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_______________ UNITED STATES Appellee

v. Corey N. WALL, Specialist United States Army, Appellant

No. 19-0143 Crim. App. No. 20160235 Argued January 14, 2020—Decided April 24, 2020 Military Judge: Lanny Acosta For Appellant: Captain Rachele A. Adkins (argued); Lieutenant Colonel Tiffany D. Pond, Lieutenant Colonel Christopher D. Carrier, and Captain Heather M. Martin (on brief); Major Todd W. Simpson

. For Appellee: Major Jonathan S. Reiner(argued) ; Colonel Steven P. Haight, Lieutenant Colonel Wayne H. Williams, Major Hannah E. Kaufman and Captain Christopher T. Leighton (on brief); Captain Marc B. Sawyer. Chief Judge STUCKY delivered the opinion of the Court, in which Judges OHLSON and SPARKS joined. Judge RYAN filed a separate dissenting opinion in which Judge MAGGS joined.

_______________ Chief Judge STUCKY delivered the opinion of the Court. The issue presented in this case is whether the United States Army Court of Criminal Appeals (CCA) was authorized to reassess Appellant’s sentence after setting aside the sentence approved by the convening authority. As a consequence of granting that issue for review , we necessarily specified an additional issue, asking whether the granted issue was ripe for review. We hold that the issue was ripe for review and that, by setting aside the sentence, there was no approved sentence for the CCA to reassess.

I. Background A military judge sitting alon e as a general court-martial convicted Appellant, contrary to his pleas, of rape and sexual assault. Article 120, Unifor m Code of Military JusticeUnited States v. Wall , No. 19-0143/AR Opinion of the Court

2 (UCMJ), 10 U.S.C. § 920 (2012) . The convening authority approved the sentence adjudged: a dishonorable discharge, confinement for fifteen years, and reduction to the grade of E-1. The CCA held that the military judge’s consideration of the evidence of each charged offense as propensity evidence for the other charged offense, under Military Rule of Evidence 413, violated this Court’s holdings in United States v. Hills

, 75 M.J. 350 (C.A.A.F. 2016), and United States v. Hukill

, 76 M.J. 219 (C.A.A.F. 2017). United States v. Wall , No. ARMY 20160235, 2018 CCA LEXIS 479, at *14, 2018 WL 4908172, at *5 (A. Ct. Crim. App. Oct. 5, 2018). The CCA affirmed the rape conviction but set aside th e sexual assault conviction and the sentence. Id. at *15, 2018 WL 4908172, at *6. It authorized the convening authority to choose one of the following options: (1) order a rehearing on [the sexual assault offense]and the sentence; (2) dismiss [the sexual assault offense] and order a rehearing on the sentence only; or (3) dismiss [the sexual assault offense] and reassess the sentence, affirming no more than a dishonorable discharge, confinement for ten years, total forfeiture of all pay and allowances, and reduction to E-1. 1

Id

. at *15–16, 2018 WL 4908172, at *6. In a footnote, the CCA further concluded: In reassessing the sentence we are satisfied that the sentence adjudged, absent Specification 1 of TheCharge, would have been at least a dishonorable discharge and confinement of ten years. See United States v. Sales , 22 M.J. 305, 308 (C.M.A. 1986) and United States v. Winckelmann , 73 M.J. 11, 15–16(C.A.A.F. 2013). The reassessment being both appropriate and purging the record as it stands of error does not otherwise limit the sentence that may be adjudged at a rehearing. See UCMJ, art. 63.

Id. at *16 n.3, 2018 WL 4908172, at *6 n.3.

1 The convening authority approves rather than affirms a sentence. Rule for Courts-Martial (R.C.M.) 1107(f)(4) (2016 ed.).United States v. Wall , No. 19-0143/AR Opinion of the Court

3 The CCA granted Appellant’s request for reconsideration, directed minor corrections to its original opinion, and affirmed all other aspects of its op inion and the judgment of the
court. United States v. Wall , No. ARMY 20160235 (A. Ct. Crim. App. Nov. 16, 2018) (order).

