This opinion is subject to administrative correction before final disposition.

Before 

HUTCHISON, TANG, and LAWRENCE, 

Appellate Military Judges

_________________________

Michael J. BROWN

First Sergeant (E-8), U.S. Marine Corps

Petitioner

v.

UNITED STATES

Respondent

No. 201900050

Decided: 27 June 2019.

Review of Petition for Extraordinary Relief in the Nature of a Writ of 

Mandamus and Writ of Prohibition. Military Judge: Lieutenant 

Colonel Roger E. Mattioli, USMC. Sentence adjudged 5 March 2018 by 

a special court-martial convened at Marine Corps Base Quantico, 

Virginia, consisting of officer and enlisted members: reduction to E-7.1

For Appellant: Lieutenant Michael W. Wester, JAGC, USN.

For Appellee: Major Kelli A. Oneil, USMC; Captain Luke Huisenga, 

USMC.

Senior Judge HUTCHISON delivered the opinion of the Court, in 

which Senior Judge TANG joined. Judge LAWRENCE filed a separate 

dissenting opinion.

_________________________

 

1 The convening authority has not yet taken action on the sentence.
Brown v. United States, No. 201900050

2

PUBLISHED OPINION OF THE COURT

_________________________

HUTCHISON, Senior Judge:

Following his conviction at special court-martial, but prior to the convening authority’s action, the petitioner seeks extraordinary relief from this 

court in the nature of a writ of mandamus or a writ of prohibition. Specifically, the petitioner requests that we remove the military judge or grant a mistrial. Alternatively, the petitioner requests that we “appoint a special master 

to investigate allegations of unlawful command influence.”2 We granted the 

petitioner’s request to stay his court-martial proceedings and directed the petitioner to specifically brief whether this court had jurisdiction to entertain 

his extraordinary writ.3 Having considered the petitioner’s prayer for relief, 

his brief on the jurisdictional question, and the government’s response, we 

conclude that we have jurisdiction to entertain the petitioner’s writ, but that 

the petitioner has not demonstrated a clear and indisputable right to the relief requested. Accordingly, the petition is denied.

I. BACKGROUND

A panel of officer and enlisted members sitting as a special court-martial 

convicted the petitioner of abusive sexual contact and disorderly conduct and 

sentenced him to be reduced to paygrade E-7. Prior to acting on the sentence, 

the convening authority granted the petitioner’s request to convene a posttrial hearing pursuant to Article 39(a), Uniform Code of Military Justice 

(UCMJ), 10 U.S.C. § 839(a) (2012), to address legal errors raised by the petitioner in his clemency request. Specifically, the convening authority directed 

the military judge to address: (1) whether he properly declined to provide a

mistake of fact instruction; (2) whether he properly prohibited the petitioner 

from presenting evidence of the petitioner’s character for truthfulness; and 

(3) whether he properly prohibited the petitioner from rehabilitating a witness’ character for truthfulness. 

At the Article 39(a), UCMJ, hearing the petitioner moved to disqualify the 

military judge for bias or the appearance of bias. In support of his motion, the 

petitioner conducted a voir dire of the military judge and called the court re-

 

2 Petition for Extraordinary Relief of 28 Feb 19 at 3-4.

3 See NMCCA Order of 6 Mar 19.
Brown v. United States, No. 201900050

3

porter to testify that the judge seemed antagonistic towards petitioner’s 

counsel. The military judge denied the motion to recuse and further denied 

oral argument on the issues certified by the convening authority. Instead, the 

military judge stated he would review the entire record, including the briefs 

of the parties, to address the issues. Before the military judge ruled, the petition filed his extraordinary writ with our court.

II. DISCUSSION

A. Jurisdiction

The All Writs Act states that “all courts established by Act of Congress 

may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. 1651(a). 

See also United States v. Denedo, 556 U.S. 904, 911 (2009); RULE FOR 

COURTS-MARTIAL (R.C.M.) 1203(b), Discussion, MANUAL FOR COURTSMARTIAL, UNITED STATES (2016 ed.). “[M]ilitary courts, like Article III tribunals, are empowered to issue extraordinary writs under the All Writs Act.” 

LRM v. Kastenberg, 72 M.J. 364, 367 (C.A.A.F. 2013) (quoting Denedo, 556

U.S. at 911) (alteration in original). However, the All Writs Act does not serve 

as “an independent grant of jurisdiction, nor does it expand [our] existing 

statutory jurisdiction.” Id. (citing Clinton v. Goldsmith, 526 U.S. 529, 534-35 

(1999)). Thus, in order to grant the petitioner’s prayer for relief, the All Writs 

Act requires that the requested writ be “in aid of the issuing court’s jurisdiction.” Goldsmith, 526 U.S. at 534 (emphasis added). 

