United States v. Wall ( 2020 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Corey N. WALL, Specialist
United States Army, Appellant
No. 19-0143
Crim. App. No. 20160235
Argued January 14, 2020—Decided April 24, 2020
Military Judge: Lanny Acosta
For Appellant: Captain Rachele A. Adkins (argued); Lieu-
tenant Colonel Tiffany D. Pond, Lieutenant Colonel Christo-
pher D. Carrier, and Captain Heather M. Martin (on brief);
Major Todd W. Simpson.
For Appellee: Major Jonathan S. Reiner (argued); Colonel
Steven P. Haight, Lieutenant Colonel Wayne H. Williams,
Major Hannah E. Kaufman and Captain Christopher T.
Leighton (on brief); Captain Marc B. Sawyer.
Chief Judge STUCKY delivered the opinion of the Court,
in which Judges OHLSON and SPARKS joined. Judge
RYAN filed a separate dissenting opinion in which Judge
MAGGS joined.
_______________
Chief Judge STUCKY delivered the opinion of the Court.
The issue presented in this case is whether the United
States Army Court of Criminal Appeals (CCA) was authorized
to reassess Appellant’s sentence after setting aside the sen-
tence approved by the convening authority. As a consequence
of granting that issue for review, we necessarily specified an
additional issue, asking whether the granted issue was ripe
for review. We hold that the issue was ripe for review and
that, by setting aside the sentence, there was no approved
sentence for the CCA to reassess.
I. Background
A military judge sitting alone as a general court-martial
convicted Appellant, contrary to his pleas, of rape and sexual
assault. Article 120, Uniform Code of Military Justice
United States v. Wall, No. 19-0143/AR
Opinion of the Court
(UCMJ), 10 U.S.C. § 920 (2012). The convening authority ap-
proved the sentence adjudged: a dishonorable discharge, con-
finement for fifteen years, and reduction to the grade of E-1.
The CCA held that the military judge’s consideration of
the evidence of each charged offense as propensity evidence
for the other charged offense, under Military Rule of Evidence
413, violated this Court’s holdings in United States v. Hills,
75 M.J. 350 (C.A.A.F. 2016), and United States v. Hukill,
76 M.J. 219 (C.A.A.F. 2017). United States v. Wall, No. ARMY
20160235, 2018 CCA LEXIS 479, at *14, 2018 WL 4908172,
at *5 (A. Ct. Crim. App. Oct. 5, 2018). The CCA affirmed the
rape conviction but set aside the sexual assault conviction and
the sentence. Id. at *15, 2018 WL 4908172, at *6. It author-
ized the convening authority to choose one of the following
options:
(1) order a rehearing on [the sexual assault offense]
and the sentence; (2) dismiss [the sexual assault of-
fense] and order a rehearing on the sentence only; or
(3) dismiss [the sexual assault offense] and reassess
the sentence, affirming no more than a dishonorable
discharge, confinement for ten years, total forfeiture
of all pay and allowances, and reduction to E-1.1
Id. at *15–16, 2018 WL 4908172, at *6. In a footnote, the CCA
further concluded:
In reassessing the sentence we are satisfied that the
sentence adjudged, absent Specification 1 of The
Charge, would have been at least a dishonorable dis-
charge and confinement of ten years. See United
States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986) and
United States v. Winckelmann, 73 M.J. 11, 15–16
(C.A.A.F. 2013). The reassessment being both appro-
priate and purging the record as it stands of error
does not otherwise limit the sentence that may be
adjudged at a rehearing. See UCMJ, art. 63.
Id. at *16 n.3, 2018 WL 4908172, at *6 n.3.
1 The convening authority approves rather than affirms a sen-
tence. Rule for Courts-Martial (R.C.M.) 1107(f)(4) (2016 ed.).
2
United States v. Wall, No. 19-0143/AR
Opinion of the Court
The CCA granted Appellant’s request for reconsideration,
directed minor corrections to its original opinion, and af-
firmed all other aspects of its opinion and the judgment of the
court. United States v. Wall, No. ARMY 20160235 (A. Ct.