II. Discussion The parties agree that we are reviewing a CCA sentence reassessment and, ther efore, this Court should review both issues for an abuse of discreti on. That is not the standard for the issues we specified. We asked: (1) whether the issue is ripe for review; and (2) whether a CCA is authorized to set aside a sentence and then re assess it before remanding the case to the convening authority. These are clearly questions of law that we review de novo. See Waltman v. Payne , 535 F.3d 342, 348 (5th Cir. 2008) (ripeness); United States v. English , 79 M.J. 116, 121 (C.A.A.F. 2019) (scope of an appellate court’s authority).We begin with the authority of the CCAs. A CCA “may affirm only such findings of guil ty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basi s of the entire record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2012).
If the Court of Criminal Appeals sets aside the findings and sentence, it may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If it sets aside the findings and sentence and does not order a rehearing, it shall order that the charges be dismissed. Article 66(d), UCMJ. The Judge Advocate General shall, unless there is to be further action by the President, the Secretary concerned, the Court of Appeals for the ArmedForces, or the Supreme Court, instruct the convening authority to take action in accordance with the decision of the Court of Criminal Appeals. If the Court of Criminal Appeals has ordered a rehearingbut the convening authority finds a rehearing impracticable, he may dismiss the charges. Article 66(e), UCMJ.United States v. Wall , No. 19-0143/AR Opinion of the Court

4 The statute does not explicitly tell us how to handle a case in which a CCA affirms some of the convictions, sets aside others, and authorizes a rehearing. Nevertheless, under his authority to make procedural rules, Article 36(a), UCMJ, 10 U.S.C. § 836(a) (2012), the President has issued the following: If a superior authority has approved some of the findings of guilty and has authorized a rehearing asto other offenses and the sentence, the convening authority may, unless otherwise directed, reassess the sentence based on the approved findings of guilty and dismiss the remaining charges. Reassessment isappropriate only where the convening authority determines that the accused’s sentence would havebeen at least of a certain magnitude had the prejudicial error not been committed and the reassessed sentence is appropriate in relation to the affirmed findings of guilty. R.C.M. 1107(e)(1)(B)(iv) (2012 ed.).

A. Jurisdiction “‘[E]very federal appellate courthas a special obligation to satisfy itself ... of its own jurisdiction.’” Randolph v. HV , 76 M.J. 27, 29 (C.A.A.F. 2017) (alter ations in original) (quoting Bender v. Williamsport Area Sch. Dist. , 475 U.S. 534, 541 (1986)). This Court has a duty to review the record in all cases reviewed by a CCA in which the accused’s petition establishes good cause. Article 67(a)(3), UCMJ, 10 U.S.C. § 867(a)(3) (2012). This Court, however, “may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the Court of Criminal Appeals.” Article 67(c), UCMJ. The first question, then, is whether the CCA set aside the sentence as incorrect in law. The CCA set aside the sexualassault finding because the military judge considered evidence of each charged offense as propensity evidence for the other, in violation of our precedents. Wall , 2018 CCA LEXIS479, at *14, 2018 WL 4908172, at *5. That was clearly a matter of law. The CCA could have simply dismissed that specification and determined the appropriate sentence. See Article66(c), UCMJ. It chose instead to permit the prosecution to retry the accused on the charge that was set aside. As the original sentence was based in parton the finding of guilty thatUnited States v. Wall , No. 19-0143/AR Opinion of the Court

5 had been set aside, the CCA set aside the sentence to effectuate the possibility of a rehearing on findings and sentence. Under these circumstances, we conclude that the sentence was set aside as incorrect in la w and, therefore, we have jurisdiction. This is consistent with our resolution of two othercases, in which we issued orders stating that we had jurisdiction, although we declined to resolve the granted issue, finding it was not ripe. United States v. Long , 79 M.J. 99 (C.A.A.F. 2019) (order); United States v. Hopkins , 78 M.J. 130 (C.A.A.F. 2018) (order). The Government makes two jurisdictional arguments, First, it contends that this Courtwill exceed its “congressionally circumscribed jurisdiction by providing sentencing relief.” This misses the point. We are not reviewing the sentence in this case; we are instead determining the scope of the CCA’s authority in remands. Second, the Government asserts that as the CCA merely vacated the sentence, rather than set it aside as a matter of law, this Court is without juri sdiction. But in its judgment, the CCA specifically stated: “T he sentence is set aside.” Wall

