Reply Brief — B. M., Petitioner v. United States, et al.

No. 24-386

In the

Supreme Court of the United States

B. M.,

Petitioner,

v.

United States, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Armed Forces

REPLY BRIEF OF PETITIONER

A pril P. McCroskey

Captain, JAGC, U.S. A rmy

Regional Special Victims’

Counsel

National Guard Bureau

111 South George Mason Drive

Arlington, VA 22204

Peter Coote

Counsel of Record

Elizabeth A. Rudolph

Pennoni A ssociates Inc.

1900 Market Street

Third Floor

Philadelphia, PA 19103

(215) 254-7857

pcoote@pennoni.com

Counsel for Petitioner

November 25 , 2024

130698

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

REPLY BRIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I.

Misstatements of Facts . . . . . . . . . . . . . . . . . . . . . 2

II. The CAAF Does Not Consistently Apply

Article III Standing Requirements . . . . . . . . . . . 3

III. The CAAF Is Not Similarly Situated to

Other Article I Courts . . . . . . . . . . . . . . . . . . . . . . 4

IV. Petitioner’s Standing Cannot Be Defeated

by Abatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

V.

The Abatement Order Does Not Make

This Case Moot . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

VI. The Court Should Grant Certiorari Because

Thousands of Victims Are Affected by the

CAAF’s Decision . . . . . . . . . . . . . . . . . . . . . . . . . 10

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

ii

TABLE OF CITED AUTHORITIES

Page

CASES

Anderson v. United States,

344 F.3d 1343 (Fed. Cir. 2003) . . . . . . . . . . . . . . . . . . . 5

Baranowicz v. Comm’r,

432 F.3d 972 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . 6

Church of Scientology of Cal. v. United States,

506 U.S. 9 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Commodity Futures Trading Com v. Schor,

478 U.S. 833 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Crow Creek Sioux Tribe v. United States,

900 U.S. F.3d 1350 (Fed. Cir. 2018) . . . . . . . . . . . . . . . 5

Doe v. United States,

141 S. Ct. 1498 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . 11

Linda R.S. v. Richard D.,

410 U.S. 614 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Ortiz v. United States,

585 U.S. 427 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Padgett v. Nicholson,

473 F.3d 1364 (Fed. Cir. 2007) . . . . . . . . . . . . . . . . . . . 5

Reeves v. Shinseki,

682 F.3d 988 (Fed. Cir. 2012) . . . . . . . . . . . . . . . . . . . . 5

iii

Cited Authorities

Page

Seila Law LLC v. Consumer Fin. Prot. Bureau,

519 U.S. 197 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Swidler & Berlin v. United States,

524 U.S. 399 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Chisholm,

59 M.J. 151 (C.A.A.F. 2003) . . . . . . . . . . . . . . . . . . . . . 3

United States v. Jacinto,

2024 CAAF LEXIS 584 (C.A.A.F. Oct. 2, 2024) . . . 11

United States v. Leak,

61 M.J. 234 (C.A.A.F. 2005) . . . . . . . . . . . . . . . . . . . . . 4

United States v. Nixon,

418 U.S. 683 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Russett,

40 M.J. 184 (C.A.A.F. 1994) . . . . . . . . . . . . . . . . . . . . . 4

United States v. Wall,

79 M.J. 456 (C.A.A.F. 2020) . . . . . . . . . . . . . . . . . . . . . 3

United States v. Wuterich,

67 M.J. 63 (C.A.A.F. 2008) . . . . . . . . . . . . . . . . . . . . . . 3

Wellness Int’l Network, Ltd. v. Sharif,

575 U.S. 665 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Zevalkink v. Brown,

102 F.3d 1236 (Fed. Cir. 1996) . . . . . . . . . . . . . . . . . . . 5

iv

Cited Authorities

Page

CONSTITUTIONAL PROVISIONS

U.S. Const, Art. I, § 8, cl. 9 . . . . . . . . . . . . . . . . . . . . . . . . 4

STATUTES AND OTHER AUTHORITIES

10 U.S.C. § 806b(e)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

10 U.S.C. § 862(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

10 U.S.C. § 867(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6, 7

26 U.S.C. § 6015 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

28 U.S.C. § 2519 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

38 U.S.C. § 7266 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

M.R.E. 513 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 11

M.R.E. 513(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1

REPLY BRIEF

Respondent Bailey essentially concedes that the first

question presented—whether the Court of Appeals for

the Armed Forces (“CAAF”), an Article I tribunal, may

prudentially apply Article III standing requirements—

merits this Court’s review. His opposition brief does

not dispute the elective or prudential nature of Article

I tribunals’ application of Article III standing. Rather,

Respondent Bailey reminds the Court that it has never

addressed this issue. Opp. 6. This important question of

federal law has not been, but should be, settled by this

Court. Regardless of whether other Article I tribunals

may electively apply Article III standing, the CAAF

cannot because its jurisdictional statute obligates it to

review all cases sent to it by a judge advocate general.

