Congratulations to Dwight Sullivan (founder of this blog) and Eugene Fidell on publication of the 16th Edition of their Guide to the Rules of Practice and Procedure for the United States Court of Appeals for the Armed Forces.
In a notice published in the Federal Register today and available here, CAAF announces two proposed changes to its Rules. The changes involve Rule 3A(a), addressing senior judges (former CAAF judges), and Rule 21(a), addressing petitions for review filed by servicemember appellants. Public comments are due by June 2, 2017.
The proposed change to Rule 21(a) is particularly noteworthy, as it appears to be an effort to end a practice by some (or all) of the Appellate Government Divisions:
CAAF proposed two sets of rules changes in the past few months. The first, announced in October (discussed here), changed the typeface and font size for briefs. The second, announced in November (discussed here), removed references to supervisory powers of the court over general military justice matters and also made changes to the rules for amicus briefs.
In an order issued today (available here), CAAF approves the changes to the typeface and font size and also the removal of references to supervisory powers. The court has not yet acted on the changes to the rules regarding amicus briefs.
Notably, the changes approved today will not take effect until February 1, 2016.
The first two changes remove from Rules 5 and 21 references to any supervisory powers of the court over general military justice matters. A comment explains that:
Documents have recently been filed with the Court citing to the supervisory power noted in the Court’s Rules 5 and 21(b)(5)(F). This is somewhat problematic because the references to supervisory power in these rules predate the Supreme Court’s decision in Clinton v. Goldsmith, 526 U.S. 529 (1999), which rejected an expansive view of the Court’s supervisory power over all aspects of military justice.
The third change is to Rule 26, addressing amicus curiae briefs. It includes the following new language:
(b) All motions and briefs filed under Rule 26(a)(3) must contain a statement of the movant’s interest and why the matters asserted are relevant to the disposition of the case. Amicus curiae briefs filed pursuant to Rule 26(a)(3) that bring relevant matter to the attention of the Court not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored. The motion must also provide a statement as to whether the parties consent to the filing of the amicus curiae brief. Only an attorney admitted to practice as a member of the Bar of the Court or an attorney appearing pro hac vice may file an amicus curiae brief.
A comment notes the new requirement for party consent (for a brief other than one filed by an appellate division or by invitation) in addition to the court’s permission to file, and explains that:
The proposal operates differently from the practice in the Article III courts of appeal in that even with the consent of the parties, an amicus filer must still ask for leave of the Court to file an amicus curiae brief. In this way, the Court retains the authority to decide all requests to file amicus briefs based on its own determination that the brief will be helpful. It is believed that party consent may not be an adequate filter that ensures that amicus briefs are helpful to the Court. While party consent is not a guarantee that the brief will be accepted, lack of consent is not a guarantee that it will be rejected.
In a notice published in the Federal Register on Wednesday (available here), CAAF announces a proposed rules change to the typeface for pleadings. Rule 37(a) will be changed to read:
all pleadings or other papers relative to a case shall be typewritten and double-spaced, printed on one side only on white unglazed paper, 8.5 by 11 inches in size, securely fastened in the top left corner. All printed matter must appear in proportional type, e.g., Times New Roman. The use of 14-point type is required. Margins must be at least 1 inch on all four sides. Page numbers may be placed in the margin but no text may appear in the margin.
(emphases added). The current Rule 37(a) requires a 12-point monospace font (such as Courier New).
Since September 1, 2008, CAAF’s term of court has run from September 1 through August 31.
Prior to that, CAAF’s term began on October 1 and ended on September 30 (with a transition term that began on October 1, 2007, and ended on August 31, 2008, after only 11 months).
Now, according to this order posted on the court’s website, CAAF is returning to an October term:
(a) the current Term of Court will end on September 30, 2016; and
(b) The Term of Court beginning on October 1, 2016, and each Term of Court thereafter, will be a 12-month term beginning on October 1 of each year and ending on September 30 of the following calendar year, and will be designated as the October Term of Court of the year in which the term begins.
On Thursday, December 19, CAAF granted review and ordered expedited briefing in the Air Force case of United States v. Janssen, No 14-0130/AF, with the following issue:
Whether the civilian judge on Appellant’s Air Force Court of Criminal Appeals panel was properly appointed. See U.S. Const. Article II, Section 2, Clause 2; 10 U.S.C. § 113 (2012); 5 U.S.C. § 3101 (2012).