,2018 CCA LEXIS 479, at *15, 2018 WL 4908172, at *6. Furthermore, whether the sentence is “set aside” or “vacated” is of little import. The definition of “set aside” is to “annul or vacate (a judgment, order, etc.).” Black’s Law Dictionary 1580 (10th ed. 2014). The terms “set aside” and “vacate” are actually a “doublet.” They are often used together to note the same meaning, one in old English and the other in old French. Bryan A. Garner, Garner’s Dictionary of Legal Usage 812 (3d ed. 2011). B. Ripeness “Ripeness” is the “state of a dispute that has reached, buthas not passed, the point when the facts have developed sufficiently to permit an intellig ent and useful decision to be made.” Black’s Law Dictionary 1524 (10th ed. 2014).
[The doctrine’s] basic rationale is to prevent thecourts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challengingUnited States v. Wall , No. 19-0143/AR Opinion of the Court

6 parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.

Abbott Labs. v. Gardner , 387 U.S. 136, 148–49 (1967), abrogated by Califano v. Sanders , 430 U.S. 99 (1977).The ripeness doctrine originates in the Constitution’s Article III case or co ntroversy language. DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 352 (2006). Nevertheless, Article I courts, such as ours, “generally adhere” to this doctrine and ordinarily decline to consider an issue that is “premature.” United States v. Chisholm , 59 M.J. 151, 152 (C.A.A.F. 2003). If the appeal is not ripe, it deprives the court of subject matter jurisdiction and must be di smissed. 1 Lissa Griffin, Federal Criminal Appeals § 3:46 (2019 ed.).

In Texas v. United States , the Supreme Court employed sweeping language to describe ripeness: “A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” 523 U.S. 296, 300 (1998) (internal quotation marks omitted) (citation omitted). But in analyz ing the granted issue, the Supreme Court employed the Abbotttwo-part test: “fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Id. at 301 (internal quotation marks omitted) (quoting Abbott , 387 U.S. at 149). The Supreme Court determined that th e claim that Texas suffered the immediate hardship of a threat to federalism was “too speculative” and “insubstantial.” Id. at 302. This Court has routinely denied, as not ripe for review, petitions for grant of review in cases in which the CCA has ordered a rehearing. See, e.g.

, United States v. Clark , 78 M.J. 371 (C.A.A.F. 2019) (summary dispos ition). In this case, however, the issue concerns th e terms of the remand itself: Whether the CCA is authorized to provide what amounts toan advisory opinion by declaring what sentence to confinement it would accept as appropriate. The Supreme Court found the issue ripe in Abbott because the regulation at issue had a “d irect effect on th e day-to-day business” of the plaint iffs, even though the regulation had not yet been enforced. 387 U.S. at 152. Under the Abbott test, theUnited States v. Wall , No. 19-0143/AR Opinion of the Court

7 issue in Appellant’s case is fit for resolution. First, the issue “is a purely legal one,” which can be resolved without further proceedings. Id. at 149. Resolution of th e issue is limited to this Court’s interpretation of the UCMJ and the President’s Rules for Courts-Martial. Second, unlike in Texas , the adverse effect of the CCA’s ruling is neither remote nor abstract. 523 U.S. at 301. The CCA sent a clear message to the convening authority that it would approve a sentence that included confinement of tenyears if the convening authority decided not to order a rehearing. While the convening authority was not prohibited from ordering a rehearing, the possibility he would do so is remotein light of the time and expense of such a hearing, the difficulty in obtaining witnesses al most three years after Appellant’s initial trial, and the seeming certainty that the CCA would affirm a sentence to confinement of ten years for the affirmed finding of guilty. Furthermore, resolution of the issue promotes, rather than degrades judicial econ omy—minimizing duplication of effort and avoiding wasting the court’s time and resources. The CCA has rendered similar rulings, setting aside a sentence and then reassessing it, in at least seven other cases. See Appendix I. As a matter of judicial economy, it makes sense to resolve this issue now, before more such cases arise. Appellant has also shown hardship, as the CCA’s order on his case “is sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage.” Abbott

, 387 U.S. at 152. Without our intervention, Appellant’s case will be returned to the conven ing authority to make an independent decision on whether to order a rehearing or to reassess the sentence. And the CCA has already ruled that itwould affirm if the convening authority elected to forgo a rehearing and reassess the sentence to include confinement for ten years. If this Court waits until the convening authorityreassesses the sentence, this Court may have no way of determining whether the convening authority actually exercised his independent judgment or wa s unduly influenced by the CCA. We, therefore, conclude the issue is ripe for review.United States v. Wall , No. 19-0143/AR Opinion of the Court

