89–006 

111TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 111–547 

EQUAL JUSTICE FOR OUR MILITARY ACT OF 2010 

JULY 15, 2010.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. CONYERS, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 569] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 569) to amend titles 28 and 10, United States Code, to allow 

for certiorari review of certain cases denied relief or review by the 

United States Court of Appeals for the Armed Forces, having considered the same, reports favorably thereon with an amendment 

and recommends that the bill as amended do pass. 

CONTENTS 

Page 

The Amendment ...................................................................................................... 2 

Purpose and Summary ............................................................................................ 2 

Background and Need for the Legislation ............................................................. 3 

Hearings ................................................................................................................... 8 

Committee Consideration ........................................................................................ 8 

Committee Votes ...................................................................................................... 8 

Committee Oversight Findings ............................................................................... 8 

New Budget Authority and Tax Expenditures ...................................................... 9 

Congressional Budget Office Cost Estimate .......................................................... 9 

Performance Goals and Objectives ......................................................................... 10 

Constitutional Authority Statement ...................................................................... 10 

Advisory on Earmarks ............................................................................................. 10 

Section-by-Section Analysis .................................................................................... 10 

Changes in Existing Law Made by the Bill, as Reported ..................................... 11 

Dissenting Views ..................................................................................................... 12 


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THE AMENDMENT

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Equal Justice for Our Military Act of 2010’’. 

SEC. 2. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES. 

(a) IN GENERAL.—Section 1259 of title 28, United States Code, is amended— 

(1) in paragraph (3), by inserting ‘‘or denied’’ after ‘‘granted’’; and 

(2) in paragraph (4), by inserting ‘‘or denied’’ after ‘‘granted’’. 

(b) TECHNICAL AND CONFORMING AMENDMENTS.— 

(1) TITLE 10.—Section 867a(a) of title 10, United States Code, is amended 

by striking ‘‘The Supreme Court may not review by a writ of certiorari under 

this section any action of the Court of Appeals for the Armed Forces in refusing 

to grant a petition for review.’’. 

(2) TIME FOR APPLICATION FOR WRIT OF CERTIORARI.—Section 2101(g) of title 

28, United States Code, is amended to read as follows: 

‘‘(g) The time for application for a writ of certiorari to review a decision of the 

United States Court of Appeals for the Armed Forces, or the decision of a Court of 

Criminal Appeals that the United States Court of Appeals for the Armed Forces refuses to grant a petition to review, shall be as prescribed by rules of the Supreme 

Court.’’. 

SEC. 3. EFFECTIVE DATE. 

(a) IN GENERAL.—Subject to subsection (b), the amendments made by this Act 

shall take effect upon the expiration of the 180-day period beginning on the date 

of the enactment of this Act and shall apply to any petition granted or denied by 

the United States Court of Appeals for the Armed Forces on or after that effective 

date. 

(b) AUTHORITY TO PRESCRIBE RULES.—The authority of the Supreme Court to 

prescribe rules to carry out section 2101(g) of title 28, United States Code, as 

amended by section 2(b)(2) of this Act, shall take effect on the date of the enactment 

of this Act. 

PURPOSE AND SUMMARY

The purpose of H.R. 569, the ‘‘Equal Justice for Our Military Act 

of 2010,’’ is to give servicemembers greater opportunity to seek Supreme Court review of court-martial decisions. Under current law, 

the Supreme Court has limited jurisdiction to hear appeals of 

court-martial decisions from the military’s highest court, the Court 

of Appeals for the Armed Forces (CAAF). Specifically, the Supreme 

Court lacks jurisdiction to hear appeals of 1) court-martial decisions that were declined review by the CAAF, 2) decisions by the 

CAAF that deny extraordinary relief, whether on direct appeal to 

the CAAF or in writ appeals from lower military appellate courts, 

and 3) some decisions by the CAAF to deny interlocutory appeals. 

In all these cases, servicemembers have an inferior right to access the Supreme Court when compared to the government within 

the military justice system, civilians within the civilian court system, and even enemy combatants tried by military commissions. 

H.R. 569 seeks to correct this imbalance by amending 28 U.S.C. 

§ 1259 to allow servicemembers whose appeals are denied review by 

the CAAF, or who were denied extraordinary relief or interlocutory 

appeals by the CAAF, the opportunity to seek Supreme Court review of these decisions by writ of certiorari. 


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1Pub. L. No. 81–506, 64 Stat. 107 (1950). 

210 U.S.C. § 866(b). Each service branch has its own Court of Criminal Appeals. 

310 U.S.C. § 867(1). 

410 U.S.C. § 867(2). The JAG’s certification process is usually used to compel the CAAF to 

hear a case in which the United States lost at the Court of Criminal Appeals level. Kevin J. 

Barry, A Face Lift (And Much More) For an Aging Beauty: The Cox Commission Recommendations to Rejuvenate the Uniform Code of Military Justice, 2002 L. Rev. M.S.U.-D.C.L. 57, 82 

(2002). 510 U.S.C. § 867(3). 

629 U.S.C. § 1259(1)–(4). 

7Letter from Daniel J. Dell’ Orto, Acting General Counsel, U.S. Dept. of Defense, to Senator 

Carl Levin, Chairman, Comm. on the Armed Services, U.S. Senate (Jun. 27, 2008) (on file with 

Committee) [Hereinafter ‘‘Dell’ Orto Letter’’]. 

BACKGROUND AND NEED FOR THE LEGISLATION

The Uniform Code of Military Justice (UCMJ), enacted in 1950,1

is the foundation of the modern military justice system. Among 

other things, the UCMJ authorizes the court-martial as the primary mechanism to establish the guilt or innocence of 

servicemembers accused of a crime. The UCMJ requires that courtmartial convictions that result in sentences that include dismissal 

of a commissioned officer, cadet, or midshipman; dishonorable or 

bad-conduct discharge; confinement of 1 year or longer; or death, 

must be reviewed by an intermediate Court of Criminal Appeals.2

Servicemembers may seek further appellate review from the military’s highest court, the Court of Appeals for the Armed Forces 

(CAAF). 

