CAAF’s online daily docket still hasn’t been updated since 1 July. But here’s what we know. On 9 June, Code 46 moved to extend the period for the Judge Advocate General of the Navy to file a certificate of review challenging NMCCA’s ruling in United States v. Wheeler, 66 M.J. 590 (N-M. Ct. Crim. App. 2008). United States v. Wheeler, __ M.J. ___, No. 08-5007/NA (C.A.A.F. June 9, 2008). On 23 June, CAAF granted the request in part. In bold, underlined type, CAAF noted that it granted the enlargement “only up to and including July 1, 2008, and absent extraordinary circumstances, no further extension of time will be granted in this case.” United States v. Wheeler, __ M.J. ___, No. 08-5007/NA (C.A.A.F. June 23, 2008).
An anonymous commentator to a recent post on Wheeler reports that “[t]he government asked for another 15day continuance to decide if they want to certify.” Unfortunately, I don’t know how Code 46 addressed CAAF’s warning that only “extraordinary circumstances” would justify a further enlargement. I would be grateful to anyone who could e-mail me a scanned copy of Code 46’s submission. (As always, you can reach me at firstname.lastname@example.org.)
Some individuals have been advancing the argument that because Article 67 of the UCMJ doesn’t impose a time limit within which a Judge Advocate General can certify a case, there is no time limit. Under this argument, apparently a Judge Advocate General could still certify a Board of Review decision published in 1 C.M.R. The argument is, of course, rubbish. Article 144 of the UCMJ authorizes CAAF to “prescribe its rules of procedure.” CAAF Rule 19(b), setting the time limits within which a Judge Advocate General may certify a case, is such a procedural rule.
If CAAF were to dismiss a certificate and the Solicitor General were to file a petition for certiorari challenging CAAF’s authority to dismiss it, the time limit for doing so would be set by a Supreme Court rule. See 28 U.S.C. § 2101(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.”); see also S. Ct. R. 13.1. But, of course, the SG never would file such a cert petition because courts routinely set filing deadlines by rule and the Supreme Court wouldn’t disturb this exercise of CAAF’s delegated authority to prescribe procedural rules.