“The courts of criminal appeals are courts of limited jurisdiction, defined 

entirely by statute.” United States v. Arness, 74 M.J. 441, 442 (C.A.A.F. 

2015). Our limited jurisdiction—relevant to the petitioner’s writ—is defined

by two statutes, Articles 66 and 69, UCMJ. Article 66(b)(1), UCMJ, requires 

this court to review the record in each trial “in which the sentence, as approved, extends to death, dismissal of a commissioned officer, cadet, or midshipman, dishonorable or bad-conduct discharge, or confinement for one year 

or more.”

Those cases tried at general court-martial receiving a sentence not meeting the minimum requirements for mandatory review under Article 66, 

UCMJ, “shall be examined in the office of the Judge Advocate General.” Article 69(a). However, those cases not reviewed by this court pursuant to Article 

66, UCMJ, or by the Judge Advocate General (JAG) pursuant to Article 69(a), 

UCMJ, can still be reviewed, “upon application of the accused” to the JAG for 

inter alia, “error prejudicial to the substantial rights of the accused.” Article 

69(b).
Brown v. United States, No. 201900050

4

Once a case is subject to review by the JAG—whether through automatic 

review pursuant to Article 69(a), UCMJ, or upon application of the accused 

pursuant to Article 69(b), UCMJ—the JAG may refer the case to the court of 

criminal appeals (CCA). Specifically, Article 69(d), UCMJ, provides that the 

CCA may review, under Article 66, UCMJ: 

(1) any court-martial case which

(A) is subject to action by the Judge Advocate General 

under [§ 869], and

(B) is sent to the Court of Criminal Appeals by order of 

the Judge Advocate General; and

(2) any action taken by the Judge Advocate General under this 

section in such case.

In Arness, the Court of Appeals for the Armed Forces (CAAF) explained 

that Article 69(d) does not grant a CCA the authority to review “every case 

which is subject to action by the [JAG] pursuant to Article 69. Instead, it 

grants the CCA authority to review any action taken by the [JAG] . . . that 

the [JAG] elects to refer to the CCA.” 74 M.J. at 443. Thus, referral by the 

JAG to the CCA is “a statutory prerequisite” for a CCA’s review. Id. Applying 

this reading of Article 69(d), UCMJ, the CAAF rejected Arness’ Petition for 

writ of error coram nobis. Lieutenant Colonel Arness had been convicted at 

general court-martial of several specifications of absenting himself without 

authority, false official statements, and conduct unbecoming an officer. He 

was sentenced to 11 months’ confinement and a reprimand. The Air Force 

JAG completed review under Article 69(a) and “determined that the findings 

and sentence were supported in law, and elected not to send the case to the 

CCA for review under Article 69(d).” Id. at 442. Since the JAG did not refer 

the case to the CCA, the CAAF held that “[c]onsideration of extraordinary 

relief [was] not ‘in aid’ of the CCA’s jurisdiction, because the CCA had none in 

the first place.” Id. at 443.

Here, the petitioner was sentenced to only a reduction in grade at a special court-martial. As a result, he is not entitled to a mandatory review by 

this court pursuant to Article 66, UCMJ, nor to review by the JAG pursuant 

to Article 69(a), UCMJ. Rather, the petitioner is entitled to a review by a 

judge advocate pursuant to Article 64, UCMJ, and may seek review from the 

JAG, pursuant to Article 69(b), UCMJ. But because the case is not yet final, 

the petitioner has not yet had the opportunity to seek review by the JAG, and 

the JAG, of course, has not yet had the opportunity to refer the case to our 

court pursuant to Article 69(d). In this regard, the appellant’s case is distinct 

from Arness. The question is whether this distinction makes any difference 

when it comes to our jurisdiction. We conclude that it does. 
Brown v. United States, No. 201900050

5

The CAAF’s holding in Arness dealt specifically with a writ of error coram 

nobis. As the Supreme Court made clear in Denedo, an “application for the 

writ [of error coram nobis] is properly viewed as a belated extension of the 

original proceeding during which the error allegedly transpired.” Denedo, 556 

U.S. at 913. Since the Air Force JAG never referred Arness’ case to the CCA, 

the CCA never had jurisdiction of Arness’ case. Thus, Arness simply stands 

for the unsurprising proposition that a CCA may not extend jurisdiction it 

never had.

