Imperfect appellate review

The Supreme Court of
the United States

The United States Court of Appeals for the Armed Forces (CAAF) case of United States v. Moss, 73 M.J. 64 (C.A.A.F. 2014), underscores a serious defect in the current arrangements for United States Supreme Court review of courts-martial. Congress ought to fix it. It should be on the Military Justice Review Group's to-do list.

Pay close attention; this is complicated.

Private First Class (PFC) Amanda N. Moss was arraigned on a charge of desertion but fled before trial, and hence was tried, convicted, and sentenced in absentia. Before the trial she executed an Army-drafted form requesting the appointment of military appellate defense counsel to represent her before the first-level appellate court, the Army Court of Criminal Appeals (ACCA). Having received a sentence serious enough to entitle her case to review by that court, the Defense Appellate Division represented her there. Her conviction and sentence were affirmed.

Then, on petition filed by Army appellate defense counsel, but not personally approved by PFC Moss (unless you read the earlier request for appellate representation before ACCA to cover the civilian CAAF as well), CAAF granted discretionary review under the statutory broad "good cause shown" standard, on issues relating to her representation at trial. Despite the fact that both parties believed the case was properly filed, CAAF concluded that PFC Moss's request for counsel extended only to the first-tier of appellate review (ACCA) and not the second (CAAF). As a result, by a 3-2 vote, CAAF vacated its earlier grant of review and dismissed the petition without reaching the merits of the case. Senior Judge Effron, who now directs the Military Justice Review Group, joined in Chief Judge Baker's dissent.

Under the current appellate structure, the Supreme Court cannot entertain a petition for certiorari in a military case unless CAAF has granted review. (It's a little more complicated because some cases get to CAAF by certificate for review or because they are capital cases, but the vast majority of cases come there by petition of the accused.) In Moss, CAAF at first granted review, finding good cause with respect to concerning the accused's representation at trial, but in the end vacated that grant not because the representation issues did not constitute good cause, but because PFC Moss had not authorized the petition. Based on the plain meaning of the statute,  Moss is a case in which CAAF "granted" review.

Since 2010, CAAF has taken the position that if it grants review and remands to one of the service courts, it is not obligated to grant review of the same issue a second time if the case comes back to following the decision on remand. Its Rule 21(b)(5)(G) provides that in those circumstances a petitioner must tell CAAF what issues he/she intends to seek certiorari on, plainly implying that an earlier grant of review does not survive a later denial of review in the same case. See, e.g., United States v. Nerad, 71 M.J. 321 (C.A.A.F. 2012) (mem.). CAAF got seriously out of its lane when it arrogated to itself the power to decide whether petitioners before it had certworthy issues. A case can entail "good cause" for purposes of CAAF review but still be a lost cause when it comes to the prospects for a grant of certiorari, but that is none of CAAF's affair. One Supreme Court obstacle course is enough.

Despite the plain meaning of the statute, if a petition for review were granted and thereafter vacated, the government would argue that the case was outside the reach of the certiorari statute. The Supreme Court would likely agree despite its indication in United States v. Denedo, 129 S. Ct. 2213, 2219 (2009), that the statute should not be read parsimoniously. We will never learn the Court's actual thinking, though, because denials of certiorari are unexplained.

Once CAAF grants review, a case should remain eligible for Supreme Court review even if some intervening event occurs or comes to light that effectively precludes a grant of certiorari, such as the death of the petitioner or a determination that the case is not final or has become moot or academic. Here, CAAF did not recant its finding of good cause regarding the trial issues, but rather ruled that the petition for review was never properly filed. It made a legal determination that appellate defense counsel were not authorized to seek CAAF review. Because denial of a petition for review is not itself reviewable, the correctness of that ruling, which involves no specialized knowledge and on which the CAAF judges were narrowly divided, is completely insulated from direct review by the nation's highest court. (As for the possibility of collateral review, PFC Moss would gain no traction if she tried to press this threshold issue in a district court or the Court of Federal Claims, since it was fully considered by CAAF.)

It's of course an odd set of facts, although far from the first time a petition for review by the Court of Appeals has been filed on the basis of a form request for appellate representation. But the issue is broader. For example, what if, as can happen, it only becomes apparent after the Court of Appeals grants review on some issue that the petition was not timely filed? The result there would presumably be a Moss order vacating the grant of review, and the petitioner in such a case could not ask the Supreme Court to review the determination that the petition was untimely.

What is to be done?

It is tempting to suggest that the Court of Appeals should adopt a different approach and not conflate the question of whether there is some issue that constitutes good cause (and therefore can be the basis for a petition for review) and impediments such as timeliness, client-authorization, or mootness. But normal appellate practice suggests that a petition suffering from one of those defects should be dismissed as improvidently granted, whenever the flaw is discerned, even if that is after good cause has been found to exist and review granted. The problem is therefore, in the end, one that only Congress can fix. It put the limitation on Supreme Court review in the statute, and it can (and should) take it out. Moss is simply another (albeit strange) illustration of why that is so.