LAW REVIEW 1253
Military Power of Attorney: A Copy is Not Just as Good as an Original
By Captain Samuel F. Wright, JAGC, USN (Ret.)
5.0—Military Service and Family Obligations
Bartholomew v. Blevins, No. 10-6352 (6th Cir. May 17, 2012).
(a) Instruments To Be Given Legal Effect Without Regard to State Law.— A military power of attorney—
(b) Military Power of Attorney.— For purposes of this section, a military power of attorney is any general or special power of attorney that is notarized in accordance with section 1044a of this title or other applicable State or Federal law.
(d) State Defined.— In this section, the term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and a possession of the United States.
Congress enacted section 1044b of title 10 as part of the National Defense Authorization Act (NDAA) for Fiscal Year 1994. Public Law No. 103-160, section 547, 107 Stat. 1547 (1993). The House Armed Services Committee (HASC) Report that accompanied the legislation described this section’s purpose as follows:
The past experience of service members and their dependents who executed powers of attorney in advance of recent military operations has shown that some states and territories have refused to honor these powers of attorney because they were not executed in accordance with state or territorial legal requirements. The failure to honor these documents has created substantial hardships for military families.
This section would provide that a power of attorney signed by a person authorized to receive [military] legal assistance and notarized by a person authorized under section 1044a of title 10, United States Code, to perform notarial acts shall be recognized as valid and given full effect by those to whom such a power of attorney is presented.
Latonya Bartholomew is on active duty in the United States Air Force. She executed a military power of attorney (MPOA) designating her husband (Lyndon Bartholomew) as her attorney-in-fact during her overseas deployment. In March 2010, Lyndon presented a photocopy of the MPOA to the Fayette County (Kentucky) Clerk’s Office for the purpose of recording an original deed and mortgage in the county’ real property index records. The clerk’s office rejected the copy as inauthentic and refused to record the deed and mortgage. As a result of the inability to record the deed and mortgage, the Bartholomews breached a loan agreement with a lender, resulting in inability to refinance or sell the property.
The Bartholomews sued the clerk in the United States District Court for the Eastern District of Kentucky, seeking a preliminary injunction requiring the clerk to accept a copy of the MPOA in lieu of the original. District Judge Joseph M. Hood declined to grant the injunction, ruling that 10 U.S.C. 1044b did not require the clerk to accept a copy. The Bartholomews filed a petition for a writ of mandamus with the United States Court of Appeals for the Sixth Circuit. A motions panel of the 6th Circuit denied the Bartholomews’ request for a writ of mandamus in January 2011, but the Bartholomews continued their appeal.
With the assistance of a military legal assistance attorney, Latonya Bartholomew prepared and signed a new MPOA original and sent it to her husband. He received it and used it to record the deed in April 2011. The clerk then asked that the appeal be dismissed as moot. In August 2011, a 6th Circuit motions panel denied that motion, because the Bartholomews sought compensatory and punitive damages and injunctive relief.
In our federal appellate system, an appeal from a federal district court is heard by a three-judge panel of the appropriate circuit. On May 17, 2012 the panel decided this case by a 2-1 vote. The majority held that 10 U.S.C. 1044b does not require a government official to accept a copy of a military power of attorney. There are two more steps in the federal appellate process, if the Bartholomews choose to pursue them. They can ask the 6th Circuit for rehearing en banc. If that request is granted, there will be new briefs and new oral arguments, and all of the active judges of the 6th Circuit (those who have not taken senior status) will hear and decide the case.
If the Bartholomews choose to bypass asking for rehearing en banc, or if the 6th Circuit denies the en banc request, or if the 6th Circuit grants rehearing en banc and then affirms the panel decision, then the Bartholomews can petition the United States Supreme Court for a writ of certiorari (discretionary review). If four or more of the nine justices vote for certiorari, the case will be heard by the Supreme Court during the term that starts in October 2012. If fewer than four justices vote for certiorari, the case then becomes final. We will keep the readers informed of future developments (if there are any) in this important case.
I hope that Congress will amend 10 U.S.C. 1044b to make clear that a copy of an MPOA is just as good as an original. In the meantime, what we can learn from this case is that before deploying the service member should execute multiple signed and notarized originals of the MPOA.
If you are at sea or in a place like Afghanistan, either as a mobilized reservist or as a regular, life at home does not stop while you are gone, but you may be out of easy communication for days or weeks at a time, and when you are deployed to the tip of the spear you should be devoting your full time and attention to your military duties. Your spouse or some other trusted person will need a power of attorney to act on your behalf during your absence. I urge you to ensure that the person who will be acting in your behalf has multiple original powers of attorney, properly signed and executed and drafted, to facilitate this process.
Preparing powers of attorney, wills, and other important documents is part of the principal day-to-day activity of military legal assistance offices. If you are the commanding officer of a National Guard or Reserve unit that will be mobilizing, please make arrangements for a legal assistance attorney, or possibly a team of legal assistance attorneys, to advise members of your unit and to prepare and execute these important documents, during the weeks leading up to mobilization. I have heard of instances where judge advocates (reserve and active) have been tasked to prepare these documents on card tables on the tarmac of the airport, for service members who are about to board the aircraft to fly to Southwest Asia. I submit that this process works much better when it is not done in such a rushed manner.