The CAAF is required to hear all cases where a Court of Criminal Appeals affirmed a sentence of death,3 and all cases the Judge 

Advocate General (JAG) certifies for review by the CAAF.4 The 

CAAF has discretion to review all other appeals coming from the 

Courts of Criminal Appeals where appellants make a showing of 

good cause.5 Further review by the Supreme Court of appellate 

CAAF decisions is limited by statute. 

Section 1259 of Title 28 provides the Supreme Court with jurisdiction to grant writs of certiorari to review appeals from the CAAF 

in four specific circumstances: (1) decisions where a death sentence 

was affirmed by a Court of Criminal Appeals; (2) court-martials 

that the JAG had earlier certified for CAAF review; (3) courtmartials in which the CAAF granted a petition for review; (4) and 

decisions by the CAAF to grant relief that do not already fall into 

one of the other categories.6 This last category generally applies to 

writs for extraordinary relief and writ appeals from Courts of 

Criminal Appeals. 

Pursuant to these limitations, the Supreme Court does not have 

jurisdiction to review court-martial decisions that the CAAF has 

declined to review. Similarly, the Supreme Court does not have jurisdiction to review decisions by the CAAF that deny relief on a petition for extraordinary relief or a writ appeal. These limitations 

preclude hundreds of servicemembers from seeking Supreme Court 

review every year. According to data provided by the Department 

of Defense, between fiscal years 2001 and 2005, 4125 petitions 

were filed seeking CAAF review. Of these, 635, or roughly 16%, 

were granted review, while the remainder, 3377, were either denied review or dismissed.7 More current statistics provided by the 

Supreme Court indicate that between October 1, 2005 and August 


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8Letter from Jeffrey P. Minear, Counselor to the Chief Justice, Supreme Court of the United 

States, to Hon. Henry C. ‘‘Hank’’ Johnson, Chairman, Subcommittee on Courts and Competition 

Policy, U.S. House of Representatives (June 18, 2009) (on file with Committee) [Hereinafter 

‘‘Minear Letter’’]. 9H.R. 569, the ‘‘Equal Justice for Our Military Act of 2009,’’ Hearing Before the Subcomm. 

on Courts and Competition Policy, Comm. on the Judiciary, 111th Cong. 4 (2009) (written statement of H. Thomas Wells, Jr., President, American Bar Association) [Hereinafter ‘‘ABA Testimony’’]. 10Letter from Ralph P. Albrecht, President, Bar Association of the District of Columbia, to 

Representative Susan Davis, U.S. House of Representatives (June 5, 2009) (on file with Committee). 11Report of the Commission on Military Justice, 7 (Oct. 2009). This commission, often referred 

to as the Cox Commission, named after its chair, Hon. Walter T. Cox, III, was formed in November 2000 by the National Institute of Military Justice to identify and assess potential improvements to the UCMJ. 12During the full Committee mark-up of H.R. 569, Members of the Minority charged that the 

bill was introduced primarily for the benefit of a single individual, former Navy Officer Norbert 

Basil MacLean, III. In fact, a number of individuals and organizations have taken note of the 

inherent injustice of the current law. Additionally, it should be pointed out that H.R. 569 applies 

only to court-martials that were initiated on or after the effective date of the Act, which thereby 

forecloses any personal benefit to Mr. MacLean, whose court-martial was concluded well before 

this legislation was introduced. 

31, 2008, the CAAF denied 2274 petitions for review.8 Coupled 

with a yearly average of 21 extraordinary relief petition denials, 

there are approximately 800 court-martial decisions per year in 

which servicemembers are denied the opportunity to seek certiorari 

from the Supreme Court. 

The Committee has received testimony, letters, and documents 

from a number of sources decrying the injustice of these limitations 

on the Supreme Court’s jurisdiction. The American Bar Association 

has noted that ‘‘this is a blatantly unfair procedural system stacked 

against the servicemember.’’ 9 The District of Columbia Bar Association has stated that ‘‘our servicemembers deserve better than 

this disparity in our laws governing procedural due process. . . .’’ 10 And the Commission on Military Justice, chaired by 

Hon. Walter T. Cox, III, former Chief Judge of the Court of Appeals 

for the Armed Forces (1995–1999), concluded that the ‘‘CAAF 

serves as an unnecessary and unwise gatekeeper to Supreme Court 

review.’’ 11 Other supporters of H.R. 569 include the Military Officers Association of America, the Fleet Reserve Association, the 

Jewish War Veteran’s Association of America, and the National Association of Criminal Defense Lawyers.12

INEQUITIES OF CURRENT LIMITATIONS ON

THE SUPREME COURT’S JURISDICTION

The Supreme Court’s limited jurisdiction over UCMJ cases gives 

the government significant advantage over servicemembers in access to full appellate review within the current military justice system. In this regard, servicemembers have inferior rights not only 

when compared to the government, but when compared to civilians, 

and even to enemy combatants. 

First, as discussed above, JAG certification automatically places 

a court-martial decision within the Supreme Court’s jurisdiction. 