We’ve been following this issue for a few months (since at least this September post, and most recently this post on Dec. 4, and this post on Dec. 5). Appellate Military Judge Lawrence M. Soybel, who retired from the Air Force, was appointed to the Air Force Court of Criminal Appeals as a civilian. For reasons not yet clear, there were problems with the initial appointment and the Secretary of Defense re-appointed Mr. Soybel on June 25, 2013. Cases in which Judge Soybel participated before the re-appointment have received reconsideration by the CCA or remand from CAAF.
Janssen is one such case. The AFCCA first decided Janssen in May, with a per curiam opinion by a three-judge panel that included Judge Soybel (link to slip op.). The AFCCA then reconsidered the case in July before the same panel, issuing a second per curiam opinion with a footnote that stated, “Upon our own motion, this Court vacated the previous decision in this case for reconsideration before a properly constituted panel. Our decision today reaffirms our earlier decision” (link to slip op.).
CAAF has scheduled the case for oral argument on January 28, 2014.
In other news from CAAF, former-Sergeant Hasan Akbar, who attacked fellow soldiers in Kuwait in 2003, killing two and wounding 14 others, and who was sentenced to death in 2005, has moved for leave to exceed the court’s page limit for a brief:
No. 13-7001/AR. U.S. v. Hasan K. AKBAR. CCA 20050514. On consideration of Appellant’s motion to file a brief in excess of fifty pages, the Court notes that Rule 24(b) of its Rules of Practice and Procedure provides that briefs filed with the Court shall not exceed thirty pages, unless otherwise authorized by order of the Court or by motion of a party granted by the Court. In addition, Rules 24(c) provides a type-volume limitation providing that briefs are acceptable if they contain no more than 14,000 words or 1,300 lines of text.
Appellant’s motion requests permission to file a brief in excess of fifty pages, and proposes to submit a brief in excess of 500 pages. It is ordered that on or before January 3, 2013, Appellant supplement his motion with a review of federal circuit courts’ capital case exceptions to the analogous page limitation under Rule 32(a)(7) of the Federal Rules of Appellate Procedure, if any, including any Supreme Court exceptions to its own page limitations in the context of capital cases.
(emphasis added). The Army CCA affirmed the death sentence in 2012 (discussed here). Akbar is one of only six military death row inmates. The whole list (in the order sentence was adjudged) is: Gray, Loving, Akbar, Witt, Hennis, and Hasan. Of note, the death sentence in Witt was set aside by the CCA in August (discussed here), but the court has granted a Government motion for reconsideration (discussed here).
Finally, CAAF has increased the fee to join the bar to $50 (link to notice).
That the portion of the Order of the Court of March 15, 2012, regarding the amendment of Rule 19(b), Rules of Practice and Procedure, is hereby rescinded pending further order of the Court. The portion of the Order regarding Rules 13A and 27(a)(4) remains in effect.
The change had extended the amount of time the government has to file a certificate of review from 30 to 60 days after a decision of a Court of Criminal Appeals.
CAAF made three rules changes this past week:
1. It rescinded rule 27(a)(4), which stated: “The Court will not docket petitions for extraordinary relief submitted by means of an electronic message or by facsimile without prior approval of the Clerk.”
2. It extended the time limit for the filing of an amicus brief by a law student to “no less than 14 days before the scheduled date for oral argument” (new Rule 13A(h)).
3. It extended the amount of time the government has to file a certificate of review from 30 to 60 days after a decision of a Court of Criminal Appeals (Rule 19(b)).
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.
A Dec. 5, 2011 Daily Journal entry refers to the case of In re Brissette v. Norman. This is incorrect and reflects a misunderstanding of the form set forth in Rule 28(a). “In re Jones” should be used for petitions for original writs, i.e., those in which the writ practice begins at CAAF. “Jones v. Smith” should be used for writ appeals where, of course, the writ was first sought fom the CCA. It confuses things to combine both formats (and there are important differences between the two types of proceedings). The rule tries to explain this by means of bracketed words, but it’s a bit cryptic and hasn’t prevented this basic mistake from happening from time to time. I recommend a rule change to make it clearer.
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.