Pullings pled guilty to sexual assault of a child and sexual abuse of a child specifications and was sentenced to thirteen years of confinement, reduction to E-1, total forfeitures, and a dishonorable discharge. Based on the pretrial agreement, the convening authority approved only eight years of confinement and disapproved the total forfeitures.
The issue Pullings raised involved the conditions of his post-trial confinement. As is common at many bases, the Air Force paid a local jail to serve as the confinement facility for pending transfer to another military facility. Pullings raised violations of Article 55, UCMJ and the Eighth Amendment. His claims of cruel and unusual punishment referenced a number of distinct complaints, including contaminated drinking water, moldy food, food poisoning, sewage water leaking into his cell, broken toilets, lack of sunlight, withholding of pain medicine, medication for depression and anxiety, and failure to alleviate symptoms from Raynaud’s Syndrome. Pullings sent various complaints both to the civilian confinement facility and to his Air Force chain-of-command.
Pullings submitted declarations and the government submitted its own declarations, but AFCCA decided it did not need to order a DuBay hearing to make findings of fact because even if the documentary evidence submitted contained inconsistencies, resolving those disputes in Appellant’s favor would not result in relief to Appellant under the cruel and unusual punishment caselaw.
The case raised appellate review questions because Pullings did not raise his confinement conditions in his post-trial submissions to the convening authority, so they were not part of the record. Judge Maggs opinion declined to address whether it was appropriate to consider matters outside the record or not because the result of the case would be the same regardless. CAAF also agreed that there was no need for a DuBay hearing for further fact finding. CAAF then looked at the merits of the Eighth Amendment and Article 55 claims and determined that Pullings had not shown government officials acted with deliberate indifference.
Judge Hardy concurred. He wrote separately to address a topic that comes up frequently in CAAF’s cases over the last several years, the scope of CAAF’s ability to consider the case in the first place. Judge Hardy focused on United States v. White, 54 M.J. 469 (2001) which explicitly found CAAF had the jurisdiction to consider post-conviction Eighth Amendment claims. The White court determined Article 67 gave CAAF jurisdiction because the statutory grant of authority “with respect to the findings and sentence” encompassed more than the authority merely to affirm or set aside a sentence, but that it also included the authority to ensure the severity of the adjudged and approved sentence was not unlawfully increased by prison officials and that it was carried out in a way that did not violate Article 55 and the Eighth Amendment. A unanimous White court based its decision in part on the fact that the Feres doctrine denied servicemembers civil remedies for constitutional violations.
Judge Hardy took direct aim at White, arguing that as an Article 1 court and under Clinton v. Goldsmith, 526 U.S. 529 (1999), CAAF lacked the ability to expand its congressional grant of authority. Simply put, because Pullings’ complaints involved post-trial conditions, CAAF lacked jurisdiction to consider them. Judge Hardy left open the question whether the CCAs could consider post-trial confinement claims, but opined that they could not under Article 66(d)(1)(A). Judge Hardy considered stare decisis and reasoned that White should be overruled because it was poorly reasoned, is unworkable, that there are no reliance interests undermined by overturning White, and that overturning White would not undermine public confidence in the law. Interestingly, Judge Hardy references the Feres doctrine issue and quotes Justice Scalia opining that “Feres was wrongly decided. . . .” United States v. Johnson, 481 U.S. 681, 700-01 (1987) (Scalia, J, dissenting). But Judge Hardy acknowledges that Feres remains good law and he simply concludes even if Feres is not overruled, that does not justify a judicially created scheme that gets around Article 67’s statutory bounds.
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