Disposition, precedent, and final review

If certiorari is denied, the case does not proceed into full merits review before the Judge Advocate General. The denial means the Judge Advocate General declined to exercise discretionary final-review jurisdiction in that case.

A denial is not the same thing as a written merits opinion. It does not automatically mean that the Judge Advocate General agrees with every sentence written by the lower court. Students should therefore never treat denial of certiorari as though the Judge Advocate General personally endorsed every comma below.

If certiorari is granted, the case enters merits proceedings before the Judge Advocate General. A merits docket is opened and linked to the earlier trial, appellate, and petition proceedings.

The Judge Advocate General may grant review on all Questions Presented, only some questions, or a reformulated version of a question fairly contained in the petition. The order granting review defines the scope of the merits proceeding. Counsel does not get to quietly add Question 6 later because inspiration struck during the reply brief.

Once certiorari is granted, the parties submit detailed legal arguments addressing the accepted Questions Presented. The petitioner usually files an opening merits brief, the respondent answers, and a reply may follow where permitted.

The briefs should discuss jurisdiction, controlling authority, the relevant record, legal analysis, and the precise disposition requested. At this stage, the question is no longer whether the Judge Advocate General should review the case. Review has already been granted. The question is how the accepted legal issue should be decided.

An amicus curiae may be permitted to submit a brief offering a useful legal perspective, system-wide interest, historical material, or argument not adequately presented by the parties. An amicus does not become a party simply because the brief is accepted.

An amicus also may not enlarge the Questions Presented or introduce new evidence outside the record. The purpose is to assist the court, not hijack somebody else's case because it looked interesting.

The Judge Advocate General may order oral argument or decide the merits based upon the briefs. Counsel should be prepared to address jurisdiction, precedent, the record, the consequences of the proposed legal rule, and the exact disposition requested.

Oral argument is not simply reading the brief aloud with more dramatic pauses. It allows the Judge Advocate General to test each side's reasoning through direct questioning.

After merits review, the Judge Advocate General may take whatever judicial action is authorized by the Rules. The Judge Advocate General may affirm, reverse, vacate, modify, remand, dismiss where authorized, or enter another lawful disposition appropriate to the case.

To affirm generally means the lower result remains in place. To reverse generally means the lower legal result is rejected.

To vacate generally means the challenged judgment or order is set aside. To remand means the matter is sent back for additional proceedings. The exact legal effect depends upon the opinion and judgment entered.

When the Judge Advocate General resolves a case on the merits, the Judge Advocate General may issue a written opinion explaining the relevant facts, Questions Presented, controlling law, reasoning, holding, and disposition. The holding is the legal rule necessary to resolve the issue decided.

A published merits holding of the Judge Advocate General constitutes binding precedent throughout the military courts governed by the Rules. Lower judicial authorities must follow that controlling rule unless the precedent is properly distinguished, superseded, or overruled. Not every sentence in a Judge Advocate General opinion becomes sacred law simply because the Judge Advocate General typed it.

Counsel may argue that a prior precedent does not control because the new case is materially different. This is called distinguishing precedent.

A valid distinction identifies a factual or legal difference that actually matters to the earlier holding. Counsel may also ask the Judge Advocate General to overrule prior precedent where a legitimate basis exists. Lower courts generally cannot overrule controlling Judge Advocate General precedent on their own simply because they dislike it.

The Deputy Judge Advocate General is not automatically another appellate court. The Deputy Judge Advocate General does not normally sit between the Assistant Judge Advocate General and Judge Advocate General as an additional mandatory level of review.

The Deputy may exercise the judicial authority of the Judge Advocate General only when formally designated to act for the Judge Advocate General according to the Rules. The designation should identify the scope and duration of that acting authority. When acting under such authority, the Deputy Judge Advocate General exercises the delegated judicial power of the Judge Advocate General rather than creating a separate Deputy Judge Advocate General appellate court.

If the judicial structure begins to feel complicated, remember the basic path. The Military Judge handles the trial. The Assistant Judge Advocate General handles the ordinary service appeal. The Judge Advocate General decides whether to accept final discretionary review and, when review is granted, resolves the accepted legal questions.

The Deputy Judge Advocate General may act for the Judge Advocate General only when properly designated. The Chief Military Judge administers the trial judiciary and holds the senior trial-judicial position, but does not automatically become an appellate court over every Lieutenant Colonel Military Judge. Keeping those roles separate prevents the system from collapsing into one giant pile of "whoever has the fanciest title decides."