2013 (September Term)
United States v. Davenport, 73 M.J. 373 (the requirement that a record of trial be complete and substantially verbatim in order to uphold the validity of a verbatim record sentence is one of jurisdictional proportion that cannot be waived).
2012 (September Term)
Center for Constitutional Rights v. United States, 72 M.J. 126 (federal courts are courts of limited jurisdiction; they possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree; it is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction).
(the requirement that jurisdiction be established as a threshold matter springs from the nature and limits of the judicial power of the United States and is inflexible and without exception).
(on every writ of error or appeal, the first and fundamental question is that of jurisdiction; this question a court is bound to ask and answer for itself, even when not otherwise suggested).
2011 (September Term)
United States v. Ali, 71 M.J. 256 (Article 2(a)(10), UCMJ, provides for UCMJ jurisdiction in time of declared war or contingency operation over persons serving with or accompanying an armed force in the field).
(jurisdiction is the power of a court to try and determine a case and to render a valid judgment).
(generally, there are three prerequisites that must be met for courts-martial jurisdiction to vest: (1) jurisdiction over the offense, (2) jurisdiction over the accused, and (3) a properly convened and composed court-martial).
(general courts-martial have jurisdiction to try persons subject to the UCMJ for any offense made punishable by it; additionally, the UCMJ applies in all places; where appellant, a foreign national working as a civilian contractor in Iraq and serving with the Army in the field during a contingency operation, was charged with and convicted of misconduct punishable by the UCMJ, the court-martial had jurisdiction over the offenses).
(the court-martial’s jurisdiction over the offense alone is not sufficient to establish jurisdiction; the Constitution conditions the proper exercise of court-martial jurisdiction over an offense on one factor: the military status of the accused; thus, an inquiry into court-martial jurisdiction focuses on the person’s status, i.e., whether the person is subject to the UCMJ at the time of the offense; in this case, whether jurisdiction over the offense existed requires an analysis of the criteria found in Article 2(a)(10), UCMJ).
(with respect to whether a person is serving with or accompanying an armed force as provided in Article 2(a)(10), UCMJ, the test is whether the accused has moved with a military operation and whether his presence with the armed force was not merely incidental, but directly connected with, or dependent upon, the activities of the armed force or its personnel; also, an accused may be regarded as accompanying or serving with an armed force, even though he is not directly employed by such a force or the government, but, instead, works for a contractor engaged on a military project).
(with respect to whether a person is serving with or accompanying an armed force in the field as provided in Article 2(a)(10), UCMJ, the meaning of in the field means in an area of actual fighting).
(the status of the individual is the focus for determining both jurisdiction over the offense and jurisdiction over the person; the only difference is that jurisdiction over the person depends on the person’s status as a person subject to the Code both at the time of the offense and at the time of trial).
(Congress’s war powers provided the constitutional source of authority and justification for Article 2(a)(10), UCMJ, which subjects persons serving with or accompanying an armed force in the field in time of declared war or contingency operation to military jurisdiction).
(while the Military Extraterritorial Jurisdiction Act extends to civilians employed by or accompanying the armed forces, which likely includes non-United States citizens, it does not extend to citizens of the host nation; as a result, because appellant was a citizen of the host nation of Iraq, there was no available Article III alternative forum under MEJA).
(appellant, a foreign national serving with and accompanying the US armed forces in the field as a civilian contractor during a contingency operation in Iraq, fell within the scope of Article 2(a)(10), UCMJ, and this congressional exercise of jurisdiction, as applied to him, subjected him to court-martial jurisdiction and did not violate the Constitution).
United States v. Humphries, 71 M.J. 209 (a rule should not be referred to as jurisdictional unless it governs a court’s adjudicatory capacity, that is, its subject-matter or personal jurisdiction; other rules, even if important and mandatory, should not be given the jurisdictional brand).
United States v. Nealy, 71 M.J. 73 (where the convening authority properly referred the offense of communicating a threat under Article 134, UCMJ, to trial by court-martial, and appellant pleaded guilty to the offense of provoking speech, an offense that at the time of the referral was listed in the MCM as an LIO of communicating a threat, the court-martial still had jurisdiction to accept appellant’s guilty plea to the LIO even though later, in light of US v. Jones, 68 MJ 465 (2010), the offense of provoking speech was not in fact an LIO of communicating a threat; at the time of the referral, the convening authority had intended to, and did, refer the Article 134, UCMJ, offense, and any listed LIOs of that offense to trial).