On the second question presented—whether victims

have standing to assert their privileges—Respondent

Bailey concedes Petitioner McFarland1 suffered an injury.

“First, and again, the CAAF did not hold Petitioner lacked

an injury to her privilege.” Opp. 14. Respondent argues

that this injury does not establish standing because the

military judge’s abatement order did not “vitiate” or

have any nexus to her privilege. Opp. 10-11. Respondent

believes Major McFarland has incorrectly framed the

CAAF’s decision. Opp. 5.

The CA A F was concerned that challenges to

abatement orders would allow victims to decide the

1. The petitioner in caption of this case, as in the military

courts, is B.M. Petitioner B.M has asked to use her name and be

referred to as Major Briana McFarland.

2

“ultimate question” of whether crimes are prosecuted.

Pet. App. 12. However, the practical reality of this

holding is it requires victims to decide whether crimes

are prosecuted. In this case, Major McFarland decided

to assert her privilege, abating the proceedings. She

can end the abatement at any time by agreeing to waive

her privilege. Major McFarland, and not the prosecutor,

decides whether Respondent Bailey is prosecuted.

The abatement order has a direct nexus to McFarland’s

assertion of her privilege. The CAAF is requiring Major

McFarland to purchase the continued prosecution with

the disclosure of her privileged, intimate communications

with her therapist. The abatement order is an injury to

Major McFarland’s privilege that would be remedied by

a favorable decision on either of the issues certified by

the Navy Judge Advocate General. Major McFarland has

standing.

I.

Misstatements of Facts.

Respondent Bailey asserts that Petitioner McFarland

wrote a “memoir” detailing her mental health issues.

Opp. 2. Respondent ignores the Navy-Marine Corps

Court of Criminal Appeals (“NMCCA”) footnote stating

that McFarland did not seek mental health treatment

as outlined in her book. Pet. App. 51 n.44. There were

no “memoir” or mental health issues. McFarland used

therapists as a literary device to tell a fictionalized story

based upon real events.

Respondent Bailey asserts that Petitioner did not

object to the judge’s stated intent to redact privileged

information. Opp. 2-3. However, when the judge discussed

her intent, she had already reviewed the privileged

3

information, an action she “could not do” and which

“contravened her authority.” Pet. App. 21.

Respondent Bailey misleadingly claims that he sought

“production of non-privileged information included in

her mental health records.” Opp. 2 (emphasis added). In

fact, Respondent’s motion sought mental health records,

including diagnoses and “any records related to mental

health treatment she has had following this case.” App.

34 (emphasis added). Respondent’s motion demanded

Petitioner’s privileged records.

If Respondent Bailey had truly sought only nonprivileged information, the military judge’s abatement

order would be less defensible because she would have

abated the proceedings over records that were not even

sought. The military judge would essentially be acting

as defense counsel, undermining the impartiality of the

military justice system.

II. The CAAF Does Not Consistently Apply Article III

Standing Requirements.

Respondent Bailey argues that Article III “case or

controversy” requirements are “engrained” in the CAAF’s

precedents. Opp. 7. However, Article III requirements did

not prevent the CAAF from deciding the merits of the

three most recent cases Respondent cites: United States

v. Wall, 79 M.J. 456 (C.A.A.F. 2020), United States v.

Wuterich, 67 M.J. 63 (C.A.A.F. 2008), and United States

v. Chisholm, 59 M.J. 151 (C.A.A.F. 2003). Id.

While the CAAF has acknowledged its refusal to

provide advisory opinions, it also “has not refused to

answer certified questions which would not or did not alter

4

the position of the parties.” United States v. Russett, 40

M.J. 184, 185 (C.A.A.F. 1994). Recognizing the importance

of answering certified questions where its decisions

are being misinterpreted, the CAAF has consistently

affirmed its obligation to resolve such matters. Id. at 186.

