[House Report 111-547]
[From the U.S. Government Publishing Office]



111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     111-547

======================================================================



 
               EQUAL JUSTICE FOR OUR MILITARY ACT OF 2010

                                _______
                                

 July 15, 2010.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

    Mr. Conyers, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 569]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 569) to amend titles 28 and 10, United States Code, to 
allow for certiorari review of certain cases denied relief or 
review by the United States Court of Appeals for the Armed 
Forces, having considered the same, reports favorably thereon 
with an amendment and recommends that the bill as amended do 
pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     3
Hearings.........................................................     8
Committee Consideration..........................................     8
Committee Votes..................................................     8
Committee Oversight Findings.....................................     8
New Budget Authority and Tax Expenditures........................     9
Congressional Budget Office Cost Estimate........................     9
Performance Goals and Objectives.................................    10
Constitutional Authority Statement...............................    10
Advisory on Earmarks.............................................    10
Section-by-Section Analysis......................................    10
Changes in Existing Law Made by the Bill, as Reported............    11
Dissenting Views.................................................    12

                             The Amendment

  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Equal Justice for Our Military Act 
of 2010''.

SEC. 2. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ARMED 
                    FORCES.

    (a) In General.--Section 1259 of title 28, United States Code, is 
amended--
            (1) in paragraph (3), by inserting ``or denied'' after 
        ``granted''; and
            (2) in paragraph (4), by inserting ``or denied'' after 
        ``granted''.
    (b) Technical and Conforming Amendments.--
            (1) Title 10.--Section 867a(a) of title 10, United States 
        Code, is amended by striking ``The Supreme Court may not review 
        by a writ of certiorari under this section any action of the 
        Court of Appeals for the Armed Forces in refusing to grant a 
        petition for review.''.
            (2) Time for application for writ of certiorari.--Section 
        2101(g) of title 28, United States Code, is amended to read as 
        follows:
    ``(g) The time for application for a writ of certiorari to review a 
decision of the United States Court of Appeals for the Armed Forces, or 
the decision of a Court of Criminal Appeals that the United States 
Court of Appeals for the Armed Forces refuses to grant a petition to 
review, shall be as prescribed by rules of the Supreme Court.''.

SEC. 3. EFFECTIVE DATE.

    (a) In General.--Subject to subsection (b), the amendments made by 
this Act shall take effect upon the expiration of the 180-day period 
beginning on the date of the enactment of this Act and shall apply to 
any petition granted or denied by the United States Court of Appeals 
for the Armed Forces on or after that effective date.
    (b) Authority to Prescribe Rules.--The authority of the Supreme 
Court to prescribe rules to carry out section 2101(g) of title 28, 
United States Code, as amended by section 2(b)(2) of this Act, shall 
take effect on the date of the enactment of this Act.

                          Purpose and Summary

    The purpose of H.R. 569, the ``Equal Justice for Our 
Military Act of 2010,'' is to give servicemembers greater 
opportunity to seek Supreme Court review of court-martial 
decisions. Under current law, the Supreme Court has limited 
jurisdiction to hear appeals of court-martial decisions from 
the military's highest court, the Court of Appeals for the 
Armed Forces (CAAF). Specifically, the Supreme Court lacks 
jurisdiction to hear appeals of 1) court-martial decisions that 
were declined review by the CAAF, 2) decisions by the CAAF that 
deny extraordinary relief, whether on direct appeal to the CAAF 
or in writ appeals from lower military appellate courts, and 3) 
some decisions by the CAAF to deny interlocutory appeals.
    In all these cases, servicemembers have an inferior right 
to access the Supreme Court when compared to the government 
within the military justice system, civilians within the 
civilian court system, and even enemy combatants tried by 
military commissions. H.R. 569 seeks to correct this imbalance 
by amending 28 U.S.C. Sec. 1259 to allow servicemembers whose 
appeals are denied review by the CAAF, or who were denied 
extraordinary relief or interlocutory appeals by the CAAF, the 
opportunity to seek Supreme Court review of these decisions by 
writ of certiorari.

