Certi-fest

There appear to be 32 cases pending decision at CAAF. One is an interesting writ-appeal case in which the court ordered briefing on these two issues:

I. WHETHER THE ARMY COURT LACKED JURISDICTION TO ENTERTAIN APPELLANT’S WRIT OF HABEAS CORPUS.

II. WHETHER THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES POSSESSES HABEAS CORPUS JURISDICTION AFTER A COURT-MARTIAL IS FINAL UNDER ARTICLE 76, UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 876 (2018), IN NONCAPITAL CASES WHEN A PUNITIVE DISCHARGE OR DISMISSAL HAS BEEN EXECUTED.

United States v. Adams, __ M.J. __, No. 25-0217/AR, 2025 CAAF LEXIS 679 (C.A.A.F. Aug. 14, 2025) (order).  Briefing should have been complete mid-September, so it seems likely that CAAF will issue a decision soon.

Of the remaining 31 cases pending decision, 16 are before CAAF upon certification by a Judge Advocate General (or an official performing the duties of a Judge Advocate General) and 15 are before CAAF upon a granted petition of an accused.  That statistic is a bit misleading because 3 of the 16 certified cases appear to be mere trailers to United States v. Malone, No. 25-0140/AR, in which CAAF heard oral argument on Oct. 7; the case concerns waiver and multiplicity. So the 16 certified cases are likely to yield only 13 opinions. Also, one of the certified issue cases--United States v. Mendoza, __ M.J. __, No. 25-0244/AR, 2025 CAAF LEXIS 690 (C.A.A.F. Aug. 20, 2025)—is the black swan of an issue certified upon request of the defense.

Eight of the certifications were from the Army, 6 from DAF, and the remaining 2 from DON.
Of the 15 granted cases, one appears to be a mere trailer to United States v. Abdullah, __ M.J. __, No. 25-0070/AR, 2025 CAAF LEXIS 426 (C.A.A.F. May 30, 2025) (order), which presents the issue: “WHETHER A RETIRED APPELLATE JUDGE AND AN APPELLATE JUDGE ON TERMINAL LEAVE IMPERMISSIBLY PARTICIPATED IN AN EN BANC DECISION OF THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS.”
So, the 15 granted cases will likely yield 14 decisions.

Six of the granted cases are from DAF, 5 from the Army, and 4 from DON.

Together, the pending writ-appeal, the certifications, and the grants are likely to yield 28 decisions.  During its October 2024 Term, the last 2 cases that CAAF both granted and decided during that Term were granted on January 29, 2025. So CAAF still has about another 3 months to add cases to its docket for decision this Term.  And the Judge Advocates General still have about another 3 months to add cases to CAAF’s docket for decision this Term.

Last Term, CAAF granted review of 7 cases between October 24, 2024, and January 29, 2025. If CAAF were to grant the same number of cases this year, then—absent additional certifications—we would expect 35 opinions of the court during the October 2025 Term.  The number of opinions of the court last Term: 36. The number of opinions of the court during the October 2023 Term: 31.  October 2022 Term: 25.

Dwight Sullivan

The views expressed in this guest post are the personal views of the author and do not necessarily reflect the views of and should not be imputed to any other person or entity.

PS: