United States v. Brown

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellant
v.
Michael J. BROWN, First Sergeant
United States Marine Corps, Appellee
No. 20-0288
Crim. App. No. 201900050
Argued September 29, 2020—Decided February 12, 2021
Military Judge: Roger E. Mattioli
For Appellant: Lieutenant Colonel Nicholas L. Gannon,
USMC (argued); Major Kerry E. Friedewald, USMC, and
Lieutenant Jennifer Joseph, JAGC, USN (on brief).
For Appellee: Lieutenant Michael W. Wester, JAGC, USN
(argued).
Judge SPARKS delivered the opinion of the Court, in
which Judge MAGGS, and Senior Judge EFFRON,
joined. Judge OHLSON filed a separate dissenting
opinion, in which Chief Judge STUCKY joined.
_______________
Judge SPARKS delivered the opinion of the Court.
This matter is before us as a result of a petition for
extraordinary relief filed by Appellee pursuant to the All
Writs Act, 28 U.S.C. § 1651(a). In his petition for
extraordinary relief in the nature of a writ of mandamus or
writ of prohibition, Appellee, inter alia, asked the United
States Navy-Marine Corps Court of Criminal Appeals to
remove the military judge for bias. The lower court found that
it had potential jurisdiction to entertain Appellee’s writ
petition pursuant to Article 69(d), Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 869(d) (2012). Ultimately, the
lower court granted Appellee’s writ in part and denied in part.
The Judge Advocate General (TJAG) of the Navy then
certified the following issue pursuant to Article 67(a)(2),
UCMJ, 10 U.S.C. § 867(a)(2) (2018): “Did the lower court err
in finding that it had potential jurisdiction?” We answer the
certified issue in the negative and hold that the lower court
United States v. Brown, No. 20-0288/MC
Opinion of the Court
had potential jurisdiction pursuant to Article 69(d), UCMJ,
with respect to consideration of Appellee’s writ petition under
the All Writs Act.
Background
A special court-martial consisting of officer and enlisted
members convicted Appellee, contrary to his pleas, of abusive
sexual contact and disorderly conduct, in violation of Articles
120 and 134, UCMJ, 10 U.S.C. §§ 920, 934 (2012). The
members sentenced Appellee to a reduction in pay grade from
E-8 to E-7.
Prior to acting on the sentence, the convening authority
ordered a post-trial Article 39(a), UCMJ, 10 U.S.C. § 839(a)
(2012), hearing to inquire into Appellee’s allegations as to
whether the military judge properly: (1) declined to provide a
mistake of fact instruction; (2) prohibited trial defense
counsel from presenting evidence of Appellee’s character for
truthfulness; and (3) prohibited trial defense counsel from
rehabilitating a defense witness’s character for truthfulness.
At the Article 39(a), UCMJ, hearing, Appellee moved to
disqualify the military judge on the basis of bias. After
hearing oral argument on that motion, the military judge
denied the motion. The military judge then summarily denied
oral argument on the three issues the hearing was convened
to address. Instead, the military judge stated he would make
his ruling on these issues based on the record and briefs.
Before the military judge could issue his ruling, Appellee
petitioned the lower court for extraordinary relief in the
nature of a writ of mandamus or a writ of prohibition,
requesting that the lower court: (1) remove the military judge
for bias; (2) grant a mistrial; or (3) appoint a special master
to investigate allegations of unlawful command influence.
In Brown v. United States, 79 M.J. 833, 849 (N-M. Ct.
Crim. App. 2020), a divided lower court, en banc, granted the
writ petition in part and denied in part.1 Because Appellee’s
sentence was less than the statutory minimum required to
trigger automatic Article 66(b), UCMJ, 10 U.S.C. § 866(b)
(2012), review, the lower court grappled with whether it had
1 The court granted relief on the issue of bias on the part of the
military judge and ordered his removal from the case.