                Background and Need for the Legislation

    The Uniform Code of Military Justice (UCMJ), enacted in 
1950,\1\ is the foundation of the modern military justice 
system. Among other things, the UCMJ authorizes the court-
martial as the primary mechanism to establish the guilt or 
innocence of servicemembers accused of a crime. The UCMJ 
requires that court-martial convictions that result in 
sentences that include dismissal of a commissioned officer, 
cadet, or midshipman; dishonorable or bad-conduct discharge; 
confinement of 1 year or longer; or death, must be reviewed by 
an intermediate Court of Criminal Appeals.\2\ Servicemembers 
may seek further appellate review from the military's highest 
court, the Court of Appeals for the Armed Forces (CAAF).
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    \1\Pub. L. No. 81-506, 64 Stat. 107 (1950).
    \2\10 U.S.C. Sec. 866(b). Each service branch has its own Court of 
Criminal Appeals.
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    The CAAF is required to hear all cases where a Court of 
Criminal Appeals affirmed a sentence of death,\3\ and all cases 
the Judge Advocate General (JAG) certifies for review by the 
CAAF.\4\ The CAAF has discretion to review all other appeals 
coming from the Courts of Criminal Appeals where appellants 
make a showing of good cause.\5\ Further review by the Supreme 
Court of appellate CAAF decisions is limited by statute.
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    \3\10 U.S.C. Sec. 867(1).
    \4\10 U.S.C. Sec. 867(2). The JAG's certification process is 
usually used to compel the CAAF to hear a case in which the United 
States lost at the Court of Criminal Appeals level. Kevin J. Barry, A 
Face Lift (And Much More) For an Aging Beauty: The Cox Commission 
Recommendations to Rejuvenate the Uniform Code of Military Justice, 
2002 L. Rev. M.S.U.-D.C.L. 57, 82 (2002).
    \5\10 U.S.C. Sec. 867(3).
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    Section 1259 of Title 28 provides the Supreme Court with 
jurisdiction to grant writs of certiorari to review appeals 
from the CAAF in four specific circumstances: (1) decisions 
where a death sentence was affirmed by a Court of Criminal 
Appeals; (2) court-martials that the JAG had earlier certified 
for CAAF review; (3) court-martials in which the CAAF granted a 
petition for review; (4) and decisions by the CAAF to grant 
relief that do not already fall into one of the other 
categories.\6\ This last category generally applies to writs 
for extraordinary relief and writ appeals from Courts of 
Criminal Appeals.
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    \6\29 U.S.C. Sec. 1259(1)-(4).
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    Pursuant to these limitations, the Supreme Court does not 
have jurisdiction to review court-martial decisions that the 
CAAF has declined to review. Similarly, the Supreme Court does 
not have jurisdiction to review decisions by the CAAF that deny 
relief on a petition for extraordinary relief or a writ appeal. 
These limitations preclude hundreds of servicemembers from 
seeking Supreme Court review every year. According to data 
provided by the Department of Defense, between fiscal years 
2001 and 2005, 4125 petitions were filed seeking CAAF review. 
Of these, 635, or roughly 16%, were granted review, while the 
remainder, 3377, were either denied review or dismissed.\7\ 
More current statistics provided by the Supreme Court indicate 
that between October 1, 2005 and August 31, 2008, the CAAF 
denied 2274 petitions for review.\8\ Coupled with a yearly 
average of 21 extraordinary relief petition denials, there are 
approximately 800 court-martial decisions per year in which 
servicemembers are denied the opportunity to seek certiorari 
from the Supreme Court.
---------------------------------------------------------------------------
    \7\Letter from Daniel J. Dell' Orto, Acting General Counsel, U.S. 
Dept. of Defense, to Senator Carl Levin, Chairman, Comm. on the Armed 
Services, U.S. Senate (Jun. 27, 2008) (on file with Committee) 
[Hereinafter ``Dell' Orto Letter''].
    \8\Letter from Jeffrey P. Minear, Counselor to the Chief Justice, 
Supreme Court of the United States, to Hon. Henry C. ``Hank'' Johnson, 
Chairman, Subcommittee on Courts and Competition Policy, U.S. House of 
Representatives (June 18, 2009) (on file with Committee) [Hereinafter 
``Minear Letter''].
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    The Committee has received testimony, letters, and 
documents from a number of sources decrying the injustice of 
these limitations on the Supreme Court's jurisdiction. The 
American Bar Association has noted that ``this is a blatantly 
unfair procedural system stacked against the 
servicemember.''\9\ The District of Columbia Bar Association 
has stated that ``our servicemembers deserve better than this 
disparity in our laws governing procedural due process. . . 
.''\10\ And the Commission on Military Justice, chaired by Hon. 
Walter T. Cox, III, former Chief Judge of the Court of Appeals 
for the Armed Forces (1995-1999), concluded that the ``CAAF 
serves as an unnecessary and unwise gatekeeper to Supreme Court 
review.''\11\ Other supporters of H.R. 569 include the Military 
Officers Association of America, the Fleet Reserve Association, 
the Jewish War Veteran's Association of America, and the 
National Association of Criminal Defense Lawyers.\12\
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    \9\H.R. 569, the ``Equal Justice for Our Military Act of 2009,'' 
Hearing Before the Subcomm. on Courts and Competition Policy, Comm. on 
the Judiciary, 111th Cong. 4 (2009) (written statement of H. Thomas 
Wells, Jr., President, American Bar Association) [Hereinafter ``ABA 
Testimony''].
    \10\Letter from Ralph P. Albrecht, President, Bar Association of 
the District of Columbia, to Representative Susan Davis, U.S. House of 
Representatives (June 5, 2009) (on file with Committee).
    \11\Report of the Commission on Military Justice, 7 (Oct. 2009). 
This commission, often referred to as the Cox Commission, named after 
its chair, Hon. Walter T. Cox, III, was formed in November 2000 by the 
National Institute of Military Justice to identify and assess potential 
improvements to the UCMJ.
    \12\During the full Committee mark-up of H.R. 569, Members of the 
Minority charged that the bill was introduced primarily for the benefit 
of a single individual, former Navy Officer Norbert Basil MacLean, III. 
In fact, a number of individuals and organizations have taken note of 
the inherent injustice of the current law. Additionally, it should be 
pointed out that H.R. 569 applies only to court-martials that were 
initiated on or after the effective date of the Act, which thereby 
forecloses any personal benefit to Mr. MacLean, whose court-martial was 
concluded well before this legislation was introduced.
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                 INEQUITIES OF CURRENT LIMITATIONS ON 
                    THE SUPREME COURT'S JURISDICTION

