                        UNITED STATES, Appellee

                                    v.

                 Carlos J. RODRIGUEZ, Gunnery Sergeant
                      U.S. Marine Corps, Appellant

                              No. 07-0900

                        Crim. App. No. 9900997

       United States Court of Appeals for the Armed Forces

                       Argued September 23, 2008

                        Decided January 6, 2009

ERDMANN, J., delivered the opinion of the court, in which STUCKY
and RYAN, JJ., joined. EFFRON, C.J., and BAKER, J., each filed
a separate dissenting opinion.

                                 Counsel


For Appellant:    Lieutenant Brian D. Korn, JAGC, USN (argued).

For Appellee: Lieutenant Timothy H. Delgado, JAGC, USN
(argued); Major Brian K. Keller, USMC (on brief); Commander Paul
C. LeBlanc, JAGC, USN.

Military Judge:    R. S. Chester


       This opinion is subject to revision before final publication.
United States v. Rodriguez, No. 07-0900/MC

       Judge ERDMANN delivered the opinion of the court.

       Gunnery Sergeant Carlos J. Rodriguez was convicted at a

general court-martial of four offenses involving unlawful sexual

acts with children.    In its initial review of the case, the

United States Navy-Marine Corps Court of Criminal Appeals set

aside two specifications and authorized a rehearing.   United

States v. Rodriguez, No. NMCCA 9900997, 2002 CCA Lexis 259, 2002

WL 31433595 (N-M. Ct. Crim. App. Oct. 25, 2002) (unpublished).

At the rehearing, Rodriguez was found guilty of two offenses

involving sexual acts with children.    In its second review of

the case, the Court of Criminal Appeals affirmed the findings

and sentence.    United States v. Rodriguez, No. NMCCA 9900997,

2007 CCA LEXIS 251, 2007 WL 2059801 (N-M. Ct. Crim. App. July

17, 2007) (unpublished).    We granted Rodriquez’s petition for

grant of review and specified two issues.1

       Article 67(b), Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 867(b) (2000), provides that an accused may petition


1
    We specified review of the following issues:

       I. WHETHER THE MILITARY JUDGE IMPROPERLY SHIFTED THE
       BURDEN OF PROOF TO APPELLANT IN ASKING APPELLANT TO
       EXPLAIN THE VICTIM’S MOTIVES IN ACCUSING HIM OF SEXUAL
       ABUSE.

       II. WHETHER THIS COURT HAS JURISDICTION TO CONSIDER
       APPELLANT’S UNTIMELY PETITION IN LIGHT OF BOWLES v.
       RUSSELL, 127 S. Ct. 2360 (2007).

66 M.J. 488 (C.A.A.F. 2008).



                                  2
United States v. Rodriguez, No. 07-0900/MC

this court for review of a decision of a Court of Criminal

Appeals within sixty days from the earlier of the date upon

which the accused is actually notified or the date upon which he

or she is constructively notified of the decision of the Court

of Criminal Appeals.   While there is no dispute in this case

that the petition for grant of review was filed outside the

sixty-day period, Rodriguez asserts that under this court’s

prior case law that period is nonjurisdictional and can be

waived in this court’s discretion.    See United States v. Tamez,

63 M.J. 201, 202 (C.A.A.F. 2006) (per curiam).   The Government

responds that the statutory time limitation of Article 67(b),

UCMJ, constitutes a mandatory congressional limitation and is

not subject to waiver or expansion in the same manner as rule-

based or court-created limitations.

     In light of Bowles v. Russell, 127 S. Ct. 2360 (2007), we

conclude that the congressionally-created statutory period

within which an accused may file a petition for grant of review

is jurisdictional.   As Rodriguez’s petition for grant of review

was filed outside that period, we lack the authority to

entertain it.   We therefore vacate the grant of review in this

case and dismiss the petition for grant of review.

                            Background

     The Court of Criminal Appeals issued its second decision

in this case on July 17, 2007.   The record of trial reflects



                                 3
United States v. Rodriguez, No. 07-0900/MC

that a copy of that decision was served upon Rodriguez’s

appellate defense counsel on that same day.   On September 28,

2007, appellate defense counsel filed a “Motion to Submit

Petition for Grant of Review Out of Time.”    In that motion

appellate defense counsel stated that the “petition for grant of

review [was] out of time by thirteen days” because “Appellant

did not contact the Appellate Defense Division of the Navy-

Marine Corps Appellate Review Activity until September 27, 2007

in order to express his desire to appeal his case to this

Court.”    On that same day, this court ordered the Government to

file an answer to Rodriguez’s motion and held further action on

the petition for grant of review in abeyance until the court

acted upon the motion to file out of time.

     On October 12, 2007, the Government moved to file an

opposition to Rodriguez’s motion to file his petition for grant

of review out of time.   The Government asserted that Rodriguez

failed to demonstrate good cause for the court to suspend the

sixty-day period within which to file a petition for grant of

review.2   On November 16, 2007, this court granted Rodriguez’s

motion to file his petition for grant of review out of time and

ordered that he file a supplement to the petition for grant of

review.    Upon further consideration of the supplement to the

2
  C.A.A.F. R. 33 provides that “[f]or good cause shown, the Court
may suspend any of these rules in a particular case, on



                                  4
United States v. Rodriguez, No. 07-0900/MC

petition for grant of review and the other filings, we specified

two issues for review including one which framed the issue as to

whether this court has jurisdiction to entertain an untimely

petition for grant of review.    See Loving v. United States, 62

M.J. 235, 239 (C.A.A.F. 2005) (“every federal appellate court

has a special obligation to ‘satisfy itself . . . of its own

jurisdiction’” (quoting Bender v. Williamsport Area Sch. Dist.,

475 U.S. 534, 541 (1986))).

                              Discussion

     When originally enacted as part of the Uniform Code of

Military Justice in 1950,3 Article 67(c) provided that an accused

“shall have thirty days from the time he is notified of the

decision of a board of review [now Court of Criminal Appeals] to

petition the Court of Military Appeals [now the Court of Appeals

for the Armed Forces] for a grant of review.”   Act of May 5,

1950, ch. 169, Pub. L. No. 81-506, 64 Stat. 107, 129-30 (Article

67(c)).   Consistent with this congressional limitation, former

Rule 21 of the court’s Rules of Practice and Procedure required

that a petition for grant of review be filed with the court

within thirty days of the appellant receiving written notice of

the lower court’s decision.    The court did not, however, view




application of a party or on its own motion, and may order
proceedings in accordance with its direction.”
3
  Act of May 5, 1950, 50 U.S.C. §§ 551-736 (1950) (repealed
1956).

                                  5
United States v. Rodriguez, No. 07-0900/MC

this thirty-day limitation as a jurisdictional bar to

entertaining petitions for grant of review that were filed

outside the statutory period.   See United States v. Ponds, 1

C.M.A. 385, 386, 3 C.M.R 119, 120 (1952) (per curiam) (quoting

Rule 21 of the Court of Military Appeals’ Rules of Practice and

Procedure, effective from July 11, 1951, to March 1, 1952).

      In Ponds, the court considered whether a petition for grant

of review filed forty-six days after the statutory filing period

elapsed should be dismissed.    Id.   Rather than view the

statutory filing period as jurisdictional, the court concluded

that if an appellant could “establish some reasonable basis

justifying his relief from [this] default” then untimely filing

would not be a bar to this court’s consideration of the case.

