Friday, October 05, 2007

CAAF specifies major jurisdictional issue and requests amicus briefs

Today's daily journal update included two very important orders that CAAF issued yesterday, granting review of two petitions in which the accused asked CAAF to further review a CCA ruling in an Article 62 government appeal. CAAF questions whether it has jurisdiction in such cases, an issue we previously discussed here. One of the granted cases is from the Army and one from the Navy-Marine Corps. CAAF issued an extremely truncated simultaneous briefing schedule for the specified issues and invited amicus briefs from the Air Force and Coast Guard appellate shops. Oral argument will be held on both the substantive and jurisdictional issues on 14 November before what is sure to be a packed house on E Street.

It isn't apparent to me under the orders when, if ever, the parties are supposed to file their briefs on the merits. Can any of the parties shed light on that? Have substantive briefs already been filed on the merits?

Here are the granted issues and orders, both of which were issued yesterday:

No. 07-6004/AR. U.S. v. Eric LOPEZ de VICTORIA. CCA 20061248. On consideration of the petition for grant of review of the decision of the Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2000), said petition is hereby granted on the following issue raised by Appellant and modified by the Court:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT THE NOVEMBER 2003 CONGRESSIONAL AMENDMENT TO ARTICLE 43(b) OF THE UCMJ APPLIES RETROACTIVELY TO OFFENSES COMMITTED BEFORE THE EFFECTIVE DATE OF THE AMENDMENT THAT WERE NOT TIME-BARRED AS OF THAT DATE, BUT THAT WERE TIME-BARRED UNDER THE PREVIOUS STATUTE OF LIMITATIONS WHEN RECEIVED BY THE OFFICER EXERCISING SUMMARY COURT-MARTIAL JURISDICTION.

and the following issue specified by the Court:

WHETHER AND HOW THIS COURT HAS STATUTORY AUTHORITY TO EXERCISE JURISDICTION OVER INTERLOCUTORY APPEALS UNDER EITHER ARTICLE 67(a)(2) OR (3), UCMJ, 10 U.S.C. § 867(a)(2), (3) (2000), FROM DECISIONS OF THE COURTS OF CRIMINAL APPEALS UNDER ARTICLE 62, UCMJ, 10 U.S.C. § 862 (2000), AND WHETHER, AS A MATTER OF LAW, THIS COURT'S DECISION IN UNITED STATES v. TUCKER, 20 M.J. 52, 53 (C.M.A. 1985), SHOULD BE OVERTURNED.

Appellant and Appellee shall file briefs under Rule 25 on the specified issue no later than October 19, 2007. Reply briefs shall be filed no later than 5 days after the filing of the opposing party's brief.

The government and defense appellate divisions of the Air Force and the Coast Guard are invited to file amicus curiae briefs on the specified issue under Rule 26 no later than October 19, 2007.

Requests for enlargements of time will not be granted in the absence of extraordinary circumstances.

The above-entitled action shall be called for hearing at 9:00 a.m. on the 14th day of November, 2007. Each side will be allotted 30 minutes to present oral argument. The hearing will cover both the assigned and specified issues.

No. 07-6005/NA. U.S. v. Joshua M. MICHAEL. CCA 200700120. On consideration of the petition for grant of review of the decision of the Navy-Marine Corps Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2000), said petition is hereby granted on the following issue raised by the Appellant:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRONEOUSLY LIMITED THIS COURT'S HOLDING IN UNITED STATES v. CONKLIN, 63 M.J. 333 (C.A.A.F. 2006), BY FINDING THAT "IT APPEARS THE MILITARY JUDGE APPLIED AN ERRONEOUS STANDARD OF REASONABLENESS" IN SUPPRESSING THE SEARCH OF APPELLANT’S LAPTOP COMPUTER.

and the following issue specified by the Court:

WHETHER AND HOW THIS COURT HAS STATUTORY AUTHORITY TO EXERCISE JURISDICTION OVER INTERLOCUTORY APPEALS UNDER EITHER ARTICLE 67(a)(2) OR (3), UCMJ, 10 U.S.C. § 867(a)(2), (3) (2000), FROM DECISIONS OF THE COURTS OF CRIMINAL APPEALS UNDER ARTICLE 62, UCMJ, 10 U.S.C. § 862 (2000), AND WHETHER, AS A MATTER OF LAW, THIS COURT'S DECISION IN UNITED STATES v. TUCKER, 20 M.J. 52, 53 (C.M.A. 1985), SHOULD BE OVERTURNED.

