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.

Case Links:
AFCCA opinion
• Oral argument audio
CAAF opinion
Blog post: Opinion analysis

17 Responses to “Opinion Analysis: CAAF won’t bend its filing deadlines to suit the Government in United States v. Williams, No. 16-0053/AF”

  1. Cloudesley Shovell says:

    Shall review.
    Here’s what CAAF says in its opinion:  Under Article 67(a), this Court has jurisdiction to hear “cases … which the Judge Advocate General orders sent … for review.” Article 67(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(a) (2012).
    This paraphrase of the law is necessary for the opinion that follows, but it badly, and baldly, misrepresents and avoids the utterly plain command of the statute:  “(a) The Court of Appeals for the Armed Forces shall review the record in—(2) all cases reviewed by a Court of Criminal Appeals which the Judge Advocate General orders sent to the Court of Appeals for the Armed Forces for review.” 10 U.S.C. § 867(a)(2) (2012).
    “Shall review.”  There is no discretion.  The statute commands CAAF to review any case a JAG sends to the Court for review.  JAG certifications are on exactly the same statutory footing as death penalty cases.  When’s the last time CAAF refused to hear a death penalty case because a party was untimely?  The question answers itself.
    Why would CAAF refuse to actually quote the directly relevant statute, relying on a misleading paraphrase instead?  Why would CAAF not devote even a single word of argument and analysis to the “shall review” language of the statute?  Those questions answer themselves as well. 

  2. Passing By says:

    Good questions.   Maybe they will be asked in a motion to reconsider.

  3. LT Weinberg says:

    At the very beginning of its discussion, the court acknowledges that Article 67(a) doesn’t include a time limit and then cites Article 144 for its authority to prescribe procedural rules. I’d also cite RCM 1204 as providing CAAF with authority to prescribe its own rules. So CAAF has both a legislative and executive grant here.
    The opinion does not suggest that the basic legitimacy of the court’s rule was even in question.

  4. Michael Lowrey says:

    And to take LT Weinberg‘s point a step further, when asked during oral argument the government said that it was not arguing that it had an unlimited right to certify cases to CAAF and that it agreed that a 60-day timeline applied to it.

  5. Matt says:

    CS, are you proposing that there can never be a time limit for a TJAG review?  I.E. could a TJAG come back ten years later and order review by CAAF?  I would presume you would disagree with this.  Therefore, CAAF, as authorized by statute, needs to set some time limit to ensure expediency and due process.  If a case is really that important to TJAG, they should petition the court in accordance with the rules.

  6. Zeke Kennen says:

    Those are good points.  They really are.  The answer to why CAAF has imposed a filing deadline not imposed by Art 67 is, of course, partially to be found in Art 144, which says CAAF gets to prescribe its own rules.  The ability to prescribe a rule is meaningless unless it comes with the ability to enforce it.  There is also, uneoubtedly, the fact that the Court has not hidden the fact that it is frustrated with the AF TJAG’s certifications. That was made clear in the dissents filed in LRM v. Kastenberg.  It’s is likely that CAAF’s attitude is a reflection of the fact that certifications in the Air Force more closely resemble government appeals than independent decisions made by a neutral quasi-judicial officer – which is what they’re supposed to be.  In United States v. Mitchell, 39 MJ 131, 139 (CMA 1994), the Court held that when deciding to whether to certify a case, TJAG has “independent judicial or quasi-judicial responsibilities which are so substantially separated from the mainstream of prosecution that it is at least arguable that his office stands entirely apart from either party to the case.”  I’m not sure that’s how certifications are handled in the Air Force.  It seems to me the decision to certify is made after that “quasi-judicial” officer has engaged in ex parte communications with the prosecution, and the certifications tend to be geared to benefit only the prosecution.  It could be that such a process results in the Court losing respect for the certification that results.

  7. Zachary D Spilman says:

    The Air Force Appellate Government Division had to accept the validity of the 60-day deadline because just last year it used that deadline to bookend its untenable assertion that it had the right to violate orders issued by the AFCCA.