8 C. Authority for the Order “In a case referred to it, the Court of Criminal Appeals may act only with respect to the ... sentence as approved by the convening authority .” Article 66(c), UCMJ (emphasis added). By setting aside Appell ant’s approved sentence and remanding, the CCA extinguished the approved sentence and, thereby, its authority to fu rther act on the sentence until the case returned from the convening authority. The Government argues that: (1) in United States v. Harris , 53 M.J. 86 (C.A.A.F. 2000), th is Court tacitly condoned the CCA’s action in this case; (2) Article 66(f)(3), UCMJ, authorized the CCA to order furthe r proceedings subject to suchlimitations as the court may direct; and (3) the convening authority was not prohibited fr om approving any lesser sentence. We find none of these arguments persuasive. This Court has not condoned the CCA’s practice in the past. In Harris , the CCA set aside some of the appellant’s convictions and remanded to the convening authority with three options: (1) to order a rehearin g on the set aside charges and the sentence; (2) to order a sent ence rehearing alone if (1) was impracticable; and (3) if the se cond option was impracticable to reassess the sentence. 53 M.J. at 87. The CCA in that casedid not reassess the sentence after setting it aside and remanding. The Government also argues that the CCA did not abuseits discretion in ordering a rehearing with limitations providing direction to the convening authority because it is specifically authorized by Article 66(f)(3), UCMJ. Putting aside whether Article 66(f)(3) authoriz es the CCA’s judgment, that provision is contained in the Military Justice Act of 2016, and does not apply to cases such as Appellant’s, which was tried and remanded before the Act’s January 1, 2019, effective date. National Defense Author ization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 5330, 130 Stat. 2000, 2932 (2016). Neither the UCMJ nor th e Rules for Courts-Martial applicable to Appellant’s case authorize the CCA to reassess the sentence after remand. We agree with the Government that the remand did not require the convening authority to approve the sentence as “reassessed” by the CCA. But that is not Appellant’s point. HeUnited States v. Wall , No. 19-0143/AR Opinion of the Court

9 asserts that the “reassessment” was an advisory opinion that would taint what is supposed to be an independent assessment by the convening authority. An advisory opinion is “an opinion issued by a court on a matter that does not involve a justiciable case or controversy between adverse parties.” Chisholm , 59 M.J. at 152 (citation omitted). While courts established under Article III of the Constitution may not issue ad visory opinions, courts established under Article I, such as this Court and the Courts ofCriminal Appeals, “generally adhere to the prohibition on advisory opinions as a prudential matter.” Id. (citation omitted).But the CCA’s “reassessment” was more than just an advisory opinion. It sent a message to both the convening authority and members of the CCA who would sit on the case when it returned after remand: You are not required to follow this advice, but this court ha s already determined that confinement for ten years was part of an appropriate sentence. Appellant’s case is simila r in some respects to Peugh v. United States, 569 U.S. 530 (2013). There, the issue presented was whether application of senten cing guidelines that had increased in severity since the appellant had committed his offenses violated the Ex Post Facto Clause. Id. at 533. The Supreme Court rejected the government’s argument that since the guidelines were merely advisory, there was no ex post facto problem. Id. at 539. “The touchstone of this Court’s inquiry is whether a given change in law presents a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Id. at 539 (internal quotation marks omitted) (citation omitted). The Supreme Court went on to hold that the risk that the increased guidel ines affected the trial court’s sentencing decision was too great. Id. at 550. Subject to the limitations of the UCMJ and the Rules for Courts-Martial, the decision to reassess the sentence, and what sentence to approve, is so lely that of the convening authority. Article 60, UCMJ, 10 U.S.C. § 860 (2012); R.C.M. 1107(e)(2)(B)(iii) (2016 ed.); United States v. Reed , 33 M.J. 98,99–100 (C.M.A. 1991). While not requiring the convening authority to adopt its conclusions, the CCA’s “reassessment” sent a signal to the convening authority that confinement forUnited States v. Wall , No. 19-0143/AR Opinion of the Court

