1980). The procedures employed by special masters may be established by order of the Court, but much is left to the masters discretion. Thus, in United States Navy-Marine Corps Court of Military Review v. Cheney, 30 M.J. 29, 31 (1990) (final report of special master), the special master (Cox, J.) employed quite informal means for gathering information. In United States v. Hock, 31 M.J. 334, 337-38 (1990) (report of special master), an evidentiary hearing was averted by the submission of affidavits and other documentary evidence. In that case, the special master also directed that motions be filed with him rather than with the Court, id. at 338, Rule 36(a) to the contrary notwithstanding. Special filing arrangements should be avoided because they may impede public access to proceedings before special masters.
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Extraordinary relief has been sought by electronic message in only a few cases. E.g., Green v. United States, 9 M.J. 130 (1980) (mem.). An analogous provision to Rule 27(a)(4) appears in Ct.Crim.App.R. 20(c). See Ortiz v. OBryan, 735 F. Supp. 49, 50 n.3 (D.P.R. 1990). By order entered on May 8, 2003, but not incorporated into any of the standing rules, the Court instituted a pilot project under which counsel may file two limited types of pleadings electronically: motions for a first enlargement of time in which to file a supplement to the petition or an answer thereto, and motions for a first enlargement of time to file briefs under Rule 24 (but not reply briefs). In re Electronic Filing, 58 M.J. 282 (2003); see Discussion of Rule 33. Electronic filingstill limitedis now covered by an order issued on July 15, 2009, and reproduced in the Appendix. Unlike the Article III courts, see FED. R. APP. P. 25(a); FED. R. CIV. P. 5(e); see also, e.g., VET. APP. R. 25(b)(1); Md. R. 1-322(b); cf. 76 A.B.A.J. 19-20 (May 1990), the Court had long made no specific provision for filing by fax. Its practice was obscure. Thus, in one instance, a writ pleading was faxed to the courthouse from Hawaii and apparently was circulated to chambers, but it was not deemed filed. In Gard v. Cook, 33 M.J. 484 (1991) (mem.), an Article 32 investigating officers order that was faxed to counsel who were at the courthouse for an expedited hearing on a stay application was also made available to the judges without having been formally filed by either party. Circulation of the document prejudiced neither party, but the better practice would have been to require a formal filing. More recently, in United States v. Bell, 37 M.J. 193 (1993) (mem.), counsel seeking a rescheduling of oral argument submitted a copy of a motion by fax. In United States v. Simpson, 37 M.J. 212 (1993 (mem.), leave was granted to substitute hard copies for facsimile copies of documents. See also United States v. Baker, 45 M.J. 53 (1996) (mem.); United States v. Untulis, 39 M.J. 24 (1993) (mem.). In United States v. Perlman, 46 M.J. 163 (1996) (mem.), the Court denied a motion to dismiss a certificate for review that had been faxed to the courthouse on the afternoon of the last permissible day and delivered that afternoon to the Docket Room by chambers staff. The 1998 change and explanatory matter from the Rules Advisory Committee should help to regularize practice regarding the use of faxes. Rule 28. FORM OF PETITION FOR EXTRAORDINARY RELIEF, WRIT APPEAL PETITION, ANSWER, AND REPLY
(a) Petition/writ appeal petition. A petition for extraordinary relief or a writ appeal petition for review of a Court of Criminal Appeals decision on application for extraordinary relief will be accompanied by any order or opinion or parts of the record that may be essential to understanding the
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matters set forth in the petition, and will be substantially in the following form: IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES In Re [Petition for Extraordinary Relief Only] (Petitioner) (Appellant) v. ) ) ) ) ) ) ) ) ) ) ) ) ) [PETITION FOR EXTRAORDINARY RELIEF IN THE NATURE OF (Type of Writ Sought)] OR [WRIT APPEAL PETITION FOR REVIEW OF (Name of Service) COURT OF CRIMINAL APPEALS DECISION ON APPLICATION FOR EXTRAORDINARY RELIEF] [Crim.App. Misc. Dkt. No. ______] [Use For Writ Appeal Only] USCA Misc. Dkt. No. [For Court Use Only] Preamble The (petitioner) (appellant) hereby prays for an order directing the (respondent) (appellee) to: [Briefly state the relief sought.] I History of the Case [See Rule 27(a)(2)(B)(i)] II Reasons Relief Not Sought Below [See Rule 27(a)(2)(B)(ii)] III Relief Sought
(Respondent) (Appellee)
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[State with particularity the relief which the petitioner or appellant seeks to have the Court order.] IV Issues Presented [Do not include citations of authority or discussion of principles. Set forth no more than the full questions of law involved.] V Statement of Facts [See Rule 27(a)(2)(B)(v)] VI Reasons Why Writ Should Issue [Where applicable, indicate why the Court of Criminal Appeals erred in its decision.] VII Respondents Addresses, Telephone, and Facsimile Numbers [See Rule 27(a)(2)(B)(vii)] Signature of [petitioner] [appellant] [counsel] Address, telephone no., and facsimile no. of [petitioner][appellant][counsel] CERTIFICATE OF FILING AND SERVICE I certify that a copy of the foregoing was [delivered] (or) [mailedspecify class] (or) [delivered tospecify the name of the third-party commercial carrierfor delivery and specify within how many days delivery will be effected] to the Court, [delivered] (or) [mailedspecify class] (or) [delivered tospecify the name of the third-party commercial carrierfor delivery and specify within how many days delivery will be effected] (or) to the [trial or appellate military judge whose decision, judgment, or order is the subject of the petition], and [delivered] (or) [mailedspecify class] (or) [delivered tospecify the name of the thirdparty commercial carrierfor delivery and specify within how many days deli-
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very will be effected] (or) [transmitted by electronic means with the consent of the counsel being servedspecify the electronic mail address or facsimile number used] to (email or facsimile no.), the [respondent] [appellee] on (date). (Typed name and signature) (Address and telephone no.) (b) Answer. (1) The respondents answer to an order to show cause, if ordered by the Court after consideration of a petition for extraordinary relief, shall be in substantially the same form as that of the petition, except that the answer may incorporate the petitioners statement of facts, add supplementary facts, or contest the statement. To the extent that the petitioners statement of facts is not contested by the respondent, it shall be taken by the Court as representing an accurate declaration of the basis on which relief is sought. The answer to the order to show cause will be filed no later than 10 days after service on the respondent of the order requiring such answer, unless a different time for filing the answer is specified in the Courts order. (2) The appellees answer to a writ appeal petition shall be filed no later than 10 days after the filing of the appellants writ appeal petition. (c) Reply. (1) A reply may be filed by the petitioner no later than 5 days after the filing of a respondents answer to an order to show cause. (2) A reply may be filed by an appellant, in the case of a writ appeal petition, no later than 5 days after the filing of an appellees answer.
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1983 Rules Advisory Committee Comment This rule provides in subsection (a) a form which may be used for a petition for extraordinary relief in the exercise of the Courts original jurisdiction or for a writ appeal petition. In the case of a petition for extraordinary relief, subsection (b)(1) requires that an answer be filed only when the Court issues a show cause order. Such answer shall be substantially in the same form as that of the petition. It may incorporate the petitioners statement of facts, add supplementary facts, or contest that statement. The answer must be filed by the respondent no later than 10 days after service of the show cause order, unless a different time is specified by the Court. Under subsection (c)(1), a petitioner may file a reply no later than 5 days after the filing of the respondents answer to the show cause order. In the case of a writ appeal petition, subsection (b)(2) requires that an appellees answer be filed not later than 10 days after the filing of the appellants writ appeal petition [and supporting brief, obsolete], without the issuance by the Court of a show cause order. Under subsection (c)(2), a reply may be filed by the appellant no later than 5 days after the filing of the appellees answer. 1998 Rules Advisory Committee Comment [See 1998 Rules Advisory Committee Comment to Rule 27.] 2005 Rules Advisory Committee Explanatory Note Rules 21(b)(6), 24(a), 28(a), 32, and 34(b) pertaining to certificates of filing and service have been amended to reflect the changes in Rules 36 and 39. 70 FED. REG. 54,370, 54,372 (2005). Discussion Contrary to the Rules Advisory Committees 1983 comment, the Court lacks original jurisdiction. Clinton v. Goldsmith, 526 U.S. 529, 537 n.10 (1999).
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The caption portion of the Rule 28 form covers two types of proceeding, and it is important not to confuse them. If the petition is an original application (i.e., not a writ appeal from a decision of a Court of Criminal Appeals), all that is required is the In re William Winthrop form of caption. In a writ appeal, however, the Smith v. Jones form of caption is required. By attempting to provide for two alternative types of captions in a single form, the Rule has led many a capable practitioner (and even the Court itself, e.g., Diaz v. Judge Advocate General of the Navy, 59 M.J. 34 (2003) (per curiam)) into error. Although this has not yet prejudiced any client so far as is known, it certainly would be desirable if the Court were to recast the specimen format found in the Rule into two, rather than have a single one try to do the work of two. The rules used to require both a petition and an accompanying brief. In many instances, it made no sense to separate the two, and in 1998 the Court wisely deleted the requirement for a supporting brief. Cf. Rules 19(f), 29(c) (permitting supporting brief to be expressly incorporated in petition for new trial). The petition should be as short and to-the-point as possible. Indeed, the time constraints imposed by Rule 19(d) may make brevity a necessity as well as a virtue. If the petition fails to allege sufficient facts and circumstances to enable [the] Court to determine if it has jurisdiction, it will be dismissed. Sills v. Keller, 14 M.J. 317 (1982) (mem.) (noting failure to allege that complaint resulted from any court-martial proceeding or any other action under UCMJ). See generally Discussion of Rule 4 (collecting cases). Counsel should also note the requirement of (a) (revised effective May 1, 1998) that any order or opinion or part of the record that may be essential to understanding the matters set forth in the petition accompany the petition. Subsection (b)(1) calls for an answer to an order to show cause to be filed within 10 days. See also Ct. Crim. App. R. 20(e). This contrasts with the federal habeas statute, which requires a return to an order to show cause within three days unless for good cause additional time, not exceeding twenty days, is allowed. 28 U.S.C. 2243 (2006). In light of the conformity clause of Article 36(a), 10 U.S.C. 836(a) (2006), counsel filing a petition for extraordinary relief in the nature of a writ of habeas corpus may wish to ask the Court to require an answer within three days. The provisions for use of third-party commercial carriers, email and facsimile were added in 2005, effective January 1, 2006. Petitions for New Trial Rule 29. FILING, NOTICE, AND BRIEFS (a) Filing. A petition for new trial will be filed with the Judge Advocate General of the service concerned, who, if the case is pending before this
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Court, will transmit it, together with seven copies, to the Clerks office for filing with the Court. (b) Notice. Upon receipt of a petition for new trial transmitted by the Judge Advocate General, the Clerk will notify all counsel of record of such fact. (c) Briefs. A brief in support of a petition for new trial, unless expressly incorporated in the petition, will be filed substantially in the form specified in Rule 24 no later than 30 days after the issuance by the Clerk of a notice of the filing of the petition. An appellees answer shall be filed no later than 30 days after the filing of an appellants brief. A reply may be filed no later than 10 days after the filing of the appellees answer. (d) Special Master. The Court may refer a petition for new trial to a special master, who may be a military judge or other person, to make further investigation, to take evidence, and to make such recommendations to the Court as are deemed appropriate. See United States v. DuBay, 17 U.S.C.M.A. 147 (1967). 1983 Rules Advisory Committee Comment The provisions of former Rule 27 are retained. However, . . . subsection (c) contains an express requirement for the filing of a brief in support of the petition and sets forth the time limits for filing the brief, answer, and reply. Discussion A new trial may only be ordered pursuant to Article 73, UCMJ . . . . United States v. Evans, 37 M.J. 468, 472 (1993). A petition for new trial is to be initially filed with the Judge Advocate General, who will cause said petition to be transmitted by letter signed by his designated representative to the appropriate court. United States v. Loguda, 19 M.J. 307 n.* (1985) (mem.) (emphasis in original); see generally R.C.M. 1210; DAVID A. SCHLUETER, MILITARY CRIMINAL JUSTICE: PRACTICE AND PROCEDURE 17-21 (6th ed. 2004); Carlle, New Trial Petitions Under Article 73, UCMJ, 13 ADVOCATE 2 (1981). Thus, the Judge Advocate General simply serves as a post office for receipt of new trial petitions if the case has entered the appellate courts.
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Ordinarily the Court of Appeals will consider a new trial petition and the merits of a case before it under Article 67(a)(3) at the same time. E.g., United States v. Suarez, 35 M.J. 374 (1992); United States v. Giambra, 32 M.J. 193 (1990) (mem.). An order in the Article 67(a)(3) case alone does not divest the Court of jurisdiction over the new trial petition. United States v. Thompson, 21 M.J. 179 n.* (1985) (mem.). As indicated in subparagraph (d), a DuBay hearing may be ordered to resolve factual disputes raised on a petition for new trial. E.g., United States v. Niles, 45 M.J. 455, 456 (1996) (noting action of lower court). An alternative is for the judges themselves to conduct an evidentiary hearing, as occurred in United States v. Hood, 9 C.M.A. 558, 26 C.M.R. 558 (1958), but this seems entirely inappropriate for the highest appellate court of a jurisdiction. Where a new trial petition has been mooted by a decision under Article 66, but that decision is overturned by the Court of Appeals for the Armed Forces, the new trial petition is unmooted and may be addressed by the Court of Criminal Appeals on remand, even if the petition had not been briefed to the Court of Appeals for the Armed Forces. United States v. Seivers, 9 M.J. 612, 614 (A.C.M.R.), affd mem., 9 M.J. 397 (1980). When a new trial is sought on grounds of newly discovered evidence, the burden on the petitioner is heavier than during direct appellate review. United States v. Bacon, 12 M.J. 489 (1982). In such a case, counsel should be prepared to brief the issues of whether the evidence is newly discovered and, if so, whether it warrants a new trial. United States v. Brooks, 49 M.J. 64, 68 (1998); United States v. Suarez, 34 M.J. 172 (1991) (mem.). The burden is especially onerous in cases of recantation. United States v. Rios, 48 M.J. 261, 268 (1998). In United States v. Van Tassel, 38 M.J. 91, 93 (1993), the Court left unresolved whether it would consider evidence relating to a new trial petitioners mental capacity which had not been before the Court of Military Review (as it then was) when it ruled on his petition. Being generally disfavored, Brooks, supra, 49 M.J. at 68, quoting United States v. Williams, 37 M.J. 352, 356 (1993), new trial petitions are rarely filed, e.g., FY87 CODE COMM. ANN. REP. 20 (1988) (2769 total filings, eight new trial petitions), and even more rarely granted. For a rare exception see Niles, supra. The stringent standard for consecutive petitions for new trial is comparable with that for consecutive habeas petitions. Brooks, supra, at 69. New trial issues may be raised by petition for grant of review of a Court of Criminal Appeals decision on a new trial petition, e.g., Brooks, supra; Niles, supra, as well as by submission of an original petition for new trial to the Court of Appeals for the Armed Forces. E.g., United States v. Chaff, 13 C.M.A. 438, 32 C.M.R. 438 (1963). The Courts scope of review, and the petitioners burden, should be unaffected by the choice. For the effect of submission of a new trial petition on the deadline for filing a petition for grant of review as well as dis-
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cussion of whether the two-year statutory deadline for new trial petitions may be extended see Discussion of Rule 19. On March 31, 1994, the Court amended (a) of the Rule to require the Judge Advocate General to file the original and seven copies of the petition, in lieu of the prior requirement for an original and four copies. 39 M.J. 446. Motions Rule 30. MOTIONS (a) All motions will be filed in writing and will state with particularity the relief sought, the factual or legal grounds for requesting such relief, and will include a certificate of filing and service in accordance with Rule 39(c). A copy will be served on opposing counsel and others who have entered an appearance in the proceedings. (b) Any answer to a motion will be filed no later than 5 days after the filing of the motion. (c) A reply to an answer to a motion may be filed no later than 5 days after the filing of the answer. (d) Motions will be separately filed before the Court and shall not be incorporated in any other pleading. (e) Once a notice of hearing has been given to counsel for the parties, motions may not be filed within 5 business days prior to the date on which such hearing is scheduled except by leave of the Court and for good cause shown. (f) Oral motions presented by leave of the Court during a hearing shall be forthwith reduced to writing by the moving counsel and filed with the Court within 3 days after such hearing. (g) Notwithstanding any other provision of these rules, the Court may immediately act on any motion without awaiting an answer or a reply, if it appears that the relief sought ought to be granted. Any party adversely affected by such action may request reconsideration, vacation, or modification of such action.
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1983 Rules Advisory Committee Comment This rule covers material contained in Rule 28 of the Courts 1977 rules. Editorial revisions have been made to require that all motions state the legal and factual grounds for requesting relief and that there be included in each motion pleading the new standardized certificate of filing and service. An answer to a motion, if any, will be filed within 5 days after filing of the motion. . . . [S]ubsection (d) expressly prohibits counsel from incorporating a motion in any other pleading. Once notice of hearing has been given to the parties, subsection (e) provides that motions may not be filed within 5 working days prior to the date on which the hearing is scheduled, except by leave of Court and for good cause shown. 1995 Rules Advisory Committee Comment The purpose of these proposed rule changes is to eliminate the need for counsel to seek leave of court when filing replies to answers to motions generally and petitions for reconsideration. E.g., D.C. Cir. R. 27(d); 4th Cir. [R. 27(e)(2)]; D.D.C. [Local Civ. R. 7.1(d)]; FED. CL. R. 83.2; see ROBERT L. STERN, EUGENE GRESSMAN, STEPHEN M. SHAPIRO & KENNETH S. GELLER, SUPREME COURT PRACTICE 16.6, at 642 n.6 (7th ed. 1993). The changes will bring motion and reconsideration practice into line with the Courts normal practice of permitting replies. See Rules 19(a)(5)(A)-(B), 19(a)(7)(B), 19(b), 19(c), 19(e), 19(f), 21(c)(1)-(2), 22(b), 23(b), 27(b), 28(c), 29(c). 60 FED. REG. 4896 (1995). 1999 Rules Advisory Committee Comment Rule 36A having been promulgated, the phrase referring to motions to file recent supplemental citations of authority without additional argument has been deleted as no longer necessary. 2007 Rules Advisory Committee Comment The recommendation to change Rule 30(e) would modify the word working to business days for consistency with new Rule 36A. 72 FED. REG. 67,599 (2007).
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Discussion The Court is particular about compliance with its rules. Leave should be sought, by motion that complies with Rule 30, for any departure. E.g., United States v. Baker, 65 M.J. 443 (2007) (mem.) (withdrawal of petition for grant of review); United States v. Roten, 65 M.J. 443 (2007) (mem.) (out-of-time supplement); United States v. Dixon, 65 M.J. 443 (2007) (mem.) (same). There is no page limit for motions, answers and replies. The rule originally made no provision for replies, and the Clerks Office took the position that replies (like other submissions not expressly contemplated by the Rules) could only be filed with leave of the Court. This was unnecessary and contrary to normal civilian practice. The rule (like Rule 31) was changed to permit replies as a matter of right in 1995. 43 M.J. CLXXXI. A motion should not be made in or combined with a brief, see United States v. Pulliam, 43 M.J. 172 (1995) (mem.) (denying motion to dismiss as untimely which was contained in answer to supplement), nor should a motion for leave be combined with the pleading for which leave is sought. United States v. Carpenter, 50 M.J. 323 n.* (1998) (mem.) (noting violation of Rule 30(d)); see also, e.g., United States v. Pulliam, 43 M.J. 172 (1995) (mem.); United States v. Simpkins, 19 M.J. 272 (1985) (mem.). Rule 30(c) does not, however, preclude the combination of more than one motion in a single paper. Where motions are combined in this fashion, all must be identified in the title of the pleading, United States v. Barna, 16 M.J. 194 (1983) (mem.) (semble) (striking portion of motion to cite additional authority that sought summary disposition), to the right of the caption. The precise relief sought in respect of each aspect should be stated. Any response to a motion should be styled an Answer. See generally Letter from Thomas F. Granahan, Clerk of the Court, to Captain Walter S. Landen, Sr., JAGC, USN, Chief, Defense App. Div., Navy-Marine Corps App. Rev. Activity (Dec. 1, 1983) at 2; e.g., United States v. Talty, 16 M.J. 435 (1983) (mem.); but see United States v. Pabon, 42 M.J. 47 (1994) (mem.) (referring to opposition to motion). The rules choice of terms can create confusion, as the same word is used to describe certain briefs submitted by an appellee or respondent. A good solution is to name the pleading to which any particular answer responds (e.g., Petitioners Answer to Motion to Dismiss). Motions that are noncontroversial, particularly, but not only, those that fall within the Clerks authority under Rule 9(d), should be discussed beforehand with opposing counsel and, where consent or lack of objection has been obtained, that fact should be stated prominently in the pleading. Letter from Thomas F. Granahan, supra, at 3. This will permit the Court to identify matters that can safely be addressed without awaiting an answer. See Rule 30(f). A typical formula might be: We are authorized by Lieutenant Ploni Almoni, USCGR, counsel for the respondent, to state that respondent has no objection to the relief requested herein. There should be no need to secure opposing coun-
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sels signature on a consented pleading, but at times this may be desirable. Cf. Discussion of Rule 16. Where a motion rests on factual averments, an affidavit should be submitted, and the Court may so require. E.g., United States v. Loguda, 19 M.J. 307, 308 (1985) (mem.); United States v. Ramirez, 19 M.J. 289 (1985) (mem.); United States v. Sikorski, 7 M.J. 252 (1979) (mem.). The use of affidavits has been permitted on the question of effectiveness of counsel and the propriety of a remand for a DuBay hearing. United States v. Mays, 33 M.J. 455, 457 (1991) (collecting cases). For a convenient method that dispenses with the need for an officer authorized to administer oaths see 28 U.S.C. 1746 (2006). See, e.g., United States v. Pringle, 48 M.J. 31 (1997) (mem.) (requiring appellant to submit affidavit or declaration under 1746). The Clerk has also indicated that a motion to correct errata may be filed, rather than a motion for leave to file corrected pages, where the corrections are limited to a few minor typographical spelling errors. Letter from Thomas F. Granahan, supra, at 3. In United States v. Fluellen, 38 M.J. 305 (1993) (mem.), however, the Court held a motion to correct errata in abeyance until counsel provided a corrected page reflecting the matter included in the motion. Counsel should err on the side of filing corrected pages in order to reduce the burden on the Clerks Office. Unlike some tribunals, e.g., D.D.C. LCrR 47.1(c), the Court does not require that a proposed order be submitted with motions. Preparation of a proposed order may, however, be useful as a means of avoiding possible confusion as to the precise relief sought. Rule 30(e) requires leave of court and good cause for motions filed within five business days of a scheduled hearing. Counsel should not be shy about seeking leave if the motion sought to be filed might impel the Court to vacate the order setting the case down for hearing. United States v. Dickson, 60 M.J. 464 (2005) (mem.). For rare instances in which motions may be made in open court see United States v. Thomas, 37 M.J. 275 (1993) (mem.) (confirming open-court grant of leave to appear pro hac vice); United States v. Duncan, 37 M.J. 237 (1993) (mem.) (leave to supplement oral argument and place excerpt of record before the Court) (semble); United States v. Leaver, 36 M.J. 56 (1992) (mem.) (granting motion to file documents to attach to record); United States v. Yarbough, 32 M.J. 496 (1991) (mem.) (granting motion to cite supplemental authority filed at oral argument); United States v. Phillips, 32 M.J. 192 (1990) (mem.) (motion for leave to file supplemental citations of authority out of time, granted from bench); United States v. Dicupe, 19 M.J. 151 (1984) (mem.) (motion to argue pro hac vice); United States v. Thurman, 6 M.J. 166 (1979) (mem.). If the Court raises a question at oral argument, leave may be sought to respond to it thereafter. United States v. Green, 43 M.J. 410 (1995) (mem.). In the event of a misstatement at oral argument, leave may be sought thereafter to file a correc-
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tion, as was done in United States v. Lee, 51 M.J. 479 (1999) (mem.). See also United States v. Smith, 56 M.J. 229 (2001) (mem.) (granting motion to supplement oral argument). Rule 30A. FACT FINDING (a) General. The Court will normally not consider any facts outside of the record established at the trial and the Court of Criminal Appeals. (b) Judicial notice. In an appropriate case, the Court may take judicial notice of an indisputable adjudicative fact. (c) Remand for fact finding. If an issue concerning an unresolved material fact may affect the Courts resolution of the case, a party may request, or the Court may sua sponte order, a remand of the case or the record to the Court of Criminal Appeals. If the record is remanded, the Court retains jurisdiction over the case. If the case is remanded, the Court does not retain jurisdiction, and a new petition for grant of review or certificate for review will be necessary if a party seeks review of the proceedings conducted on remand. (d) Stipulation by the parties. If an issue concerning an unresolved material fact may affect the Courts resolution of the case, the parties may stipulate to a factual matter, subject to the Courts approval. (e) Other means. Where it is impracticable to remand a case to the Court of Criminal Appeals, the Court may order other means to develop relevant facts, including the appointment of a special master to hold hearings, if necessary, and to make such recommendations as are deemed appropriate. 1999 Rules Advisory Committee Comment Rule 30A codifies the Courts practice concerning additional fact finding, and provides a counterpart to Federal Rule of Appellate Procedure 48, which concerns appointment of special masters. While requests to estab-
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lish additional facts are disfavored, the Court has on occasion accepted affidavits, appointed special masters, accepted stipulations of facts, and directed that evidentiary hearings be held. Subsection (b) codifies the Courts discussion of judicial notice in United States v. Williams, 17 M.J. 207 (C.M.A. 1984). Subsection (c) recognizes that the Court may sometimes remand a case for the lower courts reconsideration in light of a contested issue of facts determination, or it may sometimes choose to remand for the limited purpose of determining a contested fact while retaining jurisdiction over the case. Subsection (c) enables the Court to decide on a case-by-case basis whether the lower court will exercise complete jurisdiction upon remand. Cf. D.C. Cir. R. 41(b). The Committee envisions that stipulations made under subsection (d) will be presented to the Court via a motion to attach a stipulation to the record made pursuant to Rule 30. Subsection (e) recognizes that, where necessary, the Court may order alternative means of determining facts, including the appointment of special masters. Reconsideration Rule 31. PETITION FOR RECONSIDERATION (a) A petition for reconsideration may be filed no later than 10 days after the date of any order, decision, or opinion by the Court. (b) An answer may be filed by opposing counsel no later than 5 days after the filing of the petition. (c) A reply to an answer to a petition may be filed no later than 5 days after the filing of the answer. (d) A petition for reconsideration shall be granted with the concurrence of a majority of the judges who participated in the original decision. (e) Consecutive petitions for reconsideration, and any such petition that is out of time, will not be filed unless accompanied by a motion for leave to file the same, in accordance with Rule 30, and unless such motion is granted by the Court.