Thus, through certification, the government always has the power 

to compel the CAAF to review any court-martial decision it chooses, 

and can pursue certiorari in the Supreme Court if dissatisfied with 

the CAAF’s decision. First, as discussed above, JAG certification 

automatically places a court-martial decision within the Supreme 

Court’s jurisdiction. Thus, through certification, the government always has the power to compel the CAAF to review any court-marVerDate Mar 15 2010 00:55 Jul 16, 2010 Jkt 089006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6601 E:\HR\OC\HR547.XXX HR547

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1328 U.S.C. § 1291. 1428 U.S.C. § 1254. While the Supreme Court has ruled there is no constitutional right to appeal, the right to appeal has been established by statute. Pennsylvania v. Finley, 481 U.S. 551, 

556–57 (1987) (citing McKane v. Durston, 153 U.S. 684, 687–88 (1894)). 15See generally, Daniel E. Hall, Criminal Law and Procedure, 525–526 (5th Ed. 2009). See 

also, Griffin v. Illinois, 351 U.S. 12, 18 (1956)(‘‘All of the States now provide some method of 

appeal from criminal convictions, recognizing the importance of appellate review to a correct adjudication of guilt or innocence.’’) 1628 U.S.C. § 1257. 1710 U.S.C. § 950g(d). 

tial decision it chooses, and can pursue certiorari in the Supreme 

Court if dissatisfied with the CAAF’s decision. In contrast, most 

cases appealed by servicemembers to the CAAF must rely on the 

CAAF to exercise its discretionary review authority to review the 

case. If the CAAF declines to exercise its discretion to review, that 

decision is not reviewable and servicemembers have no direct appellate rights. 

Second, virtually all petitions for extraordinary relief or writ appeals are filed by accused servicemembers asserting constitutional 

rights. For these petitions, a decision granting relief benefits the 

servicemember, and a decision denying relief upholds the government’s position against the servicemember’s assertion of those 

rights. So the fact that the Supreme Court has jurisdiction to review petitions for extraordinary relief or writ appeals when relief 

is granted by the CAAF, but not when relief is denied by the 

CAAF, further unfairly tips the scales of justice in favor of the government and against the servicemember. 

In contrast with servicemembers tried in military courts, civilian 

criminal defendants in either the Federal or State court systems 

are not denied the opportunity to appeal to the Supreme Court if 

lower appellate courts deny relief, or decline review. In the civilian 

context, criminal defendants tried in the Federal court system have 

a right of appeal to Federal appellate courts,13 and if they lose on 

appeal, they have a right to petition the Supreme Court for further 

review.14 In addition, criminal defendants tried in State courts generally have the right to appeal to an intermediate appellate court 

and may petition their highest State court for further review.15 If 

denied review by their highest State court, criminal defendants advancing a defense based on a constitutional or other Federal question may petition the Supreme Court for further review.16

Ironically, even the rudimentary due process given enemy combatants is denied the servicemembers who are defending our nation 

against them. Under the Military Commissions Act, the due process rights accorded alien enemy combatants specifically include the 

right to appeal to the Supreme Court if lower courts deny relief or 

review.17

IMPACT ON MILITARY READINESS

The Committee rejects assertions that this legislation would have 

an adverse impact on the military’s morale or discipline. It is clear 

that the existing limitations on the Supreme Court’s jurisdiction 

have no basis in military necessity. When Supreme Court jurisdiction to review appeals was added to the UCMJ by the Military Justice Act of 1983, there was never any mention that the scope of jurisdiction was limited for reasons of military necessity. In fact, the 

report accompanying the 1983 bill specifies that the limitations on 

the Supreme Court’s jurisdiction embodied in 28 U.S.C. § 1259 were 


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18H.R. Rep. No. 98–549, at 16–17 (‘‘In view of current concerns about the Supreme Court’s 

docket, the legislation has been drafted in a manner that will limit the number of cases subject 

to direct Court review.’’) The Committee notes that the Supreme Court currently hears approximately one-half the number of cases that it heard in 1983. 19Id. at 17. 20H.R. 569, the ‘‘Equal Justice for Our Military Act of 2009,’’ Hearing Before the Subcomm. 

on Courts and Competition Policy, Comm. on the Judiciary, 111th Cong. 39 (2009) (statement 

of General John D. Altenburg, former Deputy Judge Advocate for the Army). 21Dell’ Orto Letter, supra note 7. 

solely intended to minimize the potential impact on the Supreme 

Court’s docket.18 The Committee report provided no military justification for the limitations and stated that despite granting the 

Supreme Court jurisdiction over some court-martial decisions, the 

military court system would ‘‘remain the primary source of judicial 

authority under the Uniform Code of Military Justice.’’ 19 The Committee notes that H.R. 569 similarly does not overturn, amend, or 

change in any way the deference the Supreme Court has historically shown to military laws and regulations. 

Nor is there any evidence that the original limited grant of Supreme Court jurisdiction over court martial decisions made by the 

Military Justice Act of 1983 had any discernable effect on military 

readiness. In the years following enactment, there was no evidence 

of damage to the military’s morale, discipline, or readiness. No 

credible evidence has been presented to suggest that augmenting 

Supreme Court jurisdiction in this respect would create a different 

result. 

In conclusion, the Committee does not believe H.R. 569 will have 

any negative impact on the good order and discipline of the military. This conclusion is shared by a number of experts in the field, 

including General John D. Alternburg, former Deputy Judge Advocate for the Army, who served as an expert witness at the Subcommittee’s hearing on H.R. 569. General Alternburg, who opposes 

the bill on other grounds, testified that ‘‘I disassociate myself with 

anyone who has stated that to give this right to soldiers . . . 

would, in some way, undermine discipline or undermine authority 

or lower discipline or harm the military . . . [H.R. 569] would in 

no way harm the military.’’ 20

BURDENS AND COSTS ASSOCIATED WITH THE ACT

The Committee has explored the potential burden placed on military and other Federal legal resources by enactment of this legislation, and concludes that any additional burden or associated costs 

would be minimal. 