2
United States v. Brown, No. 20-0288/MC
Opinion of the Court
statutory jurisdiction to entertain the writ petition. Although
Appellee’s sentence was not reviewable under Article 66,
UCMJ, i.e., he was not sentenced to one year or more of
confinement and did not receive a punitive discharge, the
lower court found that TJAG could potentially refer the case
for review, pursuant to Article 69(d), UCMJ. Therefore, the
lower court found potential jurisdiction existed, even though
there were still several conditions precedent to its ultimate
review. The lower court eventually granted a writ of
mandamus removing the military judge from the case after
finding Appellee had demonstrated a clear and indisputable
right to relief because the military judge disallowed oral
argument during the post-trial hearing. In the lower court’s
view, this gave rise to an appearance of bias against Appellee.
The lower court denied the remainder of the writ petition.
Discussion
The certified issue addresses the jurisdiction of the lower
court under the circumstances of this case. Jurisdiction is a
question of law that we review de novo. Howell v. United
States, 75 M.J. 386, 389 (C.A.A.F. 2016). The All Writs Act
grants the power to “all courts established by Act of Congress
[to] issue all writs necessary or appropriate in aid of their
respective jurisdiction and agreeable to the usages and
principles of law.” 28 U.S.C. § 1651(a). The All Writs Act is
not an independent grant of jurisdiction, nor does it expand a
court’s existing statutory jurisdiction. Clinton v. Goldsmith,
526 U.S. 529, 534–35 (1999). Rather, the All Writs Act
requires two determinations: (1) whether the requested writ
is “in aid of” the court’s jurisdiction; and (2) whether the
requested writ is “necessary or appropriate.” Denedo v.
United States, 66 M.J. 114, 119 (C.A.A.F. 2008) (internal
quotation marks omitted). For purposes of answering the
certified question, we need not determine whether the
requested writ was necessary or appropriate. We therefore
address only whether the requested writ is in aid of the lower
court’s jurisdiction.
To determine whether the requested writ is “in aid of” the
lower court’s jurisdiction, we must first determine the scope
and authority for the lower court’s statutory jurisdiction. See
United States v. Kelly, 77 M.J. 404, 406 (C.A.A.F. 2018) (“As
Article I courts, [the courts of criminal appeals] enjoy limited
3
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Opinion of the Court
jurisdiction, and are circumscribed by the Constitution to the
powers specifically granted to them by statute.”); United
States v. Arness, 74 M.J. 441, 442 (C.A.A.F. 2015) (“The courts
of criminal appeals are courts of limited jurisdiction, defined
entirely by statute.”).2 The second determination concerns
whether the requested writ implicates the lower court’s
subject-matter jurisdiction over the case or controversy. See
United States v. Denedo, 556 U.S. 904, 911 (2008) (“As the text
of the All Writs Act recognizes, a court’s power to issue any
form of relief—extraordinary or otherwise—is contingent on
that court’s subject-matter jurisdiction over the case or
controversy.”). To establish subject-matter jurisdiction, the
harm alleged must have had “the potential to directly affect
the findings and sentence.” Howell, 75 M.J. at 390 (internal
quotation marks omitted) (quoting Center for Constitutional
Rights v. United States, 72 M.J. 126, 129 (C.A.A.F. 2013)
(citing Hasan v. Gross, 71 M.J. 416 (C.A.A.F. 2012))).3
The Supreme Court has held that the power to issue writs
“is not confined to the issuance of writs in aid of a jurisdiction
already acquired by appeal.” FTC v. Dean Foods Co., 384 U.S.
597, 603 (1966) (internal quotation marks omitted) (quoting
Roche v. Evaporated Milk Assn., 319 U.S. 21 (1943)). The
power also “extends to the potential jurisdiction of the
appellate court where an appeal is not then pending but may
be later perfected.” Id. As we have explained, “the doctrine of
potential jurisdiction allows appellate courts to issue opinions
in matters that may reach the actual jurisdiction of the court.”
Howell, 75 M.J. at 390 n.4 (emphasis added) (citing Dean
Foods Co., 384 U.S. at 603).
Congress created a bifurcated statutory scheme for the
appellate review of completed courts-martial, depending upon
2 The suggestion, seemingly, by the dissent that the jurisdiction
of Article I courts should be read more narrowly than other federal
courts, is not a principle we discern from our reading of Kelly, 77
M.J. at 406.
3 We easily conclude that the lower court has subject-matter
jurisdiction to order the military judge’s removal for the appearance
of bias as it has the potential to directly affect the findings and
sentence.
