2023 (October Term)
United States v. Strong, 85 M.J. 58 (questions about the meaning of statutes, including the meaning of the UCMJ's punitive articles, are questions of law that an appellate court reviews de novo).
(it is a general rule of statutory construction that if a statute is clear and unambiguous, that is, susceptible to only one interpretation, an appellate court uses its plain meaning and applies it as written).
(the first step in statutory interpretation 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; when the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete; and the plain meaning of the words of a statute controls, so long as that meaning does not lead to an absurd result).
(whether 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).
(where the statute does not define a relevant phrase, an appellate court must seek to discern its ordinary meaning through an analysis of its constituent words; and words are to be understood in their ordinary, everyday meanings unless the context indicates that they bear a technical sense).
H.V.Z. v. United States and Fewell, 85 M.J. 8 (an appellate court reviews questions of statutory interpretation de novo).
(when interpreting legislation, an appellate court has long presumed two things: that Congress knows the law, and that Congress selected the language that it intended to apply).
(the interpretation of provisions of the RCM are questions of law that an appellate court reviews de novo).
United States v. Brown, 84 M.J. 124 (an appellate court reviews questions of statutory construction de novo; it is axiomatic that in determining the scope of a statute, the court looks first to its language; the inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent; of note, the court is not bound by the President's interpretation of the elements of substantive offenses; nonetheless, when the President's narrowing construction of a statute does not contradict the express language of a statute, it is entitled to some deference, and the court will not normally disturb that construction).
2022 (October Term)
United States v. Jeter, 84 M.J. 68 (when a statute speaks with clarity to an issue, judicial inquiry into the statutes meaning is finished; the basic and unexceptional rule is that courts must give effect to the clear meaning of the statute as written).
United States v. Anderson, 83 M.J. 291 (when Congress acts pursuant to its power to make rules for the government and regulation of the land and naval forces, judicial deference is at its apogee).
(Congress has primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military).
United States v. Mays, 83 M.J. 277 (questions about the meaning of statutes, including the meaning of the UCMJ’s punitive articles, are questions of law that an appellate court reviews de novo).
(the rule of lenity generally holds that criminal statutes are to be strictly construed, and any ambiguity resolved in favor of the accused; the rule, however, applies only in cases of significant ambiguity; because most statutes are ambiguous to some degree, the simple existence of some statutory ambiguity is not sufficient to warrant application of the rule; to invoke the rule, an appellate court must conclude that there is a grievous ambiguity or uncertainty in the statute).
United States v. Vargas, 83 M.J. 150 (an appellate court adheres to the plain meaning of any text—statutory, regulatory, or otherwise).
2021 (October Term)
United States v. Badders, 82 M.J. 299 (when faced with ambiguity regarding the meaning of discrete words or passages in a statute, an appellate court must examine the ambiguous phrase in its broader statutory context).
United States v. Edwards, 82 M.J. 239 (ordinary rules of statutory construction apply in interpreting the Rules for Courts-Martial).
United States v. Beauge, 82 M.J. 157 (one fundamental principle of statutory construction is that the plain language of a rule will control unless it leads to an absurd result).
(in determining whether statutory language is plain, an appellate court must look to the language itself, the specific context in which that language is used, and the broader context of the rule as a whole; where only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law, that meaning will prevail).
2020 (October Term)
United States v. Adams, 81 M.J. 475 (Congress’s 2016 amendments to Article 43, UCMJ, reduced the statute of limitations for indecent liberties with a child charged under Article 134, UCMJ, and sodomy with a child charged under Article 125, UCMJ, to five years – see US v. McPherson, 81 MJ 372 (CAAF 2021)).
(it is a cardinal principle of statutory construction that courts must give effect, if possible, to every clause and word of a statute; courts are obliged to give effect, if possible, to every word Congress used).
(the savings clause in the 2016 amendments to Article 43, UCMJ, did not apply in this case and prevent the five-year statute of limitations from barring the rehearing of indecent liberties with a child charged under Article 134, UCMJ, and sodomy with a child charged under Article 125, UCMJ, because the original charges were not dismissed as defective or insufficient for any cause but rather were repreferred as new charges for the same offenses with only minor changes and the government reassured the military judge that the new charges and specifications were exactly the same as the original charges; for the savings clause in Article 43(g), UCMJ, to apply, the original charges must have been dismissed because they were defective or insufficient in some manner).
