2014 (September Term)
United States v. Newton, 74 M.J. 69 (in 1995, appellant pleaded guilty in state court to a charge of statutory rape and was required under state law to register as a sex offender; in 2006, the Sex Offender Registration and Notification Act (SORNA), 18 USC § 2250(a)(2006), became effective; in 2007, the Attorney General published a 2007 Interim Rule that provided that SORNA applied to all sex offenders (as defined by the Act) regardless of when they were convicted; the Attorney General invoked the “good cause” exception to forego the notice and comment procedures required by § 553(b)(3)(B) of the Administrative Procedure Act (APA), and he declared that the 2007 Interim Rule was effective immediately; in 2007, the Attorney General published notice of proposed rulemaking for what would become the 2008 National Guidelines for Sex Offender Registration (the 2008 SMART Guidelines) in the Federal Register; the Attorney General took comments on the proposed guidelines, and in 2008, he published the final 2008 SMART Guidelines; as is relevant to the instant case, those guidelines provided that an individual convicted of any of the statutorily defined sex offenses before the date that SORNA took effect was required to register as a sex offender under SORNA; this retroactive application provision was a substantive rule that was promulgated pursuant to the Attorney General’s statutory authority to make SORNA’s registration requirement apply to pre-act offenders; the rule was promulgated according to proper notice and comment procedures as required by § 553 of the APA; in 2008, appellant joined the Army, and in 2009, he was transferred to a new state, where he failed to register as a sex offender; he was then convicted by a general court-martial of knowingly failing to register as a sex offender as required by SORNA in violation of Article 134, UCMJ; because the 2008 SMART Guidelines created an enforceable substantive rule requiring appellant to register under SORNA, appellant had a duty to register as a sex offender under SORNA and his conviction was affirmed; whether the Attorney General had good cause to forego the notice and comment procedures when promulgating the 2007 Interim Rule did not need to be addressed because the 2008 SMART Guidelines created an enforceable substantive rule requiring appellant to register under SORNA).
(the APA distinguishes between two kinds of agency rules: substantive rules and interpretative rules; a rule is substantive, and has the force of law, only if Congress has delegated legislative power to the agency and if the agency intended to exercise that power in promulgating the rule; a substantive rule modifies or adds to a legal norm based on the agency’s own authority; that authority flows from a congressional delegation to promulgate substantive rules, to engage in supplementary lawmaking; an interpretative rule, by contrast, reflects an agency’s construction of a statute that has been entrusted to the agency to administer; the legal norm is one that Congress has devised; the agency does not purport to modify that norm; an agency’s interpretative rule is afforded some deference, but does not have the force and effect of law and is merely used by an agency to advise the public of the agency’s construction of the statutes and rules which it administers).
(when faced with the task of distinguishing between a substantive and an interpretative agency rule, appellate courts use some variation of the legal effects test; the critical question under the legal effects test is whether the rule imposes a duty on affected parties; if it does, the rule is substantive; this inquiry looks primarily at the language of the statute to determine the substance of the congressional enactment and the scope of the agency’s delegated authority, and then compares this to the language of the rule).
(the retroactive application provision of the 2008 SMART Guidelines constitutes a substantive rule).
(in 42 USC § 16912(b) of SORNA, Congress granted the Attorney General general rulemaking authority, and section 16913(d) specifically provided him with the authority to apply SORNA retroactively to sex offenders convicted before its enactment; this is a clear delegation of congressional power to the Attorney General to promulgate rules in this area and, even without more, this appears sufficient to establish that the retroactive application provision of the 2008 SMART Guidelines is a substantive rule with legislative force).
(for a substantive rule to have the force and effect of law, an agency must also adhere to the procedural requirements set out in § 553 of the APA).
(the 2008 SMART Guidelines were promulgated according to the requirements of the APA and without any procedural defect).
(during appellant’s charged conduct in this case of failing to register as a sex offender in 2009, the 2008 SMART Guidelines were in effect and appellant was retroactively subject to SORNA’s registration requirement under 18 USC § 2250(a)(2006)).
2013 (September Term)
United States v. Wilson, 73 M.J. 404 (Article 12, UCMJ, which prohibits confining American military prisoners in immediate association with foreign nationals, applies to military members without geographic limitation).
United States v. McPherson, 73 M.J. 393 (Article 12, UCMJ, prohibits any member of the armed forces from being placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces; because the text of Article 12, UCMJ, is plain on its face and there is no geographic limitation by its terms, it applies to military members confined in civilian state or federal facilities in the United States as well as to those confined in facilities overseas).
(under Article 12, UCMJ, a confinee must exhaust his administrative remedies prior to judicial intervention, absent some unusual or egregious circumstance; this administrative exhaustion requirement furthers two related goals: (1) the resolution of grievances at the lowest possible level with prompt amelioration of the complaint while the prisoner suffers the condition, and (2) the development of an adequate record to aid appellate review).