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1983 Rules Advisory Committee Comment Editorial changes have been made to former Rule 29 to provide for filing of answers no later than 5 days after filing of the petition. A requirement has been added for the concurrence of two judges to allow a petition for reconsideration, modification or rehearing. 1995 Rules Advisory Committee Comment [See 1995 Rules Advisory Committee Comment to Rule 30. 60 FED. REG. 4896 (1995).] 1999 Rules Advisory Committee Comment The purpose of this amendment to Rule 31(d) is to make it clear that reconsideration may only be granted if a majority of those judges who participated in the original decision vote to grant reconsideration. For this purpose, all judges who voted, including those who dissented or concurred, shall be deemed to have participated in the original decision. Discussion The Court added what is now Rule 31(c) in 1995, allowing replies as a matter of right. 43 M.J. CLXXXII; see also Discussion of Rule 30. There is no duty to request reconsideration as a predicate to applying for Supreme Court review, just as there is no duty to seek reconsideration from a Court of Criminal Appeals under Ct.Crim.App.R. 19 before filing a petition for grant of review with the Court of Appeals for the Armed Forces. For the effect of seeking reconsideration on the period for seeking certiorari see S. CT. R. 13.3. To be successful on a petition for reconsideration, the petitioner must demonstrate that the Court misconstrued or overlooked an issue of law or fact. United States v. Wiesen, 57 M.J. 48 (2002) (per curiam) (citing Rule 32) (3-2 decision). If there are viable grounds to do so, such a petition should by all means be filed. Under Wiesen, however, it should not contain merely a restatement of arguments already presented. See also Buber v. Harrison, 61 M.J. 70 (2005) (mem.) (4-1 decision). The Court historically has granted reconsideration sparingly, e.g., FY90 CODE COMM. ANN. REP. 20 (1991) (13 requests for consideration or rehearing, one granted), but there is fluctuation from year to year. See FY92 CODE COMM. ANN. REP. 18 (1993) (16 requests for reconsideration or rehearing, four
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granted); FY91 CODE COMM. ANN. REP. 16 (1992) (seven requests, all granted); FY93 CODE COMM. ANN. REP. 22 (1994) (12 requests acted upon, two granted); FY94 CODE COMM. ANN. REP. 16 (1994) (17 requests acted upon, two granted); FY95 CODE COMM. ANN. REP. 16 (1995) (11 requests acted upon, three granted); FY96 CODE COMM. ANN. REP. 9 (1996) (16 requests acted upon, one granted); FY97 CODE COMM. ANN. REP. 10 (1997) (19 requests acted upon, two granted); FY98 CODE COMM. ANN. REP. 7 (1998) (103 requests acted upon, eight granted). Lightning can strike. E.g., United States v. Diaz-Duprey, 57 M.J. 446 (2002) (mem.) (granting untimely petition for reconsideration); United States v. Brocks, 56 M.J. 397 (2002) (mem.), error found harmless, 58 M.J. 11 (2002) (mem.); United States v. Campbell, 52 M.J. 386 (2000) (per curiam) (4-1 decision); United States v. Falk, 52 M.J. 451 (1999) (mem.) (granting reconsideration in part); United States v. Stargell, 51 M.J. 483 (1999) (mem.) (3-2 decision) (same); United States v. Edmond, 45 M.J. 19 (1996) (mem.); United States v. Melcher, 39 M.J. 189 n.*, 345 (1993) (mem.) (vacating dismissal of petition for grant of review as untimely); United States v. Cooper, 35 M.J. 417, 418 (1992) (intervening Supreme Court decision); United States v. Clark, 34 M.J. 59 (1991) (mem.); United States v. Hilton, 32 M.J. 393, 394 (1991) (noting grant of reconsideration, 31 M.J. 426 (1990) (mem.), based on intervening Supreme Court decision); United States v. Rodriguez, 32 M.J. 224 (1990) (mem.); United States v. Martindale, 32 M.J. 33 (1990) (mem.); United States v. McKinney, 9 M.J. 86 (1980) (per curiam); United States v. Bowling, 9 M.J. 54 (1980) (mem.); United States v. Hybertson, 2 M.J. 154 (1976) (mem.); United States v. Binkley, 19 C.M.A. 494, 42 C.M.R. 96 (1970) (reconsidering denial of petition after reversal of coaccuseds case); United States v. Adams, 19 C.M.A. 262, 41 C.M.R. 262 (1970) (intervening Supreme Court decision); United States v. Garcia, 18 C.M.A. 5, 39 C.M.R. 5 (1968) (contrary C.M.A. ruling in another case three days after denial of petition for grant of review); cf. United States v. Moulton, 48 M.J. 473 (1998) (mem.) (reconsideration denied without prejudice to consideration of such matters as appellant might identify in an appropriate petition for extraordinary relief, including matters which appellant did not bring to the attention of the Court in his brief or oral argument on direct review). As explained in the Discussion of Rule 19, there are times when the Court may even announce in advance that an intervening Supreme Court decision would be deemed good cause for reconsideration. United States v. Lewis, 39 M.J. 280 (1994) (per curiam); United States v. Schneider, 36 M.J. 364 (1993); United States v. Rice, 36 M.J. 264 (1993). Clarification of the Courts reasoning is an appropriate object of a petition for reconsideration. United States v. Campbell, supra, citing United States v. Berg, 31 M.J. 38 (1990). Faced with a request for reconsideration, the Court may issue a further opinion, United States v. Campbell, supra, even if it denies reconsideration. United States v. Wiesen, supra. It may also specify issues in connection with, United States v. Hessler, 5 M.J. 277 (1978) (mem.), or following a grant of reconsideration. E.g., United States v. Hilton, 32 M.J. 393, 394 (1991), issues specified, 32 M.J. 200 (1990) (mem.).
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Even if the petition fails to achieve the desired result, it at least may furnish additional assurance to the accused that the case has been considered based on a correct understanding of the facts and the issues. E.g., United States v. Berg, supra; United States v. Toledo, 26 M.J. 104 (C.M.A.), cert. denied, 488 U.S. 889 (1988). The government may also petition for reconsideration, of course, and the denial of such a petition may, mutatis mutandis, serve the same purpose. See United States v. Wiesen, supra. A petition for reconsideration may also achieve the desired result indirectly. For example, in United States v. Schneider, 36 M.J. 364 (1993) (per curiam), the Court denied without prejudice a petition to reconsider its refusal to grant review of an issue which was pending at the time before the Supreme Court. But, following the approach taken in United States v. Rice, 36 M.J. 264 (1993) (per curiam), it announced that if certiorari were granted in the lead case and some relief afforded in that case, it would accept out-of-time requests for appropriate relief (presumably reconsideration) where it had previously denied review. See also United States v. Selby, 42 M.J. 87 (1995) (mem.). In United States v. Curtis, 37 M.J. 43 (1992) (mem.), a capital case, the Court, over the dissent of two judges, denied a motion to clarify, but did so without prejudice. The dissenters would have addressed the issue (the appropriate universe of cases to examine in conducting a proportionality review) since the Court would eventually have to do so in any event. Under Rule 32, the petition may not merely restate arguments already presented, but must show that the Court overlooked or misapprehended [a] point of law or fact critical to [its] original decision. United States v. Quillen, 28 M.J. 166 (1989) (mem.); see also United States v. Dearing, 64 M.J. 316 (2006) (mem.). One factor that militates against reconsideration or rehearing requests in the lower federal courts, the risk of having a good appellate issue certproofed, should play no role in the decision to seek reconsideration from the Court of Appeals for the simple reason that the chances of obtaining a grant of certiorari are so slender to begin with that the incremental harm to the litigants prospects are, for all practical purposes, nil. This is especially true where the Court has affirmed summarily since while not immune from [the Supreme Courts] plenary review, ambiguous summary dispositions [in the courts of appeals] tend, by their very nature, to lack the precedential significance that [the Supreme Court] generally look[s] for in deciding whether to exercise [its] discretion to grant plenary review. Lawrence ex rel. Lawrence v. Chater, 516 U.S. 163, 170 (1996) (per curiam). If there is doubt about the meaning of an action by the Court, the matter should be made the subject of an appropriate motion, under either this rule or the generic provisions of Rule 30. E.g., United States v. Hawkins, 11 M.J. 4
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(1981). There is, of course, no guarantee that the Court, faced with a petition for reconsideration seeking reasons for a prior unexplained order, will shed any further light on its action. E.g., Sands v. Commander, Naval Air Reserve Force, 44 M.J. 261 (1996) (mem.), reconsideration denied, 45 M.J. 5 (1996) (mem.), petition for writ of habeas corpus denied sub nom. Sands v. Dalton, Civil No. 961472 (S.D. Fla. 1996). In a proper case, the period for seeking reconsideration may be enlarged. E.g., United States v. Clark, supra (granting motion for leave to file untimely petition for reconsideration, held, reconsideration granted); United States v. Repp, 24 M.J. 447 (1987) (mem.), cert. denied, 484 U.S. 1025 (1988), discussed in Eugene R. Fidell, Review of Decisions of the United States Court of Military Appeals by the Supreme Court of the United States, 16 MLR 6001, 6003 & nn.24-26, 6006 (1988); United States v. Kuskie, 11 M.J. 253, 254 (1981) (2-1 decision) (granted petition for reconsideration filed 14 days late; Appellate Review Activity unaware of petitioners death until day petition for grant of review was denied); but see United States v. Charfauros, 41 M.J. 116 (1994) (mem.) (dismissing untimely petition for reconsideration). Rule 31(d) requires that a motion for leave be filed with an untimely petition for reconsideration. United States v. Simpkins, 19 M.J. 272 n.* (1985) (mem.). Rule 31(d) clarifies a point that arose in United States v. Fimmano, 8 M.J. 197 (1980), reconsideration not granted, 9 M.J. 256 (1980) (mem.), where Chief Judge Everett concluded that he should not vote on a petition for reconsideration of a case decided before he was elevated to the bench. Fimmano was overruled soon after in United States v. Stuckey, 10 M.J. 347 (1981). See also United States v. Goodson, 19 M.J. 138 (1984) (mem.) (petition for reconsideration not granted by equally divided court, Cox, J., not participating), vacated & remanded on other grounds, 471 U.S. 1063 (1985) (mem.). It is certainly not unheard of for a judge who dissented in the Courts original consideration of a matter to stand his or her ground on reconsideration, although practice varies. In United States v. Wiesen, supra, Chief Judge Crawford noted that [t]his case marks the first occasion that I have dissented from a denial of a petition for reconsideration. 57 M.J. at 50. Where the Court announces its ruling but defers issuance of the opinion, see Discussion of Rule 42 (collecting cases), the period for seeking reconsideration will run from release of the opinion. E.g., United States v. Smith, 27 M.J. 408 (1988) (mem.). Although [its] rules do not so provide, th[e] Court has on numerous occasions recalled a previous ruling on its own motion. United States v. Ledbetter, 2 M.J. 37, 52 (1976) (Cook, J., concurring in part), citing United States v. Sanchez, 23 C.M.A. 650 (1975) (mem.), and United States v. Aharonian, 23 C.M.A. 649 (1975) (mem.); see, e.g., United States v. Scranton, 30 M.J. 322-23 (1990) (noting sua sponte rescission of order denying issueless petition for grant of review). In United States v. Singleton, 41 M.J. 200, 207 (1994), the Court, having
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previously denied review of a new-trial issue, reconsidered that action after hearing argument on the balance of the case, and granted review of it in its decision on the merits. Under Rule 43(a), the Court enters a because order making its opinion final when no petition for reconsideration is filed within the period prescribed by Rule 31(a). E.g., United States v. True, 28 M.J. 241 (1989) (mem.); see also United States v. Leal, 45 M.J. 55 (1996) (mem.) (finality order). Rule 32. FORM OF PETITION FOR RECONSIDERATION A petition for reconsideration will be filed in substantially the following form: IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES ) ) ) ) ) ) ) ) ) ) ) PETITION FOR RECONSIDERATION
(Appellee) (Appellant) (Respondent) (Petitioner) v. (Appellant) (Appellee) (Petitioner) (Respondent)
Crim. App. Dkt. No. USCA Dkt. No.
TO THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES: The Court is requested to reconsider its (opinion) (order) (decision) in this case for the following reason(s): [The petition shall state with particularity the points of law or fact which, in the opinion of the party seeking reconsideration, the Court has overlooked or misapprehended and shall contain such argument in support of the petition as the party desires to present. Petitions are not to contain merely a restatement of arguments already presented.] (Counsels typed name and signature) (Counsels address and telephone no.)
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CERTIFICATE OF FILING AND SERVICE I certify that a copy of the foregoing was [delivered] (or) [mailedspecify class] (or) [delivered tospecify the name of the third-party commercial carrierfor delivery and specify within how many days delivery will be effected] to the Court and [mailedspecify class] (or) [delivered tospecify the name of the third-party commercial carrierfor delivery and specify within how many days delivery will be effected] (or) [transmitted by electronic means with the consent of counsel being served] to the [appellant] [appellee] [petitioner] [respondent] on (date). (Typed name and signature) (Address and telephone no.) 1983 Rules Advisory Committee Comment A new standardized certificate of filing and service has been substituted for the certificate of service in former Rule 30. Otherwise, former Rule 30 remains unchanged. 2005 Rules Advisory Committee Explanatory Note Rules 21(b)(6), 24(a), 28(a), 32, and 34(b) pertaining to certificates of filing and service have been amended to reflect the changes in Rules 36 and 39. 70 FED. REG. 54,370, 54,372 (2005). Discussion To be successful on a petition for reconsideration, the petitioner must demonstrate that the Court misconstrued or overlooked an issue of law or fact. United States v. Wiesen, 57 M.J. 48 (2002) (per curiam) (citing Rule 32) (3-2 decision). The petition may not merely restate arguments already presented, but must show that the Court overlooked or misapprehended [a] point of law or fact critical to [its] original decision. United States v. Quillen, 28 M.J. 166 (1989) (mem.). Where counsel learns, after the fact, that service has not been made as recited in the certificate of filing and service, a motion for leave to correct should be filed so that opposing counsel and the Court will be able to calculate deadlines accurately. E.g., Doe v. Commander, Naval Special Warfare Command, 60 M.J. 468 (2005) (mem.); see Discussion of Rule 39.
