Monday, July 07, 2008

To paraphrase Tina Turner, big Wheeler keep on turning

CAAF's online daily docket still hasn't been updated since 1 July. But here's what we know. On 9 June, Code 46 moved to extend the period for the Judge Advocate General of the Navy to file a certificate of review challenging NMCCA's ruling in United States v. Wheeler, 66 M.J. 590 (N-M. Ct. Crim. App. 2008). United States v. Wheeler, __ M.J. ___, No. 08-5007/NA (C.A.A.F. June 9, 2008). On 23 June, CAAF granted the request in part. In bold, underlined type, CAAF noted that it granted the enlargement "only up to and including July 1, 2008, and absent extraordinary circumstances, no further extension of time will be granted in this case." United States v. Wheeler, __ M.J. ___, No. 08-5007/NA (C.A.A.F. June 23, 2008).

An anonymous commentator to a recent post on Wheeler reports that "[t]he government asked for another 15day continuance to decide if they want to certify." Unfortunately, I don't know how Code 46 addressed CAAF's warning that only "extraordinary circumstances" would justify a further enlargement. I would be grateful to anyone who could e-mail me a scanned copy of Code 46's submission. (As always, you can reach me at

Some individuals have been advancing the argument that because Article 67 of the UCMJ doesn't impose a time limit within which a Judge Advocate General can certify a case, there is no time limit. Under this argument, apparently a Judge Advocate General could still certify a Board of Review decision published in 1 C.M.R. The argument is, of course, rubbish. Article 144 of the UCMJ authorizes CAAF to "prescribe its rules of procedure." CAAF Rule 19(b), setting the time limits within which a Judge Advocate General may certify a case, is such a procedural rule.

If CAAF were to dismiss a certificate and the Solicitor General were to file a petition for certiorari challenging CAAF's authority to dismiss it, the time limit for doing so would be set by a Supreme Court rule. See 28 U.S.C. § 2101(g) ("The time for application for a writ of certiorari to review a decision of the United States Court of Appeals for the Armed Forces shall be as prescribed by rules of the Supreme Court."); see also S. Ct. R. 13.1. But, of course, the SG never would file such a cert petition because courts routinely set filing deadlines by rule and the Supreme Court wouldn't disturb this exercise of CAAF's delegated authority to prescribe procedural rules.


Anonymous said...

This issue also begs the question of what the process is for deciding to launch an Art. 62 appeal?

Who makes the recommendation ... to whom ... based on what?

Another argument to consider is that Code 46 should already "red flag" those cases that it thinks would be problematic if a big issue goes against the Government as the case is being briefed up and before any opinion is issued by a court. It would be a little bit like pre-war planning. ...nevermind.

Cloudesley Shovell said...

Are the time limits procedural or substantive? One could write a law review article on that distinction.

Can CAAF alter the time limits set by statute? By doing so, CAAF expands or restricts the right of a party to pursue its case more broadly or more narrowly than the statute permits. For example, a CAAF rule (or ruling) that permits an accused to file a petition beyond the statutory 60-day limit is a substantive rule, not procedural. CAAF is acting outside its Art. 144 grant when it does so. By purporting to limit JAGs to 30 days to file under Art. 67(a)(2), CAAF is restricting the JAGs rights to something more narrow than the statute permits. Substantive, not procedural.

What is the time limit for JAG certification? Looking at Art. 67 in isolation, none. There are, however, practical limits. In the service with which I'm familiar, if 60 days goes by without the accused petitioning CAAF, and without the JAG intervening to stop the process, the administrative folks initiate the execution of the discharge IAW Arts. 71 and 76.

If an accused is discharged, a JAG can no longer certify the case, because it has become final and binding. So no, a JAG could not certify a case from 1 CMR.

I think I commented before on a previous thread that if there is going to be a time limit on JAG certification, it ought to be 60 days, the same time the accused gets. CAAF's 30-day limit is completely arbitrary, without foundation on anything in the UCMJ.

If one digs into Art. 71(c)(1), one finds that "A judgement as to legality of the proceedings is final in [death and punitive discharge] cases when review is completed by a CCA and--(A) the time for the accused to file a petition for review by CAAF has expired and the accused has not filed a timely petition for such review and the case is not otherwise under review by that Court."

The last clause is significant. The case is final after 60 days and there is no petition from the accused and the case "is not otherwise under review." There are only two ways to otherwise be under review--mandatory review in a death penalty case, or JAG certification. So, if JAG hasn't certified a case by the end of that 60-day period, the case "is not otherwise under review" and becomes final.

Art. 76 says once a case is final, its binding. 60 days seems to be the finality trigger per Art. 71. Thus, if there's going to be a time limit on JAG certification, the actual statutes suggest the limit is 60 days.

Once again, all of this uncertainty could be remedied by a pretty straightforward statutory fix. This dead British admiral is still yelling (and will keep yelling). Will Congress or the code committee hear? Maybe they will. CAAFlog, after all, not only made Volokh and Instapundit, the New York Times took notice, and most significantly, he got the Washington Post to call for a rehearing in Kennedy v. Louisiana. Can this commenter piggyback on CAAFlog's coattails? Maybe I ought to just write the code committee a letter.

Yr hmbl srvt,

Anonymous said...

I think "big wheels keep on turning" is also from lynard skynard.

CAAFlog said...

Sir Cloudesley,

There is zero uncertainty concerning the deadline for the filing of a certificate for review. Filing deadlines are the archetypal procedural (vice substantive) rule, and the Supreme Court has consistently treated such deadlines as belonging to the "procedural" species. In fact, the Supremes did so as recently as 15 days ago. See Greenlaw v. United States, 76 U.S.L.W. 4533 (U.S. June 23, 2008) ("In increasing Greenlaw's sentence by 15 years on its own initiative, the Eighth Circuit did not advert to the procedural rules setting deadlines for launching appeals and cross-appeals."). In the abominable, yet still controlling, opinion of Bowles v. Russell, the Supremes did the same. 127 S. Ct. 2360, 2364 (2007) ("the filing deadlines in the Bankruptcy Rules are '"procedural rules adopted by the Court for the orderly transaction of its business"' that are '"not jurisdictional."'"). The Court has held similarly many, many times. See, e.g., Woodford v. Ngo, 548 U.S. 81, 90 (2006).

Congress delegated to CAAF authority to prescribe procedural rules. Filing deadlines are procedural rules. Therefore Congress delegated to CAAF authority to set filing deadlines. Case closed.

Anonymous said...


Return back to Aristotle. Define your terms before you commence your argument. How do YOU define 'substantive'? How do YOU define 'procedural'? Despite a clear mind, your failure to define your terms may be your error.

You may want to take a look at the two species of due process to get granularity on your definitions.