[00:00:00] Speaker 01:
case number 22-5259.

[00:00:02] Speaker 01:
Michael R. Henry, appellant, versus Frank Kendall III, United States Secretary of the Air Force.

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Mr. Feldmeier for the appellant, Mr. Hinchelwood for the appellee.

[00:00:14] Speaker 03:
Good morning, counsel.

[00:00:19] Speaker 09:
Good morning, judges Millett, Katz, and Walker.

[00:00:21] Speaker 09:
And may it please the court, I'm Robert Feldmeier, represent the appellant, Michael Henry.

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Mr. Henry and his father are present here today.

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observing today's thing.

[00:00:29] Speaker 05:
Why did your brief use EW's full name?

[00:00:33] Speaker 05:
Because there's no rule in this court that prohibits me from doing so, Your Honor.

[00:00:36] Speaker 05:
How often have you represented clients in this court with a final judgment against them?

[00:00:45] Speaker 05:
You're doing a collateral attack on a sex crime?

[00:00:48] Speaker 05:
Twice, Your Honor.

[00:00:49] Speaker 05:
I thought it was three times.

[00:00:51] Speaker 05:
Were you not?

[00:00:52] Speaker 09:
Three times.

[00:00:53] Speaker 09:
You're right, Your Honor, three times.

[00:00:54] Speaker 09:
The third hasn't come up.

[00:00:55] Speaker 09:
Which one did you forget?

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Forbes is still pending here in your honor.

[00:00:59] Speaker 05:
Did you use the full name of all four women in Forbes?

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Yes, your honor.

[00:01:04] Speaker 05:
And as I recall in Forbes, it was just in the fact section.

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There was no reason, it's not like your legal argument in the discussion needed to refer back to specific women.

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You just deliberately chose to list them in the fact section, correct?

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Yes, your honor.

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There's no rule in this court.

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In Campbell, which this court issued an order telling you to redact the names of minor victims and minor witnesses, correct?

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Yes, your honor.

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Why did you use their names?

[00:01:31] Speaker 05:
It was an error on my part.

[00:01:33] Speaker 05:
And after we corrected that error in December of 2023, you then later filed Forbes brief, correct?

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That's the chronology?

[00:01:41] Speaker 09:
Yes, your honor, but the Forbes victims are all adults.

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Noted.

[00:01:48] Speaker 09:
Yes, Your Honor.

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Your Honor, the convening authority who issued an order pursuant to Article 76, Uniform Code of Military Justice, issued an order that did not have res judicata effect because the review that occurred

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the Air Force Court of Criminal Appeals did not comply with Article 66 Uniform Code of Military Justice.

[00:02:11] Speaker 03:
What exactly is the remedy you're seeking?

[00:02:13] Speaker 09:
Your Honor, either that this court ordered the Secretary of the Air Force to return the record of trial at the Air Force Court of Criminal Appeals for a proper Article 66C review, or that it find that the order being without res judicata effect means that the judgment of the court marshal who tried my client is void.

[00:02:35] Speaker 03:
Where did you ask for finding that this was void in your petition?

[00:02:40] Speaker 09:
Both in the district court and in the reply.

[00:02:42] Speaker 03:
In the petition, show me what page you asked for finding that this was void.

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In the petition below, Your Honor?

[00:02:49] Speaker 03:
In the petition you filed in the district court, yes.

[00:02:52] Speaker 08:
Yes, Your Honor.

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One moment.

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would be at.

[00:03:19] Speaker 03:
What I read on page three is order.

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Respondents revoke the orders and return the record of trial to the Jag for the Air Force with directions for the trial Air Force to do the right review.

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Yes, Your Honor, I believe I did ask and reply, though, for any relief as may be appropriate.

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Where?

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believe I asked that.

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I believe I asked for that in the reply below in your reply brief.

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Yes, your honor.

[00:03:49] Speaker 03:
Okay.

[00:03:49] Speaker 03:
But it's not in the petition that you file in district court.

[00:03:52] Speaker 09:
No, your honor.

[00:03:52] Speaker 03:
Form of relief.

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Your only form of relief is to for us to send this back.

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The Air Force, get it back, get it back to the Air Force Court of Appeals for them to do a do over.

[00:04:01] Speaker 09:
Yes, your honor.

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The Air Force Court of Criminal Appeals did not conduct a Violet Article C6C review because it never conducted a... We do not have jurisdiction to conduct direct review of the military courts of appeals.

[00:04:21] Speaker 03:
No form of direct review is available here.

[00:04:24] Speaker 03:
Remand to do it again sounds like direct review.

[00:04:32] Speaker 09:
No, Your Honor.

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I'm not asking for this.

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We're not asking for this court to conduct its own Article 66 review or to even find... You're asking us to look at what the government did say.

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That was not sufficient.

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Go back and do it again.

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That's what you want us to do.