The petitioner is not seeking a writ of error coram nobis, but rather a writ 

of mandamus or prohibition. As a result, he does not rely on an “extension of 

the original proceeding” for jurisdiction. Denedo, 556 U.S. at 913. Rather, our 

jurisdiction to entertain the petitioner’s writ is found in the doctrine of potential jurisdiction. See FTC v. Dean Foods Co., 384 U.S. 597, 603 (1966) (finding 

that the power to issue writs “extends to the potential jurisdiction of the appellate court where an appeal is not then pending but may be later perfected”). The CAAF did not address potential jurisdiction in Arness.

In Howell v. United States, 75 M.J. 386 (C.A.A.F. 2016)—decided after 

Arness—the CAAF held that we had jurisdiction under the All Writs Act to 

hear a government writ of prohibition even though the convening authority 

had not yet approved the adjudged sentence. The CAAF explained that “the 

doctrine of potential jurisdiction allows appellate courts to issue opinions in 

matters that may reach the actual jurisdiction of the court.” Howell, 75 M.J. 

at 397 n.4 (citing Dean Foods Co., 384 U.S. at 603) (emphasis added). There 

are, of course, obvious differences between Howell and the petitioner’s case. 

Howell’s adjudged, but not yet approved, sentence included a dishonorable 

discharge and nine years’ confinement, thus qualifying for direct review by 

our court under Article 66, UCMJ. See also Seeto v. Levy, No. 2016-15, 2017 

CCA LEXIS 136, at *4 (A.F. Ct. Crim. App. 22 Feb. 2017) (unpub. op.) (“Given 

Petitioner’s adjudged sentence is within this court’s jurisdictional mandate 

under Article 66, UCMJ, and may be referred for direct review, we find the 

writs submitted in this case are ‘in aid of’ our jurisdiction under the All Writs 

Act.”). The petitioner’s sentence included only a reduction in grade, and as 

mentioned previously, triggers neither automatic review by our court nor the 

JAG.

Further, while the convening authority has directed that the military 

judge answer the legal errors raised by the petitioner in his clemency request, 

nothing the military judge does, and nothing the convening authority can do 

at this stage of the proceedings, will bring the petitioner’s sentence within 

the ambit of our Article 66, UCMJ, jurisdiction. Rather, the only way for this 

court to gain jurisdiction over the petitioner’s case is for the JAG to refer the 

case to our court pursuant to Article 69(d), UCMJ. 
Brown v. United States, No. 201900050

6

But we do not think these differences extinguish our potential jurisdiction 

here. First, like the petitioner’s prayer for relief, the government’s writ in 

Howell was a writ of prohibition, not a writ of error coram nobis that would 

require us to extend jurisdiction we have never had. Second, and more importantly, the CAAF, citing Supreme Court precedent, explained that our potential jurisdiction exists where “matters . . . may reach the actual jurisdiction” of our court. Howell, 75 M.J. at 397 n.4 (emphasis added). Simply put, 

the petitioner’s case may yet reach our court. That was not the case in Arness.

That there are still prerequisites—application by the petitioner and referral 

by the JAG—that must be satisfied before we have “actual jurisdiction” does 

not matter and did not matter to the CAAF in Howell. 

In Howell, although the adjudged sentence would have triggered automatic review by our court pursuant to Article 66, UCMJ, the CA had not yet approved the findings or the sentence. See Howell, 75 M.J. at 389. Our court’s 

jurisdiction under Article 66(b), UCMJ, is based on the sentence “as approved” by the CA. 10 U.S.C. § 866(b) (1996). Based on the date of Howell’s 

offenses, the CA had the “clear unfettered discretion . . . to modify the findings and sentence.”4 United States v. Nerad, 69 M.J. 138, 145 (C.A.A.F. 2010).

Therefore, in order for this court to have had actual jurisdiction over Howell’s 

case, the CA would have had to approve a sentence triggering our review,

which he may or may not have done in the exercise of his “command prerogative.” Id.; see also Article 60(c)(1), UCMJ (2006). This prerequisite is not unlike the prerequisite for our actual jurisdiction in the petitioner’s case. In 

both instances, the matters “may reach the actual jurisdiction of the court.” 

Howell, 75 M.J. at 390 n.4 (emphasis added).

