U.S. Court of Appeals for the Armed Forces grants review in noteworthy case

The U.S. Court of Appeals for the Armed Forces last week granted review of an interesting case from the Marine Corps. Here are the issues on which the court directed briefs to be filed:

No. 15-0510/MC. U.S. v. Monifa J. Sterling. CCA 201400150. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues specified by the Court:

I. DID APPELLANT ESTABLISH THAT HER CONDUCT IN DISPLAYING SIGNS REFERENCING BIBLICAL PASSAGES IN HER SHARED WORKPLACE CONSTITUTED AN EXERCISE OF RELIGION WITHIN THE MEANING OF THE RELIGIOUS FREEDOM RESTORATION ACT, 42 U.S.C. 2000bb-1 (2012), AS AMENDED? IF SO, DID THE ACTIONS OF HER SUPERIOR NONCOMMISSIONED OFFICER IN ORDERING HER TO TAKE THE SIGNS DOWN, AND IN REMOVING THEM WHEN SHE DID NOT, CONSTITUTE A SUBSTANTIAL BURDEN ON APPELLANT'S EXERCISE OF RELIGION WITHIN THE MEANING OF THE ACT? IF SO, WERE THESE ACTIONS IN FURTHERANCE OF A COMPELLING GOVERNMENT INTEREST AND THE LEAST RESTRICTIVE MEANS OF FURTHERING THAT INTEREST?

II. DID APPELLANT'S SUPERIOR NONCOMMISSIONED OFFICER HAVE A VALID MILITARY PURPOSE IN ORDERING APPELLANT TO REMOVE SIGNS REFERENCING BIBLICAL PASSAGES FROM HER SHARED WORKPLACE?

In the parlance of American military appeals, a specified issue is one framed by the court itself, rather than one framed by the appellant. The Court of Appeals uses the specified issue to recast a question presented by the parties or to inject an entirely new issue identified during its review of the petition for grant of review and record.

Sterling obviously raises issues that are at the cutting edge. The appellant is well represented, and the case could be the rare military appeal that winds up getting a grant of certiorari from the Supreme Court, regardless of which party prevails at CAAF.

The grant of review by CAAF opens the door to potential Supreme Court review. Had CAAF denied review, the appellant would -- under present law -- have had to seek collateral review in the federal courts as her only way to reach the Supreme Court. The limitation of certiorari to cases in which CAAF has granted review or extraordinary-writ relief is indefensible and should be lifted.