UNITED STATES v. HIRST (2024)

ORDER

PUBLISHED ORDER OF THE COURT

Appellant was convicted, contrary to his pleas, of one specification of wrongful use of a controlled substance, in violation of Article 112a, Uniform Code of Military Justice (UCMJ).¹

When Appellant's court-martial adjourned on 24 April 2022, the sub-jurisdictional sentence imposed meant that, under the version of Article 66, UCMJ, in effect at the time of his trial, his case was ineligible for direct appeal to this Court.² Instead, on 11 August 2022, it was reviewed by a judge advocate pursuant to Article 65(d), UCMJ.³ Appellant then had one year to apply to the Judge Advocate General of the Navy (JAG) for further review pursuant to Article 69(a), UCMJ.⁴

That's where things get interesting.

On 23 December 2022, Congress amended Article 66, UCMJ, to afford this Court jurisdiction over all general and special courts-martial resulting in a conviction.⁵ At the same time, Congress eliminated Appellant's right to apply to the JAG to review his conviction pursuant to Article 69(a), UCMJ, and, with one narrow exception, restricted the JAG's review to summary courts-martial.⁶

So where was Appellant to appeal his conviction? As you may have guessed, he came here.

On 4 August 2023, Appellant filed a brief asserting four assignments of error: (1) whether the finding of guilty to specification 2 of the charge is factually sufficient; (2) whether the finding of guilty to specification 2 of the charge is legally insufficient; (3) whether the military judge abused his discretion in denying the defense motion to dismiss; and (4) whether the sentence adjudged was inappropriately severe.

On 30 August 2023, this Court ordered briefing on whether this Court has jurisdiction to review Appellant's appeal. The Government insists that we do not.⁷ The Appellant insists we do.⁸

Because appellate courts must first satisfy themselves of their own jurisdiction,⁹ it is necessary to provide some background for our ultimate determination that we have jurisdiction in this case.

I. BACKGROUND

Appellant's case arose in the wake of the most significant revisions to the UCMJ since its adoption in 1950—the Military Justice Act of 2016 (MJA 16). One of these revisions afforded every accused convicted at a court-martial the opportunity to appeal that conviction similar to that afforded civilian criminal defendants in Article III courts, even in so-called misdemeanor cases that were previously unreviewable by this Court due to the sub-jurisdictional nature of the adjudged sentence.¹⁰

This proposal—and nearly the entirety of the MJA 16—originated with the Military Justice Review Group (MJRG), which was chaired by Senior Judge Andrew Effron of the Court of Appeals for the Armed Forces (C.A.A.F.). And so we begin there.

1) The MJRG proposes a statutory scheme for bifurcated judicial review of all courts-martial.

After discussing the history of Article 69, UCMJ, the MJRG noted that the military stood alone among federal and state jurisdictions in not permitting criminal defendants to appeal their convictions in misdemeanor cases.¹¹ And so the MJRG recommended that Article 69, UCMJ, be amended to give an accused “an opportunity to apply for review by a court of criminal appeals.”¹²

The MJRG's proposal was intended to “provide access to judicial review for servicemembers whose general, special, or summary courts-martial resulted in sentences of confinement for six months or less upon application by the accused.”¹³ That access would be left to the discretion of this Court, “following completion of review in the [OJAG] and would run parallel with the [JAG's] discretionary authority to send such cases to” this Court.¹⁴ And an accused who sought review in this Court would have one year to request further review pursuant to Article 69, UCMJ, which the JAG could extend for up to three years for good cause much like petitions for a new trial under Article 73, UCMJ.¹⁵

Relevant here, the MJRG proposed the statutory language for an amended Article 69, UCMJ:

(c) SCOPE—(1)(A) In a case reviewed under section 864 or section 865(d) of this title (article 64 or 65(d)), the [JAG] may set aside the findings or sentence, in whole or in part on the grounds of newly discovered evidence, fraud on the court, lack of jurisdiction over the accused or the offense, error prejudicial to the substantial rights of the accused, or the appropriateness of the sentence.

An accused would have sixty days to apply for discretionary review in this Court after the JAG's Article 65(d) review, and this Court could take action only with respect to matters of law.¹⁶

2) Congress codifies a scrivener's error.

“As Otto von Bismark quipped, no one should see how laws or sausages are made.”¹⁷ And this appears to be especially true of the MJA 16's short-lived version of Article 69, UCMJ, which was later amended by the National Defense Authorization Act of 2023 (FY23 NDAA) on 23 December 2022.

What went into the Congressional grinder was clear enough, and we have already fully recounted the MJRG's proposal above. The MJRG's proposal to amend Article 69, UCMJ, made it through the Senate unscathed.¹⁸ The Senate's Report accompanying the proposed legislation recommended amending Article 69, UCMJ, “to authorize an accused, after a decision is issued by the [OJAG] under Article 69, to apply for discretionary review by the Court of Criminal Appeals under Article 66.”¹⁹

Six months later, the House conference report noted that its amendment contained a “similar provision” to the Senate bill.²⁰ But the statutory text itself was mangled:

(c) SCOPE—(1)(A) In a case reviewed under section 864 or section 865(b) of this title (article 64 or 65(b)), the [JAG] may set aside the findings or sentence, in whole or in part on the grounds of newly discovered evidence, fraud on the court, lack of jurisdiction over the accused or the offense, error prejudicial to the substantial rights of the accused, or the appropriateness of the sentence.21

Thus, the language that ultimately became law in the MJA 16 contained a scrivener's error; it replaced the (d) in the draft legislation with (b) in the codified version of Article 69(c), UCMJ.²²

There is no plausible purpose for the substitution of (b) for (d) in Article 69, UCMJ. The plain language of Article 69(c), UCMJ, implies that Article 65(b) will discuss the JAG's review of a court-martial. It doesn't.

