Certi-fest

10/24/2025

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:

3 Comments

Scott

10/24/2025 18:49:10

This is very interesting. Reminds me of the old "by the numbers" CAAFLOG posts of yesteryear. Or the year-end wrap ups.

I would be curious what percentage of CCA cases in which the appellant prevails are being certified. Seems like a rather high percentage lately. It may be difficult to calculate because there are different levels of relief before the CCAs.

Cloudesley Shovell

10/25/2025 09:50:31

The Adams case on writ jurisdiction looks interesting. Unfortunately my google-fu isn't working too well and I cannot find any briefs on CAAF's website.

Although my personal opinion is that Congress, thru Art. 76, intended to extinguish all military court jurisdiction upon finality, writ or no writ, the Supreme Court disagrees.

Article 76 codifies the common-law rule that respects the finality of judgments. Schlesinger v. Councilman, 420 U. S. 738, 749 (1975). Just as the rules of finality did not jurisdictionally bar the court in Morgan from examining its earlier judgment, neither does the principle of finality bar the NMCCA from doing so here.

"The Government may ultimately be correct that the facts of respondent’s case are insufficient to set aside the final judgment that Article 76 makes binding.

No doubt, judgment finality is not to be lightly cast aside; and courts must be cautious so that the extraordinary remedy of coram nobis issues only in extreme cases. But the long-recognized authority of a court to protect the integrity of its earlier judgments impels the conclusion that the finality rule is not so inflexible that it trumps each and every competing consideration. Our holding allows military courts to protect the integrity of their dispositions and processes by granting relief from final judgments in extraordinary cases when it is shown that there were fundamental flaws in the proceedings leading to their issuance. The Government remains free to argue that respondent’s is a merely ordinary case that is not entitled to extraordinary relief. But respondent’s entitlement to relief is a merits question outside the scope of the jurisdictional question presented.

US v. Denedo, 556 US 904 (2009).

Very kind regards,
CS

Philip D. Cave link

10/26/2025 15:39:35

Scott: In partial answer, the chart I posted above shows five AFCCA Mendoza-related cases. In three, AFTJAG certified their loss and denied Boren's request for certification. Slayton is there because the AFCCA found factual insufficiency, but the case is pending a joint motion for reconsideration. You can expect certification if AFCCA decides to affirm the initial decision, which favors the appellant. I've put the panel makeup to show the distribution of judges across the five decisions. I'll say no more for the moment, as I am a counsel in Hennessy. But if you have heard the Moore argument, you will note one of the judges asking about Boren.

Of the certified cases going back to last year, only AFTJAG has certified Mendoza related cases. Keep in mind ATJAG certified Mendoza.

Unofficially (meaning I haven't checked my numbers against Dwight's), I see 7-Army, 6-AF, 2-MC since the beginning of last term.

Since 1 October this year, the half-time score is one all AR v. AF. The Ref has yet to decide whether there will be a red or yellow card for a penalty-inducing tackle. She will shortly be talking to the assistant (sideline) refs. It is uncertain if VAR will need to be consulted.

I have not done any other comparison of "Mendoza" certs or certs across the other services. I suspect you will not see many certifications in cases where an appellant lost. Interestingly, we have ATJAG certifying a consequential case for an appellant, and if you go back, AFTJAG certified the very consequential case of Tempia.

More to come on the certification issue.

Cheers.

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Certi-fest

Dwight Sullivan

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