Crim. App. Nov. 16, 2018) (order).
II. Discussion
The parties agree that we are reviewing a CCA sentence
reassessment and, therefore, this Court should review both
issues for an abuse of discretion. That is not the standard for
the issues we specified. We asked: (1) whether the issue is
ripe for review; and (2) whether a CCA is authorized to set
aside a sentence and then reassess it before remanding the
case to the convening authority. These are clearly questions
of law that we review de novo. See Waltman v. Payne, 535
F.3d 342, 348 (5th Cir. 2008) (ripeness); United States v. Eng-
lish, 79 M.J. 116, 121 (C.A.A.F. 2019) (scope of an appellate
court’s authority).
We begin with the authority of the CCAs. A CCA “may af-
firm only such findings of guilty, and the sentence or such
part or amount of the sentence, as it finds correct in law and
fact and determines, on the basis of the entire record, should
be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2012).
If the Court of Criminal Appeals sets aside the find-
ings and sentence, it may, except where the setting
aside is based on lack of sufficient evidence in the
record to support the findings, order a rehearing. If
it sets aside the findings and sentence and does not
order a rehearing, it shall order that the charges be
dismissed.
Article 66(d), UCMJ.
The Judge Advocate General shall, unless there is to
be further action by the President, the Secretary
concerned, the Court of Appeals for the Armed
Forces, or the Supreme Court, instruct the conven-
ing authority to take action in accordance with the
decision of the Court of Criminal Appeals. If the
Court of Criminal Appeals has ordered a rehearing
but the convening authority finds a rehearing im-
practicable, he may dismiss the charges.
Article 66(e), UCMJ.
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United States v. Wall, No. 19-0143/AR
Opinion of the Court
The statute does not explicitly tell us how to handle a case
in which a CCA affirms some of the convictions, sets aside
others, and authorizes a rehearing. Nevertheless, under his
authority to make procedural rules, Article 36(a), UCMJ, 10
U.S.C. § 836(a) (2012), the President has issued the following:
If a superior authority has approved some of the
findings of guilty and has authorized a rehearing as
to other offenses and the sentence, the convening au-
thority may, unless otherwise directed, reassess the
sentence based on the approved findings of guilty
and dismiss the remaining charges. Reassessment is
appropriate only where the convening authority de-
termines that the accused’s sentence would have
been at least of a certain magnitude had the preju-
dicial error not been committed and the reassessed
sentence is appropriate in relation to the affirmed
findings of guilty.
R.C.M. 1107(e)(1)(B)(iv) (2012 ed.).
A. Jurisdiction
“‘[E]very federal appellate court has a special obligation to
satisfy itself ... of its own jurisdiction.’” Randolph v. HV, 76
M.J. 27, 29 (C.A.A.F. 2017) (alterations in original) (quoting
Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541
(1986)). This Court has a duty to review the record in all cases
reviewed by a CCA in which the accused’s petition establishes
good cause. Article 67(a)(3), UCMJ, 10 U.S.C. § 867(a)(3)
(2012). This Court, however, “may act only with respect to the
findings and sentence as approved by the convening authority
and as affirmed or set aside as incorrect in law by the Court
of Criminal Appeals.” Article 67(c), UCMJ.
The first question, then, is whether the CCA set aside the
sentence as incorrect in law. The CCA set aside the sexual
assault finding because the military judge considered evi-
dence of each charged offense as propensity evidence for the
other, in violation of our precedents. Wall, 2018 CCA LEXIS
479, at *14, 2018 WL 4908172, at *5. That was clearly a mat-
ter of law. The CCA could have simply dismissed that specifi-
cation and determined the appropriate sentence. See Article
66(c), UCMJ. It chose instead to permit the prosecution to re-
try the accused on the charge that was set aside. As the orig-
inal sentence was based in part on the finding of guilty that
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United States v. Wall, No. 19-0143/AR
Opinion of the Court
had been set aside, the CCA set aside the sentence to effectu-
ate the possibility of a rehearing on findings and sentence.