4
United States v. Brown, No. 20-0288/MC
Opinion of the Court
the sentence approved by the convening authority. A court of
criminal appeals exercises jurisdiction over a broad range of
cases under Article 66(b), UCMJ, including every case in
which the approved sentence extends to a punitive separation
or confinement for a year or more unless mandatory review is
waived. Because Appellee’s sentence is below the Article
66(b), UCMJ, threshold for mandatory review at the lower
court, the Article 66(b), UCMJ, pathway to appellate review
is unavailable to Appellee.4
Article 69, UCMJ, however, provides a second pathway to
review before the Court of Criminal Appeals for an accused
convicted and sentenced at a special court-martial. Cases not
reviewed by the lower court pursuant to Article 66(b), UCMJ,
such as the instant case tried at a special court-martial, can
still be reviewed by TJAG “upon application of the accused”
for, inter alia, “error prejudicial to the substantial rights of
the accused.” Article 69(b), UCMJ. TJAG can then choose
whether to send the case to the lower court for review under
Article 66, UCMJ. Article 69(d), UCMJ.5
Appellee may yet seek review by TJAG pursuant to Article
69(b), UCMJ. But, at the time of Appellee’s writ petition to
the lower court, any possible action by TJAG was foreclosed
because the military judge had not returned his ruling during
the post-trial hearing and the convening authority had yet to
take action on the sentence. The Government contends that
only after these “ ‘preliminary step[s]’ ” occur can potential
jurisdiction apply. The Government relies upon In re
4 Appellee contends that there is in fact a potential pathway to
the lower court through Article 66(b), UCMJ, because of the
possibility of a mistrial, which would result in a vacation of the
findings and sentence. We find it unnecessary to consider this
argument and express no opinion as to its correctness.
5 The instant case was referred on January 12, 2018. For cases
referred on or after January 1, 2019, pursuant to Article
66(b)(1)(D), 10 U.S.C. § 866(b)(1)(D), an accused is now entitled to
have the courts of criminal appeals review his case with respect to
matters of law if the accused applies for review from a decision of
TJAG under Article 69(d)(1)(B) “and the application has been
granted by the Court.” Thus, it is no longer the case that only those
cases that TJAG elects to refer to the court of criminal appeals
under Article 69(d), UCMJ, may be heard by the lower court.
5
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Opinion of the Court
Tennant, 359 F.3d 523, 529 (D.C. Cir. 2004), where the United
States Court of Appeals for the District of Columbia Circuit
cautioned that it was inappropriate to invoke mandamus
“solely on the basis that events might lead to a filing before
an agency or lower court, which might lead to an appeal to
this court.” But Tennant is distinguishable. The court in
Tennant concluded that it did not have potential jurisdiction
because there was no case or other proceeding pending in a
lower court or agency at the time of the application for an
extraordinary writ. Id. The court in Tennant emphasized
that, in contrast, “[o]nce there has been a proceeding of some
kind instituted before an agency or court that might lead to
an appeal, it makes sense to speak of the matter as being
‘within [our] appellate jurisdiction’—however prospective or
potential that jurisdiction might be.” Id. (alteration in
original) (citation omitted). Consistent with this position, we
have often found that potential future actions on the part of
other official actors are sufficient for potential jurisdiction in
proceedings that have already begun.
In Hasan, 71 M.J. 416, we considered a petition for a writ
of prohibition to prevent enforcement of the military judge’s
order to forcibly shave the appellant’s beard prior to trial or,
in the alternative, a writ of mandamus ordering removal of
the military judge. At the time of the writ petition, it was
unknown whether the appellant would be convicted, and
whether the case would be eligible for mandatory review
under Article 66(b), UCMJ.6 Although our opinion did not
discuss the lower court’s statutory jurisdiction, because there
were no findings or sentence, the lower court’s only statutory
basis was potential jurisdiction if the appellant was
eventually convicted and sentenced.
6 At the time of the appellant’s offenses, the convening authority
had “clear unfettered discretion … to modify the findings and
sentence.” United States v. Nerad, 69 M.J. 138, 145 (C.A.A.F. 2010);
see also Article 60(c)(1), UCMJ, 10 U.S.C. § 860(c)(1) (2012) (“The
authority under this section to modify the findings and sentence of
a court-martial is a matter of command prerogative involving the
discretion of the convening authority.”). Therefore, the convening
authority had the ability to modify the sentence or disapprove the
findings and sentence entirely.