The title of subsection (b) is “Cases Eligible for Direct Appeal.”²³ And it describes only the JAG's ministerial role in forwarding records of trial.²⁴ It states that in every case where the sentence requires automatic review by this Court pursuant to Article 66(b)(3), the JAG is required to forward the record of trial to this Court.²⁵ In cases eligible for direct review by this Court, Article 65(b)(2) requires the JAG to forward a copy of the record of trial to an appellate defense counsel. And it states the JAG doesn't have to forward the record of trial to an appellate defense counsel if an appellant waives his right to appeal or declines appointment of appellate defense counsel in writing.²⁶

In contrast, Article 64, UCMJ, which is also referenced in Article 69(c), UCMJ, does discuss review of summary courts-martial just as one would expect from the language found in Article 69(c)(1)(A), UCMJ.

What then, are we to make of Article 69(d), which, at the time of Appellant's court-martial, afforded this Court jurisdiction to review action taken under subsection (c) of Article 69, UCMJ? Congress granted Appellant a right to submit an application to this Court to appeal the “review” by the JAG, but Article 65(b), UCMJ, is implicitly devoted to the U.S. Postal Service, and when the JAG must avail himself of it for the purpose of forwarding records of trial.

Initially thwarted, we turn to the rest of the plain language of Article 65, UCMJ, to see if it provides for anything similar to the review of summary courts-martial found in Article 64, UCMJ. And it does. Oddly enough, it is in subsection (d), where the MJRG initially put it in the draft legislation, and it is helpfully captioned “Review by Judge Advocate General.”²⁷

That is unsurprising because Article 69(a) states that an appellant may apply to the JAG to review his case “in a court-martial that is not reviewed under [Article 66, UCMJ].”²⁸ And Article 69(b), UCMJ, gives an appellant one year to apply to the JAG for review, and authorizes the JAG to extend the timeframe for that review, upon good cause shown, for up to three years after completion of review under Article 65, UCMJ.²⁹

Reading the structure, language, and subject matter of Articles 64, 65, 66, and 69, UCMJ, holistically ³⁰ with the rest of the MJA 16, there is no plausible purpose for the substitution of subsection (b) for subsection (d) in Article 69, UCMJ. The statute is clear that an appellant may appeal the initial review of his summary court-martial by a judge advocate pursuant to Article 69(d)(1).³¹ Before it was amended, Article 66(b)(1)(D) afforded this Court jurisdiction over cases “in which the accused filed an application for review with the Court under [Article 69(d)(1)(B)]” and where this Court granted the application.³²

However, read literally, an appellant with a sub-jurisdictional sentence at a special or general court-martial could apply to this Court for review of the “action taken by the [JAG]” pursuant to Article 69(d)(1), but the process setting forth that review was nowhere to be found in Article 65(b), UCMJ, which effectively routed an appellant's appeal to a dead-letter office.

At the same time, Article 69(d)(1) retained the JAG's authority to certify a case to this Court, which was initially authorized by Congress in 1989.³³ And for the first time in the history of the UCMJ, Congress amended Article 69, UCMJ, to permit an accused to petition this Court for review of “action taken by the [JAG] under subsection (c),” which returns us to Article 65(b), UCMJ.

And what does the JAG review under Article 65(b), UCMJ? Nothing, says the Government. That's right, read literally, and only with respect to general and special courts-martial involving sub-jurisdictional sentences, the MJA 16 created an elaborate statutory hoax affording servicemembers like Appellant the opportunity to appeal nothing to nowhere.

And they weren't alone. According to the Government, Congress played a similar statutory prank on the JAGs by expressly giving the JAGs authority to review courts-martial with sub-jurisdictional sentences in Article 69(a), UCMJ.³⁴ And it retained the more than thirty-year-old authority of the JAGs to certify cases they had reviewed to this Court in Article 69(d)(1)(A).³⁵ But, says the Government, it restricted the JAG's scope of review to nothing by operation of the scrivener's error in Article 69(c)(1)(A).

This is utter nonsense.

More importantly for our purposes, it is an absurd result.³⁶ And it is precisely the rare instance when this Court may look “beyond the plain language of a statute and consult legislative history to divine its meaning.”³⁷ Further, while reliance on legislative history has become less prevalent over time, substantive canons have not displaced legislative history.³⁸ “After all, in construing statues, our primary goal is to effectuate legislative intent.”³⁹ And here that intent—expressed in the Congressional record and on page 636 of the MJRG's report—couldn't be more clear.

Not surprisingly, the President, in promulgating the 2019 Manual for Courts-Martial (MCM),⁴⁰ corrected the scrivener's error and the JAG continued to review sub-jurisdictional sentences of Sailors and Marines convicted as general and special courts-martial until the FY23 NDAA divested the JAG of jurisdiction over those cases.

We do not mean to suggest that the President, through the MCM, can override a statute like Article 69, UCMJ. He can't.⁴¹ But the MCM's recitation of Article 69, to say nothing of R.C.M. 1201, is further evidence that everyone—including the Government—thought Article 69(c)(1)(A) contained a typo that could be ignored because the intent of Congress was plain and the application of the scrivener's resulted in statutory language that was meaningless nonsense.

3) Article 69, UCMJ's, bifurcated scheme for appellate review of sub-jurisdictional sentences existed for 1,452 days before it was abrogated, and the Government appears to have spent every one of those days proceeding as if Article 69(c)(1)(A), UCMJ, contained a scrivener's error to be ignored.

