Sunday, December 14, 2008

CGCCA, you got some 'splainin' to do

On I Love Lucy, Ricky Ricardo's catch phrase was, "Lucy, you got some 'splainin' to do." That phrase came to mind when reading CGCCA's opinion in United States v. Tuscan, __ M.J. ___, No. 1281 (C.G. Ct. Crim. App. Dec. 9, 2008).

Fireman Machinery Technician Tuscan and Petty Officer LaPalm were co-actors in offenses that also involved a third Coastguardsman who was discharged before their misconduct came to light. The misconduct was essentially a brutal and humiliating punking of a high school student who was the boyfriend of one of their neighbors. The high school boy was "handcuffed, hog-tied, slapped around with a belt," and had shaving cream sprayed down his pants. Tuscan pointed a pistol at the boy while he was tied up, revealing only afterward that the weapon was loaded with dummy training rounds.

For his part in the incident, Petty Officer LaPalm was sentenced to reduction to E-1 and a fine of $5,000, with a 60-day contingent fine enforcement period of confinement. Tuscan was sentenced to reduction to E-1, a bad-conduct discharge, and confinement for 12 months. CGCCA found that Tuscan's misconduct in the incident was "significantly greater" than OS3 LaPalm's. The court also found that Tuscan's previous record was more spotted than LaPalm's. CGCCA found that "the disparity in the sentence is justifiable as a matter of law." So far, so good. Then CGCCA continued, "Nonetheless, we will exercise our Article 66 authority and approve only six of the twelve months of Appellant's adjudged confinement." Id., slip op. at 8. The court concluded, "Accordingly, the sentence of a bad-conduct discharge, confinement for six months, and reduction to E-1 is affirmed." Id., slip op. at 10.

This raises the question: what did CGCCA intend to do when it reduced the adjudged confinement by six months? Tuscan's court-martial ended on 25 January 2007, so he was released from confinement about a year before CGCCA set aside six of the 12 months of confinement. CGCCA couldn't have thought that it was actually achieving a diminution of Tuscan's deprivation of liberty. So what did CGCCA have in mind? Did it intend the sentence "relief" to be merely metaphysical or to somewhat reduce any stigmatizing effect of being ordered confined for a year by reducing the formal sentence (though not the executed sentence) to confinement for six months? Or did CGCCA intend to recompense Tuscan for his overly lengthy confinement by having his automatic forfeitures returned to him for whatever period of time in excess of six months he was actually confined?

Whatever the correct answer to that question, I believe that CGCCA should have spelled it out. It opens the military justice system to legitimate ridicule for an appellate court to retroactively set aside confinement that has already been served. If the appellate court has some other end in mind when it does so -- such as producing some benefit to the accused resulting from collateral consequences of formally disapproved but actually served confinement -- then the appellate court should say so. This is true for two reasons. First, it will help to eliminate the appearance of meaningless relief. Second, it would allow counsel to inform the court if the court's belief about the collateral consequences is incorrect.

Let's assume for the moment that CGCCA's actual intent in Tuscan was to have about six months of automatic forfeitures at an E-1 rate returned to him. But what if for some reason, contrary to the court's expectation, that wouldn't actually happen. It's hard enough for me to figure out what DFAS would do in a case like this -- I know NOTHING about how Coast Guard pay officials would deal with this. Might there be some chance that they would refuse to pay him the amount of automatic forfeitures at the E-1 level for his time in confinement in excess of six months? What if he was beyond the end of his contract date when he was court-martialed -- or his contract expired sometime during the first six months of his confinement? Would the Coast Guard still pay him for the now-excessive confinement? I don't know. And I could be wrong about this, but I'd bet that none of the judges on the Tuscan panel is absolutely sure of that answer. And if not, they should have made their expectation clear so that if it didn't come about, counsel could return to the court within the lengthy 30-day reconsideration period established by the Joint CCA rules and ask the court to award a meaningful form of relief if it were to turn out that the reduction in already-served confinement doesn't have any practical effect. And if I'm wrong and the court was absolutely sure that it was putting some money into Tuscan's pocket as a result of its relief, then it should say so to avoid the appearance of injustice that would be created by awarding meaningless relief.