Under these circumstances, we conclude that the sentence
was set aside as incorrect in law and, therefore, we have ju-
risdiction. This is consistent with our resolution of two other
cases, in which we issued orders stating that we had jurisdic-
tion, although we declined to resolve the granted issue, find-
ing it was not ripe. United States v. Long, 79 M.J. 99 (C.A.A.F.
2019) (order); United States v. Hopkins, 78 M.J. 130 (C.A.A.F.
2018) (order).
The Government makes two jurisdictional arguments,
First, it contends that this Court will exceed its “congression-
ally circumscribed jurisdiction by providing sentencing re-
lief.” This misses the point. We are not reviewing the sentence
in this case; we are instead determining the scope of the
CCA’s authority in remands.
Second, the Government asserts that as the CCA merely
vacated the sentence, rather than set it aside as a matter of
law, this Court is without jurisdiction. But in its judgment,
the CCA specifically stated: “The sentence is set aside.” Wall,
2018 CCA LEXIS 479, at *15, 2018 WL 4908172, at *6. Fur-
thermore, whether the sentence is “set aside” or “vacated” is
of little import. The definition of “set aside” is to “annul or
vacate (a judgment, order, etc.).” Black’s Law Dictionary 1580
(10th ed. 2014). The terms “set aside” and “vacate” are actu-
ally a “doublet.” They are often used together to note the same
meaning, one in old English and the other in old French.
Bryan A. Garner, Garner’s Dictionary of Legal Usage 812 (3d
ed. 2011).
B. Ripeness
“Ripeness” is the “state of a dispute that has reached, but
has not passed, the point when the facts have developed suf-
ficiently to permit an intelligent and useful decision to be
made.” Black’s Law Dictionary 1524 (10th ed. 2014).
[The doctrine’s] basic rationale is to prevent the
courts, through avoidance of premature adjudica-
tion, from entangling themselves in abstract disa-
greements over administrative policies, and also to
protect the agencies from judicial interference until
an administrative decision has been formalized and
its effects felt in a concrete way by the challenging
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United States v. Wall, No. 19-0143/AR
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parties. The problem is best seen in a twofold aspect,
requiring us to evaluate both the fitness of the issues
for judicial decision and the hardship to the parties
of withholding court consideration.
Abbott Labs. v. Gardner, 387 U.S. 136, 148–49 (1967), abro-
gated by Califano v. Sanders, 430 U.S. 99 (1977).
The ripeness doctrine originates in the Constitution’s Ar-
ticle III case or controversy language. DaimlerChrysler Corp.
v. Cuno, 547 U.S. 332, 352 (2006). Nevertheless, Article I
courts, such as ours, “generally adhere” to this doctrine and
ordinarily decline to consider an issue that is “premature.”
United States v. Chisholm, 59 M.J. 151, 152 (C.A.A.F. 2003).
If the appeal is not ripe, it deprives the court of subject matter
jurisdiction and must be dismissed. 1 Lissa Griffin, Federal
Criminal Appeals § 3:46 (2019 ed.).
In Texas v. United States, the Supreme Court employed
sweeping language to describe ripeness: “A claim is not ripe
for adjudication if it rests upon contingent future events that
may not occur as anticipated, or indeed may not occur at all.”
523 U.S. 296, 300 (1998) (internal quotation marks omitted)
(citation omitted). But in analyzing the granted issue, the Su-
preme Court employed the Abbott two-part test: “fitness of the
issues for judicial decision and the hardship to the parties of
withholding court consideration.” Id. at 301 (internal quota-
tion marks omitted) (quoting Abbott, 387 U.S. at 149). The
Supreme Court determined that the claim that Texas suffered
the immediate hardship of a threat to federalism was “too
speculative” and “insubstantial.” Id. at 302.
This Court has routinely denied, as not ripe for review,
petitions for grant of review in cases in which the CCA has
ordered a rehearing. See, e.g., United States v. Clark, 78 M.J.