In United States v. Leak, the CAAF held that even if the

judge advocates general abused their authority to certify

questions under 10 U.S.C. § 867(a)(2), the CAAF would

be “obliged to review all such cases.” 61 M.J. 234, 241 n.6

(C.A.A.F. 2005). Unlike Article III courts, the CAAF and

other Article I tribunals are not constitutionally bound by

“case or controversy” requirements. Instead, the CAAF’s

jurisdiction is governed by statute. Specifically, 10 U.S.C.

§ 867(a)(2) provides that the CAAF “shall review” all cases

sent to it by a judge advocate. This mandatory language

precludes the CAAF from prudentially adopting Article

III standing principles.

III. The CAAF Is Not Similarly Situated to Other

Article I Courts.

Respondent Bailey argues that the CAAF is similarly

situated to other Article I courts. 2 Opp. 8-9. Under the

Constitution, Article I “courts” are inferior tribunals

constituted by Congress pursuant to Art. I, § 8, cl. 9.

While these courts may possess judicial character, Ortiz

v. United States, 585 U.S. 427, 435 (2018), they do not

exercise the judicial power vested solely in Article III

courts. Id. at 456 (Thomas, J., concurring) (distinguishing

between a judicial power and the judicial power).

2. Respondent also argues the CAAF is similarly situated

to state courts. Each state court applies standing requirements

based upon that state’s constitution, statutes, and governmental

structure. State courts are not similarly situated to the CAAF or

any other Article I court.

5

Reported opinions from Article I courts should be

cautiously approached as these courts may be prone to

self-aggrandizement, equating themselves with Article

III courts. See generally Wellness Int’l Network, Ltd.

v. Sharif, 575 U.S. 665, 678 (2015) (quoting Commodity

Futures Trading Com v. Schor, 478 U.S. 833, 850 (1986)).

Respondent’s reliance on other Article I courts to

justify the CAAF’s application of Article III principles

fails to consider differences in the jurisdictional language

used by Congress. For example, in Crow Creek Sioux

Tribe v. United States, the Court of Federal Claims, an

Article I tribunal, dismissed the tribe’s complaint for

lack of standing. 900 U.S. F.3d 1350 (Fed. Cir. 2018). The

Federal Circuit Court of Appeals affirmed, noting that

the Court of Federal Claims applies the same standing

requirements as Article III courts. Id. at 1354. The

Court of Federal Claims can justify applying Article III

requirements because its jurisdictional statute empowers

it to decide any “claim, suit, or demand against the

United States arising out of the matters involved in the

case or controversy.” 28 U.S.C. § 2519 (emphasis added);

Anderson v. United States, 344 F.3d 1343, 1350 n.1 (Fed.

Cir. 2003).

Similarly, the Court of Appeals for Veterans Claims,

another Article I tribunal, applied Article III standing

requirements because its jurisdiction is limited to

“person[s] adversely affected.” Zevalkink v. Brown, 102

F.3d 1236 (Fed. Cir. 1996); Padgett v. Nicholson, 473

F.3d 1364, 1370 (Fed. Cir. 2007), superseded by statute,

38 U.S.C. § 7266, as recognized in Reeves v. Shinseki,

682 F.3d 988, 996-97 (Fed. Cir. 2012). Persons “adversely

affected” have standing under Article III analysis.

6

In Baranowicz v. Comm’r, 432 F.3d 972, 975 (9th Cir.

2005), the Article I Tax Court granted “innocent spouse”

relief under 26 U.S.C. § 6015. The other spouse appealed

the Tax Court’s decision to the Ninth Circuit. The Ninth

Circuit held that although § 6015 provided a statutory

right to intervene in the Tax Court regardless of standing,

an intervenor seeking to appeal the Tax Court’s decision

in a federal appeals court must demonstrate sufficient

injury to confer Article III standing. Id.

The CAAF is fundamentally different from these

Article I courts. Its jurisdictional statute, 10 U.S.C. §

867(a)(2), mandates that the CAAF, regardless of injury

or standing, “shall review the record in all cases” sent to

it by a judge advocate general. This statutory language

precludes the CAAF from exercising the discretion seen

in other Article I courts that prudentially adopt Article

III principles.

Respondent acknowledges that this Court has never

addressed whether an Article I court may apply Article III

case or controversy requirements. Opp. 6. The inconsistent

treatment of this issue across federal courts underscores

the need for this Court’s intervention. Certiorari is

necessary to resolve whether the mandatory language of

10 U.S.C. § 867(a)(2) prohibits the CAAF from prudentially

applying Article III standing requirements.

IV. Petitioner’s Standing Cannot Be Defeated by

Abatement.