So please CCAs, if you are going to award some form of apparently meaningless sentence relief, 'splain why you are doing so.

15 comments:

Anonymous said...

The Army Curt does it all the time. Set aside a few months or years already served. No way DFAS will ever pay the guy. Meaningless relief- gotta love it- The Court says- "We order restored all benefits" -- what ever they think that means and who will restore anything is far beyond my ken.

DB Cooper said...

I concur with anon 22:50. I've tried to wrestle money out of DFAS for a client in a case where the appellate court SPECIFICALLY set aside forfeitures, but to no avail. It's hard enough to fix pay problems when you are a regular Joe on active duty. It's impossible for an appellant who is either on involuntary excess leave or whose discharge has been executed. CCA Judges have undoubtedly gotten the run around from DFAS on their own pay issue throughout their careers, so they must certainly know they are awarding meaningless relief in situations like this.

Anonymous said...

It LOOKs good on paper!

In their end of year Stats, they say that they granted "relief" in X per cent of cases, small as that is, this again proves it's illusory!

Anonymous said...

So we are blaming the courts for the inability of DFAS to do its job?

Instead of bitching about it here, why don’t we try to figure out how to fix the issue. For instance, there was a CAAF case that set aside the findings in the Navy or Marine Court-Martial when the Govt was not able to abide by the terms of the PTA. In that case it was about the waiver of forfeitures to the appellant’s spouse and children for 6 months. The fact was that DFAS did pay the spouse, but it was untimely in the matter of paying, and I believe the appellant indicated that his family was evicted from their apartment by the late waiver of forfeitures. In that case CAAF held the actions of DFAS against the Govt (since it is part of the Govt) and set aside the findings and sentence. I have no idea what happened after that, but I bet the result was better for the appellant than the first court.

In cases where DFAS is unwilling to execute the orders of the court, I’m thinking an ex writ to CAAF may be the ticket.

Anonymous said...

It is much easier to whine about it than it is to actaully address the issue- after all you must tell the courts why DFAS wont pay- good luck with that. I think I will work on both the whining and the actual fix.

Cloudesley Shovell said...

Ordering payment of back pay is not within the jurisdiction of the CCAs or CAAF. That's what the Court of Claims is for.

Is it annoying that your client has to hire an attorney and petition another court to get what the gov't should have given him in the first place? Sure it is. But if the gov't always did what it was supposed to do or obligated to do, we wouldn't need a court of claims, or a board for correction of naval records, or any of the other myriad offices, boards, and courts that go around cleaning up after the gov't elephant.

Anonymous said...

Yer absolutely right Cloudesley. But keep in mind the Courts insist this "relief" is meaningful, and we are often talking about some kid who is owed 2 grand or less- good luck with him getting a lawyer and going to Claims Court-- the economics just aren't there.

Mike "No Man" Navarre said...

CLoudesley and DB:

Are you actually saying that you think the current CAAF (of Denedo, Lopez-de-Victoria, et al. fame) would find that something is not within their jurisdiciton? I think one could at least take a writ to CAAF or CCA to enforce a Court order to "restore all benefits." Even Clinton v. Goldsmith admitted CAAF must have the power to enforce its own orders. Appellant v. DFAS writs, why not?

Anonymous said...

Having spent some time trying to get back pay for appellants (as a government counsel) I wish DFAS would honor an order from the Court(s) as it would be much easier to get the appellant paid. Now there is this angst about what meaningful relief was. Even if CAAF vacates a conviction because DFAS was not able to comply with the PTA DFAS (general counsel) does not care. They do not see themselves as part of the military justice structure. Believe me, it is just as hard for a government counsel to get that kid his $2000 as it is for the sailor to go against DFAS himself.

Anonymous said...

What I was previously advocating has nothing to do with actually getting the $. I know that could be impossible, but if relief is warranted so that only a portion of the original sentence can legally be imposed and the Govt can't or is unwilling to mitigate the full effect of the original sentence so that only that part of the sentence that is legally appropriate is executed, then CAAF just might exercise jurisdiction and set everything aside. While therre might not be any $ in it, possibly the appellant's conviction goes away.

