Jurisdiction on appeal: an error on E Street

On December 11, 2015, the U.S. Court of Appeals for the Armed Forces handed down its unanimous decision, per Stucky, J., in United States v. LaBella. The bench consisted of the four judges of the court -- one seat remains vacant -- plus Senior District Judge Royce C. Lamberth (D.D.C.). Hat-tip to CAAFlog for calling attention to the decision. The case has a tangled history and the opinion prompts a few comments.

First, and least significantly, the Court of Appeals has, with this first opinion of the Term, altered its longstanding format for opinions. Instead of double-spaced Courier documents, LaBella looks more like a slip opinion from the Supreme Court or some of the geographical circuits: proportional font and generous margins. Unlike Supreme Court slip opinions, however, there is no syllabus prepared by the court's staff.

Second, and much more significantly, the disposition seems wrong, although the bottom line that A1C Sebastian P. LaBella loses is right. In a nutshell (explained more fully by Zachary D Spilman on CAAFlog), A1C LaBella lost a case at the Air Force Court of Criminal Appeals. No petition for CAAF review was filed within the 60-day period. A1C LaBella, who had previously indicated he wanted CCA and CAAF review, was aware of the deadline but did not contact appellate defense counsel until after the deadline had expired. He then sought reconsideration of the CCA's decision. The CCA allowed him to make that motion out of time, but denied reconsideration. He then filed a timely petition for review at CAAF. The government moved to dismiss because, in its view, the CCA lacked jurisdiction to grant reconsideration by the time A1C LaBella had moved to reconsider.

Now the plot thickens. CAAF specified an issue as to whether it -- CAAF -- even had jurisdiction to review the case. The latest decision finds that the CCA lacked jurisdiction to grant reconsideration out of time and -- "consequently," in CAAF's view, slip op. at 1 -- CAAF lacked jurisdiction over the petition for review. The decretal paragraph vacates the CCA's decision and dismisses A1C LaBella's petition for grant of review for lack of jurisdiction. Slip op. at 5 & n.3.

That the CCA had lost jurisdiction and hence could not grant reconsideration out of time seems clear. What seems equally clear is that CAAF had jurisdiction. Here's why. Every court has jurisdiction to determine its own jurisdiction. If CAAF was right to dismiss A1C LaBella's petition for review on the theory that it lacked jurisdiction because the CCA lacked jurisdiction, that would mean an Article III court of appeals would have to dismiss any appeal challenging a district court decision that incorrectly found diversity jurisdiction (either, say, because diversity of citizenship was incomplete or because the jurisdictional amount was not satisfied) or federal question jurisdiction (because no federal question was actually presented). But the Article III courts of appeals (or, for that matter, the Supreme Court) in these situations do not disclaim their own jurisdiction; they simply decide whether the lower court had jurisdiction. If the appellate court finds that the lower court lacked subject matter jurisdiction it reverses the lower court's judgment for lack of jurisdiction (or perhaps remands with instructions to dismiss on that basis). What it wouldn't do, I believe, is hold that it -- itself -- lacked jurisdiction. After all, if it lacked jurisdiction, how could it rule on the correctness of the decision below?

So what should CAAF have done in LaBella? I think it should have (1) granted the petition for review and (2) reversed on the ground that the CCA had lost jurisdiction. It should not have specified the issue of its own jurisdiction, and should have denied the government's motion to dismiss. If it truly lacked jurisdiction, CAAF had no power to vacate the CCA's decision. The disposition is therefore internally inconsistent.

So what, you might ask? What harm does CAAF's precise disposition do if A1C LaBella loses in the end anyway? The answer is that CAAF's strange disposition deprives him of the right to file a petition for a writ of certiorari at the Supreme Court, thanks to the outrageously discriminatory certiorari provision Congress wrote back in the Military Justice Act of 1983 and refuses to fix. [cc: Military Justice Review Group] Unlike a district court litigant who loses at the court of appeals because there is no genuine federal question in her case or because diversity of citizenship is incomplete but can seek certiorari, A1C LaBella is out of luck in terms of further direct appellate review.

Zach insightfully suggests that A1C LaBella can seek an extraordinary writ, such as error coram nobis, back at the CCA. I agree that he can try, and I hope the CCA entertains such a petition, but the threshold is high, the government will presumably argue that A1C LaBella did not check back with appellate defense counsel until after the deadline, and ultimately he would have to face the Writ Police on E Street.

In summary, CAAF has wandered far off the track in its disposition of LaBella and done so in a way that unfairly and incorrectly subjects A1C LaBella to the statutory ban on certiorari where review has been denied. CAAF didn't invent that ban, but it ought to be mindful not to give it any wider effect than is necessary.