We are also guided by the CAAF’s decision in Hasan v. Gross, 71 M.J. 416 

(C.A.A.F. 2012). There, the CAAF granted the petitioner’s writ of mandamus—filed prior to the start of his trial—and removed the military judge “on 

the basis of the appearance of bias.” Id. at 417. The court did not discuss jurisdiction in their opinion, but later explained their basis for finding jurisdic-

 

4 See Article 60(c)(1), UCMJ, 10 U.S.C. § 860(c)(1) (2013) (“The authority under 

this section to modify the findings and sentence of a court-martial is a matter of 

command prerogative involving the sole discretion of the convening authority.”). The 

National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, 127 

Stat. 672 (2013), amended Article 60(c)(4), UCMJ, and restricted the CA’s authority 

to modify sentences for all but the most minor offenses committed on or after 24 June 

2014. Specifically, the changes to Article 60(c)(4), UCMJ, prohibit CAs from “disapprov[ing], commut[ing], or suspend[ing] in whole or in part an adjudged sentence of 

confinement for more than six months or a sentence of dismissal, dishonorable discharge, or bad conduct discharge” unless certain exceptions exist. 
Brown v. United States, No. 201900050

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tion was premised on the fact that the “harm alleged by the petitioner—that 

the military judge was biased—had the potential to directly affect the findings and sentence.” Ctr. for Constitutional Rights v. United States, 72 M.J. 

126, 129 (C.A.A.F. 2013). In Ctr. for Constitutional Rights, the petitioner 

sought public access to documents filed in a high-profile court-martial. Id. at 

127. The CAAF rejected the petitioner’s potential jurisdiction claims, distinguishing it from Hasan, because the court was being asked “to adjudicate 

what amounts to a civil action, maintained by persons who are strangers to 

the court-martial” that had “no bearing on any findings and sentence that 

may eventually be adjudged by the court-martial.” Id. at 129. Thus, a “writ 

petition may be ‘in aid of’ a court’s jurisdiction even on interlocutory matters 

where no finding or sentence has been entered in the court-martial.” Kastenberg, 72 M.J. at 368 (citations omitted). “To establish subject-matter jurisdiction, the harm alleged must have had ‘the potential to directly affect the findings and sentence.’” Id. (quoting Ctr. for Constitutional Rights, 72 M.J. at 

129). 

Here, the harm alleged—a biased military judge—is the same harm alleged in Hasan, and has the potential to directly affect the findings and sentence. The fact that the court-martial has arrived at findings and a sentence 

does not change this analysis. Pursuant to R.C.M. 1102, the CA directed a 

post-trial Article 39(a) session “to reconsider . . . trial ruling[s] that substantially affect[ ] the legal sufficiency of any findings of guilty or the sentence.” 

R.C.M. 1102(b)(2). If the military judge were to reconsider those rulings for 

which the CA specifically directed the post-trial Article 39(a) session, the 

findings and sentence could be affected. 

Because the petitioner’s case may still reach this court, and the alleged 

harm has the potential to directly affect the findings and sentence, we conclude we have potential jurisdiction to entertain the petitioner’s writ.

B. Merits of Petitioner’s Writ

1. Standard of review

A writ of mandamus is “a drastic instrument which should be invoked only in truly extraordinary situations.” United States v. Labella, 15 M.J. 228, 

229 (C.M.A. 1983) (citations omitted). The writ has traditionally been used 

“to confine an inferior court to a lawful exercise of its prescribed jurisdiction 

or to compel it to exercise its authority when it is its duty to do so.” Roche v. 

Evaporated Milk Association, 319 U.S. 21, 26 (1943). Only exceptional circumstances amounting to a “clear abuse of discretion or usurpation of judicial 

power” justify the invocation of the writ. Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383 (1953) (citation and internal quotation marks omitted). Therefore, to prevail, a petitioner seeking an extraordinary writ must 
Brown v. United States, No. 201900050

8

show that: “(1) there is no other adequate means to attain relief; (2) the right 

to issuance of the writ is clear and indisputable; and (3) the issuance of the

writ is appropriate under the circumstances.” Hasan, 71 M.J. at 418 (citing

Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 380-81 (2004)). 

