Start o' Term

Today marks the first day of the October 2022 Term of the U.S. Court of Appeals for the Armed Forces. The Term runs through September 30, 2023. As has been the case since Judge Scott W. Stucky's term of office expired on July 31, 2021, there is a vacancy on the court.

On August 2, 2021, the court announced that unless it "issues a notice that a senior judge or an Article III judge will perform judicial duties, the four judges in active service will perform the functions of the Court." The August 2, 2021 Notice remains in effect, and from time to time the Court has gjven notice that various of the senior judges will "perform judicial duties" in particular cases. Examples appear in the September 21, 2022 Daily Journal.

The August 2, 2021 Notice recited that Article 142, UCMJ, "authorizes the appointment of five judges to serve on the Court." That is true, but it is a paraphrase. Textualists will want, as always, to read the exact language of the statute. Article 142(a) is the pertinent provision. It states: "The United States Court of Appeals for the Armed Forces consists of five judges." Those five may be the judges appointed to the court or senior judges or Article III judges designated under Articles 142(e)(1) or (f), UCMJ, respectively, or some combination thereof. But the court in any event "consists of five judges."

As the unofficial Rules Guide* notes (21st ed. 2022, § 6.03[1], at 65):

In enlarging the Court to five judges in 1989, Congress observed that "[a]s under current law, the Court will sit as a whole for all its actions, rather than in panels, to ensure clarity and uniformity in the application of military law." S. Rep. No. 101-81, at 172 (1989); H.R. Conf. Rep. No. 101-331, at 657 (1989). This language is precatory in light of the Court's express grant of statutory authority to determine its own quorum. UCMJ art. 144, 10 U.S.C. § 944. Still, the notion that the Court should sit en banc at all times is a sound one and should be followed since doing so avoids the danger of doctrinal instability and the need for and delay entailed in en banc proceedings to correct errant panel decisions.

Of interest from the Senate Report language is the phrase "all its actions" (emphasis added), which strongly suggests that Congress intended that actions such as the grant or denial of petitions for grant of review would be included.

As we begin the 15th month of the current hiatus, the court may wish to modify its practice and designate senior judges to fill out the bench for the critical purpose of considering petitions for grant of review, which are far more numerous than the handful of cases that are placed on the regular docket for plenary briefing and argument. The August 2, 2021 Notice need not be modified to achieve this, but additional notices would have to be issued effecting the designation. Given the number of senior judges available for designation (there are eight), a monthly rota would suffice and there would almost certainly never be a need to dip into the even larger backup pool of Article III judges. Voting on petitions can be done telephonically or electronically, as well as in person, under the court's Rule 6(a).

Whether or not the court can pick and choose which of its judicial functions will be performed by a bobtailed court and which will be performed by the five judges of which the court "consists," it should as a matter of simple fairness afford all litigants the same robust review by five sets of judicial eyes. Monday, October 3, 2022 would be a good time to make the change.

* Full disclosure: the Editor is one of the authors of the Rules Guide.