6
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Opinion of the Court
Subsequently, in LRM v. Kastenberg, 72 M.J. 364, 367–68
(C.A.A.F. 2013), we held the lower court erred in finding it
lacked jurisdiction to consider an alleged sexual assault
victim’s petition for a writ of mandamus to compel the
military judge to allow her special victims’ counsel to be heard
on matters involving her rights under Military Rules of
Evidence 412 and 513. The lower court had jurisdiction
notwithstanding the pretrial procedural posture of the case,
since “[a] writ petition may be ‘in aid of’ a court’s jurisdiction
even on interlocutory matters where no finding or sentence
has been entered in the court-martial.” Id. at 368 (citation
omitted). Like Hasan, it was unknown whether the accused
would be convicted, and, if so, what findings and sentence
would be approved by the convening authority. Because there
were no findings or sentence, the lower court’s statutory basis
was potential jurisdiction if the accused was eventually
convicted and sentenced.
Similarly, in Howell, 75 M.J. at 390, we held that the
lower court had potential jurisdiction to grant a writ of
prohibition after findings and sentence had been reached and
the record of trial authenticated but before the convening
authority had acted. Although the convening authority had
not yet approved the sentence, which if approved would
trigger automatic Article 66(b), UCMJ, review, we explained
that “the doctrine of potential jurisdiction allows appellate
courts to issue opinions in matters that may reach the actual
jurisdiction of the court.” Howell, 75 M.J. at 390 n.4. Because
Howell’s case could still reach the statutory jurisdiction of the
lower court, there was potential jurisdiction even though the
convening authority could potentially disapprove the findings
and sentence entirely and thus thwart the lower court’s
statutory jurisdiction.
In each of these cases, potential jurisdiction existed even
though intervening conditions could have ultimately
prevented review by the lower court. Our jurisprudence has
recognized that potential jurisdiction includes circumstances
in which the lower court’s statutory jurisdiction is attenuated
and dependent upon the discretionary acts of others who
exercise authority in the military justice system. It was
impossible to know in advance how the members and the
convening authority would act in Hasan or LRM, or how the
7
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Opinion of the Court
convening authority would act in Howell. Likewise, it is
impossible for us to know how TJAG would act in this case
under Article 69(d), UCMJ, but this does not defeat the lower
court’s potential jurisdiction. Potential jurisdiction exists as
long as some pathway to the lower court’s statutory
jurisdiction remains. Here, pursuant to Article 69(d), UCMJ,
TJAG will have the opportunity to decide whether to forward
Appellee’s case to the lower court for review under Article 66,
UCMJ. Because such an action may still occur, the pathway
for potential statutory jurisdiction remains open.
Our jurisprudence follows that of the Article III appellate
courts, which also exercise potential jurisdiction even when a
right to appeal depends on the occurrence or nonoccurrence of
some condition. For example, in Dean Foods Co., 384 U.S. at603–04, the Supreme Court held that potential jurisdiction
existed to issue an injunction preserving the status quo while
a merger of two companies was being challenged before the
Federal Trade Commission (FTC) even though it was possible
that the FTC would approve the merger and thereby prevent
the exercise of appellate jurisdiction. This principle also
applies in federal criminal cases. See 16A Charles Alan A.
Wright & Arthur R. Miller, Federal Practice and Procedure
§ 3932 (3d ed. 2020) (explaining that even though an event
such as “acquittal would defeat any occasion for appeal … this
difficulty would not thwart a writ application by a defendant,
unless perhaps the application involves a matter not subject
to review by any means”).
The instant case is distinguishable from Arness. In Arness,
74 M.J. at 442, the appellant’s approved sentence also did not
meet the jurisdictional threshold required for the lower
court’s mandatory review under Article 66(b), UCMJ. After
completing his review, TJAG elected not to forward the case
to the lower court for review under Article 69(d), which
foreclosed the other statutory pathway to jurisdiction. 74 M.J.
at 442. We held, “[a]s the Judge Advocate General did not
refer [a]ppellant’s case to the CCA—a statutory prerequisite
for its review—the CCA was without jurisdiction to review it.”
