[DOCID: f:hr547.111]
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111th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 111-547
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EQUAL JUSTICE FOR OUR MILITARY ACT OF 2010
_______
July 15, 2010.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Conyers, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 569]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 569) to amend titles 28 and 10, United States Code, to
allow for certiorari review of certain cases denied relief or
review by the United States Court of Appeals for the Armed
Forces, having considered the same, reports favorably thereon
with an amendment and recommends that the bill as amended do
pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 3
Hearings......................................................... 8
Committee Consideration.......................................... 8
Committee Votes.................................................. 8
Committee Oversight Findings..................................... 8
New Budget Authority and Tax Expenditures........................ 9
Congressional Budget Office Cost Estimate........................ 9
Performance Goals and Objectives................................. 10
Constitutional Authority Statement............................... 10
Advisory on Earmarks............................................. 10
Section-by-Section Analysis...................................... 10
Changes in Existing Law Made by the Bill, as Reported............ 11
Dissenting Views................................................. 12
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Equal Justice for Our Military Act
of 2010''.
SEC. 2. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES.
(a) In General.--Section 1259 of title 28, United States Code, is
amended--
(1) in paragraph (3), by inserting ``or denied'' after
``granted''; and
(2) in paragraph (4), by inserting ``or denied'' after
``granted''.
(b) Technical and Conforming Amendments.--
(1) Title 10.--Section 867a(a) of title 10, United States
Code, is amended by striking ``The Supreme Court may not review
by a writ of certiorari under this section any action of the
Court of Appeals for the Armed Forces in refusing to grant a
petition for review.''.
(2) Time for application for writ of certiorari.--Section
2101(g) of title 28, United States Code, is amended to read as
follows:
``(g) The time for application for a writ of certiorari to review a
decision of the United States Court of Appeals for the Armed Forces, or
the decision of a Court of Criminal Appeals that the United States
Court of Appeals for the Armed Forces refuses to grant a petition to
review, shall be as prescribed by rules of the Supreme Court.''.
SEC. 3. EFFECTIVE DATE.
(a) In General.--Subject to subsection (b), the amendments made by
this Act shall take effect upon the expiration of the 180-day period
beginning on the date of the enactment of this Act and shall apply to
any petition granted or denied by the United States Court of Appeals
for the Armed Forces on or after that effective date.
(b) Authority to Prescribe Rules.--The authority of the Supreme
Court to prescribe rules to carry out section 2101(g) of title 28,
United States Code, as amended by section 2(b)(2) of this Act, shall
take effect on the date of the enactment of this Act.
Purpose and Summary
The purpose of H.R. 569, the ``Equal Justice for Our
Military Act of 2010,'' is to give servicemembers greater
opportunity to seek Supreme Court review of court-martial
decisions. Under current law, the Supreme Court has limited
jurisdiction to hear appeals of court-martial decisions from
the military's highest court, the Court of Appeals for the
Armed Forces (CAAF). Specifically, the Supreme Court lacks
jurisdiction to hear appeals of 1) court-martial decisions that
were declined review by the CAAF, 2) decisions by the CAAF that
deny extraordinary relief, whether on direct appeal to the CAAF
or in writ appeals from lower military appellate courts, and 3)
some decisions by the CAAF to deny interlocutory appeals.
In all these cases, servicemembers have an inferior right
to access the Supreme Court when compared to the government
within the military justice system, civilians within the
civilian court system, and even enemy combatants tried by
military commissions. H.R. 569 seeks to correct this imbalance
by amending 28 U.S.C. Sec. 1259 to allow servicemembers whose
appeals are denied review by the CAAF, or who were denied
extraordinary relief or interlocutory appeals by the CAAF, the
opportunity to seek Supreme Court review of these decisions by
writ of certiorari.
Background and Need for the Legislation
The Uniform Code of Military Justice (UCMJ), enacted in
1950,\1\ is the foundation of the modern military justice
system. Among other things, the UCMJ authorizes the court-
martial as the primary mechanism to establish the guilt or
innocence of servicemembers accused of a crime. The UCMJ
requires that court-martial convictions that result in
sentences that include dismissal of a commissioned officer,
cadet, or midshipman; dishonorable or bad-conduct discharge;
confinement of 1 year or longer; or death, must be reviewed by
an intermediate Court of Criminal Appeals.\2\ Servicemembers
may seek further appellate review from the military's highest
court, the Court of Appeals for the Armed Forces (CAAF).
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\1\Pub. L. No. 81-506, 64 Stat. 107 (1950).
\2\10 U.S.C. Sec. 866(b). Each service branch has its own Court of
Criminal Appeals.
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The CAAF is required to hear all cases where a Court of
Criminal Appeals affirmed a sentence of death,\3\ and all cases
the Judge Advocate General (JAG) certifies for review by the
CAAF.\4\ The CAAF has discretion to review all other appeals
coming from the Courts of Criminal Appeals where appellants
make a showing of good cause.\5\ Further review by the Supreme
Court of appellate CAAF decisions is limited by statute.
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\3\10 U.S.C. Sec. 867(1).
\4\10 U.S.C. Sec. 867(2). The JAG's certification process is
usually used to compel the CAAF to hear a case in which the United
States lost at the Court of Criminal Appeals level. Kevin J. Barry, A
Face Lift (And Much More) For an Aging Beauty: The Cox Commission
Recommendations to Rejuvenate the Uniform Code of Military Justice,
2002 L. Rev. M.S.U.-D.C.L. 57, 82 (2002).
\5\10 U.S.C. Sec. 867(3).