371 (C.A.A.F. 2019) (summary disposition). In this case, how-
ever, the issue concerns the terms of the remand itself:
Whether the CCA is authorized to provide what amounts to
an advisory opinion by declaring what sentence to confine-
ment it would accept as appropriate.
The Supreme Court found the issue ripe in Abbott because
the regulation at issue had a “direct effect on the day-to-day
business” of the plaintiffs, even though the regulation had not
yet been enforced. 387 U.S. at 152. Under the Abbott test, the
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United States v. Wall, No. 19-0143/AR
Opinion of the Court
issue in Appellant’s case is fit for resolution. First, the issue
“is a purely legal one,” which can be resolved without further
proceedings. Id. at 149. Resolution of the issue is limited to
this Court’s interpretation of the UCMJ and the President’s
Rules for Courts-Martial.
Second, unlike in Texas, the adverse effect of the CCA’s
ruling is neither remote nor abstract. 523 U.S. at 301. The
CCA sent a clear message to the convening authority that it
would approve a sentence that included confinement of ten
years if the convening authority decided not to order a rehear-
ing. While the convening authority was not prohibited from
ordering a rehearing, the possibility he would do so is remote
in light of the time and expense of such a hearing, the diffi-
culty in obtaining witnesses almost three years after Appel-
lant’s initial trial, and the seeming certainty that the CCA
would affirm a sentence to confinement of ten years for the
affirmed finding of guilty.
Furthermore, resolution of the issue promotes, rather
than degrades judicial economy—minimizing duplication of
effort and avoiding wasting the court’s time and resources.
The CCA has rendered similar rulings, setting aside a sen-
tence and then reassessing it, in at least seven other cases.
See Appendix I. As a matter of judicial economy, it makes
sense to resolve this issue now, before more such cases arise.
Appellant has also shown hardship, as the CCA’s order on
his case “is sufficiently direct and immediate as to render the
issue appropriate for judicial review at this stage.” Abbott,
387 U.S. at 152. Without our intervention, Appellant’s case
will be returned to the convening authority to make an inde-
pendent decision on whether to order a rehearing or to reas-
sess the sentence. And the CCA has already ruled that it
would affirm if the convening authority elected to forgo a re-
hearing and reassess the sentence to include confinement for
ten years. If this Court waits until the convening authority
reassesses the sentence, this Court may have no way of deter-
mining whether the convening authority actually exercised
his independent judgment or was unduly influenced by the
CCA.
We, therefore, conclude the issue is ripe for review.
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C. Authority for the Order
“In a case referred to it, the Court of Criminal Appeals
may act only with respect to the … sentence as approved by
the convening authority.” Article 66(c), UCMJ (emphasis
added). By setting aside Appellant’s approved sentence and
remanding, the CCA extinguished the approved sentence
and, thereby, its authority to further act on the sentence until
the case returned from the convening authority.
The Government argues that: (1) in United States v. Har-
ris, 53 M.J. 86 (C.A.A.F. 2000), this Court tacitly condoned
the CCA’s action in this case; (2) Article 66(f)(3), UCMJ, au-
thorized the CCA to order further proceedings subject to such
limitations as the court may direct; and (3) the convening au-
thority was not prohibited from approving any lesser sen-
tence. We find none of these arguments persuasive.
This Court has not condoned the CCA’s practice in the
past. In Harris, the CCA set aside some of the appellant’s con-
victions and remanded to the convening authority with three
options: (1) to order a rehearing on the set aside charges and
the sentence; (2) to order a sentence rehearing alone if (1) was
impracticable; and (3) if the second option was impracticable
to reassess the sentence. 53 M.J. at 87. The CCA in that case
did not reassess the sentence after setting it aside and re-
manding.
The Government also argues that the CCA did not abuse
its discretion in ordering a rehearing with limitations provid-
ing direction to the convening authority because it is specifi-
cally authorized by Article 66(f)(3), UCMJ. Putting aside
whether Article 66(f)(3) authorizes the CCA’s judgment, that
provision is contained in the Military Justice Act of 2016, and
does not apply to cases such as Appellant’s, which was tried
and remanded before the Act’s January 1, 2019, effective
date. National Defense Authorization Act for Fiscal Year
2017, Pub. L. No. 114-328, § 5330, 130 Stat. 2000, 2932
(2016). Neither the UCMJ nor the Rules for Courts-Martial
applicable to Appellant’s case authorize the CCA to reassess
the sentence after remand.