In a 2008 letter to Congress, the Department of Defense raised 

concerns that passage of S. 2052, a similar bill, would ‘‘require 

legal reviews and briefs from numerous counsel in the military departments’ Government and Defense Appellate Divisions, the Department of Defense Office of General Counsel, as well as within 

the Office of the Solicitor General and the Supreme Court.’’ 21 However, in evaluating the current legislation, the Congressional Budget Office (CBO) stated that the bill would not affect direct spending 

or revenues, that it would cost less than $1 million each year to 

administer, and that only a small portion of the individuals who 

would be eligible to seek appellate review by the Supreme Court 

would do so. This conclusion is supported by the available evidence. 


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22Minear Letter, supra note 8. 23Id. 24H.R. 569, the ‘‘Equal Justice for Our Military Act of 2009,’’ Hearing Before the Subcomm. 

on Courts and Competition Policy, Comm. on the Judiciary, 111th Cong. 30 (2009) (statement 

of Dwight Sullivan, Civilian Appellate Defense Counsel, United States Air Force Appellate Defense Division). 25ABA Testimony, supra note 9. 26Austin v. United States, 513 U.S. 5, 8 (1994). 

Experience with the current limitations to Supreme Court jurisdiction has demonstrated that most servicemembers eligible to petition for certiorari do not do so. According to a 2009 letter to Congress from Jeffrey P. Minear, Counselor to the Chief Justice of the 

United States Supreme Court, ‘‘[h]istorical records indicate that 

from ten to fifteen percent of the individuals whose convictions and 

sentences are upheld by the CAAF after full discretionary review 

have filed a petition for a writ of certiorari in the Supreme 

Court.’’ 22 Extrapolating from this experience, Mr. Minear indicated 

that providing expanded Supreme Court review of court-martial decisions pursuant to H.R. 569 would result in approximately 120 additional petitions for certiorari each year.23 Even lower estimates 

of up to 88 petitions per year were provided in the expert witness 

testimony of Colonel Dwight Sullivan received by the Subcommittee during the legislative hearing on H.R. 569.24 This estimate was further endorsed in the written testimony of the American Bar Association.25

For court-martial decisions that are appealed, prudent limitations already established by the Supreme Court will limit when 

counsel may aid servicemembers in filing petitions for certiorari. In 

Austin v. United States, the Supreme Court held that if counsel 

does not believe there is a non-frivolous basis for appeal in a case, 

counsel must advise his or her client of the right to file a certiorari 

petition, but counsel may not file the petition on the client’s behalf.26 This prohibition on filing frivolous certiorari petitions applies equally to all counsel permitted to practice before the Supreme Court, whether they are appointed military counsel provided 

to servicemembers free of charge, or private counsel hired at 

servicemembers’ expense. This prohibition serves a gatekeeping 

function that will limit petitions filed by counsel to only non-frivolous issues, thereby also limiting the burden and costs incurred by 

military legal resources and the Supreme Court. 

When counsel has determined that there is a non-frivolous issue 

upon which to base a certiorari petition to the Supreme Court, the 

Solicitor General, with the support of the JAG, is responsible for 

responding on behalf of the government to servicemembers’ petitions for certiorari. However, it is common practice for the Solicitor 

General to waive the government’s right to respond until, and unless, the Supreme Court requests a response. As such, the costs 

borne by the Department of Justice and military legal resources in 

responding to writs of certiorari will generally be limited to those 

few cases the Supreme Court deems worthy of further review. 

Finally, servicemembers who are without counsel but still interested in pursuing a certiorari petition to the Supreme Court may 

represent themselves pro se before the Supreme Court. While few 

will likely pursue appeal without counsel, those that do will most 

likely file certiorari petitions in forma pauperis, given the limited 

means of most servicemembers. There were 6,142 in forma 


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27John G. Roberts, Chief Justice, United States Supreme Court, 2009 Year-End Report on the 

Federal Judiciary 1 (Dec. 31, 2009), http://www.supremecourtus.gov/publicinfo/year-end/ 

2009year-endreport.pdf. 

pauperis filings in the Supreme Court’s 2008–2009 term.27 It is unlikely that many of the additional 800 court-martial decisions made 

eligible for appeal to the Supreme Court per year by the Act will 

in fact lead to in forma pauperis filings. Even if a substantial portion do, they would represent a small fraction of total filings, and 

the Supreme Court could exercise its discretion to decline any such 

petitions, as is currently the case. 

CONCLUSION

The Committee finds the current limitations in the Supreme 

Court’s jurisdiction to hear court-martial decisions by writ of certiorari, as provided in 28 U.S.C. 1259(3) and (4), unfair to United 

States servicemembers. In the absence of a compelling military justification, and in light of the likely minimal burden to military and 

other government legal resources, the Committee finds no justification for maintaining these limitations. Accordingly, the Committee 

concludes that decisions by the CAAF to decline review of courtmartial decisions, and to deny relief for extraordinary writs or writ 

appeals, should be appealable to the Supreme Court by writ of certiorari. 

HEARINGS

The Committee’s Subcommittee on Courts and Competition Policy held 1 day of hearings on H.R. 569, on June 11, 2009. Testimony was received from the Honorable Susan Davis, Member of 

Congress, 53rd District, State of California; Major General (Ret.) 

John D. Altenburg, Jr., United States Army, and of Counsel, 

Greenberg Traurig, LLP; and Colonel Dwight H. Sullivan, United 

States Marine Corps Reserve, and a Senior Civilian Appellate Defense Counsel, Air Force Appellate Defense Division. Additionally, 

a statement was submitted by Mr. Thomas H. Wells, Jr., President, 

American Bar Association. 

COMMITTEE CONSIDERATION

On July 30, 2009, the Subcommittee on Courts and Competition 

Policy met in open session and ordered the bill H.R. 569 favorably 

reported, with an amendment, by voice vote, a quorum being 

present. On January 27, 2010, the Committee met in open session 

and ordered the bill H.R. 569 favorably reported without amendment, by voice vote, a quorum being present. 