Id.   This conclusion was rendered in the context of the court

expressing disapproval of agreements to waive the right to

petition and reflected the court’s underlying belief that “[t]he

right of convicted persons freely and directly to petition this

Court must be protected fully and in nowise abridged.”       Id. at

387, 3 C.M.R. at 121.4

      Following Ponds, this court adhered to its conclusion that

an otherwise untimely petition for grant of review could be

accepted by the court for good cause.    See, e.g., United States


4
  See also United States v. Cummings, 17 C.M.A. 376, 379, 38
C.M.R. 174, 177 (1968); United States v. Doherty, 10 C.M.A. 453,
455, 28 C.M.R. 19, 21 (1959).

                                  6
United States v. Rodriguez, No. 07-0900/MC

v. Morris, 16 M.J. 101 (C.M.A. 1983) (misunderstanding of filing

requirements); United States v. Landers, 14 M.J. 150 (C.M.A.

1982) (misunderstanding that may have been caused by the change

of the statutory filing period from thirty to sixty days);

United States v. Mills, 12 M.J. 225, 227 (C.M.A. 1982)

(“misunderstanding directly or indirectly engendered by those

responsible for serving upon him the decision of the Court of

Military Review”).

     As those cases indicate, the court viewed the statutory

filing period as nonjurisdictional even after Article 67, UCMJ,

was amended in 1981 to extend the filing period to sixty days

and to provide for constructive service of Court of Criminal

Appeals’ decisions.   See Military Justice Amendments of 1981,

Pub. L. No. 97-81, § 5, 95 Stat. 1085, 1088-89 (1981) (Article

67(c)).   Most recently, in Tamez the court reiterated that “the

time limits in Article 67, UCMJ, are not jurisdictional” and

that the court could exercise its discretion to accept untimely

petitions for grant of review “for good cause shown.”    63 M.J.

at 202.

     However, in 2007 the United States Supreme Court changed

the analytical landscape in terms of evaluating the

jurisdictional significance of filing deadlines in appellate

practice.   In Bowles the Supreme Court considered Fed. R. App.

P. 4(a)(1)(A), based upon 28 U.S.C. § 2107(a), and Fed. R. App.



                                 7
United States v. Rodriguez, No. 07-0900/MC

P. 4(a)(6), based upon 28 U.S.C. § 2107(c).    127 S. Ct. at 2362-

63.   Respectively, those rules provide that a civil litigant has

thirty days to file a notice of appeal after entry of final

judgment by a Federal District Court and that a District Court

could extend the filing period for fourteen days.    Nonetheless,

the District Court in Bowles extended the filing period for

seventeen days rather than the fourteen days permitted by Fed.

R. App. P. 4(a)(6).   Id. at 2362.    When Bowles filed his notice

of appeal, he did so outside the rule’s fourteen day period but

within the seventeen days encompassed by the District Court’s

order.   Id.   The Supreme Court concluded that Bowles’ untimely

notice of appeal “deprived the Court of Appeals of

jurisdiction.”   Id. at 2366.

      The Supreme Court held that where a limitation is derived

from a statute “the taking of an appeal within the prescribed

time is ‘mandatory and jurisdictional.’”    Id. at 2363 (citations

omitted).   In so holding, the Court distinguished between

statute-based rules of limitation and those having their origin

in court-created rules.   There is “jurisdictional significance

[in] the fact that a time limitation is set forth in a statute

. . . [b]ecause ‘[o]nly Congress may determine a lower federal

court’s subject-matter jurisdiction.’”    Id. at 2364 (quoting

Kontrick v. Ryan, 540 U.S. 443, 452 (2004)).    In contrast to the

rule for statute-based limitations, the Court noted that:



                                  8
United States v. Rodriguez, No. 07-0900/MC

        [W]e have treated the rule-based time limit for
        criminal cases differently, stating that it may be
        waived because “[t]he procedural rules adopted by the
        Court for the orderly transaction of its business are
        not jurisdictional and can be relaxed by the Court in
        the exercise of its discretion.

Id. at 2365 (quoting Schacht v. United States, 398 U.S. 58, 64

(1970)).    An important distinction between the jurisdictional

statute-based limitations and those created within a court’s

internal rules is that the courts have “no authority to create

equitable exceptions to jurisdictional requirements.”    Id. at

2366.

        The Court illustrated this distinction by pointing to its

own rules regarding the time limits for filing petitions for

certiorari.    The Supreme Court’s rules provide a ninety-day

filing deadline for certiorari in both civil and criminal cases.

Id. at 2365 (citing Sup. Ct. R. 13.1).    While the Court’s

jurisdiction over criminal appeals derives from rule-based

limitations that can be waived, the Court noted that the ninety-

day limitation for civil cases derives from 28 U.S.C. § 2101(c)

and therefore the statute-based rule for civil cases constitutes

a jurisdictional limitation on the Court’s authority to

entertain petitions for certiorari in civil cases.    Id.

        The Federal Circuit Courts of Appeals have followed the

Bowles statutory/rule-based distinction in interpreting various

filing deadlines.    The First Circuit applied this analysis in

determining that Fed. R. Crim. P. 35(a) was jurisdictional


                                   9
United States v. Rodriguez, No. 07-0900/MC

“because the rule’s seven-day time limit derives from a statute

-– [18 U.S.C.] § 3582(c).”5   United States v. Griffin, 524 F.3d

71, 84 (1st Cir. 2008).   Similarly, the Second Circuit concluded

that the exhaustion requirement applicable to petitions for

review of an immigration judge’s order was “statutory and

jurisdictional.”   Grullon v. Mukasey, 509 F.3d 107, 109 (2d Cir.

2007).   The Sixth Circuit concluded that Fed. R. Civ. P. 59(e)

was a “claim-processing rule” which “[u]nlike the rule at issue

in Bowles, . . . [was] promulgated by the Supreme Court under

the Rules Enabling Act, 28 U.S.C. §§ 2071-72.”6   Nat’l Ecological

Found. v. Alexander, 496 F.3d 466, 475 (6th Cir. 2007).7

     We also note that a number of the Federal Circuit Courts of

Appeals had previously held that Fed. R. App. P. 4(b), “Appeal

in a Criminal Case,” was jurisdictional but have reversed that

conclusion in light of Bowles and the fact that the rule is not

based in statute, despite the seemingly mandatory language of




5
  Fed. R. Crim. P. 35(a) deals with correcting clear errors in
sentencing and provides: “Within 7 days after sentencing, the
court may correct a sentence that resulted from arithmetical,
technical, or other clear error.”
6
  Fed. R. Civ. P. 59(e) provides: “A motion to alter or amend a
judgment must be filed no later than 10 days after the entry of
the judgment.”
7
  See also Kingman Reef Atoll Invs., L.L.C. v. United States, 541
F.3d 1189, 1195-96 (9th Cir. 2008); Niswanger v. Powell, 282 F.
App’x 342, 343 (5th Cir. 2008); West v. Norfolk, 257 F. App’x
606, 607 (4th Cir. 2007); United States v. Smith, 238 F. App’x
356, 359 (10th Cir. 2007) (timely notice of appeal “mandatory
and jurisdictional” under Fed. R. Crim. P. 35).

                                10
United States v. Rodriguez, No. 07-0900/MC

the rule.8   See United States v. Frias, 521 F.3d 229, 232 (2d

Cir. 2008); United States v. Garduno, 506 F.3d 1287, 1290-91

(10th Cir. 2007); United States v. Martinez, 496 F.3d 387, 388

(5th Cir. 2007); cf. United States v. Byfield, 522 F.3d 400, 403

(D.C. Cir. 2008).   In light of the statutory/rule-based analysis

established in Bowles and the subsequent circuit court

decisions, it is appropriate for us to once again examine

Article 67(b), UCMJ.