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Section 1259 of Title 28 provides the Supreme Court with
jurisdiction to grant writs of certiorari to review appeals
from the CAAF in four specific circumstances: (1) decisions
where a death sentence was affirmed by a Court of Criminal
Appeals; (2) court-martials that the JAG had earlier certified
for CAAF review; (3) court-martials in which the CAAF granted a
petition for review; (4) and decisions by the CAAF to grant
relief that do not already fall into one of the other
categories.\6\ This last category generally applies to writs
for extraordinary relief and writ appeals from Courts of
Criminal Appeals.
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\6\29 U.S.C. Sec. 1259(1)-(4).
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Pursuant to these limitations, the Supreme Court does not
have jurisdiction to review court-martial decisions that the
CAAF has declined to review. Similarly, the Supreme Court does
not have jurisdiction to review decisions by the CAAF that deny
relief on a petition for extraordinary relief or a writ appeal.
These limitations preclude hundreds of servicemembers from
seeking Supreme Court review every year. According to data
provided by the Department of Defense, between fiscal years
2001 and 2005, 4125 petitions were filed seeking CAAF review.
Of these, 635, or roughly 16%, were granted review, while the
remainder, 3377, were either denied review or dismissed.\7\
More current statistics provided by the Supreme Court indicate
that between October 1, 2005 and August 31, 2008, the CAAF
denied 2274 petitions for review.\8\ Coupled with a yearly
average of 21 extraordinary relief petition denials, there are
approximately 800 court-martial decisions per year in which
servicemembers are denied the opportunity to seek certiorari
from the Supreme Court.
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\7\Letter from Daniel J. Dell' Orto, Acting General Counsel, U.S.
Dept. of Defense, to Senator Carl Levin, Chairman, Comm. on the Armed
Services, U.S. Senate (Jun. 27, 2008) (on file with Committee)
[Hereinafter ``Dell' Orto Letter''].
\8\Letter from Jeffrey P. Minear, Counselor to the Chief Justice,
Supreme Court of the United States, to Hon. Henry C. ``Hank'' Johnson,
Chairman, Subcommittee on Courts and Competition Policy, U.S. House of
Representatives (June 18, 2009) (on file with Committee) [Hereinafter
``Minear Letter''].
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The Committee has received testimony, letters, and
documents from a number of sources decrying the injustice of
these limitations on the Supreme Court's jurisdiction. The
American Bar Association has noted that ``this is a blatantly
unfair procedural system stacked against the
servicemember.''\9\ The District of Columbia Bar Association
has stated that ``our servicemembers deserve better than this
disparity in our laws governing procedural due process. . .
.''\10\ And the Commission on Military Justice, chaired by Hon.
Walter T. Cox, III, former Chief Judge of the Court of Appeals
for the Armed Forces (1995-1999), concluded that the ``CAAF
serves as an unnecessary and unwise gatekeeper to Supreme Court
review.''\11\ Other supporters of H.R. 569 include the Military
Officers Association of America, the Fleet Reserve Association,
the Jewish War Veteran's Association of America, and the
National Association of Criminal Defense Lawyers.\12\
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\9\H.R. 569, the ``Equal Justice for Our Military Act of 2009,''
Hearing Before the Subcomm. on Courts and Competition Policy, Comm. on
the Judiciary, 111th Cong. 4 (2009) (written statement of H. Thomas
Wells, Jr., President, American Bar Association) [Hereinafter ``ABA
Testimony''].
\10\Letter from Ralph P. Albrecht, President, Bar Association of
the District of Columbia, to Representative Susan Davis, U.S. House of
Representatives (June 5, 2009) (on file with Committee).
\11\Report of the Commission on Military Justice, 7 (Oct. 2009).
This commission, often referred to as the Cox Commission, named after
its chair, Hon. Walter T. Cox, III, was formed in November 2000 by the
National Institute of Military Justice to identify and assess potential
improvements to the UCMJ.
\12\During the full Committee mark-up of H.R. 569, Members of the
Minority charged that the bill was introduced primarily for the benefit
of a single individual, former Navy Officer Norbert Basil MacLean, III.
In fact, a number of individuals and organizations have taken note of
the inherent injustice of the current law. Additionally, it should be
pointed out that H.R. 569 applies only to court-martials that were
initiated on or after the effective date of the Act, which thereby
forecloses any personal benefit to Mr. MacLean, whose court-martial was
concluded well before this legislation was introduced.
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INEQUITIES OF CURRENT LIMITATIONS ON
THE SUPREME COURT'S JURISDICTION
The Supreme Court's limited jurisdiction over UCMJ cases
gives the government significant advantage over servicemembers
in access to full appellate review within the current military
justice system. In this regard, servicemembers have inferior
rights not only when compared to the government, but when
compared to civilians, and even to enemy combatants.
First, as discussed above, JAG certification automatically
places a court-martial decision within the Supreme Court's
jurisdiction. Thus, through certification, the government
always has the power to compel the CAAF to review any court-
martial decision it chooses, and can pursue certiorari in the
Supreme Court if dissatisfied with the CAAF's decision. First,
as discussed above, JAG certification automatically places a
court-martial decision within the Supreme Court's jurisdiction.