  8. LT Weinberg says:

    looks like Cloudesley Shovell got Scilly’d…again (boom roasted)

  9. Cloudesley Shovell says:

    I’ve been patiently waiting for the CAAF website to come back up.  I wanted to see if the briefs for this case were available, and see what the parties said, because CAAF’s opinion is devoid of any substantial legal analysis.  I’m tired of waiting, and JOs have descended to ad hominems (but at least you spelled Scilly correctly), so here goes. Sorry for the length, I don’t have the time or patience to make it shorter.
    The entirety of CAAF’s opinion is: There is no time limit, so we made one, here’s the math.  Ho hum.  Since the court didn’t go there, I was hoping another commenter might have some insight into the law surrounding the authority of an Article I court to create time limits when no such limit was provided for in the statute.  Also, assuming such legal authority exists, what guidance did such legal authority provide in setting limits on the court’s rule-making discretion.  What’s so special about 60 days?  Is it acceptable because it mirrors the time limit for petitions from the accused?  Could the court instead impose a 15-day limit on the JAGs?  5 days? 90 days?  The fourth Monday after the first full moon following the CCA’s decision?  Who knows?  The court didn’t say.  Nobody else seems to know.  There exists, legally speaking, just a rather naked appeal to authority.  Art. 144 says we can make rules of procedure, so we made a time limit.  So there.  Except I don’t know whether a time limit that cuts off a JAG’s statutory power to certify a case to CAAF is procedural or substantive.  It would have been nice to see just a wee bit of legal analysis on that point. 
    I think CAAF recognizes the legal quicksand underlying their opinion in this case.  Thus the weaselly paraphrase of Art. 67(a).  Here’s what CAAF says in its opinion:  Under Article 67(a), this Court has jurisdiction to hear “cases … which the Judge Advocate General orders sent … for review.” Article 67(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(a) (2012).  Of course, they Court doesn’t just “have jurisdiction to hear” such cases, the Court is compelled by law (“shall review”) such cases.  So why did the Court go to some length to avoid those two words, shall review? 
    Commenter Matt hit on the biggest weakness–there must be some limit.  But does statutory authority to create rules of procedure authorize a court to impose a time limit bar to cases it is otherwise required by law to review?  We are back to the same question.  Matt’s right, I do agree that at some point there’s a limit, but what is that limit.  Surely Matt’s hypothetical 10 years later case would never happen.  The case would be final, or should be.
    I did some thinking. I made a phone call.  Of course!  How could I have been so dense.  When in doubt, consult with someone else.  I had my answer in just a couple minutes.
    Is there a statutory time limit for a JAG to certify a case to CAAF?  Yes, I believe there is, one that is on much firmer legal ground than Art. 144.  It’s in Art. 71(c)(1)(A).  “A judgment as to legality of the proceedings is final in such cases when review is completed by a Court of Criminal Appeals and the time for the accused to file a petition for review by the Court of Appeals for the Armed Forces has expired and the accused has not filed a timely petition for such review and the case is not otherwise under review by that Court.”
    I believe this limits a JAG’s time for certifying a case to CAAF.  If the case becomes final by operation of law, it’s done.  CAAF cannot review the case because it’s final.  A JAG cannot certify anything because it’s final. 
    What stops a case from being final under Art. 71 once a CCA has acted?  The accused can file a timely petition.  It can be a death penalty case.  Or a JAG can certify the case.
    There is a wee issue here.  Art. 71 only talks about finality of cases extending to death or punitive discharge.  It says nothing about cases with confinement of more than one year but no punitive discharge, or cases reviewed by a CCA pursuant to Art. 69(d), or for that matter cases where the punitive discharge is disapproved by a CCA.  Those types of cases can be certified to CAAF by the JAG pursuant to Art. 67(a)(2) because they were reviewed by a CCA, but don’t fall strictly within the finality language of Art. 71 since they don’t include death or a punitive discharge as punishment. 
    That being said, Art. 71 at least provides some statutory guidance on finality of cases.  The time limit for Art. 71 finality is the same time limit for an accused to file a petition with CAAF. 
    Here’s where things get interesting.  CAAF’s rules limit the JAG to 60 days from the date of the CCA decision.  But an accused gets 60 days from the earlier of when he is actually notified of the decision or the CCA mails a copy of the decision to him.  Thus, CAAF’s rules, potentially at least, limit JAG certification to a shorter time period than an accused gets.  Potentially at least, CAAF’s rules could cut off JAG certification before a case is final by operation of Art. 71, and could cut off JAG certification before the time period an accused has to file a petition.  Suppose an accused isn’t notified of a CCA decision until two weeks after the date of the decision.  He gets 74 days to file a petition (60 days after he is notified, Art. 67(b)(1)), while the JAG gets only 60 days, per CAAF Rule 19.  Seems odd, no? 
    Assuming for argument’s sake that the law permits a JAG to certify a case any time before it becomes final, when did the AFCCA notify or mail its opinion to Williams?  That starts the clock.  Did the AF JAG certify in time?  Who knows?  I don’t know those facts, and CAAF’s opinion talks only of the date of CCA’s decision, not the actual date of notice to Williams.
    So, my friends, it turns out that there are many more issues at play here than “There is no time limit, so we made one, here’s the math.”  The Air Force’s fumbling of this case gave CAAF a wonderful opportunity to dig into the law a bit and lay a firm foundation for its decision in this case, and set forth a clear rule for future cases.  Unfortunately, CAAF utterly failed to do so.  I stand by my original criticism of the opinion.  No legal analysis should start out misrepresenting a controlling statute with bad paraphrasing.  There are better ways of dealing with the “shall review” language than ignoring it.
    I humbly submit to CAAF:  Please reconsider your Williams opinion.  The development of the law deserves better.
    I humbly submit to the AF JAG:  Submit a reconsideration to CAAF, if the facts and timelines (as discussed above) support it. 
    That is all, carry on.
    Kind regards,