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Yes, Your Honor, because... What other case have we ever provided that type of review?

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as opposed to, in conjunction with some other proceeding, determining that a judgment was void in the context of another proceeding over which we have jurisdiction, such as a motion to change discharge, motion for back pay, things like that.

[00:05:07] Speaker 09:
Your Honor, you do have jurisdiction.

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What is your best case that we have the authority

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to look and say, court of appeals for the Air Force, you didn't, court of criminal appeals for the Air Force, you did not do your job properly.

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We're sending it back, do it again.

[00:05:26] Speaker 09:
Sanford says that this court can correct errors of a fundamental nature.

[00:05:34] Speaker 03:
The failure to conduct Article 66C review is- Were they arguing to have the decision voided in that case?

[00:05:40] Speaker 09:
They were, Your Honor.

[00:05:41] Speaker 03:
They were arguing that... Your Honor, you haven't asked us to rule that it's void.

[00:05:45] Speaker 09:
Well, I mean, I think that asking for a lesser form of relief certainly is included within asking to find that it's void.

[00:05:51] Speaker 03:
Well, void is a form of collateral relief that does not send any... We don't send any work back to the other court.

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We just say for purposes of our federal court, whatever claim is before us, it's void.

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We won't treat it as race judicata.

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But you have asked for something very different here that I haven't seen in any case, and that is

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Don't tell us what the final answer is.

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Send it back to the Court of Appeals to have a do-over under a de novo standard.

[00:06:15] Speaker 09:
Your Honor, in the alternative, as I did raise in my reply brief here... You can't raise things for the first time in a reply brief.

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Well, Your Honor, I mean, I've raised the fact that this was void and that the order... Is that the relief you sought?

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It's not the relief I sought, however, Your Honor, given that this court may give collateral, may collaterally review a order issued by, if that order was void, then this court may provide relief.

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We may collaterally review it to find that if someone has asked us to determine and avoid, in the words of the Supreme Court, in a case in which we otherwise have a jurisdiction.

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That's what the Supreme Court has held.

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That's what our cases have done.

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You're not asking for that.

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And so what you're asking us to do is send it back to the Court of Appeals, have a do-over, like we might to an agency sometime.

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But I don't understand if we can't do that because Supreme Court and our court have been crystal clear there's no direct review here.

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And if you're functionally asking for direct review, that's a form of redress we can't provide.

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Your Honor, if this court should find that it can't provide the redress for which we've asked, this court should remand for correction of the original complaint, simply because this matter... We're going to remand for you to file a new complaint?

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This matter was not litigated.

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It's a petition.

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It's not even a complaint.

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We're going to remain for a new petition.

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This matter was not litigated below, Your Honor, whether or not the relief sought was the relief that could be provided.

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So on that basis... The jurisdiction, we have to address on our own all the time.

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That gets raised for the first time all the time.

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We have to address that.

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Either we may not have jurisdiction straight up or your client may not have standing because we can't provide the redress that your client seeks.

[00:08:08] Speaker 03:
We can't send it back for a do-over.

[00:08:11] Speaker 03:
That's direct review, which we don't have jurisdictions to do.

[00:08:14] Speaker 09:
Well, Your Honor, if the error itself is jurisdictional, the error is never waived.

[00:08:19] Speaker 03:
We're doing two different types of jurists.

[00:08:20] Speaker 03:
I'm talking about Article III court subject matter jurisdiction at this point.

[00:08:24] Speaker 09:
Yes, Your Honor.

[00:08:25] Speaker 09:
Yes, Your Honor.

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But if the error from the military courts is jurisdictional, that error is never waived, can never be waived.

[00:08:32] Speaker 03:
Right.

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So it would be a separate question of whether we have

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Jurisdiction Article 3 jurisdiction or state matter jurisdiction.

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You have 1331 subject matter jurisdiction to determine whether or not the then if we can't provide the read just requested, he doesn't have standing and so we lack jurisdiction.

[00:08:48] Speaker 09:
No, Your Honor, because you have subject matter jurisdiction such recast separate from standing.

[00:08:54] Speaker 03:
My client is standing because he's standing requires that you have injury and causation, which he certainly alleges, and that the court can provide redress.

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And if we can't provide redress as a matter of law, you don't have standing.

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And if we can't provide the redress sought, and if the redress sought is a remand.

[00:09:10] Speaker 09:
My client has a request.

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I think that the court is placing, that your honor may be placing a great deal of emphasis on the form of the pleading.

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This court has jurisdiction to provide relief in some form.

[00:09:23] Speaker 03:
And you filed petitions here, whether you want to call it quorum nobis or mandamus.

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And you tell us what it is you want.

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I'm just not aware of any other case where we've done this remand that you're asking for.

[00:09:34] Speaker 07:
What's the answer first and then I'll follow up.