Thus, through certification, the government always has the
power to compel the CAAF to review any court-martial decision
it chooses, and can pursue certiorari in the Supreme Court if
dissatisfied with the CAAF's decision. In contrast, most cases
appealed by servicemembers to the CAAF must rely on the CAAF to
exercise its discretionary review authority to review the case.
If the CAAF declines to exercise its discretion to review, that
decision is not reviewable and servicemembers have no direct
appellate rights.
Second, virtually all petitions for extraordinary relief or
writ appeals are filed by accused servicemembers asserting
constitutional rights. For these petitions, a decision granting
relief benefits the servicemember, and a decision denying
relief upholds the government's position against the
servicemember's assertion of those rights. So the fact that the
Supreme Court has jurisdiction to review petitions for
extraordinary relief or writ appeals when relief is granted by
the CAAF, but not when relief is denied by the CAAF, further
unfairly tips the scales of justice in favor of the government
and against the servicemember.
In contrast with servicemembers tried in military courts,
civilian criminal defendants in either the Federal or State
court systems are not denied the opportunity to appeal to the
Supreme Court if lower appellate courts deny relief, or decline
review. In the civilian context, criminal defendants tried in
the Federal court system have a right of appeal to Federal
appellate courts,\13\ and if they lose on appeal, they have a
right to petition the Supreme Court for further review.\14\ In
addition, criminal defendants tried in State courts generally
have the right to appeal to an intermediate appellate court and
may petition their highest State court for further review.\15\
If denied review by their highest State court, criminal
defendants advancing a defense based on a constitutional or
other Federal question may petition the Supreme Court for
further review.\16\
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\13\28 U.S.C. Sec. 1291.
\14\28 U.S.C. Sec. 1254. While the Supreme Court has ruled there is
no constitutional right to appeal, the right to appeal has been
established by statute. Pennsylvania v. Finley, 481 U.S. 551, 556-57
(1987) (citing McKane v. Durston, 153 U.S. 684, 687-88 (1894)).
\15\See generally, Daniel E. Hall, Criminal Law and Procedure, 525-
526 (5th Ed. 2009). See also, Griffin v. Illinois, 351 U.S. 12, 18
(1956)(``All of the States now provide some method of appeal from
criminal convictions, recognizing the importance of appellate review to
a correct adjudication of guilt or innocence.'')
\16\28 U.S.C. Sec. 1257.
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Ironically, even the rudimentary due process given enemy
combatants is denied the servicemembers who are defending our
nation against them. Under the Military Commissions Act, the
due process rights accorded alien enemy combatants specifically
include the right to appeal to the Supreme Court if lower
courts deny relief or review.\17\
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\17\10 U.S.C. Sec. 950g(d).
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IMPACT ON MILITARY READINESS
The Committee rejects assertions that this legislation
would have an adverse impact on the military's morale or
discipline. It is clear that the existing limitations on the
Supreme Court's jurisdiction have no basis in military
necessity. When Supreme Court jurisdiction to review appeals
was added to the UCMJ by the Military Justice Act of 1983,
there was never any mention that the scope of jurisdiction was
limited for reasons of military necessity. In fact, the report
accompanying the 1983 bill specifies that the limitations on
the Supreme Court's jurisdiction embodied in 28 U.S.C.
Sec. 1259 were solely intended to minimize the potential impact
on the Supreme Court's docket.\18\ The Committee report
provided no military justification for the limitations and
stated that despite granting the Supreme Court jurisdiction
over some court-martial decisions, the military court system
would ``remain the primary source of judicial authority under
the Uniform Code of Military Justice.''\19\ The Committee notes
that H.R. 569 similarly does not overturn, amend, or change in
any way the deference the Supreme Court has historically shown
to military laws and regulations.
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\18\H.R. Rep. No. 98-549, at 16-17 (``In view of current concerns
about the Supreme Court's docket, the legislation has been drafted in a
manner that will limit the number of cases subject to direct Court
review.'') The Committee notes that the Supreme Court currently hears
approximately one-half the number of cases that it heard in 1983.
\19\Id. at 17.
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Nor is there any evidence that the original limited grant
of Supreme Court jurisdiction over court martial decisions made
by the Military Justice Act of 1983 had any discernable effect
on military readiness. In the years following enactment, there
was no evidence of damage to the military's morale, discipline,
or readiness. No credible evidence has been presented to
suggest that augmenting Supreme Court jurisdiction in this
respect would create a different result.
In conclusion, the Committee does not believe H.R. 569 will
have any negative impact on the good order and discipline of
the military. This conclusion is shared by a number of experts
in the field, including General John D. Alternburg, former
Deputy Judge Advocate for the Army, who served as an expert
witness at the Subcommittee's hearing on H.R. 569. General
Alternburg, who opposes the bill on other grounds, testified
that ``I disassociate myself with anyone who has stated that to
give this right to soldiers . . . would, in some way, undermine
discipline or undermine authority or lower discipline or harm
the military . . . [H.R. 569] would in no way harm the
military.''\20\
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\20\H.R. 569, the ``Equal Justice for Our Military Act of 2009,''
Hearing Before the Subcomm. on Courts and Competition Policy, Comm. on
the Judiciary, 111th Cong. 39 (2009) (statement of General John D.
Altenburg, former Deputy Judge Advocate for the Army).
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BURDENS AND COSTS ASSOCIATED WITH THE ACT
The Committee has explored the potential burden placed on
military and other Federal legal resources by enactment of this
legislation, and concludes that any additional burden or
associated costs would be minimal.