    The Supreme Court's limited jurisdiction over UCMJ cases 
gives the government significant advantage over servicemembers 
in access to full appellate review within the current military 
justice system. In this regard, servicemembers have inferior 
rights not only when compared to the government, but when 
compared to civilians, and even to enemy combatants.
    First, as discussed above, JAG certification automatically 
places a court-martial decision within the Supreme Court's 
jurisdiction. Thus, through certification, the government 
always has the power to compel the CAAF to review any court-
martial decision it chooses, and can pursue certiorari in the 
Supreme Court if dissatisfied with the CAAF's decision. First, 
as discussed above, JAG certification automatically places a 
court-martial decision within the Supreme Court's jurisdiction. 
Thus, through certification, the government always has the 
power to compel the CAAF to review any court-martial decision 
it chooses, and can pursue certiorari in the Supreme Court if 
dissatisfied with the CAAF's decision. In contrast, most cases 
appealed by servicemembers to the CAAF must rely on the CAAF to 
exercise its discretionary review authority to review the case. 
If the CAAF declines to exercise its discretion to review, that 
decision is not reviewable and servicemembers have no direct 
appellate rights.
    Second, virtually all petitions for extraordinary relief or 
writ appeals are filed by accused servicemembers asserting 
constitutional rights. For these petitions, a decision granting 
relief benefits the servicemember, and a decision denying 
relief upholds the government's position against the 
servicemember's assertion of those rights. So the fact that the 
Supreme Court has jurisdiction to review petitions for 
extraordinary relief or writ appeals when relief is granted by 
the CAAF, but not when relief is denied by the CAAF, further 
unfairly tips the scales of justice in favor of the government 
and against the servicemember.
    In contrast with servicemembers tried in military courts, 
civilian criminal defendants in either the Federal or State 
court systems are not denied the opportunity to appeal to the 
Supreme Court if lower appellate courts deny relief, or decline 
review. In the civilian context, criminal defendants tried in 
the Federal court system have a right of appeal to Federal 
appellate courts,\13\ and if they lose on appeal, they have a 
right to petition the Supreme Court for further review.\14\ In 
addition, criminal defendants tried in State courts generally 
have the right to appeal to an intermediate appellate court and 
may petition their highest State court for further review.\15\ 
If denied review by their highest State court, criminal 
defendants advancing a defense based on a constitutional or 
other Federal question may petition the Supreme Court for 
further review.\16\
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    \13\28 U.S.C. Sec. 1291.
    \14\28 U.S.C. Sec. 1254. While the Supreme Court has ruled there is 
no constitutional right to appeal, the right to appeal has been 
established by statute. Pennsylvania v. Finley, 481 U.S. 551, 556-57 
(1987) (citing McKane v. Durston, 153 U.S. 684, 687-88 (1894)).
    \15\See generally, Daniel E. Hall, Criminal Law and Procedure, 525-
526 (5th Ed. 2009). See also, Griffin v. Illinois, 351 U.S. 12, 18 
(1956)(``All of the States now provide some method of appeal from 
criminal convictions, recognizing the importance of appellate review to 
a correct adjudication of guilt or innocence.'')
    \16\28 U.S.C. Sec. 1257.
---------------------------------------------------------------------------
    Ironically, even the rudimentary due process given enemy 
combatants is denied the servicemembers who are defending our 
nation against them. Under the Military Commissions Act, the 
due process rights accorded alien enemy combatants specifically 
include the right to appeal to the Supreme Court if lower 
courts deny relief or review.\17\
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    \17\10 U.S.C. Sec. 950g(d).
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                      IMPACT ON MILITARY READINESS

    The Committee rejects assertions that this legislation 
would have an adverse impact on the military's morale or 
discipline. It is clear that the existing limitations on the 
Supreme Court's jurisdiction have no basis in military 
necessity. When Supreme Court jurisdiction to review appeals 
was added to the UCMJ by the Military Justice Act of 1983, 
there was never any mention that the scope of jurisdiction was 
limited for reasons of military necessity. In fact, the report 
accompanying the 1983 bill specifies that the limitations on 
the Supreme Court's jurisdiction embodied in 28 U.S.C. 
Sec. 1259 were solely intended to minimize the potential impact 
on the Supreme Court's docket.\18\ The Committee report 
provided no military justification for the limitations and 
stated that despite granting the Supreme Court jurisdiction 
over some court-martial decisions, the military court system 
would ``remain the primary source of judicial authority under 
the Uniform Code of Military Justice.''\19\ The Committee notes 
that H.R. 569 similarly does not overturn, amend, or change in 
any way the deference the Supreme Court has historically shown 
to military laws and regulations.
---------------------------------------------------------------------------
    \18\H.R. Rep. No. 98-549, at 16-17 (``In view of current concerns 
about the Supreme Court's docket, the legislation has been drafted in a 
manner that will limit the number of cases subject to direct Court 
review.'') The Committee notes that the Supreme Court currently hears 
approximately one-half the number of cases that it heard in 1983.
    \19\Id. at 17.
---------------------------------------------------------------------------
    Nor is there any evidence that the original limited grant 
of Supreme Court jurisdiction over court martial decisions made 
by the Military Justice Act of 1983 had any discernable effect 
on military readiness. In the years following enactment, there 
was no evidence of damage to the military's morale, discipline, 
or readiness. No credible evidence has been presented to 
suggest that augmenting Supreme Court jurisdiction in this 
respect would create a different result.
    In conclusion, the Committee does not believe H.R. 569 will 
have any negative impact on the good order and discipline of 
the military. This conclusion is shared by a number of experts 
in the field, including General John D. Alternburg, former 
Deputy Judge Advocate for the Army, who served as an expert 
witness at the Subcommittee's hearing on H.R. 569. General 
Alternburg, who opposes the bill on other grounds, testified 
that ``I disassociate myself with anyone who has stated that to 
give this right to soldiers . . . would, in some way, undermine 
discipline or undermine authority or lower discipline or harm 
the military . . . [H.R. 569] would in no way harm the 
military.''\20\
---------------------------------------------------------------------------
    \20\H.R. 569, the ``Equal Justice for Our Military Act of 2009,'' 
Hearing Before the Subcomm. on Courts and Competition Policy, Comm. on 
the Judiciary, 111th Cong. 39 (2009) (statement of General John D. 
Altenburg, former Deputy Judge Advocate for the Army).
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               BURDENS AND COSTS ASSOCIATED WITH THE ACT