As an initial matter, we note that in addition to asking this court for a 

writ of mandamus disqualifying the military judge, the petitioner also seeks 

relief for the substantive issues he raised in clemency and which are currently pending before the military judge in the post-trial Article 39(a) session. In 

addition, the petitioner claims that unlawful command influence infected the 

post-trial proceedings after a senior Marine charged with supervising the trial counsel sent a letter to the defense counsel’s reporting senior cautioning 

him on the defense counsel’s “word choice.”5

These issues are currently before the military judge and may also be reviewed during the normal course of review. As we discussed above, we recognize that given the petitioner’s adjudged sentence, appellate review may not

necessarily include review by our court. However, we disagree with the petitioner’s assertion that his sentence “precludes the opportunity of direct appeal” and that he must “rely on hope alone of obtaining relief through the collateral appeal process via Article 69.”6 Neither the mandatory review by a 

Judge Advocate in Article 64, UCMJ, nor the petitioner’s application for review by the JAG pursuant to Article 69(b), UCMJ, are collateral reviews. Rather, they form the statutory scheme of direct court-martial review created by 

Congress and signed into law by the President. The petitioner can receive the 

relief he requests through this process.7 That review pursuant to Article 64, 

UCMJ, or Article 69(b), UCMJ, may not be the review the petitioner wants 

and might not lead to review by our court does not mean that the petitioner 

has “no other adequate means to attain relief.” Hasan, 71 M.J. at 48. Therefore, we limit our discussion to the petitioner’s request that we disqualify the 

military judge.

 

5 Petition for Extraordinary Relief of 28 Feb 19 at 70.

6 Id. at 44.

7 See Article 64(c)(1)(A), UCMJ (providing that the CA “may disapprove or approve the findings or sentence, in whole or in part” upon recommendation of corrective action by a Judge Advocate); Article 69(b), UCMJ (“The findings or sentence, or 

both, . . . may be modified or set aside, in whole or in part, by the Judge Advocate 

General on the ground of . . . error prejudicial to the substantial rights of the accused.”).
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2. Disqualification of the military judge

A military “accused has a constitutional right to an impartial judge.” 

United States v. Martinez, 70 M.J. 154, 157 (C.A.A.F. 2011) (citation omitted). 

R.C.M. 902 “divides the grounds for disqualification into two categories—

specific circumstances connoting actual bias and the appearance of bias.” 

United States v. Quintanilla, 56 M.J. 37, 44-45 (C.A.A.F. 2001). R.C.M. 902(b) 

lists five specific circumstances requiring disqualification, only one of which 

is arguably pertinent to the petitioner’s case. R.C.M. 902(b)(1), requires disqualification “[w]here the military judge has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts.” (emphasis added).

R.C.M. 902(a) governs the appearance of bias and directs that “a military 

judge shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned.” We use an objective standard to identify the appearance of bias: “[a]ny conduct that would 

lead a reasonable [person] knowing all the circumstances to the conclusion 

that the judge’s impartiality might reasonably be questioned.” Hasan, 71 

M.J. at 418 (first alteration in original) (citation omitted). Recusal of the military judge based on the appearance of bias “promote[s] public confidence in 

the integrity of the judicial process.” Liljeberg v. Health Servs. Acquisition 

Corp., 486 U.S. 847, 858 n.7 (1988). “[W]hat matters is not the reality of bias 

or prejudice but its appearance.” Liteky v. United States, 510 U.S. 540, 548 

(1994).

The petitioner alleges that the military judge exhibited actual bias, or in 

the alternative, the appearance of bias based on a perceived disparity in ruling on objections between the defense and the government; on the military 

judge’s demeanor during the trial; and on the military judge’s evidentiary 

and instructional rulings adverse to the defense. In support of his argument 

the petitioner compiled a statistical breakdown of objections sustained and 

overruled by the military judge and provided examples of the military judge 

interrupting the defense counsel. During the post-trial Article 39(a) session, 

the petitioner’s defense counsel submitted four affidavits and called two witnesses. This evidence, argues the petitioner, showed that the military judge 

appeared to dislike the petitioner’s defense counsel, was visibly frustrated 

with the defense counsel, and rolled his eyes and spoke to the defense counsel 

in a harsh tone. In short, the petitioner’s allegations of bias are all centered 

on the military judge’s rulings on objections, instructions, and evidentiary 

motions, as well as his interaction with his defense team, during the trial.