COMMITTEE VOTES

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that there were 

no recorded votes during the Committee’s consideration of H.R. 

569. 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that the findings 


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and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, H.R. 569, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, February 2, 2010. 

Hon. JOHN CONYERS, Jr., Chairman, 

Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 569, the ‘‘Equal Justice 

for Our Military Act of 2010.’’ 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Mark Grabowicz, who 

can be reached at 226–2860. 

Sincerely, 

DOUGLAS W. ELMENDORF, 

DIRECTOR. 

Enclosure 

cc: Honorable Lamar S. Smith. 

Ranking Member 

H.R. 569—Equal Justice for Our Military Act of 2010. 

H.R. 569 would allow the U.S. Supreme Court to review certain 

cases involving court-martialed servicemembers facing dismissal, 

discharge, or imprisonment. Under the bill, such servicemembers 

could file a petition for Supreme Court review even if the Court of 

Appeals for the Armed Forces (CAAF) denied review of their cases. 

Under current law, Supreme Court review is limited to cases the 

CAAF has reviewed or has granted a petition for extraordinary relief or cases with a sentence of death. 

Based on information provided by the Department of Defense 

(DoD) and the Supreme Court, CBO estimates that implementing 

the bill would increase the workload of DoD attorneys and Supreme Court clerks and would cost less than $1 million each year, 

assuming the availability of appropriated funds. We expect that the 

bill would make several hundred servicemembers eligible to file petitions each year, but that only a small portion of those individuals 

would pursue review by the Supreme Court (based on the experience of individuals whose cases currently qualify for Supreme 


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Court review). CBO cannot predict whether the Supreme Court 

would grant review of any particular petition. If the Supreme Court 

agreed to review any petitions, DoD would probably spend no more 

than $1 million in any year from appropriated funds to defend 

those cases. (Any such amounts would depend on the number and 

complexity of such cases.) Enacting H.R. 569 would not affect direct 

spending or revenues. 

H.R. 569 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

not affect the budgets of State, local, or tribal governments. 

The CBO staff contact for this estimate is Mark Grabowicz. The 

estimate was approved by Theresa Gullo, Deputy Assistant Director for Budget Analysis. 

PERFORMANCE GOALS AND OBJECTIVES

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, H.R. 569 will give the 

Supreme Court jurisdiction to hear appeals of court-martial decisions that were declined review by the Court of Appeals for the 

Armed Forces, and decisions by the Court of Appeals for the Armed 

Forces that deny extraordinary relief or an interlocutory appeal. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee finds the authority for this legislation in article I, section 8 of the Constitution. 

ADVISORY ON EARMARKS

In accordance with clause 9 of rule XXI of the Rules of the House 

of Representatives, H.R. 569 does not contain any congressional 

earmarks, limited tax benefits, or limited tariff benefits as defined 

in clause 9 of Rule XXI. 

SECTION-BY-SECTION ANALYSIS

The following discussion describes the bill as reported by the 

Committee. 

Sec. 1. Short title. Section 1 sets forth the short title of the bill 

as the ‘‘Equal Justice for Our Military Act of 2010.’’ 

Sec. 2. Certiorari to the United States Court of Appeals for the 

Armed Forces. Section 2(a) amends paragraphs (3) and (4) of 28 

U.S.C. § 1259 by adding ‘‘or denied’’ to the text of each paragraph. 

This effectively grants the Supreme Court jurisdiction, by writ of 

certiorari, over any case that the Court of Appeals for the Armed 

Forces denied review of, as well as any decision by the Court of Appeals for the Armed Forces that denied relief, including relief to extraordinary writs and writ appeals. 

Section 2(b) strikes current language in 10 U.S.C. § 867a(a) that 

expressly denies the Supreme Court jurisdiction to review by writ 

of certiorari any action of the Court of Appeals for the Armed 

Forces in refusing to grant a petition for review. Section 2(b) also 

amends 28 U.S.C. § 2101(g) to grant the Supreme Court authority 

to prescribe rules regarding the timeliness of an application for a 

writ of certiorari to review a decision by a Court of Criminal ApVerDate Mar 15 2010 00:55 Jul 16, 2010 Jkt 089006 PO 00000 Frm 00010 Fmt 6659 Sfmt 6601 E:\HR\OC\HR547.XXX HR547

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peals that the Court of Appeals for the Armed Forces refused to review. 

Sec. 3. Effective Date. Section 3(a) provides that amendments 

made by the Act shall take effect 180-days after enactment of the 

Act. 

Section 3(b) provides that the grant of authority to the Supreme 

Court to make amendments to the rules governing the timeliness 

of writ applications takes effect on the date of enactment of the 

Act. This will in effect give the Supreme Court 180 days to promulgate rules relating to the timeliness of writ applications stemming 

from a decision by a Court of Criminal Appeals that the Court of 

Appeals for the Armed Forces refused to review. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italics, 

existing law in which no change is proposed is shown in roman): 

TITLE 28, UNITED STATES CODE 

* * * * * * * 

PART IV—JURISDICTION AND VENUE 

* * * * * * * 

CHAPTER 81—SUPREME COURT 

* * * * * * * 

§ 1259. Court of Appeals for the Armed Forces; certiorari 

Decisions of the United States Court of Appeals for the Armed 

Forces may be reviewed by the Supreme Court by writ of certiorari 

in the following cases: 

(1) * * * 

* * * * * * * 

(3) Cases in which the Court of Appeals for the Armed 

Forces granted or denied a petition for review under section 

867(a)(3) of title 10. 

