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0 Comments Here is a link to yesterday’s Federal Register notice on the Proposed CAAF Rules changes. The proposal includes a relaxed filing requirement for student amici briefs and extension of the certificate of review filing deadline to 60 days to match the petition for review deadline.
CAAF has repeatedly split over the signficance of an appellant (or appellate defense counsel, as the case may be) blowing a filing deadline. A majority consisting of Judges Erdmann, Stucky, and Ryan have consistently barred the appellant from pursuing an appeal or petition for extraordinary relief in such cases. Chief Judge Effron and Judge Baker have been more willing to cons9ider untimely appeals and petitions. That pattern repeated itself on Thursday.
In United States v. Rittenhouse, 68 M.J. 156 (C.A.A.F. 2009), CAAF dismissed the petition for grant of review due to its untimeliness, citing United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009). Chief Judge Effron concurred in the result, noting that the Judge Advocate General of the Army could still certify the case to CAAF. Judge Baker dissented. CAAF denied a reconsideration petition in August 2009. United States v. Rittenhouse, 68 M.J. 193 (C.A.A.F. 2009).
In December 2009, Rittenhouse filed a petition for writ of error coram nobis, arguing that his appellate defense counsel’s ineffectiveness was to blame for his late filing. Rittenhouse v. United States, 68 M.J. 411 (C.A.A.F. 2009). In May 2010, CAAF held that because coram nobis jurisdiction springs from a previous exercise of jurisdiction, it couldn’t grant coram nobis relief, since it had never had jurisdiction over the case. Rittenhouse v. United States, 69 M.J. 173 (C.A.A.F. 2010) (summary disposition).
On 1 March 2011, the Supreme Court decided Henderson v. Shinseki, 131 S. Ct. 1197 (2011), which held that the 120-day deadline for filing an appeal with the United States Court of Appeals for Veterans Claims isn’t jurisdictional. On 16 March 2011, Rittenhouse filed a second petition for writ of error coram nobis with CAAF, presumably arguing that under Henderson, Article 67′s 60-day deadline isn’t jurisdictional either. Rittenhouse v. United States, 70 M.J. 29 (C.A.A.F. 2011). CAAF ordered the government to show cause why the petition shouldn’t be granted. Rittenhouse v. United States, 70 M.J. 35 (C.A.A.F. 2011). On Thursday, CAAF denied the second coram nobis petition by a 3-2 vote.
The three-judge majority announced the petition’s denial without explanation. Chief Judge Effron, joined by Judge Baker, dissented. Chief Judge Effron reasoned that Henderson indicated that CAAF need not have concluded that pursuant to Bowles v. Russell, 551 U.S. 205 (2007), a failure to satisfy the 60-day petition deadline deprives CAAF of jurisdiction. Chief Judge Effron explained:
Rodriguez interpreted Bowles as establishing a “statutory/rule-based distinction,” requiring treatment of the filing period under Article 67 as a mandatory and jurisdictional limitation that could not be waived, irrespective of whether the petition could demonstrate good cause for a belated filing. [67 M.J.] at 113, 116. Subsequently, however, the Supreme Court emphasized that Bowles did not establish a rigid statutory/rule-based distinction for purposes of determining whether a time period must be treated as jurisdictional and nonwaiveable. See Henderson v. Shinseki, 131 S. Ct. 1197, 1203 (2011).
Henderson , which underscores the need for a more nuanced approach to the issue of whether a statutory time period should be treated as jurisdictional, demonstrates that our Court was not compelled to overrule our longstanding interpretation of Article 67. Henderson considered whether a military veteran was jurisdictionally barred, under Bowles, from raising a claim before the United States Court of Appeals for Veterans Claims because the 120-day filing requirement was established by statute. The Supreme Court in Henderson explained that the consequences of a jurisdictional interpretation are so drastic that a rule should not be labeled jurisdictional “unless it governs a court’s adjudicatory capacity, that is, its subject-matter or personal jurisdiction.”Id. at 1202. The Court noted that filing deadlines “are quintessential claims-processing rules” and they “should not be described as jurisdictional” unless Congress has decided to establish jurisdictional consequences to such a rule. Id. at 1203. The test, under Henderson , is whether “there is any ‘clear’ indication that Congress wanted the rule to be ‘jurisdictional.’”Id. (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 515-16 (2006)).