    The Committee has explored the potential burden placed on 
military and other Federal legal resources by enactment of this 
legislation, and concludes that any additional burden or 
associated costs would be minimal.
    In a 2008 letter to Congress, the Department of Defense 
raised concerns that passage of S. 2052, a similar bill, would 
``require legal reviews and briefs from numerous counsel in the 
military departments' Government and Defense Appellate 
Divisions, the Department of Defense Office of General Counsel, 
as well as within the Office of the Solicitor General and the 
Supreme Court.''\21\ However, in evaluating the current 
legislation, the Congressional Budget Office (CBO) stated that 
the bill would not affect direct spending or revenues, that it 
would cost less than $1 million each year to administer, and 
that only a small portion of the individuals who would be 
eligible to seek appellate review by the Supreme Court would do 
so. This conclusion is supported by the available evidence.
---------------------------------------------------------------------------
    \21\Dell' Orto Letter, supra note 7.
---------------------------------------------------------------------------
    Experience with the current limitations to Supreme Court 
jurisdiction has demonstrated that most servicemembers eligible 
to petition for certiorari do not do so. According to a 2009 
letter to Congress from Jeffrey P. Minear, Counselor to the 
Chief Justice of the United States Supreme Court, 
``[h]istorical records indicate that from ten to fifteen 
percent of the individuals whose convictions and sentences are 
upheld by the CAAF after full discretionary review have filed a 
petition for a writ of certiorari in the Supreme Court.''\22\ 
Extrapolating from this experience, Mr. Minear indicated that 
providing expanded Supreme Court review of court-martial 
decisions pursuant to H.R. 569 would result in approximately 
120 additional petitions for certiorari each year.\23\ Even 
lower estimates of up to 88 petitions per year were provided in 
the expert witness testimony of Colonel Dwight Sullivan 
received by the Subcommittee during the legislative hearing on 
H.R. 569.\24\ This estimate was further endorsed in the written 
testimony of the American Bar Association.\25\
---------------------------------------------------------------------------
    \22\Minear Letter, supra note 8.
    \23\Id.
    \24\H.R. 569, the ``Equal Justice for Our Military Act of 2009,'' 
Hearing Before the Subcomm. on Courts and Competition Policy, Comm. on 
the Judiciary, 111th Cong. 30 (2009) (statement of Dwight Sullivan, 
Civilian Appellate Defense Counsel, United States Air Force Appellate 
Defense Division).
    \25\ABA Testimony, supra note 9.
---------------------------------------------------------------------------
    For court-martial decisions that are appealed, prudent 
limitations already established by the Supreme Court will limit 
when counsel may aid servicemembers in filing petitions for 
certiorari. In Austin v. United States, the Supreme Court held 
that if counsel does not believe there is a non-frivolous basis 
for appeal in a case, counsel must advise his or her client of 
the right to file a certiorari petition, but counsel may not 
file the petition on the client's behalf.\26\ This prohibition 
on filing frivolous certiorari petitions applies equally to all 
counsel permitted to practice before the Supreme Court, whether 
they are appointed military counsel provided to servicemembers 
free of charge, or private counsel hired at servicemembers' 
expense. This prohibition serves a gatekeeping function that 
will limit petitions filed by counsel to only non-frivolous 
issues, thereby also limiting the burden and costs incurred by 
military legal resources and the Supreme Court.
---------------------------------------------------------------------------
    \26\Austin v. United States, 513 U.S. 5, 8 (1994).
---------------------------------------------------------------------------
    When counsel has determined that there is a non-frivolous 
issue upon which to base a certiorari petition to the Supreme 
Court, the Solicitor General, with the support of the JAG, is 
responsible for responding on behalf of the government to 
servicemembers' petitions for certiorari. However, it is common 
practice for the Solicitor General to waive the government's 
right to respond until, and unless, the Supreme Court requests 
a response. As such, the costs borne by the Department of 
Justice and military legal resources in responding to writs of 
certiorari will generally be limited to those few cases the 
Supreme Court deems worthy of further review.
    Finally, servicemembers who are without counsel but still 
interested in pursuing a certiorari petition to the Supreme 
Court may represent themselves pro se before the Supreme Court. 
While few will likely pursue appeal without counsel, those that 
do will most likely file certiorari petitions in forma 
pauperis, given the limited means of most servicemembers. There 
were 6,142 in forma pauperis filings in the Supreme Court's 
2008-2009 term.\27\ It is unlikely that many of the additional 
800 court-martial decisions made eligible for appeal to the 
Supreme Court per year by the Act will in fact lead to in forma 
pauperis filings. Even if a substantial portion do, they would 
represent a small fraction of total filings, and the Supreme 
Court could exercise its discretion to decline any such 
petitions, as is currently the case.
---------------------------------------------------------------------------
    \27\John G. Roberts, Chief Justice, United States Supreme Court, 
2009 Year-End Report on the Federal Judiciary 1 (Dec. 31, 2009), http:/
/www.supremecourtus.gov/publicinfo/year-end/2009year-endreport.pdf.
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                               CONCLUSION

    The Committee finds the current limitations in the Supreme 
Court's jurisdiction to hear court-martial decisions by writ of 
certiorari, as provided in 28 U.S.C. 1259(3) and (4), unfair to 
United States servicemembers. In the absence of a compelling 
military justification, and in light of the likely minimal 
burden to military and other government legal resources, the 
Committee finds no justification for maintaining these 
limitations. Accordingly, the Committee concludes that 
decisions by the CAAF to decline review of court-martial 
decisions, and to deny relief for extraordinary writs or writ 
appeals, should be appealable to the Supreme Court by writ of 
certiorari.

                                Hearings

    The Committee's Subcommittee on Courts and Competition 
Policy held 1 day of hearings on H.R. 569, on June 11, 2009. 
Testimony was received from the Honorable Susan Davis, Member 
of Congress, 53rd District, State of California; Major General 
(Ret.) John D. Altenburg, Jr., United States Army, and of 
Counsel, Greenberg Traurig, LLP; and Colonel Dwight H. 
Sullivan, United States Marine Corps Reserve, and a Senior 
Civilian Appellate Defense Counsel, Air Force Appellate Defense 
Division. Additionally, a statement was submitted by Mr. Thomas 
H. Wells, Jr., President, American Bar Association.