“There is a strong presumption that a judge is impartial, and a party 

seeking to demonstrate bias must overcome a high hurdle, particularly when 

the alleged bias involves actions taken in conjunction with judicial proceed-
Brown v. United States, No. 201900050

10

ings.” Quintanilla, 56 M.J. at 44. “[R]emarks, comments, or rulings of a judge 

do not constitute bias or partiality, ‘unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.’ ” Id. (quoting 

Liteky, 510 U.S. at 555). In Liteky, the Supreme Court explained that “judicial rulings alone almost never constitute a valid basis for a bias or partiality 

motion.” Liteky, 510 U.S. at 555. Rather, “only in the rarest circumstances” 

would a military judge’s rulings “evidence the degree of favoritism or antagonism required” when no extrajudicial evidence of bias is involved. Id. Moreover, “judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do 

not support a bias or partiality challenge.” Id. Simply put, “expressions of 

impatience, dissatisfaction, annoyance, and even anger, that are within the 

bounds of what imperfect men and women . . . sometimes display” do not establish bias or partiality. Id. at 555-56. 

Because the petitioner’s allegations of bias focus solely on the military 

judge’s actions during the court-martial, and he has otherwise failed to rebut 

the strong presumption that the military judge is impartial, we find neither 

actual bias nor the appearance of bias. As a result, we conclude the petitioner 

has failed to demonstrate a clear and indisputable right to the writ and deny 

his petition. 

III. CONCLUSION

The petition for extraordinary relief in the nature of a writ of prohibition 

or a writ of mandamus is DENIED and the STAY IS LIFTED.

Senior Judge TANG concurs.

LAWRENCE, Judge (dissenting):

Fundamentally, as an Article I court, our jurisdiction is limited to the 

powers conferred by statute and “we may not act unless Congress has given 

us the authority to do so.” Loving v. United States, 62 M.J. 235, 239-40 

(C.A.A.F. 2005). Here, the adjudication of a sub-jurisdictional sentence forecloses our direct means of review and, absent discretionary action of the 

Judge Advocate General (JAG) to send the matter for our review, we will 

never have jurisdiction over the matter. Any consideration of the merits of 

this petition necessarily relies upon improper expansion of our jurisdiction 

beyond statutory grant, thereby functioning as an advisory opinion. Therefore, I cannot join in any part of the majority opinion and respectfully offer 

my dissent.

The path to both our actual and potential jurisdiction is through Article 

66(b), UCMJ, 10 U.S.C. § 866(b) (2012), where the JAG “shall refer to a Court 
Brown v. United States, No. 201900050

11

of Criminal Appeals [(CCA)]” those cases that enjoy jurisdiction as defined by 

the statute. Art. 66, UCMJ (emphasis added). Critically different is Article 

69, UCMJ, where the JAG may send the case for our review of matters of law. 

The simple and unambiguous language of the statute cannot be overlooked—the Judge Advocate General has absolute discretion to act on a case 

with a sentence below the jurisdictional limit of this court (a sub-jurisdictional case). First, the JAG may simply identify, sua sponte, “newly discovered evidence, fraud on the court, lack of jurisdiction over the accused or the 

offense, error prejudicial to the substantial rights of the accused, or the appropriateness of the sentence.” Art. 69(b), UCMJ. Most cases of this nature, 

however, arise by way of application to the JAG by a petitioner using these

same grounds to pray for relief. Once in receipt of such an application, the 

JAG alone has statutory authority to review and decide whether to take appropriate action by (1) denying the application, (2) setting aside the findings 

or sentence, (3) ordering a rehearing, (4) dismissing the charges, or 

(5) sending it to the CCA for Article 66, UCMJ, review. Art. 66(c) and (d), 

UCMJ. Here, the majority opinion has recognized our limited jurisdiction, 

but, without explanation, dispensed with the central role of the JAG by considering the merits of a sub-jurisdictional matter not sent to us by the JAG.

We have no authority to decide this case. By doing so, we usurp the powers Congress specifically vested in the JAG to consider sub-jurisdictional applications and determine whether they may be resolved through other means 

under his discretion or are appropriate to be sent for CCA review. Far from

this being “in aid of” our jurisdiction under the All Writs Act, 28 U.S.C. 

1651(a), the majority has created jurisdiction where there is none and sought 

to resolve the merits of the petition. This we cannot do. 