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The provisions for use of third-party commercial carriers, email and facsimile were added in 2005, effective January 1, 2006. Practice Before the Court Rule 33. SUSPENSION OF RULES For good cause shown, the Court may suspend any of these rules in a particular case, on application of a party or on its own motion, and may order proceedings in accordance with its direction. 1983 Rules Advisory Committee Comment The provision in former Rule 31 for suspending rules for excusable neglect has been omitted. The Committee feels the good cause exception in the rule is sufficiently broad to cover cases of excusable neglect. Discussion No set of procedural rules can anticipate every problem that may arise in litigation. Courts must therefore retain the power to grant exceptions when a litigants request fully accommodates the courts needs and when strict compliance would be wasteful. Professional Positioners, Inc. v. T.P. Laboratories, Inc., 466 U.S. 967 (1984) (mem.) (Stevens, J., dissenting). This observation certainly applies to the Court of Appeals for the Armed Forces. Where a proposed pleading does not comply with the rules, it is important that a Rule 33 suspension be sought. Even if the nonconforming pleading is ultimately accepted (as when opposing counsel voices no objection), or counsel is afforded an opportunity to remedy the defect, e.g., United States v. Reichenbach, 28 M.J. 88 (1989) (mem.); United States v. Dillon, 28 M.J. 86 (1989) (mem.), counsel may still be needlessly embarrassed. E.g., United States v. Poole, 24 M.J. 224 (1987) (mem.) (ordering argument on motion for leave to file untimely supplement to petition); United States v. Thompson, 22 M.J. 2 (1986) (mem.); United States v. Lloyd, 20 M.J. 141 (1985) (mem.). On occasion the Court has gone so far as to strike from the record an out of time pleading. United States v. Pabon, 42 M.J. 47 (1994) (mem.). It is not always possible to tell what animates the Court to strike a pleading. E.g., Trueblood v. Cushman, 2 M.J. 218 (1977) (mem.) (motion granted without explanation). The nature of the case should be considered in deciding how much of an enlargement to seek. For example, the Court has noted, in a case involving a cross-petition, that certificates for review and petitions for grant of review are processed differently, and a particular filing date may delay rather than pro-
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mote the petition process. United States v. Brabant, 27 M.J. 420 (1988) (mem.). It is always preferable not to wait until a pleading is due before seeking an extension of time. E.g., United States v. Reichenbach, supra; United States v. Jones, 26 M.J. 312 (1988) (mem.); United States v. McDougald, 19 M.J. 213 (1984) (mem.). If counsel is then able, after all, to meet the original deadline, as occasionally happens, there is no harm done, and the motion for an enlargement will simply be denied as moot. E.g., United States v. Dire, 50 M.J. 212 (1998) (mem.). If leave to file an out-of-time submission is sought, the proposed pleading should accompany the motion for leave. See United States v. Simpkins, 19 M.J. 272 n.* (1985) (mem.). The Court may enter an order requiring only a response to the motion for leave, holding in abeyance the proffered substantive pleading. E.g., United States v. Dipierno, 51 M.J. 140 (1998) (mem.); United States v. Fry, 51 M.J. 140 (1998) (mem.). The rule refers to good cause as the basis for suspensions, but the concept of excusable neglect, which previously was an alternative basis for relief, seemingly still figures in the Courts decision making. United States v. Aho, 23 M.J. 171 (1986) (mem.) (Cox, J., dissenting). The Court has become increasingly concerned about anything that contributes to appellate delay, and has therefore been anxious to keep extensions of time to a minimum. The reasons for failing to file on time should be stated with particularity. United States v. Reichenbach, supra ([m]erely saying other duties do not permit counsel to file pleading is inadequate); United States v. Dillon, supra. The request should include specific reasons why the normal time is inadequate. United States v. Coleman, 24 M.J. 67 (1987) (mem.); United States v. Toledo, 23 M.J. 44 (1986) (mem.). Conclusory statements, United States v. Zayas, 21 M.J. 309 (1985) (mem.), or broad generalities such as administrative oversight, United States v. Poole, 24 M.J. 224 (1987) (mem.); United States v. Bradshaw, 24 M.J. 200 n.* (1987) (mem.), or pressing business commitments attendant to the close of the fiscal year, United States v. Lewicki, 22 M.J. 377 (1986) (mem.) (sounds too much like saying the law firm has more important things to do than to timely file a brief in the appeal of a murder case involving a life sentence), are insufficient. Cf. United States v. Bell, 37 M.J. 86 (1992) (mem.) (motion to reconsider rescheduling of oral argument denied without prejudice subject to explanation of reference to legal matter). In United States v. Thompson, 32 M.J. 310 (1991) (mem.), the Court reminded counsel that they are responsible for compliance with due dates, not administrative personnel. In United States v. Nisgore, 52 M.J. 481 (1999) (mem.), Judge Sullivan, dissenting, would have ordered appellate defense counsel to explain administrative oversight, citing United States v. Ortiz, 24 M.J. 323 (1987). The need to be specific increases where repeated extensions of time are sought. See United States v. Donnaud, 32 M.J. 374 (1991) (mem.) (no further extension absent specific justification); United States v. Harvey, 22 M.J. 235
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(1986) (mem.); Davies v. Secretary of the Army, 16 M.J. 142 (1983) (mem.). But even if counsel fails to justify an enlargement, the Court remains loath to penalize the client. United States v. Adames, 22 M.J. 234 (1986) (mem.) (counsels failure to file timely petition for reconsideration attributed to noncompliance with Rule 16(b); held, relief not warranted on the merits); see also, e.g., United States v. Coleman, 24 M.J. 126, 127 (1987) (mem.) (granting further extension but noting failure to comply with earlier order, 24 M.J. 67, requiring specificity); United States v. Lowery, 23 M.J. 237 (1986) (mem.) (directing counsel to submit statement of explicit reasons for enlargement); United States v. Vessels, 22 M.J. 189 (1986) (mem.) (minimally acceptable reason; supplement accepted for filing); United States v. Smith, 38 M.J. 317 (1993) (mem.) (denying extension of time in which to file supplement until counsel specifically states why more time is needed); United States v. Goodwin, 38 M.J. 319 (1993) (mem.) (same). If an enlargement is granted (or the Court has taken other procedural action) predicated on a particular understanding of the circumstances, counsel are obligated to immediately inform the Court sua sponte of any change in those circumstances. United States v. Sandefur, 25 M.J. 157, 158 (1987) (mem.). The rules do not provide that briefing schedules are tolled by the filing of a motion. Cf. United States v. Thompson, 32 M.J. 310 (1991) (mem.) ([c]ounsel are expected to read the order of this Court and not to assume that what they request is automatically granted). If disposition of a motion might render further briefing unnecessary, e.g., motions to dismiss or remand, a motion to suspend the briefing schedule should also be made. See United States v. Gordon, 27 M.J. 292 (1988) (mem.) (suspending time for filing answer pending ruling on motion to dismiss petition). The Clerk has properly suggested that a motion to extend the time in which to file a brief, answer or reply should be filed far enough in advance of the due date of such pleading to allow a reasonable time for the Court to act before the original filing period has expired. Letter from Thomas F. Granahan, Clerk of the Court, to Captain Walter S. Landen, Sr., JAGC, USN, Chief, App. Def. Div., Navy-Marine Corps App. Rev. Activity (Dec. 1, 1983) at 2; see, e.g., United States v. Jones, 26 M.J. 312 (1988) (mem.). If this cannot be done, the reasons therefore should be stated in the motion. United States v. Wilson, 18 M.J. 434, 435 (1984) (mem.). There is, as usual, an on the other hand: an extension should not be requested until it appears necessary. United States v. Coleman, 24 M.J. 67 (1987) (mem.). By order entered on May 8, 2003, but not incorporated into the standing rules, the Court instituted a pilot project under which counsel may file two limited types of pleadings electronically: motions for a first enlargement of time in which to file a supplement to the petition or an answer thereto, and motions for a first enlargement of time to file briefs under Rule 24 (but not reply briefs). In re Electronic Filing, 58 M.J. 282 (2003). The following year the project was expanded to include motions for enlargement of time to respond to an Order of the Court, notices of appearances, and motions to withdraw as counsel. In re
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Electronic Filing, 60 M.J. 308 (2004). The current practice is broader still, and is governed by a 2009 Order reproduced in the Appendix to this GUIDE. In re Electronic Filing, 67 M.J. LXX (2009). In United States v. Buber, 62 M.J. 227, 228 (2005) (mem.), Judge Crawford, dissenting from the denial of government petitions for reconsideration, argued that the Court was not applying Rule 33s good cause standard evenhandedly as between the government and accuseds. Whether or not her point was well-taken in that particular case, evenhanded application would seem entirely warranted given the fact that both sides are represented by counsel in cases before the Court. Rule 34. COMPUTATION OF TIME (a) General. In computing any period of time prescribed or allowed by these rules, order of the Court, or any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the next day which is neither a Saturday, Sunday, nor a holiday. When the period of time prescribed or allowed is less than 7 days, intervening Saturdays, Sundays, and legal holidays will be excluded in the computation. When a period of time is computed under these rules from the date of the decision of a Court of Criminal Appeals, such time is to be computed from the date of such decision unless a petition for reconsideration is timely filed, in which event the period of time is to be computed from the date of final action on the petition for reconsideration. (b) Additional time when service by mail. Whenever a party has the right or is required to do some act within a prescribed period after the issuance of an order or the filing of a notice, pleading, or other paper relative to a case when service is made upon him by mail, 5 days will be added to the prescribed period if the party upon whom the service is made is within the limits of the contiguous 48 States and the District of Columbia, and 15 will be added if the party is located outside these limits, including the States of
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Alaska and Hawaii. If service is made by delivery to commercial third-party carrier or electronically, an additional 3 days will be added to the prescribed period, regardless of the location where service is made. This provision for additional time shall not apply, however, to the time limitations prescribed in Rule 19(a)(1) for the filing of a petition for grant of review. 1983 Rules Advisory Committee Comment This rule retains the provisions in former Rule 32 for determining time limits for action in accordance with the rules. A new sentence at the end of Rule 34(b) excepts the time limits for filing petitions for grant of review from this subsection. 2005 Rules Advisory Committee Explanatory Note Rules 21(b)(6), 24(a), 28(a), 32, and 34(b) pertaining to certificates of filing and service have been amended to reflect the changes in Rules 36 and 39. 70 FED. REG. 54,370, 54,372 (2005). Discussion In 2007, Christmas Eve fell on a Monday, To avoid confusion, the Court entered an order providing that for purposes of computation of time and motions to enlarge time, the day would be considered a legal holiday under Rule 34. Order, Dec. 10, 2007. For an illustration of the application of Rule 34(a) to the filing of a petition for grant of review see United States v. Quarnstrom, 11 M.J. 292 (1981) (mem.) (accepting petitioners sworn statement that document was mailed one day before postmark shown on envelope). The last sentence of the rule was added as part of the January 20, 1982 changes. 12 M.J. 411, 415. The provision for use of third-party commercial carriers and electronic service were added in 2005, effective January 1, 2006. Rule 35. FILING OF RECORD The record shall be filed by the Judge Advocate General as soon as practicable after the docketing
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of any action pursuant to Rule 4. See Rule 27(a)(1) and (b). 1983 Rules Advisory Committee Comment The provisions of former Rule 33 are retained. Discussion Absent a properly authenticated record of trial, a case cannot be reviewed either by the Court of Appeals or the Court of Criminal Appeals. United States v. Vasquez, 44 M.J. 52 (1996) (mem.). The only record appropriate for review is the final corrected authenticated version. See, e.g., United States v. Reed, 42 M.J. 113 (1995) (mem.) (directing Judge Advocate General to cause record to be authenticated and authentication document to be filed with Clerk). To avoid confusion, any other version should be destroyed. The Court stressed the need for closer attention to be paid to such matters in United States v. Stombaugh, 40 M.J. 208, 210 n.1 (1994). Cf. United States v. Johnston, 51 M.J. 227, 231 (1999) (noting sloppy staff work). It may, however, direct the production of documents which are not part of the record. E.g., United States v. Huberty, 53 M.J. 223 (2000) (mem.) (files relating to medical credentials ordered produced for in camera inspection); United States v. Curtis, 30 M.J. 22 (1990) (mem.) (psychiatric records); United States v. Hock, 30 M.J. 26 (1990 (mem.) (vacation proceeding). In United States v. Tatum, 37 M.J. 10 (1992) (mem.), the Court directed the Judge Advocate General of the Air Force to cause three videotapes that had been a prosecution exhibit to be provided to the Clerk. See also United States v. Thompson, 42 M.J. 473 (1995) (mem.) (directing inclusion of originals of military judges affidavit that had been considered below, as well as sundry pleadings). Rule 35A. USE OF CLASSIFIED INFORMATION Classified information shall be included in documents filed with the Court only when necessary to a proper consideration of the issues involved. The original or one complete copy of a document containing the classified information shall be filed with the Court. The party filing such document shall give written notice to the Clerk and to all other parties prior to the time of such filing that such document contains classified information. In addition, there shall be filed in accordance with Rule 37(b)(2) an original and seven copies of each such document from which the classified informa-
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tion has been deleted or omitted in such manner that the pages which contained the deleted or omitted classified information are clearly identified. 1999 Rules Advisory Committee Comment The purpose of moving subsection (d) (Classified Information) from Rule 24 to new Rule 35A (Use of Classified Information) is to place this unique rule provision in a separate rule and locate it in a section of the Courts Rules of Practice and Procedure to which it more logically refers, namely, PRACTICE BEFORE THE COURT. The substance of this rule remains unchanged. Minor conforming amendments have been made to change the title of Rule 24 and to change the references to the former Rule 24(d) in Rules 9(c), 12(b), and 21(b). Discussion The number of copies required to be filed under former Rule 24(d) (now this rule) was increased to seven effective November 4, 1991, to reflect the increased size of the Court. Rule 36. FILING OF PLEADINGS (a) In general. Pleadings or other papers relative to a case shall be filed in the Clerks office, 450 E Street, Northwest, Washington, D.C. 204420001, either in person, by mail, or by third-party commercial carrier. See Rule 37(b)(2). (b) Filing in person. If a pleading or other paper is filed in person, such filing shall consist of delivery to a member of the Clerks office during normal business hours. See Rule 9(e). (c) Filing by mail or third-party commercial carrier. If a pleading or other paper is filed by mail, such filing shall consist of depositing the pleading or other paper with the United States Postal Service, with no less than first-class postage prepaid, properly addressed to the Clerks office. If a pleading or other paper is filed through a
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third-party commercial carrier, such filing shall consist of delivery to the commercial carrier for delivery within 3 calendar days. (d) Time of filing. Pleadings or other papers shall be deemed to have been filed on the date they are delivered to the Clerks office under subsection (b) or on the date they are mailed or delivered to a commercial carrier under subsection (c) See Rules 37(b)(1) and 39(e). (e) Non-compliant pleadings. If any pleading or other paper is not filed or offered for filing in compliance with these Rules or an order of the Court, the Court may issue an order to show cause, dismiss the proceeding, or return the proffered pleading or paper on its own motion or the motion of a party. See Rules 27(a)(4) and 37(b)(1). 1983 Rules Advisory Committee Comment The provisions of former Rule 34(b) have been expanded to authorize the Court to issue a show cause order where a pleading or paper is not filed or offered for filing in compliance with the rules or an order of the Court. 1999 Rules Advisory Committee Comment The amendments to Rule 36 set forth the particular methods for filing pleadings or other papers relative to a case in person and by mail and provide that, when a filing is accomplished by mail, it must be made with no less than first-class postage prepaid, properly addressed to the Clerks office. A similar provision is incorporated in the amendments to Rule 39 for service of pleadings and other papers relative to a case. 2005 Rules Advisory Committee Explanatory Note Rule 36 has been amended to allow for filing of pleadings and other papers by third-party commercial carrier (e.g., FedEx or UPS). For purpose of filing, if a commercial carrier is used it must be for delivery within 3 calendar days. This rule change was made to reflect
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the fact that third-party commercial carriers are wellestablished and this means of delivery of documents should be available to counsel. The rule is consistent with the Federal Rules of Appellate Procedure, Rule 25(B), relating to briefs. Those rules, however, would not deem other pleadings or papers filed until they are received by the Clerk of the Court. 70 FED. REG. 54,370, 54,371 (2005). Discussion The Rules address filing by fax only in connection with petitions for extraordinary relief. See Rule 27(a)(4) and Discussion of Rule 27. [F]or purposes of Rule 36[(a)] . . . , the postmark determines when a pleading is deposited in the mails. United States v. Batdorff, 32 M.J. 199 (1990) (mem.). For other illustrations of the application of this rule see RodriguezRivera v. United States, 61 M.J. 19, 21 (2005) (mem.); In re Motion to Suspend Rule 8(a) in Part and for Leave to Proceed Under a Pseudonym, Filed as John Doe, Lieutenant, U.S. Navy Reserve v. Commander, Naval Special Warfare Command (C.A.A.F. Jan. 5. 2005) (mem.) (undocketed) (returning pseudonymous filing to counsel with instructions), noted in Discussion of Rule 8; United States v. Graves, 22 M.J. 186 (1986) (mem.) (noting Clerks return of documents to writ appeal petitioner); United States v. Johnson, 22 M.J. 20 (1986) (mem.) (directing submission of corrected brief where filed version incorporated portion of another pleading by reference; see Rules 22(b), 24(c)(5)). The Clerks power to return pleadings should not be exercised other than where the formal requirements for a filing, such as captions, typeface conventions, or page limits, have been disregarded. See Rule 36(e); Discussion of Rules 8, 37. Failure to exhaust in extraordinary writ cases does not, it is respectfully suggested, fall within that category. See Discussion of Rule 17. Where the rules have been flagrantly or repeatedly disregarded, the Court may also impose sanctions on counsel, including suspension or disbarment. United States v. Ortiz, 24 M.J. 323 (1987); see also Rule 15(a). Filing requirements may be modified in proceedings before a special master. See Discussion of Rule 27. Effective May 15, 2003, the Court instituted a pilot project allowing electronic filing for two limited categories of motions for enlargements of time. In re Electronic Filing, 58 M.J. 282 (2003); see Discussion of Rule 33. The project was expanded effective August 16, 2004, 60 M.J. 308, and again in 2009. 67 M.J. LXX (2009). The 2009 Order is reproduced in the Appendix to this GUIDE.
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The references to filing by third-party commercial carriers were added in 2005, effective January 1, 2006. 62 M.J. 323. Rule 36A. CITATIONS TO SUPPLEMENTAL AUTHORITIES
If pertinent and significant authorities come to a partys attention after such party has filed a pleading allowed under these Rules, or after oral argument but before a final decision, the party may promptly advise the Clerk by letter, with a copy to all parties, setting forth the citations. The letter must state why the supplemental citations are pertinent and significant, referring either to the page of the earlier filed pleading or to a point argued orally. The body of the letter must not exceed 350 words, and copies of the supplemental authorities referenced in the letter shall be attached to the original and each copy of the letter. Any response by other parties must be made promptly and must be similarly limited. See Rule 37(b)(2). If the letter or the response is to be submitted less than 5 business days prior to oral argument, submission and service shall be by overnight mail delivery or by more expeditious means to allow the Court and all parties adequate time to consider the authorities cited before oral argument. 1999 Rules Advisory Committee Comment New Rule 36A substantially tracks Rule 28(j) of the Federal Rules of Appellate Procedure. It is designed to provide a party with an expeditious means of submitting important authorities to the Court that were either previously overlooked or unavailable when an earlier pleading was filed. The rule does not allow additional argument to be made and such letters should not be used for this purpose. If a party believes that supplemental briefing would be appropriate, that party should seek leave of Court to do so on motion under Rule 30 and should not rely on this rule for that purpose.
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2007 Rules Advisory Committee Comment Current Rule 36A provides for the citation of supplemental authority by letter both before and after oral argument. The letter must explain why the citations are being provided without argument and identify the page of the brief or the point argued orally to which the supplemental citation refers. Opposing counsel may respond, but is similarly limited. The current rule is comparable to Federal Rule of Appellate Procedure 28(j) as it existed prior to being amended in 2002. The amended rule, like the current version of Rule 28(j), allows counsel a limit of 350 words to state the reasons why the cases are being cited as supplemental authorities. It also removes the restriction in the current rule that prohibited counsel from including argument in the letter. The prohibition was dropped because the line beteen a statement explaining the reasons for the filing without argument and a comparable statement with argument is, for practical purposes, non-existent. The requirement that counsel identify why the supplemental authority is pertinent and significant is a better formlation that may eliminate marginal or ill-advised filings. By limiting the response to 350 words, there is little chance that the Rule 36A letter will become a vehicle for unauthorized supplemental briefing. 72 FED. REG. 67,599 (2007). Discussion A party desiring to respond to a Rule 36A letter must move for leave to do so. E.g., United States v. Tollinchi, 54 M.J. 336 (2000) (mem.). Rule 37. PRINTING, COPYING AND STYLE REQUIREMENTS
(a) Printing. Except for records of trial and as otherwise provided by Rules 24(f) and 27(a)(4) or any order of the Court regarding the electronic filing of pleadings, all pleadings or other papers relative to a case shall be typewritten and double spaced, printed on one side only on white unglazed paper, 8.5 by 11 inches in size, securely fastened in the top left corner. All printed matter must appear in monospaced typeface, e.g., Courier
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or Courier New, using 12-point type with no more than ten and characters per inch. Margins must be at least 1 inch on all four sides. Page numbers may be placed in the margin but no text may appear in the margin. (b) Copying. (1) Copies of typewritten pleadings and papers may include those produced by any process capable of producing a clearly legible black image on white paper, but shall not include ordinary carbon copies. If papers are filed in any other form, the Clerk shall require the substitution of new copies, but such substitution will not affect the filing date of the papers or pleadings involved. See Rule 36. (2) Except for electronically filed pleadings, an original and 7 legible copies of all pleadings or other papers relative to a case shall be filed. See Rule 35A concerning documents which contain classified information. (c) Style. (1) All pleadings that consist of ten or more pages shall be preceded by a subject index of the matter contained therein, with page references, and a table of cases (alphabetically arranged with citations), textbooks and statutes cited, with references to the pages where cited. (2) Citations shall conform with the Uniform System of Citation. (3) All references to the record of trial shall include page numbers or exhibit designations, as appropriate. (4) No pleading or other paper filed with the Court shall incorporate by reference any material from any other source. 1983 Rules Advisory Committee Comment
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This rule retains the provisions of former Rule 35, but adds a cross-reference to Rule 24(d) concerning documents which contain classified information. 1999 Rules Advisory Committee Comment The purpose of the change in title and restructured text of Rule 37 is to consolidate in one rule the related requirements of printing, copying, and style which apply to all pleadings and other papers filed with the Court. The new requirements for print size parallel similar provisions used by other courts of appeals. These provisions standardize the type and print options which must be used when filing pleadings and other papers with the Court. Minor conforming amendments have been made to change existing titles of Rules 24 and 37 and to provide a reference in Rule 21(b) to revised Rule 37. A new reference has been added to Rule 24(a) to alert a practitioner to the consolidated provisions of Rule 37. 2004 Rules Advisory Committee Explanatory Note The rule on the number of characters per inch is change[d] from 10 to 10, because some word processing programs use this standard and it is also acceptable to the Court. The rule on the size of the margin has been clarified so it is easier to understand. The previous rule referred to the size of the text, rather than the margins. 2006 Rules Advisory Committee Comment The rule as currently written requires a paginated subject index and a table of citations for all pleadings of five pages in length or longer. It is believed that the rule as written is too broad and that tables should not be a requirement for pleadings of less than ten pages, and that the Court does not gain significant benefit from these tables with documents of less than ten pages. 2009 Rules Advisory Committee Comment
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These changes are proposed to account for orders of the Court pertaining to electronic filing of pleadings. 74 FED. REG. 22,899 (2009). Discussion In an era in which virtually any law office can produce handsome documents using a variety of typefaces, it is well to note the Courts insistence on specific monospaced (non-proportional) typefaces. The judges considered permitting optional use of the Times New Roman proportional typeface, but decided against it. Memorandum from William A. DeCicco, Clerk of the Court, to Directors of Appellate Divisions, Mar. 17, 2004. Deviations from the rule may cause the offending brief to be returned to counsel. As long as the Court expresses a preference in this regard, counsel should honor it. The number of copies required to be filed under Rule 37 was increased to seven effective November 4, 1991, to reflect the increased size of the Court. Letter-size paper has been required since 1982. 15 M.J. 79. In United States v. Miller, 36 M.J. 16 (1992) (mem.), the Court noted that the supplement to the petition for grant of review was bound on the left side, contrary to former Rule 24(c)(1), which required secure fastening at the top. Counsel was directed to file new copies properly fastened. Former Rule 24(c)(2) was amended in 1992 to reduce from 20 to five the page length that triggers the need for an index and table of citations. It was changed again in 2006 to 10 pages. 64 M.J. LVII, 360 (2006). The Court will deny leave to file an index if citations are not furnished for all cases listed in the table of authorities. United States v. Arquilla, 21 M.J. 406 (1986) (mem.). Parallel citations are not required by the Harvard Bluebook for decisions of the Supreme Court. See also U. CHI. MANUAL OF LEGAL CITATION (1989). Citation to United States Reports (U.S.) is therefore sufficient. The Court of Appeals published decisions include parallel citations to the Supreme Court Reporter (S. Ct.) and Lawyers Edition (L.Ed.) only because these are inserted by West Group. When its name was changed in 1994, the Court ordered: that decisions of the Court issued beginning October 5, 1994, shall be cited _____ MJ _____ (19__); and that decisions of the United States Court of Military Appeals will be cited either _____ MJ _____ (CMA 19__) or _____ USCMA _____, _____ CMR _____ (19__). Citation of Decisions Order, 42 M.J. 38 (1994). The Courts current decisions should thus be cited, in submissions to it, using the following format: United States v. Budd, 50 MJ 1 (1995). For a dissenting view on this surprisingly contentious subject see 1 FRANCIS A. GILLIGAN & FREDRIC I. LEDERER, COURT-MARTIAL PROCEDURE xxviii (2d ed. 1999) (noting
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danger of confusion from omission of court designation); see also id. at 1-56.00, at 32 n.158; see also JUDGE AVOCATE GENERALS SCHOOL, MILITARY CITATION GUIDE 3 (14th ed. Aug. 2009). It is the authors belief that the CMA may also be omitted when citing pre-name-change decisions published in the Military Justice Reporter on the basis that it may be presumed that a decision in a reporter that covers more than one level of appellate court within a given jurisdiction is, unless otherwise indicated, a decision of the highest court of that jurisdiction. That is the convention followed in this GUIDE. Submissions to the Court, however, should conform with the Courts stated preference. For a variant form of citation see United States v. Denedo, 129 S. Ct. 2213, 2218 (2009) (citing Court of Appeals decision as (C.A. Armed Forces 2008)). Citations should be to the Military Justice Reporter, and, for cases prior to those reported in 1 M.J., to both United States Court of Military Appeals Reports (U.S.C.M.A.) and Court-Martial Reports (C.M.R.). See also Letter from Thomas F. Granahan, Clerk of the Court, to Captain Walter S. Landen, Sr., JAGC, USN, Chief, Defense App. Div., Navy-Marine Corps App. Rev. Activity (Dec. 1, 1983) at 3; but see United States v. Loving, 41 M.J. 213 (1994); 1 FRANCIS A. GILLIGAN & FREDRIC I. LEDERER, COURT-MARTIAL PROCEDURE 1-50.00 at 1-33 n.163 (3d ed. 2006) (recommending omission of parallel citations as difficult and time-consuming in light of scarcity of U.S.C.M.A. reporters in the field). (Note that use of U.S.C.M.A. as the citation form for the former official reports is a deviation from the Bluebooks 18th edition (2005) which (at 195) uses the shorter C.M.A. See William S. Fulton, Jr., Book Review, 97 MIL. L. REV. 127, 131 (1982). The Courts preference in this regard reflected a conscious decision, see United States v. Rose, 28 M.J. 132, 133 n.* (1989), and should be honored in submissions to it, if not elsewhere.) Decisions of the Court were also published (with many other useful materials) in the Military Law Reporter (MLR) between 1972 and 1992, and occasionally appear in the Criminal Law Reporter. E.g., 54 CRIM. L. RPTR. 1352 (1994). The Bluebook format for MLR citations is so needlessly cumbersome, e.g., 22 MIL. L. REP. (Pub. L. Educ. Inst.) 2312, that it is never employed. Parallel citations to the WESTLAW database appear in the Courts slip opinions but are removed when the bound Military Justice Reporter volumes appear. They serve no purpose and should not be used. In the Courts of Criminal Appeals, published decisions of those courts are cited as follows: [vol.] M.J. [page] (Army Ct. Crim. App. 20__) [vol.] M.J. [page] (A.F. Ct. Crim. App. 20__) [vol.] M.J. [page] (N-M. Ct. Crim. App. 20__) [vol.] M.J. [page] (C.G. Ct. Crim. App. 20__)
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Citing Decisions of the Courts of Criminal Appeals (1994). It is recommended, however, that, when citing such decisions to the Court of Appeals, counsel use whatever citation format the Court uses. As indicated in the Discussion of Rule 18, denial of a petition for grant of review has no precedential value. But see Discussion of Rule 21. Nonetheless, denials of review or certiorari should be indicated in citations as a matter of appellate history. United States v. Mahan, 24 C.M.A. 109, 1 M.J. 303, 307 n.9 (1976). Unless the Court changes the Rules, summary dispositions may be cited as authority. United States v. Diaz, 40 M.J. 335, 339-40 (1994). This is appropriate given the Courts willingness to use summary disposition even to overrule its own precedents. See United States v. Hill, 48 M.J. 352 (1997) (mem.), overruling United States v. Hickson, 22 M.J. 146 (1986). Rule 27(c)(4) forbids incorporation of other briefs by reference. It goes beyond briefs to include any material from any other source. Thus, it extends to staff judge advocate reviews. United States v. Hunter, 17 M.J. 102 (1983) (mem.). It does not, however, bar reference to argument in briefs to a Court of Criminal Appeals where the references serve merely to bring matters to the Court of Appeals attention under United States v. Grostefon, 12 M.J. 431 (1982). United States v. Wattenbarger, 16 M.J. 453 (1983) (mem.). It was held in United States v. Gray, 30 M.J. 231, 232 (1990) (per curiam), that it was improper to append to a brief a memorandum purporting to state the intent of the drafters of a Department of Defense directive on drug abuse testing. The Court cited former Rule 24 with a cf. on this point, but also referred to Rule 30, implying that a motion should have been filed seeking leave to file this evidentiary attachment. In another case, the Court made clear the need for a motion in these circumstances, holding it impermissible appellate practice [that] will not be condoned to attempt to catapult [documents] into the appellate arena simply by attaching them to [a] brief. United States v. Vangelisti, 30 M.J. 234, 237 (1990). See also United States v. Roach, 29 M.J. 33, 37 (1989). In United States v. Lynn, 53 M.J. 59 (2000) (mem.), the Court returned to the parties materials that had been attached to the pleadings without leave of court, and noted that those materials will be considered only if appropriate motions are filed and granted by the Court. The explanatory material set forth in Rule 24(a), however, expressly permits one party to adopt anothers statement of facts. On the other hand, care should be taken to make sure that matters not excepted to are accurate. United States v. Price, 44 M.J. 430 n.1 (1996) (mistaken reference to bench trial). The Clerks Office construes the rule to prohibit incorporation by reference of portions of a legal argument or summary of facts in a staff judge advocates review. Letter from Thomas F. Granahan, Clerk of the Court, to Walter S. Landen, Sr., Chief, Defense App. Div., Navy-Marine Corps App. Rev. Activity (Dec. 1, 1983) at 2. For an illustration of the operation of Rule 27(c)(4) see United States v. Carlos, 26 M.J. 308 (1988) (mem.) (rejecting attempt to incorporate C.M.R. brief
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by reference). See Rule 36(b). When a brief is rejected because it incorporates by reference, the Court will typically allow counsel an opportunity to remedy the defect. E.g., United States v. Johnson, 22 M.J. 20 (1986) (mem.); United States v. Hunter, 17 M.J. 102 (1983) (mem.). Unpublished opinions are properly cited only if attached to the brief. United States v. Kohut, 44 M.J. 245, 249 n.7 (1996). In this connection, a March 10, 1998 Notice to Appellate Counsel explained that the Court does not have access to the LEXIS database. When a pleading contains a LEXIS citation, a copy of such cited case of material should be attached to that pleading. DAVID A. SCHLUETER, KEN JANSEN, KEVIN J. BARRY & KENNETH A. ARNOLD, MILITARY CRIMINAL PROCEDURE FORMS 12-5(d), at 569 (2d ed. 2003). Where leave is sought to file additional authorities, full-text copies of unpublished cases should be appended to the motion. E.g., United States v. Gansemer, 38 M.J. 161 (1993) (mem.); United States v. Schroeder, 26 M.J. 312 (1988) (mem.); United States v. Petersen, 23 M.J. 288 (1986) (mem.); see also United States v. Deland, 20 M.J. 15 (1985) (mem.). [C]opies of opinions need to be provided only when the opinion is unpublished at the time the motion is filed, even if it will be published later. United States v. Lingenfelter, 30 M.J. 219 (1990) (mem.) (emphasis in original). When the new authority is a decision of the Supreme Court, there is no need to file a copy of the decision; a citation to the case will suffice. United States v. Schmitt, 33 M.J. 5 (1991) (mem.); see United States v. Henry, 36 M.J. 3 (1992) (mem.) (motion to cite supplemental authority granted only as to citation); United States v. Curtis, 42 M.J. 53 (1994) (mem.) (same). If it is intended to refer to additional authorities at oral argument, timely notice should be given to opposing counsel. See, e.g., United States v. Lucy, 2 M.J. 144 (1976) (mem.); see also United States v. Hubbard, 21 M.J. 276 (1985) (mem.) (supplemental citations of authority should not be filed the day before oral argument); but see United States v. Cooke, 10 M.J. 410 (1981) (mem.) (allowing additional authorities within three days of oral argument); United States v. Phillips, 32 M.J. 192 (1990) (mem.) (granting oral motion for leave to file supplemental citations of authority out of time); United States v. Oatney, 44 M.J. 40 (1996) (mem.) (granting leave to file additional citations utilized at oral argument); United States v. Oatney, 43 M.J. 463 (1996) (mem.) (granting leave to file additional citations utilized at oral argument but not contained in brief). Supplemental authorities should be filed as they arise or come to counsels attention, rather than waiting until the notice of oral argument has been received. Richard A. Morgan, supra, at 235. Copies of the authority so cited should be submitted with the motion. United States v. Sledge, 37 M.J. 219, 228 (1993) (mem.). An amicus may also seek to file supplemental citations. E.g., United States v. Kelly, 44 M.J. 53 (1996) (mem.); United States v. Williams, 42 M.J. 206 (1995) (mem.); see also id., 42 M.J. 416 (1995) (mem.) (allowing filing out of time).