                        Committee Consideration

    On July 30, 2009, the Subcommittee on Courts and 
Competition Policy met in open session and ordered the bill 
H.R. 569 favorably reported, with an amendment, by voice vote, 
a quorum being present. On January 27, 2010, the Committee met 
in open session and ordered the bill H.R. 569 favorably 
reported without amendment, by voice vote, a quorum being 
present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that there 
were no recorded votes during the Committee's consideration of 
H.R. 569.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 569, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, February 2, 2010.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 569, the ``Equal 
Justice for Our Military Act of 2010.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz, who can be reached at 226-2860.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                  Director.

Enclosure

cc:
        Honorable Lamar S. Smith.
        Ranking Member
H.R. 569--Equal Justice for Our Military Act of 2010.
    H.R. 569 would allow the U.S. Supreme Court to review 
certain cases involving court-martialed servicemembers facing 
dismissal, discharge, or imprisonment. Under the bill, such 
servicemembers could file a petition for Supreme Court review 
even if the Court of Appeals for the Armed Forces (CAAF) denied 
review of their cases. Under current law, Supreme Court review 
is limited to cases the CAAF has reviewed or has granted a 
petition for extraordinary relief or cases with a sentence of 
death.
    Based on information provided by the Department of Defense 
(DoD) and the Supreme Court, CBO estimates that implementing 
the bill would increase the workload of DoD attorneys and 
Supreme Court clerks and would cost less than $1 million each 
year, assuming the availability of appropriated funds. We 
expect that the bill would make several hundred servicemembers 
eligible to file petitions each year, but that only a small 
portion of those individuals would pursue review by the Supreme 
Court (based on the experience of individuals whose cases 
currently qualify for Supreme Court review). CBO cannot predict 
whether the Supreme Court would grant review of any particular 
petition. If the Supreme Court agreed to review any petitions, 
DoD would probably spend no more than $1 million in any year 
from appropriated funds to defend those cases. (Any such 
amounts would depend on the number and complexity of such 
cases.) Enacting H.R. 569 would not affect direct spending or 
revenues.
    H.R. 569 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of State, local, or tribal 
governments.
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
569 will give the Supreme Court jurisdiction to hear appeals of 
court-martial decisions that were declined review by the Court 
of Appeals for the Armed Forces, and decisions by the Court of 
Appeals for the Armed Forces that deny extraordinary relief or 
an interlocutory appeal.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article I, section 8 of the Constitution.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 569 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9 of Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
    Sec. 1. Short title. Section 1 sets forth the short title 
of the bill as the ``Equal Justice for Our Military Act of 
2010.''
    Sec. 2. Certiorari to the United States Court of Appeals 
for the Armed Forces. Section 2(a) amends paragraphs (3) and 
(4) of 28 U.S.C. Sec. 1259 by adding ``or denied'' to the text 
of each paragraph. This effectively grants the Supreme Court 
jurisdiction, by writ of certiorari, over any case that the 
Court of Appeals for the Armed Forces denied review of, as well 
as any decision by the Court of Appeals for the Armed Forces 
that denied relief, including relief to extraordinary writs and 
writ appeals.
    Section 2(b) strikes current language in 10 U.S.C. 
Sec. 867a(a) that expressly denies the Supreme Court 
jurisdiction to review by writ of certiorari any action of the 
Court of Appeals for the Armed Forces in refusing to grant a 
petition for review. Section 2(b) also amends 28 U.S.C. 
Sec. 2101(g) to grant the Supreme Court authority to prescribe 
rules regarding the timeliness of an application for a writ of 
certiorari to review a decision by a Court of Criminal Appeals 
that the Court of Appeals for the Armed Forces refused to 
review.
    Sec. 3. Effective Date. Section 3(a) provides that 
amendments made by the Act shall take effect 180-days after 
enactment of the Act.
    Section 3(b) provides that the grant of authority to the 
Supreme Court to make amendments to the rules governing the 
timeliness of writ applications takes effect on the date of 
enactment of the Act. This will in effect give the Supreme 
Court 180 days to promulgate rules relating to the timeliness 
of writ applications stemming from a decision by a Court of 
Criminal Appeals that the Court of Appeals for the Armed Forces 
refused to review.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

                      TITLE 28, UNITED STATES CODE



           *       *       *       *       *       *       *
PART IV--JURISDICTION AND VENUE

           *       *       *       *       *       *       *


CHAPTER 81--SUPREME COURT

           *       *       *       *       *       *       *


Sec. 1259. Court of Appeals for the Armed Forces; certiorari

  Decisions of the United States Court of Appeals for the Armed 
Forces may be reviewed by the Supreme Court by writ of 
certiorari in the following cases:
          (1) * * *

           *       *       *       *       *       *       *

          (3) Cases in which the Court of Appeals for the Armed 
        Forces granted or denied a petition for review under 
        section 867(a)(3) of title 10.
          (4) Cases, other than those described in paragraphs 
        (1), (2), and (3) of this subsection, in which the 
        Court of Appeals for the Armed Forces granted or denied 
        relief.

           *       *       *       *       *       *       *


PART V--PROCEDURE

           *       *       *       *       *       *       *


CHAPTER 133--REVIEW-MISCELLANEOUS PROVISIONS

           *       *       *       *       *       *       *


Sec. 2101. Supreme Court; time for appeal or certiorari; docketing; 
                    stay

  (a) * * *

           *       *       *       *       *       *       *

  [(g) The time for application for a writ of certiorari to 
review a decision of the United States Court of Appeals for the 
Armed Forces shall be as prescribed by rules of the Supreme 
Court.]
  (g) The time for application for a writ of certiorari to 
review a decision of the United States Court of Appeals for the 
Armed Forces, or the decision of a Court of Criminal Appeals 
that the United States Court of Appeals for the Armed Forces 
refuses to grant a petition to review, shall be as prescribed 
by rules of the Supreme Court.