In a 2008 letter to Congress, the Department of Defense
raised concerns that passage of S. 2052, a similar bill, would
``require legal reviews and briefs from numerous counsel in the
military departments' Government and Defense Appellate
Divisions, the Department of Defense Office of General Counsel,
as well as within the Office of the Solicitor General and the
Supreme Court.''\21\ However, in evaluating the current
legislation, the Congressional Budget Office (CBO) stated that
the bill would not affect direct spending or revenues, that it
would cost less than $1 million each year to administer, and
that only a small portion of the individuals who would be
eligible to seek appellate review by the Supreme Court would do
so. This conclusion is supported by the available evidence.
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\21\Dell' Orto Letter, supra note 7.
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Experience with the current limitations to Supreme Court
jurisdiction has demonstrated that most servicemembers eligible
to petition for certiorari do not do so. According to a 2009
letter to Congress from Jeffrey P. Minear, Counselor to the
Chief Justice of the United States Supreme Court,
``[h]istorical records indicate that from ten to fifteen
percent of the individuals whose convictions and sentences are
upheld by the CAAF after full discretionary review have filed a
petition for a writ of certiorari in the Supreme Court.''\22\
Extrapolating from this experience, Mr. Minear indicated that
providing expanded Supreme Court review of court-martial
decisions pursuant to H.R. 569 would result in approximately
120 additional petitions for certiorari each year.\23\ Even
lower estimates of up to 88 petitions per year were provided in
the expert witness testimony of Colonel Dwight Sullivan
received by the Subcommittee during the legislative hearing on
H.R. 569.\24\ This estimate was further endorsed in the written
testimony of the American Bar Association.\25\
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\22\Minear Letter, supra note 8.
\23\Id.
\24\H.R. 569, the ``Equal Justice for Our Military Act of 2009,''
Hearing Before the Subcomm. on Courts and Competition Policy, Comm. on
the Judiciary, 111th Cong. 30 (2009) (statement of Dwight Sullivan,
Civilian Appellate Defense Counsel, United States Air Force Appellate
Defense Division).
\25\ABA Testimony, supra note 9.
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For court-martial decisions that are appealed, prudent
limitations already established by the Supreme Court will limit
when counsel may aid servicemembers in filing petitions for
certiorari. In Austin v. United States, the Supreme Court held
that if counsel does not believe there is a non-frivolous basis
for appeal in a case, counsel must advise his or her client of
the right to file a certiorari petition, but counsel may not
file the petition on the client's behalf.\26\ This prohibition
on filing frivolous certiorari petitions applies equally to all
counsel permitted to practice before the Supreme Court, whether
they are appointed military counsel provided to servicemembers
free of charge, or private counsel hired at servicemembers'
expense. This prohibition serves a gatekeeping function that
will limit petitions filed by counsel to only non-frivolous
issues, thereby also limiting the burden and costs incurred by
military legal resources and the Supreme Court.
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\26\Austin v. United States, 513 U.S. 5, 8 (1994).
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When counsel has determined that there is a non-frivolous
issue upon which to base a certiorari petition to the Supreme
Court, the Solicitor General, with the support of the JAG, is
responsible for responding on behalf of the government to
servicemembers' petitions for certiorari. However, it is common
practice for the Solicitor General to waive the government's
right to respond until, and unless, the Supreme Court requests
a response. As such, the costs borne by the Department of
Justice and military legal resources in responding to writs of
certiorari will generally be limited to those few cases the
Supreme Court deems worthy of further review.
Finally, servicemembers who are without counsel but still
interested in pursuing a certiorari petition to the Supreme
Court may represent themselves pro se before the Supreme Court.
While few will likely pursue appeal without counsel, those that
do will most likely file certiorari petitions in forma
pauperis, given the limited means of most servicemembers. There
were 6,142 in forma pauperis filings in the Supreme Court's
2008-2009 term.\27\ It is unlikely that many of the additional
800 court-martial decisions made eligible for appeal to the
Supreme Court per year by the Act will in fact lead to in forma
pauperis filings. Even if a substantial portion do, they would
represent a small fraction of total filings, and the Supreme
Court could exercise its discretion to decline any such
petitions, as is currently the case.
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\27\John G. Roberts, Chief Justice, United States Supreme Court,
2009 Year-End Report on the Federal Judiciary 1 (Dec. 31, 2009), http:/
/www.supremecourtus.gov/publicinfo/year-end/2009year-endreport.pdf.
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CONCLUSION
The Committee finds the current limitations in the Supreme
Court's jurisdiction to hear court-martial decisions by writ of
certiorari, as provided in 28 U.S.C. 1259(3) and (4), unfair to
United States servicemembers. In the absence of a compelling
military justification, and in light of the likely minimal
burden to military and other government legal resources, the
Committee finds no justification for maintaining these
limitations. Accordingly, the Committee concludes that
decisions by the CAAF to decline review of court-martial
decisions, and to deny relief for extraordinary writs or writ
appeals, should be appealable to the Supreme Court by writ of
certiorari.
Hearings
The Committee's Subcommittee on Courts and Competition
Policy held 1 day of hearings on H.R. 569, on June 11, 2009.
Testimony was received from the Honorable Susan Davis, Member
of Congress, 53rd District, State of California; Major General
(Ret.) John D. Altenburg, Jr., United States Army, and of
Counsel, Greenberg Traurig, LLP; and Colonel Dwight H.