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In United States v. Rockwood, 51 M.J. 341 (1999) (mem.), the Court permitted law-student amici curiae from the College of William & Marys Marshall-Wythe School of Laws Military Law Society to file, in addition to hard copy of their brief, a CD-ROM disk containing all of the briefs as well as the 2500-page record of trial. Rule 38. SIGNATURES (a) General. Except for documents filed in propria persona and those provided for in subsection (b), all original pleadings or other papers filed in a case will bear the signature of at least one counsel who is a member of this Courts Bar and who is participating in the case. The name, address, telephone number, Court Bar number, and rank, if any, of the person signing, together with the capacity in which such counsel signs the paper will be included. This signature will constitute a certificate that the statements made in the pleading or paper are true and correct to the best of the counsels knowledge, information, or belief, and that the pleading or paper is filed in good faith and not for the purpose of unnecessary delay. A counsel who signs a pleading for some other counsel whose name is typed under such signature must, in addition, affix their own signature in a separate signature block with their own name, address, telephone number, Court Bar number, and rank, if any, typed thereunder. (b) Exception. If the counsel signing a pleading or paper presented to the Clerks office for filing is not a member of the Bar of this Court, the pleading or paper shall nonetheless be received as if such counsel were a member. However, within 30 days of the filing of a pleading, such counsel shall, as a prerequisite to continuing in the case as counsel of record, apply for admission to the Bar of this Court or move to appear pro hac vice under Rule 13. 1983 Rules Advisory Committee Comment The provisions of former Rule 38 are retained.
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2004 Rules Advisory Committee Explanatory Note The proposed change to Rule 38 would mandate the inclusion of Court Bar numbers of attorneys signing pleadings filed with the Court. This requirement will provide a reminder of the rule that at least one attorney must be a member of the Courts Bar. There have been several recent instances of non-member attorneys filing pleadings with the Court who did not move to appear pro hac vice. Attorneys may obtain bar numbers from the Clerks Office. This new rule would be consistent with the requirements of numerous other jurisdictions. Discussion All signatures must be original, e.g., United States v. Carpenter, 36 M.J. 50 (1992) (mem.), and legible. E.g., United States v. Yslava, 21 M.J. 408 (1986) (mem.). Appellate counsels signature may be affixed by another attorney acting at his or her direction. United States v. Daly, 4 M.J. 145, 146 n.5 (1977) (mem.) (2-1 decision). Only counsel who has signed a pleading may sign the certificate of filing and service, see Rule 39(c), for another person. United States v. Burke, 22 M.J. 20 n.* (1986) (mem.). It appears that only counsel who have manually signed a pleading will be listed as counsel in the published opinion. Members of the Courts bar must indicate their admission number below their signature on any pleading filed with the Court. Counsel who are retired from the military and reservists not on active duty should not refer to their military rank or status when signing papers to be submitted to the Court. But see United States v. Moorefield, 66 M.J. 107 (2008) (mem.) (denying motion to reject brief that indicated appellate defense counsels Navy Reserve title); United States v. Monroe, 52 M.J. 326 (2000) (noting military rank of law student reserve officers appearing as amici curiae); Amicus Curiae Brief on Behalf of One or More Former Judge Advocates General of the United States Navy 22-23, U.S. Navy-Marine Corps Court of Military Review v. Carlucci, Misc. No. 88-31/NA (C.M.A. filed Aug. 8, 1988). Such counsel also do not appear in uniform. A legal interns name should not appear on a pleading without leave of Court. The motion should recite that the appellant is aware of and consents to the interns role. See United States v. Almy, 36 M.J. 77 (1992) (mem.). Regardless of who signs, care should be taken to ensure accuracy in pleadings. See, e.g., United States v. Shewmake, 29 M.J. 444 & n.* (1989) (mem.). The duty to submit papers that are legible goes beyond mere signatures. E.g. United States v. Antle, 52 M.J. 451 (1999) (mem.) (directing filing of certified legible copy of affidavit); United States v. Loving, 42 M.J. 25 (1994) (mem.) (directing filing of readable copies). Illegibility of a handwritten plead-
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ing may lead the Court to direct counsel to prepare a typewritten document. United States v. Stephenson, 32 M.J. 218 (1990) (mem.) (pro se petition for new trial). Rule 39. SERVICE OF PLEADINGS (a) In general. At or before the filing of any pleading or other paper relative to a case in the Clerks office, a copy thereof shall be served on all counsel of record, including amicus curiae counsel, in person, by mail, by third-party commercial carrier, or by electronic means if the party being served consents. See Rule 16(b). When a party is not represented by counsel, service shall be made on such party in person, by mail, or by third-party commercial carrier. When reasonable, considering such factors as the immediacy of the relief sought, distance, and cost, service must be at least as expeditious as the manner used to file the pleading or other paper with the Court. See Rule 36. (b) Personal service. If service is made in person, it shall consist of delivery at the office of the counsel of record, either to counsel or to an employee therein. If the party is not represented, service shall consist of delivery to such party. (c) Service by mail. If service is made by mail, it shall consist of depositing the pleading or other paper with the United States Postal Service, with no less than first-class postage prepaid, addressed to the counsel of record or, if the party is not represented, to such party, at the proper post office address. (d) Service by third-party commercial carrier. If service is made by a third-party commercial carrier, it shall be for delivery within 3 calendar days. (e) Time of service. Personal service is complete on delivery. Service by mail or third-party commercial carrier is complete on mailing or delivery to the carrier. Service by electronic means is complete upon transmission.
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(f) Certificate for review. In the case of a certificate for review, service of a copy thereof will be made on appellate defense counsel and appellate government counsel as prescribed in Rule 22(a). (g) Form of certificate of filing and service. A certificate indicating the specific manner of filing under Rule 36 and the specific manner of service under this rule shall be included in any pleading or other paper substantially in the following form: CERTIFICATE OF FILING AND SERVICE I certify that the original and seven copies of the foregoing were [delivered] (or) [mailed, specify class] (or) [delivered tospecify the name of the third-party commercial carrierfor deliveryspecify within how many days delivery will be effected] to the Court on _______________ (date) and that a copy of the foregoing was [delivered] (or) [mailed, specify class] (or) [delivered tospecify the name of the third-party commercial carrierfor deliveryspecify within how many days delivery will be effected] (or) [transmitted by electronic means with the consent of the counsel being servedspecify the electronic mail address or facsimile number used] to (enter specific name of each counsel of record or party, if not represented) on _______________ (date). (Typed name and signature of certifying person) (Address and telephone no. of certifying person) 1983 Rules Advisory Committee Comment Former Rule 39 provisions have been amended to require service upon all counsel of record of pleadings or other papers at or before their filing in the office of the Clerk. Counsel for amicus curiae are expressly included among those to be served. A new subsection (b) provides that a certificate for review by a Judge Advocate General will be served as prescribed in Rule 22(a). New subsection (c) requires a certificate of filing and service to be included in all pleadings or other papers in the form prescribed by this subsection. 1999 Rules Advisory Committee Comment
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The amendments to Rule 39 specify that the service of pleadings or other papers relative to a case, when accomplished by mail, must be made with no less than first-class postage prepaid. A similar provision is incorporated in the amendments to Rule 36 for the filing of pleadings and other papers relative to a case. Rule 39(a) also provides that, where practicable, service of a pleading or other paper should be by a means at least as expeditious as the manner in which the filing of such pleading or paper with the Court is accomplished under Rule 36. 2005 Rules Advisory Committee Explanatory Note Rule 39 has been amended to allow for service of pleadings and other papers by third-party commercial carrier. For purpose of service, if a commercial carrier is used it must be for delivery within 3 calendar days. This rule change was made to reflect the fact that third-party commercial carriers are well-established and this means of delivery of documents should be available to counsel. A similar provision can be found in the Federal Rules of Appellate Procedure, Rule 25(c)(1)(C). Under the rule, generally, service should be as expeditious as filing. Rule 39 also allows for service of documents by electronic means with the consent of the party being served, if the party is represented by counsel. Service by facsimile or by e-mail is faster and more economical. It also gives the party being served the opportunity to start work on a reply (if any) and to share the document with others (co-counsel, etc.) promptly and efficiently. The rule only applies when both sides are represented by counsel. The Federal Rules of Appellate Procedure, Rule 25(c)(1)(C), allows for electronic service with consent but the consent must be in writing. 70 FED. REG. 54,370, 54,371 (2005). Discussion Action on a motion to file corrected pages was deferred in United States v. Leiker, 38 M.J. 162 (1993) (mem.), until counsel complied with Rule 39(c). A certificate of filing and service must bear an original signature. United States v. Carpenter, 36 M.J. 50 (1992) (mem.).
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In Kelly v. United States, 23 C.M.A. 567, 50 C.M.R. 786 (1975) (mem.) (21 decision), the Court entertained a mandamus petition over the objection that it did not, on its face, show proof of service. The majority noted that the petitioner was acting in propria persona (counsel being appointed for him later), and the Court itself gave the respondents notice and an opportunity to argue. It should not be assumed that a similar result would be reached today. The provisions for service by third-party commercial carrier and electronic means were added in 2005, effective January 1, 2006. Eservice requires consent of the party being served. Given the reference to consent of counsel in the form certificates of service in revised Rules 24(a), 28(a) and 32, this rule should be read as requiring the consent of the opposing counsel, rather than the opposing party. If expedited consideration is necessary, it is advisable to serve opposing counsel by email or fax if personal service is not feasible. Where civilian counsel apparently neglected to serve a supplement on appellate government counsel, the Court directed that service be made by a date certain using either registered mail or fax. United States v. Guerrero, 32 M.J. 313 (1991) (mem.). Ordinarily, however, service is made by regular mail or hand-delivery. Placement of a Court of Criminal Appeals decision in government channels does not satisfy the requirements of Article 67(b)(2), United States v. Ratleff, 32 M.J. 494 (1991) (mem.), and a similar approach should be taken to service of pleadings. If the name of lead counsel on the opposing side is known, service should be made on that individual. If opposing counsel has not yet been designated by name, service should be made by name on the chief of the opposing appellate counsel division. Where civilian counsel has entered an appearance, it is appropriate to serve that person in addition to military counsel even if he or she is not lead counsel, in order to avoid undue delay in the briefing process. Whoever is served, the Clerk suggests that the certificate of service identify the particular individual served. Letter from Thomas F. Granahan, Clerk of the Court, to Walter S. Landen, Sr., Chief, Defense App. Div., Navy-Marine Corps App. Rev. Activity (Dec. 1, 1983) at 3. Amicus curiae counsel should be served in the same fashion. If a certificate of service shows an incorrect date, a corrected certificate should be filed promptly. E.g., Doe v. Commander, Naval Special Warfare Command, 60 M.J. 468 (2005) (mem.); United States v. Viola, 32 M.J. 483 (1991) (mem.). In United States v. Downs, 17 M.J. 351 (1984) (mem.), and United States v. Gonzales, 17 M.J. 349 (1984) (mem.), the Court directed counsel to submit affidavits setting forth in detail the reasons an incorrect certificate was filed. See also United States v. McClain, 32 M.J. 313 (1991) (mem.) (counsel directed to explain error; no affidavit required). This seems an overreaction to a minor and apparently infrequent problem. There are two special service requirements under other rules. Under Rule 16(b), motions for leave to withdraw as counsel must be served on the
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client by moving counsel. E.g., United States v. Gray, 52 M.J. 470 (1999) (mem.) (unserved motion to withdraw denied without prejudice). Under Rule 27(a), petitions for extraordinary relief must be served on all respondents. Hearings Rule 40. HEARINGS (a) Motions, petitions for grant of review, petitions for extraordinary relief, writ appeal petitions, petitions for new trial, and petitions for reconsideration. Except when ordered by the Court, hearings will not be permitted on motions, petitions for grant of review, petitions for extraordinary relief, writ appeal petitions, petitions for new trial, or petitions for reconsideration. (b) When and how heard. After the case is calendared as provided in Rule 11 and all required briefs have been filed, a hearing may be ordered by the Court. (1) Notice of hearing. The Clerk will give at least 20 days notice in writing to counsel for the parties of the time and place for the hearing, unless ordered otherwise by the Court. Upon receipt of such notice, counsel will notify the Clerks office of the identity of the counsel who will present oral argument. (2) Presentation. Unless directed otherwise by the Clerk, counsel for the appellant or petitioner will open and close the argument. When the subject of a hearing is a motion, counsel for the moving party will be entitled to open and close. When both parties seek review in this Court, the accused shall be deemed the appellant for the purpose of this rule. Argument by counsel for an amicus curiae will be allowed on motion filed under Rule 30. (3) Time Allowed. Each side will normally be allotted 20 minutes to present oral argument.
1983 Rules Advisory Committee Comment
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This rule contains material covered by Rule 40, Oral Argument, in the 1977 Rules. Subsection (a) and the first paragraph of subsection (b) are unchanged, except for the redesignation of oral argument as hearings and the addition of the term writ appeal petitions. Rule 40(b)(1) requires the Clerk to give 20 days (instead of the former 10 days) notice in writing of the time and place of hearing. A new provision requires each party to identify to the Clerk the attorneys who will present oral argument at the hearing. Rule 40(b)(2) revises the former rule to provide that the appellant or petitioner will open and close argument unless otherwise directed by the Clerk and that, in hearings on motions, the moving party is entitled to open and close. Where both parties exercise the right to initiate review in this Court, the accused is deemed the appellant for purposes of the rule. Arguments by amici curiae are permitted only for cogent reasons, by motion filed under Rule 30. Argument of an amicus will follow those of counsel for the parties. Advice is provided that regardless of whether the notice of hearing limits the issues, counsel should be prepared to address the Court on all factual and legal matters reasonably at issue. A new subsection (b)(3) provides that each side will normally be allotted 30 minutes to present oral argument. 2009 Rules Advisory Committee Comment This change is proposed to bring the rule into conformance with recent court practice. 74 FED. REG. 22,899 (2009). Discussion Hearings are noted in the Daily Journal and on the website. For many years, the normal length of a hearing in a fully-briefed case was 30 minutes per side, although at times the Court allowed longer arguments, compare United States v. Murphy, 42 M.J. 411 (1995) (capital case, two hours per side), and United States v. Gray, No. 93-7001/AR (1995) (capital cases, 90 minutes per side); United States v. Thomas, 46 M.J. 395 (1997) (mem.) (capital case; 90 minutes per side); United States v. Loving, 38 M.J. 203 (1993) (mem.) (capital case; 60 minutes per side), United States v. Curtis, No. 63,044/MC (C.M.A. Aug. 2, 1990) (mem.) (capital case; 60 minutes per side, with additional time for amici), and 33 M.J. 206, 207 n.1 (1991) (four hours of oral argument, including nine
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amici), with United States v. Rhea, 32 M.J. 303 (1991) (mem.) (denying motion for overlength oral argument), resumed a hearing on a later day, e.g., United States v. Holley, 17 M.J. 28 (1983) (mem.), or ordered additional argument in light of the initial hearing. E.g., United States v. Baker, 57 M.J. 330, 331 (2002); United States v. Murphy (C.M.A. 1997) (mem.) (unrep.); United States v. West, 16 M.J. 447 (1983) (mem.). In 2009, the Court reduced the normal argument time to 20 minutes per side. While every case is different, this shorter allotment of time places a premium on getting right to the point, and leading with ones strongest argument. There is no reason to consume all of the allotted time if counsel has made the necessary points. Even the most poker-faced judge seems to appreciate it when counsel finish early. The Court normally schedules hearings to begin at 9:00 a.m. This is a change from its longstanding practice of holding court at 10:00 a.m. Before any hearing, counsel who will present argument are required to sign in on a list maintained in the docket room (Room 104) on the first floor of the courthouse. Doing so is important because the Court relies on the sign-in sheets to identify counsel when it prepares opinions for publication. It is recommended that counsel arrive 20-30 minutes before court is scheduled to convene. Moreover, because any particular argument may not consume the full allotted time, counsel arguing a case other than the first one on the hearing schedule will find it prudent to arrive at the courthouse and be in the courtroom well in advance, as their case may be called early. Last-minute preparation may be conducted in the attorneys lounge. The table to the left of the lectern (facing the judges) is for the defense; the table to the right is for the government. This arrangement is unaffected by which side happens to be the appellant or petitioner in any particular case. A timer on the lectern indicates the minutes and seconds remaining for counsels argument. A green light is on while the allotted time is running. A yellow light comes on when two minutes remain. A red light comes on when counsels time has expired. Notwithstanding these seemingly inflexible arrangements, it is rare for the Court to cut off oral argument when counsel has more to say but the time has expired. In United States v. Graf, No. 66,766/NA (1992) (mem.), the Court allowed each side 30 minutes and each of the 11(!) arguing amici five minutes; the amici were basically held to the allotted time, but the parties were permitted to run over their allotted time in order to respond to questions and complete their presentations. Nonetheless, counsel have a responsibility not to abuse this liberality since doing so can work an unfairness on counsel in cases that are on the calendar for hearing later in the day. Following the custom of the Fourth Circuit, the judges for many years descended from the bench after each case was argued to shake hands with counsel. This practice was discontinued in October 2006.