[00:09:40] Speaker 07:
I'm sorry, your honor.

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What was the question?

[00:09:42] Speaker 03:
I'm not sure what case.

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Someone has come and solely asked for a remand for the Armed Forces Court of Appeals to do the case over.

[00:09:52] Speaker 09:
Well, it wouldn't be the Armed Forces Court of Appeals.

[00:09:53] Speaker 03:
I'm sorry, for the Court of Criminal Appeals of the Air Force.

[00:09:57] Speaker 03:
It's a long name.

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Air Force Court of Appeals to have a do over.

[00:10:04] Speaker 09:
Your Honor, the case law of this quarter of all the Article III courts as of the type of remedy that you provide on finding a defect on collateral view is extremely sparse.

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So I can't point to any case simply because there's almost none discussing the remedy at all.

[00:10:23] Speaker 03:
You're not aware of any other circuits where this has happened?

[00:10:25] Speaker 09:
No, Your Honor.

[00:10:26] Speaker 07:
Can I just get this way, which is what's your cause of action?

[00:10:30] Speaker 09:
What's my cause of action?

[00:10:32] Speaker 09:
Yeah.

[00:10:32] Speaker 09:
Well, to go to district court.

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That there is a jurisdictional defect in the execution of the bad conduct discharge in this case, Your Honor.

[00:10:40] Speaker 07:
I mean, it's not habeas.

[00:10:42] Speaker 07:
Well, because he's no longer in custody.

[00:10:43] Speaker 07:
It's not really quorum nobis, which is usually filed in the court that made the alleged error.

[00:10:52] Speaker 07:
I mean, it's 1331 is federal subject matter jurisdiction.

[00:10:54] Speaker 07:
It's subject matter jurisdiction.

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Yes, Your Honor.

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Give you a cause of action.

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Do you name a cause of action that applies here?

[00:11:02] Speaker 03:
What statute allows you to bring this lawsuit?

[00:11:05] Speaker 09:
13 31.

[00:11:05] Speaker 09:
Your honor, that's not a cup.

[00:11:07] Speaker 03:
That's not.

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I mean, in Larabee Vitoro, this court entertained a collateral attack pursuant to 13 31.

[00:11:13] Speaker 05:
They were not asking for the address you're asking for.

[00:11:19] Speaker 09:
I mean, they were they were asking that the that the proceeding where a retiree was court martial be found unconstitutional.

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proceeding therefore avoided.

[00:11:29] Speaker 09:
Exactly.

[00:11:30] Speaker 03:
You haven't asked for that.

[00:11:32] Speaker 09:
Yes, your honor.

[00:11:33] Speaker 09:
Mhm.

[00:11:35] Speaker 09:
I see that I'm over time appending the questions of the court.

[00:11:39] Speaker 07:
Suppose you get over that this set of hurdles while you still need to show that the error you've alleged in the military process.

[00:11:53] Speaker 07:
Um,

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deprived either the court or perhaps the discharging authority of jurisdiction.

[00:12:06] Speaker 07:
But you're arguing about whether a

[00:12:12] Speaker 07:
plenary standard of appellate review the first time around, combined with a second look at sufficiency through the lens of law of the case.

[00:12:30] Speaker 07:
The second time around is a sufficiently probing standard of review for the facts.

[00:12:35] Speaker 07:
That doesn't seem like jurisdictional error.

[00:12:39] Speaker 09:
Well, because Article 76 says that the review must be as required by this chapter.

[00:12:47] Speaker 09:
In other words, as required by the Uniform Code of Military Justice.

[00:12:51] Speaker 09:
The Uniform Code of Military Justice requires that the review be, in Article 66C's language, based on the entire record.

[00:12:59] Speaker 07:
On that theory, any legal error in the military trial will be jurisdiction.

[00:13:05] Speaker 09:
No, Your Honor.

[00:13:07] Speaker 09:
No, Your Honor, that's not my position at all.

[00:13:10] Speaker 09:
It's that failure to comply with this type, with the review, provide the review required, which is the same essentially as providing not the statutory review, prevents the execution of an Article 76 order, finalizing a discharge.

[00:13:29] Speaker 09:
Pending the questions of the court.

[00:13:32] Speaker 03:
Thank you very much.

[00:13:32] Speaker 03:
We'll give you a little move through, Bill.

[00:13:41] Speaker 03:
Mr. Hinchelwood.

[00:13:46] Speaker 06:
Good morning, Your Honor.

[00:13:46] Speaker 06:
Samia, please, the court.

[00:13:47] Speaker 06:
Brett Hinchwood for the government.

[00:13:50] Speaker 06:
I think the court has already put its finger on one of the most important issues here, which is that a request for direct review of a court martial conviction is not something a district court has jurisdiction over.

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Does this point go to subject matter jurisdiction or cause of action?