Appellant and Appellee shall file briefs under Rule 25 on the specified issue no later than October 19, 2007. Reply briefs shall be filed no later than 5 days after the filing of the opposing party's brief.

The government and defense appellate divisions of the Air Force and the Coast Guard are invited to file amicus curiae briefs on the specified issue under Rule 26 no later than October 19, 2007.

Requests for enlargements of time will not be granted in the absence of extraordinary circumstances.

The above-entitled action will be called for hearing on the 14th day of November, 2007. This hearing will commence immediately following the hearing in United States v. Lopez de Victoria, 07-6004/AR. Each side will be allotted 30 minutes to present oral argument. The hearing will cover both the assigned and specified issues.

5 comments:

Gene Fidell said...

As I read these orders, nothing is off the table for the Court. I wonder if United States v. Dalrymple, 14 C.M.A. 307, 34 C.M.R. 84 (1963) is next.

Phil Cave said...

But shirley the situation in Dalrymple is not a common occurrence?

John O'Connor said...

I think Gene is right that these orders suggest a court very concerned with clarifying (and/or revisiting old cases clarifying) the scope of CAAF's jurisdiction. From listening to oral argument in Denedo, I heard a bench that is sensitive to the command of Clinton v. Goldsmith, with the judges making comments such as that Goldsmith eliminated an argument that jurisdiction can be based on CAAF's role in overseeing the military justice system, etc. I think that the more expansive view of CAAF's jurisdiction (one I generally associate with Chief Judge Everett, although there are a number of sources) is probably on the way out, especially given how the current court appears to read Clinton v. Goldsmith. I generally think that this is a positive development, though I have my doubts here.

As I look at Article 67, from a purely textual standpoint (and having done nothing more than read the relevant UCMJ articles ansd the Tucker case), I think the better argument is that CAAF lacks jurisdiction over a petition for review of an Article 62 appeal. I will say, though, that you certainly can cobble together a plausible argument for the opposite conclusion. But Chief Judge Everett's observation in Tucker is right that if there's no jurisdiction here because of the language in Article 67 limiting CAAF review to findings and sentences approved by the convenjing authority (and there's no approved findings or sentence in an Article 62 appeal), then the Government similarly appears out of luck if a CCA sides with the accused in an Article 62 appeal. This would be a significant development, as the Government (unlike an accused) lacks the power to get back to the CAAF after the trial of a court-martial that had had an Article 62 appeal to the CCA.

Though I do believe that the better reading of the statute is that there is no CAAF jurisdiction for a petition for review of an Article 62 decision by a CCA, I do think it would be bad policy. Once a case has gone up on an Article 62 appeal, notions of efficiency favor getting the Article 62 issue resolved on one trip to D.C., rather than going back for a trial and then having the accused raise the issue before the CAAF through a post-trial Article 67 petition for review. Also, it makes little sense to, as Chief Judge Everett noted, let the Government take an Article 62 appeal to the CCA but have no way whatsoever to have the CCA's decision reviewed by the CAAF and/or Supreme Court.

Regardless, Congress ought to clarify Article 67 to create the appellate jurisdiction for Article 62 appeals that it beleives appropriate, rather than having the courts be the final word on the issue through construction of a statute that, at present, is hardly a model of clarity.

One other thought, and there very well may be an easy and obvious answer to this question. If the CAAF lacks the juisdiction to review all decisions by the CCAs, and is limited to the jurisdiction stated in Article 67, what would be the source of its jurisdiction, if any, to review a CCA decision granting a writ. The reason I ask is, say the NMCCA grants the writ in Olson, the summary court-martial case. There's no findings or sentence approved by the CA, so Article 67 jurisdiction wouldn't seem to apply if the court finds no jurisdiction in the Article 62 context. So what if the CCAs start issuing writs in SCMs willy-nilly. Would there be a non-Article 67 basis for seeking review in the CAAF of those writs?

Anonymous said...

As I understand the CAAF rules for a 62 appeal, the substantive briefs are the supplement, answer, and reply. Once the case is granted on the assigned issue, briefing is done -- ie no final brief cycling -- and the case is heard as soon as practicable. In this case, I assume that briefing on the specified issue is expedited to catch up with the assigned issue.

CAAFlog said...

Did the government file a substantive answer in each case rather than a 10-day letter?