This Court was the first Court of Criminal Appeals (CCA) to address the MJA 16's amendments to Article 69, UMCJ, in a petition for a writ of mandamus.⁴² The petitioner in Brown v. United States, had been convicted by members at a special court-martial and had been adjudged a reduction in grade from E-8 to E-7.⁴³ Appellant sought a writ of mandamus to disqualify the military judge at a post-trial Article 39(a) session and invoked this Court's potential appellate jurisdiction pursuant to Article 69(d).⁴⁴

The Government conceded that the JAG could eventually review the petitioner's sub-jurisdictional sentence “under Article 69(b) and (d),” and given “the statutory avenues still available to” the petitioner, he could not demonstrate there were “no other adequate means of relief.”⁴⁵ After all, said the Government, the petitioner could later apply to the JAG to have his “sub-jurisdictional case reviewed under Article 66, UCMJ, by a [CCA].”⁴⁶

After this Court found it had potential jurisdiction under the All Writs Act and Article 69(d), the JAG certified the case to the C.A.A.F.⁴⁷ The C.A.A.F. affirmed our decision.⁴⁸ The majority opinion, which was joined by Senior Judge Effron,⁴⁹ noted that potential “jurisdiction exists as long as some pathway to the lower court's statutory jurisdiction remains.”⁵⁰ “Here, pursuant to Article 69(d), UCMJ, TJAG [sic] will have the opportunity to decide whether to forward Appellee's case to the lower court for review under Article 66, UCMJ.”⁵¹

And so, for nearly four years, the entire Department of Defense, the CCAs ⁵² and the C.A.A.F.⁵³ ignored the scrivener's error in Article 69, UCMJ, and proceeded the review of courts-martial under the MJA 16's appellate scheme as it was intended by Congress.

4) The day before Article 69, UCMJ, was abrogated by the current statute, the Air Force Court of Criminal Appeals (AFCCA) specified three issues asking whether the scrivener's error in Article 69(c), UCMJ, divested the AFCCA of jurisdiction.

On 22 December 2022, with the enactment of today's statutory appellate scheme just hours away, the AFCCA specified three issues, in effect, asking whether the scrivener's error in Article 69(c), UCMJ, divested the JAG of the Air Force and the AFCCA of jurisdiction over the appellant's sub-jurisdictional sentence.⁵⁴

In response, the Government conceded that “Article 69(c)'s reference to Article 65(b) is hollow and seemingly nonsensical because there is no prior ‘review’ by the [JAG] under (b), only forwarding instructions.”⁵⁵ Nonsense indeed. But, according to the Government in Zier, the AFCCA couldn't just ignore the obvious scrivener's error because the rest of Article 69, UCMJ, was internally inconsistent, “remain[ed] absurd” and left an applicant “without an avenue for relief.”⁵⁶

We need not dwell long on the Government's double-absurdity-requires-judicial-paralysis argument because, in fact, there is no further inconsistency in the UCMJ. Under the MJA 16, Article 65(d), UCMJ, required a judge advocate to review of two types of cases: (1) cases not eligible for direct appeal under Article 66, UCMJ, and; (2) cases in which direct appeal is waived, withdrawn, or not filed.⁵⁷ And a judge advocate was required to conduct the same four-part review of both cases.⁵⁸

But the review of these cases diverged once they were reviewed by the JAG under Article 69(c), UCMJ. Those appellants who availed themselves of review under Article 65(d), UCMJ, were then, correcting for the scrivener's error, able to apply to the have both the JAG, and potentially this Court, review their general and special court-martial convictions pursuant to Article 69(c), UCMJ. Those who waived or withdrew their appeal pursuant to Article 61, UCMJ, or who failed to timely file an appeal under Article 66, UCMJ,⁵⁹ could have had their case reviewed by the JAG, but the review was “limited to the issue of whether the waiver, withdrawal, or failure to file an appeal was invalid under the law.”⁶⁰

But after ordering briefing, the AFCCA declined to address the absurdity doctrine in Zier.⁶¹ Instead, the AFCCA held that scope of review set forth in Article 69(c)(1)(A) was “related” to the matter of the JAG and the Court's jurisdiction, but “are sufficiently different that we need not decide them together.”⁶² That would have to wait until the AFCCA decided United States v. Zier (Zier II).⁶³

But in Zier II, referring to the jurisdictional issues specified by the Court in Zier I, the AFCCA neatly addressed its jurisdiction: “Having granted Appellant's application for review, we find that no further discussion of the specified issues is required here.”⁶⁴ The Appellant petitioned the C.A.A.F. for review, and that case remains pending discretionary review.⁶⁵ But that wasn't the end of the matter.

Two weeks after specifying the three issues in Zier I discussed above, the AFCCA specified the same issues in United States v. Parino-Ramcharan ⁶⁶ and added a fourth: If the application for grant of review is properly before this Court, and if this Court grants review, what is the scope of the review under Article 69(d), UCMJ?⁶⁷

The Government repeated the arguments that it made weeks earlier in Zier I that “Article 69 seemingly contains a scrivener's error in its internal reference to Article 65(b), so consideration of the absurdity doctrine is warranted.”⁶⁸ “Article 69(c)'s reference to Article 65(b)” remained “hollow” and “seemingly nonsensical” because there was “no prior ‘review’ by the [JAG] under (b), only forwarding instructions.”⁶⁹ But the Government insisted that nothing could be done to correct the obvious scrivener's error because the Government believed other portions of Article 69, UCMJ, were absurd, and when that happens, said the Government, a Court is powerless to fix a typo.⁷⁰

The AFCCA didn't address the specified issues in Parino-Ramcharan either.⁷¹ But after the AFCCA opened Pandora's jar,⁷² the Government naturally wanted to see what was inside.