Sullivan, United States Marine Corps Reserve, and a Senior
Civilian Appellate Defense Counsel, Air Force Appellate Defense
Division. Additionally, a statement was submitted by Mr. Thomas
H. Wells, Jr., President, American Bar Association.
Committee Consideration
On July 30, 2009, the Subcommittee on Courts and
Competition Policy met in open session and ordered the bill
H.R. 569 favorably reported, with an amendment, by voice vote,
a quorum being present. On January 27, 2010, the Committee met
in open session and ordered the bill H.R. 569 favorably
reported without amendment, by voice vote, a quorum being
present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that there
were no recorded votes during the Committee's consideration of
H.R. 569.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 569, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, February 2, 2010.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 569, the ``Equal
Justice for Our Military Act of 2010.''
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure
cc:
Honorable Lamar S. Smith.
Ranking Member
H.R. 569--Equal Justice for Our Military Act of 2010.
H.R. 569 would allow the U.S. Supreme Court to review
certain cases involving court-martialed servicemembers facing
dismissal, discharge, or imprisonment. Under the bill, such
servicemembers could file a petition for Supreme Court review
even if the Court of Appeals for the Armed Forces (CAAF) denied
review of their cases. Under current law, Supreme Court review
is limited to cases the CAAF has reviewed or has granted a
petition for extraordinary relief or cases with a sentence of
death.
Based on information provided by the Department of Defense
(DoD) and the Supreme Court, CBO estimates that implementing
the bill would increase the workload of DoD attorneys and
Supreme Court clerks and would cost less than $1 million each
year, assuming the availability of appropriated funds. We
expect that the bill would make several hundred servicemembers
eligible to file petitions each year, but that only a small
portion of those individuals would pursue review by the Supreme
Court (based on the experience of individuals whose cases
currently qualify for Supreme Court review). CBO cannot predict
whether the Supreme Court would grant review of any particular
petition. If the Supreme Court agreed to review any petitions,
DoD would probably spend no more than $1 million in any year
from appropriated funds to defend those cases. (Any such
amounts would depend on the number and complexity of such
cases.) Enacting H.R. 569 would not affect direct spending or
revenues.
H.R. 569 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of State, local, or tribal
governments.
The CBO staff contact for this estimate is Mark Grabowicz.
The estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
569 will give the Supreme Court jurisdiction to hear appeals of
court-martial decisions that were declined review by the Court
of Appeals for the Armed Forces, and decisions by the Court of
Appeals for the Armed Forces that deny extraordinary relief or
an interlocutory appeal.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8 of the Constitution.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 569 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9 of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short title. Section 1 sets forth the short title
of the bill as the ``Equal Justice for Our Military Act of
2010.''
Sec. 2. Certiorari to the United States Court of Appeals
for the Armed Forces. Section 2(a) amends paragraphs (3) and
(4) of 28 U.S.C. Sec. 1259 by adding ``or denied'' to the text
of each paragraph. This effectively grants the Supreme Court
jurisdiction, by writ of certiorari, over any case that the
Court of Appeals for the Armed Forces denied review of, as well
as any decision by the Court of Appeals for the Armed Forces
that denied relief, including relief to extraordinary writs and
writ appeals.
Section 2(b) strikes current language in 10 U.S.C.
Sec. 867a(a) that expressly denies the Supreme Court
jurisdiction to review by writ of certiorari any action of the
Court of Appeals for the Armed Forces in refusing to grant a
petition for review. Section 2(b) also amends 28 U.S.C.
Sec. 2101(g) to grant the Supreme Court authority to prescribe
rules regarding the timeliness of an application for a writ of
certiorari to review a decision by a Court of Criminal Appeals
that the Court of Appeals for the Armed Forces refused to
review.
Sec. 3. Effective Date. Section 3(a) provides that
amendments made by the Act shall take effect 180-days after
enactment of the Act.
Section 3(b) provides that the grant of authority to the
Supreme Court to make amendments to the rules governing the
timeliness of writ applications takes effect on the date of
enactment of the Act. This will in effect give the Supreme
Court 180 days to promulgate rules relating to the timeliness
of writ applications stemming from a decision by a Court of
Criminal Appeals that the Court of Appeals for the Armed Forces
refused to review.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
TITLE 28, UNITED STATES CODE
* * * * * * *
PART IV--JURISDICTION AND VENUE
* * * * * * *
CHAPTER 81--SUPREME COURT
* * * * * * *
Sec. 1259. Court of Appeals for the Armed Forces; certiorari
Decisions of the United States Court of Appeals for the Armed
Forces may be reviewed by the Supreme Court by writ of
certiorari in the following cases:
(1) * * *
* * * * * * *
(3) Cases in which the Court of Appeals for the Armed
Forces granted or denied a petition for review under
section 867(a)(3) of title 10.
(4) Cases, other than those described in paragraphs
(1), (2), and (3) of this subsection, in which the
Court of Appeals for the Armed Forces granted or denied
relief.
* * * * * * *
PART V--PROCEDURE
* * * * * * *
CHAPTER 133--REVIEW-MISCELLANEOUS PROVISIONS
* * * * * * *
Sec. 2101. Supreme Court; time for appeal or certiorari; docketing;
stay
(a) * * *
* * * * * * *
[(g) The time for application for a writ of certiorari to
review a decision of the United States Court of Appeals for the
Armed Forces shall be as prescribed by rules of the Supreme
Court.]
