Opinion Analysis: CAAF won’t bend its filing deadlines to suit the Government in United States v. Williams, No. 16-0053/AF
CAAF decided the certified Air Force case of United States v. Williams, 75 M.J. 244, No. 16-0053/AF (CAAFlog case page) (link to slip op.) on Tuesday, May 3, 2016. Concluding that the Air Force Appellate Government Division’s successive motions for reconsideration by the Air Force Court of Criminal Appeals did not toll the 60-day deadline in CAAF’s rules for the filing of a certificate for review, CAAF dismisses the certificate for review as untimely filed.
Judge Stucky writes for a unanimous court.
A general court-martial composed of members with enlisted representation convicted Senior Airman Williams of rape, contrary to his pleas of not guilty. The approved sentence included confinement for two years, reduction to E-1, and a bad-conduct discharge. On appeal, however, the Air Force CCA reversed the conviction after finding that the military judge improperly admitted evidence of a prior alleged sexual offense under Military Rule of Evidence 413. The CCA’s issued its decision on June 19, 2015.
On July 20, 2015, the Government filed a motion for reconsideration with the CCA. That motion was denied four days later. The Government then filed a second motion for reconsideration on August 3, 2015, challenging the denial of the first motion and “asking the AFCCA ‘to reconsider … its order dated 24 July 2015.'” Slip op. at 2. The CCA denied the second motion on August 10, 2015. Almost two months after that – and 75 days after the first motion for reconsideration was denied – the Judge Advocate General of the Air Force certified the case to CAAF. Williams then moved to dismiss the certification on the basis that it was untimely.
Article 67 gives CAAF jurisdiction over three kinds of cases: Capital cases, cases that a Judge Advocate General orders sent to the court for review (known as certified cases), and cases in which the court grants review for good cause shown upon petition of the accused. Article 67 also sets a 60-day jurisdictional deadline for an accused’s petition for review, but no time limit for a JAG’s certification. However, CAAF’s rules (established pursuant to Article 144) set a 60-day non-jurisdictional deadline for certification by a JAG. Both the petition deadline and the certification deadline begin on the later of the date of the CCA’s decision or its action on a petition for reconsideration.
Writing for a unanimous court Judge Stucky finds that the Air Force JAG’s certification of Williams was untimely because the Government’s second reconsideration motion was not a petition for reconsideration of the substantive decision of the CCA, but rather was a petition for reconsideration of the CCA’s denial of the Government first request for reconsideration.
Judge Stucky’s opinion summarizes CAAF’s rules as requiring:
that a certificate of review be filed sixty days after an AFCCA decision, unless “a petition for reconsideration is timely filed.” If this triggering event occurs, then the JAG has sixty days to file from “the date of final action on the petition for reconsideration.”
Slip op. at 3 (quoting CAAF R. 34(a)). The Government responded to the motion to dismiss the certification in this case by asserting that its second motion for reconsideration extended the filing deadline under CAAF’s rules. But CAAF unanimously rejects the Government’s contention:
We disagree. The most straightforward reading of C.A.A.F. R. 34(a)’s phrase “a petition for reconsideration” is that it means a petition for reconsideration of the AFCCA’s original decision. C.A.A.F. R. 34(a). The rule’s underlying subject is the original decision of the AFCCA, and “the date of such decision.” Id. The rule contemplates, quite simply, a petition for reconsideration of the substantive decision at issue—not petitions to reconsider the denial of a prior petition for reconsideration.
Slip op. at 4.
Judge Stucky then goes one step further, explaining that the Government’s second motion for reconsideration also failed as a challenge to the CCA’s substantive decision because it was filed past the CCA’s 30-day deadline for requests for reconsideration:
Although the Government had only thirty days to seek reconsideration of the substantive decision under AFCCA R. 19(b), it avoided application of this rule by styling its second motion for reconsideration—filed August 3, 2015, forty-five days after the AFCCA’s original decision—as a motion to re-consider the July 24, 2015, denial of the first motion. The Government was thus able to argue that it had complied with the AFCCA’s filing deadlines. But now one technicality confronts another. The very fact that allowed the Government’s second motion for reconsideration to avoid the AFCCA’s filing deadlines is precisely what makes that motion fail C.A.A.F. R. 34(a)’s test. Because the second motion for reconsideration did not seek reconsideration of the AFCCA’s original decision, it does not constitute a qualifying “petition for reconsideration” under C.A.A.F. R. 34(a).
Slip op. at 5. Judge Stucky then concludes with the observation that CAAF “see[s] no basis for bending the requirements of this Court’s filing deadlines.” Slip op. at 5. As a result the certification is dismissed and the CCA’s decision reversing the conviction stands.
The Government is not entirely without recourse. Because CAAF’s rules are not a jurisdictional time limit on certification of a case, the Government could ask the court to permit a tardy renewed certification here. However, CAAF is not a court of equity, and considering the Air Force Government Appellate Division’s opposition to the petition for review in United States v. LaBella, 75 M.J. 52 (C.A.A.F. Dec. 11, 2015) (CAAFlog case page) (in which CAAF held that a CCA could not extend CAAF’s jurisdiction by entertaining a late petition for reconsideration), I think it unlikely that CAAF will be a court of charity for the Air Force in this case.