Saturday, March 21, 2009

AFCCA's new published personal jurisdiction opinion

Here's a link to AFCCA's new published decision denying a petition for extraordinary relief challenging personal jurisdiction to try an Airman who had received a DD 214 and a final accounting of pay before being declared a deserter, apprehended, and returned to military control to face trial by court-martial. United States v. Webb, __ M.J. __, No. 2009-01 (pet) (A.F. Ct. Crim. App. March 20, 2009). (It's a big file and takes a while to load, so please be patient.) I'll post some thoughts about it after Maryland vs. Memphis.

1 comment:

Cloudesley Shovell said...

Hmmm . . .

I searched this opinion in vain for a citation to the legal rule that Article I courts are statutory, and that therefore their jurisdiction is strictly construed.

As far as I can tell, jurisdiction here hinged on the fact that an electronic document regarding legal hold was sent via e-mail to the AFPC. I see nothing in the opinion to suggest that this document was ever actually received by the AFPC, that AFPC ever acted upon the legal hold request (apparently, AFPC did not, since AFPC discharged Webb), or most significantly, that the command ever followed up with AFPC to see if AFPC had acted on the "commander's intent."

The Court chastises Webb for failing to strictly follow the checkout checklist, because had he done so, the command would've figured out that he was on legal hold. The Court never scrutizes the command's apparent failure to follow through with AFPC to ensure that Webb was actually on legal hold.

Given that jurisdiction is strictly construed, perhaps additional scrutiny should have been directed at the command's failure to ensure that Webb's alleged status on legal hold was actually properly put into effect with AFPC. If the command failed to do so, his discharge was mistaken, but valid, and not an ultra vires act.

Perhaps there are additional facts in the Military Judge's ruling that weren't repeated in the AFCCA oponion, but the court's opinion, standing alone, appears to not support its ultimate conclusion.