[00:14:05] Speaker 07:
It goes to subject matter jurisdiction, Your Honor.

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What's that?

[00:14:07] Speaker 07:
1331.

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They are making a contention that 866 requires a second plenary sufficiency review.

[00:14:22] Speaker 07:
And it may be wrong, it may not be jurisdictional, but it is a federal question.

[00:14:28] Speaker 06:
You know, 1331 confers on district court's original jurisdiction, not appellate jurisdiction.

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And so the fundamental distinction here is that what Mr. Henry is seeking is by seeking essentially appellate review, further appellate review of his court martial conviction, he's seeking not, he's not invoking original jurisdiction.

[00:14:45] Speaker 07:
I mean, district court, that's like the district court's original jurisdiction.

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to review review agency action in a standard APA case.

[00:14:59] Speaker 06:
But there you have a new judicial a new judicial proceeding that's taking place.

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I mean the fundamental distinction between appellate and original jurisdiction right is that appellate jurisdiction right revises and corrects the proceedings in a cause already is an original action in district court to review an agency adjudication.

[00:15:16] Speaker 06:
But it's certainly not reviewing the decision of an entirely separate court system established under a separate constitutional provision.

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So I don't think there's any basis to compare those two.

[00:15:25] Speaker 06:
And in fact, courts martial are excluded from the ADA.

[00:15:28] Speaker 06:
This is more like a state court than like that.

[00:15:30] Speaker 06:
Exactly, Your Honor.

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If someone came in and asked you to remand a case to the Virginia Court of Appeals, I think you would say, well, a district court simply doesn't have jurisdiction to engage in that kind of inquiry.

[00:15:39] Speaker 06:
Is it Rooker-Feldman?

[00:15:42] Speaker 06:
It's akin to the Rooker-Feldman doctrine, Your Honor.

[00:15:45] Speaker 06:
Councilman itself talks about.

[00:15:47] Speaker 06:
That's not a jurisdictional doctrine.

[00:15:48] Speaker 06:
Yes, it is, Your Honor.

[00:15:49] Speaker 06:
Yes.

[00:15:49] Speaker 03:
Oh, I thought it was an equitable doctrine.

[00:15:51] Speaker 06:
No, I mean, Rooker Feldman is a jurisdictional doctrine.

[00:15:53] Speaker 06:
And I think it's a similar concept that Councilman is recognizing in the context of military courts, where it says, look, Article III courts cannot directly review the decisions of courts martial.

[00:16:04] Speaker 06:
And that is, they lack jurisdiction to do that.

[00:16:06] Speaker 02:
Congress has not conferred that jurisdiction.

[00:16:09] Speaker 06:
There, Your Honor, the individual was a service member who was subject to a court martial, an ongoing court martial, and he brought.

[00:16:14] Speaker 03:
He wasn't in custody.

[00:16:15] Speaker 03:
Correct.

[00:16:16] Speaker 03:
It hasn't started yet.

[00:16:17] Speaker 06:
Correct.

[00:16:17] Speaker 06:
So he brought an injunctive suit against a federal officer to block his court martial from going forward.

[00:16:22] Speaker 06:
And 1331 does confer equity jurisdiction on the district courts to entertain suits that a federal officer is.

[00:16:29] Speaker 03:
It's the cause of action.

[00:16:30] Speaker 06:
It was a bill in equity to an injunctive suit against a federal officer to block unconstitutional action.

[00:16:36] Speaker 06:
Exactly your honor.

[00:16:37] Speaker 06:
Yes.

[00:16:38] Speaker 03:
So party young action to block unconstitutional.

[00:16:43] Speaker 03:
Maybe they haven't so far.

[00:16:45] Speaker 06:
No, your honor.

[00:16:45] Speaker 06:
And I mean, as election.

[00:16:47] Speaker 06:
No, Your Honor.

[00:16:48] Speaker 06:
And as we've discussed, I mean, the specific request for relief in the petition here is for a remand to the Air Force Court of Criminal Appeals.

[00:16:55] Speaker 06:
I mean, it's exactly the kind of direct review federal district courts are not empowered to engage in with respect to courts martial.

[00:17:02] Speaker 06:
And more generally, Your Honor, I mean, to be clear, I think that is sufficient to resolve this particular case.

[00:17:09] Speaker 06:
I would say more generally, and this is an issue that

[00:17:13] Speaker 06:
It's been recurring in some other cases, and this is a matter that, you know, what Councilman makes clear is that there is not some freestanding

[00:17:23] Speaker 06:
sort of jurisdiction to entertain, like, suits asking to review a court-martial judgment or just say that it's void, what you need to have is some other suit within the court's jurisdiction, whether it's a back-pay suit or a habeas suit, or in the past, this court has entertained suits seeking review of decisions of military records correction boards, challenging their decisions on the basis that a court-martial decision, a court-martial judgment was in doubt.

