Order on Downum certificate for review notification issue (C.A.A.F. Aug. 27, 2024)

No. 24-0156/AR. United States, Appellant v. Ross E. Downum, Appellee. CCA 20220575. On consideration of Appellant’s motion to amend its certificate for review, Appellant’s motion to supplement the record, and Appellee’s motion for appellate discovery, the Court notes the following:

1. Article 67(a)(2), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(a)(2) (2018), directs this Court to review the record in “all cases reviewed by a Court of Criminal Appeals which the Judge Advocate General, after appropriate notification to the other Judge Advocates General and the Staff Judge Advocate to the Commandant of the Marine Corps, orders sent to the Court of Appeals for the Armed Forces for review.” (Emphasis added.) Rule for Courts-Martial (R.C.M.) 1204(a)(2) implements Article 67(a)(2), UCMJ, with the same requirement of “appropriate notification.” 

2. On April 30, 2024, according to representations that neither party disputes, the Chief of the Government Appellate Division, U.S. Army, sent a notice to the chiefs of the government appellate divisions of the other services informing them of the Army Judge Advocate General’s intent to certify three issues to this Court pursuant to Article 67(a)(2), UCMJ.

3. On May 13, 2024, the Army Judge Advocate General signed a certificate for review in this Court requesting review of these issues. The certificate for review included the following statement: “Pursuant to Article 67(a)(2) the other Judge Advocates General and the Staff Judge Advocate to the Commandant of the Marine Corps were notified of my consideration to certify the issues.”

4. On May 15, 2024, again according to representations that neither party contests, Appellant learned that the service leadership of two services had not acquired actual knowledge of the certified issues as of May 13, 2024, the date on which the Army Judge Advocate General had signed the certificate for review. All the Judge Advocates General and the Staff Judge Advocate to the Commandant of the Marine Corps had been directly notified, and thus acquired actual knowledge, of the certified issues by May 20, 2024.

5. On May 22, 2024, Appellant moved to file an amended certificate for review. The text of the proffered amended certificate for review is identical to the certificate for review filed on May 13, 2024, but indicates that it was signed by the Judge Advocate General of the Army on May 20, 2024.

6. On May 28, 2024, Appellee filed an answer opposing Appellant’s motion to amend the certificate for review and proposed further inquiry into whether the prerequisites for jurisdiction under Article 67(a)(2), UCMJ, had been met. On May 31, 2024, Appellant filed a reply to this answer in which it asserted that the prerequisites for jurisdiction had been met.

7. On June 14, 2024, this Court ordered supplemental briefing on several specified issues, including: “Are the requirements of ‘appropriate notification’ in Article 67(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(2) (2018) and Rule for Courts-Martial 1204(a)(2), satisfied by routing notification to the Government Appellate Division Chief of each respective service?”

8. Appellant argued in its supplemental brief that it had provided appropriate notification, asserting that sending notice through appropriate personnel satisfies the requirement of notifying the Judge Advocates General of the other services and the Staff Judge Advocate to the Commandant of the Marine Corps. Appellee argued in his supplemental brief that notice to the chiefs of the government appellate divisions of the other services was not “appropriate notice” because these chiefs “are not part of the offices of the judge advocates general.” Appellee therefore requested this Court to dismiss the appeal.

Having received the supplemental briefing and considered these procedural steps, this Court reaches the following conclusions:

Appellee has not filed a separate motion to dismiss the certificate for review for lack of jurisdiction but has merely asked for that remedy in his pleadings. Ordinarily, motions must be filed separately before this Court and cannot be incorporated into other pleadings. C.A.A.F. R. 30(d). This Court, however, has an independent duty to determine whether it has jurisdiction even if the issue is not properly raised by the parties. M.W. v. United States, 83 M.J. 361, 363 (C.A.A.F. 2023) (citing Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006)). The Court therefore considers Appellee’s request to dismiss the appeal in conjunction with our review of Appellant’s motion to amend.

Article 67(a)(2), UCMJ, and R.C.M. 1204(a)(2) require a Judge Advocate General seeking to certify issues to this Court to provide “appropriate notification to” the senior leaders of the other services. The Court cannot equate “notification to” with “actual knowledge of” because these are well-recognized as distinct legal concepts. Compare Notification, Black’s Law Dictionary 1280 (11th ed. 2019), with Knowledge, id. at 1043. In addition, if a requirement of actual knowledge of the certified issues were required, the qualifier “appropriate” would be rendered superfluous. The Court therefore interprets the phrase “appropriate notification to” simply to mean that the text of the proposed certified issues must be sent to addresses or through personnel that are appropriate for contacting the senior leaders of each of the other services.

In this case, Appellee argues that the notices were not sent to appropriate addresses or personnel when they were sent to the chiefs of the government appellate divisions of the other services. Appellee, however, has cited no statute, rule, or regulation requiring notification to be sent to a different address. Appellee has also cited nothing to indicate that the Judge Advocates General of the other services or the Staff Judge Advocate to the Commandant of the Marine Corps desired the Army Judge Advocate General to send notice to a different location. Accordingly, the Court has no basis for concluding that the notification in this case was not appropriate. The Court therefore rejects Appellee’s request that the Court dismiss the certificate for review. The Court further has no need to address the other specified issues. And because the initial certificate for review correctly stated that appropriate notification had been sent, the Court also perceives no need for amending the certificate for review. Accordingly, it is ordered that Appellee’s request to dismiss the appeal is denied, that Appellant’s motion to file an amended certificate for review is denied, and Appellant’s motion to supplement the record and Appellee’s motion for appellate discovery are denied as moot.