  10. Zachary D Spilman says:


    Here are the briefs:

    • Appellant’s (Government) brief

    • Appellee’s brief

  11. Cloudesley Shovell says:

    Thank you very much.  That was quick.  The Appellee’s brief was superb.  A model of brevity that nailed the issues in 4 short pages.  Superb advocacy by Major Davis; CAAF’s opinion followed his brief almost exactly (though erroneously, for whatever my opinion is worth).
    The Government’s brief at least discussed the “shall review” requirement.  Unfortunately they didn’t talk at all about whether CAAF has the authority under Art. 144 to cut off otherwise mandatory review after 60 days via a procedural rule.  I think that’s still a very ripe issue. 
    Kind regards,

  12. stewie says:

    Maybe I missed it, but you don’t appear to address the pretty relevant and obvious question asked by several commenters CS, which is, do you purport to argue that there are no timelines at all? That a TJAG could come along 10, 20, 30 years later, asked for certification, and CAAF is bound to grant it? Accused’s conviction was overturned by let’s say ACCA. He leaves, goes on to start his life, a year goes by (let’s assume he hasn’t gotten his DD 214 yet, because, to be honest it usually takes 18 months after the appellate process is done). TJAG says, hey, what the heck, let’s certify this old case.  CAAF says, nothing we can do, gotta take it.  You’re down with that? Makes sense to you?
    You make an assumption not supported by the plain reading. “Shall” can mean many things in context. It can mean no matter when certified you have to take the case, sure.  That’s a pretty unreasonable and illogical reading of that though. A more logical reading is that unlike appeals from an appellant, which CAAF has discretion to grant or not, certifications don’t have the same discretion, they have to be taken so long as they are timely. Finality has always been a fundamental principle of jurisprudence. It usually bites the accused in the rear, but sometimes, the government gets bitten too.
    And no JAG certifications are not the same as DP cases. One involves taking a life, one involves a decision by a TJAG to ask for certification. The latter has a lot less harm to society if timelines are strictly imposed than the other one.

  13. Cloudesley Shovell says:

    Did you read my lengthy post?  The one that’s 14+ paragraphs? I don’t think you did.  Go back and take a look.  Tell me what you think.

  14. stewie says:

    I did read it, you don’t answer the question, you just re-asked the question then throw up your hands and say no one knows. With respect, that’s a cop-out.
    Either they do or do not have that power. It’s a binary question. If they do, then when they set it is pretty much a discretionary act and setting it as equal to the time the appellant has is pretty reasonable. If they don’t, then patently absurd things can result.  We don’t tend to favor patently absurd things and Congress usually doesn’t intend patently absurd things.
    So do you believe they do have that power, or do you think they cannot set it for any period of time?

