Thursday, March 12, 2009

United States v. Burk: Will he or won't he? We'll know soon

We noted here that on 4 March, the Navy-Marine Corps Appellate Government Division sought an enlargement of time to provide the Judge Advocate General of the Navy an opportunity to certify United States v. Burk to CAAF. We'll know soon whether Burk will be certified or not. In a daily journal update posted today, CAAF granted the enlargement request, but "only up to and including March 30, 2009, and absent extraordinary circumstances, no further extension of time will be granted in this case." United States v. Burk, __ M.J. ___, No. 09-5001/MC (C.A.A.F. March 10, 2009) (order).


The Cat said...

Okay, I have a question. Can CAAF actually tell the JAG that he has only up to 31 March to certifiy the issue or the Court will not review it? If you read Article 67 it says:

CAAF SHALL review the record in "ALL CASES reviewed by a CCA WHICH the JAG ORDERS sent to the CAAF for review." Pretty directive if you ask me.

There is no time limit in the statute regaridng JAG certifications. The only time limit in Article 67 is in 67(b), which says an accused has only 60 days to petition for review.

Now, take out the obvious, the JAG cannot purposely sit on a case and then send it to CAAF hoping his sitting on it will prevent the accused from winning.

But I question whether CAAF under the statute can tell the JAG you only have a certain amount of time to certify. If he certifies on 1 April (the fool's day), I think CAAF has to take it.

And I don't think Article 144 can be read to give CAAF that authority either. It obviously does not give CAAF the authority to say the 60-day time limit for petitions from an accused can be changed by their rules.

Anonymous said...

CAAF can definitely deny the certification because they consider it untimely. Unless SCOTUS grants cert, who's to tell them otherwise?

The Cat said...

Well Anon 10:36, if you are saying CAAF can do anything they want, sure. They can also refuse to review a case where the defendant was sentenced to death. Unless SCOTUS comes in, who will tell them otherwise. That doesn't change the fact that Congress is the one who did, and CAAF just decided they don't have to obey Congress.

The mechanism would be a writ of mandamus from SCOTUS, which by the way, would be an appropriate use of that writ: i.e. telling the lower court, do what your are required to do.

Anonymous said...

CAAF has said the JAG has a strict deadline to file. If he doesn't file in time, they feel their rules allow them to deny his certification. That hardly qualifies as CAAF "do[ing] anything they want." Tough to analogize that with not reviewing a death penalty case.


MJW2 said...

Take a look at footnote 11 in Rodriguez. According to CAAF rules, the JAGs have 30 days to certify an issue to CAAF, and the accused has 60 days to file a petition for grant of review. But, CAAF suggests that even after the 60 days of Article 67(b) expires, an accused could still ask TJAG to certify his case (which would necessarily be AT LEAST 30 days beyond CAAFs rule-based deadline for TJAG certification). Clearly TJAG certification has no statutory jurisdictional time limits. So, in one case, CAAF says TJAGs can file whenever, but in another case, they purport to put strict time limiits on filing.

It would be nice to see one of the GADs/TJAGs push the issue, but unfortunately, Anon 1036 is probably right - CAAF can do whatever it wants & SCOTUS is unlikely to intervene. We've probably used up all our political capital w/the SG to get Denedo before the SCOTUS, so it will be another 10 years before we can go back to that well!

Anonymous said...

MJW2 brings up a good point, the seemingly inconsistent holdings on like issues which exist in the MJ system, both at CAAF and the CCAs. Sounds like fertile grounds for Cox Commission part deaux, or at least a law review article in the Army’s joint issue. Anyone have any data that they have saved over the years which would help illustrate this?


The Cat said...

Anon 10:36:

So just because CAAF made a rule that says JAG has 30 days means they are not doing whatever they want despite the statute having a time limit on the JAG?

What if CAAF decided to make a rule that death penalty review is discretionary, or, if the accused did not file his brief in 30 days CAAF won't review? Okay, because CAAF made a rule, they wouldn't be doing what they want. I see.

MJW2: That is a great point. And to add, everywhere else in the federal system, the government has more time to decide on whether to appeal than a defendant. This is because it takes the government longer to come to a decision because many other parts must be briefed first, unlike a defendant who makes the decision himself.

But not CAAF, no. They are the only ones who decide the JAG, who is infinitely busier than a CAAF judge doing far more important work--like the IRAQ and Afghanistan wars--has less time to certify an issue to them than a defendant to petition for review.

egn said...

But the JAG is not "doing" the Afghanistan and Iraq wars. The JAG provides legal and policy advice to the Secretary and advises and assists Chief of his service in formulating and implementing policies and initiatives. However, keep in mind that the JAG's advice is limited to his respective Service's mission under the law to organize, train and equip -- yes, in preparation for operations in Afghanistan and Iraq, but that's different from the conduct of the war itself. The legal advice associated with that is the job of the combatant commanders' judge advocates.

In addition, comparing the workloads of the JAG against a CAAF judge is inapposite. The more apt comparison is the JAG's workload against the appellate defense attorney's workload. Using the Navy as an example, the JAG has two clients, but serves them with the assistance of a Deputy and an immediate office staff of 5, as well as over 100 personnel working in different issue areas. Contrast that with an appellate defense attorney, who has at least 20 clients if not more, and is assisted by a legal administrative assistant that he/she shares with at least 3 other attorneys. Granted, the appellate defense attorney only works one issue area, unless you get a PITA (typical) client who wants you to help him/her with legal assistance, admin law (dealing with DFAS and other collateral consequences of having a military conviction). But also keep in mind that the clients are spread far and wide, and sometimes aren't the most easily contacted individuals. Oh, and sometimes the appellate defense attorney will be assigned collateral duties of his/her own, like fitness coordinator, CFC keyperson, Social Committee representative, IT liaison, voting assistance officer, equal opportunity officer, training officer... the list goes on. So why is it so unreasonable for CAAF to give defendants more time to petition for review of their case?

Dwight Sullivan said...

This particular windmill has been attacked before. It remains unscathed. As I wrote last time:

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. [Art. 144.] Filing deadlines are procedural rules. Therefore Congress delegated to CAAF authority to set filing deadlines. Case closed.


Military Justice Wonk 2--in a case with a statutory deadline, like Rodriguez, Bowles holds that the deadline is jurisdictional and a court can't extend it. Where a deadline is rule-based, like certification (or the Supremes' own cert deadline), the court has discretion to extend the deadline -- just like the Supremes did (twice I believe) before the SG filed the cert petition in Denedo.

So there's no case to push. Congress authorized CAAF to set a rule-based deadline for certificates of review, and it has. CAAF can extend that time period, as it recently did upon the Navy-Marine Corps Appellate Government Division's request. An accused's deadline for filing a petition for review is statutory, so CAAF can't move it. It all makes perfect sense when viewed through the Bowles lens.