(g) The time for application for a writ of certiorari to
review a decision of the United States Court of Appeals for the
Armed Forces, or the decision of a Court of Criminal Appeals
that the United States Court of Appeals for the Armed Forces
refuses to grant a petition to review, shall be as prescribed
by rules of the Supreme Court.
* * * * * * *
----------
SECTION 867a OF TITLE 10, UNITED STATES CODE
Sec. 867a. Art. 67a. Review by the Supreme Court
(a) Decisions of the United States Court of Appeals for the
Armed Forces are subject to review by the Supreme Court by writ
of certiorari as provided in section 1259 of title 28. [The
Supreme Court may not review by a writ of certiorari under this
section any action of the Court of Appeals for the Armed Forces
in refusing to grant a petition for review.]
* * * * * * *
Dissenting Views
H.R. 569 proposes to amend the federal judicial code to
allow for expanded review by writ of certiorari certain cases
the U.S. Court of Appeals for the Armed Forces (CAAF) has
determined do not merit formal review or extraordinary relief.
In support of the bill, the sponsor testified before the
House Judiciary Committee's Subcommittee on Courts and
Competition Policy that ``members of the military who are
convicted of offenses under the military justice system do not
have the legal right to appeal their cases to the U.S. Supreme
Court.''
If true, it would be an outrage. If accurate, then we would
support tailored amendments to the federal judicial code to
provide certiorari review in appropriate instances.
But the simple fact of the matter is this statement is
misleading. The U.S. Supreme Court has possessed jurisdiction
to review CAAF decisions by writ of certiorari for nearly three
decades. The authority\1\ is not absolute and is prescribed by
statute, extending only to the cases for which the CAAF has
granted review and excluding those the CAAF has determined do
not merit consideration.\2\
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\1\The Counselor to the Chief Justice of the United States
explained the appellate review authority of the Court as well as the
expansions proposed by H.R. 569 in a letter to the Chairman and Ranking
Member of the Subcommittee on Courts and Competition Policy dated June
18, 2009 :
The Court of Appeals for the Armed Forces (CAAF) has
authority to review specified types of decisions by the
four Courts of Criminal Appeals for the different branches
of the military. See 10 U.S.C. Sec. 867 (a). The CAAF is
required to review all cases in which the death penalty is
imposes and all cases in which the relevant Judge Advocate
General orders review. See Sec. Sec. 867 (a)(1) and (2).
The CAAF also has the discretion to review any other case
decided by a Court of Criminal Appeals. See Sec. 867
(a)(3). Additionally, it has jurisdiction to consider
petitions for extraordinary writs under the All Writs Act.
---------------------------------------------------------------------------
See 28 U.S.C. Sec. 1651.
The Supreme Court's jurisdiction to review CAAF decisions
is governed principally by 28 U.S.C. Sec. 1259. That
statute allows the Court to review by writ of certiorari
cases that the CAAF must review under sections 867(a)(1)
and (2). See 28 U.S.C. Sec. Sec. 1259 (1) and (2). It also
allows the Court to review by certiorari cases in which the
CAAF has granted a petition for discretionary review under
867 (a)(3) or otherwise granted relief, such as through an
extraordinary writ. See 28 U.S.C. Sec. Sec. 1259 (3) and
(4). H.R. 569 would amend section 1259 to allow the Supreme
Court to review additional cases from the CAAF.
Specifically, the bill would amend subsections (3) and (4)
to allow the Court to review by certiorari cases in which
the CAAF granted or denied a petition for discretionary
review or granted or denied other relief.
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\2\Article 67a, Uniform Code of Military Justice (hereinafter
abbreviated to UCMJ); 28 U.S.C. Sec. 1259.
---------------------------------------------------------------------------
The legislative history for current law unambiguously
demonstrates that this limited avenue of Supreme Court review
was not an oversight but the result of deliberate congressional
design. The Committee on Armed Services, in House Report No.
98-549, which accompanied the Military Justice Act of 1983,
explained:
``The Court of Military Appeals [now CAAF] regularly
applies decisions of the Supreme Court in resolving appellate
issues . . . in view of current concerns about the Supreme
Court's docket, the legislation has been drafted in a manner
that will limit the number of cases subject to direct Court
review. Cases in which the [CAAF] declined to grant a petition
for review are excluded, and the Supreme Court will have
complete discretion to refuse to grant petitions for writs of
certiorari. Control over government petitions will be exercised
by the Solicitor General. This formulation has been endorsed by
the Department of Justice as well as the Department of Defense.
The committee is of the opinion that the impact on the docket
of the Supreme Court would not be substantial, and the [CAAF]
will remain the primary source of judicial authority under the
Uniform Code of Military Justice.'' (Emphasis added.)
By enacting the Military Justice Act of 1983, Congress
sought to achieve several objectives. Among them was a desire
to ensure there was a mechanism to appeal decisions of the
highest court in the military justice system on matters that
are of the highest priority, those that affect constitutional
law. Writing in 1982, the Supreme Court justices urged the
House Committee on the Judiciary to consider, ``Because the
volume of complex and difficult cases continue to grow, it is
even more important that the Court not be burdened by having to
deal with cases that are of significance only to the individual
litigants but of no `wide public importance'.''\3\
---------------------------------------------------------------------------
\3\House Report No. 100-660 accompanying Public Law 100-352,
``Review of Cases by the Supreme Court.''