10ten years was appropriate. The risk that the CCA’s “reassessment” will improperly influenc e the convening authority’s action in his exercise of his discretion is too great. 2

III. JudgmentThe judgment of the United States Army Court of Criminal Appeals is affirmed as to it s finding of guilty for the rape specification. The judgment is reversed in part as to the sentence. The record is returned to the Judge Advocate General of the Army for remand to the CCA, which shall: (1) dismiss the sexual assault specification and itself reassess the sentence; or (2) remand to the convening authority who shall (a) order a rehearing on the sexual assault specification and thesentence, in view of the affirmed rape specification or (b) dismiss the sexual assault specific ation and order a rehearing on the sentence for the affirmed rape specification standing alone.

2 During oral argument, Government counsel asserted that the CCA’s “reassessment” of the sentence would save time for that panel or a new panel when the case returned for further review. We reject any suggestion that the panel that reviews Appellant’s casein the future is authorized to give it any less than the full consideration of the appropriateness of the sentence required by Article 66(c), UCMJ.United States v. Wall , No. 19-0143/AR Opinion of the Court

11 Appendix I The CCA’s judgment in the following seven other cases is similar to that of Appellant’s case. (1) United States v. Williams , No. ARMY 20160231, 2019 CCA LEXIS 288, at *21 & n.13, 2019 WL 2949401, at *8 & n.13 (A. Ct. Crim. App. July 3, 2019); (2) United States v. Solomon , No. ARMY 20160456, 2019 CCA LEXIS 149, at *36 & n.23, 2019 WL 1528078, at *15 & n.23 (A. Ct. Crim. App. Apr. 3, 2019); (3) United States v. Moynihan , No. ARMY 20130855, 2018 CCA LEXIS 610, at *11 & n.5, 2018 WL 6334226, at *4 & n.5 (A. Ct. Crim. App. Nov. 26, 2018), review dismissed , 78 M.J. 371 (C.A.A.F. 2019); (4) United States v. Long , No. ARMY 20150160, 2018 CCA LEXIS 512, at *34 & n.16, 2018 WL 5623640, at *12 & n.16 (A. Ct. Crim. App. Oct. 26, 2018), review dismissed , 79 M.J. 99 (C.A.A.F. 2019), and reconsideration denied , 79 M.J. 184 (C.A.A.F. July 11, 2019); (5) United States v. Hernandez , No. ARMY 20160217, 2018 CCA LEXIS 389, at *13 & n.4, 2018 WL 3854046, at *5 & n.4 (A. Ct. Crim. App. Aug. 10, 2018); (6) United States v. Gonzalez , No. ARMY 20160363, 2018 CCA LEXIS 327, at *13

― 14 & n.8, 2018 WL 3326646, at *6 & n.8 (A. Ct. Crim. App. July 3, 2018); and (7) United States v. Hopkins , No. ARMY 20140913, 2018 CCA LEXIS 254, at *34–35 & n.15, 2018 WL 2405998, at *12 & n.15 (A. Ct. Crim. App. May 25, 2018).United States v. Wall , No. 19-0143/AR

Judge RYAN, with whom Judge MAGGS joins, dissenting.
In this case Appellant seeks an answer to a legal question:“Whether, after setting aside the sentence and ordering a remand, a service court of criminal appeals is authorized to reassess the sentence and limit the lawful sentence the convening authority may approve.” United States v. Wall , 79 M.J. 63, 63

― 64 (C.A.A.F. 2019) (order granti ng petition for review). But that avenue of relief, like all others that ask a federal court to render a decision, is subject to the ordinary rules of justiciability, rules intended to confine “the constitutional limitation of federal-court jurisd iction to actual cases or controversies.” DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 341 (2006) (internal quotation marks omitted) (citation omitted). 1 A central tenet of this limitationis the doctrine of ripeness, see id. at 352, which “prevent[s] . . . courts, through prematureadjudication, from entangling themselves in abstract disagreements.” Thomas v. Union Carbide Agr. Prods. Co. , 473 U.S. 568, 580 (1985) (internal quotation marks omitted) (quoting Abbott Labs. v. Gardner , 387 U.S. 136, 148 (1967)).