[00:17:46] Speaker 03:
And you wouldn't index for young constitutional claims in that.

[00:17:49] Speaker 06:
I think, certainly,

[00:17:51] Speaker 06:
Councilman recognizes that in some circumstances, 1331 can confer jurisdiction over those types of suits.

[00:17:56] Speaker 03:
Again, I was just trying, because Councilman says a suit otherwise within our jurisdiction, and the only thing was the constitutional claim there, but I just wasn't clear, but you're talking now about not the jurisdiction, but it has to come as the review for voidness or not has to come as part of

[00:18:18] Speaker 03:
a separate cause of action that's what um has to come in the rationale of that but I don't see what the separate cause of action is other unless we're buying the ex parte young approach in councilman I'm certainly not disputing the councilman says 1331 confers jurisdiction over the suit against the officer in that case and I absolutely agree with that my point is that what councilman talks about because there's a cause of action

[00:18:43] Speaker 03:
Is that the argument?

[00:18:44] Speaker 06:
I mean, those are separate questions.

[00:18:45] Speaker 06:
But I mean, there it recognizes that 1331 confers jurisdiction over suits in law and equity.

[00:18:53] Speaker 06:
Obviously, now the language has changed, but it's not substantively different.

[00:18:56] Speaker 06:
So the equity jurisdiction of the courts, which included these sorts of injunctive suits, I don't think the phrase cause of action quite fits the equity context as well.

[00:19:05] Speaker 06:
But the point is,

[00:19:06] Speaker 06:
1331 certainly confers the equity jurisdiction that courts have always exercised.

[00:19:10] Speaker 06:
And so to the extent you're seeking that type of relief, there are abstention principles, obviously, as counsel makes clear.

[00:19:16] Speaker 06:
But there's jurisdiction.

[00:19:18] Speaker 06:
But the other suits that counselman recognizes as the types of claims in which you can obtain collateral review.

[00:19:23] Speaker 06:
Because remember, collateral review has to seek some kind of collateral relief.

[00:19:26] Speaker 06:
You can't be seeking to act on the judgment.

[00:19:28] Speaker 06:
So simply coming in and asking, I want you to say in the abstract that my conviction is void.

[00:19:33] Speaker 06:
is not something in our view that Councilman says you can do.

[00:19:36] Speaker 06:
Instead, what Councilman recognizes is there are circumstances where a court can deprive a court martial judgment of race judicata effect.

[00:19:44] Speaker 06:
Back pay suits are the classic example.

[00:19:46] Speaker 06:
Habeas petitions are the classic example.

[00:19:48] Speaker 06:
And I mentioned these sorts of review of administrative decisions as another place where this court has recognized that that kind of review can take place.

[00:19:57] Speaker 06:
But so again, I think.

[00:19:58] Speaker 03:
Do those administrative decisions have their own statutory schemes authorizing federal court review?

[00:20:03] Speaker 06:
No, this court has held that review of board for correction of military records decisions.

[00:20:10] Speaker 06:
Again, this isn't briefed here.

[00:20:12] Speaker 06:
And I want to be clear, we're happy to submit supplemental briefing on any of this.

[00:20:15] Speaker 06:
We certainly wouldn't want the court to be opining on the scope of its 1331 jurisdiction.

[00:20:19] Speaker 06:
Without further briefing, I think there are some cases in the past in this court where it has made statements about 1331 without receiving briefing and not in uncontested cases that we think we'd want to, we certainly wouldn't want the court

[00:20:32] Speaker 06:
make further statements about that without receiving briefing.

[00:20:35] Speaker 06:
But just to answer your question specifically, in those military records correction cases, this court has said 1331 is the source of jurisdiction.

[00:20:43] Speaker 06:
And those are actions brought under the APA to challenge the decisions of those boards.

[00:20:48] Speaker 06:
I mean, those are reviewable final agency actions from the boards.

[00:20:51] Speaker 06:
But the boards themselves, under the statute, under 1552f, lack authority to void court martial convictions.

[00:20:58] Speaker 06:
And what they can do is they can upgrade a discharge

[00:21:01] Speaker 06:
And so there's, you know, sometimes people will come in and say, you should upgrade my discharge because my court martial conviction that included my discharge was, you know, totally invalid.

[00:21:11] Speaker 06:
There'll be an administrative decision about that.

[00:21:13] Speaker 06:
And then there's a review of that in this court.

[00:21:15] Speaker 06:
But what there isn't in our view is jurisdiction to sort of come in and say, hey, like, please just wipe out this judgment.

[00:21:22] Speaker 06:
Just say it, you know, have it expunged, have it eliminated.

[00:21:26] Speaker 06:
Can't sue the APA type set aside.

[00:21:29] Speaker 06:
No, Your Honor, in part because the APA itself excludes courts martial.

[00:21:33] Speaker 06:
No, no, I know.

