Tuesday, February 26, 2008


United States v. Lopez de Victoria, __ M.J. ___, No. 07-6004/AR (C.A.A.F. Feb. 26, 2008), available here, is such a joy to read. Both the majority and the dissent bring their A game and make their respective cases as well as they could be made.

The issue that splits the majority of Judge Stucky, Chief Judge Effron and Judge Baker from the dissent of Judge Ryan and Judge Erdmann is whether CAAF has jurisdiction to review a CCA's ruling on an Article 62 appeal. As footnote 3 in Judge Stucky's majority opinion notes, the issue split the government as well -- Code 46 and GAD argued that CAAF had no such jurisdiction, while JAJG argued that it did.

What is perhaps most significant about Lopez de Victoria is that CAAF rejected the government's motion to dismiss on jurisdictional grounds and then reversed ACCA's ruling on the prospectivity versus retroactivity of a 2003 amendment to Article 43's statute of limitations provisions. (CAAF rules that the extension of the statute of limitations applies prosectively only.) Both the jurisdictional issue and the statute of limitations are extremely interesting issues upon which learned jurists can break both ways -- as, indeed, learned jurists in this very case have broken both ways. This -- yes, this, Kabul Klipper -- may finally provide a Golden CAAF winner, since the Solicitor General may want to challenge both portions of CAAF's ruling and a majority of the SG's cert petitions succeed in obtaining review.

So Lopez de Victoria may present us with the question of whether the Kabul Klipper has the guts to unbolt the Golden CAAF from his mantle and actually mail it to Paul Clement. (Of course, if a tiny statute of a golden bovine showed up at Main Justice, it would probably be blown up as a precautionary measure.) I'm betting that someone who had the guts to deploy to Afghanistan is looking up Main Justice's ZIP Code at this very moment.

[DISCLAIMER: I am an appellate defense counsel in a case with a pending motion to dismiss a certification of AFCCA's ruling on an Article 62 appeal -- a motion that we will now lose under Lopez de Victoria.]


Anonymous said...

I second that Golden CAAF nomination.

Anonymous said...

I will raise a general question which I'm sure someone knows the simple answer to. Why does the Supreme Court have jurisdiction over this case if the government wishes to appeal? Is it truly a "final" judgment? Does it fall within the collateral order provision like Brady?

John O'Connor said...

As someone who is generally (maybe notoriously) a jurisdictional minimalist, I said at the time of argument that I thought the better reading supported a finding of jurisdiction, and I basically agree with the majority's analytical approach.

You could make a completely reasonable argument the other way, I just don't think that is the best, fairest reading of the statute.

Anonymous said...

Read the SCT jurisdictional statute. Final has nothing to do with anything, except as a prudential matter. Granting is the key to the castle.

Anonymous said...

The majority overstates their case a bit by claiming that CAAF, "like all federal courts, is a court of limited jurisdiction," and that, "That jurisdiction is conferred ultimately
by the Constitution, and immediately by statute."

In other words, CAAF asserts that there is really no difference between Article I and Article III courts. That's pushing things a bit far. There is a difference between Article III and Article I courts, and it is more significant than CAAF seems willing to admit, even despite Goldsmith. It almost seems as if CAAF is daring the gov't to seek cert on jurisdictional issues.