Thursday, May 10, 2007

Article 62 appeal appeal

We previously looked at the United States' successful Article 62 appeal in United States v. Lopez de Victoria, __ M.J. ___, No. ARMY MISC 20061248 (A. Ct. Crim. App. May 7, 2007). Lopez de Victoria's counsel wasted no time in seeking further review. CAAF's daily journal for 8 May includes the docketing notice for the petition for grant of review in United States v. Lopez de Victoria, No. 07-6004/AR. Here's my question: what statute gives CAAF appellate jurisdiction over the CCA's granting of an Article 62 appeal? That's not a rhetorical question; can anyone find a statutory grant of such jurisdiction?

If it isn't clear that such statutory authorization exists, then I would strongly recommend that counsel seeking review in that situation file a petition for extraordinary relief in the alternative to the petition for grant of review. The case would fall within CAAF's potential appellate jurisdiction, which gives CAAF the authority to issue a writ. See, e.g., In re Richards, 213 F.3d 773, 779 (3d Cir. 2000) ("jurisdiction to issue writs of mandamus under 28 U.S.C. § 1651 lies in cases in which potential appellate jurisdiction exists"). And the absence of any other legal right to seek relief from the CCA's ruling would make a writ an appropriate vehicle for seeking further review. See, e.g., Clinton v. Goldsmith, 526 U.S. 529, 537 (1999) ("[A] writ may not be used . . . when another method of review will suffice") (quoting 19 Moore's Federal Practice § 201.40).

If all of Lopez de Victoria's eggs are currently in the petition for grant of review basket, I recommend a partial ovum redistribution into a petition for extraordinary relief basket. Thoughts?


Anonymous said...

That's an interesting point. When I appealed the AFCCA's ruling in US v. Cossio, CAAF was fine with "The Air Force Court of Criminal Appeals reviewed this case pursuant to Article 62, UCMJ. This Court has jurisdiction to review this case pursuant to Article 67, UCMJ." I don't see anything specific in Art 67, and the Court never addressed it in oral argument or in its opinion. Perhaps it regards Art 67(a)(3)'s catch-all "all cases reviewed by a Court of Criminal Appeals in which, upon petition of the accused and on good cause shown, the Court of Appeals for the Armed Forces has granted a review" as providing jurisdiction.

Dwight Sullivan said...


I think you are right that the case would fall under 67(a)(3), but look at 67(c): In any case reviewed by it, the Court of Appeals for the Armed Forces may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the Court of Criminal Appeals.

A 62 appeal wouldn't seem to fall within that language. So even if CAAF can review the record under Art. 67(a)(3), it doesn't appear to have statutory authority to act on the case. Is there some other language that would allow them to? I don't see anything in Art. 62 itself that gives CAAF any power over government appeals.

Again, the potential appellate jurisdiction/writ route provides what should be a viable workaround. Unless there is a slam dunk jurisdiction granting provision, I would use that workaround if I were seeking CAAF review of a CCA's grant of an Art. 62 appeal.

John O'Connor said...

Well, according to No Man, there is an "appendix" to Title 10, to which Congress has never objected, that gives CAAF power to review pretty much whatever it wants in its role as supervisory authority over the military justice system.

I think you're right that this is dancing on the head of a pin, since the writ route remains available, but I don't read Article 67(c) as narrowly as you. I read that as providing that the CAAF reviews only some findings and sentences (i.e., those approved by the CA and as acted on by the CCA), and thatArticle 67(c) does not take away jurisdiction conferred on it by 67(a)(3).

To take an absurdity, say the CCA reviewed a final decision in the regular course and issued a decision that did not affect the findings or sentence of the court-martial (say it ordered an SJA to wear a sign that said "I'm incompetent to do SJARs"), would CAAF really lack the power to review that decision under Article 67 because it wasn't a finding or sentence?

Dwight Sullivan said...

Wouldn't that be an appropriate case in which to issue a writ of prohibition to confine the lower court to the exercise of its proper jurisdiction? But I still wouldn't read it as being within CAAF's Article 67(c) power. I would have to see whether the case still fell within CAAF's potential appellate jurisdiction to decide whether CAAF had power to issue a writ.

Anonymous said...

Read literally Article 66 (b) would imply quite broad powers, "accused may petition ... for review of a Decision of a CCA within 60 days"

I believe Tucker address this. United States v Tucker, 20 MJ 52 (1985, CMA)(looking at a speedy trial issue).

Anonymous said...

In the MCM at RCM 908(c)(3), the President states that an accused may appeal an adverse Art 62 decision to CAAF. Isn't this ruling with respect to Art 62 entitled to agency Chrevron deference?

Jason Grover said...

Chevron deferrence isn't generally applied in a criminal law context, although there appear plenty in the military justice world that want it to apply. CAAF has so far declined to address its application. United States v. Miller, 62 M.J. 471 (2006).