After the appellant in Parino-Ramcharan petitioned the C.A.A.F. for review of the AFCCA's decision on a motion to suppress, the Government moved to dismiss the petition on the basis that the AFCCA lacked jurisdiction due to the scrivener's error in the MJA 16's version of Article 69(c)(1)(A).

On 1 November 2023, the C.A.A.F. granted review: whether the [JAG] and [AFCCA] lacked jurisdiction to review appellant's case?⁷³ Like Zier II, Parino-Ramcharan is pending a decision at the C.A.A.F.

5) The FY 23 NDAA expanded this Court's jurisdiction over all courts-martial where an accused is convicted of an offense and confined the JAG's review of cases under Article 69, UCMJ, with one narrow exception, to summary courts-martial.

The FY23 NDAA ⁷⁴ altered the statutory framework for the appellate review of courts-martial again. While retaining the same criteria for automatic review by this Court, the new version of Article 66, UCMJ, significantly expanded eligibility for direct appeals of general and special courts-martial convictions under Article 66, UCMJ.

Article 66(b)(1)(A) now provides that this Court has jurisdiction over “a timely appeal from the judgment of a court-martial, entered into the record under [Article 60c(a)], that includes a finding of guilty.”⁷⁵ This Court now has jurisdiction over every general or special court-martial conviction, without reard to the sentence, either automatically or upon timely appeal by the convicted servicemember.

As with direct appeals prior to the enactment of FY23 NDAA, the direct appeals to this Court are timely if submitted before the later of “the end of the 90-day period beginning on the date the accused is provided notice of appellate rights under [Article 65(c)]; or the date set by the [CCA] by rule or order.”⁷⁶ And, just as before, if an appellant entitled to direct review declines to avail himself of this Court's jurisdiction, or if he waives or withdraws his appeal, a judge advocate shall review his case under the four-part framework that remains in Article 65(d)(2)(B).⁷⁷

At the same time, Congress reduced the JAG's authority to review courtsmartial—scrivener's error and all—to a withered husk. The JAG now only has jurisdiction to directly review summary courts-martial.⁷⁸ Importantly, just as was the case previously with MJA 16's version of Article 69(c)(2), the JAG continues to review general and special courts-martial if an accused has waived his right to appeal under Article 61, UCMJ, or declined the detailing of appellate defense counsel.⁷⁹ And his review remains limited to “whether the waiver or withdrawal of an appeal was invalid under the law.”⁸⁰

Thus, the FY23 NDAA put an end to decades of the JAG's substantive review of general and special courts-martial.⁸¹

Finally, the FY23 NDAA provided that the changes to Articles 66 and 69, UCMJ, “shall not apply to—(1) any matter that was submitted before the date of the enactment this act to a [CCA]; or (2) any matter that was submitted before the date of the enactment of this Act to a [JAG] under [Article 69, UCMJ].”⁸²

6) Despite Article 65(c)'s command that the JAG shall provide notice of the right to file an appeal to this Court, Appellant has received no such notice.

The FY23 NDAA requires the JAG to provide an accused notice of the right to appeal to this Court under Article 66(b)(1), UCMJ, which—again—provides this Court jurisdiction over every general and special court-martial where an accused is convicted of an offense.⁸³

The judge advocate review of Appellant's special court-martial was complete on 11 August 2022. His case had not yet been submitted to this Court or the JAG pursuant to Article 69, UCMJ, when FY23 NDAA was enacted on 23 December 2022, and so this Court is not jurisdictionally barred from hearing Appellant's appeal.⁸⁴ So why hasn't the JAG sent Appellant a notice of right to appeal pursuant to the plain language of Article 65(c), UCMJ? We don't know, but, as set forth fully below, it doesn't matter.

We do know the JAG no longer retains the authority to review his special court-martial given that Appellant has neither abandoned, nor waived, nor withdrawn his appeal pursuant to Article 61, UCMJ.⁸⁵

We also know that similarly situated appellants in both the Air Force and the Coast Guard have been sent notices of their right to appeal their convictions to our sister CCAs.⁸⁶

So what are we to do with Appellant's case, and those like it, which had just passed through Article 65's appellate pipeline when Congress again revised the UCMJ's appellate framework with the FY23 NDAA?

II. DISCUSSION

We begin our analysis by rejecting the Government's invitation to accompany the Government through the looking glass to the “Mad Hatter's Tea Party where [Appellant] cannot have more tea because [he] never had any to begin with.”⁸⁷ Remember, it is the Government that has—before multiple Courts—described the plain language of the MJA 16 as “seemingly nonsensical,”⁸⁸ “hollow,”⁸⁹ “concerning,”⁹⁰ “curious,”⁹¹ or “peculiar”⁹² before proceeding to ultimately argue against the invocation of the absurdity doctrine. Because, says the Government, if you just read Articles 64 through 69, UCMJ, enough times, and from the right angle, an obvious scrivener's error recedes into the background, words begin to say what the Government says that they mean, and a rational, alternate appellate scheme reveals itself.