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For useful suggestions on oral argument see CLERK OF THE COURT, SUPREME COURT OF THE UNITED STATES, GUIDE FOR COUNSEL IN CASES TO BE ARGUED BEFORE THE SUPREME COURT OF THE UNITED STATES 5-13 (Oct. Term 2008 rev.); Robert E. Ferencik, Jr., Appellate Advocacy, 27 A.F. L. REV. 221, 226-28 (1987); Richard A. Morgan, Appellate Practice Rules, 217 A.F. L. REV. 229, 233-35 (1987). Oral argument on motions is ordered sparingly, but will be held where the Court believes that significant issues are presented. E.g., Loving v. United States, 68 M.J. 1 (2009) (petition for original writ of habeas corpus in capital case); United States v. Smith, 42 M.J. 15 n.* (1994) (mem.) (motion to remand); United States v. Gray, 40 M.J. 25 (1994) (mem.) (motion for funding of expert investigator and behavioral neurologist in capital case); United States v. Murphy, 39 M.J. 437 (1994) (mem.) (motion for leave to withdraw as appellate defense counsel); United States v. Curtis, 30 M.J. 108, 109 (1990) (mem.) (motions to stay proceedings and attach documents in capital case); U.S. Navy-Marine Corps Court of Military Review v. Cheney, 29 M.J. 98 (1989) (motion to dismiss application for fees and expenses under Equal Access to Justice Act); United States v. Baker, 28 M.J. 121, 123 (1989) (motion to remand); United States v. Bradford, 28 M.J. 125, 126 (1989) (per curiam) (same); United States v. Poole, 24 M.J. 335 n.* (1987) (mem.) (motion for leave to file untimely supplement to petition); United States v. Tucker, 20 M.J. 52 (1985) (motion to dismiss); United States v. Williams, 14 M.J. 166 (1982) (mem.) (motions to file exhibits and take judicial notice); McPhail v. United States, 24 C.M.R. 304, 5 M.J. 1016 (1976) (mem.) (motion to dismiss); United States v. Larneard, 3 M.J. 76 (1977) (same); In re Taylor, 12 C.M.A. 427, 31 C.M.R. 13 (1961) (same). A hearing may also be held on an order to show cause why a petition should not be dismissed. E.g., United States v. Mills, 12 M.J. 71 (1981) (mem.). In United States v. Beckermann, 41 M.J. 87 (1994) (mem.), the Court heard oral argument before denying a petition for grant of review, and in United States v. Howe, 17 C.M.A. 165, 167, 37 C.M.R. 429, 431 (1967), it heard argument on a petition to reconsider its denial of a petition for grant of review. See John G. Kester, Soldiers Who Insult the President: An Uneasy Look at Article 88 of the Uniform Code of Military Justice, 81 HARV. L. REV. 1697, 1699 n.10 (1968). Hearings are not invariably ordered even in cases in which plenary briefing occurs, and even if a hearing is scheduled, the Court retains power to rescind or vacate the Hearing Notice. E.g., United States v. Kisala, 62 M.J. 217 (2005) (mem.); United States v. Brozzo, 60 M.J. 310 (2004) (mem.) (noting government confession of error); United States v. Holtzclaw, 42 M.J. 452 (1995) (mem.); United States v. Ward, 41 M.J. 355 (1994) (mem.). If the Court does not schedule a case for hearing, counsel may move for oral argument. E.g., United States v. Loving, 60 M.J. 315 (2004) (mem.); United States v. Jefferson, 12 M.J. 306 (1981) (mem.). It can also provide a hearing by telephone or in chambers when a hearing in open court is impracticable. E.g., U.S. Navy-Marine Corps Court of Military Review v. Carlucci, 27 M.J. 10, 11 (1988) (mem.) (telephone
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hearing); United States v. Coronado, 7 M.J. 74 (1979) (mem.) (granting stay following oral argument in chambers before Cook and Perry, JJ.). In United States v. Garcia, 59 M.J. 258 (2004) (mem.), the Court permitted law students to present oral argument and to allow the College of William & Marys MarshallWythe School of Law to use its highly-regarded Courtroom 21 technology, but without explanation denied leave to present oral argument via Courtroom 21 video teleconferencing. In the 1983 comprehensive revision, the Court considered but rejected a proposed rule that would have permitted it, either on motion for sua sponte, to order a hearing closed where classified information had been filed. Even so, a closed hearing was conducted in United States v. Lonetree, 35 M.J. 396, 411-12 (1992). The Court may, in its discretion, indicate in the Hearing Notice that argument will be limited to fewer than all of the granted or certified issues. E.g., Walker v. United States, 60 M.J. 335 (2004) (mem.); United States v. Murphy, 42 M.J. 411 (1995) (mem.); United States v. Ballard, 20 M.J. 192 (1985) (mem.); see also United States v. Ballesteros, 29 M.J. 14 (1989); United States v. Smith, 42 M.J. 15 n.* (1994) (mem.) (hearing limited to motion to remand). Absent such a limitation, counsel should be prepared on all issues. Letter from Thomas F. Granahan, Clerk of the Court, to Captain Walter S. Landen, Sr., JAGC, USN, Chief, Defense App. Div., Navy-Marine Corps App. Rev. Activity (Dec. 1, 1983) at 4. The Court may also indicate that it wishes counsel to be prepared to argue a particular issue, without necessarily limiting argument to that issue. E.g., United States v. Elliott, 19 M.J. 258 (1984) (mem.). Where additional issues appear as a result of give-and-take in oral argument, further briefing may be ordered. E.g., United States v. Ragins, 10 M.J. 303 (1981) (mem.); United States v. Smith, 9 M.J. 115 (1980) (mem.); see also Discussion of Rule 5 (collecting cases); cf. United States v. Oatney, 43 M.J. 463 (1996) (mem.) (permitting submission of additional citations that were utilized in oral argument). Counsel may also seek leave to respond to a question raised at oral argument, United States v. Saintaude, 61 M.J. 45 (2005) (mem.) (granting leave to file response to bench question); United States v. Green, 43 M.J. 410 (1995) (mem.), or to correct a misstatement. United States v. Lee, 51 M.J. 479 (1999) (mem.). Cases presenting the same question may be heard together as one case, Rule 11(e), or sequentially. The Court is likely to be aware when the same issue arises in different cases, but prudent counsel will note this in their papers in any event. The oral hearing may be bifurcated, as in United States v. Curtis, 32 M.J. 252 (1991) (upholding procedure in capital cases), following argument on case-specific issues, 33 M.J. 97 (1991), and may result in more than one decision in a single case, although the Court has also indicated that piecemeal appellate litigation can be counterproductive to the fair, orderly judicial process. Murphy v. Judges of United States Army Court of Military Review, 34 M.J. 310, 311
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(1992) (per curiam). Since 28 U.S.C. 1259 (2006), unlike 1257-58, does not require a final judgment in order for a case to be eligible for review on writ of certiorari, Supreme Court review can be sought after each successive ruling, see Curtis v. United States, 502 U.S. 952 (1991) (denying certiorari), and counsel who await the final ruling without having filed a protective petition in these unusual circumstances therefore run the risk that their clients right to such review may have expired. Because of the complications they introduce, bifurcated decisions are not desirable. From time to time amici are permitted to present oral argument. E.g., United States v. Rorie, 58 M.J. 399 (2003) (Georgetown University Law Center Appellate Litigation Program; National Institute of Military Justice; Appellate Government Division, Navy-Marine Corps Appellate Review Activity); United States v. Williams, 42 M.J. 211 (1995) (mem.) (Cardozo Law School); United States v. Williams, 42 M.J. 187 (1995) (mem.) (Air Force Government Appellate Division); United States v. Lewis, 42 M.J. 1, 2 (1995) (Army Trial Defense Service); United States v. Yatchak, 36 M.J. 34 (1992) (mem.); United States v. Lorance, 36 M.J. 34 (1992) (mem.); United States v. Graf, supra; United States v. Curtis, No. 63,044/MC (C.M.A. Aug. 2, 1990) (mem.), and 32 M.J. 252 (1991); United States v. Jacobs, 30 M.J. 114 (1990) (mem.); United States v. Matthews, 16 M.J. 354 (1983); Corley v. Thurman, 3 M.J. 107 (1977) (mem.); United States v. Hunter, 25 C.M.A. 155, 54 C.M.R. 173 (1976) (interim); but see United States v. Loving, 67 M.J. 171 (208) (mem.) (denying leave); United States v. Kisala, 61 M.J. 217 (2005) (mem.) (same); United States v. Moran, 65 M.J. 1 (2007) (mem.) (student brief); United States v. Lewis, 65 M.J. 1 (2007) (mem.) (same). In United States v. Booker, 4 M.J. 137 (1977) (mem.) (on petition for reconsideration), the Court sua sponte extended the opportunity for amici to present oral argument. In Curtis, the Clerk contacted those amici who had filed briefs to determine which of them wished to argue; formal written requests for leave to argue were not required, and each amicus seeking to argue was permitted to do so. The amicus may not be afforded much time to argue. E.g., Graf, supra; United States v. Fogg, 51 M.J. 352 (1999) (mem.) (five minutes). The order of presentation will be determined by the Court and may be complicated when there are numerous amici. In Graf, appellant opened, followed by appellee, the amici aligned with appellant, those aligned with appellee, appellees rebuttal and, finally, appellants rebuttal. The entire process, punctuated by two brief recesses, lasted over three hours. A party or amicus may be allowed to supplement its oral argument, e.g., United States v. Conley, 28 M.J. 84 (1989) (mem.); Murray v. Haldeman, 16 M.J. 218 (1983) (mem.), or present additional authority on matters raised at oral argument. United States v. Lovett, 62 M.J. 321 (2005) (mem.) (ordering additional briefs on, inter alia, questions raised during argument); United States v. McCoy, 30 M.J. 229 (1990) (mem.); United States v. Vanzandt, 13 M.J. 124 (1982) (mem.); United States v. Wallace, 11 M.J. 169 (1981) (mem.); United States v. Oatney, supra; United States v. Green, supra; but see United States v.
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Blanchard, 49 M.J. 44 (1998) (mem.) (granting leave to file post-argument supplemental citations of authority but denying leave to file post-argument supplement to final brief); compare United States v. Saintaude, supra (granting leave to file response to bench question), with United States v. Thomas, 47 M.J. 85 (1997) (mem.) (denying motion to respond to questions raised in oral argument). A misstatement in oral argument may be corrected by motion. United States v. Lee, 51 M.J. 479 (1999) (mem.). Where a post-hearing submission is permitted, opposing counsel will be afforded an opportunity to reply. E.g., United States v. Byrd, 53 M.J. 241 (2000) (mem.); United States v. Davis, 19 M.J. 323 (1985) (mem.). Ordinarily, however, post-hearing briefs are disfavored. Compare United States v. Johnson, 5 M.J. 1001 (1976) (mem.), with McPhail v. United States, 5 M.J. 1038 (1976) (mem.). After oral argument in United States v. Westmoreland, 31 M.J. 160, 161 n.1 (1990), the Court granted the appellants unopposed motion to expand the issue on which review had been granted. In urgent cases, the hearing may be accelerated. E.g., ABC, Inc. v. Powell, 47 M.J. 77, 79 (1997) (mem.) (Thursday order for Monday hearing); Gard v. Cook, 33 M.J. 480 (1991) (mem.) (one days notice); Moore v. United States, 31 M.J. 427 (1990) (mem.) (Thursday order for Monday hearing); U.S. NavyMarine Corps Court of Military Review v. Carlucci, 27 M.J. 10, 11 (1988) (mem.) (two hours notice); Stufflebeam v. Torres, 24 M.J. 196 (1987) (mem.) (one days notice); United States v. Van Slate, 14 M.J. 285 (1982) (mem.) (hearing held on day case was filed); Berta v. United States, 9 M.J. 390 (1980) (mem.) (one days notice); Fletcher v. Commanding Officer, 2 M.J. 226 (1977) (mem.) (two days notice); Kelly v. United States, 23 C.M.A. 567, 50 C.M.R. 786, 788 (1975) (Cook, J., dissenting) (three days notice). The Court almost never permits counsel seeking extraordinary relief to argue on an ex parte basis. If divided argument is desired, a motion should be made. E.g., United States v. Davis, 51 M.J. 488 (1999) (mem.); United States v. Boone, 49 M.J. 152 (1998) (mem.) (granting motion to allocate oral argument); United States v. Simoy, 50 M.J. 192 (1998) (mem.) (capital case); United States v. Murphy, 46 M.J. 443 (1997) (mem.); United States v. Thomas, 46 M.J. 395 (1997) (mem.); United States v. Loving, 38 M.J. 203 (1993) (mem.); United States v. Davis, 37 M.J. 34 (1992) (mem.); United States v. Lonetree, 34 M.J. 155, 170 (1991) (mem.); United States v. Holt, 33 M.J. 482 (1991) (mem.); United States v. Pollard, 27 M.J. 435 (1988) (mem.); see also United States v. Rushatz, 32 M.J. 28 (1990) (mem.) (granting motion to apportion oral argument). The Court will generally allow divided argument, although counsel should first weigh the pros and cons carefully, since splitting the argument may prove artificial and make it more difficult to shift gears as the argument develops in open court. The Court records all oral arguments. The recordings may be listened to upon application to the Clerk and since October 2006 audio of oral arguments is typically uploaded to the Courts web site the following day. Except in rare instances, transcripts are not prepared. In United States v. Thomas, 46 M.J. 408 (1997) (mem.), the Court permitted appellant to audiotape the argument but
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cautioned that the tape would not be an official record of the Court. Where a visual aid is to be used at oral argument, prudent counsel will notify the Clerk so that suitable arrangements can be made and, if necessary, will seek leave of court in advance. Simoy, supra (videotape); United States v. Fitzgerald, 45 M.J. 11 (1996) (mem.); United States v. Roller, 42 M.J. 55 (1994) (mem.); cf. United States v. Batchelder, 42 M.J. 9 (1995) (mem.) (granting leave to present copies of appellate exhibits during oral argument). After the hearing, a motion may be made to file a photograph of the display. United States v. Curtis, 32 M.J. 26 (1990) (mem.). Historically, the only function performed by the Court away from the courthouse was the admission of attorneys. See Comment to Rule 13(f); e.g., 1961 CODE COMM. ANN. REP. 54-55 (1962) (noting sundry special admissions sessions, including one, for a single applicant, eight miles from Arctic Circle); 1964 CODE COMM. ANN. REP. 47 (1965) (Atlanta); 1970 CODE COMM. ANN. REP. 8 (1971) (Boston); 1971 CODE COMM. ANN. REP. 9 (1972) (London and Boston); 1972 CODE COMM. ANN. REP. 7 (1973) (Charlottesville); 1973 CODE COMM. ANN. REP. 7 (1974) (Providence and Anaheim); 1975 CODE COMM. ANN. REP. 6 (1976) (San Diego, Charlottesville, Camp Pendleton and Monterey); FY77 CODE COMM. ANN. REP. 3 (1978) (Chicago); FY78 CODE COMM. ANN. REP. 6 (1979) (Newport and New York). Such sessions have served no practical purpose since 1977, when the rules were changed to permit bar admissions in absentia, see FY77 CODE COMM. ANN. REP. 3 (1978), but they still occur. Thus, admissions ceremonies were conducted in 1991 in Atlanta in conjunction with the annual meeting of the American Bar Association and at West Point in conjunction with an oral argument. See In re Tramposch, 32 M.J. 462 (1991). Since 1987, over 100 cases have been heard away from Washington as part of Project Outreach, the Courts public awareness project. See generally FY92 CODE COMM. ANN. REP. 6-7 (1993); FY91 CODE COMM. ANN. REP. 2 (1992); FY89 CODE COMM. ANN. REP. 6-7 (1990); W. Gary Jewell & Harry L. Williams, COMA Watch 1989, 128 MIL. L. REV. 115, 116 n.5 (1990); cf. United States v. Curtis, 33 M.J. 97, 98 n.2 (1991). The hope is: that the thousands of students, service persons, military and civilian attorneys, and members of the American public who witness these hearings will realize that America is a democracy that can maintain an Armed Force instilled with the appropriate discipline to make it a world power and yet afford the members of that Armed Force a fair and impartial justice system which does provide the full protection of the Constitution of the United States and Federal law to its members. United States v. Blocker, 32 M.J. 281, 282 n.1 (1991); United States v. Frazier, 34 M.J. 194, 195 n.1 (1992); United States v. Allen, 34 M.J. 228, 229 n.1 (1992); United States v. Stinson, 34 M.J. 233, 234 n.* (1992).
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This practice was developed as part of a public awareness program to demonstrate the operation of a Federal Court of Appeals and the quality of the military justice system. United States v. Mahoney, 58 M.J. 346, 347 n.1 (2003). The Court asks all counsel, civilian, James S. Richardson, Sr., The Court of Appeals for the Armed Forces, A Practice Opportunity for Senior Lawyers, FED. B. ASSN SENIOR LAWY., Winter 1995, at 2, 5, and military, for their consent before a case is scheduled for hearing outside the courthouse. The Courts practice follows that of the United States Courts of Appeals for the Fourth and Eighth Circuits in conducting occasional hearings at law schools, Robinson O. Everett, The United States Court of Military Appeals: New Issues, New Initiatives, 36 FED. B. NEWS & J. 182, 184 (1989); FY91 CODE COMM. ANN. REP. 2 (1992); United States v. Frazier, supra, and was suggested by Professor Stephen A. Saltzburg (then of the University of Virginia School of Law) and members of the staff of The Judge Advocate Generals School of the Army. Code Comm. Minutes, Oct. 29, 1986, at 12. The first Project Outreach hearing was conducted at the University of Virginia School of Law on November 13, 1987. United States v. Richards, 56 M.J. 282, 283 n.1 (2002); Remarks of Chief Judge Crawford at the University of Virginia School of Law (Oct. 1, 2001). Through the end of the 2001-02 Term, the Court had heard 67 such cases. Id. Cases have been heard, for example, at the Washburn University School of Law, United States v. Macomber, 67 M.J. 214 n.1 (2009); University of North Dakota School of Law, United States v. Rhodes, 61 M.J. 28 n.* (2005) (Hearing Notice); United States v. Morgan, 40 M.J. 389, 390 n.* (1994); University of South Dakota School of Law, United States v. Reeves, 61 M.J. 27 n* (2005) (Hearing Notice); The Citadel, United States v. Thompson, 51 M.J. 130 n.* (1998) (mem.); University of Virginia, United States v. Richards, supra; United States v. Youngberg, 42 M.J. 121 n.1 (1995) (mem.), 43 M.J. 379, 381 n.2 (1995); United States v. Guaglione, 25 M.J. 382 (1987) (mem.); United States v. Sherrod, 25 M.J. 382 (1987) (mem.); Wake Forest University School of Law, United States v. Dubose, 47 M.J. 386 & n.1 (1998); United States v. Gleason, 43 M.J. 69 n.* (1995); United States v. Avila, 26 M.J. 207 n.* (1988) (mem.); United States v. Byers, 26 M.J. 207 n.* (1988) (mem.); University of South Carolina School of Law, Robinson O. Everett, supra; United States v. Moore, 28 M.J. 236 n.* (1989) (mem.); Dickinson School of Law, United States v. Hardy, 46 M.J. 67, 68 n.2 (1997); Duquesne University School of Law, United States v. Gardinier, 65 M.J. 60, 62 n.1 (2007); Duke University School of Law, United States v. OConnor, 58 M.J. 450, 451 n.1 (2003); United States v. Tulloch, 47 M.J. 283, 284 n.2 (1997); Loyola University New Orleans College of Law, United States v. Roberson, 65 M.J. 43, 44 n.1 (2007); Washington & Lee University School of Law, United States v. Robinson, 58 M.J. 429, 430 n.1 (2003); United States Military Academy, United States v. Martinez, 52 M.J. 22, 23 n.* (1999); United States v. Davis, 49 M.J. 79, 80 n.1 (1998); United States v. Pritchard, 44 M.J. 73 n.* (1996) (mem.); United States v. Ayala, 42 M.J. 212 n.* (1995) (mem.); United States v. Hulett, 40 M.J. 189, 190 n.1 (1994); United
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States v. Frazier, supra; United States v. Blocker, supra, cited in Rorie Sherman, Military Court Takes Show to West Point, 13 NATL L.J., Apr. 1, 1991, at 7; United States v. Baker, 30 M.J. 224 n.* (1990) (mem.); United States v. Reichardt, 28 M.J. 113, 114 n.1 (1989), and 33 M.J. 206, 207 n.1 (1991); United States Naval Academy, United States v. Allen, supra; United States Air Force Academy, United States v. Swift, 51 M.J. 361 n.* (1999) (mem.); United States v. Vasquez, 48 M.J. 426, 427 n.* (1998); United States v. Lavender, 46 M.J. 485, 486 n.1 (1997); United States v. Radvansky, 44 M.J. 197 n.* (1996) (mem.); United States v. Martinez, 42 M.J. 327, 328 n.2 (1995); United States v. LeMaster, 40 M.J. 178 n.* (1994); United States v. Kaliski, 38 M.J. 165 n.* (1993); United States v. Stinson, 34 M.J. 233 n.* (1992); United States v. Bahr, 33 M.J. 4 n.* (1991) (mem.); United States v. Thompson, 30 M.J. 122 n.* (1990) (mem.); United States v. Stinson, supra; United States Coast Guard Academy, United States v. Martinelli, 59 M.J. 465 n.* (2004) (Hearing Notice); United States v. Padgett, 48 M.J. 273, 274 n.1 (1998); United States v. Bygrave, 46 M.J. 491, 492 n.1 (1997); United States v. Berri, 32 M.J. 461 n.* (1991) (mem.), and 33 M.J. 337, 339 n.4 (1991), noted in Robin K. Kutz, Court of Military Appeals Visits CGA, 53 U.S.C.G. ACAD. ALUM. BULL., April/May 1991, at 22; St. Marys University School of Law, United States v. Jacobs, 30 M.J. 124 n.* (1990) (mem.), 31 M.J. 138, 145 n.1 (1990) (Everett, C.J., dissenting); Washington & Lee University, United States v. Schmitt, 32 M.J. 493 n.* (1991) (mem.); Catholic University of America, United States v. Rodriguez, 49 M.J. 25 n.# (1998) (mem.); United States v. Dollente, 44 M.J. 56 n.* (1996) (mem.); William & Mary School of Law, United States v. Salazar, 44 M.J. 464 n.1 (1996), and United States v. Rockwood, 52 M.J. 98 (1999), noted in Wendy R. Leibowitz, Rex Bossert & Elizabeth Amon, High-Tech Courts Will Ease Crunch in 21st Century, 21 NATL L.J., No. 30, at A13, col. 2 (Mar. 22, 1999), and Fredric I. Lederer, Courtroom Practice in the 21st Century, Trial (July 1999), at 38, 39; University of Texas School of Law, United States v. Schap, 48 M.J. 376 n.* (1997) (mem.), 49 M.J. 317, 319 n.2 (1998); Emory University School of Law, United States v. Owens, 51 M.J. 204, 205 n.1 (1999); Georgetown University Law Center, United States v. Daniels, 60 M.J. 69, 70 n.* (2004); United States v. Fogg, 52 M.J. 144, 145 n.2 (1999); United States v. Davis, 51 M.J. 357 n.* (1999) (mem.); Camp Pendleton, United States v. Dancy, 38 M.J. 1, 2 n.2 (1993); Fort Gordon, United States v. Raymond, 38 M.J. 169 n.* (1993) (mem.); Fort Lewis, United States v. Benner, 57 M.J. 210, 211 n.3 (2002); Great Lakes Naval Training Center, United States v. Little, 43 M.J. 88 & n.2 (1995); Naval War College, United States v. Biagase, 50 M.J. 143, 144 n.1 (1999); Maxwell Air Force Base, United States v. Eggen, 51 M.J. 476 n.* (1999) (Hearing Notice); New England School of Law, United States v. Diaz, 58 M.J. 236 n.* (2003) (Hearing Notice); Suffolk University School of Law, United States v. Baker, 58 M.J. 236 n.** (2003) (Hearing Notice); Roger Williams University School of Law, United States v. Pipkin, 58 M.J. 237 n.* (2003 (Hearing Notice); University of Montana School of Law, United States v. Bright, 66 M.J. 359, 360 n.2 (2008); George Mason University School of Law, United States v. Gallagher, 66 M.J. 250, 251 n.1 (2008); Harvard Law School,
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United States v. Sanchez, 43 M.J. 399 n.* (1995) (Hearing Notice), 44 M.J. 174, 175 n.2 (1996); United States v. Scheurer, 62 M.J. 100 n.1 (2005); Vermont Law School, United States v. Leak, 60 M.J. 365 n.** (2004) (Hearing Notice); Indiana University School of Law (Indianapolis), United States v. Stevenson, 65 M.J. 426 n.* (2007) (Hearing Notice); Indiana University School of Law (Bloomington), United States v. Pack, 65 M.J. 427 n.* (2007) (Hearing Notice); Franklin Pierce Law Center, United States v. Shelton, 62 M.J. 1, 2 n.3 (2005) (per curiam); Howard University School of Law, United States v. Rivera, 46 M.J. 52, 53 n.* (1997); University of Pittsburgh School of Law, United States v. Leedy, 65 M.J. 208, 210 n.1 (2007); Mississippi College School of Law, United States v. Harrow, 65 M.J. 190, 193 n.1 (2007); Southern University Law Center, United States v. Flores, 64 M.J. 451, 452 n.1 (2007); Marine Corps Research Center, Quantico, Virginia, United States v. Moses, 45 M.J. 132, 133 n.2 (1996); Fort Bliss, United States v. Hester, 47 M.J. 461 n.1 (1998) (trial also held at Fort Bliss); Creighton University School of Law, United States v. Banker, 59 M.J. 155 n.* (2003) (mem.); Offutt Air Force Base, United States v. Wiest, 60 M.J. 276 n.1 (2004); University of North Carolina School of Law, United States v. Mahoney, 58 M.J. 346, 347 n.1 (2003); American University Washington College of Law, United States v. Edmond, 63 M.J. 255 n.1 (2006) (Hearing Notice); and the Association of the Bar of the City of New York, United States v. Chaney, 53 M.J. 383 n.* (2000); United States v. Williams, 43 M.J. 348 n.* (1995); United States v. Lingenfelter, 30 M.J. 224 n.* (1990) (mem.), which has a long history of involvement in military justice matters. See, e.g., Discussion of Rules 17, 21. In United States v. Gillette, 35 M.J. 468 n.1 (1992), the Court extended Project Outreach by conducting the hearing at the United States District Court in Dayton, Ohio. See also United States v. Sztuka, 43 M.J. 261, 262 n.2 (1996) (heard at Federal Courthouse, Chicago, incident to ABA annual meeting); United States v. Dobson, 61 M.J. 463 n.* (2005) (Hearing Notice) (Dirksen Federal Building, Chicago). It heard United States v. Hagee, 37 M.J. 484, 485 n.2 (1993), on board USS John F. Kennedy (CV-67), while she was underway in the North Atlantic. See also United States v. Moreno, 62 M.J. 222 n.* (2005) (Hearing Notice) (USS Ronald Reagan (CVN-76)). Encouraged by the Courts initiative, the Courts of Criminal Appeals have also occasionally heard cases away from Washington. E.g., United States v. Schoof, 34 M.J. 811, 812 n.1 (N.M.C.M.R. 1992) (per curiam) (Naval Legal Service Office, Norfolk, Virginia); United States v. Lynch, 35 M.J. 579 (C.G.C.M.R. 1992) (U.S. Coast Guard Academy). There is no indication that these out-of-town activities were curtailed (as an economy measure) following the Courts expansion to five judgeships. See S. REP. NO. 101-384, at 147 (1990) (suggesting reduced travel so as to foster collegial relationships and avoid delays). The Court Committee also suggested that the judges carefully evaluate their travel schedules to assure that the judicial business of the Court is conducted efficiently and effectively. Presentation of Court Committee Report, 28 M.J. 99, 102 (1989); see FY89 CODE COMM. ANN.
