U.S. v. Williams, 75 M.J. 244

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. under Article 67(a), UCMJ, the CAAF has jurisdiction to hear cases which the JAG orders sent for review; while the statute does not by its own terms set a deadline for the JAG’s filing of a certificate for review, Congress has authorized the CAAF to prescribe its own rules of procedure, Article 144, UCMJ, and CAAF Rule 19(b)(3) provides for such a deadline - a certificate for review shall be filed either (a) no later than 60 days after the date of the decision of the CCA, or (b) no later than 30 days after a petition for grant of review is granted
2. when the government is independently seeking the CAAF’s review through a certificate for review, the 60-day filing deadline of CAAF Rule 19(b)(3) applies from the date of the decision of the CCA; the key rule in this case, CAAF Rule 34(a), provides the method for calculating that date: when a period of time is computed under these rules from the date of the decision of a CCA, such time is to be computed from the date of such decision, unless a petition for reconsideration is timely filed, in which event the period of time is to be computed from the date of final action on the petition for reconsideration; in summary, CAAF rules require that a certificate of review be filed 60 days after a CCA decision, unless a petition for reconsideration is timely filed; if this triggering event occurs, then the JAG has sixty days to file from the date of final action on the petition for reconsideration
3. in this case, the government did not effectively extend the CAAF’s 60-day deadline for filing a certificate for review by filing successive motions for reconsideration at the CCA; only the government’s first motion to reconsider constituted a qualifying petition for reconsideration of the original decision under the CAAF’s Rules of Practice and Procedure, and thus its second motion for reconsideration did not toll the 60-day deadline for filing a certificate for review; a government petition to reconsider a CCA’s decision to deny an original petition for reconsideration does not qualify as a petition for reconsideration under CAAF Rule 34(a), and toll the 60-day deadline; CAAF Rule 34(a)’s phrase “a petition for reconsideration” means a petition for reconsideration of the CCA’s original decision; the rule contemplates, quite simply, a petition for reconsideration of the substantive decision at issue - not petitions to reconsider the denial of a prior petition for reconsideration; a second petition for reconsideration fails to extend the time for seeking review