We agree with the Government that the remand did not
require the convening authority to approve the sentence as
“reassessed” by the CCA. But that is not Appellant’s point. He
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United States v. Wall, No. 19-0143/AR
Opinion of the Court
asserts that the “reassessment” was an advisory opinion that
would taint what is supposed to be an independent assess-
ment by the convening authority.
An advisory opinion is “an opinion issued by a court on a
matter that does not involve a justiciable case or controversy
between adverse parties.” Chisholm, 59 M.J. at 152 (citation
omitted). While courts established under Article III of the
Constitution may not issue advisory opinions, courts estab-
lished under Article I, such as this Court and the Courts of
Criminal Appeals, “generally adhere to the prohibition on ad-
visory opinions as a prudential matter.” Id. (citation omitted).
But the CCA’s “reassessment” was more than just an ad-
visory opinion. It sent a message to both the convening au-
thority and members of the CCA who would sit on the case
when it returned after remand: You are not required to follow
this advice, but this court has already determined that con-
finement for ten years was part of an appropriate sentence.
Appellant’s case is similar in some respects to Peugh v.
United States, 569 U.S. 530 (2013). There, the issue presented
was whether application of sentencing guidelines that had in-
creased in severity since the appellant had committed his of-
fenses violated the Ex Post Facto Clause. Id. at 533. The Su-
preme Court rejected the government’s argument that since
the guidelines were merely advisory, there was no ex post
facto problem. Id. at 539. “The touchstone of this Court’s in-
quiry is whether a given change in law presents a sufficient
risk of increasing the measure of punishment attached to the
covered crimes.” Id. at 539 (internal quotation marks omitted)
(citation omitted). The Supreme Court went on to hold that
the risk that the increased guidelines affected the trial court’s
sentencing decision was too great. Id. at 550.
Subject to the limitations of the UCMJ and the Rules for
Courts-Martial, the decision to reassess the sentence, and
what sentence to approve, is solely that of the convening au-
thority. Article 60, UCMJ, 10 U.S.C. § 860 (2012); R.C.M.
1107(e)(2)(B)(iii) (2016 ed.); United States v. Reed, 33 M.J. 98,
99–100 (C.M.A. 1991). While not requiring the convening au-
thority to adopt its conclusions, the CCA’s “reassessment”
sent a signal to the convening authority that confinement for
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Opinion of the Court
ten years was appropriate. The risk that the CCA’s “reassess-
ment” will improperly influence the convening authority’s ac-
tion in his exercise of his discretion is too great.2
III. Judgment
The judgment of the United States Army Court of Crimi-
nal Appeals is set aside as to sentence. The record is returned
to the Judge Advocate General of the Army for remand to the
CCA, which shall: (1) dismiss the sexual assault specification
(Specification 1 of Charge I) and reassess the sentence; or
(2) remand to the convening authority who shall (a) order a
rehearing on the rape specification and the sentence or
(b) dismiss the rape specification and order a rehearing on the
sentence alone.
2 During oral argument, Government counsel asserted that the
CCA’s “reassessment” of the sentence would save time for that
panel or a new panel when the case returned for further review. We
reject any suggestion that the panel that reviews Appellant’s case
in the future is authorized to give it any less than the full consider-
ation of the appropriateness of the sentence required by Article
66(c), UCMJ.
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Opinion of the Court
Appendix I
The CCA’s judgment in the following seven other cases is
similar to that of Appellant’s case.