(jurisdiction is the power of a court to try and determine a case and to render a valid judgment).
(generally, there are three prerequisites that must be met for courts-martial jurisdiction to vest: (1) jurisdiction over the offense, (2) personal jurisdiction over the accused, and (3) a properly convened and composed court-martial).
(when a convening authority refers a charge to a court-martial, any LIOs of that charge are referred with it, and need not be separately charged and referred).
United States v. Daly, 69 M.J. 485 (a question of jurisdiction is not subject to waiver and may be raised at any time).
(federal courts are courts of limited jurisdiction; they possess only that power authorized by Constitution and statute).United States v. Watson, 69 M.J. 415 (military service subjects members of the armed forces to rules, orders, proceedings, and consequences different from the rights and obligations of their civilian counterparts).
United States v. Wuterich, 67 M.J. 32 (federal courts, including courts in the military justice system established under Article I of the Constitution, are courts of limited jurisdiction).
Denedo v. United States, 66 M.J. 114 (courts-martial are subject to collateral review within the military justice system).
(the All Writs Act provides that all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law; the Act requires two separate determinations: first, whether the requested writ is in aid of a courtís jurisdiction; and second, whether the requested writ is necessary or appropriate).
(although military appellate courts are among those empowered to issue extraordinary writs under the All Writs Act, the Act confines a court to issuance of process in aid of its existing statutory jurisdiction and does not enlarge that jurisdiction).
(when courts within the military justice system lack subject matter jurisdiction over an action, such as an administrative separation, they cannot invoke the All Writs Act to enlarge their jurisdiction to review the administrative action, even if it is based upon the results of a court-martial).
(when a petitioner seeks collateral relief to modify an action that was taken within the subject matter jurisdiction of the military justice system, such as the findings or sentence of a court-martial, a writ that is necessary or appropriate may be issued under the All Writs Act in aid of the courtís existing jurisdiction).
(in terms of timing, Article 76, UCMJ, addressing the finality of a court-martial conviction after completion of direct review, serves as a prudential restraint on collateral review of courts-martial pending completion of direct review; when a coram nobis petition is considered after completion of direct review, finality of direct review enhances rather than diminishes consideration of a request for collateral relief).
(in terms of the scope of collateral review, the res judicata effect of Article 76, UCMJ, addressing the finality of a court-martial conviction after completion of direct review, means that the decision on direct review will stand as final unless it fails to pass muster under the highly constrained standards applicable to review of final judgments).
(under the exhaustion of remedies doctrine, courts outside the military justice system normally refrain from collateral review of courts-martial until all available military remedies are exhausted).
(as a general matter, courts
military justice system will not entertain habeas petitions by military
prisoners until all available military remedies have been exhausted;
the exhaustion requirement is prudential rather than jurisdictional;
circumstances of a particular case might warrant consideration of a
petition by an Article
(even when remedies have been
scope of collateral review outside the military justice system is
by the requirement to consider whether the military justice system has
full and fair consideration to the claims at issue; de novo review is
appropriate only if the military justice system manifestly refused to
(when court-martial jurisdiction has been invoked properly at the time of trial, the jurisdiction of the court of criminal appeals to review the case does not depend on whether a person remains in the armed forces at the time of such review).
(a court-martial composed of members who are barred from participating by operation of law, or who were never detailed by the convening authority, is improperly constituted and the findings must be set aside as invalid).
(administrative errors in the drafting of a convening order are not necessarily fatal to jurisdiction, and may be tested for prejudice under Article 59(a), UCMJ).
(the convening authorityís failure to transfer members named in previous special convening orders to the final special order convening appellantís court-martial was administrative error, rather than jurisdictional error, that did not materially prejudice the substantial rights of appellant, where none of the members who participated in the court-martial was an interloper, where each member was selected by the convening authority to consider the charges against appellant, where there was no evidence that the convening authority excused any of the members who sat on appellantís court-martial, where there was also no evidence that the convening authority withdrew the charges in order to refer them to a new court-martial, and more important, where the record reflects that the members named in final special order were selected to bring the court-martial up to quorum and were not selected to serve as a separately constituted court-martial).