Cited by the majority to support the doctrine of potential jurisdiction, the 

Supreme Court in FTC v. Dean Foods Co. noted that “where a case is within 

the appellate jurisdiction of the higher court a writ . . . may issue in aid of the 

appellate jurisdiction.” 384 U.S. 597, 603 (1966) (quoting McClellan v. Carland, 217 U.S. 268, 280 (1910)) (alteration in original) (emphasis added). The 

Court went on to cite other cases in which an injunction was appropriate to 

preserve the court’s jurisdiction pending other administrative actions or other 

review required under statute. Id. at 604-05. (The Court noted that, absent 

injunctive relief, undoing a merger and effectively restoring the competitive 

marketplace would be impossible should courts of appeals not step in prior to 

irreparable harm having been suffered.) The Court said that “[i]t would stultify congressional purpose to say that the [Federal Trade] Commission did 

not have the incidental power to ask the courts of appeals to exercise their 

authority derived from the All Writs Act.” Id. at 606. 
Brown v. United States, No. 201900050

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Here, the majority advances a position that is directly at odds with both 

the language and clear intent of our jurisdictional statute. In enacting Article 

69, UCMJ, the Congress specifically conferred upon the JAG—not the CCA—

authority to consider alleged errors in a case with a sub-jurisdictional sentence. In doing so, Congress made abundantly clear that there would be an 

intermediary and indispensable step before we might ever consider such a 

matter. Unlike in Dean Foods Co., no harm whatsoever would be suffered by 

this petitioner should the process play out as expressed in statute. Only our 

stay of proceedings below to consider this petition has interrupted completion 

of the Article 39(a), UCMJ, session and action by the convening authority 

(CA). Nonetheless, the majority opinion would have us gain—that is, manufacture—potential jurisdiction by circumventing the express authority of the 

JAG with the boldness to presume his discretionary action in Article 66(d), 

UCMJ.

Because this special court-martial had the authority to adjudge a sentence within the appellate jurisdiction of this court, prior to the moment this 

sub-jurisdictional sentence was announced, we had potential jurisdiction. 

However, the moment the trial court adjudged the sentence it did, we no 

longer had potential jurisdiction. I recognize and agree with the line of cases

cited in the majority opinion in which the Court of Appeals for the Armed 

Forces (CAAF) has recognized the application of the doctrine of potential jurisdiction as it relates to Article 66, UCMJ. See Howell v. United States, 75 

M.J. 386 (C.A.A.F. 2016) (vacating military judge’s ruling directing the CA to 

provide Article 13, UCMJ, sentencing credit in the CA’s action); LRM v. 

Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) (granting pre-trial motion allowing 

special victims’ counsel to be heard on factual matters); Hasan v. Gross, 71 

M.J. 416 (C.A.A.F. 2012) (granting pre-trial removal of the military judge for 

bias, inter alia, ordering the forcible shaving of Hasan). The common theme 

running through each of these cases is that—whether the case was in its infancy, in pre-trial motions, or after the close of courtroom proceedings while 

awaiting CA’s action—they all had Article 66, UCMJ, qualifying punishments in play. However, what we once had jurisdiction over does not continue 

indefinitely. Clinton v. Goldsmith, 526 U.S. 529, 536 (1999) (explaining that 

there is no source of continuing jurisdiction over actions that a military appellate court had at one time the power to review).

The majority is unnecessarily transfixed by the argument that the 

CAAF’s decision in United States v. Arness, 74 M.J. 441 (C.A.A.F. 2015), is 

inapplicable to this case, while Howell v. United States, 75 M.J. 386 (C.A.A.F. 

2016), does apply, based upon the manner of writ employed in each case. 

Simply put, Arness is a case in which the CAAF recognized the JAG’s defined 

role under Article 69, UCMJ, to provide the appellate review for a sub-jurisdictional case and rejected the ability of CCAs to seize extraordinary writ
Brown v. United States, No. 201900050

13

jurisdiction and entertain the petition. On the other hand, Howell had received a sentence that would—unless reduced below the jurisdictional 

threshold by the relatively unfettered powers the CA had at that time—

mandate the JAG’s referral to the CCA under Article 66, UCMJ. At its core, 

at the time of that petition, this court in Howell had a clear and unimpeded 

path to eventually hearing the matter. That is not the case here. 

In Arness, the CAAF considered and explicitly “repudiate[d] the expansive 

approach taken” in a line of cases that “entertain[ed] petitions for extraordinary relief where the sentence was less than that required for review before 

the service courts.” Arness, 74 M.J. at 443. The majority here argues similarly to the Air Force Court of Criminal Appeals in Arness when they averred 

they had jurisdiction “because the [JAG] could have sent the case to the CCA 

for review.” Id. at 442 (emphasis added).1 However, as in Arness, the analysis 

here is also very straightforward as the JAG’s action in referring a subjurisdictional case to the CCA is indeed a statutory prerequisite for our review. Id. at 443. Further, as emphasized in the concurring opinion in Arness, 

“if [the JAG’s] actions were subject to CCA review without referral to the 

CCA by the [JAG], then we would expect to have seen multiple cases involving such exercise of jurisdiction.” Id. at 446 (Baker, J., concurring). 