Cloudesley Shovell said...

No Man--

Let's assume CAAF exercises jurisdiction over an extraordinary writ seeking an order to DFAS to pay back pay and allowances. Let's ignore the question of whether Art. 67 gives CAAF any power to order DFAS to do anything (and whether Art. 75(a) pre-empts CAAF since it give the President the power to make regulations regarding restoration).

Petitioner is going to have to show that he has exhausted his remedies. I think those other remedies would include going to the Court of Claims, a court singularly well-suited to dealing with monetary claims against the gov't, unlike CAAF.

Mike "No Man" Navarre said...

Cloudesley:

Ok, call me dense, or more appropriately too lazy to go research this, but why would an appellant have to exhaust court (rather than administrative) remedies in other courts to get an order from the original court to enforce its own order? The exhaustion requirement may apply in extraordinary writs in other cases, but a writ enforcing the court's own order would seem to be a different animal--even the SG's reply brief in Denedo recognized that, no?

Cloudesley Shovell said...

No Man:

Excellent point distinguishing between extraordinary writs and the other, everyday writs.

Nowhere is any military court given the jurisdiction to enter money judgments against the United States, which is what we're really talking about here. Since the military courts don't have jurisdiction to enter money judgments, they cannot issue writs enforcing payments of money judgments. Thus no military court has any jurisdiction to issue writs of arrest, attachment, garnishment, replevin, sequestration, execution, etc. to enforce a money judgment.

There has been at least one case where ACCA ordered pay and allowances paid as credit for illegal PTC pursuant to RCM 305(k). US v. Hammond, 61 MJ 676 (ACCA 2005). But who can enforce that order, assuming that the Army or DFAS refused to pay? Would ACCA issue a writ of execution to the US Marshal's Service? Would the Marshal's Service honor it? Would the individual servicemember be required to provide an indemnity bond and an advance deposit to cover the US Marshal's expense in executing the writ against DFAS? Or would the servicemember have to take ACCA's order to a US District Court for issuance of a writ?

The whole thing gets messy really fast. Why go through all that pain and suffering when the US Court of Claims is sitting right there, ready to grant summary judgment on back pay claims when court-martial sentences are set aside? They did so quite recently for former Sgt. Wayne Parker. Parker v. US, 72 Fed. Cl. 151 (2006). Very interesting reading. The related military case is at 54 MJ 700 (ACCA 2001).

Mike "No Man" Navarre said...

Cloudesley:

The main plus of going to CCA or CAAF for 99% of servicemembers, and all uniformed cousnel for that matter, is free representation and the inability to file briefs before COFC with that free represenation. For those appellants lucky enough to have civilian counsel, COFC is a great option. But, most servicemembers would likely be unable to foot the bill for COFC representation. While some could represent themselves pro se, I would think very few would attempt it. I know some commenters will lambast me for advocating, something I am not actually doing, any avenue where appellants are abusing the MilJus system and this is why Denedo and other cases are essential to reign in the MilJus system. But, it' s a reality for most victorious appellants in the system and if the avenue is available and free, why not take it?

Anonymous said...

Damn good points gentlemen, but I still think the point for the appellant has little to do with actually enforcing the court's order. Apparently a court found the sentence legal in some amount less than what was executed. If the Govt cannot mitigate the "unlawfully" executed portion of the sentence, the appellant should attempt to get the findings and sentence set aside, since the status quo allows for an unlawful portion of the sentence to remain effective, and that would be well within CAAF's authority to do as its only means to remove the illegality of the sentence. Allowing the illegal portion of the sentence to remain would be an acknowledgement of the courts as to its own impotency as well as knowing being complicit in allowing an illegal portion of the sentence to be executed. At least all civil disabilities would arguably be restored even if no $ ever is returned to the appellant. The remedy may be drastic but it could possibly alter DFAS’ attitude toward carrying out the orders of the courts.