This doctrine draws “both fr om Article III limitations onjudicial power and from prudential reasons for refusing to exercise jurisdiction.” Nat’l Park Hosp. Ass’n v. Dep’t of Interior

, 538 U.S. 803, 808 (2003) (interna l quotation marks omitted) (citation omitted). While we are not an Article III court, we “generally adhere to the prohibit ions on advisory opinions as a prudential matter.” See, e.g.

, United States v. Chisholm , 59 M.J. 151, 152 (C.A.A.F. 2003). This case is not ripe, we imprudently exceed our judicial role by deciding it, and I respectfully dissent.

A. In assessing whether a claim is ripe, we agree with the majority that the appropriate framework is set forth in Abbott

, 387 U.S. at 149, and reiterated in Texas v. United States

,

1 The Declaratory Judgment Act, for example, provides: “In a case of actual controversywithin its jurisdiction . . . any court of the United States, upon the filing ofan appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201( a) (2018) (emphasis added).United States v. Wall , No. 19-0143/AR Judge RYAN, dissenting

2 523 U.S. 296, 300–01 (1998) (quoting Abbott , 387 U.S. at 149): “ ‘fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.’ ”While a pure question of law may be fit for judicial decision in theory, that is no invitation for courts to reach out and decide issues where the harm alleged is speculative: “A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as an ticipated, or indeed may not occur at all.” Id. at 300 (internal quotation marks omitted) (citation omitted). Accordingly, at least twice this Court summarily dismissed cases in the precise posture of this one without prejudice as unripe because there was a possibility of a rehearing. See United States v. Long , 79 M.J. 99 (C.A.A.F. 2019) (order) (CCA remand incl uded reassessment option with cap of dishonorable dis charge, confinement for forty years, and reduction to E-1; assigned issues included “Whether the Army Court abuse d its discretion by reassessing the sentence after dism issing eleven out of fourteen specifications, and offering th e convening authority the option to approve an excessive sentence for the remaining specifications in lieu of a rehearing”); United States v. Moynihan

,78 M.J. 371 (C.A.A.F. 2019) (order) (CCA remand included reassessment option with cap of dishonorable discharge, confinement for forty-two months, an d reduction to E-1; sole assigned issue was “Whether the Army Court erred when it set aside Appellant’s convictions be cause of prejudicial error, yet considered those same convicti ons when it reassessed the sentence”). The majority fails to distinguish these cases. While the scope and contours of the CCA’s authority may well present a purely legal question, Abbott , 387 U.S. at 149, there is no cognizable injury to Appellant at this time. Any harm here necessarily turns on contingent events. Cf. United States v. Cabral , 926 F.3d 687, 694 (10th Cir. 2019) (dismissing vagueness challenge to supervised release condition asunripe because “[e]ven assuming a condition is facially problematic, the mere existence of [such a] condition is ordinarily not enough to sustain a judici al challenge, even by one who reasonably believes that the law applies to him and will be enforced against him” (internal quotation marks omitted) (citation omitted)). The convening authority has yet to take anyUnited States v. Wall , No. 19-0143/AR Judge RYAN, dissenting

3action, and the CCA expressly empowered the convening authority to order a rehearing instead of reassessing the sentence. United States v. Wall , No. ARMY 20160235, 2018 CCA LEXIS 479, at *15

― 16, 2018 WL 4908172, at *6 (A. Ct. Crim. App. Oct. 5, 2018) (unpublished). Moreover, the CCA did not dictate what sentence the convening authority must impose, 2and we have no way of knowing what sentence he might impose if he in fact chooses that option, rather than a rehearing. The harm Appellant complains of thus depends both on the convening authority’s selectio n of the reassessment option and imposition of a sentence of ten years 3 —a “contingent future event[] that may not occur as anticipated, or indeed may not occur at all.” Texas , 523 U.S. at 300 (internal quotation marks omitted) (citation omitted). The harm alleged here is quite different than that deemed sufficiently immediate in Abbott and hews far more closely to that deemed too speculative in Texas

. Abbottinvolved an administrative regulation that for ced Abbott Laboratories into a dilemma where they would either incur massive costs by complying with the regulation or face criminal prosecution for non-compliance. 387 U.S. at 152. It was in that context that the Supreme Court deemed resolution of the purely legal question ripe because of the adverse impact on a party. In contrast, the law challenged in Texas prevented the State from imposing two out of ten possible sanctions on school districts that failed to satisfy accreditation criteria. 523 U.S. at 298–300. Unlike the “direc t effect on day-to-day business” in Abbott

, Texas , 523 U.S. at 301 (internal quotation marks omitted) (citation omitted), a series of contingent events had to occur for those tw o options to ever become avail-

2 Indeed, the CCA stated “[t]he reassessment being both appropriate and purging the record as it stands of error does not otherwise limit the sentence that may be adjudged at a rehearing.” 2018 CCA LEXIS 479, at *16 n.3, 2018 WL 4908172, at *6 n.3 (emphasis added).