(1) United States v. Williams, No. ARMY 20160231, 2019
CCA LEXIS 288, at *21 & n.13, 2019 WL 2949401, at *8 &
n.13 (A. Ct. Crim. App. July 3, 2019);
(2) United States v. Solomon, No. ARMY 20160456, 2019 CCA
LEXIS 149, at *36 & n.23, 2019 WL 1528078, at *15 & n.23
(A. Ct. Crim. App. Apr. 3, 2019);
(3) United States v. Moynihan, No. ARMY 20130855, 2018
CCA LEXIS 610, at *11 & n.5, 2018 WL 6334226, at *4 & n.5
(A. Ct. Crim. App. Nov. 26, 2018), review dismissed, 78 M.J.
371 (C.A.A.F. 2019);
(4) United States v. Long, No. ARMY 20150160, 2018 CCA
LEXIS 512, at *34 & n.16, 2018 WL 5623640, at *12 & n.16
(A. Ct. Crim. App. Oct. 26, 2018), review dismissed, 79 M.J.
99 (C.A.A.F. 2019), and reconsideration denied, 79 M.J. 184(C.A.A.F. July 11, 2019);
(5) United States v. Hernandez, No. ARMY 20160217, 2018
CCA LEXIS 389, at *13 & n.4, 2018 WL 3854046, at *5 & n.4
(A. Ct. Crim. App. Aug. 10, 2018);
(6) United States v. Gonzalez, No. ARMY 20160363, 2018
CCA LEXIS 327, at *13―14 & n.8, 2018 WL 3326646, at *6 &
n.8 (A. Ct. Crim. App. July 3, 2018); and
(7) United States v. Hopkins, No. ARMY 20140913, 2018 CCA
LEXIS 254, at *34–35 & n.15, 2018 WL 2405998, at *12 &
n.15 (A. Ct. Crim. App. May 25, 2018).
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United States v. Wall, No. 19-0143/AR
Judge RYAN, with whom Judge MAGGS joins, dissenting.
In this case Appellant seeks an answer to a legal question:
“Whether, after setting aside the sentence and ordering a re-
mand, a service court of criminal appeals is authorized to re-
assess the sentence and limit the lawful sentence the conven-
ing authority may approve.” United States v. Wall, 79 M.J. 63,
63―64 (C.A.A.F. 2019) (order granting petition for review).
But that avenue of relief, like all others that ask a federal
court to render a decision, is subject to the ordinary rules of
justiciability, rules intended to confine “the constitutional
limitation of federal-court jurisdiction to actual cases or con-
troversies.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341
(2006) (internal quotation marks omitted) (citation omitted).1
A central tenet of this limitation is the doctrine of ripeness,
see id. at 352, which “prevent[s] . . . courts, through premature
adjudication, from entangling themselves in abstract disa-
greements.” Thomas v. Union Carbide Agr. Prods. Co., 473
U.S. 568, 580 (1985) (internal quotation marks omitted)
(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967)).
This doctrine draws “both from Article III limitations on
judicial power and from prudential reasons for refusing to ex-
ercise jurisdiction.” Nat’l Park Hosp. Ass’n v. Dep’t of Interior,
538 U.S. 803, 808 (2003) (internal quotation marks omitted)
(citation omitted). While we are not an Article III court, we
“generally adhere to the prohibitions on advisory opinions as
a prudential matter.” See, e.g., United States v. Chisholm, 59
M.J. 151, 152 (C.A.A.F. 2003). This case is not ripe, we impru-
dently exceed our judicial role by deciding it, and I respect-
fully dissent.
A.
In assessing whether a claim is ripe, we agree with the
majority that the appropriate framework is set forth in Ab-
bott, 387 U.S. at 149, and reiterated in Texas v. United States,
1 The Declaratory Judgment Act, for example, provides: “In a
case of actual controversy within its jurisdiction . . . any court of the
United States, upon the filing of an appropriate pleading, may de-
clare the rights and other legal relations of any interested party
seeking such declaration, whether or not further relief is or could
be sought.” 28 U.S.C. § 2201(a) (2018) (emphasis added).
