In the world of military justice, December 22, 2024, is a day for which many have waited a long time. For the first time since Congress extended the Supreme Court’s jurisdiction to cover decisions of the U.S. Court of Appeals for the Armed Forces (CAAF) in 1983, every court-martial appellant who petitions for review at that court will be able to then seek review by the Supreme Court—even if CAAF had denied review below. This is a major change and, while belated, goes nearly all of the distance to putting military personnel on the same footing as everyone else who seeks Supreme Court review.
Nearly — but not quite.
In a couple of respects, CAAF decisions remain insulated from review by the Supreme Court even though comparable actions by the Article III courts of appeals are subject to such review. Although these insulated actions are limited in scope, there is no good reason to distinguish between CAAF and the Article III courts of appeals with respect to Supreme Court access. What did Congress omit?
As amended, 28 U.S.C. § 1259 gives the Supreme Court certiorari jurisdiction over four types of cases: (1) capital cases, which are subject to mandatory review; (2) cases certified by one of the Judge Advocates General, which CAAF must decide unless the matter is moot or academic; (3) cases within CAAF’s discretionary-grant-of-review jurisdiction; and (4) “other” cases. The big change is that even when CAAF refuses to grant review or grant relief in third and fourth category cases, respectively, that action will be reviewable on certiorari. The scope of the third category is clear, but not so the fourth. What does it not cover? What types of “other” cases are now in and which are left out?
- What’s in: Having been created by Congress, both CAAF and the Article III courts of appeals have power to grant extraordinary writs under the All Writs Act. Under paragraph four, the Supreme Court now has jurisdiction to grant certiorari in such cases whether or not CAAF has granted relief. In United States v. Denedo, 556 U.S. 904 (2009), the Court held that even a mere remand for further proceedings on a petition for a writ of error coram nobis (an petition to correct a fundamental error after judgment) qualified as “relief” for purposes of the prior version of § 1259(4). After December 22, there will be no question about potential Supreme Court review: the Court will have jurisdiction to review extraordinary writ decisions whether CAAF has granted or denied relief in whole or in part. (CAAF’s writ practice includes both original writs and so-called writ-appeal petitions, which are simply writs in which the petitioner has first sought relief in one of the military justice system’s intermediate appellate courts.)
- What’s in: CAAF has power to grant writs of habeas corpus, but under the former version of § 1259(4), its decisions were subject to review on writ of certiorari only if it granted the writ, not if it denied it, as denial is the antithesis of a grant of relief. This contrasted sharply with the procedure under 28 U.S.C. § 2255, which is the habeas equivalent for individuals convicted in the federal district courts. Losing prisoners in those cases have straightforward access to the Supreme Court in their first round of litigation and, although the procedural details have not been fully resolved, also when they pursue second or successive § 2255 motions. It does not make sense for the ground rules to be materially different for military and civilian federal prisoners. After December 22, military and civilian habeas petitioners will be on an equal footing from the standpoint of direct appellate review to the Supreme Court.
- What’s in: CAAF has the power to grant a petition for new trial on grounds of newly discovered evidence or fraud on the court in cases that are otherwise pending before it. But the old version of paragraph four seemed to confer certiorari jurisdiction on the Supreme Court only if CAAF granted relief. This meant that if CAAF granted a petition for new trial, the United States could seek certiorari, but if it denied the petition, the defendant could not do so. In contrast, when a federal district court rules on a motion for a new trial under Fed. R. Crim. P. 33, the losing party can appeal to the Article III court of appeals, and that court’s decision would be subject to normal review on petition for a writ of certiorari. g., United States v. Johnson, 327 U.S. 106 (1946). The new version of paragraph four again levels the playing field, opening the door to certiorari when CAAF either grants or denies a new trial petition.
- What’s still left out: CAAF’s judges (but not CAAF itself) have contempt power under Article 48 of the Uniform Code of Military Justice. Subparagraph (c)(2) of Article 48 provides that punishment imposed by a CAAF judge “shall constitute a judgment of the court, subject to review under the applicable provisions of section 867 or 867a of this title (article 67 or 67a).” Article 67a deals with review by the Supreme Court. Paragraph (a) provides, in pertinent part, that “[d]ecisions of [CAAF] are subject to review by the Supreme Court by writ of certiorari as provided in section 1259 of title 28.” The problem, however, is that punishments for contempt seemingly do not fall within any part of § 1259. It is difficult to see how a finding of and punishment for contempt or a refusal to make such a finding or impose a punishment constitutes a grant or denial of “relief.” In contrast, there is no question that at least a contempt punishment by an Article III court is subject to review by the Supreme Court under the Judicial Code.
- What’s still left out: The Article III courts of appeals have power to suspend or disbar attorneys who are admitted to practice before them. The Supreme Court, in turn, has reviewed disbarments by these courts. Examples include Theard v. United States, 354 U.S. 278 (1957) and In re Snyder, 472 U.S. 634 (1985). Practice before CAAF requires a separate admission to the court’s bar, and CAAF’s rules establish procedures for disbarment and other disciplinary action. From time to time, CAAF disbars or otherwise disciplines members of its bar, either on a reciprocal basis with some other federal or state court or as an original matter. CAAF has on occasion denied leave to appear pro hac vice and it has a handful of times denied an application for admission to its bar. In Partington v. Houck, 575 U.S. 963 (2015) (mem.), the Supreme Court denied without comment a petition for certiorari in a case in which the S. Court of Appeals for the District of Columbia Circuit had considered a challenge to, among other things, CAAF’s suspension of a civilian attorney. In contrast, the Supreme Court has repeatedly granted review of state courts’ denial of applications for admission to the bar. Do CAAF bar admission or disciplinary actions fall within § 1259(4)? Even if they are “cases,” there has plainly been no grant of “relief,” in the ordinary sense of that term, when a lawyer is denied admission or is disbarred or suspended, so the Supreme Court would lack jurisdiction under the amended text of § 1259. The omission is even more significant because bar admission and disciplinary decisions, rare though they are at CAAF, can raise significant constitutional questions.
In summary, Congress took a major step in 1983 when it extended the Supreme Court’s certiorari jurisdiction to cases in which CAAF (then called the U.S. Court of Military Appeals) had granted review as well as certified and mandatory review cases. And Congress took another major step in 2023, when it extended that grant to the many cases in which CAAF denies discretionary review. But Congress still has not completed the job of putting military and civilian federal cases on an equal footing in terms of access to the Supreme Court. To be sure, Congress need not attack all aspects of a problem at once, as the Court has observed. And the odds and ends of CAAF activity that seem to remain insulated from direct review by the Supreme Court comprise at most a few cases per year and would therefore not make a meaningful dent in the Supreme Court’s overall caseload if they were included.
Congress erred when it retained the general category-by-category approach in § 1259, rather than the more sweeping approach found in 28 U.S.C. § 1254 for federal cases and § 1257 for cases coming up from the state courts. There being no congressional hearing record or report language to shed light on the omissions we have discussed, we can only surmise that the omissions were unintentional. The cases left out may be few in number and pretty arcane, but we urge Congress to now finish the job and open the doors that remain closed to Supreme Court review.