U.S. Court of Appeals for the Armed Forces: A Brief Introduction

December 22, 2022

U.S. Court of Appeals for the Armed Forces: A Brief

Introduction

The U.S. Court of Appeals for the Armed Forces (CAAF)

provides the exclusive forum for those convicted at courtsmartial under the Uniform Code of Military Justice (UCMJ)

to appeal the decisions of the Army, Navy-Marine Corps,

Air Force, and Coast Guard Courts of Criminal Appeals

(CCAs), the military service branches’ appellate courts.

This In Focus describes the CAAF’s creation, jurisdiction,

authority, and procedures before identifying issues that may

interest the 118th Congress.

Creation

Using its authority under Article I of the U.S. Constitution,

Congress established the CAAF (then called the Court of

Military Appeals) on May 5, 1950 (Pub. L. No. 81-506).

(For more information on Article I courts, see CRS Report

R43746, Congressional Power to Create Federal Courts: A

Legal Overview.) The National Defense Authorization Act

for FY1995 (P.L. 103-337) gave the CAAF its current

name. For administrative purposes only, the CAAF is part

of the Department of Defense. The statutes governing the

CAAF are located in chapter 47, subchapters IX and XII of

title 10 of the U.S. Code.

Jurisdiction and Authority

The CAAF has exclusive jurisdiction over appeals of

decisions of the CCAs, which, for their part, have exclusive

jurisdiction over appeals of court-martial determinations.

Decisions and determinations made within the military

legal system concern alleged infractions of the UCMJ, the

governing criminal code for the U.S. Armed Forces. The

UCMJ applies to active-duty servicemembers; military

retirees receiving pay; reserve component and National

Guard members under particular conditions; and other

individuals delineated in 10 U.S.C. § 802. (For additional

information on the military legal system, see CRS Report

R46503, Military Courts-Martial Under the Military

Justice Act of 2016.)

As a general matter, the CAAF reviews legal issues without

deference to the determinations of lower courts. In these

proceedings, the CAAF is to defer to lower courts’ factual

findings and only overturn such findings if clearly

erroneous.

The CAAF also has the authority under the All Writs Act,

28 U.S.C. § 1651, to issue writs—special types of court

orders—to aid its jurisdiction. For example, the CAAF has

issued writs of mandamus to compel officials to carry out

certain legally required functions and writs of prohibition

ordering lower courts to cease activities barred by law.

Judges

The CAAF consists of five judges, including a chief judge;

the most senior judge serves as chief judge. Judges are

nominated by the President and confirmed by the Senate for

a fixed term of 15 years. (There is no statutory bar on

reappointing judges.) Nominations and hearings for

prospective CAAF judges proceed through the Senate

Committee on Armed Services. Before the expiration of her

term, a judge can be removed by the President only for

neglect of duty, misconduct, or mental or physical

disability. There are currently five active judges on the

CAAF.

Judges must be civilians and cannot be appointed to the

CAAF within seven years of being a commissioned officer

in a regular component of the Armed Forces. Four of the

five current judges previously served in the military.

In addition to active judges, the CAAF uses senior judges,

who are former CAAF judges that are receiving retirement

pay or an annuity for their service. The chief judge may call

upon senior judges, with their consent, to perform judicial

duties during periods when an active judge is unable to

perform her duties due to illness or disability; there is a

vacancy on the court; or a judge recuses from a case. There

are currently eight senior judges.

The chief judge may request that the Chief Justice of the

United States designate an Article III judge of a U.S. court

of appeals or district court to perform the duties of a CAAF

judge. The chief judge may do this in the same situations in

which a senior judge may be called upon to perform the

duties of a judge, provided that the chief judge determines

that no senior judge is available. The Article III judge and

the chief judge of the relevant U.S. court of appeals or

district court must consent to such a designation.

Court Proceedings

Proceedings before the CAAF are adversarial. Government

attorneys are appointed to represent individuals by their

respective military service; individuals may also retain

private counsel. The government is represented by attorneys

from the case’s originating military service branch. Only

attorneys who meet certain requirements may be admitted

to practice before the CAAF.

The CAAF generally sits in Washington, DC, but has the

authority to sit anywhere in the United States. Several times

per year, the CAAF holds oral arguments at law schools

and military installations.