United States v. Wall, No. 19-0143/AR
Judge RYAN, dissenting
523 U.S. 296, 300–01 (1998) (quoting Abbott, 387 U.S. at 149):
“ ‘fitness of the issues for judicial decision and the hardship to
the parties of withholding court consideration.’ ”
While a pure question of law may be fit for judicial deci-
sion in theory, that is no invitation for courts to reach out and
decide issues where the harm alleged is speculative: “A claim
is not ripe for adjudication if it rests upon contingent future
events that may not occur as anticipated, or indeed may not
occur at all.” Id. at 300 (internal quotation marks omitted)
(citation omitted). Accordingly, at least twice this Court sum-
marily dismissed cases in the precise posture of this one with-
out prejudice as unripe because there was a possibility of a
rehearing. See United States v. Long, 79 M.J. 99 (C.A.A.F.
2019) (order) (CCA remand included reassessment option
with cap of dishonorable discharge, confinement for forty
years, and reduction to E-1; assigned issues included
“Whether the Army Court abused its discretion by reas-
sessing the sentence after dismissing eleven out of fourteen
specifications, and offering the convening authority the op-
tion to approve an excessive sentence for the remaining spec-
ifications in lieu of a rehearing”); United States v. Moynihan,
78 M.J. 371 (C.A.A.F. 2019) (order) (CCA remand included re-
assessment option with cap of dishonorable discharge, con-
finement for forty-two months, and reduction to E-1; sole as-
signed issue was “Whether the Army Court erred when it set
aside Appellant’s convictions because of prejudicial error, yet
considered those same convictions when it reassessed the sen-
tence”). The majority fails to distinguish these cases.
While the scope and contours of the CCA’s authority may
well present a purely legal question, Abbott, 387 U.S. at 149,
there is no cognizable injury to Appellant at this time. Any
harm here necessarily turns on contingent events. Cf. United
States v. Cabral, 926 F.3d 687, 694 (10th Cir. 2019) (dismiss-
ing vagueness challenge to supervised release condition as
unripe because “[e]ven assuming a condition is facially prob-
lematic, the mere existence of [such a] condition is ordinarily
not enough to sustain a judicial challenge, even by one who
reasonably believes that the law applies to him and will be
enforced against him” (internal quotation marks omitted) (ci-
tation omitted)). The convening authority has yet to take any
2
United States v. Wall, No. 19-0143/AR
Judge RYAN, dissenting
action, and the CCA expressly empowered the convening au-
thority to order a rehearing instead of reassessing the sen-
tence. United States v. Wall, No. ARMY 20160235, 2018 CCA
LEXIS 479, at *15―16, 2018 WL 4908172, at *6 (A. Ct. Crim.
App. Oct. 5, 2018) (unpublished). Moreover, the CCA did not
dictate what sentence the convening authority must impose,2
and we have no way of knowing what sentence he might im-
pose if he in fact chooses that option, rather than a rehearing.
The harm Appellant complains of thus depends both on the
convening authority’s selection of the reassessment option
and imposition of a sentence of ten years3—a “contingent fu-
ture event[] that may not occur as anticipated, or indeed may
not occur at all.” Texas, 523 U.S. at 300 (internal quotation
marks omitted) (citation omitted).
The harm alleged here is quite different than that deemed
sufficiently immediate in Abbott and hews far more closely to
that deemed too speculative in Texas. Abbott involved an ad-
ministrative regulation that forced Abbott Laboratories into
a dilemma where they would either incur massive costs by
complying with the regulation or face criminal prosecution for
non-compliance. 387 U.S. at 152. It was in that context that
the Supreme Court deemed resolution of the purely legal
question ripe because of the adverse impact on a party.
In contrast, the law challenged in Texas prevented the
State from imposing two out of ten possible sanctions on
school districts that failed to satisfy accreditation criteria. 523
U.S. at 298–300. Unlike the “direct effect on day-to-day busi-
ness” in Abbott, Texas, 523 U.S. at 301 (internal quotation
marks omitted) (citation omitted), a series of contingent
events had to occur for those two options to ever become avail-
2 Indeed, the CCA stated “[t]he reassessment being both appro-
priate and purging the record as it stands of error does not otherwise
limit the sentence that may be adjudged at a rehearing.” 2018 CCA
LEXIS 479, at *16 n.3, 2018 WL 4908172, at *6 n.3 (emphasis
added).