(4) Cases, other than those described in paragraphs (1), (2), 

and (3) of this subsection, in which the Court of Appeals for 

the Armed Forces granted or denied relief. 

* * * * * * * 

PART V—PROCEDURE 

* * * * * * * 

CHAPTER 133—REVIEW-MISCELLANEOUS PROVISIONS 

* * * * * * * 


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1The Counselor to the Chief Justice of the United States explained the appellate review authority of the Court as well as the expansions proposed by H.R. 569 in a letter to the Chairman 

and Ranking Member of the Subcommittee on Courts and Competition Policy dated June 18, 

2009 : 

The Court of Appeals for the Armed Forces (CAAF) has authority to review specified 

types of decisions by the four Courts of Criminal Appeals for the different branches of 

the military. See 10 U.S.C. § 867 (a). The CAAF is required to review all cases in which 

the death penalty is imposes and all cases in which the relevant Judge Advocate General orders review. See §§ 867 (a)(1) and (2). The CAAF also has the discretion to review 

any other case decided by a Court of Criminal Appeals. See § 867 (a)(3). Additionally, 

§ 2101. Supreme Court; time for appeal or certiorari; docketing; stay 

(a) * * * 

* * * * * * * 

ø(g) The time for application for a writ of certiorari to review a 

decision of the United States Court of Appeals for the Armed 

Forces shall be as prescribed by rules of the Supreme Court.¿ 

(g) The time for application for a writ of certiorari to review a decision of the United States Court of Appeals for the Armed Forces, 

or the decision of a Court of Criminal Appeals that the United 

States Court of Appeals for the Armed Forces refuses to grant a petition to review, shall be as prescribed by rules of the Supreme Court. 

* * * * * * * 

SECTION 867a OF TITLE 10, UNITED STATES CODE 

§ 867a. Art. 67a. Review by the Supreme Court 

(a) Decisions of the United States Court of Appeals for the 

Armed Forces are subject to review by the Supreme Court by writ 

of certiorari as provided in section 1259 of title 28. øThe Supreme 

Court may not review by a writ of certiorari under this section any 

action of the Court of Appeals for the Armed Forces in refusing to 

grant a petition for review.¿ 

* * * * * * * 

DISSENTING VIEWS

H.R. 569 proposes to amend the federal judicial code to allow for 

expanded review by writ of certiorari certain cases the U.S. Court 

of Appeals for the Armed Forces (CAAF) has determined do not 

merit formal review or extraordinary relief. 

In support of the bill, the sponsor testified before the House Judiciary Committee’s Subcommittee on Courts and Competition Policy 

that ‘‘members of the military who are convicted of offenses under 

the military justice system do not have the legal right to appeal 

their cases to the U.S. Supreme Court.’’ 

If true, it would be an outrage. If accurate, then we would support tailored amendments to the federal judicial code to provide 

certiorari review in appropriate instances. 

But the simple fact of the matter is this statement is misleading. 

The U.S. Supreme Court has possessed jurisdiction to review CAAF 

decisions by writ of certiorari for nearly three decades. The authority 1 is not absolute and is prescribed by statute, extending only to 


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it has jurisdiction to consider petitions for extraordinary writs under the All Writs Act. 

See 28 U.S.C. § 1651. 

The Supreme Court’s jurisdiction to review CAAF decisions is governed principally by 

28 U.S.C. § 1259. That statute allows the Court to review by writ of certiorari cases that 

the CAAF must review under sections 867(a)(1) and (2). See 28 U.S.C. §§ 1259 (1) and 

(2). It also allows the Court to review by certiorari cases in which the CAAF has granted a petition for discretionary review under 867 (a)(3) or otherwise granted relief, such 

as through an extraordinary writ. See 28 U.S.C. §§ 1259 (3) and (4). H.R. 569 would 

amend section 1259 to allow the Supreme Court to review additional cases from the 

CAAF. Specifically, the bill would amend subsections (3) and (4) to allow the Court to 

review by certiorari cases in which the CAAF granted or denied a petition for discretionary review or granted or denied other relief. 2 Article 67a, Uniform Code of Military Justice (hereinafter abbreviated to UCMJ); 28 U.S.C. 

§ 1259. 3 House Report No. 100–660 accompanying Public Law 100–352, ‘‘Review of Cases by the Supreme Court.’’ 4The sponsor of H.R. 569 and earlier versions of this legislation from prior Congresses has 

offered this explanation for why she has repeatedly advocated this measure: 

‘‘[t]his issue was brought to my attention of my office years ago by a then-constituent 

of mine, a former servicemember who had concerns about the military justice system. 

He has since become a tireless champion for this issue and other military justice reform 

on behalf of the servicemembers and veterans that fall under the jurisdiction of those 

courts.’’ (Emphasis added.) 

Continued 

the cases for which the CAAF has granted review and excluding 

those the CAAF has determined do not merit consideration.2

The legislative history for current law unambiguously demonstrates that this limited avenue of Supreme Court review was 

not an oversight but the result of deliberate congressional design. 

The Committee on Armed Services, in House Report No. 98–549, 

which accompanied the Military Justice Act of 1983, explained: 

‘‘The Court of Military Appeals [now CAAF] regularly applies decisions of the Supreme Court in resolving appellate issues . . . in 

view of current concerns about the Supreme Court’s docket, the legislation has been drafted in a manner that will limit the number 

of cases subject to direct Court review. Cases in which the [CAAF] 

declined to grant a petition for review are excluded, and the Supreme Court will have complete discretion to refuse to grant petitions for writs of certiorari. Control over government petitions will 

be exercised by the Solicitor General. This formulation has been endorsed by the Department of Justice as well as the Department of 

Defense. The committee is of the opinion that the impact on the 

docket of the Supreme Court would not be substantial, and the 

[CAAF] will remain the primary source of judicial authority under 

the Uniform Code of Military Justice.’’ (Emphasis added.) 