---------------------------------------------------------------------------
History demonstrates Congress intended to provide an
appellate system that integrated the Office of the Solicitor
General, the Department of Justice and the Department of
Defense in an elaborate process of reviewing and responding to
appeals from the CAAF. In recognition of the operation of this
system, which has been in effect for nearly three decades with
few apparent complaints\4\ or defects, the views of the
Executive Branch and the Supreme Court with respect to proposed
changes to the law have consistently been solicited by the
Committee leadership and staff. Indeed, the Armed Services
Committees of the House of Representatives and the Senate have
also routinely elicited the views of the relevant departments.
---------------------------------------------------------------------------
\4\The sponsor of H.R. 569 and earlier versions of this legislation
from prior Congresses has offered this explanation for why she has
repeatedly advocated this measure:
``[t]his issue was brought to my attention of my office
years ago by a then-constituent of mine, a former
servicemember who had concerns about the military justice
system. He has since become a tireless champion for this
issue and other military justice reform on behalf of the
servicemembers and veterans that fall under the
---------------------------------------------------------------------------
jurisdiction of those courts.'' (Emphasis added.)
The noble description aside, the then-constituent is
identified as Norbert Basil MacLean, III. After serving in
the U.S. Navy for 5 years, Mr. MacLean pleaded guilty in
October 1992 to writing bad checks on his personal account
and was convicted by a general court martial. A dual
Australian-U.S. citizen, he subsequently attempted to
collaterally attack his conviction and to set aside his
plea bargain, which had permitted his release from
confinement for time served. In publications, he merely
describes himself as having ``served on active duty in the
U.S. Navy from 1989-1994 and . . . an advocate for
servicemembers' rights.''
In prior administrations, the Department of Defense, in
particular, was forthright and forthcoming in expressing strong
opposition to the enactment of this type of legislation.
Regrettably, the current administration has forestalled
attempts to discern its position. It has refused to cooperate
with the Committee on the Judiciary's oversight into this
matter as well as other matters that affect the rights of
servicemembers.
This unwillingness to engage in the legislative process and
lack of transparency denies the Members of the Committee the
opportunity to know whether the position of the present
administration is consistent with or different from that of
prior administrations. It also denies the Members of the
Committee any opportunity to review or consider the validity of
any arguments that might underlie the position of the present
administration. In the absence of any affirmative statement or
justification, Members might reasonably conclude the position
of the current administration and the Department of Defense is
unchanged from that which has been clearly and consistently
stated in the recent past.
The Department of Defense, which is the department that
will be most directly affected by the enactment of H.R. 569,
has regularly and strenuously objected to the measure. Among
the concerns and objections we note with respect to this and
prior versions of this legislation are:
<bullet> LFirst, it will likely greatly expand the
number of cases added to the already burdensome
workload, and length of time taken, to conduct
appellate reviews by the Service Courts of Criminal
Appeals. More cases means an increase in the number of
legal briefs and responses required, as well as the
oral argument sessions and demands placed on appellate
defense and government counsel. At the trial level,
this legislation will likely require more verbatim
records of the trial in support of the expanded
mandatory appellate review process. As such, this may
take longer to transcribe and because of the increased
length, increase expenses and administrative costs.
<bullet> LSecond, military accused may be negatively
impacted when seeking to negotiate a pretrial
agreement. The government might no longer be as willing
or interested in placing a ``cap'' on the possible
sentence, while still allowing the accused to plead not
guilty to one or more accompanying charges to that
which the accused is willing to plead guilty. Accused
typically want the benefit of the pretrial agreement
while also preserving appellate issues to those charges
he/she wishes to contest. Sometimes, the government is
willing to do this with a negotiated sentence ``cap''
that would not allow for an Article 66, UCMJ, appeal.
If the case would, nonetheless, require a verbatim
record and an automatic appellate review by the Service
Court of Criminal Appeals, the prosecution might be
less likely to negotiate with the accused and place a
``cap'' on the possible punishment in the case--this
would likely inure to the accused's detriment.
<bullet> LThird, no empirical support or persuasive
rationale has been provided to justify such a
significant change in the military's mandatory
appellate review process, where free defense counsel
and appellate resources are afforded an accused without
regard to indigence--unlike the civilian criminal
appellate system. Any reports that this proposal is
necessary as to ``remedy a troubling gap in military
appellate jurisdiction that makes it impossible for
some convicted military members to seek review of legal
error'' should provide irrebutable support for the
conclusion that there is a ``gap'' in appropriate
review of the case and that any gap is sufficiently
``troubling'' to overhaul military appellate review
with its attendant costs and requirements. To maintain
there would be no additional costs associated with
expanding mandatory appellate court review (as
practiced within the military) overlooks the obvious
impact of more cases, with more free counsel and
administrative procedures applicable to each case, and
the diversion of government resources from existing
cases. Very rarely is a request to ``do more, with the
same or less'', less costly or without a real need for
increased manpower or resources.
<bullet> LFourth, there are already multiple avenues
for redress for servicemen who believe they have been
wronged in the military justice system. Military
members whose court-martial conviction does not now
qualify for automatic review by the Court of Criminal
Appeals for the relevant military service under Article
66, UCMJ, can already have their cases reviewed under
Article 69, UCMJ. The Boards of Correction of Military
Records can entertain a request for review, but for
clemency purposes (e.g., substituting an administrative
discharge for a punitive discharge, or other clemency
modification of the sentence), but the Boards do not
have authority to overturn courts-martial convictions.
