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On the heels of that decision comes Friday's D.C. U.S. district court opinion dealing with the proper scope of review for a collateral challenge to a court-martial conviction. Oppermann v. United States, Civil Action No. 06-1824(EGS), 2007 U.S. Dist. LEXIS 43270 (D.D.C. June 15, 2007).
The law in this area is a complete mess. As I discuss in my upcoming article in the Military Law Review, here's the governing standard in the 10th Circuit, which due to the USDB's location probably handles far more such collateral challenges than any other circuit:
If the grounds for relief that Petitioner raised in the district court were fully and fairly reviewed in the military courts, then the district court was proper in not considering those issues. Likewise, if a ground for relief was not raised in the military courts, then the district court must deem that ground waived. The only exception to the waiver rule is that a petitioner may obtain relief by showing cause and actual prejudice.
Roberts v. Callahan, 321 F.3d 994, 997 (10th Cir.), cert. denied, 540 U.S. 973 (2003).
That hardly seems like a standard likely to promote justice. Indeed, the 10th Circuit's case law is so bad that if an issue is raised to a CCA and the CCA simply blows it off in a one-liner, it is considered fully and fairly reviewed and not susceptible to substantive Article III review. See Watson v. McCotter, 782 F.2d 143, 145 (10th Cir. 1986) ("When an issue is briefed and argued before a military board of review, we have held that the military tribunal has given the claim fair consideration, even though its opinion summarily disposed of the issue with the mere statement that it did not consider the issue meritorious or requiring discussion.").
While Sacramentum and I appear to disagree about the proper scope of Article III courts' collateral review of court-martial convictions, we seem to agree that the law needs further clarification. Of course, after the Supreme Court's truly frightening and unjust ruling on Friday in Bowles v. Russell, No. 06-5306, maybe I should be content to let sleeping dogs lie and be grateful that at least the Third Circuit and the D.C. Circuit allow for more meaningful Article III review of court-martial convictions than does the 10th Circuit.
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In the abstract, I think the result in Bowles v. Russell is probably correct. The statute gives a deadline for filing the appeal -- 30 days -- and then allows a judge to extend the deadline for 14 days from the date the extension is granted. There does not seem to be an exception for good cause shown. That suggests to me that Congress clearly meant to limit the time for granting such appeals. I wouldn't call it "jurisdictional," but I can appreciate the majority's refusal to grant the lower court discretion to exceed the limits of the statute when Congress has not granted such discretion. I find the dissenters' view -- that unless Congress specifically says the time limit is jurisdictional, a court can waive it -- less than satisfactory.
At the same time, It appears unduly harsh to tell a petitioner who followed the lower court's direction that the lower court is wrong so your appeal is out of time.
I am sure that this is the type of case that drives appellate judges mad. Do the right thing intellectually or do justice to the party before the court.
Could the Supreme Court have held that, since the issue was not clear and the petitioner was merely following the direction of the lower court, the rule would not be applied to this petitioner's detriment?
Here are the opening three sentences in Justice Souter's Bowles dissent:
"The District Court told petitioner Keith Bowles that his notice of appeal was due on February 27, 2004. He filed a notice of appeal on February 26, only to be told that he was too late because his deadline had actually been February 24. It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch."
To quote Renée Zellweger's character from Jerry McGuire, Justice Souter "had me at, 'Hello.'"
And even if the five justices in the majority felt compelled to overturn previous cases under which Bowles' untimely filing could have been excused by the district court's error, see Harris Truck Lines v. Cherry Meat Packers, 371 U.S. 215 (1962) (per curiam), and Thompson v. INS, 375 U.S. 384 (1964) (per curiam), it could have overruled that precedent prospectively, reducing the injustice this decision creates by one case.
Justice Souter's dissent features a sentence notable for its "modesty," to quote a word associated with the Chief Justice: "I would also rest better knowing that my innocent errors will not jeopardize anyone's rights unless absolutely necessary." What a refreshing admission from a Supreme Court justice that they, too, are capable of errors -- something the Bowles majority doesn't admit, but rather demonstrates.
Justices Thomas, Scalia, and Kennedy have previously upheld a U.S. district court's award of sanctions even though it was later determined that the court didn't actually have jurisdiction over the case in which it awarded sanctions. Willy v. Coastal Corp., 503 U.S. 131 (1992). (The other two members of the Bowles majority weren't on the Supreme Court at the time.) So while sanctions will be upheld despite the invalidity of a U.S. district court's exercise of jurisdiction, an appeal won't be allowed due to detrimental reliance on a U.S. district court's erroneous order. Can we count on the Bowles majority overturning Willy at its next opportunity? Not bloody likely. Something tells me that what is sauce for the goose won't be sauce for the gander. So Keith Bowles' goose is cooked because he acted in accordance with a United States district court's order. Shameful.
Bowles is a case about the danger of statutory construction, it is amazing what the judiciary will sacrifice at times to appear to effect the will of Congress and keep Congress from further restricting their power. I think Bowles is more about the Third branch wanting to avoid another Feeney amendment than anything in the case. Throw the baby (justice) out with the bathwater.
I also wanted to mention that I think it was CAAFlog that predicted the significance of New in habeas cases. I can't search comments, but I believe he said that the SG wanted to get cert. in New to change the relatively less deferential standard in New, while noting the SG did not adopt the 10th Cir. Standard in their cert brief. Opperman adopts the New military habeas standard and actually analyzes the merits of the oft recycled EP argument that Navy judges don't have fixed terms. Not a bad standard, but now certainly a circuit split because Oppeeman addresses the 10th Cir standard.
On June 13, 2007, the government moved to certify the Armann case for immediate interlocutory appeal. I will post the motion on the NIMJ website, along with the District Court opinion.
Lieutenant Commander Oppermann appealed to the D.C. Circuit on June 20, 2007. [Full disclosure: he's my client.]
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