Precisely what that scheme is has proven to be a moving target, which is odd given that the statutory language is fixed. But it doesn't matter whether the Government today believes that Congress, through the MJA 16, effectively repealed the right of servicemembers to apply for review of sub-jurisdictional sentences at general and special courts-martial, intended only to allow servicemembers to appeal cases in which they previously waived or withdrew their appeals or refused appellate defense counsel, or was primarily concerned about preserving the right to a robust review of summary courts-martial. None of these arguments can rationally be attributed to a reading of the language of Articles 65(b) and 69(c), UCMJ.⁹³ No matter how eloquently or ably presented, all of this is jabberwocky.⁹⁴

But in light of the subsequent abrogation of the MJA 16's version of Article 69, UCMJ, and the corresponding expansion of this Court's jurisdiction under Article 66, UCMJ, we need not answer the Government's call to believe “six impossible things before breakfast”⁹⁵ in this case.

We also need not approach the thicket of constitutional and statutory issues that would be raised by remanding this case to the JAG pursuant to the MJA 16's version of Article 69, UCMJ, in the face of Congress's express decision to divest the JAG of jurisdiction over cases involving previously sub-jurisdictional sentences like Appellant's.

Instead, we adopt the well-reasoned Order issued by the AFCCA in United States v. Cooley.⁹⁶ According to the entry of judgment dated 3 June 2022, Major General Cooley was sentenced to a reprimand and forfeiture of $10,910.00 for five months.⁹⁷ The judge advocate review of his case pursuant to Article 65(d), UCMJ, was completed on 4 November 2022—more than a month before the FY23 NDAA amended Article 66, UCMJ.⁹⁸

But the AFCCA held that once that statute was amended, the CCAs were afforded jurisdiction “over a timely appeal from the judgment of a court-martial entered into the record pursuant to Article 60c(a), UCMJ, that includes a finding of guilty.”⁹⁹ After all, the AFCCA reasoned, Major General Cooley's case didn't “fall into either category that Congress specifically excepted from the application of the expanded direct appeal rights under Article 66, UCMJ: as of 23 December 2022, Appellant's case had not previously been submitted to this court, and he had not submitted his case for review by TJAG pursuant to Article 69, UCMJ (2019 MCM)—although he was still well within the one-year period of the completion of the Article 65, UCMJ, review[.]”¹⁰⁰ The AFCCA concluded it had jurisdiction in Cooley and we agree with our learned colleagues at the AFCCA.

But there is a wrinkle in this case. The Air Force issued Major General Cooley a notice of appellate rights on 26 March 2023, and he submitted his notice of direct appeal to the AFCCA on 30 April 2023—well within the 90-day period established by Article 66(c)(1)(A). But the Government in Appellant's case apparently never sent the notice of appeal required by Article 65(c), UCMJ. So what are we to do?

After reminding ourselves that we are a Court of limited jurisdiction defined entirely by statute,¹⁰¹ and that statutory construction begins—and often ends—with the plain meaning of a statute,¹⁰² we turn to our jurisdictional statute—Article 66, UCMJ.

Article 66(b)(1)(A) now affords this Court jurisdiction over a timely appeal from the judgment of a court-martial entered into the record under Article 60c(a), UCMJ, that includes a finding of guilty.¹⁰³ An appeal is timely if submitted within 90 days an accused is provided notice of appellate rights under Article 65(c), UCMJ, or “the date set by the Court of Criminal Appeals by rule or order.” Like AFCCA, we note that Congress has further cabined our jurisdiction by denying this Court jurisdiction over cases that were previously reviewed by the JAG or this Court.¹⁰⁴

And that makes sense. Appellant shouldn't get two bites at this Court's apple. But we hold today that he does get one.

“Our superior court has․likened service courts to ‘the proverbial 800-pound gorilla when it comes to their ability to protect an accused.’ ”¹⁰⁵ “A clearer carte blanche to do justice would be difficult to express.”¹⁰⁶ But we are also reminded, as so eloquently stated by Judge Wiss, that “[n]o court is free to act beyond the perimeter of its legal mandate, whether acting on behalf of an individual accused or on behalf of the people through the prosecution. There are some places where even ‘the proverbial 800-pound gorilla’ is not free to roam.”¹⁰⁷

This is not one of those places. First, because Appellant was convicted of an offense, his case is eligible for direct review under Article 66(b)(1), and Article 65(c), UCMJ, affords the JAG no discretion to withhold a notice of right to appeal in such a case.¹⁰⁸ Elsewhere in Article 66, UCMJ, Congress has vested the JAG with the discretion to invoke other aspects of this Court's jurisdiction, such as whether to appeal a sentence under Article 66(b)(2), UCMJ, but for courts-martial involving a conviction he “shall” put a notice of the right to appeal in the U.S. mail.¹⁰⁹ Congress didn't even give the JAG discretion over the class of mail that he must use—certified first class.¹¹⁰

Like the forwarding of a record of trial, the placement of a notice of the right to appeal in the U.S. mail is a “ministerial act, routinely accomplished in a brief period of time in the absence of special circumstances.”¹¹¹ It is not akin to a certificate of appealability where the JAG exercises a gate-keeping role.¹¹²

Further, the failure to notify an appellant of his right to appeal may implicate an appellant's right to due process, and we fail to see how the failure to notify an appellant of his right to appeal could result in prejudice to anyone but the Government.¹¹³ But because we ultimately determine that Appellant's appeal was timely submitted, we need not reach these questions either. In this case, the JAG's apparent failure to perform his ministerial role in Appellant's case arguably meant only that the 90-day period set forth in Article 66(c)(1), UCMJ, hadn't run before he submitted his appeal to this Court.¹¹⁴

