Thursday, September 9, 2021

August on E Street, N.W.

August was an instructive month for CAAF-watching. During the month, the U.S. Court of Appeals for the Armed Forces had a vacancy (it still does), owing to the expiration of Chief Judge Scott W. Stucky's statutory term of office on July 31, 2021. 

The court's practice over the years has been to not call upon one of its numerous senior judges (much less an Article III judge) to fill out the bench for the purpose of ruling on petitions for discretionary grant of review, as noted here. The result is that until the vacancy is filled, it will take 50% of the judges to grant a petition, rather than the 40% required when five judges participate.

This asymmetrically harms petitioners because the government can always ask the Judge Advocate General to certify a case, which means, as a practical matter, that the government has an appeal as of right, unlike the accused. And, of course, unless CAAF grants a petition, a case is ineligible for review by the Supreme Court of the United States. A proposal to fix this is pending in Congress, but whether and when it will be enacted remains to be seen.

With that by way of background, in August, CAAF denied review in 25 cases. Here is the breakdown:

Eleven Army petitions were denied. Of these, two had assignments of error, four had only Grostefon issues, and five were pure merits case (i.e., neither assigned errors nor Grostefons). Ten-day letters (effectively resting on the government's briefs at the court of criminal appeals) were filed in all 11 cases.

Nine Air Force petitions were denied. Of these, seven had assignments of error and two had Grostefons issues; there were no pure merits cases. Ten-day letters were filed in eight of the nine denied cases.

Five Navy and Marine Corps petitions were denied. Of these, three has assigned errors, two were pure merits petitions, and there were no Grostefons. Ten-day letters were filed in all five cases.

No Coast Guard petitions were denied in August.

What can we learn from these data? 

First, we learn that CAAF continues to docket petitions that cite neither assigned errors nor Grostefon issues. This is contrary to the statute's "good cause" requirement, but CAAF has been a lost cause on this subject for decades. Continuing to docket such cases, rather than rejecting or dismissing them on receipt, artificially inflates the court's anemic caseload.

Second, we learn that in most cases, either appellate defense counsel or the accused are able to articulate one or more issues. As everyone knows, these cases, uniquely among federal and state court cases, cannot reach the Supreme Court on direct review by petition for a writ of certiorari.

Finally, we learn from the prevalence of 10-day letters in response to petitions for grant of review at CAAF that opening the door to the Supreme Court for all cases would impose a very minor, if that, additional workload on anyone. Most if not all of the denied petitions would either not become the subject of certiorari petitions or, if they did, the Solicitor General would waive response (and almost certainly not be asked by the Supreme Court to file a brief in opposition).

By refusing to call upon one of its eight senior judges to fill out the bench for cases on the petition docket, CAAF is making the unfair military appellate system Congress has put in place even more unfair.


  1. There may be several remedies not completely tied to the issue Gene raises.

    1. Require the government to petition rather than have the ability to certify a case.

    2. Expand the CAAF to nine judges, and disband the CCAs. The judges could sit in panels of three as do the federal circuit courts.

    3. And of course then give military appellant's the same right of access to the Supreme Court.

    4. Some may be tempted to argue that the Supreme Court at times must function on petitions when there is a vacancy. True, but there are still at least eight justices who vote on petitions.

    1. Re ¶2, does the current or anticipated caseload warrant a 9-judge court?

      Re ¶4, CAAF can (and should) call on its stable of senior judges, but a bobtailed Supreme Court cannot call on retired justices to fill out the bench for the purpose of ruling on cert petitions.

    2. Re #2. Yes, if you remove the CCAs and give CAAF all of their cases on right of first appeal.

    3. Nine's a lot. I'll bid five (best and final offer) and get rid of automatic review except in capital cases. No more merits cases -- zero, zilch, nada.


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