(as in all statutory construction cases, a court begins with the language of the statute; the first step is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case; the inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent; whether the statutory language is ambiguous is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole).
(a court must presume that a legislature says in a statute what it means and means in a statute what it says there).
(when the words of a statute are unambiguous, judicial inquiry is complete).
(when a statute is a part of a larger Act, the starting point for ascertaining legislative intent is to look to other sections of the Act in pari materia with the statute under review).
(one rule of statutory interpretation is that where Congress includes particular language in one section of a statute but omits it in another section of the same Act, Congress intentionally and purposely intended the disparate inclusion or exclusion).
(Article 58, UCMJ, requires all confinees to be treated the same, and Article 12, UCMJ, requires that no military member may be confined in immediate association with a foreign national; Article 58 is not more specific than Article 12, nor are the two statutes in conflict; military confinees can - and must - receive treatment equal to civilians confined in the same institution, while being confined separately from foreign nationals; Article 12, UCMJ, and Article 58, UCMJ, were passed at the same time, and read in pari materia, they both apply without conflict to military members confined in state or federal institutions in the United States).
(a court has no license to generate a statutory conflict where none exists or to construe statutes in a way that undercuts the clearly expressed intent of Congress).
United States v. Kearns, 73 M.J. 177 (it is axiomatic that in determining the scope of a statute, an appellate court looks first to its language; where the language of the statute is clear and Congress has directly spoken to the precise question at issue, an appellate court must give effect to the unambiguously expressed intent of Congress; furthermore, it is well established that when a statute’s language is plain, the sole function of the courts, at least where the disposition required by the text is not absurd, is to enforce it according to its terms; there is no rule of statutory construction that allows for a court to append additional language as it sees fit).
United States v. Finch, 73 M.J. 144 (unless the text of a statute is ambiguous, the plain language of a statute will control unless it leads to an absurd result).
United States v. Moss, 73 M.J. 64 (ordinarily, “may” is a permissive rather than a mandatory term).
2012 (September Term)
United States v. Schell, 72 M.J. 339 (unless the text of a statute is ambiguous, the plain language of a statute will control unless it leads to an absurd result).
United States v. Riley, 72 M.J. 115 (although the Military Judges’ Benchbook is not binding as it is not a primary source of law, the Benchbook is intended to ensure compliance with existing law; an individual military judge should not deviate significantly from the instructions in the Benchbook without explaining his or her reasons on the record).
2011 (September Term)
United States v. Easton, 71 M.J. 168 (judicial deference is at its apogee when the authority of Congress to govern the land and naval forces is challenged; this principle applies even when the constitutional rights of a servicemember are implicated by a statute enacted by Congress).
United States v. Watson, 71 M.J. 54 (when a statute’s language is plain, the sole function of the courts, at least where the disposition required by the text is not absurd, is to enforce it according to its terms).
United States v. King, 71 M.J. 50 (unless ambiguous, the plain language of a statute will control unless it leads to an absurd result).
States v. Medina, 69 M.J. 462 (the
responsibility clearly rests with
Congress to revise a statute to remedy an unconstitutional statutory
although an appellate court will give a constitutional saving
possible, it is not the province of the court to rewrite a statute to
to the Constitution, as that would invade the legislative domain).
States v. Clark, 69 M.J. 438 (servicemembers
have a constitutional,
statutory, and regulatory right to silence).
2009 (September Term)
United States v. Nerad, 69 M.J. 138 (when a modifier in a statute is set off from a series of antecedents by a comma, the modifier should be read to apply to each of those antecedents).
2008 (September Term)
United States v. Matthews, 68 M.J. 29 (it is a well established rule that principles of statutory construction are used in construing the Military Rules of Evidence; when the statute’s language is plain, the sole function of the courts - at least where the disposition required by the text is not absurd - is to enforce it according to its terms; in construing the language of a statute or rule, it is generally understood that the words should be given their common and approved usage).
(a canon of contextual construction counsels that a word gathers meaning from the words around it).
United States v. Rodriguez, 67 M.J. 110 (the entire system of military justice is a creature of statute, enacted by Congress pursuant to the express constitutional grant of power to make Rules for the Government and Regulation of the land and naval Forces; in Articles 141 through 146, UCMJ, Congress provided the source authority for the existence of the CAAF; the CAAF’s authority or subject matter jurisdiction is defined by Article 67, UCMJ).
United States v. Bartlett, 66 M.J. 426 (while statutes covering the same subject matter should be construed to harmonize them if possible, this does not empower courts to undercut the clearly expressed intent of Congress in enacting a particular statute).
