Air Force ordered to file amended brief in U.S. Court of Appeals for the Armed Forces case

On January 15, 2015, the U.S. Court of Appeals for the Armed Forces issued this unusual interlocutory order in United States v. Bowser, a case certified for review by the Judge Advocate General of the Air Force:

No. 15-0289/AF. U.S., Appellant v. Roy A. Bowser, Appellee.  CCA 2014-08.  On consideration of the certificate for review and Appellant's brief in support of the certified issues, dated January 5, 2015, under C.A.A.F. R. 15(a), and MODEL RULES OF PROF'L CONDUCT R. 3.3(a)(2) adopted therein, we find they fail to address United States v. Vargas, 74 M.J. 1 (C.A.A.F. 2014), and United States v. Browers, 20 M.J. 356 (C.M.A. 1985) as possible controlling or adverse authority. Appellate courts can and should require re-briefing to address deficiencies.  See Passmore v. Estell, 607 F.2d 662, 664 (5th Cir. 1979), cert. denied, 446 U.S. 937 (1980). Accordingly, it is ordered that, within 10 days of the date of this Order, Appellant will file an amended brief addressing the deficiency noted.  No extensions of time will be granted.

Appellee's brief, currently due on January 26, 2015, will instead be filed within 10 days of the filing of Appellant's amended brief.  Any reply brief by Appellant will be filed within 5 days of the filing of Appellee's brief.

Model Rule 3.3(a)(2) provides:

Rule 3.3 Candor Toward The Tribunal

(a) A lawyer shall not knowingly:

*  *  *

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel . . . .

For a recent case in which the Judge Advocate General of a different branch of the service disciplined a civilian attorney for violating another paragraph of Rule 3.3(a) see Partington v. Houck, No. 12-5038 (D.C. Cir. 2013).