CAAF extends deadline for filing certificate for review in Serianne
We previously discussed NMCCA’s opinion in Serianne and Code 46′s motion to extend the time period in which to file a certificate for review (here and here).
CAAF yesterday extended the deadline for filing a certificate for review until 5 January 2010. United States v. Serianne, __ M.J. ___, No. 10-5001/NA (C.A.A.F. Dec. 15, 2009). The court also noted that “absent extraordinary circumstances, no further extensions of time will be granted.”
And to preempt the inevitable comment, yes, CAAF has the power to set a deadline for a Judge Advocate General to file a certificate for review. Article 144 of the UCMJ provides that CAAF “may prescribe its rules of procedure.” Filing deadlines are just about the archetypal example of a procedural rule, as SCOTUS has recognized many times. See, e.g., Bowles v. Russell, 551 U.S. 205, 211 (2007). (Here’s another good indication — filing deadlines are included in the Federal Rules of Appellate PROCEDURE. See Fed. R. App. P. 4.) So Congress has given CAAF the authority to set a deadline for the filing of a certificate for review. Because it’s a rule-based deadline, as opposed to a statutory deadline, it’s not jurisdictional and CAAF may extend it. But CAAF may also exercise its discretion not to extend it and to reject any certificate for review that isn’t timely filed.
I’ll say it anyway :-)
Article 67(a)(2) expressly obligates the CAAF, in no uncertain terms, to reviews cases sent to it by a JAG. “CAAF shall review the record in all cases reviewed by a CCA which the JAG orders sent to CAAF for review.”
I cannot possibly conceive any legal rule which permits CAAF to escape its clear and unambiguous statutory obligation by whipping up a rule of procedure pursuant to Article 144.
I’ll say what I think is really going on. CAAF (understandably enough, judges are human too) can’t stand the fact that Article 67(a)(2) places the Court ever so slightly subordinate to the JAGs by giving the JAGs the power to tell the Court what cases to review. To gain some superiority, the Court created an arbitrary 30-day hoop so the Court could make the JAGs jump through it. The JAGs dutifully jump through the hoop, and everyone is happy.
The Court picked 30 days for a reason–they know it’s a too-short deadline. In fact, CAAF’s rules may be the only place where the government gets a shorter deadline than a private litigant; the norm is for the government to get more time, sometimes substantially more time.
The real time limit, based upon the text of the UCMJ, is likely 60 days, just as it is for the accused. If no further appellate activity takes place in 60 days, the case becomes final pursuant to Art. 71. I doubt you’ll ever see CAAF give a JAG an extension past 60 days, nor will a JAG dawdle past 60 days, because now the accused can challenge the certification as untimely based upon Art. 71 finality provisions.
One final parting shot. Art. 144, UCMJ, is a very different animal than the Rules Enabling Act, 28 USC 2071-2077. The authority of the Supreme Court to make rules for the conduct of its business and rules of practice, procedure, and evidence under the Rules Enabling Act is different than CAAF’s authority under Art. 144.
So if a filing deadline isn’t a procedural rule, what is it? In Greenlaw, the Supremes refer to “the procedural rules setting deadlines for launching appeals and cross-appeals.” Greenlaw v. United States, 128 S. Ct. 2559, 2569 (2008). In Bowles v. Russell, the Supremes state that “the filing deadlines in the Bankruptcy Rules are ‘”procedural rules adopted by the Court for the orderly transaction of its business.”‘” Bowles v. Russell, 551 U.S. 205, 211 (2007). In Woodford, the Supremes refer to “applicable procedural rules, including deadlines.” Woodford v. Ngo, 548 U.S. 81, 88 (2006).
I could go on and on (and on and on), but I think the point is made. The Supreme Court has repeatedly describing filing deadlines as procedural rules — and it’s difficult to imagine what else they might be. Congress has authorized CAAF to make procedural rules. Congress has therefore authorized CAAF to adopt filing deadlines.
I think we could both go on and on.
I view the current CAAF rule as abrogating Art. 67(a)(2). Whatever powers Art. 144 grants to CAAF, I hardly think it authorizes the Court to preempt a statute. The Rules Enabling Act, on the other hand, is different. That Act requires new rules to be submitted to Congress at least 6 months prior to their entry into force, and Congress can, of course, change them. If Congress does nothing, the new rules take effect, and can abrogate conflicting laws. See 28 USC 2072(b). Art. 144 contains no similar provision dealing with conflicts between rules of procedure and express statutes, nor does it require Congressional review.
I may misunderstand your argument, but to me, the logical conclusion of your argument is that CAAF could, via Art. 144, make a rule of “procedure” requiring an accused to file a petition for grant of review in 30 days, despite Art. 67(a)(3)’s express provision of 60 days. Or CAAF could require all JAG certifications to be filed in person by the actual JAG at the CAAF Clerk’s Office no later than 24 hours after the CCA decision. I don’t think they’d get away with it, though.