Id. at 443. “Consideration of extraordinary relief is not ‘in aid’
of the [lower court’s] jurisdiction, because the [lower court]
had none in the first place.” Id. In Arness, no statutory
pathway existed for the lower court’s statutory jurisdiction,
8
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Opinion of the Court
but in the instant case, because TJAG has not yet had the
opportunity to decide whether to forward the case to the lower
court pursuant to Article 69(d), UCMJ, such a potential
pathway exists.
It is not disputed that we read the statutes governing
jurisdiction in the military system “as an integrated whole,
with the purpose of carrying out the intent of Congress.”
United States v. Lopez de Victoria, 66 M.J. 67, 69 (C.A.A.F.
2008). The dissent does not question the availability of
extraordinary relief from an unfavorable ruling potentially
infringing upon a substantial right on the day before
sentencing. Apparently, the dissent’s view is that the
availability of such relief is lost the day after sentencing
(assuming a nonqualifying sentence under Article 66(b),
UCMJ). We, however, can find no indication in the statutory
scheme that would compel such a result.
To reiterate, we hold that in a case like the one before us,
potential jurisdiction under Article 66, UCMJ, and Article
69(d), UCMJ, attached at the inception of the court-martial.
This potential jurisdiction continued as long as a pathway for
review by the court of criminal appeals existed. Accordingly,
the lower court had potential jurisdiction to entertain
Appellee’s writ petition.
Decision
The certified question is answered in the negative. The
record is returned to the Judge Advocate General of the Navy.
9
United States v. Brown, No. 20-0288/MC
Judge OHLSON, with whom Chief Judge STUCKY joins,
dissenting.
The majority holds that the lower court had potential ju-
risdiction to entertain Appellee’s writ petition pursuant to the
provisions of Article 69(d), Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 869(d) (2012), and the All Writs Act, 28
U.S.C. § 1651 (2018). Because I disagree with this conclusion,
I respectfully dissent.
As reflected below, both parties in this case have seem-
ingly presented logical and compelling arguments in support
of their positions. Reduced to its essence, the Government’s
reasoning is as follows:
In the military, the courts of criminal appeals (CCAs) are
courts of limited jurisdiction and the scope of that jurisdiction
is defined entirely by statute. United States v. Arness, 74 M.J.
441, 442 (C.A.A.F. 2015). Article 66(b), UCMJ, 10 U.S.C.
§ 866(b) (2012), grants jurisdiction to a CCA in every case
where the approved sentence includes a punitive discharge
and/or confinement for a year or more (unless the service-
member chooses to waive this otherwise mandatory review).
However, once a sub-jurisdictional sentence is imposed in a
case, the statutory jurisdiction of a CCA is extinguished. This
extinguished jurisdiction can only be revived if the Judge Ad-
vocate General decides to refer the case to a CCA under Arti-
cle 69, UCMJ, for the purpose of reviewing error prejudicial
to the substantial rights of the accused. In the instant case,
the Judge Advocate General had not yet decided whether to
refer the matter to the CCA. Therefore, statutory jurisdiction
remained extinguished in this case and the CCA had no au-
thority to issue a writ at this point in the proceedings.
On the other hand, Appellee’s reasoning—which essen-
tially has been adopted by the majority of this Court—can be
concisely expressed as follows:
As noted in Arness, the jurisdiction of a CCA is strictly de-
fined by statute. 74 M.J. at 442. However, in addition to Arti-
cle 66, UCMJ, and Article 69, UCMJ, the All Writs Act is a
statute which empowers a CCA to “issue all writs necessary
or appropriate in aid of [its] jurisdiction[].” 28 U.S.C.
§ 1651(a). The phrase “in aid of [its] jurisdiction[]” has been
interpreted as statutorily extending CCA jurisdiction to those
United States v. Brown, No. 20-0288/MC
Judge OHLSON, dissenting
cases where an appeal is not yet pending but where an appeal
may later be perfected. See FTC v. Dean Foods Co., 384 U.S.