By enacting the Military Justice Act of 1983, Congress sought to 

achieve several objectives. Among them was a desire to ensure 

there was a mechanism to appeal decisions of the highest court in 

the military justice system on matters that are of the highest priority, those that affect constitutional law. Writing in 1982, the Supreme Court justices urged the House Committee on the Judiciary 

to consider, ‘‘Because the volume of complex and difficult cases continue to grow, it is even more important that the Court not be burdened by having to deal with cases that are of significance only to 

the individual litigants but of no ‘wide public importance’.’’ 3

History demonstrates Congress intended to provide an appellate 

system that integrated the Office of the Solicitor General, the Department of Justice and the Department of Defense in an elaborate 

process of reviewing and responding to appeals from the CAAF. In 

recognition of the operation of this system, which has been in effect 

for nearly three decades with few apparent complaints 4 or defects, 


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The noble description aside, the then-constituent is identified as Norbert Basil 

MacLean, III. After serving in the U.S. Navy for 5 years, Mr. MacLean pleaded guilty 

in October 1992 to writing bad checks on his personal account and was convicted by 

a general court martial. A dual Australian-U.S. citizen, he subsequently attempted to 

collaterally attack his conviction and to set aside his plea bargain, which had permitted 

his release from confinement for time served. In publications, he merely describes himself as having ‘‘served on active duty in the U.S. Navy from 1989–1994 and . . . an 

advocate for servicemembers’ rights.’’ 

the views of the Executive Branch and the Supreme Court with respect to proposed changes to the law have consistently been solicited by the Committee leadership and staff. Indeed, the Armed 

Services Committees of the House of Representatives and the Senate have also routinely elicited the views of the relevant departments. 

In prior administrations, the Department of Defense, in particular, was forthright and forthcoming in expressing strong opposition to the enactment of this type of legislation. Regrettably, the 

current administration has forestalled attempts to discern its position. It has refused to cooperate with the Committee on the Judiciary’s oversight into this matter as well as other matters that affect the rights of servicemembers. 

This unwillingness to engage in the legislative process and lack 

of transparency denies the Members of the Committee the opportunity to know whether the position of the present administration 

is consistent with or different from that of prior administrations. 

It also denies the Members of the Committee any opportunity to review or consider the validity of any arguments that might underlie 

the position of the present administration. In the absence of any 

affirmative statement or justification, Members might reasonably 

conclude the position of the current administration and the Department of Defense is unchanged from that which has been clearly 

and consistently stated in the recent past. 

The Department of Defense, which is the department that will be 

most directly affected by the enactment of H.R. 569, has regularly 

and strenuously objected to the measure. Among the concerns and 

objections we note with respect to this and prior versions of this 

legislation are: 

• First, it will likely greatly expand the number of cases added 

to the already burdensome workload, and length of time 

taken, to conduct appellate reviews by the Service Courts of 

Criminal Appeals. More cases means an increase in the 

number of legal briefs and responses required, as well as the 

oral argument sessions and demands placed on appellate defense and government counsel. At the trial level, this legislation will likely require more verbatim records of the trial in 

support of the expanded mandatory appellate review process. 

As such, this may take longer to transcribe and because of 

the increased length, increase expenses and administrative 

costs. 

• Second, military accused may be negatively impacted when 

seeking to negotiate a pretrial agreement. The government 

might no longer be as willing or interested in placing a ‘‘cap’’ 

on the possible sentence, while still allowing the accused to 

plead not guilty to one or more accompanying charges to that 

which the accused is willing to plead guilty. Accused typiVerDate Mar 15 2010 00:55 Jul 16, 2010 Jkt 089006 PO 00000 Frm 00014 Fmt 6659 Sfmt 6601 E:\HR\OC\HR547.XXX HR547

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cally want the benefit of the pretrial agreement while also 

preserving appellate issues to those charges he/she wishes to 

contest. Sometimes, the government is willing to do this with 

a negotiated sentence ‘‘cap’’ that would not allow for an Article 66, UCMJ, appeal. If the case would, nonetheless, require 

a verbatim record and an automatic appellate review by the 

Service Court of Criminal Appeals, the prosecution might be 

less likely to negotiate with the accused and place a ‘‘cap’’ on 

the possible punishment in the case—this would likely inure 

to the accused’s detriment. 

• Third, no empirical support or persuasive rationale has been 

provided to justify such a significant change in the military’s 

mandatory appellate review process, where free defense 

counsel and appellate resources are afforded an accused 

without regard to indigence—unlike the civilian criminal appellate system. Any reports that this proposal is necessary as 

to ‘‘remedy a troubling gap in military appellate jurisdiction 

that makes it impossible for some convicted military members to seek review of legal error’’ should provide irrebutable 

support for the conclusion that there is a ‘‘gap’’ in appropriate review of the case and that any gap is sufficiently 

‘‘troubling’’ to overhaul military appellate review with its attendant costs and requirements. To maintain there would be 

no additional costs associated with expanding mandatory appellate court review (as practiced within the military) overlooks the obvious impact of more cases, with more free counsel and administrative procedures applicable to each case, 

and the diversion of government resources from existing 

cases. Very rarely is a request to ‘‘do more, with the same 

or less’’, less costly or without a real need for increased manpower or resources. 

• Fourth, there are already multiple avenues for redress for 

servicemen who believe they have been wronged in the military justice system. Military members whose court-martial 

conviction does not now qualify for automatic review by the 

Court of Criminal Appeals for the relevant military service 

under Article 66, UCMJ, can already have their cases reviewed under Article 69, UCMJ. The Boards of Correction of 

Military Records can entertain a request for review, but for 

clemency purposes (e.g., substituting an administrative discharge for a punitive discharge, or other clemency modification of the sentence), but the Boards do not have authority 

to overturn courts-martial convictions. Within a period of 2 

years after the court-martial convening authority approves a 

court-martial sentence, the accused can petition the Judge 

Advocate General for a new trial on the grounds of newly 

discovered evidence or fraud on the court, under Article 73, 

UCMJ. 