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REP. 7-9 (1990). Colonel Weiner was similarly critical of Judicial Visitations, Frederick Bernays Weiner, American Military Law in the Light of the First Mutiny Acts Tricentennial, 126 MIL. L. REV. 1, 82-84 (1989), and in United States v. Ayala, 42 M.J. 418 (1995) (mem.), where three judges had voted to permit West Point cadets to file briefs and argue as amici, Judges Crawford and Gierke, in dissent, wondered whether Project Outreach had been extended too far, and properly cautioned that the Court must be ever sensitive to the fact that there is a fine line between the maintenance of [judicial] standards [and the dignity and stature of the Court] and disintegration into a traveling road show atmosphere when the Court sits outside of our courthouse. See also Discussion of Rule 13A. Rule 41. PHOTOGRAPHING, TELEVISING, RECORDING, OR BROADCASTING OF HEARINGS (a) The photographing, televising, recording, or broadcasting of any session of the Court or other activity relating thereto is prohibited unless authorized by the Court. (b) Any violation of this rule will be deemed a contempt of this Court and, after due notice and hearing, may be punished accordingly. See 18 USC 401. 1983 Rules Advisory Committee Comment The provisions of former Rule 42 have been retained. 2001 Rules Advisory Committee Comment This revision adds a prohibition on the recording of appellate sessions within the confines of the courthouse unless authorized by the Court. This is consistent with the practice of other appellate courts and includes both video and audio record of proceedings. 2006 Rules Advisory Committee Comment As currently written, the Rule prohibits the photographing, televising, recording or broadcasting of any session of the Court of other related activity within the confines of the courthouse umnless authorized by the
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Court. There is no prohibition in the Rule for such actions occurring outside the courthouse, such as on Project Outreach hearings. The rule should apply wherever the Court may be sitting because, in effect, that is the courthouse at that point in time. Deletion of the quoted language will eliminate any ambiguity and make it clear that when the Court sits at law schools, these activities may take place only with the permission of the Court. Discussion Rule 41 represents an effort to insulate the Court from the possible disorder that may attend the activities of the mass media in gathering news. As such, it is part of a sizable body of court rules seeking to minimize the chances that the judicial atmosphere of a court and its quarters will be compromised. The difficulty with the rule is that it may be overbroad. For example, could the other activity clause of subsection (a) be construed to cover reporters not accompanied by cameramen? Are news media investigators covered? Are courtroom sketch artists barred even though employed by a television station (and not if employed by a newspaper)? What criteria govern the granting of exceptions? While artists have been permitted to do sketches in the courtroom, e.g., ABC, Inc. v. Powell, 47 M.J. 363 (1997), other questions remain largely unanswered. Notwithstanding the rule, on February 23, 1989, the Court which is not covered by Judicial Conference rules forbidding cameras in the courtroom, Eugene R. Fidell, Letter to the Editor, N.Y. TIMES, Sept. 23, 1994, at A20, col. 3; WASH. POST, Feb. 25, 1989, at A5, col. 1; see also id., Mar. 3, 1989, at A18, col. 1 allowed a network television news team to videotape arguments in two cases to determine the feasibility of the process. N.Y. TIMES, Feb. 28, 1989, at A18, col. 6. On July 14, 1989, it permitted C-Span cable television to videotape the argument in United States v. Reichenbach, 29 M.J. 128 (1989), as part of a three-hour documentary and call-in program about the Court. FY89 CODE COMM. ANN. REP. 7 (1990). On August 29, 1990, acceding to a further request by C-Span, it permitted live coverage in United States v. Curtis, No. 63,044/MC, a capital case with numerous amici. The argument lasted over four hours and was broadcast in its entirety. N.Y. TIMES, Sept. 21, 1990, at A30, col. 4. Oral argument on further phases of the same case were videotaped on July 8, 1991, United States v. Curtis, 33 M.J. 97, 98 nn.1-2 (1991); FY90 CODE COMM. ANN. REP. 9 (1991), and December 13, 1994. The argument in Samples v. Vest, 38 M.J. 482 (1993), was also broadcast on C-Span. The Court has permitted television coverage over the objection of a party. United States v. Maxwell, 45 M.J. 14 (1996) (mem.) (Crawford, J., dissenting).
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Recognizing the power of the World Wide Web, in United States v. Rockwood, 52 M.J. 98 (1999), the Court permitted the oral argument to be transmitted live over the internet. This was arranged by William & Mary School of Laws Courtroom 21 Project as part of the Courts Project Outreach and in conjunction with a symposium commemorating the 50th anniversary of the UCMJ. Wendy R. Leibowitz, Rex Bossert & Elizabeth Amon, High-Tech Courts Will Ease Crunch in 21st Century, 21 NATL L.J., No. 30, at A13, col. 2 (Mar. 22, 1999). Beginning in October 2006, the Court has posted audio recordings of hearings on its web site, under Scheduled Hearings. Another exception to the rule was made to allow photography during proceedings in honor of the Courts first clerk. Tribute in Honor of Alfred C. Proulx, 32 M.J. 225, 226 (1990) (remarks of Sullivan, C.J.). The Courts efforts to facilitate broadcast coverage illustrate how the Court can, because of its unusual status, serve as a laboratory for new approaches to sensitive issues of judicial administration. See Paul W. Brosman, The Court: Freer Than Most, 6 VAND. L. REV. 166, 167-68 (1953); cf. Eugene R. Fidell & Linda Greenhouse, A Roving Commission: Specified Issues and the Function of the United States Court of Military Appeals, 122 MIL. L. REV. 117, 118-23 (1988). Ironically, however, when the Judicial Conference of the United States voted, two weeks after the first Curtis broadcast, to authorize a pilot program on the use of cameras in the courtroom, N.Y. TIMES, Sept. 13, 1990, at A18, col. 5. it did not include the one type of case to which the Court of Appeals jurisdiction extends: criminal appeals. In 1994, the Judicial Conference terminated the pilot program. Based on the [Court of Appeals] apparently satisfactory experience to date, it seems unlikely that it will abandon its policy permitting occasional access by the electronic media. Letter to the Editor, N.Y. TIMES (Sept. 23, 1994) at A20, col. 3. Rule 41(b) asserts the power to punish for contempt, even though [t]he Court has no express contempt power nor any machinery to enforce interlocutory decrees. John T. Willis, The Constitution, the United States Court of Military Appeals and the Future, 57 MIL. L. REV. 27, 57 n.266 (1972). Subsection (b) provides the due process requirements of notice and hearing for contempt proceedings. The contempt power has never been exercised, and the Court has acknowledged that there is an issue as to its availability. In U.S. Navy-Marine Corps Court of Military Review v. Carlucci, 26 M.J. 328, 335 & n.10 (1988), it observed that Congress has not explicitly conferred the contempt power on either it or the Courts of Criminal Appeals, suggested that both it and the intermediate courts have inherent contempt power, and urged Congress to attend to the matter. To date, Congress has not done so. Special legislation was deemed necessary to confer the contempt power on the Tax Court in 1969. 26 U.S.C. 7456(d) (2006), as amended by Tax Reform Act of 1969, Pub. L. No. 91-172, 956, 83 Stat. 487 (1969). Indeed, the Senate Report on the Tax Reform Act was at pains to note that the Court of Mil-
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itary Appeals was in the same category as the Tax Court, S. REP. NO. 91-552, at 304 (1969), thus implying the need for legislation if it, too, is to be afforded contempt power. The precise contours of the Rule 41(b) contempt power, assuming it exists, are unclear. Article 48, which creates an offense of contempt for any menacing word, sign, or gesture in [a courts presence], or [anyone] who disturbs its proceedings by any riot or disorder, 10 U.S.C. 848 (2006), applies only to courts-martial, provost courts and military commissions. See generally R.C.M. 809; David A. Anderson, Summary Contempt Power in the Military: A Proposal to Amend Article 48, UCMJ, 160 MIL. L. REV. 158 (1999); Gary J. Holland, Military Contempt Procedures: An Overdue Proposed Change, 254 ARMY LAW., Jan. 1994, at 21; David A. Hennessey, Courts-Martial Contempt, An Overview, 186 ARMY LAW., June 1988, at 38; Max S. Ochstein, Contempt of Court, 16 JAG J. 25 (1962). Rule 41(b), read broadly, goes considerably beyond the contempt power described in the Code and Manual, for example, in not requiring that there be an actual disturbance of the Courts proceedings. Opinions Rule 42. FILING, REPRODUCTION, AND DISTRIBUTION All opinions of the Court will be filed with the Clerk for preservation. The reproduction, printing, and distribution of all opinions will be under the supervision of the Clerk. 1983 Rules Advisory Committee Comment The provisions of former Rules 43 and 44 on publication and retention of opinions of the Court have been consolidated into this single rule. Discussion If the Chief Judge is in the majority, the Chief Judge assigns the responsibility for drafting an opinion to a judge in the majority. If the Chief Judge is not in the majority, the next senior judge in the majority assigns the case. The U.S. Court of Appeals for the Armed Forces 7 (Apr. 2009). For many years, the Courts practice was to issue opinions at noon on Fridays. Dept of Defense Appropriations for 1966: Hearings on H.R. 9221 Before the Subcomm. of the Senate Comm. on Appropriations, 89th Cong. 467 (1965) (testimony of Ferguson, J.); Frederick R. Hanlon, Ten-Year Chronology of the United States Court of Military Appeals, 1961 CODE COMM. ANN. REP. 53 (1962); DOROTHY V. ALLPORT, MILITARY LAW AND MILITARY JUSTICE II (1972).
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When West Publishing Co. (now West Group) assumed responsibility for publishing the Courts decisions, Monday became the sole decision day. In 1989 the Court sensibly decided to issue opinions on other days of the week as well. At that time it was observed that in addition, [i]n some instances, typically, but not invariably at the end of the Term, the court has filed its decision without waiting for the West Publishing Company to put the opinion in headnote form and publish it. Robinson O. Everett, The United States Court of Military Appeals: New Issues, New Initiatives, 36 FED. B. NEWS & J. 182, 184 (1989); e.g., United States v. Curtis, 32 M.J. 252 (1991) (constitutionality of death penalty). Since delay in release of an opinion favorable to an accused may unjustly prolong his or her confinement, the Court later adopted the practice of issuing locally-reproduced copies of all of its decisions. These are furnished to counsel in the case and the cognizant Judge Advocate General on the day of decision, at which time they are also sent to West Group. At the end of the Term, opinions have sometimes been filed after the courthouse has closed. E.g., United States v. Graf, 35 M.J. 450 (1992). In 1996, late opinions were a particular problem, with the Court issuing a three-page Announcement on September 30 simply stating the outcome in 24 cases, with the opinions to be released as soon as administrative processing was completed by the Clerks Office. The Announcement recited that [t]he time for [seeking] reconsideration will not begin until an opinion is released. This practice should be avoided in order to avoid any question as to whether the time for seeking a writ of certiorari begins to run before the parties even have access to the Courts reasoning. The Court occasionally, and chiefly on petitions for extraordinary writ, decides a case subject to later issuance of an opinion. E.g., ABC, Inc. v. Powell, 47 M.J. 363 (1997) (bench ruling on June 23, 1997 [47 M.J. 80], opinion issued on Nov. 5, 1997); United States v. Curtin, 44 M.J. 439, 440 (1996) (bench ruling on Feb. 28, 1996, opinion issued on Sept. 6, 1996); United States v. Duncan, 39 M.J. 37 (1993) (mem.); United States v. Vangelisti, 31 M.J. 68 (1990) (mem.); Waller v. Swift, 30 M.J. 107 (1990) (mem.); Frage v. Moriarty, 27 M.J. 459 (1988) (mem.); United States v. Smith, 27 M.J. 408 (1988) (mem.); Woodrick v. Divich, 24 M.J. 213 (1987) (mem.); Burtt v. Schick, 23 M.J. 236 (1986) (mem.); Gragg v. United States, 10 M.J. 180 (1980) (mem.), opinion issued, 10 M.J. 296 (1981) (mem.); see also United States v. Weymouth, 43 M.J. 125 (1995) (mem.) (certified question in Art. 62 appeal). The substance of the decision may be delivered orally at the time of the hearing, Berta v. United States, 9 M.J. 390 & n.* (1980) (mem.), but this is rare. In United States v. Sager, 36 M.J. 137, 147 n.1 (1992), Judge Crawford noted that her opinion concurring in the result was filed after release of the majority opinion in order to permit further consideration of the issues that was not possible during the closing days of the Term of Court. It was circulated to the other judges six days after the date of the Courts decision. The sequence of events suggests that the collegial process may have been subordinated to the Term of Court concept. See also Lemoine v. Baker, 36 M.J. 86, 88 (1992) (mem.)
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(writ appeal decision rendered one day after hearing; dissenting opinion filed three weeks later); United States v. Banks, 36 M.J. 150, 171 n.*, 178 n.* (1992) (Cox and Crawford, JJ., dissenting) (dissenting opinions circulated 13 and 33 days after entry of decision); United States v. Demerse, 37 M.J. 488, 493 n.* (1993) (Crawford, J., dissenting) (dissent filed two days after release of majority opinion). In United States v. Kroop, 38 M.J. 470, 473 & n.* (1993), Judge Gierkes dissent was filed some time after Senior Judge Everetts opinion for the Court was issued; Judge Cox withdrew the concurring opinion he released with the opinion of the Court and substituted another eight days later. The practice of deferring issuance of one or more opinions to a time later than the ostensible decision date can result in unfairness to litigants who are considering whether to seek Supreme Court review, since the certworthiness of a case may well be affected by the contents of concurring or dissenting opinions. In order to prevent the certiorari clock from prematurely beginning to run, the Court should withhold entry of its decision until all opinions have been filed. See discussion of United States v. Graf, supra. The Supreme Courts occasional issuance of after-the-fact opinions in capital cases has been controversial. Rosenberg v. United States, 346 U.S. 273, 277, 285 (1953) (vacating stay of execution; per curiam and separate statements filed before execution, opinion of the Court filed after execution); Ex parte Quirin, 317 U.S. 1 (1942) (opinion issued after decision and execution of German saboteurs); see also Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866) (opinion delivered over eight months after announcement of result); Gordy v. Dennis, 176 Md. 106, 108, 5 A.2d 69, 70 (1939). Justice Jacksons dissent (joined by Justice Frankfurter) in SEC v. Chenery Corp., 332 U.S. 194, 210 (1947), was not filed until over three months after the decision came down. As Justice Douglas ruefully observed, delay such as that in Quirin is extremely undesirable . . . [b]ecause once the search for grounds . . . is made, sometimes those grounds crumble. Sam Skolnik, Death Sentences Behind Closed Doors, LEGAL TIMES, Dec. 20, 1999, at 20, 22 (quoting Journal of Supreme Court History). All opinions, as well as summary dispositions, see United States v. Diaz, 40 M.J. 335, 340 n.4 (1994), and other actions of and events at or relating to the Court (such as orders, rule changes, anniversaries, 56 M.J. 223 n.* (2001) (50th anniversary of issuance of Courts first decision). Law Day observances, 33 M.J. 151 (1991), deaths, 46 M.J. 204 (1996) (Col. Frederick Bernays Wiener); 43 M.J. 405 (1995) (Wiss, J.); 46 M.J. 428 (1995) (memorial proceedings for Wiss, J., in Evanston, Illinois), presentation of portraits, 48 M.J. LXXXVII (1997) (Darden and Fletcher, C.JJ., Cook and Perry, JJ.), and even some marriages, see Discussion of Rule 6), are reported in the Military Justice Reporter. Once in a while, a case may also appear in the Criminal Law Reporter. E.g., 54 CRIM. L. RPTR. 1352 (1994). A single opinion may be issued to decide several cases, e.g., United States v. Hock, 31 M.J. 334 (1990) (per curiam); United States v. Engel, 28 M.J. 299 (1989) (per curiam), even where they arise in different branches. E.g., United States v. Ezell, 6 M.J. 307 (1979); cf. United States v. Suarez, 35 M.J. 374
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(1992) (single opinion on petition for grant of review and petition for new trial). Issuances other than opinions (including short per curiams) are found in the Daily Journal portion of the reporter. Longer per curiams are published separately. E.g., United States v. Henderson, 44 M.J. 232 (1996) (per curiam); United States v. Smith, 43 M.J. 390 (1996) (per curiam). Life cycle events are also noted in the Daily Journal. E.g., Ceremonial Session, 62 M.J. 224 (2005) (retirement of Jessie Clark, Sr. Staff Atty, Central Legal Staff); Ceremonial Session for William N. Early, 57 M.J. LIX (2002); Memorial Proceedings for Victims of the September 11, 2001 Terrorist Attacks, 55 M.J. LXIII (2001) (noting death, inter alia, of Lieut. Mari-Rae Sopper, JAGC, USNR); Moment of Silence, 51 M.J. 137 (1998) (noting death of Alfred C. Proulx, first Clerk of the Court). Motions are not noted in the Daily Journal until the Court takes some action on them. The utility of the Daily Journal is reduced when its publication is delayed. To avoid this, the Court began posting Daily Journal entries on its website in August 1998. This reduced the lag between issuance and general availability. In addition, in October 1999, the Court began posting on its website a list of new grants and summary dispositions, entries on which will be removed when the pertinent Daily Journal is accessible. Among other things, this permits potential amici to follow the Courts docket more closely. Unless the Court changes the Rules, summary dispositions may be cited as authority. Diaz, supra, at 339-40. Cases and other actions are subject to editorial correction before final publication. The final version is authoritative, although error can creep in during the editing process, in which case the Court may have to revert to the original. See United States v. Baier, 60 M.J. 382, 394 (2005) (mistaken and misleading citation added in editing process, held, a weed in the garden of our jurisprudence. We will now pluck it up by the roots). Typographical or other formal errors in an opinion may be reported to the Deputy Clerk (Opinions) (formerly the Reporter of Decisions) at (202) 761-7361. It is the authors recommendation that such matters be submitted by letter with a copy to opposing counsel or, if submitted by a stranger to the proceeding, to counsel for both sides. Any corrections of substance should be dealt with in accordance with Rule 31. The synopses, syllabi and key number classifications that appear with the Courts published opinions are copyrighted by West. Historically, opinions were keyed only to the Military Justice topic in Wests key number system. The Court Committees 1989 recommendation that opinions of the Court should be indexed in additional key topics and numbers in that system, Presentation of Court Committee Report, 28 M.J. 99, 101 (1989), was well-taken because that reform would facilitate research in military case law and foster doctrinal interaction between civilian and military jurisprudence. See generally Eugene R. Fidell, If a Tree Falls in the Forest . . .: Publication and Digesting Policies and the Potential Contribution of Military Courts to American Law, 32 JAG J. 1, 1926 (1982). In 1992, West finally began to digest occasional military cases to top-
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ics other than Military Justice. E.g., United States v. Dudley, 34 M.J. 603 (A.F.C.M.R. 1992); United States v. Graf, supra; United States v. Vogan, 35 M.J. 32 (1992). At its meeting on March 31, 1997, the Code Committee agreed that attention should be given to improving the digesting of decisions of the Court of Appeals and the Courts of Criminal Appeals. The sense of the meeting was that military law would benefit if points of law in cases decided by these courts were integrated into Wests normal digest topics, rather than being segregated (almost entirely) in the Military Justice topic. While Wests efforts are an improvement, it still only sparingly headnotes military cases to non-military justice digest topics. See, e.g., WESTS MILITARY JUSTICE DIGEST (Mar. 2009 Pamphlet) (non-military justice topic headnotes consumed only 19 out of 354 digest pages). Worse yet, there seems to be little rhyme or reason to Wests selection process. The public interest would be served if non-military justice digest topic headnotes were not only prepared routinely as new decisions are handed down, but also prepared retrospectively for appropriate points of law in cases that have already been published. These could simply be added to the digest volumes and the WESTLAW computer database, rather than reprinting the decisions themselves. Beginning with United States v. Lovett, 59 M.J. 230 (2004), the format of case summaries found above the headnotes changed. These are now divided into Background and Holding sections. In 1999, presumably out of frustration with Wests failure to integrate military case law into the full range of pertinent digest topics, the Court took matters into its own hands and initiated its own online opinion digest for the 1999 Term of Court. The current user-friendly consolidated digest may be accessed at www.armfor.uscourts.gov/ConsolidatedDigestOutline.htm. As more cases have been added to it, it has become an essential research tool for the bench and bar. Best of all, it is free. In 1994, as an experiment in public domain citation, see Jol Silversmith, Universal Citation: The Fullest Possible Dissemination of Judgments (1997) (text accompanying n.48), the Court began to number the paragraphs in its opinions. See United States v. Williams, 43 M.J. 348, 355 n.8 (1995); Wendy R. Leibowitz, Matthew Bender Wins a Battle, But Wholl Win Case-Cite War?, NATL L.J., Dec. 9, 1996, at B18, library.ljextra.com/mattbend.htm. Before long, the practice was dropped without explanation. See DAVID A. SCHLUETER, KEN JANSEN, KEVIN J. BARRY & KENNETH A. ARNOLD, MILITARY CRIMINAL PROCEDURE FORMS 12-5(g)(1), at 596 (2d ed. 2003). Given the widespread availability of fast internet access and consequent reliance on free copies of the Courts decisions, the Court would be well-advised to revisit the insertion of paragraph numbers and otherwise encourage the use of neutral citation. Cf. Practice Direction (Judgments: Form and Neutral Citation), [2001] 1 W.L.R. 194, [2001] 1 All E.R. 193; Practice Direction (Judgments: Neutral Citations, [2002] 1 W.L.R. 346; see generally www.bailii.org/bailii/ citation.html.
