U.S. Court of Appeals for the Armed Forces: A Brief Introduction

U.S. Court of Appeals for the Armed Forces: A Brief Introduction

December 22, 2022
U.S. Court of Appeals for the Armed Forces: A Brief
Introduction
The U.S. Court of Appeals for the Armed Forces (CAAF)
Judges
provides the exclusive forum for those convicted at courts-
The CAAF consists of five judges, including a chief judge;
martial under the Uniform Code of Military Justice (UCMJ)
the most senior judge serves as chief judge. Judges are
to appeal the decisions of the Army, Navy-Marine Corps,
nominated by the President and confirmed by the Senate for
Air Force, and Coast Guard Courts of Criminal Appeals
a fixed term of 15 years. (There is no statutory bar on
(CCAs), the military service branches’ appellate courts.
reappointing judges.) Nominations and hearings for
This In Focus describes the CAAF’s creation, jurisdiction,
prospective CAAF judges proceed through the Senate
authority, and procedures before identifying issues that may
Committee on Armed Services. Before the expiration of her
interest the 118th Congress.
term, a judge can be removed by the President only for
neglect of duty, misconduct, or mental or physical
Creation
disability. There are currently five active judges on the
Using its authority under Article I of the U.S. Constitution,
CAAF.
Congress established the CAAF (then called the Court of
Military Appeals) on May 5, 1950 (Pub. L. No. 81-506).
Judges must be civilians and cannot be appointed to the
(For more information on Article I courts, see CRS Report
CAAF within seven years of being a commissioned officer
R43746, Congressional Power to Create Federal Courts: A
in a regular component of the Armed Forces. Four of the
Legal Overview.) The National Defense Authorization Act
five current judges previously served in the military.
for FY1995 (P.L. 103-337) gave the CAAF its current
name. For administrative purposes only, the CAAF is part
In addition to active judges, the CAAF uses senior judges,
of the Department of Defense. The statutes governing the
who are former CAAF judges that are receiving retirement
CAAF are located in chapter 47, subchapters IX and XII of
pay or an annuity for their service. The chief judge may call
title 10 of the U.S. Code.
upon senior judges, with their consent, to perform judicial
duties during periods when an active judge is unable to
Jurisdiction and Authority
perform her duties due to illness or disability; there is a
The CAAF has exclusive jurisdiction over appeals of
vacancy on the court; or a judge recuses from a case. There
decisions of the CCAs, which, for their part, have exclusive
are currently eight senior judges.
jurisdiction over appeals of court-martial determinations.
Decisions and determinations made within the military
The chief judge may request that the Chief Justice of the
legal system concern alleged infractions of the UCMJ, the
United States designate an Article III judge of a U.S. court
governing criminal code for the U.S. Armed Forces. The
of appeals or district court to perform the duties of a CAAF
UCMJ applies to active-duty servicemembers; military
judge. The chief judge may do this in the same situations in
retirees receiving pay; reserve component and National
which a senior judge may be called upon to perform the
Guard members under particular conditions; and other
duties of a judge, provided that the chief judge determines
individuals delineated in 10 U.S.C. § 802. (For additional
that no senior judge is available. The Article III judge and
information on the military legal system, see CRS Report
the chief judge of the relevant U.S. court of appeals or
R46503, Military Courts-Martial Under the Military
district court must consent to such a designation.
Justice Act of 2016.)
Court Proceedings
As a general matter, the CAAF reviews legal issues without
Proceedings before the CAAF are adversarial. Government
deference to the determinations of lower courts. In these
attorneys are appointed to represent individuals by their
proceedings, the CAAF is to defer to lower courts’ factual
respective military service; individuals may also retain
findings and only overturn such findings if clearly
private counsel. The government is represented by attorneys
erroneous.
from the case’s originating military service branch. Only
attorneys who meet certain requirements may be admitted
The CAAF also has the authority under the All Writs Act,
to practice before the CAAF.
28 U.S.C. § 1651, to issue writs—special types of court
orders—to aid its jurisdiction. For example, the CAAF has
The CAAF generally sits in Washington, DC, but has the
issued writs of mandamus to compel officials to carry out
authority to sit anywhere in the United States. Several times
certain legally required functions and writs of prohibition
per year, the CAAF holds oral arguments at law schools
ordering lower courts to cease activities barred by law.
and military installations.
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U.S. Court of Appeals for the Armed Forces: A Brief Introduction
Appeals to CAAF
Appealing CAAF Decisions
There are three primary mechanisms by which the CAAF
The U.S. Supreme Court has exclusive jurisdiction to
hears cases. First, an accused may submit a petition for
review the CAAF’s decisions on a direct basis. The
grant of review of a CCA decision, which the CAAF can