In Henderson the Supreme Court considered the text and the context of the applicable statute, and concluded that Congress had not intended the legislation to carry jurisdictional consequences. Id. at 1203-06. In reaching this conclusion, the Court noted that the statute at issue addressed review of an administrative decision rather than review of a court-based decision, that it concerned special congressional solicitude for veterans’ benefits, and other unique aspects of the statutory framework. Id.
The question before us is not whether the similarities or differences between Article 67 and the statute at issue in Henderson compel a particular interpretation of Article 67. The question posed by the present appeal is whether our Court in Rodriguez correctly interpreted Bowles as establishing a statutory/rule-based distinction that required us to abandon our longstanding, consistent interpretation of Article 67. In that regard, Henderson underscores that the Supreme Court has not adopted such a distinction, and that the Supreme Court has instead emphasized that filing timelines should not be interpreted as jurisdictional absent a “clear indication” that Congress intended such a drastic result.
Congress, in the UCMJ, has required the government to provide appellate counsel for an accused servicemember under Article 70, UCMJ, 10 U.S.C. § 870 (2006). Rodriguez, which treats the filing period as jurisdictional, precludes waiver under any circumstance. Under Rodriguez, even if a servicemember can demonstrate that a belated filing resulted from deficient performance by a government-furnished attorney, the appeal must be dismissed. Rodriguez closes the courthouse door to members of the armed forces, such as the petitioner in this case, regardless of whether the servicemember can demonstrate good cause for a belated filing. Our longstanding interpretation of Article 67 reflects that there is no “clear indication” that Congress intended such a drastic result. Accordingly, I respectfully dissent.
As we’s discussed before, the Supremes don’t have statutory cert jurisdiction to review this decision because the statute governing SCOTUS review of CAAF cases provides such jurisdiction in petition for extraordinary relief cases only where CAAF has granted relief.
On 19 May, CAAF directed that starting on 29 May, no filing — paper or electronic, brief or joint appendix — may contain any of the following:
(1) Social Security Numbers. If necessary, use last 4 only.
(2) Names of minor children. If necessary, use initials.
(3) Dates of birth. If necessary, use year only.
(4) Financial Account Numbers. If necessary, use last 4 only.
(5) Home addresses. If necessary, use city and state only.
(6) Names of “Complainants and Victims in Sex Offense Cases.” If necessary, use initials.
There’s a discussion underway in the comments to a post below about use of the term “victim,” which appears to prejudge guilt. CAAF avoided that issue by referring to “Complainants and Victims.”
h/t: ERF
Comments Off CAAF’s website has this link to two proposed rule changes that have been published in the Federal Register. One changes references to “U.S. Marshals” in Rule 9(e) to “Court security personnel.” The other changes Rule 41(b)’s authority for CAAF’s contempt power from 18 U.S.C. 401 to the recently expanded Article 48, UCMJ.
CAAF today announced a change to Rule 30A, governing providing new facts to CAAF. The new rule will take effect on 1 August. Its text is here.
CAAF’s web site links to this announcement in today’s Federal Register that CAAF is considering expanding e-filing.
Under the new proposal, almost everything except joint appendixes and appendices to supps that exceed 50 pages could be e-filed. (Certain administrative filings, such as applications for admission to the bar and petitions filed by the accused would still be filed in hard copy.)
This is a wonderful proposal that will save lots of time, lots of trees, and some gas as well.
Any comments to the proposed rule change must be made within the next 30 days. Comments can be submitted here.