3 Worth emphasizing, the ten years at issue is still five years
less than the original fifteen-year sentence, which the convening
authority could still approve.
3
United States v. Wall, No. 19-0143/AR
Judge RYAN, dissenting
able, and the State could not show any district where impos-
ing such sanctions was even likely. Id. at 300. As in Texas,
the claim here is simply not “ripe for adjudication.” Id. at 302.
B.
The majority nevertheless finds concrete ripeness in the
hypothetical harm that may potentially arise through the
CCA’s proposed (but non-binding if a rehearing is ordered) re-
assessment cap possibly tainting the convening authority’s
independent decision-making. By authorizing a reassessment
with a sentence cap the CCA considered appropriate, the con-
vening authority was purportedly incentivized to abdicate his
duty to independently review Appellant’s case and simply
rubber stamp the CCA’s sentence. Accepting this position di-
vines a concrete injury from both speculation and assump-
tions that ignore the presumption of regularity afforded con-
vening authorities. See, e.g., United States v. Masusock, 1
C.M.A. 32, 35, 1 C.M.R. 32, 35 (1951) (“Courts have long in-
dulged in the legal presumption of regularity in the conduct
of governmental affairs.”). This imaginary potential for some
speculative, unknowable harm is not justiciable harm, and as
the dissent in United States v. Gonzalez notes, “[w]hen the
record is silent on how a convening authority acted, ‘the pre-
sumption of regularity requires us to presume that he carried
out the duties imposed upon him by the Code and the Man-
ual.’ ” __ M.J. __ (4) (C.A.A.F. 2020) (Maggs, J., with whom
Ryan J., joins, dissenting) (quoting United States v. Wise, 6
C.M.A. 472, 478, 20 C.M.R. 188, 194 (1955)). This is no less
true when seeking, as the majority does, to speculate as to
what a convening authority might do.
Nor does invoking the promotion of judicial economy solve
the ripeness deficiency. The interest in promoting judicial
economy is indeed intended to conserve judicial time and re-
sources and effectuate the interests in “prompt and efficient
resolution of controversies,” Carnegie-Mellon Univ. v. Cohill,
484 U.S. 343, 353 (1988), and avoid rules that burden the
court with additional litigation, see McDermott Inc. v.
AmClyde, 511 U.S. 202, 212 (1994). However, it is not in-
tended, and cannot plausibly be offered, as an end run around
Article III’s limitations on what constitutes a case or contro-
versy suitable for judicial review. It is not clear how resolving
4
United States v. Wall, No. 19-0143/AR
Judge RYAN, dissenting
Appellant’s claim at this juncture would appreciably promote
judicial economy more than if we waited for the convening au-
thority to act. Today’s holding will prevent CCAs from order-
ing these types of remands in the future, but this benefit is
unnecessary given the Court’s opportunity to decide precisely
the same thing in Gonzalez—where no one questions whether
the issue is ripe—without doing violence to the law on justici-
ability.
C.
Article III’s case or controversy limitations apply only pru-
dentially to our Court, United States v. Wuterich, 67 M.J. 63,
69 (C.A.A.F. 2008), but this does not license us to imprudently
apply them. Especially where we exercise such narrowly cir-
cumscribed, strictly construed jurisdiction, see Loving v.
United States, 62 M.J. 235, 244 n.60 (C.A.A.F. 2005), we
should hesitate to read expansively a justiciability doctrine as
fundamental as ripeness. Resolving the issue at this stage
may well be “efficient,” in some generic sense, but so too does
it bring us closer to the “plenary administrator” the Supreme
Court once admonished. Clinton v. Goldsmith, 526 U.S. 529,
536 (1999).
“The military justice system’s essential character [is,] in a
word, judicial.” Ortiz v. United States, 138 S. Ct. 2165, 2174
(2018). The majority today strays from this Court’s essential
judicial character.
I respectfully dissent.
5