Fidell: THE CASE FOR TERMINATION OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

8/20/2023

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Scott

8/20/2023 15:08:44

I had to wonder what the first footnote referred to. Turns out a civil action between two jewelry companies with the concluding line: "Diamonds are forever, but this case is through because the motion to dismiss is GRANTED."

Trial Counsel

8/20/2023 16:14:19

With respect to Prof. Fidell, this proposal is insane.

I never felt like my clients got a fairer shake on appeal than when I argued their cases at CAAF. And without getting into privileged conversations, neither did they.

Rather than arguing in front of three O-5's/O-6's at the CCA who either know the military judge or counsel whose errors are being reviewed or are up for promotion and don't want to "rock the boat," at CAAF, my clients' cases were instead being heard by *real* judges -- civilians with impressive achievements inside and *outside* the military who didn't care *at all* about how they were perceived by the military industrial complex.

One need not look further than the recent case of Gilmet to illustrate the point. An O-5 who threatens an O-3's career is basically downplayed by the NMCCA. By contrast, take a look at how CAAF treated the issue: complete reversal based on unlawful command influence: one of the major problems Prof. Fidell correctly observes has often plagued military justice.

I haven't even started with the quality of opinion writing. Anyone who doubts that the CAAF churns out more well researched and persuasive opinions than a CCA hasn't practiced long enough in our system.

I have a different proposal: eliminate the CCAs and vest all military appellate jurisdiction in CAAF.

Brenner Fissell

8/21/2023 20:41:24

Before calling a piece of scholarship "insane," one ought to at least read it. Your point about the "civilian-ness" of the CAAF judges is directly addressed in the article in a long section entitled "trump l'oeil civilians."

Trial Counsel

8/22/2023 10:43:16

I saw that he recommended sending everything to the DC Circuit, so that point wasn't lost in me. Still, I think it's a bad idea for reasons I alluded to above: those judges generally have no military experience at all.

CAAF judges, by contrast, typically have significant military and civilian experience. Plus, unlike the DC Cir, their small caseload gives them more time to thoughtfully review cases which they are better positioned to address anyway.

Brenner Fissell

8/22/2023 13:21:33

There is also a section directly addressing that point, called "vanishing arcana." I will ask directly: have you read this article before commenting on it?

Trial Counsel

8/22/2023 14:18:52

As I said, I skimmed the article and understand his general points: CAAF doesn't hear too many cases anymore, military law is not particularly arcane, and besides, other courts can - and have been doing - the stuff CAAF has been doing.

I go back to my original post: he's missing the bigger issues, which is not a "CAAF problem" as much as it is a "CCA problem." In my experience, military judges are not particularly expert their jobs as they tend to come from generalist backgrounds. We need really smart judges - like the ones at CAAF - to supervise the lot.

Getting rid of CAAF at this point is a very bad idea.

Philip Cave link

8/21/2023 00:39:47

TC.

As it happens, there has been vibrant discussion amongst us about disbanding the CCAs and expanding CAAF to nine judges who would sit in panels and then direct review on petition to the Supremes.

Some hint of this is found in Gene's article: "Is There a Crisis in MIlitary Appellate Justice?" 12 Roger Williams U. L. Rev. 820 (2007)
https://docs.rwu.edu/cgi/viewcontent.cgi?article=1371&context=rwu_LR

The whole article is worth the read, but you can jump to page 823 for some hints.

Judge Sentelle is one of the Article III judges who was invited to fill in at CAAF. A quick Lexis search of his name shows at least 13 cases he sat on. He wrote the opinion in USvNiles, 45 MJ 455 (1996). He seems to have grasped, perhaps with some help, the concepts of petitioning for a new trial in military practice and the nuances of delayed preferrals. He also wrote the opinion in Lonetree, He seems to have understood Article 31, for example.

As you read CAAFs opinions, how many are related to in the weeds / inside baseball military knowledge schtuff? Better yet, scroll down CAAF's grants and summary disposition page (https://www.armfor.uscourts.gov/grants_disp.htm) and note how many of the granted issues require specialized military knowledge.
Ah, but those are weeded out at the CCAs specialized team of judges. True, but Article iii judges seem able to work their way through very complex statutes and regulations. Think here about the District judge in Kansas or the 10th, or the same for Article III courts that have a FCI holding military prisoners? Or the judges of the Federal Court of Claims and Federal Circuit. Servicemembers go there for money claims and also have limited ability to challenge the constitutionality of their court-martial conviction which deprived them of money.

This term Judge Hardy has written several opinions, yet he, I think. has the least "experience" in the military and with military justice than the other judges. You can agree or disagree with his opinions, but you can't say he's not gotten up to speed. One would expect that an Article III could get up to speed.

That said, exploring disbanding the CCAs is a worthwhile journal article but on a different topic of appellate reform.

Cheers and "Heaven send thee good fortune.” William Shakespeare, Merry Wives of Windsor. Act 3, Scene 4]

William Cassara

8/21/2023 13:11:09

I disagree with Professor Fidell's ultimate conclusion, but I share his frustration with the number of cases CAAF takes. Yes, there are cases that I have filed that I thought would certainly get a grant, but I also see cases clogging the docket that will yield little to no precedential value. I have argued 51 cases before CAAF. I have found them to be uniquely able to parse the issues that our cases raise (even when I disagree with their conclusions.)
Perhaps a better solution is to expand the court to two standing panels of five, or panels of 3 such as the Court of Appeals for the Federal Circuit. More cases, not less, is the solution IMO.

8/25/2023 08:44:55

Public access to the courts was a topic for the town hall. Let's meet half way. Move the CCA off Fort Belvoir back to Kent street, or wherever. Likewise for the other services.

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Fidell: THE CASE FOR TERMINATION OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

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