CAAF’s web site links to a notice of proposed rule change in today’s Federal Register. The rule change would provide welcome guidance concerning how to attempt to provide CAAF with new facts when necessary and the standard CAAF will use to assess such attempts. Rule 30A(a), as amended, would read:
(a) General. The Court will normally not consider any facts outside of the record established at the trial and the Court of Criminal Appeals. Requests to consider factual material that is not contained in the record shall be presented by a motion to supplement the record filed pursuant to Rule 30. The motion shall include statements explaining why the matter was not raised previously at trial or before the Court of Criminal Appeals and why it is appropriate to be considered for the first time in this Court. Motions filed pursuant to this Rule will be granted only for good cause shown.
Comment: The proposed change establishes a procedure for properly presenting a request to the Court to consider evidence that is not in the record. The rule requires a party to explain in a motion why the Court may consider the evidence although it was not considered previously and is not part of the record. The rule also contains a standard for granting motions under the rule.
We previously discussed three CAAF rule changes. CAAF adopted the proposed rule changes yesterday. The new rules, which take effect 1 July, are available here.
Supps and answers go from the longer of 30 pages or 14,000 wordsw to 25 pages or 9,000 words. In practice, this means shrinking the max size of a supp prepared in Courier New from about 62 pages to about 41 pages. The new word limitation is the same as that for cert petitions filed at the Supremes. Replies shrink from 15 pages or 7,000 words to 10 pages or 4,000 words.
Supps in cases returning to CAAF following remand now must specify any issue on which certiorari would be sought, signaling a change to CAAF’s previous practice of automatically granting review of returning cases.
And Grostefon submissions to CAAF will now be capped at 15 pages. The new Rule 21A also prescribes a format for presenting Grostefon issues.
Here’s a link to NIMJ’s response to CAAF’s proposed rule changes. The response focuses on the question of whether SCOTUS review is limited to particular issues upon which CAAF grants review or applies more broadly to any issue in a case in which CAAF grants review.
CAAF’s home page has a link to this Federal Register notice of proposed CAAF rules changes.
The first rule change would reduce the size of supps from 14,000 words to 9,000 words — or from about 62 pages to about 41 pages. As the comment to the proposed change notes, this would make the word limit the same as for Supreme Court cert petitions. The comment also notes that “[i]n exceptional cases, counsel would still be able to request to exceed the limit by motion under Rule 30.” While I fairly recently filed a 5-issue supp that exceeded 9,000 words — and I’m aware of a Navy-Marine Corps 6-issue supp that exceeded 9,000 words — I doubt there are many such cases. And it’s difficult to argue that more space is needed in a supp than in a Supreme Court cert petition.
The second rule change would apply to cases that CAAF grants and then remands. CAAF’s current practice appears to be to automatically grant review in such cases if they return to the court, thus opening the door to a cert petition. CAAF appears to be contemplating narrowing the opening to potential Supreme Court review of such remand cases. Under the new rule, the supp to CAAF would have to identify any issue on which the appellant would like to seek cert.
The third rule change applies to Grostefon submissions. The proposed rule would cap all Grostefon submissions — including counsel’s treatment of the issues, material submitted by the client, and Grostefon matters submitted within the 30-day window following the supp’s filing — at 15 pages. The rule would also prescribe a format for counsel to list the Grostefon issues raised by the client.
[In case any of our trial-level readers aren't familiar with Grostefon, it's a case that requires appellate defense counsel to raise any issue the client would like raised, even if the issue is frivolous in counsel's view. See United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). Under current practice, clients sometimes have their counsel submit literally hundreds of pages of Grostefon material, though usually Grostefon submissions are fairly compact.]
NIMJ has posted this link on its web site providing a current version of CAAF’s rules as revised through Tuesday of this week.
The bad news: CAAF today issued an order changing the deadlines for filing supps. Starting on 1 September, supps will be due in conjunction with the petition where the petition is filed by counsel and 20 days after filing of the petition if filed by the accused. In those rare instances where appellate government counsel file an answer to the supp instead of a 10-day letter, the answer will be due in 20 days. I predict a bumper crop of CAAF petitions filed on 31 August.
The good news: Also starting on 1 September, CAAF will allow electronic filing of petitions for grant of review filed by counsel, supps, answers, and motions about supps and answers.