     “[T]he entire system of military justice [is a] creature[]

of statute, enacted by Congress pursuant to the express

constitutional grant of power ‘[t]o make Rules for the

Government and Regulation of the land and naval Forces.’”

United States v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007)

(quoting U.S. Const. art. I, § 8, cl. 14; and citing William

Winthrop, Military Law and Precedents 17 (2d ed. 1920)).    In

Articles 141 through 146, UCMJ, 10 U.S.C. §§ 941-946 (2000),

Congress provided the source authority for the existence of this

court.   This court’s authority or subject matter jurisdiction is

defined by Article 67, UCMJ.9   See Clinton v. Goldsmith, 526 U.S.




8
  Fed. R. App. P. 4(b)(1)(A) provides, in part: “In a criminal
case, a defendant’s notice of appeal must be filed in the
district court within 10 days of the later of . . . .”
9
  The structure of appeal under the UCMJ is different than that
established under the Fed. R. App. P. The latter, as noted, is
both statute-based and rule-based, while the entire structure of
military justice, including appeals, is statute-based.

                                11
United States v. Rodriguez, No. 07-0900/MC

529, 535 (1999) (stating this court’s “independent statutory

jurisdiction is narrowly circumscribed”).

     Article 67(a), UCMJ, sets forth three categories of cases

that Congress requires this court to review:

     (a)   The Court of Appeals for the Armed Forces shall
           review the record in –-

           (1)   all cases in which the sentence, as affirmed
                 by a Court of Criminal Appeals, extends to
                 death;
           (2)   all cases reviewed by a Court of Criminal
                 Appeals which the Judge Advocate General
                 orders sent to the Court of Appeals for the
                 Armed Forces for Review; and
           (3)   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.

     Pertinent to this case is subsection (a)(3) which directs

this court to review cases which have been reviewed by a Court

of Criminal Appeals and where there is a “petition of the

accused” and “good cause shown.”        The statute clearly

establishes that both of these predicates must exist before the

congressional mandate to review a case arises.

     Article 67(b), UCMJ, sets forth the criteria for filing a

petition with this court:

     (b)   The accused may petition the Court of Appeals for the
           Armed Forces for review of a decision of a Court of
           Criminal Appeals within 60 days from the earlier of -–

           (1)   the date   on which the accused is notified of the
                 decision   of the Court of Criminal Appeals; or
           (2)   the date   on which a copy of the decision of the
                 Court of   Criminal Appeals, after being served on


                                   12
United States v. Rodriguez, No. 07-0900/MC

                 appellate counsel of record for the accused (if
                 any), is deposited in the United States mails for
                 delivery . . . .

     While the option of whether to petition or not petition the

court rests with the appellant (“may”), Congress established

without qualification when such petitions must be filed.    Under

the plain language of the statute, the petition must be filed

within the sixty-day statutory time limit.

     Although we believe that the timeliness language of the

statute is clear, unambiguous and mandatory, Rodriguez argues

that despite the statutory/rule-based distinction of Bowles, the

use of the word “may” renders the time limitation in this statue

permissive rather than mandatory.     However, a reading of the

plain language clearly reflects that the word “may” refers only

to the act of petitioning this court.    See United States v.

Lewis, 65 M.J. 85, 88 (C.A.A.F. 2007) (“Statutory construction

begins with a look at the plain language of a rule.” (citing

United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241-

42 (1989))).

     As we read the plain language of Article 67(b), UCMJ, an

appellant may file a petition for grant of review and, if he or

she chooses to do so, it must be done within the sixty-day time

limitation.    Nothing within Article 67(b)’s statute-based time

limitation is permissive and there is no indication that the

court can waive the limitation for equitable reasons.    The



                                 13
United States v. Rodriguez, No. 07-0900/MC

sixty-day period “governs this case [and] is specific and

unequivocal.”   See Clark v. Lavallie, 204 F.3d 1038, 1040 (10th

Cir. 2000) (dealing with statute-based Fed. R. App. P. 4(a)(6)).

     Even if we were to conclude that there is some ambiguity in

these statutes, the legislative history of Article 67(b), UCMJ,

provides a clear picture of congressional intent.   Congress

amended Article 67, UCMJ, in 1981, extending the period within

which to petition this court from thirty to sixty days and

providing a method for constructive service of a Court of

Criminal Appeals’ decision.   Military Justice Amendments of

1981, Pub. L. No. 97-81, § 5, 95 Stat. 1085, 1088-89 (1981)

(Article 67(c)).   A primary motivation for the 1981 amendments

to Article 67, UCMJ, was to provide a means of ensuring finality

to cases.   The House Report on the Military Justice Amendments

of 1981 noted the “concrete evidence . . . that in some

instances appellate review of cases could not be completed” and

that such cases could be “held in limbo for up to five years

with no finality in sight.”   H.R. Rep. No. 97-306, at 7 (1981).

Concerning the purpose of the amendment, the House Report

states:

     This amendment would continue to allow the opportunity
     to petition for a further review to expire by statute
     upon passage of time after the accused is notified of
     the adverse decision of the lower court, but in
     contrast, the current proposal would permit the period
     to commence running upon either actual notice or
     constructive notice by mail.



                                14
United States v. Rodriguez, No. 07-0900/MC

Id. at 8 (emphasis added).     The Senate Report expresses a

similar concern for finality.    The Senate Report states that

Article 67, UCMJ, allows “the opportunity to petition for

further review to expire by statute” and states further:

     Once again, however, one must note that the right to
     appeal is not effected [sic]. Instead, the result is
     that the opportunity lapses. Furthermore, the
     opportunity lapses only when a variety of factors --
     all in the control of the accused -- compound.

S. Rep. No. 97-146, at 35-36 (1981) (emphasis added).    This

legislative history reflects that Congress intended the sixty-

day period to be a statute–based limitation and mandatory.      The

reports of both the House and the Senate focus on the fact that

an appellant is in sole control of the decision to appeal and in

large measure in control of the effectiveness of service of

process.

     Article 67(c), UCMJ, as originally enacted, stated that an

accused “shall have thirty days” to petition for a grant of

review.    (emphasis added).   Act of May 5, 1950, ch. 169, Pub. L.

No. 81-506, 64 Stat. 107, 129-30 (Article 67(c)).    Although the

1981 amendment to Article 67(c) provided that the accused “may”

petition for review within sixty days, the mandatory nature of

the statutory filing period was not altered.    As noted in the

House Report, the amendment “continue[d] to allow the

opportunity to petition for a further review to expire by

statute.”   H.R. Rep. No. 97-306, at 8 (emphasis added).   Only



                                  15
United States v. Rodriguez, No. 07-0900/MC

the opportunity to petition for review is permissive; the time

within which to do so is not.     Any other construction of the

relationship between opportunity to petition and the time within

which to file is inconsistent with the expressed congressional

desire to achieve finality.   If the time limitation is triggered

and an accused does not act, Congress intended the matter to

end.