• Fifth, all general courts-martial not subject to review under 

Article 66 are already subjected to mandatory review under 

69(a) in the Office of The Judge Advocate General. 

• Sixth, all special courts-martial not subject to review under 

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cate under Article 64 and military members are free to apply 

for review in the office of their respective Judge Advocate 

General under Article 69(b), if not satisfied with the Article 

64 review. In each instance, the case is reviewed for legal 

sufficiency and sentence appropriateness. This system has 

served the military well since the inception of the UCMJ and 

neither evidence presented, if any, nor actual experience suggest that the system has failed or that changing it to merely 

‘‘appear’’ more like a civilian system would actually improve 

either the system or the lot of military members. In addition, 

military members dissatisfied with any result under either 

Article 64 or 69, as stated previously, are free to submit 

their case for review by their respective Boards of Correction 

of Military Records which has the power to disapprove or 

modify the sentence adjudged at a court-martial. 

• Finally, a servicemember may always pursue a collateral attack upon a court-martial conviction in federal district court 

if there is a legitimate basis for doing so. 

The hollowness of proponents’ claims that H.R. 569 is urgently 

needed to address a defect in the military justice system was, ironically, illustrated by a point that was made in the testimony of 

Dwight Sullivan, an advocate for the bill. He made clear that its 

enactment, in practice, will have a negligible impact on the actual 

number of military petitions granted review by the Supreme Court. 

In his own words, Sullivan noted: 

‘‘the number of granted military certiorari petitions would remain small. Indeed, the percentage of granted military certiorari petitions would likely diminish, since it is likely that fewer 

cert-worthy issues would be presented by those cases where 

CAAF denied review than by those cases where CAAF chose to 

exercise its discretionary jurisdiction.’’ (Emphasis added.) 

The critical point to note is the concession that the CAAF already 

performs its ‘‘gatekeeper’’ role well and that Sullivan has no reason 

to expect it to not do so in the future. It grants review to those petitions of convicted servicemembers that contain meritorious issues 

and denies review and extraordinary relief to those that are not, 

in his words, ‘‘cert-worthy.’’ 

Sullivan has also observed that 3,473 petitions had been denied 

review by CAAF over the past 5 years. He conceded, ‘‘[m]ost of 

those cases, no doubt, contained no important issues. But went on 

to add, ‘‘some of them included unresolved constitutional issues 

that could not be presented to the Supreme Court on direct review 

due to CAAF’s denial of the petition.’’ (Emphasis added.) 

In an effort to compromise and permit direct review of constitutional issues by the Supreme Court, the minority proposed to agree 

to an amendment to expand certiorari jurisdiction in this class of 

cases, which are of the greatest significance to the accused and the 

public. The bill sponsor is reported to have rejected the offer to 

compromise. 

It is indisputable that there are differences between the civilian 

criminal justice system and that of the military. The myopic focus 

on one difference without a thorough and proper examination of 

how a given proposed change will likely affect the entirety of the 


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military justice system does a disservice to our servicemembers and 

the legislative process. 

Proponents have yet to produce any persuasive evidence that 

servicemembers have been adversely affected by the current structure of the military justice system. In the absence of actual evidence and a thoughtful review, examination and provision of appropriate resources to the departments that will be affected as well as 

the Office of the Solicitor General, we must withhold support for 

what amounts to an ‘‘unfunded mandate’’ on these entities. 

Commenting on one of the salient differences between the civilian and military systems, Major General John D. Altenburg, Jr. US 

Army (Retired), explained: 

‘‘the proposed bill would not merely offer the individual appellant an enhanced right but would also impose an obligation on 

the Armed Forces to provide the resources necessary to ensure 

that the ability to petition from a denial is meaningful. If the 

bill were truly intended to make servicemembers equal to civilians it would also need to deprive the same servicemembers of 

the right to assigned counsel and no cost litigation. Civilians 

must shoulder the costs of their collateral attacks unless they 

are able to establish their indigence. The last thing the military needs is to invite application of these civilian principles to 

the practice of military criminal law.’’ 

MG Altenburg added: 

‘‘Because this bill is not necessary to address any actual injustice or shortcoming in the system, it is important that Congress assess the need for greater resources to the military department Judge Advocate General’s Corps. The Congress 

would then be better situated to ensure that when and if the 

military departments are required to perform this more demanding mission the Congress will also provide them with the 

resources to accomplish that mission.’’ 

MG Altenburg also noted that he: 

‘‘oppose[s] the bill because it offers the illusion of expanded authority to contest courts-martial convictions when the real impact is likely to be inconsequential, encouraging a cynical perspective that the proposed legislation offers the appearance of 

reform but no enhanced ability to ensure a reliable criminal 

trial process, a process that already provides Congressionally 

mandated unique protections that exceed those of civilian jurisdictions.’’ (Emphasis added.) 

For the foregoing reasons, we must oppose the changes proposed 

by this legislation to the operation of the administration of the 

military justice system in pursuit of what appears to be an ‘‘illusory’’ reform. 

LAMAR SMITH. 

F. JAMES SENSENBRENNER, JR. 

HOWARD COBLE. 

ELTON GALLEGLY. 

DANIEL E. LUNGREN. 

DARRELL E. ISSA. 

STEVE KING. 


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TRENT FRANKS. LOUIE GOHMERT. JIM JORDAN. TED POE. TOM ROONEY. GREGG HARPER. 

Æ 


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