While we suspect the JAG's inaction in this case is likely the result of unwarranted confusion over the effective date of the FY23 NDAA,¹¹⁵ Congress has demonstrated the ability to draft the UCMJ to limit the appellate rights of servicemembers if it did not intend for a statute to have immediate effect. Indeed, some the very first cases submitted to the Court of Military Appeals involved dismissing appeals in courts-martial that began before the UCMJ's effective date of 31 May 1951.¹¹⁶ Congress didn't adopt similar language in the FY23 NDAA, and instead restricted this Court's jurisdiction by foreclosing review of only two narrow categories of cases.¹¹⁷

Second, Congress left it to this Court to determine, either through rule or order, the timeliness of an appeal under Article 66, UCMJ.¹¹⁸

Appellant submitted his appeal to this Court on 4 August 2023—one week before the expiration of the one-year period he had to submit an appeal to the JAG under the now-abrogated version of Article 69(b), UCMJ. As such, his case was not yet final under either R.C.M. 1209, Article 73, or Article 76, UCMJ.¹¹⁹

As ordered below, and in the absence of a notice of right to appeal, it is the determination of this Court that all appeals submitted within one year of judge advocate review under the MJA 16's version of Article 65, UCMJ, will be timely pursuant to Article 66(c)(1)(B).

Having concluded that we have jurisdiction over Appellant's case pursuant to Article 66(b)(1)(A), and that his appeal is timely pursuant to both Article 66(c)(1)(A)-(B), Appellant's case is docketed.

We will address the merits of Appellant's case in due course. Accordingly, it is, by the Court, this 9th day of April 2024,

ORDERED:

1. That Appellant's case is docketed pursuant to Article 66(b)(1), UCMJ.

2. That in the absence of a notice of right to appeal, an appeal submitted to this Court pursuant to Article 66(b)(1) shall be considered timely if it is submitted to this Court within one year of completion of review pursuant to Article 65, UCMJ.¹²⁰

3. That Appellee will submit a responsive brief on the merits of Appellant's case within 30 days of this Order.

FOR THE COURT:

MARK K. JAMISON Clerk of Court

Copy to:

Ms. Payton-O'Brien;

Ms. Harvey;

45 (LCDR Fontenot);

46 (LT Noveroske, Maj Blair);

40;

02

FOOTNOTES

1.   10 U.S.C. § 912a (2019).

2.   10 U.S.C. § 866(b)(1)(2016).

3.   10 U.S.C. § 865(d)(1)(2016) (“A review conducted under this subsection may be conducted by an attorney within the Office of the Judge Advocate General or another attorney designated under regulations prescribed by the Secretary concerned.”) Appellant's case was initially reviewed by the Regional Review Officer at Camp Pendleton, California, but we will refer to this as review within the Office of the Judge Advocate General (OJAG) in order to hew to the language of the relevant statutes and for simplicity's sake.

4.   10 U.S.C. § 869(a)(2016).

5.   10 U.S.C. § 866(b)(1)(A)(2022).

6.   10 U.S.C. § 869(a)(1)(2022).

7.   Gov't Br. at 11.

8.   Def. Supp. Br. at 8.

9.   In re Dipietro, No. 20-3629, 2022 U.S. App. LEXIS 7854 (2d Cir. Mar. 25, 2022) (citing Henrietta D. v. Giuliani, 246 F.3d 176, 179 (2d Cir. 2001)).

10.   See, e.g., United States v. Arness, 74 M.J. 441, 444 (C.A.A.F. 2015).

11.   Dep't of Defense, Report of the Military Justice Review Group 634-35 (2015) (hereinafter MJRG Report).

12.   Id. at 636.

13.   Id.

14.   Id.

15.   Id.

16.   Id. at 639-40.

17.   Int'l Ass'n of Fire Fighters, Loc. 365 v. City of E. Chicago, 56 F.4th 437, 455 (7th Cir. 2022) (Easterbrook, J. concurring).

18.   S. Res. 2943, 114th Cong., at 1587-90 (2016).

19.   S. REP. NO. 114-255, at 610 (2016).

20.   H.R. REP. NO. 114-840, at 1528 (2016).

21.   Id. at 939 (emphasis added).

22.   “A scrivener's error exists only if, after reviewing the structure, language, and subject matter of the statute in detail, the court finds no plausible purpose of the provision at issue when read holistically with the rest of the statute.” United States v. Kempter, 29 F.4th 960, 969-970 (8th Cir. 2022).

23.   10 U.S.C. § 865(b) (2016).

24.   Id.

25.   Id.

26.   Id. at § 865(b)(2)(B) (2016).

27.   Id. at § 865(d) (2016).

28.   10 U.S.C. § 869(a) (2016).

29.   10 U.S.C. § 869(b) (2016).

30.   “Statutory construction is a holistic endeavor,” Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60 (2004) (citation omitted), and “[i]n ascertaining the plain meaning of a statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.” McCarthy v. Bronson, 500 U.S. 136, 139 (1991); Appalachian Power Co. v. EPA, 249 F.3d 1032, 1042 (D.C. Cir. 2001).

31.   10 U.S.C. § 869(d)(1) (2016).

32.   10 U.S.C. § 866(b)(1)(D) (2016).

33.   MJRG Report at 635 (citation omitted).

34.   10 U.S.C. § 869(a) (2016).

35.   10 U.S.C. § 869(d)(1)(A) (2016).

36.   See, e.g., United States v. Lauderdale Cty., 914 F.3d 960, 962 n.2 (5th Cir. 2019)(“The reference to ‘paragraph (1)’ is presumably a scrivener's error that should be read ‘paragraph (a)’—as there does not appear to be a paragraph (1) in the associated statutory scheme to which it could plausibly be referring, and it appears quite clear that the intended reference to paragraph (a).”); United States v. Fitzgerald, 906 F.3d 437, 455-56 (6th Cir. 2018)(Griffin, J. dissenting).

