Thursday, July 02, 2009

Rodriguez trailers: have I missed something?

A prominent theory in the field of Biblical studies is the Q document--a theoretical lost document that was relied on in the drafting of the Gospels of Matthew and Luke. Is there a Q document out there somewhere that explains Tuesday's Rodriguez trailers?

In four orders issued on Tuesday, CAAF summarily denies petitions for review. (Another two orders issued the same day dismiss petitions under Rogriguez.) Judge Baker issues the same concurring opinion in all four of the cases denying review, rather than dismissing the petition. Judge Baker's concurrence suggests that the petition in each of the cases was filed on the first business day after the 60th day following constructive notice with the 60th day falling over a weekend or on a holiday. Of course, CAAF already addressed that scenario in its order in Angell: "As constructive service was effected on August 13, 2008, Appellant’s sixty-day period within which to file a petition for grant of review under Article 67(b)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(b)(2) (2000), expired on October 14, 2008, the first working day following the expiration of the actual sixty days on Sunday, October 12, 2008. See C.A.A.F. R. 34(a)." United States v. Angell, __ M.J. ___, No. 09-0098/AR (C.A.A.F. May 20, 2009) (summary disposition).

In Tuesday's concurrences, Judge Baker writes, "[H]aving concluded that Article 67(c), UCMJ, prescribes a sixty-day mandatory and jurisdictional filing deadline, the majority now concludes that this mandatory and jurisdictional sixty days does not expire if the sixtieth day falls on a weekend or holiday." He continues, "This conclusion is not based on Article 67, UCMJ, which makes no reference to weekends, holidays, or other calendar accounting exceptions." Then comes the sentence that has me confused: "Rather, the majority finds the exception to the mandatory and jurisdictional filing deadline under Article 67, UCMJ, in the Rules of the Supreme Court of the United States."

SCOTUS Rule 30.1, which governs computation of time, provides that if a filing is due on a weekend, holiday, or day when the Supreme Court building is closed, it's timely if filed on the next business day. But I haven't seen a CAAF order on this issue that cites the Supreme Court's rule on computation of time. Has anyone else?

Judge Baker continues by endorsing the Supreme Court's computation of time rule, observing that "[i]f a court is closed on the day a pleading is due, then the court should accept the filing on the next available day if the law permits this course of action." But, he adds, such a rule of reason can't "amend statutory language that a majority of this Court found 'mandatory and jurisdictional'" in Rodriguez. Judge Baker concludes, "I wish the majority had been as eager to apply this Court's Rules of Practice and Procedure to inform and interpret Article 67, UCMJ, as it now seems willing to do with the Supreme Court's Rules."

It seems to me that there are four likely possibilities explaining this enigmatic reference to the Supreme Court's rules: (1) CAAF has released some order or opinion dealing with computation of time for Rodriguez purposes that I haven't seen yet; (2) CAAF intended to release an order or opinion dealing with computation of time for Rodriguez purposes, but for some reason its release has been delayed but four trailer orders beat it out the courthouse door; (3) CAAF originally planned to issue a detailed order explaining computation of time for Rodriguez purposes but decided to issue a one-sentence denial instead, but Judge Baker retained language in his concurrence addressing the original reasoning; or (4) Judge Baker is disclosing the rationale for the four orders as discussed within the Court. Are there other reasonable possibilities? Which possibility seems most likely? If it's possibility number 1, someone please let me know what I missed.


Anonymous said...

Assuming the practice is to accept it the next day, Baker's point is that you can't have it both ways -- saying it's "jurisdictional" and then providing an exception for weekends, holidays, whatever. I'm with you on not knowing where to find whether CAAF has endorsed the weekend rule.

John O'Connor said...

I'll go with #4, that this was the majority's rationale, though one not stated in any order or opinion.

Anonymous said...

They could adopt the equivalent of FRAP 26.

Anonymous said...

I'll go with number 4, too. Because it is summer and the living is easy, CAAF is just too lazy to explain itself, beyond a simple denial order. I guess Judge Baker hasn't started his vacation yet, so he took the time to snipe about a "weekend or holiday filing rule". Unfortunately, we can only guess what he is talking about. He really should have put his dissent in context. This is really poor craftsmanship. Where is the quality control officer at CAAF?

Anonymous said...

He's on leave to NMCCA.

Anonymous said...

His context is pretty clear it seems, unless you are being sarcastic and I missed it.

He is calling out the court for a complete lack of logical consistency, demand a strict following of the rules in one situation, but not in another, with no rhyme or reason between the two.

And obviously, he is in favor of using court rules to help shape the field in both situations.