       We conclude that the opportunity to petition this court

“lapses” or “expires by statute” when the sixty-day statute-

based limitation is not met and that the sixty-day limitation is

jurisdictional and mandatory.10    Relief from that time limitation

does not rest in the discretion of the court.11    To the extent

that Tamez and earlier cases of this court are inconsistent with

this holding, they are overruled.12


10
   The structure of appeal under the UCMJ is different than that
established under the Fed. R. App. P. The latter, as previously
noted, is both statute-based and rule-based. Thus, Fed. R. App.
P. 4(b) dealing with criminal appeals which is rule-based is not
jurisdictional. On the other hand, the entire structure of
military justice, including appeals, is statute-based. This
foundational difference creates an inconsistency between the
civilian criminal appellate process and the military criminal
appellate process with respect to time limitations. However,
that apparent inconsistency is an issue for congressional
consideration.
11
   Our conclusion that Article 67(b), UCMJ, is mandatory and
jurisdictional does not wholly preclude an accused from seeking
review by this court. An accused may still ask the Judge
Advocate General to certify the case for review pursuant to
Article 67(a)(2), UCMJ.
12
   Our holding is limited to petitions for grant of review filed
under Article 67(b), UCMJ. We reserve for another case whether
and under what circumstances the court may waive other,

                                  16
United States v. Rodriguez, No. 07-0900/MC

     There is no dispute that Rodriguez’s petition for grant of

review was untimely and therefore it must be dismissed.

                            Decision

     The grant of review dated June 12, 2008, is vacated and the

petition for grant of review is dismissed.




nonjurisdictional filing periods set forth in this court’s
rules. Compare United States v. Frias, 521 F.3d 229, 234 (2d
Cir. 2008) (“When the government properly objects to the
untimeliness of a defendant’s criminal appeal, Rule 4(b)[a
court-prescribed rule] is mandatory and inflexible.”), with
United States v. Ortiz, 24 M.J. 323, 325 (C.M.A. 1987)
(indicating that the court will seek “adequate explanations” for
“untimeliness which violates this Court’s Rules” regarding
filing supplements to petitions for grant of review).

                               17
United States v. Rodriguez, No. 07-0900/MC



     EFFRON, Chief Judge (dissenting):

     In Bowles v. Russell, 127 S. Ct. 2360, 2364 (2007), the

Supreme Court reaffirmed its “longstanding treatment of

statutory time limits for taking an appeal as jurisdictional”

and noted that the Court’s decisions had “recognized the

jurisdictional significance of the fact that a time limitation

is set forth in a statute.”   The Court stated that a limitation

is “jurisdictional when Congress forbids federal courts from

adjudicating an otherwise legitimate class of cases after a

certain period has elapsed from final judgment.”   Id. at 2366

(quotation marks omitted).    If Congress has forbidden our Court

from adjudicating an otherwise legitimate petition for review

after the passage of a certain period of time, we may not review

the petition even if the accused can establish good cause for

not meeting the statutory filing deadline.   See id.

     The majority opinion concludes that Congress established

such a prohibition in Article 67, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 867 (2000).   United States v.

Rodriguez, ___ M.J. ___ (3) (C.A.A.F. 2009).    For the reasons

set forth below, I respectfully disagree.
United States v. Rodriguez, No. 07-0900/MC


The jurisdictional statute

     Article 67 differs from the statute at issue in Bowles in

significant respects.   Congress restricted appeals under the

Bowles statute, 28 U.S.C. § 2107, and left courts with limited

discretion to reopen the filing period under specified

circumstances:

     (a) Except as otherwise provided in this section, no
     appeal shall bring any judgment, order or decree in an
     action, suit or proceeding of a civil nature before a
     court of appeals for review unless notice of appeal is
     filed, within thirty days after the entry of such
     judgment, order or decree.

     . . . .

     (c) The district court may, upon motion filed not
     later than 30 days after the expiration of the time
     otherwise set for bringing appeal, extend the time for
     appeal upon a showing of excusable neglect or good
     cause. In addition, if the district court finds --

             (1) that a party entitled to notice of
          the entry of a judgment or order did not
          receive such notice from the clerk or any
          party within 21 days of its entry, and

               (2) that no party would be prejudiced,

     the district court may, upon motion filed within
     180 days after entry of the judgment or order or
     within 7 days after receipt of such notice,
     whichever is earlier, reopen the time for appeal
     for a period of 14 days from the date of entry of
     the order reopening the time for appeal.

28 U.S.C. § 2107 (2000).

     By contrast, Congress framed Article 67 as a requirement to

review cases, not as a limitation on review:



                                  2
United States v. Rodriguez, No. 07-0900/MC


     (a) The Court of Appeals for the Armed Forces shall
     review the record in --

            (1) all cases in which the sentence, as
          affirmed by a Court of Criminal Appeals,
          extends to death;

            (2) all cases reviewed by a Court of
          Criminal Appeals which the Judge Advocate
          General orders sent to the Court of Appeals
          for the Armed Forces for review; and

            (3) 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.

Article 67, UCMJ.   The phrase “shall review” embodies a

congressional mandate to conduct appellate proceedings in the

three categories of cases.   See 10 U.S.C. § 101(f)(1) (2000)

(providing that in Title 10 of the United States Code, the word

“‘shall’ is used in an imperative sense”).

     In the statutory provision governing a servicemember’s

ability to petition for review under Article 67, Congress used

permissive language:   “The accused may petition the Court of

Appeals for the Armed Forces for review of a decision of a Court

of Criminal Appeals within 60 days from the earlier of” the date

of actual service or the date of constructive service.     Article

67(b), UCMJ; see 10 U.S.C. § 101(f)(2) (providing that in Title

10 of the United States Code, the word “‘may’ is used in a

permissive sense”).    Notably, Congress did not employ the

formula provided in Title 10 for the use of “may” in a


                                  3
United States v. Rodriguez, No. 07-0900/MC


restrictive sense.   See 10 U.S.C. § 101(f)(3) (providing that in

Title 10 of the United States Code, the phrase “‘no person may .

. .’ means that no person is required, authorized, or permitted

to do the act prescribed”).

     Congress also provided in Article 67(b) that this Court

“shall act upon such a petition promptly in accordance with the

rules of the court.”   The Court’s rules contain the sixty-day

time period for filing a petition, C.A.A.F. R. 19(a), as well as

express authority to waive the rules.   C.A.A.F. R. 33.



Background:   Development of the statute

     The initial version of the UCMJ contained the following

provision concerning opportunity of the accused to file a

petition for review:

          The accused shall have thirty days from the
          time he is notified of the decision of a
          board of review to petition the Court of
          Military Appeals for a grant of review. The
          court shall act upon such a petition within
          thirty days of the receipt thereof.


Act of May 5, 1950, ch. 169, art. 67(c), 64 Stat. 107, 129-30

(1950) (codified as amended at 10 U.S.C. § 867(b) (2000)).

     From the first cases arising under the UCMJ, Article 67 has

been interpreted as permitting consideration of petitions filed

beyond the statutory time period upon a showing of good cause.

See United States v. Ponds, 1 C.M.A. 385, 386 3 C.M.R. 119, 120


                                 4
United States v. Rodriguez, No. 07-0900/MC


(1952).   Over the next three decades, the good cause

interpretation represented the state of the law in the military

system.

     In 1981, the Department of Defense requested

amendments to Article 67 with respect to notice of the

opportunity to petition for review, focusing on problems in

identifying the time that marked the beginning of the

opportunity to petition this Court for review.      See United

States v. Byrd, 53 M.J. 35, 36 (C.M.A. 2000).      The proposed

legislation sought relief from our decision in United

States v. Larneard, 3 M.J. 76 (C.M.A. 1977), which held

that constructive service of the lower court’s decision

would not suffice to initiate the period for review and

thereby precluded the running of the filing period in the

absence of proven actual notice.       See S. Rep. No. 97-146,

at 35 (1981).