[00:21:33] Speaker 06:
But that's what you're saying is out of bounds.

[00:21:36] Speaker 06:
We can't set aside.

[00:21:37] Speaker 06:
Right.

[00:21:38] Speaker 06:
Or engage in the kind of review that you would engage in over the district court, right, where you get a judgment and you say, this judgment's no good.

[00:21:44] Speaker 06:
I'm going to send it back, or I'm going to order it reversed, or what have you.

[00:21:47] Speaker 05:
If that's our holding, what implication does that have for Bergdahl?

[00:21:52] Speaker 06:
Your Honor, again, I want to be very clear.

[00:21:54] Speaker 06:
We're not asking you to decide that here.

[00:21:56] Speaker 06:
I'm simply explaining our view and why we would urge you not to make broader statements about 1331.

[00:22:02] Speaker 06:
Again, I think you can just decide, in this case, the particular request he has made, which is expressly for a remand to the military courts for further proceedings, is not something the district court had the power to give and something that is outside the district court's jurisdiction.

[00:22:17] Speaker 06:
I want to come back to the question, but I'm sorry.

[00:22:20] Speaker 06:
And but, you know, I do think, you know, in Bergdahl we have raised similar issues to this court in the context of opposing a motion for some reaffirmants there.

[00:22:29] Speaker 06:
I expect, you know, I hope and expect we'll have the opportunity to brief those questions in that case.

[00:22:34] Speaker 06:
And we're certainly not asking you to.

[00:22:37] Speaker 06:
you know, predetermine any aspect of that case.

[00:22:40] Speaker 06:
But I certainly would not want the court in this posture, you know, without briefing to be making assertions about the scope of its authority and scope of the district court's jurisdiction, you know, at a minimum without briefing.

[00:22:54] Speaker 05:
If we lack subject matter jurisdiction, we have to say that, stop.

[00:22:59] Speaker 06:
Well, Your Honor, I mean, this court's precedent allows it to bypass questions of statutory subject matter jurisdiction.

[00:23:04] Speaker 06:
So we pointed out in our letter.

[00:23:07] Speaker 06:
And the standing subject matter jurisdiction.

[00:23:09] Speaker 05:
Earlier, there was a discussion about whether.

[00:23:11] Speaker 06:
Oh, right.

[00:23:11] Speaker 06:
The redressability issue, right.

[00:23:13] Speaker 06:
Yeah, I mean, certainly, if you view it as a redressability problem, then that would not be something the court could bypass in that circumstance.

[00:23:19] Speaker 04:
I thought your letter said, oh, we could go ahead and decide this case.

[00:23:22] Speaker 06:
Well, certainly, thinking about it purely as a matter of statutory subject matter jurisdiction, this court's precedent does allow you to bypass those questions and rule on the merits.

[00:23:31] Speaker 03:
Is it just statutory subject matter jurisdiction if we're talking about a direct review of military courts, or is there not a separation of powers concerned?

[00:23:40] Speaker 06:
Your Honor, I do think that the absence of jurisdiction is a reflection of the fact that Congress has set up a separate court system

[00:23:48] Speaker 06:
subject to separate procedures with its own review system.

[00:23:52] Speaker 06:
And it has set up that court system under a separate grant of constitutional authority to do so.

[00:23:57] Speaker 06:
Congress presumably could meld the military and civilian systems in some way.

[00:24:02] Speaker 06:
In the military commissions context at Guantanamo, it has in fact done that, where it has provided that the military commissions preside.

[00:24:10] Speaker 06:
There's a military sort of court of appeals.

[00:24:12] Speaker 06:
And then review comes to this court before going to the Supreme Court.

[00:24:18] Speaker 06:
No, so my point is simply that at least as a matter of statutory jurisdiction, the fact that there's no statute that confers jurisdiction here, 1331 does not, no other statute does, we think is a matter of statutory subject matter jurisdiction.

[00:24:33] Speaker 06:
But that doesn't mean it's, I don't know that, I'm certainly not suggesting it would be unconstitutional for Congress to confer some jurisdiction in that context.

[00:24:40] Speaker 05:
The 28-J letter says, this court may affirm on the merits.

[00:24:43] Speaker 05:
So I guess after today's discussion, I'm wondering if that's still DOJ's position.

[00:24:48] Speaker 06:
I had not thought of it in redressability terms.

[00:24:52] Speaker 06:
The point we were making there and the case we're citing there is just one that addresses statutory subject matter jurisdiction questions rather than sort of redressability issues.

[00:25:03] Speaker 06:
To the extent you think of it as a redressability issue, then I don't dispute that that would not be something to bypass.

[00:25:10] Speaker 05:
Maybe all this is suggesting

[00:25:12] Speaker 05:
we would all involved here would benefit from supplemental briefing.

