Two lessons of the Briggs case

U.S. Court of Appeals
for the Armed Forces

Today's unanimous decision in United States v. Briggs, 78 M.J. __ (C.A.A.F. 2018), is noteworthy for a variety of reasons. Here are two:

1. Briggs is the "Mother of All Grostefons." Grostefon issues are those personally raised by the accused and not by appellate defense counsel. They are not uncommon per se, but it is fairly unusual for the United States Court of Appeals for the Armed Forces to grant review of Grostefon issues. It is exceedingly rare for such an issue to bear any actual fruit for the accused. That, however, is what happened in Briggs, where a conviction for rape was reversed and the charge and specification dismissed with prejudice. Even more unusually, the Court of Appeals, having granted Lt Col Michael J.D. Briggs leave to file his Grostefon statute of limitations issue late, it affirmatively denied review of that issue -- only to have the Supreme Court remand for reconsideration following its decision in Ortiz v. United States, 138 S. Ct. 2165 (2018). See Abdirahman v. United States, 139 S. Ct. 38 (2018). Offhand, no other case comes to mind in which the Supreme Court has involved itself with a Grostefon issue. If you know of one, please post a comment (real names only, please).

Moral: Clients should not be shy about raising Grostefon issues. You never know.

2. The Office of the Solicitor General has long and repeatedly taken the incorrect position that only issues as to which the Court of Appeals has granted review, rather than -- as the applicable certiorari provision states -- cases in which it has done so. See 28 U.S.C. § 1259(3). The Supreme Court has never squarely addressed this question, and it has not been possible to tease out of its many orders on petitions for writs of certiorari in court-martial cases whether it was denying certiorari (as it does nearly all the time) on the merits or because it believed it lacked jurisdiction over ungranted issues in granted cases. Briggs sheds useful light on this because the Court of Appeals, as noted above, explicitly denied review of the statute of limitations Grostefon issue but the Supreme Court granted, vacated and remanded for further consideration in light of United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018). If the Justices had agreed with the Solicitor General's cramped "granted issues" reading of § 1259(3), the Supreme Court would not -- indeed, could not -- have taken that action because it would have lacked jurisdiction. The statute is still grossly unfair to military personnel and should be fixed, but -- if this reading of the Court's action in Briggs is correct -- at least the added fillip of the Solicitor General's parsimonious interpretation of the current text seems not to have carried the day.

Moral: Appellate defense counsel should have no reluctance to seek certiorari with respect to any issue in a case decided by the Court of Appeals regardless of whether that court granted the issue, denied it, or disregarded it, so long as it granted some issue (even if -- as happens from time to time -- all it did was correct some formal or administrative error).