     Congress agreed with the Department and enacted authority

for constructive notice, thereby overcoming the effect of

Larneard.   Military Justice Amendments of 1981, Pub. L. No. 97-

81, § 5, 95 Stat. 1088-89 (1981) (codified as amended at 10

U.S.C. § 867 (2000)).   Under the constructive notice provision,

the timeline for the opportunity to petition for review

commences when the government provides either actual or

constructive notice of the lower court’s decision.      Three other


                                   5
United States v. Rodriguez, No. 07-0900/MC


legislative changes accompanied the constructive notice

provision as part of the 1981 amendments, each of which

underscore the nonrestrictive nature of the legislation.   First,

Congress inserted the permissive phrase “may petition” into the

statute.   Second, the statute expanded the opportunity to file a

petition for review from thirty days to sixty days.   Third, the

legislation replaced the language providing that this Court

“shall act” within thirty days with a more flexible requirement

to act “promptly in accordance with the rules of the court.”

See id.

     The legislative history of the 1981 amendments, although

not necessary for interpretation of this statute, is consistent

with a permissive reading of the legislation.   The report of the

House Armed Services Committee emphasized the continuity of the

opportunity to petition for review, and noted that the

legislation addressed the relationship between notice and the

commencement of the filing period:

             This amendment would continue to allow the
           opportunity to petition for a further review
           to expire by statute upon passage of time
           after the accused is notified of the adverse
           decision of the lower court, but in
           contrast, the current proposal would permit
           the period to commence running upon either
           actual notice or constructive notice by
           mail. However, the period for petition
           would be extended from 30 to 60 days. . . .
             In effect, the amendment would authorize
           giving an accused constructive notice of his
           right to petition the Court of Military


                                 6
United States v. Rodriguez, No. 07-0900/MC


          Appeals if efforts to make personal service
          have failed.

H.R. Rep. No. 97-306, at 8 (1981).

     The Senate report also described the statute as providing

an opportunity for review and emphasized that the accused would

lose the opportunity to petition only if the responsibility for

the late filing was attributable to that individual:

          [O]ne must note that the right to appeal is
          not [affected]. Instead, the result [of the
          sixty days passing without a petition
          filing] is that the opportunity lapses.
          Furthermore, the opportunity lapses only
          when a variety of factors -- all in the
          control of the accused -- compound. In this
          respect, the waiver would not be precisely
          “unknowing” on the accused’s part. An
          accused who is interested in preserving
          appellate opportunities may protect those
          opportunities by supplying the power of
          attorney, or by taking care to keep
          addresses current, or by maintaining contact
          with his appellate counsel. Thus, an
          unfortunate result is likely to occur only
          when the accused intentionally or
          negligently fails to take simple measures to
          protect the accused’s own interests,
          measures which must be explained by both the
          trial and appellate defense counsel.

S. Rep. No. 97-146, at 36.   Both reports are consistent with the

then-existing state of the law, under which the opportunity to

petition for review would expire after the statutory number of

days, subject to the ability of the accused to establish,

through a showing of good cause, that the late filing was not a

matter within his or her control.    It is noteworthy that while



                                 7
United States v. Rodriguez, No. 07-0900/MC


Congress addressed this Court’s interpretation of Article 67 to

establish a constructive notice provision in light of Larneard,

the amended statute did not seek to supplant the Ponds line of

cases.



Interpretation of Article 67 after the 1981 amendments

     In the immediate aftermath of the 1981 legislation, the

amended statute was interpreted as permitting late filing upon

good cause.   See, e.g., United States v. Landers, 14 M.J. 150

(C.M.A. 1982).   If that interpretation had been in error, the

legislative process provided an excellent opportunity for

corrective action during congressional consideration of the

Military Justice Act of 1983, Pub. L. 98-209, 97 Stat. 1393

(1983).   That legislation contained significant changes to post-

trial procedures, including the appellate process, with

particular attention to the impact of this Court’s case law.

See, e.g., S. Rep. No. 98-53, at 28 (1983).    Notwithstanding

the specific focus on appellate matters in the 1983 legislation,

Congress did not enact any changes to the longstanding,

permissive consideration of belated petitions upon a showing of

good cause.

     Article 67(b) has operated as intended by Congress.    The

constructive service provision has enabled the Government to

establish an earlier beginning point for the opportunity to


                                 8
United States v. Rodriguez, No. 07-0900/MC


submit a petition via constructive service.      The sixty-day

opportunity for filing a petition for review identifies the

period within which the accused is responsible for filing a

petition.   The permissive interpretation of Article 67 follows

the statutory rule of construction in 10 U.S.C. § 101(f)(2) and

provides a very limited basis for appellate review when the

accused establishes that a belated filing is not the result of

his or her own irresponsibility.       See H.R. Rep. No. 97-306, at

7-8; S. Rep. No. 97-146, at 36.

     As Judge Baker points out in his separate opinion, the

permissive interpretation is consistent with the intent of

Congress in enacting the UCMJ and in establishing this Court.

___ M.J. at ___ (12) (Baker, J., dissenting).      See also United

States v. Tamez, 63 M.J. 201, 202 (C.A.A.F. 2006) (noting that

the unchanging practice of our Court in considering belated

petitions upon good cause shown “is consistent with Congress’s

intent that servicemembers have the opportunity to obtain

appellate review in an independent civilian court”).

     The permissive reading also is consistent with the manner

in which Congress has structured the military justice system,

particularly the system’s reliance on government-furnished

military counsel to represent military personnel in the

appellate process.   See Article 70, UCMJ, 10 U.S.C. § 870

(2000).   When a servicemember relies on a military attorney and


                                   9
United States v. Rodriguez, No. 07-0900/MC


the petition is filed late because of incorrect advice or

inaction by the military attorney, the Ponds interpretation of

Article 67 provides an appropriate occasion for the

servicemember to demonstrate that the belated filing is the

responsibility of the government-provided attorney, not the

individual servicemember.   See Byrd, 53 M.J. at 36-37.

     In a number of cases now pending before the Court,

appellants allege that the responsibility for the late filing

rests with military appellate counsel.   These cases include

alleged deficiencies in case tracking, see United States v.

Greenwood, No. 08-0618/AF; United States v. Tuberville, No. 08-

0612/AF; alleged neglect of an attorney’s commitment to file a

timely petition, see United States v. Angell, No. 09-0098/AR;

and alleged failure to ensure continuity of counsel after

departure of assigned military appellate counsel, see United

States v. Person, No. 08-0534/NA; United States v. Esposito, No.

08-0547/NA.   Under the lead opinion’s interpretation of Article

67, however, every case involving a belated filing must be

dismissed without regard to whether the appellant can establish

that the responsibility for the filing deficiency rests with the

military attorney furnished by the government under Article 70.

Such a result is not required by the language, development, or

purpose of Article 67.




                                10
United States v. Rodriguez, No. 07-0900/MC


     The opportunity to demonstrate good cause for a belated

filing comports with the permissive wording of the statute, the

statutory rules of construction for Title 10, the legislative

history of Article 67, the purpose of the UCMJ, the consistent

interpretation of the statute, and subsequent legal

developments.   As such, Article 67 does not constitute a

congressional prohibition on appellate review under Bowles.     I

respectfully dissent from the lead opinion’s conclusion that

Congress established Article 67 as a mandatory prohibition that

precludes appellate review irrespective of whether there is good

cause for a belated filing.