It’s a delightful academic argument (and I’m in this fight with insufficient intellectual weaponry, alas), but the reality is that CAAF is never going to deny a JAG’s request for more time than 30 days. Everyone is content with the little hoop-jumping exercise, and it affords us old mostly-dead admirals the opportunity to rant a little. Harumph!
Where’s J’OC? I didn’t get a harumph outta that guy.
It’s very dangerous to guess at unknown people’s motivation. Looking at the 1983 CAAF Rules Advisory Committee’s comments to Rule 19, it appears that the 30-day time limit for JAG certification dates back at least to CMA’s 1977 Rules. I don’t think I have the resources here to check back beyond that. But remember that Article 67(c) used to provide the accused with only 30 days to file a petition for grant of review. So it appears that when CMA first adopted its rule governing the time period for JAG certification, the court adopted the same time limit as that for petitions. Ignoring my own admonition in the first line of this comment, I think it’s a fair assumption that the 30-day deadline had nothing to do with an attempt by CMA judges to assert dominance over the Judge Advocates General. Rather, it probably arose out of simple desire to give each party a comparable time period to seek review of a Court of Military Review (or Board of Review, depending on the rule’s precise age) opinion.
AHA! I found the CMA rules from 1969. They’re in Volume 40 of Court-Martial Reports. Rule 24(a): “The accused shall file a Petition for Grant of Review within 30 days after receipt of the decision of a baord of review in cases appealed to the Court under Article 67(b)(3).” Rule 25: “The Judge Advocate General shall file a Certificate for Review within 30 days after receipt of the decision of a board of review in cases forwarded to the Court under Article 67(b)(2).”
Final thought, at least for now. Bowles v. Russell devotes a great deal of attention to the difference between statutory filing deadlines and rule-based filing deadlines. The accused’s 60-day deadline is statutory and thus jurisdictional, as CAAF held in Rodriguez. CAAF doesn’t have the power to extend it. Nor does CAAF have the power to shorten it pursuant to its Article 144 procedural rulemaking authority, since Congress has expressly legislated a deadline.
By declining to legislate a specific deadline for the filing of certificates of review, Congress left the power to set that deadline with CAAF in the exercise of its Article 144 rule-making authority. That results in a favorable situation for the Judge Advocates General, since CAAF may (and, upon request, regularly does) extend its own rule-made deadline for filing certificates for review.
Could CAAF set a shorter deadline for certifiates for review? Of course. And if the Judge Advocates General didn’t like it, they could lobby CAAF to expand the deadline or they could lobby Congress to set a longer statutory deadline. But the cost of winning a longer statutory deadline would be that it would become jurisdictional and couldn’t be extended.
Now that I’ve had a chance to sleep on it, I think we have had this discussion before. I do believe you demolished me back then, too.
I still think 60 days is a better time period, and more harmonious with the rest of the UCMJ.
If CAAF ever enforces its 30-day rule against any JAG, I will buy you a case of beer, your choice.
In living up to my call sign I will offer this, isn’t there a jurisdictional deadline for filing a certificate in Art. 71? If the case is final at 60 days, the JAG doesn’t have the power to file a Certificate any longer. Thus, CAAF cannot extend the deadline for filing a certificate past 60 days lest it alter the statutorily imposed finality date. I agree they can make it shorter than 60, but not longer.
I have been detained by work. Let me say I endorse basically everything my Brother Cloudesley has said in his post.
Does anyone else find it odd that they cannot give the thumbs-down to Dwight in an effort to hide his comments?
Admiral: harumph!
My Dear Admiral,
If the Supremes ever hold that CAAF can’t set a deadline for the filing of a certificate of review, I shall buy you a gallon of fine rum and we’ll make grog.
Let’s say in a 67(a)(2) case, CAAF denied a Gov enlargement motion, demanded filing w/in 30 days, and then rejected an out-of-time certificate for review. What’s the remedy? A writ to SCOTUS. I think this might actually have a shot.
But in the typical case, where the Gov asks for and is given a reasonable extension of time, it would be well within CAAF’s discretion to reject an out-of-time certificate. Sorry Cloudsely. And there’s no way the Solicitor General would take up a writ in any event under those circumstances.
I think the only way CAAF would abuse its discretion in rejecting a >30 day certificate for review (and surely the only way the Gov could get the SG to buy in to seeking a writ at SCOTUS) would be if CAAF actually required strict compliance with its own Rule (30 days firm). That’s a strange result that shows the Rule probably needs to be amended.
J’OC–Thank you for your kind words. Drinks for all my friends. Yes I am drunk-commenting at an obscene hour of the late night/extremely early morning. It’s a long story. More whiskey!
Does a drunk post by C.S. at 2:47 a.m. earn him an automatic place as a “contributor” on CAAFlog? I certainly think so.
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