82 FR 20595 - U.S. Court of Appeals for the Armed Forces Proposed Rules Changes

DEPARTMENT OF DEFENSE
Office of the Secretary

Federal Register Volume 82, Issue 84 (May 3, 2017)

This notice announces the following proposed changes to Rules 3A(a) and 21(a) of the Rules of Practice and Procedure, United States Court of Appeals for the Armed Forces. Although these rules of practice and procedure fall within the Administrative Procedure Act's exemptions for notice and comment, the Department, as a matter of policy, has decided to make these changes available for public review and comment before they are implemented.

[Federal Register Volume 82, Number 84 (Wednesday, May 3, 2017)]
[Notices]
[Pages 20595-20596]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-08893]


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DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID: DOD-2017-OS-0017]


U.S. Court of Appeals for the Armed Forces Proposed Rules Changes

ACTION: Notice of availability of Proposed Changes to the Rules of 
Practice and Procedure of the United States Court of Appeals for the 
Armed Forces.

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SUMMARY: This notice announces the following proposed changes to Rules 
3A(a) and 21(a) of the Rules of Practice and Procedure, United States 
Court of Appeals for the Armed Forces. Although these rules of practice 
and procedure fall within the Administrative Procedure Act's exemptions 
for notice and comment, the Department, as a matter of policy, has 
decided to make these changes available for public review and comment 
before they are implemented.

DATES: Comments on the proposed changes must be received by June 2, 
2017.

ADDRESSES: You may submit comments, identified by docket number and/or 
Regulatory Information Number (RIN) and title by any of the following 
methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
     Mail: Department of Defense, Office of the Deputy Chief 
Management Officer, Directorate for Oversight and Compliance, 4800 Mark 
Center Drive, Mailbox #24, Suite 08D09B, Alexandria, VA 22350-1700.
    Instructions: All submissions received must include the agency name 
and docket number for this Federal Register document. The general 
policy for comments and other submissions from members of the public is 
to make these submissions available for public viewing on the Internet 
at http://www.regulations.gov as they are received without change, 
including personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: William A. DeCicco, Clerk of the 
Court, telephone (202) 761-1448.

    Dated: April 27, 2017.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.

Rule 3A(a):

    Rule 3A(a)--SENIOR JUDGES--currently reads:
    With the Senior Judge's consent, and at the request of the Chief 
Judge, a Senior Judge may perform judicial duties with the Court if an 
active Judge of the Court is disabled or has recused himself or if 
there is a vacancy in an active judgeship on the Court. For the periods 
of time when performing judicial duties with the Court, a Senior Judge 
shall receive the same pay, per diem, and travel allowances as an 
active Judge; and the receipt of pay shall be in lieu of receipt of 
retired pay or annuity with respect to these same periods. The periods 
of performance of judicial duties by a Senior Judge shall be certified 
by the Chief Judge and recorded by the Clerk of the Court. The Clerk of 
the Court shall notify the appropriate official to make timely payments 
of pay and allowances with

[[Page 20596]]

respect to periods of time when a Senior Judge is performing judicial 
duties with the Court and shall notify the Department of Defense 
Military Retirement Fund to make appropriate adjustments in the Senior 
Judge's retired pay or annuity. See Article 142(e)(2), Uniform Code of 
Military Justice (UCMJ), 10 U.S.C. Sec.  942(e)(2).
    The proposed change to Rule 3A(a) would read:
    With the Senior Judge's consent, and at the request of the Chief 
Judge, a Senior Judge may perform judicial duties with the Court if an 
active Judge of the Court is disabled or has recused himself or if 
there is a vacancy in an active judgeship on the Court. For the periods 
of time when performing judicial duties with the Court, a Senior Judge 
shall receive the same pay, per diem, and travel allowances as an 
active Judge. The periods of performance of judicial duties shall be 
certified by the Chief Judge and reported to the Court Executive who 
shall take appropriate steps so that the Senior Judge is paid in 
accordance with Article 142(e)(2), UCMJ.
    Comment: The Fiscal Year 2017 National Defense Authorization Act 
(NDAA) amended Article 142(e)(2), UCMJ, involving the pay of a senior 
judge who performs judicial duties with the Court. Before the amendment 
was passed, retired judges had their annuities suspended while 
performing judicial duties and were paid as active service judges. The 
NDAA's amendment provides that instead of stopping the senior judge's 
annuity, the senior judge would continue to receive the annuity in full 
and also receive additional pay equal to the difference between the 
daily equivalent of the annual rate of pay provided for a judge of the 
Court and the daily equivalent of the retired pay of the senior judge 
under Article 145, UCMJ. Accordingly, Rule 3A(a) needs to be amended to 
comply with current law.

Rule 21(a):

    Rule 21(a)--Supplement to Petition for Grant of Review--currently 
reads:
    Review on petition for grant of review requires a showing of good 
cause. Good cause must be shown by the appellant in the supplement to 
the petition, which shall state with particularity the error(s) claimed 
to be materially prejudicial to the substantial rights of the 
appellant. See Article 59(a), UCMJ, 10 U.S.C. Sec.  859(a).
    The proposed change to Rule 21(a) would read:
    Review on petition for grant of review requires a showing of good 
cause. Good cause should be shown by the appellant in the supplement to 
the petition, which shall state with particularity the error(s) claimed 
to be materially prejudicial to the substantial rights of the 
appellant. See Article 59(a), UCMJ, 10 U.S.C. Sec.  859(a).
    Comment: The language in the current rule that ``good cause must be 
shown'' by the appellant in the supplement has led to some litigation 
as to whether there is a jurisdictional requirement to raise issues, 
and that supplements that do not include any specific errors should be 
dismissed for want of jurisdiction. The Court has rejected this view 
when it has been raised. Amending the rule to reflect that ``good cause 
should be shown'' is the proper way to read the rule in light of Rule 
21(e) which provides that when no specific errors are included in the 
supplement to the petition, the Court will nevertheless review the 
petition. Reading Rule 21(a) as mandatory would be inconsistent with 
Rule 21(e) and render the latter provision meaningless. The amended 
rule is consistent with prevailing judicial decisions and removes any 
confusion as to how to reconcile the subsections (a) and (e).

[FR Doc. 2017-08893 Filed 5-2-17; 8:45 am]
 BILLING CODE 5001-06-P