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Rule 43. ENTRY OF JUDGMENT (a) Immediately upon the filing of an opinion of the Court, the Clerk shall prepare, sign, date and enter the judgment. The notation of a judgment in the docket constitutes entry of the judgment. On the date judgment is entered, the Clerk shall distribute to all parties and the Judge Advocate General of the service in which the case arose a copy of the opinion and judgment. See Rule 10(d). (b) If a judgment is rendered without an opinion, the Clerk shall prepare, sign, date and enter such judgment in an order following instruction from the Court. Notation of such order in the docket constitutes entry of the judgment and the effective date of the judgment is the date of that order. On that date such order is entered, the Clerk shall distribute to all parties and the Judge Advocate General of the service in which the case arose a copy of the order. See Rule 10(d). 1998 Rules Advisory Committee Comment [See 1998 Rules Advisory Committee Comment to Rule 10.] Rule 43A. ISSUANCE OF MANDATE (a) The mandate of the Court shall issue 7 days after the expiration of the time for filing a petition for reconsideration under Rule 31(a) unless such a petition is filed or the time is shortened or enlarged by order. A certified dated copy of the judgment and a copy of the opinion of the Court, if any, shall constitute the mandate, unless the Court directs that a formal mandate issue. The timely filing of a petition for reconsideration shall stay the mandate until disposition of the petition unless otherwise ordered by the Court. If the petition is denied, the mandate shall issue 7 days after entry of the order denying the petition unless the time is shortened or enlarged by order. In any
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case, the Court may order the mandate to issue forthwith. (b) The effective date of any order shall be the date of that order, and no mandate shall issue. The Clerk shall distribute copies of all such orders to all parties and the Judge Advocate General of the service in which the case arose. 1983 Rules Advisory Committee Comment The provisions of former Rule 45(a) have been retained in Rule 43(a). Rule 43(b) retains the provisions of former Rule 45(b), except for deletion of the word forthwith in the provision requiring the Clerk to furnish copies of the Courts orders to concerned persons. 1998 Rules Advisory Committee Comment [See 1998 Rules Advisory Committee Comment to Rule 10.] Discussion Former Rule 43 was updated and renumbered as Rule 43A in 1998, when a new Rule 43 was added. In re Change of Rules, 48 M.J. CVI, CIX (1998). Where an opinion has been issued, the mandate takes the form of a rubber-stamp on the judgment, reading: MANDATE Pursuant to Court Rule 43A. Issued: [date]. By: [court official]. OPINION ATTACHED. E.g., Loving v. United States, 62 M.J. 442 (2005) (judgment with mandate). Decisions of the Court are not self-executing. United States v. Miller, 47 M.J. 352, 361 (1997). The Judicial Branch is not an executive arm but depends on the Judge Advocate General and lower officials to execute its orders. Id. Issuance of the mandate is noted in the Daily Journal. When the Court acts by means of an order, as opposed to a decision, no mandate issues. See Rule 43A(b); United States v. Cabatic, 7 M.J. 438, 440 (1979) (Cook, J., concurring). The Court retains the power to recall the mandate, e.g., United States v. Williams, 27 M.J. 422 (1988) (mem.), but will do so only in extraordinary circumstances. United States v. Dearing, 64 M.J. 364 (2006) (mem.) (Executive Branch deliberations on whether to seek certiorari, held, not extraordinary circumstances). One purpose of doing so is to clarify the Courts intent. E.g., United States v. Heyward, 22 M.J. 274 (1986) (mem.); United States v. Belz, 20 M.J. 325 (1985) (mem.). Another is to facilitate the filing of a petition for reconside-
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ration. E.g., United States v. Gomez, 48 M.J. 39 (1997) (mem.) (mandate set aside). If the mandate has been issued prematurely, the Court will vacate it. United States v. Kreutzer, 62 M.J. 215 (2005) (mem.). Until the mandate issues, the decision of the Court is without effect. United States v. Tanner, 3 M.J. 924, 925-27 (A.C.M.R.), petition denied, 4 M.J. 169 (1977). If need be, a party can seek an extension of time in which to comply with the mandate. United States v. Gleason, 43 M.J. 417 (1995) (mem.). Article 71 prohibits execution of portions of a sentence that extend to death, dismissal or punitive discharge until completion of review by the Supreme Court or expiration of the period in which to seek certiorari. UCMJ art. 71(c)(1)(C)(ii)-(iii), 10 U.S.C. 871(c)(1)(C)(ii)-(iii) (2006). Under the Military Justice Act of 1983, the mandate is thus effectively stayed upon filing of a timely certiorari petition, until the Supreme Court acts on the petition. S. REP. NO. 98-53, at 25 (1983). The period for seeking certiorari runs from the date of entry of the judgment or order sought to be reviewed or the date of action on a timely petition for rehearing, not from the date the mandate issues. S. Ct. R. 13.3; see Discussion of Rule 19; United States v. Lopez de Victoria, 66 M.J. 381 (2008) (mem.) (denying motion to stay mandate that had been filed to allow sufficient time for Department of Defense and Solicitor General to decide if a certorari petition is warranted; motion for leave to withdraw motion for stay denied as moot). It is unfortunately the case that the Courts process for distributing of orders is imperfect, especially where civilian counsel are involved. (The same is true of cases in the Courts of Criminal Appeals.) Where other events may turn on the outcome in the Court of Appeals (as in writ cases), lead counsel should periodically consult the Office of the Clerk to confirm whether any action has been taken. Civilian counsel are well-advised to maintain close contact with military appellate defense counsel, since military counsel are more likely to learn of orders in a timely fashion. Cooperation between military and civilian counsel is critical in this respect to avoid potential prejudice to the client. See, e.g., United States v. May, 47 M.J. 478 (1998). Judicial Conference Rule 44. JUDICIAL CONFERENCE There shall be held annually, at such time and place as shall be designated by the Court, a conference for the purpose of considering the state of business of the Court and advising on ways and means of improving the administration of military justice.
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1998 Rules Advisory Committee Comment The purpose of this rule change is to conform the rule more closely to the Courts practice. Since the Court has not conducted a Judicial Conference other than in the context of the Homer Ferguson Conference, and has taken to referring to that annual proceeding as its Judicial Conference, no purpose is served by distinguishing between the two. In addition, the list of invitees set out in former paragraph (b) appears unnecessary. Discussion Rule 44 was added in 1983, following suggestions in the first edition of this GUIDE and a seminal article by a distinguished former Judge Advocate General of the Army. Kenneth J. Hodson, Military Justice: Abolish or Change?, 22 U. KANS. L. REV. 31, 53 (1973). It also appears to have drawn inspiration from an abortive 1977 proposal for a Military Justice Council, which would have served as a new staffing organization for the Code Committee which would blend the features of the Joint Services Committee [on Military Justice] with those of a Judicial Council as it is known in the civilian community. Letter from Ward Mundy, C.M.A. Court Exec., to Chief Judge Albert B. Fletcher, Jr. (Nov. 16, 1977). Along with an abortive draft rule on practice by law students, see Discussion of Rule 13A, what became Rule 44 was reported out by the Rules Advisory Committee without a favorable recommendation in 1982. It was never implemented, although beginning in 1991 the Court referred to its annual twoday military justice/continuing legal education conference as a Judicial Conference. The proceedings of the 1990 Conference were published in Wests Military Justice Reporter. 30 M.J. CLXIX. Public meetings of the Code Committee were conducted during the 1992 and 1993 Conferences. These were held at The George Washington Universitys Marvin Center, 57 FED. REG. 11,607 (1992), and the Senate Caucus Room, respectively. For a time, the Marvin Center was the standard venue for the Judicial Conference; more recently, the Conference has been held at the Columbus School of Law, Catholic University of America, also in Washington, D.C. Revision of Rules Rule 45. RULES ADVISORY COMMITTEE (a) Establishment of committee; membership. A Rules Advisory Committee is hereby created for this Court. The Committee shall consist of not less than 9 members of the Bar of this Court and shall be selected by the Court, in such a way as to
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represent a broad cross-section of the legal profession. Representatives from government, the law schools, and public interest groups shall, when practicable, be included on the Committee, as shall private practitioners. The Clerk of the Court shall be a member of the Committee and shall serve as its Reporter. (b) Duties of committee. The Rules Advisory Committee appointed by this Court shall have an advisory role concerning practice and procedure before the Court. The Committee shall, among other things, (1) provide a forum for continuous study of the operating procedures and published rules of the Court; (2) serve as a conduit between the Bar, the public, and the Court regarding the Rules of the Court, procedural matters, and suggestions for changes; (3) draft, consider and recommend rules and amendments to the Court for adoption; and (4) render reports from time to time, on its own initiative and on request, to the Court on the activities and recommendations of the Committee. The Committee shall prepare explanatory materials with respect to any Rule Change or other recommendation it submits to the Court. (c) Terms of members; chairman. With the exception of the Clerk of the Court, the members of the Committee shall serve three-year terms, which will be staggered in such a way as to enable the Court to appoint or reappoint one-third of the Committee each year. The Court shall appoint one of the members of the Committee to serve as chairman. Discussion The Committees commentary is omitted since it merely restates the provisions of the rule. Rule 45 was added in 1983, following a suggestion in the first edition of this GUIDE. It is based on what is now D.C. Cir. R. 47.4. The Court had rejected a companion proposal that would have spelled out arrangements for the dissemination of proposed rules for comment. See D.C. Cir. R. 47(c)-(d). But in 1988, Congress required appropriate public notice and an opportunity for comment
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except where there is an immediate need for a rule. 28 U.S.C. 2071(e) (2006). In light of that statute, the Court caused certain rule changes to be published in the Federal Register for a 60-day comment period in 1989. 54 FED. REG. 20,631 (1989). Whether or not it could have dispensed with the notice-andcomment process for the portion that changed Rule 21 because that proposal had been circulated for comment several years before, the decision to recirculate it showed the Courts interest in having as much input as possible when promulgating rules. See also 72 FED. REG. 18,210 (2007) (proposal to change Rule 24), corrected, 72 FED. REG. 19,067 (2007); 71 Fec. Reg. 64,251 (2006); 70 FED. REG. 20,358 (2005); 69 FED. REG. 39,440 (2004); 69 FED. REG. 33,363 (2004) (proposal to change Rules 15, 21(b)(1), 24, 26, 37, 38); 66 FED. REG. 35,226 (2001) (proposal to change Rules 13(c), 20(b)-(c), 21(b), 24, 41(a)) (60 days); 64 FED. REG. 35,633 (1999); 63 FED. REG. 6917 (1998); 63 FED. REG. 54,460 (1998); 62 FED. REG. 27,592 (1997) (proposal to change Rules 8(f), 15(f), 19(d)-(e), 25, 27) (60 days); 61 FED. REG. 18,724 (1996) (proposal to change Rule 24); 61 FED. REG. 66,025 (1996); 60 FED. REG. 4893 (1995) (proposal to change Rules 4(b), 19(d), 27(a)(1)(E), 30-31; 30-day comment period), corrected, 60 FED. REG. 13,780 (1995) (60 days); 66 FED. REG. 35226, 35230 (2001) (60 days). Use of the Federal Register in this fashion is consonant with the Department of Defenses policy of giving notice of the availability of proposed Manual changes for public comment. 32 C.F.R. Pt. 152, App. A, (d) (2009); 47 FED. REG. 3401 (1982); e.g., 57 FED. REG. 23,388 (1992); 51 FED. REG. 4530, 31,164 (1986); 61 FED. REG. 15,044 (1996), revised, 61 FED. REG. 18,123 (1996); 62 FED. REG. 24,640 (1997); 64 FED. REG. 27,761 (1999); 65 FED. REG. 17,633 (2000); 66 FED. REG. 30,431 (2001); 67 FED. REG. 35,507 (2002); see also 60 FED. REG. 4893 (1995) (notice of public meeting of Joint Service Comm. on Military Justice), 61 FED. REG. 15,057 (1996) (same); 62 FED. REG. 25,176 (1997) (same); 63 FED. REG. 28,371, 47,496 (1998) (same); 64 FED. REG. 31,839 (1999) (same); 66 FED. REG. 30,431 (2001) (same); 67 FED. REG. 35,507 (2002) (same); 71 FED. REG. 47,489 (2006), modified, id. at 53,089; 72 FED. REG. 54,246 (2007); cf. Letter from the author to Sen. Roger W. Jepsen, (May 21, 1981) (reproduced in S. REP. NO. 97-146, at 53, 56-57 (1981) (recommending legislation to require notice-and-comment rulemaking for Manual changes)); Letter from David E. Landau, American Civil Liberties Union, to Sen. Roger W. Jepsen (June 16, 1981), id. at 64 (same). The Court arguably could have dispensed with notice-and-comment procedures and consideration by the Rules Advisory Committee in connection with the February 27, 1991 addition to Rule 8(a), 32 M.J. 386, because the addition was inconsequential. Instead, it published a Federal Register notice seeking comments. 56 FED. REG. 10,240 (1991). The change was given interim effect. A similar tack was taken in connection with the changes to Rules 24(d) and 37 that were promulgated on October 30, 1991, effective November 4, 1991. The March 31, 1994 changes to Rules 9(d) and 29(a) and the February 27, 1996 changes to Rules 22(a) and 44(b)(6) were made immediately effective without prior notice to the bar.
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The Court declined in 1983 to include a sunshine provision making meetings of the Rules Advisory Committee open to the public unless otherwise directed by the Chief Judge. As a practical matter, nonmembers (other than members of the Courts staff) have rarely sought to attend; to date, none have been turned away. Given the congressional encouragement of open meetings of the Code Committee, S. REP. NO. 98-53, at 30 (1983); see, e.g., 74 FED. REG. 1181 (2009); 73 FED. REG. 4543 (2008); 72 FED. REG. 14,527 (2007); 71 FED. REG. 15,700 (2006); 70 FED. REG. 20,357 (2005); 68 FED. REG. 19,791 (2003); 67 FED. REG. 20,497 (2002); 65 FED. REG. 52,705 (2000); 64 FED. REG. 29,281 (1999); 63 FED. REG. 58,371 (1998); 62 FED. REG. 14,674 (1997); 61 FED. REG. 45,413 (1996); 59 FED. REG. 56,063 (1994); 58 FED. REG. 25,975 (1993); 57 FED. REG. 11,607 (1992); 56 FED. REG. 58,685 (1991); 55 FED. REG. 1248, 23,465 (1990); 54 FED. REG. 25,893 (1989); 53 FED. REG. 48,708 (1988); 52 FED. REG. 11,844 (1987); 51 FED. REG. 10,102, 20,876, 39,409 (1986); 50 FED. REG. 23,050, 50,826 (1985); 49 FED. REG. 43,989 (1984), and the institution of some partially open meetings of the Joint Service Committee on Military Justice, 64 FED. REG. 31,839 (1999); 63 FED. REG. 28,371, 47,496 (1998); 62 FED. REG. 25,176 (1997); 61 FED. REG. 15,057 (1996); 60 FED. REG. 4893 (1995); 58 FED. REG. 17,772 (1994), one would expect any question to be resolved in favor of openness. See also 28 U.S.C. 2073(c)(1) (2006) (Judicial Conference rules committees to meet in public); see generally Judicial Conference of the United States, PROCEDURES FOR THE CONDUCT OF BUSINESS BY THE JUDICIAL CONFERENCE COMMITTEES ON RULES OF PRACTICE AND PROCEDURE. The Rules Advisory Committee was created in 1981, and has reported out a variety of rule changes. As reconstituted in 1993, the Committee is approaching the goal of being representative of a broad cross-section of the legal profession. It now includes private practitioners, academicians, serving officers, persons affiliated with public interest organizations, and lawyers from the Department of Justice. Rules Advisory Committee Order, 38 M.J. 316 (1993); Rules Advisory Committee Membership, 42 M.J. 25 (1994); Rules Advisory Committee Order, 43 M.J. 393 (1995); Rules Advisory Committee, 46 M.J. 184 (1996); Rules Advisory Committee, 48 M.J. 340 (1997); Rules Advisory Committee Order, 51 M.J. 300 (1999); Rules Advisory Committee Order, 52 M.J. 475 (1999); Rule Change [sic], 57 M.J. 429 (2002); Rule Change [sic], 59 M.J. 134 (2003); Rules Advisory Committee Order, 62 M.J. 327 (2005); Rules Advisory Committee Membership Change, 64 M.J. 223 (2006); Rules Advisory Committee Membership Change, 65 M.J. 352 (2007). Military members have included chiefs of defense and government appellate divisions of various services, and judges and clerks of court of the Courts of Criminal Appeals. Government members have included attorneys from the Office of the Solicitor General and the Criminal Division of the Department of Justice, including, in one instance, an attorney with broad military legal experience who had previously served in a government appellate division and continues as a drilling reservist. The Clerk is an ex officio member of the Committee and serves as its Reporter. Id. In the case of Thomas F. Granahan, the Court by Order continued his service on the
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Committee for several years following his retirement. Rules Advisory Committee Membership Change, 65 M.J. 352 (2007); In re Rules Change [sic], 54 M.J. 441 (2001) (captioned In re Rules Advisory Committee in original), and then appointed him to a full term when a civilian practitioners term expired. 56 M.J. 139 (2001) (captioned Rule Change in original); see also Rules Advisory Committee Membership Change, 64 M.J. 223 (2006). Until 1993, the Committee was chaired by Colonel Walter L. Lewis, a retired Air Force judge advocate. The author served as chair from 1993 to 1996, when he was succeeded by Professor Steven H. Goldblatt of Georgetown University Law Center. Nearly all of the Committees members have had military service. The non-active duty membership in the Committee has been stable. The serving officer members, however, have moved off the Committee as their tours of duty come to an end. E.g., Rules Advisory Committee Membership Change, 65 M.J. 352, 353 (2007) (noting resignation); Rules Change [sic], 56 M.J. 139 (2001) (same); In re Rules Advisory Committee, 52 M.J. 475 (1999) (same); Rules Advisory Committee Membership Change, 64 M.J. 223 (2006) (same). Civilian members receive no compensation for service on the Committee. Cf. 28 U.S.C. 2077(b) (2006). The Court has not strictly adhered to the staggered-terms provision of the rule. Rules Advisory Committee Membership, 42 M.J. 25 (1994) (three members with expiring terms extended for one year; new member appointed for one year). The Committees functions partially overlapped with those of the former Court Committee, which was charged with studying issues and making recommendations concerning the Courts statutory mandate, status, organization, size, staff, administration, and operation. Reestablishment of the Court Committee, 25 M.J. 154 (1987). When both were active, the two bodies met separately and had no members in common. The rules change process has at times moved with all deliberate speed. For example, the important 1990 change to Rule 21, which for the first time identified factors that might bear on whether review will be granted, originated in the Committee in 1981. Although reported out by the Committee, the proposed rule was omitted by the judges from the final 1983 Rules Changes, without explanation. It was revived within the Committee in 1988, following enactment of the Military Justice Act of 1983, which for the first time authorized direct Supreme Court review of certain decisions of the Court. It was reported out a second time, slightly revised, in February 1989, and approved by the judges, further modified and after a second comment period, in 1990. 31 M.J. 465-66; see Discussion of Rule 21(b)(4). A 1992 proposal by the National Institute of Military Justice, dealing with no-issue petitions, was not reported out by the Committee (6-5 vote) until 1994, whereupon public comment was sought by Federal Register notice. 59 FED. REG. 25,622 (1994). Only two comments were received. Later that year, the matter was briefly discussed at a public meeting of the Code Committee. 59 FED. REG. 56,063 (1994). The proposal was ultimately rejected by the Court in 1995, without explanation. Changes to Rule 24 were pro-
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posed in 1994, published for comment in 1996, 61 FED. REG. 18,724 (1996), and not promulgated until early 1998. On the other hand, the process leading to the 2005 changes moved along very swiftly. Compare 70 FED. REG. 54,370 (2005) with 62 M.J. 323 (2005). Another change that was studied by the Committee at some length involved the certification of state law issues to the highest courts of the states. The evolution of that proposal indicates the extent to which the Committee may read Rule 45(b) as words of limitation, rather than words of purchase, as the Committee declined to comment on the desirability of an arrangement under which the Court could act on questions of military law certified to it, as well as certifying questions out to other courts. The Committee confined itself to the observation that such incoming certifications would require authorizing legislation. See Discussion of Rule 4. Changes concerning the processing of Article 62 cases were developed by the Committee in early 1985, but were held for review and consideration until a third judge was appointed to the Court. Code Comm. Minutes, Dec. 18, 1985, at 7. As suggested in Rule 45(b), the Committee has initiated some proposals and at other times has been asked by the Court to consider particular issues, see, e.g., United States v. Tucker, 20 M.J. 52, 54 (1985); United States v. Mills, 12 M.J. 225, 227 (1982), including operational questions not directly tied to any particular rule. For example, dissenting in United States v. Parker, 62 M.J. 459, 469 (2006), Judge Erdmann, joined by Chief Judge Gierke, urged revision of Rule 19(b). It is to be assumed that the Committee will address their suggestion. In 1995, the judges asked the Committee to address the role of students as amici curiae. The 1996 proposal to amend Rule 24, 61 FED. REG. 18,724 (1996), also came from members of the Court, as did the 1998 amendment of Rule 24 (which originated with Judges Gierke and Wiss). Earlier, in 1988, the judges asked the Committee to give careful attention to ways the processing time for cases could be reduced. This led to a thorough review of the appellate process with members of the Courts staff, and resulted in a pilot program under which the government appellate divisions could waive response in appropriate cases under Article 67(a)(3). No rule change was necessary at the time, although one was made when the program was evaluated and the Court decided to make it permanent. See Discussion of Rule 21. In the course of this and other projects, the Committee has, since its inception, endeavored to meet at one time or another with each sitting judge. Rule changes have also been proposed by members of the military bench, see 62 FED. REG. 27,592 (1997) (writ practice changes recommended by Mahoney, J.); 60 FED. REG. 4895 (1995) (noting suggestion by Mollison, J.), and appellate bar. The last sentence of Rule 45(b), requiring appropriate explanatory materials with respect to any Rule Change or other recommendation, has not been read to require formal comments. A detailed drafters commentary accompanied
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the Committees 1982 proposed comprehensive revision and, for example, the 1995, 1997 and 2005 proposed changes, 70 FED. REG. 53,370 (2005); 62 FED. REG. 27,592, 27,593-94 (1997); 60 FED. REG. 4893 (1995), but other proposals have been submitted to the judges accompanied only by brief letters of transmittal. Where a change emerges directly from the judges without Rules Advisory Committee drafting, the only explanatory matter is likely to be in the order promulgating the change, e.g., In re Establishment of Term of Court, 27 M.J. 412 (1988), and even this may not occur, as in the case of the 1992 amendments of Rules 13 and 24(c)(2), the 1994 amendments of Rules 9(d) and 29(a), 39 M.J. 446; see also 56 FED. REG. 10,240 (1991) (amendment of Rule 8(a)), and the 1998 amendment of Rule 24. With enactment of 28 U.S.C. 2073(d) (2006), explanatory notes should be prepared as a matter of routine. Although much may be gleaned from sources such as William N. Early, Lizann M. Longstreet & James S. Richardson, USCMA and the Specified Issue: The Current Practice, 123 MIL. L. REV. 9 (1989), the Court should publish its operating procedures, as other courts of appeals must do under 28 U.S.C. 2077(a) (2006). The extent of the judges rule making power remains an open question at the fringes. In addition to doubts harbored as to the Courts authority to fashion a mechanism for the receipt of certified questions of military law, see Discussion of Rule 4, a number of the staffs 1976 proposals were deemed too controversial. Robinson O. Everett, Foreword, C.M.A. GUIDE vii-viii (1978). The Courts claim of authority to prescribe a rule regarding constructive service of intermediate court decisions, United States v. Larneard, 3 M.J. 76, 80 (1977), as had been suggested by the Judge Advocate General of the Air Force, Code Comm. Minutes, July 12, 1977, at 2, was overtaken by congressional action, see UCMJ art. 67(b)(2), 10 U.S.C. 867(b)(2) (2006), although the Court did not feel moved to exercise that power until 12 years after Larneard and eight years after the legislation, when it finally did so in order to clear a backlog of pre-1981 cases. United States v. Myers, 28 M.J. 191 (1989); see 55 FED. REG. 7769 (1990). Nor had the Court developed a rule to bar frivolous petitions for grant of review, Hearings on H.R. 6583 to Amend the Uniform Code of Military Justice Before the Subcomm. on Military Personnel of the House Comm. on Armed Services, 84th Cong. 8575 (1956) (testimony of Quinn, C.J.), although the Committee discussed the virtues of releasing appellate defense counsel in plainly uncertworthy cases after the Supreme Courts jurisdiction was expanded to include military cases. While that particular suggestion seems to be a dead letter, and while a number of past suggestions for rule making have already been acted upon, see generally C.M.A. GUIDE 72-73 (1978), it is clear that the rule making process will remain an active one as the Court continues its search for ways to streamline and rationalize the delivery of appellate military justice while remaining solicitous of the competing substantive interests of the parties. By late 1994, the Committee had a sufficient number of proposals under consid-
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eration that for the first time it instituted a docket number system to keep track of them all. In 1990, the United States Air Force Court of Military Review followed the lead of the Court of Military Appeals and created a Rules Advisory Committee of its own. FY90 CODE COMM. ANN. REP. 59 (1991). That committee, which had no private sector members, met for a time but eventually fell into desuetude.