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U.S. Court of Appeals for the Armed Forces: A Brief Introduction

Appeals to CAAF

There are three primary mechanisms by which the CAAF

hears cases. First, an accused may submit a petition for

grant of review of a CCA decision, which the CAAF can

grant at its discretion for “good cause shown.” (The

government may not petition for review.) At least two

judges must vote to grant a petition for grant of review for

the CAAF to hear the case. Second, the CAAF must review

all cases in which the CCA has affirmed a sentence of

capital punishment. Third, the court must review CCA

decisions that a military service branch Judge Advocate

General orders reviewed by the CAAF. This process is

called certification, and such cases are called certified

cases. Between October 2020 and September 2021 (the

October 2020 term), the CAAF received 344 petitions for

grant of review, of which it granted 52. In addition, the

CAAF received four certified cases and two cases requiring

mandatory review.

Petitions for Extraordinary Writs

An accused may petition the CAAF for extraordinary writs

that would, for example, compel lower courts and officials

to carry out legally required actions or refrain from carrying

out legally barred actions. In general, petitioning CAAF for

an extraordinary writ mimics the process for petitioning for

a grant of review. During the October 2020 term, CAAF

received 21 petitions for extraordinary writs but granted

none.

Filing and Recordings

Parties can file case materials with the CAAF on paper or

via email. The CAAF records its hearings and makes audio

recordings available to the public at no cost.

Types of Decisions

A panel of all five CAAF judges hears and decides all cases

before the court. Most cases include hearings during which

the parties present oral argument to the panel. The court

grants each party 20 minutes to present their arguments. At

its discretion, however, the court can decide cases without a

hearing.

The judges regularly meet in conference to discuss recently

argued cases and tentatively vote on the outcomes. If the

chief judge is in the majority, he or she will assign

responsibility for drafting the opinion to a judge in the

majority. If the chief judge is not in the majority, the most

senior judge in the majority will assign responsibility for

the majority opinion. Once the assigned judge drafts a

majority opinion, it is circulated among the other judges,

who then have the chance to concur, offer comments, or

draft and submit separate statements, such as concurrences

or dissents. Once all judges have had an opportunity to

express their views in writing, the opinion, including any

separate statements, is published. During the October 2020

term, the CAAF issued 59 decisions, of which 42 affirmed

lower court determinations, 12 reversed (in whole or in

part) lower court decisions, and 5 involved other

resolutions.

Appealing CAAF Decisions

The U.S. Supreme Court has exclusive jurisdiction to

review the CAAF’s decisions on a direct basis. The

Supreme Court can only review military cases that the

CAAF has reviewed or in which the CAAF has granted

some form of relief. If the CAAF denies review, the

Supreme Court does not have jurisdiction to review the case

on a direct basis. Any party, including the government, may

file a petition for a writ of certiorari seeking Supreme

Court review of a CAAF decision.

Collateral Attacks on CAAF Decisions

Federal district courts and the U.S. Court of Federal Claims

(CFC) may review CAAF decisions in limited

circumstances. At federal district courts, individuals can

challenge CAAF determinations through petitions for writs

of habeas corpus. (For additional information on federal

habeas corpus, see CRS Report RL33391, Federal Habeas

Corpus: A Brief Legal Overview.) At the CFC, individuals

can challenge CAAF determinations through claims for

military back pay alleging wrongful discharge. Both of

these avenues generally entail challenging military courts’

jurisdiction over a case or military courts’ constitutional

analyses.

Challenges to military courts’ legal determinations in

federal district courts and the CFC do not depend on grant

of review by the CAAF. Cases that are denied review by the

CAAF can therefore potentially still be reviewed by the

Supreme Court following appeals from federal district

courts and the CFC to federal appellate courts.

Issues for Congress

The House and Senate Armed Services Committees, and

their respective Subcommittees on Military Personnel, have

authorizing jurisdiction over the CAAF. The House and

Senate Appropriations Committees, and their respective

Subcommittees on Defense, have appropriations

jurisdiction over the CAAF.

Appeals to the U.S. Supreme Court

Currently, the U.S. Supreme Court has jurisdiction over

direct appeals of CAAF decisions only if the CAAF

reviews the case in question. Since most of CAAF’s

decisions result from petitions for grant of review, and since

the CAAF denies most of those petitions, the Supreme

Court does not have direct appellate jurisdiction over most

military cases. Proponents of the current scope of review

argue that it enables quicker final decisions in military

cases and gives a court with special competence in military

law substantial authority over military legal matters.

Conversely, some argue that this limited review affords

servicemembers less access to Supreme Court review than

civilians. In light of these arguments, Congress may

consider the scope of the Supreme Court’s jurisdiction over

military cases as delineated in 28 U.S.C. § 1259.

Andreas Kuersten, Legislative Attorney

IF12296

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U.S. Court of Appeals for the Armed Forces: A Brief Introduction

Disclaimer

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