The Limits of the "Circuit" "Split" Analogy

Michel's post below predicts  a "rare military/civilian circuit split." We often hear people talk this way, but the Begani  case illustrates the limits of that analogy. "Split" normally implies co-equal courts, neither of which can bind each other with legal holdings (e.g., the 9th Circuit does not determine law in the 8th), and neither of which can review the other's decision (e.g., a loser in the 8th cannot appeal to the 9th). With respect to CAAF, the former is true but not the latter. CAAF is certainly not bound by Judge Leon's holding regarding Article I, but Judge Leon has the power to vacate the same court-martial conviction that CAAF previously affirmed. The reason for this is of course habeas corpus review of courts-martial convictions (for prisoners) or federal question review (for non-prisoners). 586 F.3d 28. Thus, even if the "split" occurs and even if the Supreme Court refuses to intervene, convicted Fleet Reservists can eventually vindicate their Article I claim in federal court (assuming Leon's ruling is upheld).

Brenner Fissell

EIC