37.   United States v. McPherson, 81 M.J. 372, 390 (C.A.A.F. 2021) (Ohlson, C.J. dissenting) (citation omitted); Gregory v. Comm'r, 69 F.4th 762, 772 (11th Cir. 2023)(“A court may disregard or judicially correct a statutory provision if failing to do so would result in a disposition that no reasonable person could approve.”)(11th Cir. 2023)(citing Antonin Scalia & Bryan A. Garner, Reading the Law: The Interpretation of Legal Texts, 234 (2012)(cleaned up); United States v. Reiss, 278 Fed. Appx. 991, 992 (11th Cir. 2008) (When the plain language of a statute is ambiguous or leads to absurd results, we may consult legislative history to discern congressional intent.”); Goswami v. Am. Collections Enter., 377 F.3d 488, 492 (5th Cir. 2004) (“In interpreting statutes we do not look beyond the plain meaning of the statute unless the statute is absurd or ambiguous.”).

38.   Grand Trunk W. R.R. Co. v. United States DOL, 875 F.3d 821, 829 (6th Cir. 2017) (citation omitted); Schroeder ex rel. United States v. United States, 793 F.3d 1080, 1085 (9th Cir. 2015).

39.   Grand Trunk, 875 F.3d at 829 (emphasis in original) (citation omitted) (cleaned up).

40.   Manual for Courts-Martial, United States (2019 ed.) (MCM), App. 2, at A2-29.

41.   United States v. Romano, 46 M.J. 269, 275 (C.A.A.F. 1997).

42.   United States v. Brown, 79 M.J. 833 (N-M. Ct. Crim. App. 2020) (en banc).

43.   Id. at 836.

44.   Id. at 837.

45.   Gov't Br. at 7, United States v. Brown, No. 20190050 (N-M. Ct. Crim. App Mar. 25, 2020).

46.   Id. at 7 (citing 10 U.S.C. § 869(b),(d) (2016)).

47.   United States v. Brown, 81 M.J. 1 (C.A.A.F. 2021).

48.   Id.

49.   Senior Judge Effron was sitting pursuant to Article 142(e)(1)(ii), UCMJ, due to a vacancy on the C.A.A.F..

50.   Id. at 6.

51.   Id. at 6.

52.   See, e.g., United States v. Wheeler, 83 M.J. 581, 583 (N-M. Ct. Crim. App. 2023) (noting case was reviewed pursuant to Article 65(d), UCMJ, and certified to the CCA pursuant to Article 69, UCMJ); United States v. Tate, No. ARMY 20200590, 2024 CCA LEXIS 108 (A. Ct. Crim. App. Mar. 8, 2024); United States v. Diaz, No. 202100090, 2023 CCA LEXIS 83 (N-M. Ct. Crim. App. Feb. 21, 2023); United States v. Martin, No. 202100089, 2023 CCA LEXIS 82 (N-M. Ct. Crim. App. Feb. 21, 2023); United States v. Csady, No. ACM 39869, 2021 CCA LEXIS 516 (A.F. Ct. Crim. App. Sep. 30, 2021).

53.   See also, United States v. Brown, 84 M.J. 124 (C.A.A.F. 2024) (“Upon application of Appellant, the [JAG] of the Coast Guard sent the case to the United States Coast Guard Court of Criminal Appeals (CCA) pursuant to Article 69(d), UCMJ.”) (citation omitted).

54.   Unpublished Order at 1, United States v. Zier, ACM No. 21014 (A.F. Ct. Crim. App. Dec. 22, 2022).

55.   Gov't Br. at 6, United States v. Zier, ACM No. 21014 (A.F. Ct. Crim. App. Jan. 27, 2023).

56.   Id. at 6-8.

57.   10 U.S.C. § 865(d) (2016).

58.   10 U.S.C. § 865(d) (2016).

59.   10 U.S.C. § 865(d)(3) (2016).

60.   10 U.S.C. § 869(c)(1)-(2) (2016).

61.   United States v. Zier, No. ACM 21014, 2023 CCA LEXIS 178, at *17 (A.F. Ct. Crim. App. Apr. 18, 2023).

62.   Id. at *18.

63.   United States v. Zier, No. ACM 21014, 2024 CCA LEXIS 3 (A.F. Ct. Crim. App. Apr. 18, 2024).

64.   Id. at *4 n.6.

65.   United States v. Zier, No. 24-0085/AF, 2024 CAAF LEXIS 101 (C.A.A.F. Feb. 21, 2024).

66.   No. ACM 40171, 2023 CCA LEXIS 314 at *2 n.2 (A.F. Ct. Crim. App. Jul. 25, 2023).

67.   Id.

68.   Brief of Appellee at 4, Parino-Ramcharan, 2023 CCA LEXIS 314.

69.   Id. at 5.

70.   Id. at 8 (citing McPherson, 81 M.J. at 382).

71.   Id.

72.   See generally, United States v. Watson, 386 F.3d 304, 308 n.2, (1st Cir. 2004) (“Although the more common allusion is to ‘Pandora's box,’ that usage is apparently erroneous. Zeus, determined to avenge himself on Prometheus, presented this femme fatale to Epimetheus (Prometheus' brother), first arming her with a jar containing all the evils of the world. After Epimetheus foolishly accepted the gift, Pandora proceeded to open the jar, thereby loosing a panoply of torments upon humanity.”) (citation omitted).

73.   Parino-Ramcharan, 2023 CAAF LEXIS 773.

74.   Pub. L. No. 117-263, § 544(b)(1)(A), 136 Stat. 2395 (Dec. 23, 2022).

75.   10 U.S.C. § 866(b)(1)(A) (2022).