           *       *       *       *       *       *       *

                              ----------                              


              SECTION 867a OF TITLE 10, UNITED STATES CODE

Sec. 867a. Art. 67a. Review by the Supreme Court

  (a) Decisions of the United States Court of Appeals for the 
Armed Forces are subject to review by the Supreme Court by writ 
of certiorari as provided in section 1259 of title 28. [The 
Supreme Court may not review by a writ of certiorari under this 
section any action of the Court of Appeals for the Armed Forces 
in refusing to grant a petition for review.]

           *       *       *       *       *       *       *


                            Dissenting Views

    H.R. 569 proposes to amend the federal judicial code to 
allow for expanded review by writ of certiorari certain cases 
the U.S. Court of Appeals for the Armed Forces (CAAF) has 
determined do not merit formal review or extraordinary relief.
    In support of the bill, the sponsor testified before the 
House Judiciary Committee's Subcommittee on Courts and 
Competition Policy that ``members of the military who are 
convicted of offenses under the military justice system do not 
have the legal right to appeal their cases to the U.S. Supreme 
Court.''
    If true, it would be an outrage. If accurate, then we would 
support tailored amendments to the federal judicial code to 
provide certiorari review in appropriate instances.
    But the simple fact of the matter is this statement is 
misleading. The U.S. Supreme Court has possessed jurisdiction 
to review CAAF decisions by writ of certiorari for nearly three 
decades. The authority\1\ is not absolute and is prescribed by 
statute, extending only to the cases for which the CAAF has 
granted review and excluding those the CAAF has determined do 
not merit consideration.\2\
---------------------------------------------------------------------------
    \1\The Counselor to the Chief Justice of the United States 
explained the appellate review authority of the Court as well as the 
expansions proposed by H.R. 569 in a letter to the Chairman and Ranking 
Member of the Subcommittee on Courts and Competition Policy dated June 
18, 2009 :

      The Court of Appeals for the Armed Forces (CAAF) has 
      authority to review specified types of decisions by the 
      four Courts of Criminal Appeals for the different branches 
      of the military. See 10 U.S.C. Sec. 867 (a). The CAAF is 
      required to review all cases in which the death penalty is 
      imposes and all cases in which the relevant Judge Advocate 
      General orders review. See Sec. Sec. 867 (a)(1) and (2). 
      The CAAF also has the discretion to review any other case 
      decided by a Court of Criminal Appeals. See Sec. 867 
      (a)(3). Additionally, it has jurisdiction to consider 
      petitions for extraordinary writs under the All Writs Act. 
---------------------------------------------------------------------------
      See 28 U.S.C. Sec. 1651.

      The Supreme Court's jurisdiction to review CAAF decisions 
      is governed principally by 28 U.S.C. Sec. 1259. That 
      statute allows the Court to review by writ of certiorari 
      cases that the CAAF must review under sections 867(a)(1) 
      and (2). See 28 U.S.C. Sec. Sec. 1259 (1) and (2). It also 
      allows the Court to review by certiorari cases in which the 
      CAAF has granted a petition for discretionary review under 
      867 (a)(3) or otherwise granted relief, such as through an 
      extraordinary writ. See 28 U.S.C. Sec. Sec. 1259 (3) and 
      (4). H.R. 569 would amend section 1259 to allow the Supreme 
      Court to review additional cases from the CAAF. 
      Specifically, the bill would amend subsections (3) and (4) 
      to allow the Court to review by certiorari cases in which 
      the CAAF granted or denied a petition for discretionary 
      review or granted or denied other relief.
---------------------------------------------------------------------------
    \2\Article 67a, Uniform Code of Military Justice (hereinafter 
abbreviated to UCMJ); 28 U.S.C. Sec. 1259.
---------------------------------------------------------------------------
    The legislative history for current law unambiguously 
demonstrates that this limited avenue of Supreme Court review 
was not an oversight but the result of deliberate congressional 
design. The Committee on Armed Services, in House Report No. 
98-549, which accompanied the Military Justice Act of 1983, 
explained:
    ``The Court of Military Appeals [now CAAF] regularly 
applies decisions of the Supreme Court in resolving appellate 
issues . . . in view of current concerns about the Supreme 
Court's docket, the legislation has been drafted in a manner 
that will limit the number of cases subject to direct Court 
review. Cases in which the [CAAF] declined to grant a petition 
for review are excluded, and the Supreme Court will have 
complete discretion to refuse to grant petitions for writs of 
certiorari. Control over government petitions will be exercised 
by the Solicitor General. This formulation has been endorsed by 
the Department of Justice as well as the Department of Defense. 
The committee is of the opinion that the impact on the docket 
of the Supreme Court would not be substantial, and the [CAAF] 
will remain the primary source of judicial authority under the 
Uniform Code of Military Justice.'' (Emphasis added.)
    By enacting the Military Justice Act of 1983, Congress 
sought to achieve several objectives. Among them was a desire 
to ensure there was a mechanism to appeal decisions of the 
highest court in the military justice system on matters that 
are of the highest priority, those that affect constitutional 
law. Writing in 1982, the Supreme Court justices urged the 
House Committee on the Judiciary to consider, ``Because the 
volume of complex and difficult cases continue to grow, it is 
even more important that the Court not be burdened by having to 
deal with cases that are of significance only to the individual 
litigants but of no `wide public importance'.''\3\
---------------------------------------------------------------------------
    \3\House Report No. 100-660 accompanying Public Law 100-352, 
``Review of Cases by the Supreme Court.''
---------------------------------------------------------------------------
    History demonstrates Congress intended to provide an 
appellate system that integrated the Office of the Solicitor 
General, the Department of Justice and the Department of 
Defense in an elaborate process of reviewing and responding to 
appeals from the CAAF. In recognition of the operation of this 
system, which has been in effect for nearly three decades with 
few apparent complaints\4\ or defects, the views of the 
Executive Branch and the Supreme Court with respect to proposed 
changes to the law have consistently been solicited by the 
Committee leadership and staff. Indeed, the Armed Services 
Committees of the House of Representatives and the Senate have 
also routinely elicited the views of the relevant departments.
---------------------------------------------------------------------------
    \4\The sponsor of H.R. 569 and earlier versions of this legislation 
from prior Congresses has offered this explanation for why she has 
repeatedly advocated this measure:

      ``[t]his issue was brought to my attention of my office 
      years ago by a then-constituent of mine, a former 
      servicemember who had concerns about the military justice 
      system. He has since become a tireless champion for this 
      issue and other military justice reform on behalf of the 
      servicemembers and veterans that fall under the 
---------------------------------------------------------------------------
      jurisdiction of those courts.'' (Emphasis added.)

      The noble description aside, the then-constituent is 
      identified as Norbert Basil MacLean, III. After serving in 
      the U.S. Navy for 5 years, Mr. MacLean pleaded guilty in 
      October 1992 to writing bad checks on his personal account 
      and was convicted by a general court martial. A dual 
      Australian-U.S. citizen, he subsequently attempted to 
      collaterally attack his conviction and to set aside his 
      plea bargain, which had permitted his release from 
      confinement for time served. In publications, he merely 
      describes himself as having ``served on active duty in the 
      U.S. Navy from 1989-1994 and . . . an advocate for 
      servicemembers' rights.''
    In prior administrations, the Department of Defense, in 
particular, was forthright and forthcoming in expressing strong 
opposition to the enactment of this type of legislation. 
Regrettably, the current administration has forestalled 
attempts to discern its position. It has refused to cooperate 
with the Committee on the Judiciary's oversight into this 
matter as well as other matters that affect the rights of 
servicemembers.
    This unwillingness to engage in the legislative process and 
lack of transparency denies the Members of the Committee the 
opportunity to know whether the position of the present 
administration is consistent with or different from that of 
prior administrations. It also denies the Members of the 
Committee any opportunity to review or consider the validity of 
any arguments that might underlie the position of the present 
administration. In the absence of any affirmative statement or 
justification, Members might reasonably conclude the position 
of the current administration and the Department of Defense is 
unchanged from that which has been clearly and consistently 
stated in the recent past.
    The Department of Defense, which is the department that 
will be most directly affected by the enactment of H.R. 569, 
has regularly and strenuously objected to the measure. Among 
the concerns and objections we note with respect to this and 
prior versions of this legislation are:

         LFirst, it will likely greatly expand the 
        number of cases added to the already burdensome 
        workload, and length of time taken, to conduct 
        appellate reviews by the Service Courts of Criminal 
        Appeals. More cases means an increase in the number of 
        legal briefs and responses required, as well as the 
        oral argument sessions and demands placed on appellate 
        defense and government counsel. At the trial level, 
        this legislation will likely require more verbatim 
        records of the trial in support of the expanded 
        mandatory appellate review process. As such, this may 
        take longer to transcribe and because of the increased 
        length, increase expenses and administrative costs.

         LSecond, military accused may be negatively 
        impacted when seeking to negotiate a pretrial 
        agreement. The government might no longer be as willing 
        or interested in placing a ``cap'' on the possible 
        sentence, while still allowing the accused to plead not 
        guilty to one or more accompanying charges to that 
        which the accused is willing to plead guilty. Accused 
        typically want the benefit of the pretrial agreement 
        while also preserving appellate issues to those charges 
        he/she wishes to contest. Sometimes, the government is 
        willing to do this with a negotiated sentence ``cap'' 
        that would not allow for an Article 66, UCMJ, appeal. 
        If the case would, nonetheless, require a verbatim 
        record and an automatic appellate review by the Service 
        Court of Criminal Appeals, the prosecution might be 
        less likely to negotiate with the accused and place a 
        ``cap'' on the possible punishment in the case--this 
        would likely inure to the accused's detriment.

         LThird, no empirical support or persuasive 
        rationale has been provided to justify such a 
        significant change in the military's mandatory 
        appellate review process, where free defense counsel 
        and appellate resources are afforded an accused without 
        regard to indigence--unlike the civilian criminal 
        appellate system. Any reports that this proposal is 
        necessary as to ``remedy a troubling gap in military 
        appellate jurisdiction that makes it impossible for 
        some convicted military members to seek review of legal 
        error'' should provide irrebutable support for the 
        conclusion that there is a ``gap'' in appropriate 
        review of the case and that any gap is sufficiently 
        ``troubling'' to overhaul military appellate review 
        with its attendant costs and requirements. To maintain 
        there would be no additional costs associated with 
        expanding mandatory appellate court review (as 
        practiced within the military) overlooks the obvious 
        impact of more cases, with more free counsel and 
        administrative procedures applicable to each case, and 
        the diversion of government resources from existing 
        cases. Very rarely is a request to ``do more, with the 
        same or less'', less costly or without a real need for 
        increased manpower or resources.

         LFourth, there are already multiple avenues 
        for redress for servicemen who believe they have been 
        wronged in the military justice system. Military 
        members whose court-martial conviction does not now 
        qualify for automatic review by the Court of Criminal 
        Appeals for the relevant military service under Article 
        66, UCMJ, can already have their cases reviewed under 
        Article 69, UCMJ. The Boards of Correction of Military 
        Records can entertain a request for review, but for 
        clemency purposes (e.g., substituting an administrative 
        discharge for a punitive discharge, or other clemency 
        modification of the sentence), but the Boards do not 
        have authority to overturn courts-martial convictions. 
        Within a period of 2 years after the court-martial 
        convening authority approves a court-martial sentence, 
        the accused can petition the Judge Advocate General for 
        a new trial on the grounds of newly discovered evidence 
        or fraud on the court, under Article 73, UCMJ.