[00:25:16] Speaker 05:
But if DOJ doesn't yet have a position on this, it's not your fault, and I'm proud of you.

[00:25:25] Speaker 05:
But as of now, does DOJ stand by the letter in the 28-J statement?

[00:25:30] Speaker 05:
This court may affirm on the merits.

[00:25:32] Speaker 06:
Let me answer that question this way, and I'm sorry if it's not totally satisfying, and I'm happy to brief it.

[00:25:39] Speaker 06:
But certainly, as a matter of statutory subject matter jurisdiction, this court's precedent allows you to bypass the question.

[00:25:46] Speaker 06:
If you're viewing it as a matter of standing, then obviously you couldn't bypass it as a standing matter, and I'd be happy to address that particular issue in further briefing.

[00:25:56] Speaker 06:
And again, Your Honor, just to be clear, if you simply are going to stick solely to the point

[00:26:02] Speaker 06:
that this type of relief, there's no jurisdiction to entertain this type of suit seeking this type of relief, that you could decide, I think, is an alternative jurisdictional ground without getting to the standing issue.

[00:26:14] Speaker 06:
You could simply say a suit that seeks direct review of a court martial conviction and remand to the military courts is not one within the district court's jurisdiction.

[00:26:23] Speaker 06:
Those are alternative bases to deny.

[00:26:25] Speaker 02:
Is that waivable?

[00:26:26] Speaker 02:
Can we raise that suey espante?

[00:26:28] Speaker 02:
Because it sure wasn't in.

[00:26:29] Speaker 06:
I apologize.

[00:26:31] Speaker 06:
We're not raising this issue sooner, Your Honor.

[00:26:32] Speaker 06:
And I mean, you can.

[00:26:34] Speaker 06:
I mean, it's a matter of jurisdiction.

[00:26:36] Speaker 06:
This court can raise that and entertain it for the first time at this stage of the case.

[00:26:41] Speaker 06:
So yes, you absolutely can reach that question now.

[00:26:45] Speaker 07:
If it's statutory subject matter jurisdiction, we must raise it.

[00:26:52] Speaker 07:
Right.

[00:26:53] Speaker 06:
Your Honor, I mean, this court's precedents have said, including as recently as a few months ago in a case called Abdul Latif, that it can bypass questions of statutory subject matter jurisdiction.

[00:27:03] Speaker 06:
I know that you have written things suggesting you disagree with that premise.

[00:27:07] Speaker 07:
There are a lot of cases going both ways on that point.

[00:27:11] Speaker 07:
Suppose I'm not persuading that point.

[00:27:13] Speaker 07:
Right.

[00:27:14] Speaker 07:
It's the only option at that point to order a briefing.

[00:27:16] Speaker 06:
Well, no.

[00:27:17] Speaker 06:
I think you could still, you could

[00:27:22] Speaker 06:
I don't, I certainly don't want to discourage the court from further bringing.

[00:27:26] Speaker 06:
I'm perfectly happy to do that.

[00:27:28] Speaker 07:
Your only theory for avoiding the Steel Co problem is that A, this is a question of statutory jurisdiction rather than Article 3 redressability.

[00:27:39] Speaker 07:
And B, we can skip over statutory jurisdiction questions for Steel Co purposes.

[00:27:45] Speaker 07:
Correct.

[00:27:46] Speaker 06:
But I do think what you could, I think you have the option to choose among non-merits grounds, jurisdictional grounds for resolving the case.

[00:27:54] Speaker 06:
You could determine just to stick solely to the allegations in this particular petition and recognize that the particular relief sought here is not something that's within the district court's original jurisdiction.

[00:28:08] Speaker 06:
And therefore, this type of action was not in its jurisdiction.

[00:28:12] Speaker 06:
I think you could say that.

[00:28:14] Speaker 06:
Again, I'm more than happy to be in greater detail.

[00:28:18] Speaker 07:
I thought I heard you say in the argument, you are wary of us getting into that.

[00:28:26] Speaker 06:
I'm certainly wary of you going beyond that narrow statement.

[00:28:30] Speaker 07:
I mean, again, my colleague... What's the narrow statement that you would be comfortable with us

[00:28:38] Speaker 07:
to resolve this case and not.

[00:28:42] Speaker 07:
Prejudge other cases rashly.

[00:28:44] Speaker 06:
I think if this if this court were to say the petition here seeks.

[00:28:49] Speaker 06:
An order.

[00:28:50] Speaker 06:
Returning remanding this case essentially to the Air Force Court of Criminal Appeals.

[00:28:56] Speaker 06:
That sort of appellate review of military convictions is not within the scope of a district court's jurisdiction.

[00:29:04] Speaker 06:
That alone would resolve this case.

[00:29:07] Speaker 06:
I do think.

[00:29:08] Speaker 06:
that more generally there even an action I think there were some well my colleagues at the podium there was some discussion of cases like.