76.   10 U.S.C. § 866(c)(1)(A)-(B) (2022).

77.   10 U.S.C. § 865(d)(2)(B) (2022).

78.   10 U.S.C. § 869(a)(1) (2022).

79.   10 U.S.C. § 865(b)(2)(B) (2022); 10 U.S.C. § 869(c)(2) (2022).

80.   10 U.S.C. § 869(c)(2) (2022).

81.   JAG review was initially restricted to general courts-martial with sub-jurisdictional sentences when the UCMJ was enacted in 1950. MJRG Report at 634 (citation omitted). The Military Justice Act of 1968 expanded the JAG's review under Article 69, UCMJ, to include special and summary courts-martial. Id.

82.   136 Stat. 2395 § 544(d) (2022).

83.   10 U.S.C. § 865(c)(1) (2022); 10 U.S.C. § 866(b)(1) (2022).

84.   National Defense Authorization Act for Fiscal Year 2023 [NDAA], PUB. L. No. 117-263, § 525, 136 Stat. 2395 § 544(d) (2022).

85.   10 U.S.C. § 869(c)(2) (2022).

86.   See, United States v. Rose, No. 1489, 2023 CCA LEXIS 551 (C.G. Ct. Crim. App. Dec. 19, 2023); Unpublished Order at 1, United States v. Cooley, ACM No. 40376 (A.F. Ct. Crim. App. Jul. 7, 2023).

87.   See generally, Sommer v. State, 465 So. 2d 1339, 1347 (Fla. Dist. Ct. App. 1985) (Sharp, J. dissenting).

88.   Brief of Appellee at 6, United States v. Zier, ACM No. 21014 (A.F. Ct. Crim. App. Jan. 27, 2023).

89.   Id.

90.   Gov't Br. at 13.

91.   Oral Argument at 20:56, United States v. Parino-Ramcharan, No. 23-0245/AF (C.A.A.F. Mar. 6, 2024).

92.   Id. at 21:39.

93.   McPherson, 81 M.J. at 380 (emphasis in original)(citation omitted).

94.   See generally, Williamson v. Hawai'i Paroling Auth., 97 Haw. 183, 196 (Haw. 2001) (Acoba, J. dissenting) (”Jabberwocky is one of Lewis Carroll's best known and most frequently discussed poems. The poem itself is full of nonsensical words, but Carroll weaves them in in a way that cajoles the reader to coax a story out of what would ordinarily be nonsense. ‘Jabberwocky’ has come to be defined as a ‘meaningless speech or writing.’ ”) (internal citation omitted).

95.   See generally, Williamson v. Recovery Ltd. P'Ship, 826 F.3d 297, 305 (6th Cir. 2016) (citing LEWIS CAROL, THROUGH THE LOOKING-GLASS, AND WHAT ALICE FOUND THERE 100(1872)).

96.   Unpublished Order at 1, United States v. Cooley, ACM No. 40376 (A.F. Ct. Crim. App. Jul. 7, 2023).

97.   Id.

98.   Id.

99.   Id.

100.   Id. at 6.

101.   Arness, 74 M.J. at 442.

102.   United States v. Perkins, 78 M.J. 550, 563 (N-M. Ct. Crim. App. 2018).

103.   10 U.S.C. § 866(b)(1)(A) (2022).

104.   See NDAA, PUB. L. No. 117-263, § 525, 136 Stat. 2395 § 544(d) (2022).

105.   United States v. Hale, 76 M.J. 713, (citing United States v. Parker, 36 M.J. 269, 271 (C.M.A. 1993)).

106.   United States v. Claxton, 32 M.J. 159, 162 (C.A.A.F. 1991).

107.   Parker, 36 M.J. at 273 (Wiss, J., concurring in part and in the result).

108.   10 U.S.C. § 865(c) 10 U.S.C. § 866(b)(1)(A) (2022).

109.   10 U.S.C. § 865(c)(1) (2022).

110.   Id.

111.   United States v. Simon, 64 M.J. 205, 207 (C.A.A.F. 2006).

112.   See, e.g., 28 U.S.C. § 2253(c); Crawford v. United States, 805 Fed. Appx. 758, 760 (11th Cir. 2020) (holding a certificate of appealability is a jurisdictional prerequisite).

113.   Wolfe v. Randle, 267 F.Supp. 2d 743, 749 (S.D. Ohio 2003) (citing Peguero v. United States, 526 U.S. 23 (1999)).

114.   See, e.g., United States v. Santiago, 56 M.J. 610, 615 (N-M. Ct. Crim. App. 2001).

115.   The Chief Judge of the C.A.A.F. has recently noted we “have entered an era where there are many changes afoot in the military justice system.” United States v. Flores, No. 23-0198, 2024 CAAF LEXIS 162, at *16 (C.A.A.F. Mar. 14, 2024) (Ohlson, C.J. dissenting). And this case proves the point that mischief will result absent crisp, clear guidance. We provide that guidance here by scrupulously adhering to the legal and analytical obligations that recent amendments to the UCMJ have placed on this Court.

116.   See, e.g., United States v. Sonneschein, 1 C.M.R. 64 (C.M.A. 1951); United States v. Musick, 3 U.S.C.M.A. 440 (C.M.A. 1953).

117.   136 Stat 2395 § 544(d) (2022).

118.   10 U.S.C. § 866(c)(1)(B) (2022).

119.   10 U.S.C. § 873; 876 (2022).

120.   10 U.S.C. § 865 (2016).