United States v. Parino-Ramcharan (2024)

This case squarely presents the question of whether this Court should depart from the plain language of a statute as written by Congress. As everyone agrees (the majority opinion, this dissent, the Government, and even Appellant), the plain language of Article 69(c)-(d), Uniform Code of Military Justice (UCMJ), 1 precludes the Judge Advocate General of the Air Force (TJAG) and the United States Air Force Court of Criminal Appeals (CCA) from reviewing Appellant's Article 65(d), UCMJ, 2 case. Nonetheless, the majority disregards this plain language because, in their view, “a key provision in Article 69(c)(1)(A), UCMJ, contains a simple scrivener's error,” and judicially revising the wording of the applicable provision will make operable what they deem to be “the true meaning of the statute.” United States v. Parino-Ramcharan, __ M.J. __, __ (2) (C.A.A.F. 2024) (internal quotation marks omitted) (quoting U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 462 (1993)). For the reasons provided below, I conclude that we must defer to the plain language of the statute—and to the policy choices of Congress—as reflected on the face of Article 69(c)-(d). Accordingly, I respectfully dissent.

My analysis begins with the following basic rule of statutory construction: “Unless the text of a statute is ambiguous, ‘the plain language of a statute will control unless it leads to an absurd result.’ ” United States v. Schell, 72 M.J. 339, 343 (C.A.A.F. 2013) (quoting United States v. King, 71 M.J. 50, 52 (C.A.A.F. 2012)). There is no ambiguity in Article 69(c)-(d), and no party claims otherwise.

Without the presence of ambiguity in the statute, the crucial question then is whether the enforcement of the plain language of Article 69(c)-(d) would lead to an absurd result. And yet, citing to U.S. National Bank of Oregon, 508 U.S. at 462, the majority states that “we need not and therefore do not consider ․ the doctrine of absurdity in our analysis of this case.” Parino-Ramcharan, __ M.J. at __ (10). However, the Supreme Court more recently “reiterate[d] that ‘when [a] statute's language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.’ ” Sebelius v. Cloer, 569 U.S. 369, 381 (2013) (second alteration in original) (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000)). Furthermore, in reference to the scrivener's error doctrine invoked by the majority in this case, the Supreme Court recently cited with approval Lamie v. United States Trustee, 540 U.S. 526, 538 (2004). Niz-Chavez v. Garland, 593 U.S. 155, 162 n.1 (2021). In Lamie, the Supreme Court read the statute at issue “[w]ith a plain, nonabsurd meaning in view.” 540 U.S. at 538 (emphasis added).

Consistent with these Supreme Court precedents, this Court has recently stated that a “fundamental principle” of statutory construction “is that the plain language ․ will control unless it leads to an absurd result.” United States v. Beauge, 82 M.J. 157, 162 (C.A.A.F. 2022) (emphasis added) (internal quotation marks omitted) (quoting King, 71 M.J. at 52). Therefore, even in the context of the scrivener's error doctrine, the majority cannot simply sidestep the absurdity doctrine just because it proves problematic to their analysis.

As I view the absurdity doctrine, two important concepts come into play: (1) “ ‘a departure from the letter of the law’ may be justified ․ if ‘the absurdity ․ is so gross as to shock the general moral or common sense,’ ” United States v. McPherson, 81 M.J. 372, 380 (C.A.A.F. 2021) (second alteration in original) (quoting Crooks v. Harrelson, 282 U.S. 55, 60 (1930)); and (2) a departure from the plain text of a statute “applies only in exceptional circumstances to obvious technical drafting errors,” Niz-Chavez, 593 U.S. at 162 n.1. Absent these circumstances, “the remedy [for laws that turn out to be mischievous, absurd or otherwise objectionable] lies with the lawmaking authority, and not with the courts.” McPherson, 81 M.J. at 374-75 (alteration in original) (internal quotation marks omitted) (quoting Crooks, 282 U.S. at 60); see also Lamie, 540 U.S. at 542 (“It is beyond our province to rescue Congress from its drafting errors, and to provide for what we might think ․ is the preferred result.” (alteration in original) (citation omitted) (internal quotation marks omitted)).

This case does not meet either of these two criteria. First, the fact that under Article 69(c)-(d) Congress did not provide for TJAG or CCA review in a limited subset of court-martial cases does not “shock the general moral or common sense.” McPherson, 81 M.J. at 380 (citation omitted) (internal quotation marks omitted). Indeed, compare this result with that in McPherson where a majority of this Court held that the plain language of a law did not shock the conscience even though the text resulted in a significantly reduced statute of limitations period for certain child sex abuse offenses. Id. at 379-82. If the plain language of the statute in McPherson—which resulted in the dismissal of convictions for six specifications of repulsive indecent acts with a child—did not shock the conscience, it is difficult to fathom how the statutory denial of review of Article 65(d) cases by TJAG or the CCA does.

Second, there are no exceptional circumstances here to justify the judicial rewriting of the statute, and it is not “obvious” that we are confronted with a mere “technical drafting error[ ].” Niz-Chavez, 593 U.S. at 162 n.1. A convicted servicemember still receives adequate due process under the plain language of the applicable provision. As the Government explains, “[special and general courts-martial] with minor sentences are already reviewed by an attorney in the Office of the Judge Advocate or an attorney designated by a service regulation. Article 65(d), UCMJ.” Brief for Appellee at 26, United States v. Parino-Ramcharan, No. 23-0245 (C.A.A.F. Jan. 3, 2024). Therefore, we should deem it reasonable for Congress to have chosen not to have TJAG conduct yet another review under Article 69(c), UCMJ. And because Congress tied the CCA's review of Article 69 to certain cases, it is not absurd in this context that Congress excluded Article 65(d) cases from appellate review.

The language in Article 69(c)-(d) is plain and “the disposition required by [its] text is not absurd.” Dodd v. United States, 545 U.S. 353, 359 (2005) (citation omitted) (internal quotation marks omitted). Therefore, “the sole function of [this Court] is to enforce it according to its terms.” Id. (citation omitted) (internal quotation marks omitted). Nevertheless, the majority instead chooses to unilaterally revise the plain language of Article 69(c)(1)(A) despite the Supreme Court's admonition that “[i]t is for Congress, not this Court, to amend the statute if it believes that” correction is warranted. Id. at 359-60. Because I conclude that the majority is mistaken in taking this approach, I respectfully dissent and I would grant the Government's motion to dismiss Appellant's case.

FOOTNOTES

1.   10 U.S.C. § 869(c), (d) (2018).

2.   10 U.S.C. § 865(d) (2018).

Chief Judge OHLSON, with whom Judge SPARKS joins, dissenting.