  15. Cloudesley Shovell says:

    Read it again.  I answered the question.  I said there should be a time limit.  Then I explained why the finality provisions in Art. 71 would be a better basis for setting a time limit than just asserting a number based upon the procedural rule-making authority in Art. 144.  (Best of all would be a statutory fix.)  I then repeated my criticism of CAAF’s opinion in this case and gave my reasons for the criticism. 
    The large issue here is that there is a very specific statute that commands CAAF to review cases certified by a JAG.  Art. 67 classifies cases into three types.  (1) death penalty cases; (2) JAG certified cases; and (3) cases where the accused petitions.  The statute itself sets time limits for only the third type, where the accused petitions for review.   As far as the statute is concerned, death penalty cases and JAG certified cases are exactly the same. There is no time limit specified, and the statute says “shall review.”  I’d be amazed if the”death is different” due process jurisprudence somehow requires non death penalty cases to be treated differently, and worse, just so death can maintain its place at the top of the heap, and therefore somehow compels a court to set a time limit.
    I gather from the tone of your responses that you expect me to go out and conduct detailed research on arcane issues, and that my failure to provide specific documented legal reasoning to support my criticism is a “cop-out.”  I’m just some old dead admiral who pops in to comment from time to time on cases that catch my interest for one reason or another.  This one caught my eye for the reasons I’ve restated several times now. 
    I set forth several legal issues I thought the Court should have addressed in its opinion.  Perhaps more importantly, the AF appellate folks should have addressed these issues in their brief.  They didn’t.  It’s not my duty to go do their research for them.  The Court has plenty of clerks for that, not to mention 5 accomplished judges to point those clerks in the right direction.  Same goes for the AF.  They have an appellate shop full of really smart people who can research the issues.
    So, once again, I stand my by criticisms.  It may be an incredibly esoteric point that will never come up again, but that’s no reason to toss off an poorly thought out opinion, because the development of the law deserves better.

  16. stewie says:

    I don’t read it as being quite as clear that you think there should be a time limit, but ok. You first argue you don’t know if there is, then you say there is, then you say there isn’t and CAAF just made one up as you talk about how the statute “sets no time limits.”
    To put it nicely, you are kinda all over the place here.
    Assuming there is one, which I think you agree with?, I will repeat what I said before. Once you admit and agree that there should be some time limit, then CAAF gets to decide when that time limit is so long as it isn’t arbitrary and capriciousness.  And what they settled on is neither. Doesn’t make it poorly thought out, and it doesn’t mean the brief done by the government was poorly thought out.
    They likely thought it was the same 60 days for the accused/appellant for a very good reason. Because it looks a lot more like type (3) then it looks like type (1).
    And there is no difference in time. GOV by it’s very nature gets notice of the decision immediately for legal purposes, the accused does not ordinarily. If the accused/appellant happened to be sitting there and was handed a copy of the decision on the same day it was announced, his/her clock would start at the same time.
    I think at the end of the day, there are better things for dead admirals to get, ahem, “exorcised” over (malapropism intended).

  17. Zachary D Spilman says:

    Cloudesley Shovell and stewie

    Your debate omits the hugely important decision in United States v. LaBella, 75 M.J. 52 (C.A.A.F. Dec. 11, 2015) (CAAFlog case page), that was also authored by Judge Stucky for a unanimous court.

    The first paragraph of Labella states:

    After the United States Air Force Court of Criminal Appeals (CCA) affirmed the findings and sentence in Appellant’s case, he failed to file a timely petition with this Court. He moved the CCA to grant his petition for reconsideration out of time. The CCA granted his motion but denied the petition. Appellant appealed to this Court. We specified an issue, questioning whether this Court has jurisdiction to review Appellant’s case. We hold that the CCA lacked jurisdiction to grant the motion for reconsideration. Consequently, this Court lacks jurisdiction to hear Appellant’s appeal, which is dismissed.

    Slip op. at 1 (emphasis added). 

    In contrast, the first paragraph of Williams states:

    This case presents the question of whether the Government effectively extended this Court’s sixty-day deadline for filing a certificate for review by filing successive motions for reconsideration at the United States Air Force Court of Criminal Appeals (AFCCA). We conclude that the Government’s second motion to reconsider did not constitute a qualifying “petition for reconsideration” of the original decision under this Court’s Rules of Practice and Procedure (C.A.A.F. R.), and thus did not toll the sixty-day deadline for filing a certificate for review. C.A.A.F. R. 34(a). Accordingly, we grant Appellee’s motion to dismiss the certificate as untimely filed.

    Slip op. at 1 (emphasis added).