The CAAF held (Pet. App. 10) and Respondent argues

(Opp. 10) that the military judge’s abatement order did not

7

vitiate McFarland’s privilege. 3 However, both quote but

misinterpret the key language in Linda R.S. v. Richard

D., 410 U.S. 614, 615-16 (1973), where this Court required

a “direct nexus” between the petitioner’s interest and the

enforcement of the state’s criminal laws. This Court found

that the petitioner “no doubt suffered an injury,” but held

she could not further show that her injury was caused by

the state’s nonenforcement of the criminal statute.

In contrast, this case presents a direct nexus

between Major McFarland’s assertion of her privilege

and the abatement order. The order states, “[I]f Major

B.M. elects to assert privilege over [certain privileged

communications], the court must abate the proceedings.”

Supp. App. 2. Unlike in Linda R.S., the injury here is not

speculative but is directly tied to an order that essentially

sets a purchase price for the continued prosecution. The

nexus required by Linda R.S. could not be clearer.

If the CA AF’s reasoning—that abatement does

not vitiate Major McFarland’s privilege—is allowed to

stand, no victim could ever enforce any right. Under the

CAAF’s rationale, a military judge could arbitrarily abate

proceedings, depriving victims of standing to assert their

3. Respondent Bailey states, “contrary to Petitioner’s

argument, [10 U.S.C. § 867(a)(2)] does not create an injury-infact.” Petitioner McFarland has never and does not allege § 867(a)

(2) creates an injury in fact. She argues that § 867(a)(2) does not

require Article III standing because the CAAF is an Article I

court. Pet. 15-20. Even if standing were required, she argues that

the abatement order causes an injury in fact. The Respondent

acknowledges that the CAAF did not hold that Major McFarland

lacked an injury to her privilege. Opp. 14.

8

rights. In this case, the military judge determined that

“responsibility to ensure a constitutionally fair trial”

(the very question sent to the CAAF by the Navy Judge

Advocate General) required her to abate the proceedings

if Major McFarland refused to waive her privilege. Supp.

App. 2. This sets a dangerous precedent: rather than

conducting the required motion practice and hearings

under M.R.E. 513 or other Rules for Courts-Martial,

a judge could require victims 4 to make an impossible

choice—waive their rights or see the prosecution halted.

Victims facing such a dilemma would never have standing

to challenge this arbitrary deprivation of their rights. See

Pet. 9.

Beyond the di rect nex us bet ween Petitioner

McFarland’s assertion of privilege and the abatement

order, the order causes a concrete and immediate injury.

The CAAF held (Pet. App. 10) and Respondent argues

(Opp. 10) that Major McFarland suffered no injury because

the abatement order did not vitiate her M.R.E. 513 rights.

They claim she lacks a judicially cognizable interest in

whether the government prosecutes the accused. Pet. App.

12, Opp. 11. This reasoning overlooks the obvious injury

inflicted upon Major McFarland.

M.R.E. 513 grants victims a privilege—not a choice.

The rule is designed to protect victims’ confidentiality

without compromising their role as witnesses. Forcing

victims to choose between asserting their privilege and

4. The concurring opinion encourages judges to require

victims to negotiate their rights. “Military judges should not

hesitate to require the victim, the accused, and the government to

raise—and to resolve—issues regarding mental health records.”

Pet. App. 24.

9

continuing the prosecution violates their M.R.E. 513

protections. By requiring Major McFarland to make

this decision, the military judge effectively removed her

from her role as a witness and placed her at the fulcrum

of the prosecutorial decision-making process. Contrary

to the CAAF’s assertion that victims should not “assume

the role of the Government,” the court’s ruling foists

the prosecutorial decision on victims, setting a price for

continued prosecution. This price is a burden that victims

should not bear.

Major McFarland has standing granted to her by 10

U.S.C. § 806b(e)(1) because she asserts the abatement

order violates her procedural and substantive rights

under M.R.E. 513(e). The injury inflicted here is neither

abstract nor hypothetical. Forcing victims make a choice

undermines M.R.E. 513 and fundamentally alters their

role in the military justice system. Certiorari is necessary

to address this unprecedented infringement on victims’

rights and to clarify that abatement orders cannot be used

to condition the exercise of privileges.

V. The Abatement Order Does Not Make This Case

Moot.