United States v. Brubaker-Escobar, 81 M.J. 471 (in the Military Justice Act of 2016, § 5542(c)(1), 130 Stat. at 2967 (2016), as amended by NDAA 2018, § 531(n)(1), 131 Stat. at 1387 (2017), Congress gave the President the authority to designate the effective date of its provisions, as well as the duty to prescribe in regulations whether, and to what extent, the amendments made by the act shall apply to a case in which a specification alleges the commission, before the effective date of such amendments, of one or more offenses or to a case in which one or more actions under the UCMJ have been taken before the effective date of such amendments; the President then designated January 1, 2019, as the effective date of the MJA, except as otherwise provided in the MJA or his Executive Order No. 13,825 § 3(a), 83 Fed. Reg. 9889 (March 1, 2018); as one of those exceptions, the President ordered that if an accused is found guilty of committing at least one offense before January 1, 2019, Article 60, UCMJ, as in effect on the date of the earliest offense of which the accused was found guilty, shall apply to the convening authority to the extent that Article 60 requires action by the convening authority on the sentence, or authorizes the convening authority to approve, disapprove, commute, or suspend a sentence in whole or in part; unlike the new Article 60a, the old version of Article 60, states that action on the sentence of a court-martial shall be taken by the convening authority; therefore, in any case where an accused is found guilty of at least one specification where the offense was committed before January 1, 2019, a convening authority errs if he fails to take one of the following mandated post-trial actions in a case: approve, disapprove, commute, or suspend the sentence of the court-martial in whole or in part).
United States v. McPherson, 81 M.J. 372 (laws enacted with good intention when put to the test, frequently, and to the surprise of the law maker himself, turn out to be mischievous, absurd, or otherwise objectionable; but absent exceptional circumstances, the remedy for such laws lies with the lawmaking authority, and not with the courts; to disregard the plain meaning of a statute, an appellate court would have to find justification for wrenching from the words of a statute a meaning which literally they do not bear in order to escape consequences thought to be absurd or to entail great hardship).
(questions of statutes of limitations are fundamentally matters of legislative decision, and a statute of limitations may provide for a different result from the general rule that a statute of limitations in effect at the time of the offense controls).
(the heading of a section of a statute cannot limit the plain meaning of the text of that statute).
(an unintentional drafting gap in a statute is insufficient to warrant judicial correction; correction is the province of Congress in cases where an admittedly anomalous result may seem odd, but is not absurd).
(in very limited circumstances, a court can refuse to apply the literal text of a statute when doing so would produce an absurd result).
(a departure from the letter of the law may be justified to avoid an absurd result if the absurdity is so gross as to shock the general moral or common sense).
(a litigant who asks a court to apply the absurdity doctrine should explain in detail why following the plain meaning of a statute would produce absurd results).
(all statutes of limitations prevent some perpetrators from being brought to justice).
(statutes of limitations balance the need for enforcing laws on the merits against the need for repose and concerns about the staleness of evidence).
(a party’s argument that a court should reject a literal reading of a statute because it produces absurd results fails if Congress could rationally have made such a reading the law)
(internal inconsistency in legislation may be a ground for applying the absurdity doctrine).
(the absurdity doctrine focuses on the inherent absurdity of the results of interpreting statutes according to their plain meaning).
(it is ultimately the provisions of laws rather than the principal concerns of the legislators that govern).
(under the doctrine of repose, criminal statutes of limitation are to be liberally interpreted in favor of repose).
(given that they are to be liberally interpreted in favor of repose, statutes of limitations ought not be extended by construction to embrace crimes not so denominated).
(because courts must liberally construe ambiguous criminal statutes of limitations in favor of repose, it could not be absurd to construe them according to their plain text, when the plain text is also in favor of repose).
(under the rule of lenity, ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity).
(it is doubtful that the rule of lenity applies to the interpretation of statutes of limitations; but interpreting a statute of limitations contrary to its plain meaning so that it disadvantages the accused certainly seems to contradict the general thrust of the rule).
(a statute cannot revive an expired period of limitations because to do so would be an unconstitutional violation of the Ex Post Facto Clause).
(courts are not empowered to repair a congressional oversight or mistake in a statute because enlargement of a statute by a court, so that what was omitted, presumably by inadvertence, may be included within its scope, transcends the judicial function).