Supreme Court can only review military cases that the
grant at its discretion for “good cause shown.” (The
CAAF has reviewed or in which the CAAF has granted
government may not petition for review.) At least two
some form of relief. If the CAAF denies review, the
judges must vote to grant a petition for grant of review for
Supreme Court does not have jurisdiction to review the case
the CAAF to hear the case. Second, the CAAF must review
on a direct basis. Any party, including the government, may
all cases in which the CCA has affirmed a sentence of
file a petition for a writ of certiorari seeking Supreme
capital punishment. Third, the court must review CCA
Court review of a CAAF decision.
decisions that a military service branch Judge Advocate
General orders reviewed by the CAAF. This process is
Collateral Attacks on CAAF Decisions
called certification, and such cases are called certified
Federal district courts and the U.S. Court of Federal Claims
cases. Between October 2020 and September 2021 (the
(CFC) may review CAAF decisions in limited
October 2020 term), the CAAF received 344 petitions for
circumstances. At federal district courts, individuals can
grant of review, of which it granted 52. In addition, the
challenge CAAF determinations through petitions for writs
CAAF received four certified cases and two cases requiring
of habeas corpus. (For additional information on federal
mandatory review.
habeas corpus, see CRS Report RL33391, Federal Habeas
Corpus: A Brief Legal Overview.) At the CFC, individuals
Petitions for Extraordinary Writs
can challenge CAAF determinations through claims for
An accused may petition the CAAF for extraordinary writs
military back pay alleging wrongful discharge. Both of
that would, for example, compel lower courts and officials
these avenues generally entail challenging military courts’
to carry out legally required actions or refrain from carrying
jurisdiction over a case or military courts’ constitutional
out legally barred actions. In general, petitioning CAAF for
analyses.
an extraordinary writ mimics the process for petitioning for
a grant of review. During the October 2020 term, CAAF
Challenges to military courts’ legal determinations in
received 21 petitions for extraordinary writs but granted
federal district courts and the CFC do not depend on grant
none.
of review by the CAAF. Cases that are denied review by the
CAAF can therefore potentially still be reviewed by the
Filing and Recordings
Supreme Court following appeals from federal district
Parties can file case materials with the CAAF on paper or
courts and the CFC to federal appellate courts.
via email. The CAAF records its hearings and makes audio
recordings available to the public at no cost.
Issues for Congress
The House and Senate Armed Services Committees, and
Types of Decisions
their respective Subcommittees on Military Personnel, have
A panel of all five CAAF judges hears and decides all cases
authorizing jurisdiction over the CAAF. The House and
before the court. Most cases include hearings during which
Senate Appropriations Committees, and their respective
the parties present oral argument to the panel. The court
Subcommittees on Defense, have appropriations
grants each party 20 minutes to present their arguments. At
jurisdiction over the CAAF.
its discretion, however, the court can decide cases without a
hearing.
Appeals to the U.S. Supreme Court
Currently, the U.S. Supreme Court has jurisdiction over
The judges regularly meet in conference to discuss recently
direct appeals of CAAF decisions only if the CAAF
argued cases and tentatively vote on the outcomes. If the
reviews the case in question. Since most of CAAF’s
chief judge is in the majority, he or she will assign
decisions result from petitions for grant of review, and since
responsibility for drafting the opinion to a judge in the
the CAAF denies most of those petitions, the Supreme
majority. If the chief judge is not in the majority, the most
Court does not have direct appellate jurisdiction over most
senior judge in the majority will assign responsibility for
military cases. Proponents of the current scope of review
the majority opinion. Once the assigned judge drafts a
argue that it enables quicker final decisions in military
majority opinion, it is circulated among the other judges,
cases and gives a court with special competence in military
who then have the chance to concur, offer comments, or
law substantial authority over military legal matters.
draft and submit separate statements, such as concurrences
Conversely, some argue that this limited review affords
or dissents. Once all judges have had an opportunity to
servicemembers less access to Supreme Court review than
express their views in writing, the opinion, including any
civilians. In light of these arguments, Congress may
separate statements, is published. During the October 2020
consider the scope of the Supreme Court’s jurisdiction over
term, the CAAF issued 59 decisions, of which 42 affirmed
military cases as delineated in 28 U.S.C. § 1259.
lower court determinations, 12 reversed (in whole or in
part) lower court decisions, and 5 involved other
Andreas Kuersten, Legislative Attorney
resolutions.
IF12296

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U.S. Court of Appeals for the Armed Forces: A Brief Introduction

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