Within a period of 2 years after the court-martial
convening authority approves a court-martial sentence,
the accused can petition the Judge Advocate General for
a new trial on the grounds of newly discovered evidence
or fraud on the court, under Article 73, UCMJ.
<bullet> LFifth, all general courts-martial not subject
to review under Article 66 are already subjected to
mandatory review under 69(a) in the Office of The Judge
Advocate General.
<bullet> LSixth, all special courts-martial not subject
to review under Article 66 are subject to mandatory
review by a judge advocate under Article 64 and
military members are free to apply for review in the
office of their respective Judge Advocate General under
Article 69(b), if not satisfied with the Article 64
review. In each instance, the case is reviewed for
legal sufficiency and sentence appropriateness. This
system has served the military well since the inception
of the UCMJ and neither evidence presented, if any, nor
actual experience suggest that the system has failed or
that changing it to merely ``appear'' more like a
civilian system would actually improve either the
system or the lot of military members. In addition,
military members dissatisfied with any result under
either Article 64 or 69, as stated previously, are free
to submit their case for review by their respective
Boards of Correction of Military Records which has the
power to disapprove or modify the sentence adjudged at
a court-martial.
<bullet> LFinally, a servicemember may always pursue a
collateral attack upon a court-martial conviction in
federal district court if there is a legitimate basis
for doing so.
The hollowness of proponents' claims that H.R. 569 is
urgently needed to address a defect in the military justice
system was, ironically, illustrated by a point that was made in
the testimony of Dwight Sullivan, an advocate for the bill. He
made clear that its enactment, in practice, will have a
negligible impact on the actual number of military petitions
granted review by the Supreme Court. In his own words, Sullivan
noted:
``the number of granted military certiorari petitions
would remain small. Indeed, the percentage of granted
military certiorari petitions would likely diminish,
since it is likely that fewer cert-worthy issues would
be presented by those cases where CAAF denied review
than by those cases where CAAF chose to exercise its
discretionary jurisdiction.'' (Emphasis added.)
The critical point to note is the concession that the CAAF
already performs its ``gatekeeper'' role well and that Sullivan
has no reason to expect it to not do so in the future. It
grants review to those petitions of convicted servicemembers
that contain meritorious issues and denies review and
extraordinary relief to those that are not, in his words,
``cert-worthy.''
Sullivan has also observed that 3,473 petitions had been
denied review by CAAF over the past 5 years. He conceded,
``[m]ost of those cases, no doubt, contained no important
issues. But went on to add, ``some of them included unresolved
constitutional issues that could not be presented to the
Supreme Court on direct review due to CAAF's denial of the
petition.'' (Emphasis added.)
In an effort to compromise and permit direct review of
constitutional issues by the Supreme Court, the minority
proposed to agree to an amendment to expand certiorari
jurisdiction in this class of cases, which are of the greatest
significance to the accused and the public. The bill sponsor is
reported to have rejected the offer to compromise.
It is indisputable that there are differences between the
civilian criminal justice system and that of the military. The
myopic focus on one difference without a thorough and proper
examination of how a given proposed change will likely affect
the entirety of the military justice system does a disservice
to our servicemembers and the legislative process.
Proponents have yet to produce any persuasive evidence that
servicemembers have been adversely affected by the current
structure of the military justice system. In the absence of
actual evidence and a thoughtful review, examination and
provision of appropriate resources to the departments that will
be affected as well as the Office of the Solicitor General, we
must withhold support for what amounts to an ``unfunded
mandate'' on these entities.
Commenting on one of the salient differences between the
civilian and military systems, Major General John D. Altenburg,
Jr. US Army (Retired), explained:
``the proposed bill would not merely offer the
individual appellant an enhanced right but would also
impose an obligation on the Armed Forces to provide the
resources necessary to ensure that the ability to
petition from a denial is meaningful. If the bill were
truly intended to make servicemembers equal to
civilians it would also need to deprive the same
servicemembers of the right to assigned counsel and no
cost litigation. Civilians must shoulder the costs of
their collateral attacks unless they are able to
establish their indigence. The last thing the military
needs is to invite application of these civilian
principles to the practice of military criminal law.''
MG Altenburg added:
``Because this bill is not necessary to address any
actual injustice or shortcoming in the system, it is
important that Congress assess the need for greater
resources to the military department Judge Advocate
General's Corps. The Congress would then be better
situated to ensure that when and if the military
departments are required to perform this more demanding
mission the Congress will also provide them with the
resources to accomplish that mission.''
MG Altenburg also noted that he:
``oppose[s] the bill because it offers the illusion of
expanded authority to contest courts-martial
convictions when the real impact is likely to be
inconsequential, encouraging a cynical perspective that
the proposed legislation offers the appearance of
reform but no enhanced ability to ensure a reliable
criminal trial process, a process that already provides
Congressionally mandated unique protections that exceed
those of civilian jurisdictions.'' (Emphasis added.)
For the foregoing reasons, we must oppose the changes
proposed by this legislation to the operation of the
administration of the military justice system in pursuit of
what appears to be an ``illusory'' reform.
Lamar Smith.
F. James Sensenbrenner, Jr.
Howard Coble.
Elton Gallegly.
Daniel E. Lungren.
Darrell E. Issa.
Steve King.
Trent Franks.
Louie Gohmert.
Jim Jordan.
Ted Poe.
Tom Rooney.
Gregg Harper.
<all>