United States v. Tyler, 81 M.J. 108 (ordinary rules of statutory construction apply in interpreting the RCM).
(it is a general rule of statutory construction that if a statute is clear and unambiguous—that is, susceptible to only one interpretation—an appellate court uses its plain meaning and apply it as written).
(an appellate court may also resort to case law to resolve any ambiguity in a statute, although fundamentally case law must comport with the statute, not vice versa).
(an appellate court assumes that Congress is aware of existing law when it passes legislation).
United States v. Brown, 81 M.J. 1 (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).
2019 (October Term)
United States v. Bergdahl, 80 M.J. 230 (courts adhere to the plain meaning of any text—statutory, regulatory, or otherwise).
2018 (October Term)
United States v. Stout, 79 M.J. 168 (the plain language of a statute will control, unless use of the plain language would lead to an absurd result).
United States v. Voorhees, 79 M.J. 5 (when a statute is silent as to mens rea, an appellate court only reads into the statute that mens rea which is necessary to separate wrongful conduct from innocent conduct; a statute’s silence can be indicative of a general intent scienter).
United States v. Harris, 78 M.J. 434 (when a term is not statutorily defined, an appellate court accords that term its ordinary meaning).
United States v. McDonald, 78 M.J. 376 (as in all statutory construction cases, a court begins with the language of the statute).
(Congress is presumed to be aware of existing law when it passes legislation, and thus in interpreting a statute, courts must take into account the contemporary legal context at the time the statute was passed).
(it is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme).
(a court typically seeks to harmonize independent provisions of a statute).
(where Congress includes particular language in one section of a statute but omits it in another section of the same act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion).
(where Congress has clearly implied a mens rea, a court is obliged to respect that legislative intent).
United States v. Kohlbek, 78 M.J. 326 (under the constitutional canon of statutory construction, statutes should be interpreted in a way that avoids placing their constitutionality in doubt).
(under the presumption of validity canon of statutory construction, an interpretation of a statute or rule that renders it valid is preferable to an interpretation that would invalidate the rule).
(under Article 36(a), UCMJ, the President may, so far as he considers practicable, prescribe regulations for courts-martial that apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with the UCMJ).
United States v. Briggs, 78 M.J. 289 (legislative history is not the law and courts do not inquire what the legislature meant but instead ask only what the statute means).
2017 (October Term)
United States v. Barry, 78 M.J. 70 (in the absence of some other indication, a modifier in a statute typically applies to an entire series).
United States v. Hendrix, 77 M.J. 454 (when a term is not statutorily defined, a court accords it its ordinary meaning).
(in this case, the military judge erred in finding a violation of RCM 707 and he therefore had no basis to dismiss the charge and specifications with prejudice, where the government exercised no subterfuge or improper reason in dismissing and repreferring the charges against appellant; the convening authority’s dismissal of charges with the intent to reprefer did not imply subterfuge or an improper reason; rather, dismissal and repreferral were fully permissible under the provisions of RCM 707 because there was no indication the government was engaged in any sort of deception or dismissed the charges with the intention of evading or escaping the 120-day clock; to the contrary, the government appears to have behaved as if it were dismissing for the exact reasons it indicated, because the alleged victim declined to participate at trial and without her participation, the government did not have a strong case; in fact, following the dismissal, the convening authority referred the matter to a subordinate commander to take any administrative action he found appropriate; this step indicates that, without the alleged victim’s cooperation, the government had no intention of prosecuting the case; and repreferral occurred only after the alleged victim changed her mind and informed the government she would participate in the court-martial process).
United States v. Dinger, 77 M.J. 447 (one canon of statutory interpretation provides that if there is a conflict between a general provision and a specific provision, the specific provision prevails).
United States v. Kelly, 77 M.J. 404 (it is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme; as such, courts typically seek to harmonize independent provisions of a statute).
United States v. Andrews, 77 M.J. 393 (courts must give effect to the clear meaning of statutes as written and questions of statutory interpretation should begin and end with statutory text, giving each word its ordinary, contemporary, and common meaning; thus, as a first step in statutory construction, courts are obligated to engage in a plain language analysis of the relevant statute, and to apply the common and ordinary understanding of the words in the statute; these principles also apply to interpreting the rules and other provisions in the MCM).
United States v. Mooney, 77 M.J. 252 (it is a fundamental tenet of statutory construction to construe a statute in accordance with its plain meaning).
(regardless of how opaque the rationale for a statute might be, the plain language meaning must be enforced and is rebutted only in rare and exceptional circumstances).
United States v. Mangahas, 77 M.J. 220 (statutes of limitations represent the legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that the right to be free of stale claims in time comes to prevail over the right to prosecute them; thus, in the realm of criminal prosecution, after a certain time, no quantum of evidence is sufficient to convict; in addition, criminal statutes of limitations are to be liberally interpreted in favor of repose).
United States v. Jacobsen, 77 M.J. 81 (in interpreting a statute, an appellate court first looks to the text of the statute, and when statutory language is unambiguous, the statute’s plain language will control).
(it is a fundamental rule of statutory interpretation that a court afford all parts of a statute the same construction).
United States v. Bailey, 77 M.J. 11 (it is a well known principle that words in a statute that are generally known and in universal use do not need judicial definition).
2016 (October Term)
United States v. Reese, 76 M.J. 297 (courts 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, then, this first canon is also the last: judicial inquiry is complete).
United States v. Tucker, 76 M.J. 257 (as a first step in statutory construction, an appellate court is obligated to engage in a plain language analysis of the relevant statute).
United States v. Haverty, 76 M.J. 199 (the existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence; although there are exceptions, the general rule is that a guilty mind is a necessary element in the indictment and proof of every crime; however, the general rule that an accused must have a guilty mind does not mean that, as a general rule, an accused must know that his actions constitute criminal conduct).
(mens rea is not always required for criminal offenses; with strict liability offenses, the government is not required to prove that an accused had knowledge of the facts that make his or her actions criminal in order to secure a conviction; however, strict liability offenses are generally disfavored).
(silence in a criminal statute regarding a mens rea requirement does not necessarily prevent such a requirement from being inferred; courts must seek to discern any legislative intent about a mens rea requirement in a statute that is otherwise silent; if a court determines that Congress intended, either expressly or impliedly, to purposefully omit a mens rea requirement, then the court must respect that legislative intent; similarly, if a court determines that Congress intended, either expressly or impliedly, to have a particular mens rea requirement apply to a certain criminal statute, then the court must construe that statute accordingly; if, however, a statute is silent regarding a mens rea requirement, and if a court cannot discern the legislative intent in regard to that statute, then the court will infer a mens rea requirement consistent with the general rule that a guilty mind is a necessary element in the indictment and proof of every crime).
United States v. Ortiz, 76 M.J. 189 (under the plain meaning method of statutory interpretation, if a statute is unambiguous, the plain meaning of the words will control, so long as that meaning does not lead to an absurd result).
United States v. Sager, 76 M.J. 158 (the ordinary meaning canon of statutory construction provides that the words of a statute are to be taken in their natural and ordinary signification and import; the surplusage canon of statutory construction provides that, if possible, every word and every provision is to be given effect and that no word should be ignored or needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence).
(courts 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, then, the first canon of statutory construction is also the last, and judicial inquiry is complete).
(words and phrases used in the UCMJ are interpreted by examining the ordinary meaning of the language, the context in which the language is used, and the broader statutory context; in any such analysis, a court should give meaning to each word of the statute; only where the statute remains unclear does the court look next to the legislative history).
(canons of statutory construction ordinarily suggest that terms connected by a disjunctive be given separate meanings, unless the context dictates otherwise).
United States v. Wilson, 76 M.J. 4 (an appellate court reviews questions of statutory construction de novo).
(it is axiomatic that in determining the scope of a statute, an appellate court looks first to its language).
(the President has the power to prescribe regulations for trial procedures, including modes of proof, for cases arising under the UCMJ; however, this power does not extend to Part IV of the MCM, and an appellate court is not bound by the President’s interpretation of the elements of substantive offenses; still, when the President’s narrowing construction of a statute does not contradict the express language of a statute, it is entitled to some deference, and an appellate court will not normally disturb that construction).
2015 (September Term)
EV v. United States, 75 M.J. 331 (in construing statutes, jurisdictional and otherwise, an appellate court applies the accepted rules of statutory construction, and one is that an unambiguous statute is to be enforced according to its terms; 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. Rapert, 75 M.J. 164 (mens rea is Latin for guilty mind and refers to the state of mind an accused had when committing a crime; at common law, in order to secure a conviction the prosecution was required to prove two essential elements: the actus reus (or the guilty act) and the mens rea of the accused; this concept reflects the basic principle that wrongdoing must be conscious to be criminal and that an accused must be blameworthy in mind before he can be found guilty; thus, mens rea is the rule of, rather than the exception to, Anglo-American criminal jurisprudence).
(the fact that a statute prohibiting communicating a threat does not specify any required mental state does not mean that none exists; federal criminal liability generally does not turn solely on the results of an act without considering an accused’s mental state; federal criminal statutes that are silent on the required mental state must be read to require only that mens rea which is necessary to separate wrongful conduct from otherwise lawful conduct; absent this requirement, liability would turn on whether a reasonable person regards the communication as a threat, which would reduce culpability on the all-important element of the crime to mere negligence).
United States v. Pease, 75 M.J. 180 (words and phrases used in the UCMJ are interpreted by examining the ordinary meaning of the language, the context in which the language is used, and the broader statutory context).
United States v. Gifford, 75 M.J. 140 (the existence of a mens rea is the rule, rather than the exception to, the principles of Anglo-American criminal jurisprudence; the contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion but is instead universal and persistent in mature systems of law; if, at trial, the government is not required to prove that an accused had knowledge of the facts that make his or her actions criminal in order to secure a conviction, then the underlying crime is properly deemed a strict liability offense; while strict-liability offenses are not unknown to the criminal law, the limited circumstances in which Congress has created and appellate courts have recognized such offenses attest to their generally disfavored status).
(on the basis of the general disfavor for strict liability offenses, silence in a criminal statute - or a general order - does not prevent mens rea from being inferred; while courts should ordinarily resist reading words or elements into a statute that do not appear on its face, the mere omission from a criminal enactment of any mention of criminal intent should not be read as dispensing with it; rather, an indication of congressional intent is required to dispense with mens rea; thus, a mens rea requirement has been inferred by courts in instances where it was necessary to separate wrongful conduct from otherwise innocent conduct - even when the text of a statute was otherwise silent).
(the general rule that the government must prove an accused’s mens rea in order to secure a criminal conviction is not without exception; in limited circumstances, Congress may purposefully omit from a statute the need to prove an accused’s criminal intent, and courts are then obligated to recognize this congressional intent and conform their rulings accordingly; in certain instances, this class of legislation produces what is known as a “public welfare offense,” that uniquely focuses on “social betterment” or “proper care” rather than punishment).
(whether mens rea is a necessary facet of the crime is a question of legislative intent to be construed by the court; if such an intent can be identified, courts must construe the relevant statute accordingly).
United States v. Busch, 75 M.J. 87 (an increase in the maximum sentence to confinement authorized for a crime would clearly be ex post facto legislation; an ex post facto law has been defined as one that aggravates a crime, or makes it greater than it was, when committed).
(because in this case, the military judge did not rely on Executive Order No 13,643 that was promulgated after the accused’s offense, the ex post facto clause was not implicated).
2014 (September Term)
United States v. Schloff, 74 M.J. 312 (in the absence of any specific statutory definition of a word in a statute, a court looks to the ordinary meaning of the word).
(canons of statutory construction are tools designed to help courts better determine what Congress intended, not to lead courts to interpret the law contrary to that intent; however, these rules of thumb give way when the words of a statute are unambiguous).
United States v. Murphy, 74 M.J. 302 (it is axiomatic that in determining the scope of a statute, an appellate court looks first to its language; it further looks to provisions of related statutes; the same interpretive process is applied when analyzing a rule promulgated by the President in the MCM).
United States v. Simmermacher, 74 M.J. 196 (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).
(ordinary rules of statutory construction apply in interpreting the RCM).
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).
2010
(September Term)
United
States v. Medina, 69 M.J. 462 (the
responsibility clearly rests with
Congress to revise a statute to remedy an unconstitutional statutory
scheme;
although an appellate court will give a constitutional saving
construction when
possible, it is not the province of the court to rewrite a statute to
conform
to the Constitution, as that would invade the legislative domain).
United
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).
United
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
generally
presumed that Congress acts intentionally and purposely in the
disparate
exclusion).
United
States v. Hunter, 65 M.J. 399 (ordinary rules
of statutory construction
apply in interpreting the RCM).
2007
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).
2006
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).
2005
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).
2004
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).
2003
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).
2002
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).
2000
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).
1999
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).