Fink v. Y.B. and U.S., 83 M.J. 222

First Principles: Jurisdiction: Of U.S. Court of Appeals for the Armed Forces

1. the CAAF has jurisdiction under Article 67(a)(3), UCMJ, to review a writ-appeal petition filed by an accused that seeks review of a decision of a CCA on a petition for extraordinary relief filed under Article 6b(e)(1), UCMJ
2. the CAAF’s decision in Randolph v. HV, 76 M.J. 27, 30-31 (CAAF 2017) (holding that the CAAF did not have jurisdiction to hear the appeal filed by an accused that sought review of a CCA’s decision on a petition for extraordinary relief filed under Article 6b(e)(1), UCMJ) has been superseded by statute, namely, by an amendment to Article 67(c), UCMJ, in the 2017 NDAA; as amended, Article 67(c)(1)(B), UCMJ, expands the CAAF’s scope of review to act with respect to a decision, judgment, or order by a military judge, as affirmed or set aside as incorrect in law by a CCA
3. the CAAF must satisfy itself that it has jurisdiction before it can act on a writ-appeal petition, and it decides the question of jurisdiction de novo; if it lacks jurisdiction, it must dismiss the writ-appeal petition; but if it has jurisdiction, it may either grant or deny review of the issues presented in the petition, depending on whether appellant has shown “good cause” for its review
4. the amendment to Article 67(c), UCMJ, in the 2017 NDAA changed the CAAF’s jurisdiction; under the new Article 67(c)(1)(B), the CAAF is no longer limited to acting on the findings or sentence of a court-martial; it now may also address a military judge’s decision or order on interlocutory questions; accordingly, granting a writ-appeal filed by the accused to review a decision of a military judge on a matter such as the admissibility of evidence fits within the plain language of Article 67(a)(3) and (c)(1)(B), UCMJ
5. if the victim of an offense challenges a decision or order of a military judge by petitioning a CCA for mandamus under Article 6b(e), UCMJ, and if the CCA affirms or sets aside the decision or order of the military judge, then the accused may petition the CAAF for review under Article 67(a)(3), UCMJ, and the CAAF may act with respect to the military judge’s decision or order under Article 67(c)(1)(B), UCMJ

Trial Stages: Writs and Interlocutory Appeals: Generally

1. the CAAF has jurisdiction under Article 67(a)(3), UCMJ, to review a writ-appeal petition filed by an accused that seeks review of a decision of a CCA on a petition for extraordinary relief filed under Article 6b(e)(1), UCMJ
2. the CAAF’s decision in Randolph v. HV, 76 M.J. 27, 30-31 (CAAF 2017) (holding that the CAAF did not have jurisdiction to hear the appeal filed by an accused that sought review of a CCA’s decision on a petition for extraordinary relief filed under Article 6b(e)(1), UCMJ) has been superseded by statute, namely, by an amendment to Article 67(c), UCMJ, in the 2017 NDAA; as amended, Article 67(c)(1)(B), UCMJ, expands the CAAF’s scope of review to act with respect to a decision, judgment, or order by a military judge, as affirmed or set aside as incorrect in law by a CCA
3. the CAAF must satisfy itself that it has jurisdiction before it can act on a writ-appeal petition, and it decides the question of jurisdiction de novo; if it lacks jurisdiction, it must dismiss the writ-appeal petition; but if it has jurisdiction, it may either grant or deny review of the issues presented in the petition, depending on whether appellant has shown “good cause” for its review
4. the amendment to Article 67(c), UCMJ, in the 2017 NDAA changed the CAAF’s jurisdiction; under the new Article 67(c)(1)(B), the CAAF is no longer limited to acting on the findings or sentence of a court-martial; it now may also address a military judge’s decision or order on interlocutory questions; accordingly, granting a writ-appeal filed by the accused to review a decision of a military judge on a matter such as the admissibility of evidence fits within the plain language of Article 67(a)(3) and (c)(1)(B), UCMJ
5. if the victim of an offense challenges a decision or order of a military judge by petitioning a CCA for mandamus under Article 6b(e), UCMJ, and if the CCA affirms or sets aside the decision or order of the military judge, then the accused may petition the CAAF for review under Article 67(a)(3), UCMJ, and the CAAF may act with respect to the military judge’s decision or order under Article 67(c)(1)(B), UCMJ

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. the CAAF has jurisdiction under Article 67(a)(3), UCMJ, to review a writ-appeal petition filed by an accused that seeks review of a decision of a CCA on a petition for extraordinary relief filed under Article 6b(e)(1), UCMJ
2. the CAAF’s decision in Randolph v. HV, 76 M.J. 27, 30-31 (CAAF 2017) (holding that the CAAF did not have jurisdiction to hear the appeal filed by an accused that sought review of a CCA’s decision on a petition for extraordinary relief filed under Article 6b(e)(1), UCMJ) has been superseded by statute, namely, by an amendment to Article 67(c), UCMJ, in the 2017 NDAA; as amended, Article 67(c)(1)(B), UCMJ, expands the CAAF’s scope of review to act with respect to a decision, judgment, or order by a military judge, as affirmed or set aside as incorrect in law by a CCA
3. the CAAF must satisfy itself that it has jurisdiction before it can act on a writ-appeal petition, and it decides the question of jurisdiction de novo; if it lacks jurisdiction, it must dismiss the writ-appeal petition; but if it has jurisdiction, it may either grant or deny review of the issues presented in the petition, depending on whether appellant has shown “good cause” for its review
4. the amendment to Article 67(c), UCMJ, in the 2017 NDAA changed the CAAF’s jurisdiction; under the new Article 67(c)(1)(B), the CAAF is no longer limited to acting on the findings or sentence of a court-martial; it now may also address a military judge’s decision or order on interlocutory questions; accordingly, granting a writ-appeal filed by the accused to review a decision of a military judge on a matter such as the admissibility of evidence fits within the plain language of Article 67(a)(3) and (c)(1)(B), UCMJ
5. if the victim of an offense challenges a decision or order of a military judge by petitioning a CCA for mandamus under Article 6b(e), UCMJ, and if the CCA affirms or sets aside the decision or order of the military judge, then the accused may petition the CAAF for review under Article 67(a)(3), UCMJ, and the CAAF may act with respect to the military judge’s decision or order under Article 67(c)(1)(B), UCMJ

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the CAAF must satisfy itself that it has jurisdiction before it can act on a writ-appeal petition, and it decides the question of jurisdiction de novo; if it lacks jurisdiction, it must dismiss the writ-appeal petition; but if it has jurisdiction, it may either grant or deny review of the issues presented in the petition, depending on whether appellant has shown “good cause” for its review