                                11
United States v. Rodriguez, No. 07-0900/MC


     BAKER, Judge (dissenting):

Introduction

     Today the Court reverses more than fifty years of military

justice precedent and practice based on Bowles v. Russell, 127

S. Ct. 2360 (2007), a Supreme Court case addressing the time for

appeals under the federal habeas statute, 28 U.S.C. § 2107

(2000).   In Bowles, the Court concluded that “the taking of an

appeal within the prescribed time is ‘mandatory and

jurisdictional’” and that 28 U.S.C. § 2107(c) prescribed such a

time limit based on the text of the statute.    127 S. Ct. at 2363

(citation omitted).   However, in applying Bowles to this Court’s

jurisdiction, the majority ignores three critical distinctions.

     First, the Bowles Court was addressing a federal civil

statute, 28 U.S.C. § 2107, not the Uniform Code of Military

Justice (UCMJ).

     Second, Congress did not legislate or intend to prescribe

this Court’s jurisdiction in the same manner as a district

court’s application of 28 U.S.C. § 2107.   Read in the context of

the statute as a whole, the language in Article 67, UCMJ, 10

U.S.C. § 867 (2000), defines a permissive right to petition this

Court -- an “accused may petition” the Court.   Congress did not

specifically limit the amount of time in which an accused must

file a petition before this Court; it required that this Court

review all petitions filed within sixty days.   After sixty days,
United States v. Rodriguez, No. 07-0900/MC


consideration of a petition is discretionary.    Congress had the

opportunity to amend this language in light of this Court’s

interpretation in 1981.   It did not.   Instead, Congress changed

the modal verb in Article 67(b), UCMJ, from “shall” to “may.”

See Military Justice Amendments of 1981, Pub. L. No. 97-81, § 5,

95 Stat. 1085, 1088-89 (1981) (Article 67(c)).

     Third, as the Supreme Court recognized in Parker v. Levy,

417 U.S. 733, 743 (1974), as well as in cases subsequent to

Bowles, the military justice system is a distinct system.

Supreme Court precedent, including precedent involving the death

penalty, does not necessarily apply in the military context, or

apply as it does in the civilian context.    See Kennedy v.

Louisiana, 129 S. Ct. 1, 2 (2008) (“[A]uthorization of the death

penalty in the military sphere does not indicate that the

penalty is constitutional in the civilian context.”) (order

denying rehearing).

     As a result, I respectfully dissent.    To paraphrase Justice

Jackson, this Court should be last, not first, to close the

courtroom door to members of the armed forces.   See Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 655 (1952) (Jackson,

J., concurring).   Congress did not specifically limit this

Court’s jurisdiction, and we should not do so now.   “‘[O]nly

Congress may determine a lower federal court’s subject-matter

jurisdiction.’”    Bowles, 127 S. Ct. at 2364.


                                  2
United States v. Rodriguez, No. 07-0900/MC


From Ponds to Byrd to Bowles

     Since the advent of the UCMJ, this Court has held that the

time limits for filing a petition for appeal before this Court

do not impose a jurisdictional bar to appeal where there is good

cause shown for filing out of time.   United States v. Tamez, 63

M.J. 201, 202-03 (C.A.A.F. 2006) (per curiam); United States v.

Byrd, 53 M.J. 35, 38 (C.A.A.F. 2000); United States v. Ponds, 1

C.M.A. 385, 387, 3 C.M.R. 119, 121 (1952) (per curiam).   The

analysis underpinning this longstanding conclusion is summarized

in Byrd, a 2000 opinion in which the five judges on this Court

unanimously concluded:

     Both Article 67 and Rule 19 are phrased in terms of
     the opportunity of an appellant to file a petition for
     review. Neither the statute nor the rule states that
     the time periods are jurisdictional, nor do they
     preclude our Court from accepting petitions outside
     the time period under appropriate circumstances.

53 M.J. at 38.

     This analysis was echoed in Tamez, a 2006 per curiam

opinion in which this Court again emphasized the importance of

civilian oversight of the military instrument, in this case the

military justice system, through operation of the United States

Court of Appeals for the Armed Forces.

     Such a practice is consistent with Congress’s intent
     that servicemembers have the opportunity to obtain
     appellate review in an independent civilian court.
     Were the sixty-day timeline jurisdictional, an
     appellant might be without appellate recourse in this
     Court regarding claims such as ineffectiveness of


                                3
United States v. Rodriguez, No. 07-0900/MC


     counsel or complaints under Article 13, UCMJ, 10
     U.S.C. § 813 (2000). This was not Congress’s intent.

63 M.J. at 202-03 (footnote omitted).

     The majority now concludes that Bowles changes over fifty

years of consistent precedent because “Congress established

without qualification when such petitions must be filed[,]”

United States v. Rodriguez, __ M.J. __ (13) (C.A.A.F. 2009), and

Bowles determined that “[t]here is ‘jurisdictional significance

[in] the fact that a time limitation is set forth in a

statute.’”   Id. at __ (8) (quoting Bowles, 127 S. Ct. at 2364).

This reasoning is flawed.

     First, Bowles does not dictate a result.    Rather, it

enunciates a rule of interpretation.    Where Congress has

prescribed a time limit for filing an appeal, that time limit is

“‘mandatory and jurisdictional.’”    Bowles, 127 S. Ct. at 2363

(citation omitted).   Conversely, if a time period in a statute

does not prescribe a jurisdictional limit, it is not mandatory.

In other words, the Supreme Court did not purport to substitute

this general principle of statutory construction for the actual

statutory language or expressed congressional intent that may

exist in a given statute.   Not all timelines are jurisdictional.

See id. at 2368 (Souter, J., joined by Stevens, J., Ginsburg,

J., and Breyer, J., dissenting) (“But neither is jurisdictional




                                 4
United States v. Rodriguez, No. 07-0900/MC


treatment automatic when a time limit is statutory, as it is in

this case.”).

     Applying this rule of construction, the Supreme Court

concluded that 28 U.S.C. § 2107(c), which addresses reopening

the time to file a habeas appeal in an Article III district

court, is mandatory and jurisdictional, “[b]ecause Congress

specifically limited the amount of time by which district courts

can extend the notice-of-appeal period . . . .”   Bowles, 127 S.

Ct. at 2366 (emphasis added).   Fed. R. App. P. 4(a)(6)

implements § 2107(c), and provides:   “The district court may

reopen the time to file an appeal for a period of 14 days after

the date when its order to reopen is entered, but only if all

the following conditions are satisfied . . . .”   In contrast,

Article 67, UCMJ, does not use comparable prescriptive language.

     Second, regardless of what Bowles states or requires, the

Supreme Court has repeatedly recognized that military society is

distinct from civilian society.   As a result, principles of law

enunciated by the Supreme Court may apply differently, or

perhaps not at all, in military justice practice.   See Parker,

417 U.S. at 744 (“Just as military society has been a society

apart from civilian society, so ‘military law’ . . . is a

jurisprudence which exists separate and apart from the law which

governs in our federal judicial establishment.”) (citations




                                  5
United States v. Rodriguez, No. 07-0900/MC


omitted).1    One role this Court plays is to place Supreme Court

precedent in the military context.     See United States v. Marcum,

60 M.J. 198, 205 (C.A.A.F. 2004) (“[W]hen considering how

[certain laws] apply in the military context, this Court has

relied on Supreme Court civilian precedent, but has also

specifically addressed contextual factors involving military

life.”).     Part of that context is the emphasis Congress placed

on the opportunity for servicemembers to appeal convictions to a

civilian appellate court within the framework of the UCMJ.    The

majority of this Court, however, places all its emphasis on a

mechanical application of Bowles, but misses the equally

compelling language from Parker stressing the potential

distinction between civilian and military law.