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APPENDIX UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES Washington, D.C. 20442-0001 [USCA Form 201 (Rev. June 2005)] INFORMATION QUESTIONNAIRE TO SUPPLEMENT MAIL INQUIRIES Name: Rank or Grade: (Attach court order if your name has been changed since your conviction.) Service: Current or Last Military Address: Current Civilian Address (if applicable): Current Telephone Number: 1. (a) (b) (c) (d) 2. (a) (b) (c) 3. 4. 5. 6. (a) (b) Place of Confinement (if any): Anticipated release date: Is such confinement on civilian charges? Yes ( ) No ( ) If so, how are they related to your present or former military service? Command and location of court-martial which entered conviction: Name of military judge: Name of defense lawyer: Date of court-martial conviction: Specific nature of sentence: Specific nature of offense or offenses for which you were convicted: What was your plea? (Check one) Not guilty to all charges ( ) Guilty to all charges ( ) Service No.
If you entered some guilty pleas and some not guilty pleas, give specific details: 7. If you pleaded guilty, what were the terms of any plea bargain you made?
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8. (a) (b) (c) 9. (a) (b) 10. 11. 12.
Level of court-martial: (Check one) General court-martial ( ) Special court-martial ( ) Summary court-martial ( ) Kind of trial: (Check one) Military judge alone ( ) Court-martial with members Did you testify at the trial? Do you have a copy of the record of trial? Did you file an appeal?
( ) Yes ( ) No ( ) Yes ( ) No ( ) Yes ( ) No ( )
13. If you did appeal from the conviction, indicate below each military appellate court or reviewing authority to which you appealed, the result at each level, and the date of such result: (a) The Judge Advocate General under Article 69, UCMJ. ( ) (i) Result: (ii) Date of result: (b) Court of Criminal Appeals (formerly the Court of Military Review) under Article 66, UCMJ.( ) (i) Result: (ii) Date of result: (c) U.S. Court of Appeals for the Armed Forces (formerly U.S. Court of Military Appeals) under Article 67, UCMJ. ( ) (i) Result: (ii) Date of Result: 14. Other than a direct appeal from the court-martial conviction and sentence, have you previously filed any petitions, applications, or motions with respect to this case in any court or with any superior reviewing authority not noted above: Yes ( ) No ( ) 15. If your answer to 14 was yes, give the following information as to each such proceeding (use additional sheets if necessary): (a) Name of court or reviewing authority and docket number of case, if any: (b) Nature of proceeding: (c) Errors raised: (d) Did you receive an evidentiary hearing on your petition, application or motion: Yes ( ) No ( ) (e) Result: (Attach copy of decision, if available) (f) Date of Result: (g) Did you appeal from any adverse action noted in 15(e) above? Yes ( ) No ( ) (h) If no appeal was taken, explain briefly why you did not appeal:
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16. State your reasons why you now claim that you are being held unlawfully or you claim that your court-martial conviction is invalid. Summarize briefly the specific facts supporting each reason. A. Reason one: Supporting FACTS (tell your story briefly without citing cases or law): B. Reason two: Supporting FACTS (tell your story briefly without citing cases or law): C. Reason three: Supporting FACTS (tell your story briefly without citing cases or law): 17. If any of the reasons listed in 16A, B and C were not previously presented to any other reviewing authority or court, state briefly what reasons were not so presented, and explain why you did not present those reasons: 18. Do you have any petition or appeal now pending in any court or elsewhere as to this particular court-martial? Yes ( ) No ( )
If so, give details: 19. Are you now represented by any lawyer? Yes ( ) No ( )
If so, give name, address, and telephone number of your lawyer: 20. If counsel is appointed to represent you, may this form be given to him or her? Yes ( ) No ( ) (Signature) (Date) Discussion Form 201 is neither included nor provided for in the rules. It was updated in 1996 and revised in 2005 (based on a suggestion in earlier editions of the GUIDE), but has fallen into desuetude. Typically, pro se inquiries are responded to with a personal letter from the Office of the Clerk.
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United States Court of Appeals for the Armed Forces Washington, D.C. APPLICATION FOR ADMISSION TO PRACTICE 1. Full Name (Type or print name as you want it shown on your certificate.) 2. Male ___ Female ____ 3. Date of Birth 4. Mil.rank/Service (Mo./Day/Yr.) (if applicable) 5. Residence address (including zip code); Telephone No. 6. Office address (including zip code); Telephone No. 7. E-mail address _____________________________ 8. Certificate Mailing Address: Residence ______ Office ______ 9. Federal and State Courts to which you are admitted to practice 10. Place where you are engaged in the practice of law 11. Have you ever changed your name or been known by any name or surname other than the name appearing on this application? _______ If so, state the name(s) and provide information in detail 12. Have you ever been disciplined, disbarred, sanctioned, or suspended from practice before any court, department, bureau, or commission of the United States, or of any State, Commonwealth, Territory, Possession, or the District of Columbia, or have you ever received any public or private reprimands from any such entity pertaining to your conduct as a member of the bar? _________ If so, explain in detail and attach a separate statement. 13. Are there any disciplinary proceedings pending against you? ______ If so, explain in detail and attach a separate statement. 14. Have you ever been convicted of a crime (other than a minor traffic violation)? If so, explain in detail and attach a separate statement.
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AGREEMENT AND CERTIFICATION I agree to inform the Court within 10 days of any disciplinary action taken against me by any entity described in question 12. I certify that I have read the foregoing information and have answered them fully and frankly. The answers are complete and true to my own knowledge. ___________ __________________________________________ (Date) (Signature of Applicant) OATH OR AFFIRMATION OF ATTORNEYS ( ) I will take the oath or affirmation in person. (Contact the Admissions Clerk at 202-761-7364 to arrange the admission in open session of the Court.) ( ) I will not appear in person, but I declare as follows: I do solemnly (swear) (affirm) that I will support the Constitution of the United States, and that I will conduct myself as an attorney and counselor of this Court, uprightly and according to law, so help me God. ___________ _________________________________________ (Date) (Signature of Applicant) USCAAF Bar No. _____________ (Clerks Office Use Only) NOTE: Applicant must submit with this completed form a check for $35 payable to Clerk of the Court, U.S. Court of Appeals for the Armed Forces, together with an ORIGINAL SIGNED certificate from the presiding judge, clerk, or other appropriate officer of the court listed in question 9, or from any other appropriate official from the Bar of such court, that the applicant is currently a member of the Bar in good standing. The certificate must be dated within one year of the date of this application. See Rule 13 of the Courts Rules of Practice and Procedure. The mailing address for the submission of applications is: Clerk of the Court, United States Court of Appeals for the Armed Forces, 450 E Street, NW, Washington, D.C. 20442-0001.
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Electronic Filing 2009 Rules Advisory Committee Comment Appellate courts are increasingly providing for electronic filing of pleadings. This proposal will permit electronic filing of pleadings at at the petition stage of cases before the Court. By making the program optional, the rules provide for circumstances in which counsel may find it necessary to file on paper. 74 FED. REG. 19,948 (2009), corrected, id. at 22,900.
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Code Provisions 867. Art. 67. Review by the Court of Appeals for the Armed Forces (a) The United States Court of Appeals for the Armed Forces shall review the record in: (1) all cases in which the sentence, as affirmed by a Court of Criminal Appeals, extends to death; (2) all cases reviewed by a Court of Criminal Appeals which the Judge Advocate General orders sent to the United States Court of Appeals for the Armed Forces for review; and (3) all cases reviewed by a Court of Criminal Appeals in which, upon petition of the accused and on good cause shown, the United States Court of Appeals for the Armed Forces has granted a review. (b) The accused may petition the United States Court of Appeals for the Armed Forces for review of a decision of a Court of Criminal Appeals within 60 days from the earlier of: (1) the date on which the accused is notified of the decision of the Court of Criminal Appeals; or (2) the date on which a copy of the decision of the Court of Criminal Appeals, after being served on appellate counsel of record for the accused (if any), is deposited in the United States mails for delivery by first-class certified mail to the accused at an address provided by the accused or, if no such address has been provided by the accused, at the latest address for the accused in his official service record. The United States Court of Appeals for the Armed Forces shall act upon such a petition promptly in accordance with the rules of the court. (c) In any case reviewed by it, the United States Court of Appeals for the Armed Forces may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the Court of Criminal Appeals. In a case which the Judge Advocate General orders sent to the United States Court of Appeals for the Armed Forces, that action need be taken only with respect to the issues raised by him. In a case reviewed upon petition of the accused, that action need be taken only with respect to issues specified in the grant of review. The United States Court of Appeals for the Armed Forces shall take action only with respect to matters of law.
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(d) If the United States Court of Appeals for the Armed Forces sets aside the findings and sentence, it may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If it sets aside the findings and sentence and does not order a rehearing, it shall order that the charges be dismissed. (e) After it has acted on a case, the United States Court of Appeals for the Armed Forces may direct the Judge Advocate General to return the record to the Court of Criminal Appeals for further review in accordance with the decision of the court. Otherwise, unless there is to be further action by the President or the Secretary concerned, the Judge Advocate General shall instruct the convening authority to take action in accordance with that decision. If the court has ordered a rehearing, but the convening authority finds a rehearing impracticable, he may dismiss the charges. 867a. Art. 67a. Review by the Supreme Court (a) Decisions of the United States Court of Appeals for the Armed Forces are subject to review by the Supreme Court by writ of certiorari as provided in section 1259 of title 28. The Supreme Court may not review by a writ of certiorari under this section any action of the United States Court of Appeals for the Armed Forces in refusing to grant a petition for review. (b) The accused may petition the Supreme Court for a writ of certiorari without prepayment of fees and costs or security therefore and without filing the affidavit required by section 1915(a) of title 28. 941. Art. 141. Status There is a court of record known as the United States Court of Appeals for the Armed Forces. The court is established under article I of the Constitution. The court is located for administrative purposes only in the Department of Defense. 942. Art. 142. Judges (a) NUMBER. The United States Court of Appeals for the Armed Forces consists of five judges. (b) APPOINTMENT; QUALIFICATION. (1) Each judge of the court shall be appointed from civilian life by the President, by and with the advice and consent of the Senate, for a specified term determined under paragraph (2). A judge may serve as a senior judge as provided in subsection (e). (2) The term of a judge shall expire as follows:
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(A) In the case of a judge who is appointed after March 31 and before October 1 of any year, the term shall expire on September 30 of the year in which the fifteenth anniversary of the appointment occurs. (B) In the case of a judge who is appointed after September 30 of any year and before April 1 of the following year, the term shall expire fifteen years after such September 30. (3) Not more than three of the judges of the court may be appointed from the same political party, and no person may be appointed a judge of the court unless the person is a member of the bar of a Federal court or the highest court of a State. (4) For purposes of appointment of judges to the court, a person retired from the armed forces after 20 or more years of active service (whether or not such person is on the retired list) shall not be considered to be in civilian life. (c) REMOVAL. Judges of the court may be removed from office by the President, upon notice and hearing, for: (1) (2) (3) neglect of duty; misconduct; or mental or physical disability.
A judge may not be removed by the President for any other cause. (d) PAY AND ALLOWANCES. Each judge of the court is entitled to the same salary and travel allowances as are, and from time to time may be, provided for judges of the United States Court of Appeals. (e) SENIOR JUDGES. (1)(A) A former judge of the court who is receiving retired pay or an annuity under section 945 of this title (article 145) or under subchapter III of chapter 83 or chapter 84 of title 5 shall be a senior judge. The chief judge of the court may call upon an individual who is a senior judge of the court under this subparagraph, with the consent of the senior judge, to perform judicial duties with the court: (i) during a period a judge of the court is unable to perform his duties because of illness or other disability; (ii) during a period in which a position of judge of the court is vacant; or (iii) in any case in which a judge of the court recuses himself. (B) If, at the time the term of a judge expires, no successor to that judge has been appointed, the chief judge of the court
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may call upon that judge (with that judges consent) to continue to perform judicial duties with the court until the vacancy is filled. A judge who, upon the expiration of the judges term, continues to perform judicial duties with the court without a break in service under this paragraph shall be a senior judge while such service continues. (2) A senior judge shall be paid for each day on which he performs judicial duties with the court an amount equal to the daily equivalent of the annual rate of pay provided for a judge of the court. Such pay shall be in lieu of retired pay and in lieu of an annuity under section 945 of this title (article 145), subchapter III of chapter 83 or subchapter II of chapter 84 of title 5, or any other retirement system for employees of the Federal Government. (3) A senior judge, while performing duties referred to in paragraph (1), shall be provided with such office space and staff assistance as the chief judge considers appropriate and shall be entitled to the per diem, travel allowances, and other allowances provided for judges of the court. (4) A senior judge shall be considered to be an officer or employee of the United States with respect to his status as a senior judge, but only during periods the senior judge is performing duties referred to in paragraph (1). For the purposes of section 205 of title 18, a senior judge shall be considered to be a special government employee during such periods. Any provision of law that prohibits or limits the political or business activities of an employee of the United States shall apply to a senior judge only during such period. (5) The court shall prescribe rules for the use and conduct of senior judges of the court. The chief judge of the court shall transmit such rules, and any amendments to such rules, to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives not later than 15 days after the issuance of such rules or amendments, as the case may be. (6) For purposes of subchapter III of chapter 83 of title 5 (relating to the Civil Service Retirement and Disability System) and chapter 84 of such title (relating to the Federal Employees Retirement System) and for purposes of any other Federal Government retirement system for employees of the Federal Government: (A) a period during which a senior judge performs duties referred to in paragraph (1) shall not be considered creditable service;
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(B) No amount shall be withheld from the pay of a senior judge as a retirement contribution under section 8334, 8343, 8422, or 8432 of title 5 or under any other such retirement system for any period during which the senior judge performs duties referred to in paragraph (2); (C) no contribution shall be made by the Federal Government to any retirement system with respect to a senior judge for any period during which the senior judge performs duties referred to in paragraph (2); and (D) a senior judge shall not be considered to be a reemployed annuitant for any period during which the senior judge performs duties referred to in paragraph (2). (f) SERVICE OF ARTICLE III JUDGES. (1) The Chief Justice of the United States, upon the request of the chief judge of the court, may designate a judge of a United States court of appeals or of a United States district court to perform the duties of judge of the United States Court of Appeals for the Armed Forces: (A) during a period a judge of the court is unable to perform his duties because of illness or other disability; (B) or in any case in which a judge of the court recuses himself;
(C) during a period when there is a vacancy on the court and in the opinion of the chief judge of the court such a designation is necessary for the proper dispatch of the business of the court. (2) The chief judge of the court may not request that a designation be made under paragraph (1) unless the chief judge has determined that no person is available to perform judicial duties with the court as a senior judge under subsection (e). (3) A designation under paragraph (1) may be made only with the consent of the designated judge and the concurrence of the chief judge of the court of appeals or district court concerned. (4) Per diem, travel allowances, and other allowances paid to the designated judge in connection with the performance of duties for the court shall be paid from funds available for the payment of per diem and such allowances for judges of the court. (g) EFFECT OF VACANCY ON COURT. A vacancy on the court does not impair the right of the remaining judges to exercise the powers of the court. 943. Art. 143. Organization and employees (a) CHIEF JUDGE.
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(1) The chief judge of the United States Court of Appeals for the Armed Forces shall be the judge of the court in regular active service who is senior in commission among the judges of the court who: (A) and (B) have served for one or more years as judges of the court; have not previously served as chief judge.
(2) In any case in which there is no judge of the court in regular active service who has served as a judge of the court for at least one year, the judge of the court in regular active service who is senior in commission and has not served previously as chief judge shall act as the chief judge. (3) Except as provided in paragraph (4), a judge of the court shall serve as the chief judge under paragraph (1) for a term of 5 years. If no other judge is eligible under paragraph (1) to serve as chief judge upon the expiration of that term, the chief judge shall continue to serve as chief judge until another judge becomes eligible under that paragraph to serve as chief judge. (4)(A) The term of a chief judge shall be terminated before the end of 5 years if: (i) the chief judge leaves regular active serve as a judge of the court; or (ii) the chief judge notifies the other judges of the court in writing that such judge desires to be relieved of his duties as chief judge. (B) The effective date of a termination of the term under subparagraph (A) shall be the date on which the chief judge leaves regular active service or the date of the notification under subparagraph (A)(ii), as the case may be. (5) If a chief judge is temporarily unable to perform his duties as chief judge, the duties shall be performed by the judge of the court in active service who is present, able and qualified to act, and is next in precedence. (b) PRECEDENCE OF JUDGES. The chief judge of the court shall have precedence and preside at any session which he attends. The other judges shall have precedence according to the seniority of their original commissions. Judges whose commissions bear the same date shall have precedence according to seniority in age. (c) STATUS OF CERTAIN POSITIONS. (1) Attorney positions of employment under the United States Court of Appeals for the Armed
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Forces are excepted from the competitive service. A position of employment under the court that is provided primarily for the service of one judge of the court, reports directly to the judge, and is a position of a confidential character is excepted from the competitive service. Appointments to positions referred to in the preceding sentence shall be made by the court without the concurrence of any other officer or employee of the executive branch, in the same manner as appointments are made to other executive branch positions of a confidential or policydetermining character for which it is not practicable to examine or to hold a competitive examination. Such positions shall not be counted as positions of that character for purposes of any limitation on the number of positions of that character provided in law. (2) In making appointments to the positions described in paragraph (1), preference shall be given, among equally qualified persons, to persons who are preference eligibles (as defined in section 2108(3) of title 5). 944. Art. 144. Procedure The United States Court of Appeals for the Armed Forces may prescribe its own rules of procedure and determine the number of judges required to constitute a quorum. 945. Art. 145. Annuities for judges and survivors [Omitted] 946. Art. 146. Code Committee (a) Annual survey. A committee shall meet at least annually and shall make an annual comprehensive survey of the operation of this chapter. (b) Composition of committee. The committee shall consist of: (1) the judges of the United States Court of Appeals for the Armed Forces; (2) the Judge Advocates General of the Army, Navy, and Air Force, the Chief Counsel of the Coast Guard, and the Staff Judge Advocate to the Commandant of the Marine Corps; and (3) two members of the public appointed by the Secretary of Defense. (c) Reports. (1) After each such survey, the committee shall submit a report:
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(A) to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives; and (B) to the Secretary of Defense, the Secretaries of the military departments, and the Secretary of Homeland Security. (2) Each report under paragraph (1) shall include the following: (A) (B) (i) (ii) (iii) information on the number and status of pending cases. any recommendations of the committee relating to: uniformity of policies as to sentences; amendments to this chapter; and any other matters considered appropriate.
(d) Qualifications and terms of appointed members. Each member of the committee appointed by the Secretary of Defense under subsection (b)(3) shall be a recognized authority in military justice or criminal law. Each such member shall be appointed for a term of three years. (e) Applicability of federal advisory committee act. The Federal Advisory Committee Act (5 U.S.C. App. I) shall not apply to the committee. [As amended through the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, 2314 (2002).]
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INDEX Abatement, 131, 160 Admission number, 247 Affidavits, 208, 220, 222, 251 Amici curiae, 88, 161, 199, 246, 247, 253, 279 Bread and water, 35 Calendar, 75, 236, 248, 250, 254 Captions, 214, 237 Certificate of innocence, 187 Certiorari, 107, 131, 151, 159, 160, 223, 225, 244, 257, 267, 268, 273 Civilian appellate defense counsel, 74 Classified information, 62, 77, 234, 240, 241, 256 Clerk, 265, 277 Confession of error, 133, 255 Conservator, 146 Contempt, 263, 265, 266 Copies, 179, 198, 200, 203, 206, 209, 215, 217, 234, 235, 240, 242, 245, 247, 249, 259, 267, 270, 272 Custom of the service, 149 Digesting, 270 Disbarment, 237 Disciplinary action, 96 Divided argument, 258 Docket, 40, 108, 127, 147, 158, 162, 201, 254, 269, 271, 281 Docket room, 254 Docketing notice, 170 Electronic filing, 237 Errata, 220 Error coram nobis, 29 Excusable neglect, 229, 230 Exhaustion, 31 Extensions of time, 230 Extraordinary writs, 28, 33, 129, 207 Good cause, 15, 31, 48, 123, 147, 148, 151, 154, 155, 156, 159, 164, 214, 217, 218, 220, 224, 229, 230, 232 Habeas corpus, 30, 214, 226 Headnotes, 270 Hearings, 221, 222, 252, 253, 259, 260 Incorporation by reference, 244 Index, 175, 179, 181, 240, 242 Internet, 265, 270 Judicial notice, 221, 222, 255 Jurisdiction, 4, 5, 16, 27, 28, 29, 30, 32, 33, 53, 58, 96, 133, 148, 151, 152, 153, 156, 159, 160, 162, 166, 168, 173, 180, 204, 207, 213, 214, 216, 221, 222, 243, 265, 280 Key number system, 269 Lead counsel, 251, 273 Library, 270 Mandamus, 131, 146, 205, 251 Marriages, 10, 45, 268 Motions, 152, 179, 188, 198, 207, 208, 209, 217, 218, 219, 220, 231, 237, 244, 251, 252, 253, 255 Nonjudicial punishment, 27, 29 Notice of docketing, 114, 138, 145, 169, 171 Notice of hearing, 217, 218, 253 Fact finding, 221 Facts, 148, 168, 173, 182, 184, 197, 200, 212, 213, 214, 221, 222, 225, 244 Finality, 155, 162, 227 Frivolous petitions, 280
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Opinion digest, 270 Opinions, 75, 174, 243, 245, 266, 268, 269, 270 Page limits, 237 Parties, 25, 33, 39, 41, 52, 53, 56, 60, 81, 88, 102, 131, 145, 155, 190, 194, 195, 197, 198, 199, 201, 202, 203, 207, 217, 218, 221, 234, 238, 244, 252, 253, 254, 267, 271, 272, 280 Paternalism, 155 Plain error, 150, 156, 157 Prejudice, 31, 32, 54, 74, 100, 129, 151, 158, 167, 184, 186, 188, 224, 225, 230, 252, 273 Prematureness, 127 Pro forma petition, 125, 158, 159 Process, 5, 6, 30, 33, 36, 38, 39, 47, 56, 59, 81, 88, 90, 95, 96, 156, 161, 162, 163, 164, 165, 166, 188, 230, 240, 251, 256, 257, 264, 265, 267, 269, 270, 273, 276, 278, 279, 280 Prohibition, 263 Quorum, 44, 46 Real party in interest, 102 Reconsideration, 41, 48, 127, 146, 148, 163, 173, 196, 198, 217, 218, 222, 223, 224, 225, 226, 227, 228, 231, 232, 252, 257, 267, 271, 273 Record of trial, 148, 156, 167, 169, 173, 179, 191, 234, 240, 246 Recusal, 48 Reply briefs, 189, 209, 231 Reprimand, 32
Rule making, 199, 280 Scope of review, 181, 216 Senior judges, 14, 15 Sentence appropriateness, 37, 38 Signatures, 247 Special masters, 208, 221 Specified issues, 40 Standard of review, 174, 181, 187, 191 Standards of review, 182, 184, 187 Status call, 191 Stays, 45 Student practice, 194 Summary disposition, 75, 190, 191, 192, 219, 225, 244, 268, 269 Summary of argument, 173 Supplement to petition, 81, 156, 166, 229, 255 Supplemental briefs, 190, 197 Supplemental citations of authority, 197, 218, 220, 245, 258 Suspension, 32, 229, 237 Table of citations, 242 Telephone numbers, 200 Time limits, 144, 159, 215, 233 Trailer cases, 130 Vacancies, 14 Website, 269 Withdrawal of petition, 146 Writ appeal petition, 15, 27, 28, 31, 32, 44, 66, 81, 129, 146, 173, 190, 192, 201, 203, 206, 207, 209, 212, 213, 237, 252, 253
About the Author EUGENE R. FIDELL is President of the National Institute of Military Justice, Senior Research Scholar and Florence Rogatz Lecturer in Law, Yale Law School, and Of Counsel at the Washington, D.C. firm Feldesman Tucker Leifer Fidell LLP. A graduate of Queens College and Harvard Law School, he served on active duty as a law specialist in the United States Coast Guard from 1969 to 1972, and has taught Military Justice at Yale and Harvard Law Schools and the American University Washington College of Law.
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Guide: Rules of Practice and Procedure

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GUIDE

RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

For Linda and Hannah

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

GUIDE TO THE RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES