The National Institute of Military Justice continues its mission of advancing the fair administration of military justice by lending its expertise to courts through amicus curiae briefs. Its most recent such brief urged the U.S. Supreme Court (SCOTUS) to grant certiorari in United States v. Dinger, 77 M.J. 447 (2018), in order to address a due process violation by the Court of Appeals for the Armed Forces (CAAF). SCOTUS recently declined to grant certiorari, leaving CAAF’s error unaddressed. This error, a significant constitutional violation, follows in the footsteps of Article III appellate courts’ disturbing trend of permitting retroactive application of new and expansive judicial interpretation of criminal law to past misconduct despite the Supreme Court’s longstanding prohibition against such unfair retroactivity.
Although the appeal of CAAF’s Dinger decision is over, the opinion deserves continued scrutiny by both Congress and the public for its fundamental failure to provide due process notice and its manifestation of the unconstitutional – and irrational – extension of court-martial jurisdiction over retirees for misconduct committed long after they’ve shed their uniforms and become civilians. CAAF’s decision reversed its own long-standing interpretation that punitive discharges are not available as punishment for crimes committed by military retirees.
Petitioner, a retired U.S. Marine Corps gunnery sergeant (in other words, a civilian), was court-martialed for misconduct committed years after he retired from active duty. [Yes, retirees can still be court-martialed for misconduct committed after becoming a civilian (a gross constitutional violation, in this author’s opinion)]. Petitioner asked SCOTUS for relief based solely on the Fifth Amendment due process issue in his case, choosing to leave the unconstitutionality of UCMJ jurisdiction over retirees to others to argue (see Larrabee v. United States, denied certiorari on February 19, 2019). As a result, NIMJ’s Dinger amicus brief (disclaimer: a brief I helped author) likewise emphasized the lack of fair warning of CAAF’s application of its new statutory interpretation to Petitioner.
Despite the basis of the appeal, CAAF’s denial of due process in Dinger remains contextually linked to the fact that the U.S. Marine Corps court-martialed a civilian military retiree for crimes he committed as a civilian long after he was out of uniform and a member of the military “special society” with its customs, traditions, and mandatory UCMJ training that justifies military jurisdiction over otherwise civilian offenses. Given that due process is context-specific, the extension of military jurisdiction over a civilian for civilian crimes (child porn) committed as a civilian, with no military nexus, underscores the fact that Dinger lacked fair warning – reasonable notice – that CAAF would reverse itself regarding what type of unique military punishment he would be subject to if court-martialed as a retiree. He certainly lacked fair notice that CAAF would retroactively apply its new judicial interpretation authorizing punitive discharges in this circumstance, one crafted in his own appellate case, to his past misconduct.
Specifically, CAAF had long decided by the time Sergeant Dinger left active duty in 2003 that an arcane federal statute – 10 U.S.C. § 6332 – meant Petitioner was not subject to a dishonorable discharge if court-martialed for post-retirement misconduct. Such precedent from the early 1990s remained settled law for 27 years until CAAF’s decision in Dinger’s own 2018 appellate case, in which CAAF reinterpreted 10 U.S.C. § 6332 in a manner that reinstated punitive discharges as viable punishments for Marine and Navy retirees, expressly over-ruling its early 1990s jurisprudence. Pointedly, in doing so, CAAF expressly acknowledged that its ‘90s decisions indeed long stood for the rule that 10 U.S.C. § 6332 precluded imposition of a punitive discharge for Dinger’s offenses. If CAAF thought its earlier decisions clearly prevented such punishment, surely others such as Dinger should have been able to reasonably rely on such precedential understanding as well
Despite such reasonable reliance by Dinger and others similarly situated, CAAF retroactively applied its new and expansive 10 U.S.C. § 6332 understanding (allowing punitive discharges for Marine and Navy retirees), crafted in Dinger’s case, to Dinger’s own past misconduct. If this seems eerily like a straight-up Ex Post Facto Clause violation, you’re right. Article I, Section 9, Clause 3 of the U.S. Constitution prohibits Congress from criminalizing past conduct, as well as prohibiting increasing punishment for past misconduct, for obvious fairness reasons. SCOTUS, as a matter of Fifth Amendment due process, resoundingly prohibited courts from doing the same thing in its famous 1960s South Carolina sit-in case, Bouie v. City of Columbia, 378 U.S. 347, (1964). Bouie held that an appellate court cannot interpret existing criminal law in ways that upend the settled understanding and then apply that new interpretation to misconduct that occurred under the previously-settled state law. (Unfortunately, a review of the last few decades of civilian appellate cases reveals that Bouie is very much in decline, a trend SCOTUS, Congress, and state legislatures should address and correct).
Through its retroactive application of its new judicial interpretation of 10 U.S.C. § 6332 to Dinger’s past misconduct, CAAF committed a gross Bouie due process violation, and didn’t even bother to reconcile its decision with that famous precedent. All criminal defendants, civilian and military, should be able to rely on the due process principle that settled jurisprudential precedent, at least as to what constitutes substantive criminal conduct and potential punishment exposure at the time of their misconduct, is what will apply to their eventual prosecution. CAAF erred, and SCOTUS missed an opportunity to remind all courts that Bouie still controls in more than just the history books.
Caveat: let’s be real. I highly doubt Dinger or anyone but a retiring judge advocate who worked at the appellate level actually knew about CAAF’s interpretation of this particular statute at the time they retired. But reasonable notice is an objective standard, a legal fiction that in this context guards against retroactive application of new criminal liability and enhanced punishments out of respect for fundamental fairness – a bulwark against courts allowing punishment that simply did not exist when the criminal conduct was committed. This due process analogue to the constitution’s prohibition of ex post facto laws draws a bright line to ensure confidence in criminal justice systems. Sure, the argument could be made here (perhaps CAAF would have made it if CAAF had actually bothered to justify its Bouie violation in its Dinger decision), that Dinger should have been on notice that CAAF could change its mind regarding the meaning of the statute at issue. But this argument piles legal fiction upon legal fiction. It’s not like there was another, equivalent appellate court who had reached the opposite conclusion regarding the statute’s meaning, nor had Congress ever blinked its eyes once over the 27 years of CAAF’s previous interpretation.
Hence either CAAF is either a real court whose opinions can be relied upon, or it’s not. The Supreme Court’s denial of certiorari in this instant case represents having one’s cake (see Ortiz v. United States: CAAF is a real court) and eating it too (this case: CAAF decisions can’t be relied on, so not a real court). An opportunity missed.
Professor Rachel E. VanLandingham, Southwestern Law School; Vice President, NIMJ; Lt Col, USAF (ret.) *opinions below are the author’s own