     Third, and most importantly, the question before this Court

is not whether Bowles applies, but whether the statute to which

we are asked to apply Bowles incorporates a congressionally

prescribed time limit for filing appeals or a permissive time

limit.   Did Congress specifically limit the amount of time

1
  This point is driven home by the Supreme Court’s denial of
reconsideration in Kennedy, 129 S. Ct. at 3 (order denying
rehearing). In that case, the Supreme Court did not consider
the military death penalty for child rape in its original
opinion when it sought to analyze the national consensus for
this punishment. Id. at 1. The Court denied a rehearing,
stating that Kennedy “involves the application of the Eighth
Amendment to civilian law; and so we need not decide whether
certain considerations might justify differences in the
application of the Cruel and Unusual Punishments Clause to
military cases . . . .” Id. at 2.

                                   6
United States v. Rodriguez, No. 07-0900/MC


within which a servicemember must file an appeal?   No.   To the

contrary, this Court concluded in Byrd and Ponds that Article

67, UCMJ, contains a permissive time limit.   The UCMJ limited

the amount of time in which an appellant could avail himself of

the opportunity to petition this Court and as a matter of right

have his petition reviewed.   In 1981, Congress had the

opportunity to amend this language, in light of this Court’s

understanding of the law.   It chose not to do so, as Chief Judge

Effron details in his dissent.   Now, based on Bowles, a decision

construing different language in a civilian statute, a majority

of this Court concludes that this Court’s interpretation of

Article 67(b), UCMJ, has been wrong since 1952.   But while

Bowles may give us occasion to revisit the meaning of Article

67, UCMJ, it does not change its meaning.

Article 67, UCMJ

     “The plainness or ambiguity of statutory language is

determined by reference to the language itself, the specific

context in which that language is used, and the broader context

of the statute as a whole.”   Robinson v. Shell Oil Co., 519 U.S.

337, 341 (1997).

     Article 67, UCMJ, states:

     (a) The Court of Appeals for the Armed Forces shall
     review the record in --
          (1) all cases in which the sentence, as affirmed
     by a Court of Criminal Appeals, extends to death;



                                 7
United States v. Rodriguez, No. 07-0900/MC


          (2) all cases reviewed by a Court of Criminal
     Appeals which the Judge Advocate General orders sent
     to the Court of Appeals for the Armed Forces for
     review; and
          (3) 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.

     (b) The accused may petition the Court of Appeals for
     the Armed Forces for review of a decision of a Court
     of Criminal Appeals within 60 days from the earlier of
     --

     . . .

Article 67, UCMJ.

     At least two interpretations are plausible.    First, one can

argue that the language prescribes a time limit for filing an

appeal.   This is the view of the majority.   Under this

construction, while an appellant “may” file an appeal, “within

60 days” operates as a firm limit on this Court’s jurisdiction

and not just a bar on an appellant’s opportunity to petition

this Court.   That is because section (a)(3), defining this

Court’s jurisdiction for good cause shown, is linked to section

(b), and review under section (a)(3) is only triggered “upon

petition of the accused.”   However, if this reading were correct

and compelled, then Ponds, Byrd, and Tamez, et al., would have

depended on construing this section as procedural rather than

jurisdictional.   In that case, Bowles would change the analysis.

But Ponds, Byrd, and Tamez, et al., did not rely on this




                                 8
United States v. Rodriguez, No. 07-0900/MC


distinction; these cases relied on the plain text of the Article

and Congress’s intent.

     That is because a second interpretation of Article 67(b),

UCMJ, is that the clause creates a permissive timeline for an

appellant to file a notice of appeal.   He must file “within 60

days” to preserve his right to have this Court review his

petition.   Otherwise, this Court is not obliged to review his

petition.   But it does not preclude this Court from doing so if

good cause is shown “upon petition of the accused.”   Article

67(a)(3), UCMJ.

     This reading of the statute is based on the plain language

and, in particular, the modal verbs chosen and not chosen.    This

construction is also based on the placement of the clause within

Article 67, UCMJ.   The Court’s jurisdiction is defined in

section (a) and the appellant’s right to petition is defined in

section (b).   As important, this reading is consistent with the

legislative history cited by the majority, the same history that

also informed Byrd and Tamez.

     Congress knows how to mandate when it wishes to do so.      For

example, Congress intended that an accused have the opportunity

to appeal to this Court, but should not be required to do so,

for the appeal of right rests at the Courts of Criminal Appeals.

As a result, it chose the modal verb “may” rather than “shall”

to delimit an accused’s right to seek discretionary review


                                 9
United States v. Rodriguez, No. 07-0900/MC

before this Court.   See Article 67(b), UCMJ.     Whether Congress

set a time limit for an accused to do so is more ambiguous.

Congress could have used words like “shall be filed within 60

days” or “must be filed within 60 days,” or used words similar

to the language at issue in Bowles, “but only if” the accused

“files within 60 days.”    Instead, Congress chose to use only the

phrase “within 60 days.”   Nevertheless, it is reasonable to

conclude based on the legislative history that this language

represents a filing deadline.    But it is a deadline on the

accused, not a “specific limitation” on this Court’s

jurisdiction.

     Had Congress wished to “specifically limit” this Court’s

jurisdiction it would have amended Article 67(a)(3), UCMJ, which

addresses this Court’s discretionary jurisdiction.     For example,

Congress could have amended this clause to state that this Court

shall hear an appeal “upon good cause shown, provided that such

petition is filed within 60 days.”     Or, if Congress intended to

specifically limit this Court’s jurisdiction in Article 67(b),

UCMJ, it could have directed the filing deadline to this Court

rather than the accused.   That is what Fed. R. App. P. 4(a)(6),

the rule implementing the statute at issue in Bowles, directs by

using the words “but only if.”   The predicate statute is equally

express in its mandatory effect:      “no appeal shall bring . . .

before a court of appeals for review unless notice of appeal is


                                 10
United States v. Rodriguez, No. 07-0900/MC

filed, within thirty days after the entry of such judgment,

order or decree.”    28 U.S.C. § 2107(a) (emphasis added).   Most

importantly, Congress used prescriptive language in defining

this Court’s jurisdiction in Article 67(a), UCMJ:

     (a) The Court of Appeals for the Armed Forces shall
     review the record in –-

           . . . .

          (3) 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.

(Emphasis added.)

     Congress knows the difference between “shall” and “may” and

between “must” and “may.”    In this statutory clause, it chose

“may.”   For sure, “may” can convey prescription, as in the case

of Bowles, where district courts may hear petitions, but only if

the filing deadline is met.   Indeed, as the majority notes, in

1981, Congress changed section (b) from “shall” to “may” while

extending the period during which an appellant may file a

petition to this Court.   But Congress did not choose to alter

this Court’s jurisdiction at the same time.   Against the

backdrop of twenty-nine years, starting with Ponds, of the Court

interpreting this section of the law as a permissive right of an

accused to petition, as opposed to a prescription on the

jurisdiction of this Court, Congress did not specifically limit

this Court’s jurisdiction.    To the contrary, Article 67(a),


                                 11
United States v. Rodriguez, No. 07-0900/MC

UCMJ, continues to state that this Court “shall review” the

record in all cases upon petition of the accused and on good

cause shown.   Thus, the presence of the modal verb “shall” in

Article 67(a), UCMJ, is as important as the absence of such a

verb in Article 67(b), UCMJ.

