Thursday, May 29, 2008

Striking similarity between NMCCA's latest two published opinions

Both Abdirahman and Dossey were the subject of "hurry up and decide" petitions for extraordinary relief filed at CAAF.

On 3 April 2008, CAAF noted that counsel for Seaman Recruit Abdirahman had filed a petition for a writ of mandamus ordering NMCCA to withdraw its order granting the Government's motion for en banc reconsideration or, alternatively, ordering NMCCA to decide the case within 45 days. United States v. Abdirahman, __ M.J. ___, No. 08-8008/NA (C.A.A.F. Apr. 3, 2008). CAAF's order doesn't set out a timeline, but NMCCA issued its original decision on 16 November 2006, so it appears that en banc review was pending for longer than a year. Interestingly, the Government responded to CAAF's show cause order by agreeing with the Appellant's request for an order directing a decision within 45 days. Id. CAAF denied the portion of the petition for extraordinary relief seeking to revoke NMCCA's en banc reconsideration order, but ordered NMCCA to "either decide the case within 45 days or provide this Court with an explanation of the need for further consideration." Id. Day 45 was a Sunday; NMCCA's en banc decision is dated the following day.

In United States v. Dossey, __ M.J. ___, No. NMCCA 200700537 (N-M. Ct. Crim. App. May 20, 2008), the Government sought en banc reconsideration after losing an Article 62 appeal in panel on 23 October 2007. On 5 December 2007, NMCCA denied en banc reconsideration but granted reconsideration in panel. With the panel reconsideration still pending more than five months later, on 13 May 2008, CAAF docketed a "hurry up and decide" petition for extraordinary relief filed by the Navy-Marine Corps Appellate Government Division. In re Dossey, __ M.J. ___, Misc. No. 08-8018/NA (C.A.A.F. May 13, 2007). In a decision dated a week after that petition was docketed, the panel reversed its earlier decision and granted the Government's Article 62 appeal.

Will these experiences lead to more "hurry up and decide" petitions for extraordinary relief?

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