(in cases of direct conflict, a specific statute overrides a general one, regardless of their dates of enactment).
United States v. Lopez de Victoria, 66 M.J. 67 (while Congress certainly possesses the constitutional authority to apply legislation retroactively, subject to the limits of the Ex Post Facto Clause, U.S. Const. Art. I, § 9, cl. 3, retroactive application of statutes is normally not favored in the absence of explicit language in the statute or necessary implication therefrom; this principle applies to statutes of limitations).
(catchlines or section headings in a title to a congressional amendment are not part of a statute; they cannot vary its plain meaning and are available for interpretive purposes only if they can shed light on some ambiguity in the text).
States v. Wilson, 66 M.J. 39 (where Congress
includes particular language in
one section of a statute but omits it in another section, it is
presumed that Congress acts intentionally and purposely in the
United States v. Hunter, 65 M.J. 399 (ordinary rules of statutory construction apply in interpreting the RCM).
United States v. Thomas, 65 M.J. 132 (appellate courts have long adhered to the principle that criminal statutes are to be strictly construed, and any ambiguity resolved in favor of the accused; where the legislative intent is ambiguous, the ambiguity is resolved in favor of the accused).
United States v. Lewis, 65 M.J. 85 (an appellate court uses well-established principles of statutory construction to construe provisions in the MCM; statutory construction begins with a look at the plain language of a rule; the plain language will control, unless use of the plain language would lead to an absurd result).
United States v. Adcock, 65 M.J. 18 (one of the basic canons of statutory interpretation is that statutes should be interpreted to give meaning to each word).
United States v. Wise, 64 M.J. 468 (with the text of a statute indeterminate, and in the absence of case law, an appellate court turns to the primary source of the statute, its legislative history, for guidance).
(unclear language in a statute can become clear if the congressional intent behind the legislation is reviewed).
United States v. Taylor, 64 M.J. 404 (in construing the language of a rule, it is generally understood that the words should be given their common and approved usage).
United States v. Finch, 64 M.J. 118 (a change in a rule cannot supplant a statute, including a statutorily based judicial decision).
United States v. James, 63 M.J. 217 (a fundamental rule of statutory interpretation is that courts must presume that a legislature says in a statute what it means and means in a statute what it says there).
United States v. Christian, 63 M.J. 205 (it is a well-established principle of statutory construction that, absent a clear direction of Congress to the contrary, a law takes effect on the date of its enactment).
Loving v. United States, 62 M.J. 235 (it is a fundamental tenet of statutory construction to construe a statute in accordance with its plain meaning).
(from the plain meaning of Article 71(a), it is clear and undisputed that the President must “approve” a sentence of death before it is executed; it is equally clear from the plain words of Articles 71(a) and 76 that the President must “approve” a sentence of death before a capital case is final within the meaning of Article 76; furthermore, this reading of the plain text is supported by the legislative history of Article 76).
(from the plain language of Articles 71 and 76 and the Supreme Court’s construction of Article 76, a final judgment as to the legality of the proceedings under Article 71(c) does not result in a case being final for the purposes of Article 76).
(Article 71(c) requires “a final judgment as to the legality of the proceedings” to render a death sentence ripe for approval by the President; Article 76 requires that the President approve a death sentence before the sentence is final, thereby describing the terminal point for proceedings within the court-martial system).
United States v. Fischer, 61 M.J. 415 (by statute, servicemembers who are on active duty are entitled to the basic pay of the pay grade to which they are assigned; a soldier’s entitlement to pay is statutory, not contractual; DoD financial management regulations provide that if a servicemember is confined awaiting court-martial trial when the enlistment expires, pay and allowances end on the date the enlistment expires and if the member is acquitted when tried, pay and allowances accrue until discharge).
(by regulation, decisions of the Comptroller General, and federal case law, servicemembers who reach their EAS while in pretrial confinement, and who are later convicted, are not entitled to be paid subsequent to the EAS while in pretrial confinement).
(a servicemember’s pay is not terminated just because the servicemember is placed in pretrial confinement; DoD regulations state that pay and allowances accrue to members in military confinement unless: (a) confined by military authorities on behalf of civil authorities; (b) pay and allowances are forfeited by court-martial sentence; or (c) the term of enlistment expires; a servicemember who is confined before trial is entitled to receive pay until the end of his enlistment contract, regardless of the ultimate disposition of the case; if a pretrial confinee does not reach EAS until after the adjudication of the case, the pretrial confinee is entitled to pay and allowances for the time held in pretrial confinement, regardless of whether the individual was found guilty or not guilty).