The majority’s expansive view of the doctrine of potential jurisdiction is 

erroneous.2 In order to apply the doctrine of potential jurisdiction, there logically must be a path to this court’s jurisdiction that is not exclusively reliant

upon favorable consideration of matters by the JAG and his certification to 

this court for review. 

Nonetheless, the majority suggests that the “prerequisites” of the CA not

taking action to disapprove a jurisdictionally-qualifying sentence and the 

JAG reviewing and affirmatively deciding to send a matter to the CCA are on 

equal footing. No such parallel was drawn in Howell to reject the CAAF’s decision in Arness—note that Arness was not cited, much less questioned or dis-

 

1 “Simply put, the petitioner’s case may yet reach our court.” Majority Opinion at 

*6.

2 While not cited by the majority opinion as consistent with the position they espouse, in light of the CAAF’s later holding in Arness, I doubt the continued validity of 

this court’s opinion in United States v. Booker, 72 M.J. 787 (N-M. Ct. Crim. App. 

2013) as concerns application of Article 69, UCMJ. Although the vast majority of that 

opinion should remain intact as applied to this court’s jurisdiction in Articles 62 and 

66, UCMJ, any discussion of our ability to claim jurisdiction independent of JAG referral under Article 69(d), UCMJ, has equally been “repudiate[d]” by Arness. 
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14

tinguished in Howell—and it is not valid to suggest these “prerequisites” are 

on par with one another or unimportant. 

Lastly, the majority here fails to provide any rational link between the 

most technical—and inconsequential—effect upon the findings and sentence 

in the conclusion of the Article 39(a), UCMJ, and how that allows this court 

to bypass the JAG. Granted, the military judge in the post-trial Article 39(a), 

UCMJ, session may reconsider his rulings, and the “findings and sentence 

could be affected.”3 While that is indeed a possible outcome of the hearing, 

there remains no approach by which the sub-jurisdictional sentence announced by the members panel could be escalated by the military judge to 

gain our jurisdiction. The majority opinion recognizes as much in stating that

nothing the military judge does, and nothing the convening authority can do at this stage of the proceedings, will bring the 

petitioner’s sentence within the ambit of our Article 66, UCMJ, 

jurisdiction. Rather, the only way for this court to gain jurisdiction over the petitioner’s case is for the JAG to refer the case to 

our court pursuant to Article 69(d), UCMJ.4

I am at a loss how that allows this court to claim jurisdiction in a subjurisdictional case that completely ignores the JAG’s indispensable role. 

Potential jurisdiction applies to a host of cases in which the process with 

respect to the findings or sentence is yet incomplete. Effectively, an unlimited 

range of options may play out in these cases, allowing us to consider that

there is potential for our jurisdiction under Article 66, UCMJ. We necessarily 

take action to preserve—aid—our ability to continue the development of what 

is then an open-ended question. That is not the case here and in other cases 

where the announced sentence was definitively and forever below our direct 

statutory threshold. We do little to discourage piecemeal litigation, we increase delay, and we effectively provide an advisory opinion when we consider the merits in a matter such as this, which is one or more steps premature 

or may never ripen at all, absent independent action by the JAG. We also all 

but invite an accused with a sub-jurisdictional sentence to completely bypass 

 

3 Majority Opinion at *7. 

4 Id. at *5. 
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15

the statutory review scheme set out in Articles 64, 69(a), and 69(b), UCMJ, 

by immediately petitioning this court for extraordinary relief.5

Proper application of the statute and the doctrine of potential jurisdiction 

preserves those petitions for extraordinary relief brought by petitioners prior 

to announcement of a sub-jurisdictional sentence, where potential appellate 

jurisdiction still exists. Because the petitioner’s adjudged sentence does not—

and cannot—qualify for automatic review by our court pursuant to Article 66, 

UCMJ, and because the petitioner has not submitted an application to the

JAG for consideration, much less the petition sent to this court pursuant to 

Article 69(d), UCMJ, we have no authority to presume the JAG’s action and 

create jurisdiction where we have none. Consequently, I would deny the writ 

on jurisdictional grounds alone without offering any consideration of the merits. 

FOR THE COURT:

RODGER A. DREW, JR.

Clerk of Court

 

5 We would equally be inviting an accused whose sub-jurisdictional case was referred to trial on or after 1 January 2019, to bypass the new statutory review scheme 

set out in Article 69(d), UCMJ (2019).