     Nonetheless, the majority concludes that there is only one

possible way to read the statute, and that interpretation is in

a manner inconsistent with how Article 67, UCMJ, has been read

for over fifty years.   Recall, Bowles does not purport to

rewrite or change the law; it only insists that courts give full

effect to statutory timelines where “Congress specifically

limited the amount of time” within which a court is authorized

to hear an appeal.   127 S. Ct. at 2366.   Congress has not

“specifically limited the amount of time” within which this

Court may, of its own accord, consider a petition for review.

This conclusion is all the more evident when the statutory text

is considered in the context of the statute as a whole.

The Broader Context of the Statute as a Whole

     The text of Article 67, UCMJ, does not appear in a vacuum.

Rather, it appears within the structure of the UCMJ, which

defines a distinct system of military justice based on four

pillars relevant to this case.

     First, Congress intended that this Court provide civilian

oversight of the military justice system through exercise of


                                 12
United States v. Rodriguez, No. 07-0900/MC

appellate jurisdiction.   This Court’s role is to provide for

military discipline and to uphold the rights of servicemen and

women in the criminal context.   Henceforth, such review shall be

foreclosed to appellants who are negligent or indecisive in

seeking appeal, even when these appellants show good cause for

delay.   But it will also be denied to appellants whose counsel

fail to timely appeal or, where through administrative

oversight, the appellate defense offices miss deadlines.    And it

will be denied to appellants who do not understand the system or

how to activate it.   These may be just the servicemembers for

whom Congress felt civilian review might be particularly

important.

     Second, Congress recognized that the military justice

system would draw on civilian principles of law, but nonetheless

operate as a distinct and separate system of justice.    The

Supreme Court has recognized this distinction, as well.    Parker,

417 U.S. at 743.   Most recently, and after Bowles, the Supreme

Court reiterated the distinction in Kennedy.   129 S. Ct. at 2

(“The laws of the separate States, which have responsibility for

the administration of the criminal law for their civilian

populations, are entitled to considerable weight over and above

the punishments Congress and the President consider appropriate

in the military context.”) (order denying rehearing).    It is in

this context that Congress also intended the exercise of


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United States v. Rodriguez, No. 07-0900/MC

civilian oversight through this Court to buttress public

confidence that the military justice system is fair and operates

in a manner consistent with constitutional values.

     This is especially true in a system where the government

determines how physical and human resources are allocated for

defense purposes.   It is the government that is responsible for

staffing the military justice system.   It is the government that

assigns appellate defense counsel.    It is the government that

provides administrative support to the appellate defense

offices.   And, it is the government that provides computer

service to these offices.   It is also the government that now,

at this Court’s invitation, seeks to foreclose civilian

appellate review in cases where allegations emerge that military

appellate counsel provided ineffective assistance of counsel

(IAC) or that the government-staffed appellate defense office’s

processing of the appeal may be flawed.

     Third, Congress intended the UCMJ to be applied in a

uniform manner across services through operation of a central

appellate court.    In reversing over fifty years of precedent by

foreclosing appeals beyond the permissive sixty-day limit, the

Court now invites collateral civilian appellate review in those

cases where legitimate questions of service or constructive

service are engaged, or where questions of IAC are alleged.




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     With the doors to this Court now closed, appellants are

left with two possible avenues of appeal.    First, appellants

could petition the Judge Advocate General (TJAG) to appeal on

their behalf using the certification mechanism.   Among other

things, this would undermine the notion of independent civilian

oversight of the military justice system, as the TJAGs would

effectively serve as gatekeepers to this Court.   It would also

remove the “good cause” threshold from this Court’s

consideration of petitions, but not for certified appeals

falling within this Court’s mandatory review.   Further, there

are obvious bureaucratic incentives for the TJAGs, during a time

of operational demand and staffing constraints, to limit use of

this option if it were used at all.

     Second, and more likely, appellants will seek appellate

review through the habeas Article III process, including any

claims of IAC that might pertain to the failure to timely file a

petition.   This approach runs contrary to Congress’s intent to

have a uniform application of the law through exercise of

unified appellate jurisdiction.    Indeed, there is not only a

risk of inconsistent service results, but also a risk of

inconsistent approaches to military law between appellate and

habeas jurisdictions.   This might occur, for example, where an

accused challenges the application of a new article in the UCMJ

or a change to the Rules for Courts-Martial, but finds this


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United States v. Rodriguez, No. 07-0900/MC

courthouse closed on account of a “late” petition.   Good cause

would otherwise be shown to consider statutory and manual issues

of first impression reaching across the services.    Also,

consider that where an accused raises questions of first

impression involving the application of constitutional law in

military context, these questions will certainly be answered in

the Article III context.   They should be, absent the opportunity

to do so before this Court.

     Fourth, Congress designed a deployable and flexible system

of military justice with permanent courts in Washington and

temporary trial courts in the field.   As a result, the military

justice system is ill-suited to now address the predicate

factual issues that will arise as this Court, the government,

and appellants try to identify and demonstrate the moment at

which this Court’s jurisdiction did or did not expire.2      For

example, consider the prospect that appellants and their counsel

will now be compelled to factually contest issues of

constructive service in order to demonstrate that they should


2
  This Court will also need to amend its rules. C.A.A.F. R.
19(a)(3) states that “a petition for grant of review will be
deemed to have been filed on the date when the petition has been
mailed or delivered by an appellant or by counsel on behalf of
an appellant directly to the Court.” However, if the sixty-day
limit is jurisdictional and mandatory, it must have a definitive
termination point. Thus, it must either terminate on the date
when a petition is mailed or it terminates on the date that the
petition is received. This Court cannot choose between the two
when the sixty-day deadline is mandatory and jurisdictional.

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United States v. Rodriguez, No. 07-0900/MC

have the opportunity for this Court to consider their petition.

Putting aside the obvious point that judicial economy would be

better served by having this Court consider whether there was

good cause to grant a petition before litigating the facts, the

military justice system is not well-suited to adjudicate the

questions of jurisdictional fact that Congress avoided and this

Court now creates.   With no standing trial courts, this will

presumably be done using the DuBay hearing mechanism.      United

States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).

Alternatively, Courts of Criminal Appeals might use their

factfinding authority, but if so, adverse rulings to an

appellant will necessarily have to be appealed using Article III

habeas petitions.    Did Congress intend that constructive

provisions of the UCMJ and ineffective assistance of appellate

counsel claims for missing deadlines be adjudicated using the

habeas mechanism?

Conclusion

     Bowles did not decide that all statutes with timelines are

prescriptive, mandatory, and jurisdictional.   It decided that,

where Congress specifically prescribed a jurisdictional

timeline, the timeline was mandatory.   Based on the plain

language used in Article 67, UCMJ, and the context of the

statute as a whole, it is clear Congress did not do so.      As a

result, Ponds, Byrd, and Tamez remain good law.    Given


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United States v. Rodriguez, No. 07-0900/MC

Congress’s intended role for this Court, this Court should be

last, and not first, to close the courtroom door to military

appellants.




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