(every servicemember’s entitlement to pay is terminated at EAS; but by regulations, a servicemember may be paid after an enlistment expires in two situations; first, a servicemember who remains in the service and performs productive work may be paid; standard confinement duties, however, are not considered active-duty work that would entitle a pretrial confinee held past EAS to payment; second, if a servicemember held in pretrial confinement past EAS is later acquitted, the servicemember is retroactively paid for the time spent in pretrial confinement past the EAS date).
United States v. Martinelli, 62 M.J. 52 (in searching for the clear expression of congressional intent in a statute, an appellate court is not limited to the text of the statute, but can consider all available evidence about the meaning of the statute, including its text, structure, and legislative history).
United States v. Clark, 62 M.J. 195 (it is a general rule of statutory construction that if the statute is clear and unambiguous, a court may not look beyond it but must give effect to its plain meaning).
United States v. Gilley, 59 MJ 245 (in construing the language of a statute or rule, it is generally understood that the words should be given their common and approved usage).
(under the UCMJ, personnel of the armed forces, regardless of the Department in which they serve, will be subject to the same law and will be tried in accordance with the same procedures).
United States v. Lundy, 60 MJ 52 (in view of the statutory provisions, the pertinent legislative history, and administrative implementation, we conclude that Congress did not intend to preclude dependent-abuse victims from receiving transitional compensation under § 1059 when a convening authority has determined, as a matter of discretion, that the dependents should receive waived forfeitures under Article 58b).
United States v. Ronghi, 60 MJ 83 (it is well established that, absent a clear direction by Congress to the contrary, a law takes effect on the date of its enactment).
United States v. McCollum, 58 MJ 323 (in construing the language of a statute or rule, it is generally understood that the words should be given their common and approved usage).
United States v. Czeschin, 56 MJ 346 (there are "hierarchical sources of rights" in the military justice system, including the Constitution, federal statutes, Executive Orders, Department of Defense Directives, service directives, and federal common law; normal rules of statutory construction provide that the highest source authority will be paramount, unless a lower source creates rules that are constitutional and provide greater rights for the individual).
United States v. Phanphil, 57 MJ 6 (examination of a statute begins with the statute’s plain text and Congress’s legislative intent in passing the statute).
(an agency’s interpretation of a pertinent statute, while not controlling, may be examined in determining the congressional objectives).
United States v. Guzman, 52 MJ 318 (excluding evidence from a court-martial to remedy a regulatory violation may be appropriate if the alleged violation implicates constitutional or statutory rights).
United States v. Swift, 53 MJ 439 (where a decision of this Court is based on the plain meaning of a statute and is consistent with the context in which the statute was enacted, congressional inaction over a long period of time in response must be given great weight; under such circumstances, the decision whether it is necessary to modify the construction of the statute rests with Congress, not this Court).
(when assessing legislation created under Congress’s constitutional authority to “raise and support” the armed forces, courts are obligated to respect congressional judgments as to the rights and obligations of servicemembers; such judicial deference applies not only when Congress has provided servicemembers with less protective rights than available to civilian counterparts, but also when Congress has provided greater rights).
Steele v. Van Riper, 50 MJ 89 (administrative discharge issued after trial pursuant to statutes and regulations governing such discharges has the effect of remitting unapproved/unexecuted punitive discharge but does not impact upon the responsibilities of the convening authority or review by the appellate courts).
United States v. Mitchell, 50 MJ 79 (the effect of an action by a Service Secretary, which may moot an issue, should be addressed first by the service Court of Criminal Appeals which can bring special expertise to bear on service regulatory matters).
United States v. Schuler, 50 MJ 254 (under common law doctrine of abatement, if the act underlying a conviction is rendered no longer unlawful by a new statute during direct review, the proceedings must be terminated in favor of the appellant; this doctrine has been restricted, however, by the general federal savings statute, 1 USC § 109).
(general federal savings statute, 1 USC § 109, has been interpreted by Supreme Court to abolish common law doctrine of “abatement” to the extent that the successor statute retains the basic offense and does not substitute a right for a crime).
United States v. Murphy, 50 MJ 4 (concerning whether American authorities obtained jurisdiction over appellant in contravention of treaty (the NATO SOFA), appellant has no standing to object to the process as the determination of which nation will exercise jurisdiction is a matter for the nations and not a right of the suspect or accused).
United States v. Falk, 50 MJ 385 (in interpreting statute, the court must look first to the plain language of the statute and construe its provisions in terms of its object and policy, as well as the provisions of any related statutes, in order to ascertain the intent of Congress; in the absence of evidence to the contrary, the ordinary meaning of the words used expresses the legislative intent; and if the statute is unclear, the court looks next to the legislative history).United States v. Spann, 51 MJ 89 (because Congress, in the UCMJ, established an integrated system of investigation, trial, and appeal that is separate from the criminal justice proceedings conducted in the US district court, there is a necessity to exercise great caution in overlaying a generally applicable statute specifically onto the military justice system).