         LFifth, all general courts-martial not subject 
        to review under Article 66 are already subjected to 
        mandatory review under 69(a) in the Office of The Judge 
        Advocate General.

         LSixth, all special courts-martial not subject 
        to review under Article 66 are subject to mandatory 
        review by a judge advocate under Article 64 and 
        military members are free to apply for review in the 
        office of their respective Judge Advocate General under 
        Article 69(b), if not satisfied with the Article 64 
        review. In each instance, the case is reviewed for 
        legal sufficiency and sentence appropriateness. This 
        system has served the military well since the inception 
        of the UCMJ and neither evidence presented, if any, nor 
        actual experience suggest that the system has failed or 
        that changing it to merely ``appear'' more like a 
        civilian system would actually improve either the 
        system or the lot of military members. In addition, 
        military members dissatisfied with any result under 
        either Article 64 or 69, as stated previously, are free 
        to submit their case for review by their respective 
        Boards of Correction of Military Records which has the 
        power to disapprove or modify the sentence adjudged at 
        a court-martial.

         LFinally, a servicemember may always pursue a 
        collateral attack upon a court-martial conviction in 
        federal district court if there is a legitimate basis 
        for doing so.

    The hollowness of proponents' claims that H.R. 569 is 
urgently needed to address a defect in the military justice 
system was, ironically, illustrated by a point that was made in 
the testimony of Dwight Sullivan, an advocate for the bill. He 
made clear that its enactment, in practice, will have a 
negligible impact on the actual number of military petitions 
granted review by the Supreme Court. In his own words, Sullivan 
noted:

        ``the number of granted military certiorari petitions 
        would remain small. Indeed, the percentage of granted 
        military certiorari petitions would likely diminish, 
        since it is likely that fewer cert-worthy issues would 
        be presented by those cases where CAAF denied review 
        than by those cases where CAAF chose to exercise its 
        discretionary jurisdiction.'' (Emphasis added.)

The critical point to note is the concession that the CAAF 
already performs its ``gatekeeper'' role well and that Sullivan 
has no reason to expect it to not do so in the future. It 
grants review to those petitions of convicted servicemembers 
that contain meritorious issues and denies review and 
extraordinary relief to those that are not, in his words, 
``cert-worthy.''
    Sullivan has also observed that 3,473 petitions had been 
denied review by CAAF over the past 5 years. He conceded, 
``[m]ost of those cases, no doubt, contained no important 
issues. But went on to add, ``some of them included unresolved 
constitutional issues that could not be presented to the 
Supreme Court on direct review due to CAAF's denial of the 
petition.'' (Emphasis added.)
    In an effort to compromise and permit direct review of 
constitutional issues by the Supreme Court, the minority 
proposed to agree to an amendment to expand certiorari 
jurisdiction in this class of cases, which are of the greatest 
significance to the accused and the public. The bill sponsor is 
reported to have rejected the offer to compromise.
    It is indisputable that there are differences between the 
civilian criminal justice system and that of the military. The 
myopic focus on one difference without a thorough and proper 
examination of how a given proposed change will likely affect 
the entirety of the military justice system does a disservice 
to our servicemembers and the legislative process.
    Proponents have yet to produce any persuasive evidence that 
servicemembers have been adversely affected by the current 
structure of the military justice system. In the absence of 
actual evidence and a thoughtful review, examination and 
provision of appropriate resources to the departments that will 
be affected as well as the Office of the Solicitor General, we 
must withhold support for what amounts to an ``unfunded 
mandate'' on these entities.
    Commenting on one of the salient differences between the 
civilian and military systems, Major General John D. Altenburg, 
Jr. US Army (Retired), explained:

        ``the proposed bill would not merely offer the 
        individual appellant an enhanced right but would also 
        impose an obligation on the Armed Forces to provide the 
        resources necessary to ensure that the ability to 
        petition from a denial is meaningful. If the bill were 
        truly intended to make servicemembers equal to 
        civilians it would also need to deprive the same 
        servicemembers of the right to assigned counsel and no 
        cost litigation. Civilians must shoulder the costs of 
        their collateral attacks unless they are able to 
        establish their indigence. The last thing the military 
        needs is to invite application of these civilian 
        principles to the practice of military criminal law.''

MG Altenburg added:

        ``Because this bill is not necessary to address any 
        actual injustice or shortcoming in the system, it is 
        important that Congress assess the need for greater 
        resources to the military department Judge Advocate 
        General's Corps. The Congress would then be better 
        situated to ensure that when and if the military 
        departments are required to perform this more demanding 
        mission the Congress will also provide them with the 
        resources to accomplish that mission.''

MG Altenburg also noted that he:

        ``oppose[s] the bill because it offers the illusion of 
        expanded authority to contest courts-martial 
        convictions when the real impact is likely to be 
        inconsequential, encouraging a cynical perspective that 
        the proposed legislation offers the appearance of 
        reform but no enhanced ability to ensure a reliable 
        criminal trial process, a process that already provides 
        Congressionally mandated unique protections that exceed 
        those of civilian jurisdictions.'' (Emphasis added.)

    For the foregoing reasons, we must oppose the changes 
proposed by this legislation to the operation of the 
administration of the military justice system in pursuit of 
what appears to be an ``illusory'' reform.

                                   Lamar Smith.
                                   F. James Sensenbrenner, Jr.
                                   Howard Coble.
                                   Elton Gallegly.
                                   Daniel E. Lungren.
                                   Darrell E. Issa.
                                   Steve King.
                                   Trent Franks.
                                   Louie Gohmert.
                                   Jim Jordan.
                                   Ted Poe.
                                   Tom Rooney.
                                   Gregg Harper.

                                  