597, 603–04 (1966). Stated differently, the “doctrine of poten-
tial jurisdiction” empowers a CCA to issue writs in those in-
stances where a case still has some means of coming before
the court. Howell v. United States, 75 M.J. 386, 390 n.4
(C.A.A.F. 2016). Here, Appellee’s case still has some means of
going before the CCA because the Judge Advocate General
could, upon application of the accused, still exercise his stat-
utory authority under Article 69, UCMJ, and refer the case to
the CCA for review. Therefore, the CCA had statutory juris-
diction to issue a writ in this case because the issues raised
involved the substantial rights of Appellee.
Ultimately, I conclude that the Government has the more
compelling argument for three interlocking reasons.
First, the plain language of the statutes can be read as
supporting the position that Congress created two entirely
distinct means of providing a CCA with the authority to exer-
cise jurisdiction in a case. One means applies in those cases
where the sentence meets—or has the potential to meet—the
sentencing threshold spelled out in Article 66, UCMJ. If the
sentence is sub-jurisdictional, however, Congress created a
totally separate means by which a CCA has jurisdiction—the
provisions of Article 69, UCMJ. In the instant case, jurisdic-
tion was extinguished under Article 66, UCMJ, when a sub-
jurisdictional sentence was imposed, 1 and no new jurisdiction
was created under Article 69, UCMJ, because the Judge Ad-
vocate General had not exercised his statutory authority to
refer the case to the CCA for review under the provisions of
that article. Allowing Appellee to bypass this Article 69,
1 The CCA also determined that Article 66, UCMJ, was a path-
way to potential jurisdiction because the issues to be addressed at
the post-trial session might result in a mistrial, thereby paving the
way for a new trial on the charges and ultimately an Article 66,
UCMJ, appeal. Brown v. United States, 79 M.J. 833, 838 & n.6, 840
n.10 (N-M. Ct. Crim. App. 2020). I find this claim unpersuasive be-
cause any new trial on the charges would be restricted to the sub-
jurisdictional sentence in this case. See Article 63, UCMJ, 10 U.S.C.
§ 863 (2012); Rule for Courts-Martial 810(d)(1).
2
United States v. Brown, No. 20-0288/MC
Judge OHLSON, dissenting
UCMJ, review by the Judge Advocate General thwarts the
statutory scheme created by Congress.
Second, the implication of the majority opinion is that the
CCAs have expansive jurisdiction over courts-martial. That
is, although Congress limited CCA review to cases with sen-
tences of a certain severity, the majority, using the All Writs
Act, now allows the CCAs to review cases with any sentence,
so long as these courts assert jurisdiction prior to the Judge
Advocate General’s action on the case. 2 This is a quintessen-
tial example of using the All Writs Act to expand jurisdiction,
which this Court cannot do. See Clinton v. Goldsmith,
526 U.S. 529, 534–35 (1999).
Third, we should interpret the provisions of Article 66,
UCMJ, and Article 69, UCMJ, in concert with three funda-
mental legal principles: (a) the jurisdiction of Article I courts
should be read narrowly, United States v. Kelly, 77 M.J. 404,
406 (C.A.A.F. 2018); (b) “we ‘read the statutes governing …
jurisdiction as an integrated whole, with the purpose of car-
rying out the intent of Congress in enacting them’ ” when de-
termining the scope of jurisdiction, Randolph v. HV, 76 M.J.
27, 29 (C.A.A.F. 2017) (emphasis added) (quoting United
States v. Lopez de Victoria, 66 M.J. 67, 69 (C.A.A.F. 2008));
and (c) “[t]he burden to establish jurisdiction rests with the
party invoking the court’s jurisdiction,” which in this case is
Appellee, United States v. LaBella, 75 M.J. 52, 54 (C.A.A.F.
2015). Thus, when presented with the parties’ competing ar-
guments, I conclude that we should err on the side of inter-
preting the contours of a CCA’s jurisdiction narrowly, and we
should determine that Appellee has not met his burden of es-
tablishing that his view of this statutory issue should prevail.
I would therefore answer the certified issue in the affirm-
ative and hold that the lower court erred in finding that it had
jurisdiction in this case. Accordingly, I respectfully dissent.
2 It is unclear if the reasoning of the majority opinion would
allow for “potential jurisdiction” over summary courts-martial, but
these courts-martial appear to fall under the authority of the Judge
Advocate General to refer “any court-martial” to the CCA. Article
69(d)(1), UCMJ.
3