[00:29:15] Speaker 06:
Sanford or New or Larabee, where this court has sometimes made statements about 1331 without describing exactly what the nature of the suit was, exactly what the nature of the action was, and frankly didn't have a dispute in front of it about whether those types of suits could go forward.

[00:29:33] Speaker 06:
Those are the things I'm more frankly concerned about.

[00:29:36] Speaker 06:
And Your Honor, I mean, look, I certainly think, I want to be crystal clear, and I think I've said this

[00:29:44] Speaker 06:
more than happy to brief, whether you want to take the narrow route or the broader route of addressing this issue more generally, we'd be more than happy to submit briefing so the court can help decide exactly how much it wants to bite off in this particular case.

[00:29:57] Speaker 04:
What is wrong with standing, which is Article 3, which we do have to raise, which we do have to decide?

[00:30:04] Speaker 04:
What is wrong with the addressability?

[00:30:07] Speaker 06:
Your Honor, I don't have anything that I think is wrong with it off the top of my head.

[00:30:14] Speaker 06:
I want to think about it a little bit more.

[00:30:17] Speaker 06:
It certainly sounds plausible to me.

[00:30:19] Speaker 06:
And in my job, I'm rarely resistant to the argument that there's no standing.

[00:30:28] Speaker 06:
But I just want to hesitate to commit right here today.

[00:30:33] Speaker 03:
Because the government is busy all over these types of issues, and it's all coming up very late.

[00:30:37] Speaker 06:
I'm aware, and I'm sorry, we raised this so late.

[00:30:40] Speaker 06:
I mean, it's an issue, obviously.

[00:30:41] Speaker 03:
I appreciate it being raised that you did your duty.

[00:30:44] Speaker 03:
But the letter was confusing.

[00:30:46] Speaker 06:
I apologize for that, Your Honor.

[00:30:49] Speaker 06:
We tried to stick to the 350 words, even though we weren't entirely sure whether that was quite what we were supposed to do.

[00:30:55] Speaker 06:
But again, I'm happy, to the extent this court wants supplemental briefing on any or all these questions, I'd be more than happy to provide it.

[00:31:01] Speaker 06:
And it sounds like there'd be some value to the court if we were to provide that.

[00:31:08] Speaker 03:
Any questions?

[00:31:09] Speaker 03:
Thank you very much.

[00:31:10] Speaker 06:
Thank you, Your Honor.

[00:31:14] Speaker 03:
Okay, Mr. Feldmeier, we'll give you two minutes.

[00:31:23] Speaker 09:
Thank you, Your Honor.

[00:31:25] Speaker 09:
I just wanted to very briefly address the question that Judge Katz has brought up concerning whether or not this defect was a fundamental nature.

[00:31:33] Speaker 09:
In Sanford, this court held that the fact that Article 66 review exists in the plenary de novo awesome form that Congress intended is that review is what permits

[00:31:45] Speaker 09:
procedures that otherwise would not be permissible under the due process clause to exist.

[00:31:50] Speaker 09:
It's part of the due process balance that Congress struck in enacting the Uniform Code of Military Justice.

[00:31:58] Speaker 09:
And while in Sanford that court was considering whether a three member special court martial, which wouldn't pass muster in the civilian system, was consistent with due process aims,

[00:32:10] Speaker 09:
And here we're considering the actual article 666 review itself.

[00:32:14] Speaker 09:
I would simply point out to the court that the review that Congress affords under article 66C is what justifies court martial proceedings that otherwise would not pass due process.

[00:32:27] Speaker 09:
The fact that there is this robust

[00:32:29] Speaker 09:
Plenary de novo review, that is what permits non-unanimous panel findings.

[00:32:36] Speaker 09:
That is what permits a veneer that is not of random selection.

[00:32:41] Speaker 09:
That's what permits no grand jury.

[00:32:44] Speaker 09:
So I simply would point out, to shift back to an issue that was briefed, that this review is fundamental.

[00:32:52] Speaker 09:
And not having this review is a fundamental defect that does invoke this court's collateral

[00:32:59] Speaker 09:
collateral review.

[00:33:03] Speaker 05:
I see that I have 20 seconds and I just wanted to pause to ask if any member of the court is- If we order supplemental briefing, you'll have a choice to make on whether to use EW's full name.

[00:33:15] Speaker 05:
What would be benefited by using her full name?

[00:33:18] Speaker 09:
Your Honor, has this court expressed a desire that I not do it?

[00:33:21] Speaker 09:
I won't.

[00:33:22] Speaker 09:
I mean, I can't speak for the court, but I like that answer.

[00:33:27] Speaker 09:
Yes, Your Honor.

[00:33:28] Speaker 05:
pending further questions to the court.

[00:33:31] Speaker 03:
Thank you very much.

[00:33:32] Speaker 03:
The case is.