The CAAF held (Pet. App. 13) and Respondent Bailey

argues (Opp. 13-15) that this case is moot because Major

McFarland lacks a stake in this dispute. The CAAF

reasoned that her psychotherapy records remained

sealed and that the judge’s in camera review of privileged

communications, even if erroneous, did not diminish her

privilege. Pet. App. 13-14. The CAAF ignored this Court’s

holding in Church of Scientology of Cal. v. United States,

506 U.S. 9, 13 (1992), which established that even where

10

a fully satisfactory remedy is not possible, a court still

has the power to effectuate a partial remedy by ordering

the destruction or return of privileged records. In this

case, the CAAF can provide relief by ordering the return

or destruction of the erroneously produced privileged

records.

Respondent attempts to distinguish the cases cited by

Petitioner on the grounds that those cases involved parties

challenging an order, whereas Major McFarland is not a

party here. Opp. 14-15. This distinction is without merit

and does not undermine the cited cases. Many of the cited

cases involved nonparties who subsequently intervened or

filed an action specifically to protect a privilege. Church

of Scientology, 506 U.S. at 11 (church intervened); United

States v. Nixon, 418 U.S. 683 (1974) (president was not a

party but moved to quash third-party subpoena); Seila

Law LLC v. Consumer Fin. Prot. Bureau, 519 U.S. 197

(2020) (Bureau filed action to enforce subpoena of records);

Swidler & Berlin v. United States, 524 U.S. 399 (1998) (law

firm asserted privilege of dead client). One does not need

to be a party to challenge disclosure of privileged records.

VI. The Court Should Grant Certiorari Because

Thousands of Victims Are Affected by the CAAF’s

Decision.

The legal questions presented by this case extend

beyond Major McFarland. They reflect systemic issues

that affect thousands of military sexual assault victims

each year. According to Department of Defense data,

approximately 29,000 service members experience sexual

assault annually. Pet. 6 n.4. Many of these victims, like

Major McFarland, face procedural barriers that prevent

11

them from challenging decisions that undermine their

rights. Certiorari is necessary to address these recurring

issues and to restore victims’ confidence in the military

justice system.

The amicus brief submitted by R.R. underscores the

broad impact of this issue. While sexual assault may be

considered an “incident of service” that precludes suits

by military members, Doe v. United States, 141 S. Ct.

1498 (2021) (Thomas, J., dissenting), neither military nor

civilian victims should expect that they cannot challenge

the denial of their privileges in military courts. R.R. was

a thirteen-year-old sexual assault victim. Amicus Br. 1.

Yet, the CAAF’s denial of Major McFarland’s standing

applies equally to R.R. and other victims, leaving them

powerless to protect their privileges.

Victims will be powerless to challenge abatement

orders that result from their assertion of privileges or

other rights. While the CAAF suggests abatement orders

could be reviewed if the government files an interlocutory

appeal under 10 U.S.C. § 862(a) (Pet. App. 12), victims

cannot compel the government to appeal. In cases where

victims reluctantly waive their privileges, there is no

basis for appeal. Even when the government does appeal,

victims are excluded from participating in the appellate

process. For example, in United States v. Jacinto, 2024

CAAF LEXIS 584 * (C.A.A.F. Oct. 2, 2024), the CAAF

denied a victim—who had successfully intervened at the

NMCCA—the ability to participate as a party at the

CAAF to protect her M.R.E. 513 privilege. The CAAF

relied on its recently enacted rule prohibiting victims,

but not others asserting privilege, from intervening in

its proceedings. Id. This new rule, applied retroactively,

12

precluded the victim from asserting her rights. Such

procedural barriers deny victims the ability to defend

their rights and erode the integrity of the military justice

system.

The United States’ decision to waive its right to

respond to this petition does not indicate opposition to

Major McFarland’s arguments. Rather, it suggests the

United States may have overlooked the significance of

the questions presented. Before the CAAF, the United

States supported Petitioner McFarland by opposing the

abatement order. Pet. App. 12. The CAAF’s refusal to

review issues sent to it by the judge advocates general

affects the United States in broader contexts beyond

victims’ rights. The United States fails to appreciate the

impact the denial of victims’ standing will have on their

willingness to participate in court-martial proceedings.

Military sexual assault will continue destroying the good

order and discipline of the armed forces.

The Court needs to address the questions presented

now.

13

CONCLUSION

The petition should be granted.

Respectfully submitted,

Peter Coote

Counsel of Record

Elizabeth A. Rudolph

Pennoni A ssociates Inc.

1900 Market Street

Third Floor

Philadelphia, PA 19103

(215) 254-7857

pcoote@pennoni.com

A pril P. McCroskey

Captain, JAGC, U.S. A rmy

Regional Special Victims’

Counsel

National Guard Bureau

111 South George Mason Drive

Arlington, VA 22204

Counsel for Petitioner