3 Worth emphasizing, the ten years at issue is still five years less than the original fifteen-year sentence, which the convening authority could still approve.United States v. Wall , No. 19-0143/AR Judge RYAN, dissenting

4able, and the State could not show any district where imposing such sanctions was even likely. Id. at 300. As in Texas, the claim here is simply not “ripe for adjudication.” Id. at 302.

B. The majority nevertheless finds concrete ripeness in the hypotheticalharm that may potentially arise through theCCA’s proposed (but non-binding if a rehearing is ordered) reassessment cap possibly tainting the convening authority’s independent decision-making. By authorizing a reassessmentwith a sentence cap the CCA considered appropriate, the convening authority was purportedly incentivized to abdicate his duty to independently review Appellant’s case and simply rubber stamp the CCA’s sentence. Accepting this position divines a concrete injury from both speculation and assumptions that ignore the presumpt ion of regularity afforded convening authorities. See, e.g.

, United States v. Masusock , 1 C.M.A. 32, 35, 1 C.M.R. 32, 35 (1951) (“Courts have long indulged in the legal presumption of regularity in the conduct of governmental affairs.”). This imaginary potential for some speculative, unknowable harm is not justiciable harm, and as the dissent in United States v. Gonzalez notes, “[w]hen therecord is silent on how a convening authority acted, ‘the presumption of regularity requires us to presume that he carried out the duties imposed upon him by the Code and the Manual.’ ” __ M.J. __ (4) (C.A.A.F. 2020) (Maggs, J., with whom Ryan J., joins, dissenting) (quoting United States v. Wise , 6 C.M.A. 472, 478, 20 C.M.R. 188, 194 (1955)). This is no less true when seeking, as the major ity does, to speculate as to what a convening authority might do. Nor does invoking the promotion of judicial economy solve the ripeness deficiency. The interest in promoting judicial economy is indeed intended to conserve judicial time and resources and effectuate the interests in “prompt and efficient resolution of controversies,” Carnegie-Mellon Univ. v. Cohill

, 484 U.S. 343, 353 (1988), and avoid rules that burden the court with additional litigation, see McDermott Inc. v. AmClyde , 511 U.S. 202, 212 (1994). However, it is not intended, and cannot plausibly be offered, as an end run aroundArticle III’s limitations on what constitutes a case or controversy suitable for judicial review. It is not clear how resolvingUnited States v. Wall , No. 19-0143/AR Judge RYAN, dissenting

5 Appellant’s claim at this juncture would appreciably promote judicial economy more than if we waited for the convening authority to act. Today’s holding will prevent CCAs from ordering these types of remands in th e future, but this benefit is unnecessary given the Court’s opportunity to decide precisely the same thing in Gonzalez —where no one questions whetherthe issue is ripe—without doing violence to the law on justiciability.

C.Article III’s case or controversy limitations apply only prudentially to our Court, United States v. Wuterich , 67 M.J. 63, 69 (C.A.A.F. 2008), but this does not license us to imprudentlyapply them. Especially where we exercise such narrowly circumscribed, strictly construed jurisdiction, see Loving v. United States , 62 M.J. 235, 244 n.60 (C.A.A.F. 2005), we should hesitate to read expansiv ely a justiciability doctrine as fundamental as ripeness. Reso lving the issue at this stage may well be “efficient,” in some generic sense, but so too does it bring us closer to the “ple nary administrator” the Supreme Court once admonished. Clinton v. Goldsmith , 526 U.S. 529, 536 (1999). “The military justice system’s essential character [is,] in a word, judicial.” Ortiz v. United States , 138 S. Ct. 2165, 2174 (2018). The majority today strays from this Court’s essential judicial character. I respectfully dissent.