FIRST PRINCIPLESJurisdiction: Generally

2020 (October Term)

United States v. Begani, 81 M.J. 273 (pursuant to its plenary authority to make rules for the government and regulation of the land and naval forces, Congress has empowered courts-martial to try servicemen for the crimes proscribed by the UCMJ, and an offense need not be military in nature to be tried by court-martial; the only question is the military status of the accused - namely, whether the accused in the court-martial proceeding is a person who can be regarded as falling within the term land and naval forces). 

(retired members of all branches of service of the armed forces who continue to receive pay are still a part of the land and naval forces and subject to the UCMJ). 

(although retirees are still part of the armed forces and subject to the UCMJ, persons who have completely separated from the military are not).

(civilian dependents of servicemembers and civilian employees of the military are not part of the armed forces and not subject to the UCMJ). 

(the test for jurisdiction is one of status, namely, whether the accused in a court-martial proceeding is a person who can be regarded as falling within the term land and naval forces).   

(a member of the Fleet Reserve who receives retainer pay, is subject to recall, and is required to maintain military readiness remains a member of the land and naval forces and is thus subject to court-martial jurisdiction). 

(court-martial jurisdiction over members of the Fleet Reserve does not violate the Constitution, nor does subjecting members of the Fleet Reserve and not retired reservists to UCMJ jurisdiction violate equal protection; accordingly, appellant, a member of Fleet Reserve and thus a member of the land and naval forces, was properly subject to jurisdiction under Article 2(a)(6), UCMJ). 

United States v. Brown, 81 M.J. 1 (jurisdiction is a question of law that an appellate court reviews de novo). 

(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; the All Writs Act is not an independent grant of jurisdiction, nor does it expand a court’s existing statutory jurisdiction; 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). 

(to determine whether a requested writ is in aid of a lower court’s jurisdiction, an appellate court must first determine the scope and authority for the lower court’s statutory jurisdiction; the second determination concerns whether a requested writ implicates a lower court’s subject-matter jurisdiction over the case or controversy; and to establish subject-matter jurisdiction, a lower court must find that the harm alleged have the potential to directly affect the findings and sentence). 

(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; the power also extends to the potential jurisdiction of the appellate court where an appeal is not then pending but may be later perfected; the doctrine of potential jurisdiction allows appellate courts to issue opinions in matters that may reach the actual jurisdiction of the court). 

(potential future actions on the part of other official actors are sufficient for potential jurisdiction in proceedings that have already begun).

(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; potential jurisdiction exists as long as some pathway to the lower court’s statutory jurisdiction remains). 

(an appellate court reads the statutes governing jurisdiction in the military system as an integrated whole, with the purpose of carrying out the intent of Congress). 

(in this case, the CCA had statutory jurisdiction to entertain a writ petition where although appellee’s sentence was not reviewable under Article 66, UCMJ, because he was not sentenced to one year or more of confinement and did not receive a punitive discharge, the TJAG could potentially refer the case for review pursuant to Article 69(d), UCMJ, and thus potential jurisdiction existed for the CCA, even though there were still several conditions precedent to its ultimate review). 

2019 (October Term)

United States v. Rice, 80 M.J. 36 (in addition to state criminal systems, military members are subject to the concurrent jurisdiction of the federal civilian criminal system and the military justice system).

(while the federal criminal system charges offenses under Title 18 of the US Code, which offenses must be connected to one of  Congress’s constitutionally enumerated powers to confer jurisdiction, the military justice system charges offenses under Title 10, which depends only upon the status of the accused for jurisdiction).

(based on principles of federalism and comity towards state governments, federal jurisdiction over criminal offenses requires a federal nexus as an element of the offense, known as the jurisdictional element; jurisdictional elements tie the substantive offense to one of Congress’s constitutional powers, thus spelling out the warrant for Congress to legislate).

(jurisdictional elements, like any other, need to be pleaded and proven, and Congress can and does criminalize the same conduct under different states based on different harms).

United States v. Wall, 79 M.J. 456 (every federal appellate court has a special obligation to satisfy itself of its own jurisdiction). 

United States v. Hennis, 79 M.J. 370 (jurisdiction is the power of a court to decide a case or issue a decree). 

2018 (October Term)

United States v. Hale, 78 M.J. 268 (when challenged, the government must prove jurisdiction by a preponderance of evidence).

2017 (October Term)

United States v. Jacobsen, 77 M.J. 81 (a court must always satisfy itself that it has jurisdiction). 

2016 (October Term)

Randolph v. HV, 76 M.J. 27 (every federal appellate court has a special obligation to satisfy itself of its own jurisdiction even though the parties are prepared to concede it).

(the burden to establish jurisdiction rests with the party invoking the court’s jurisdiction, and in making this determination, a federal court reads the statutes governing its jurisdiction as an integrated whole, with the purpose of carrying out the intent of Congress in enacting them). 

2015 (September Term)

United States v. LaBella, 75 M.J. 52 (federal courts are courts of limited jurisdiction; they possess only that power authorized by Constitution and statute; every federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review; the burden to establish jurisdiction rests with the party invoking the court’s jurisdiction). 

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). 

2010 (September Term)

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).

2008 (September Term)

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). 

2008 (Transition)

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 outside the military justice system will not entertain habeas petitions by military prisoners until all available military remedies have been exhausted; however, the exhaustion requirement is prudential rather than jurisdictional; the circumstances of a particular case might warrant consideration of a habeas petition by an Article III court prior to exhaustion). 

 

(even when remedies have been exhausted, the scope of collateral review outside the military justice system is constrained by the requirement to consider whether the military justice system has given full and fair consideration to the claims at issue; de novo review is appropriate only if the military justice system manifestly refused to consider those claims).


(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).


United States v. Adams, 66 M.J. 255 (jurisdictional error occurs when a court-martial is not constituted in accordance with the UCMJ; jurisdiction depends upon a properly convened court, composed of qualified members chosen by a proper convening authority, and with charges properly referred). 

 

(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). 



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