Friday, September 29, 2006

The Golden CAAF Award

It's still a day early to give out the end-of-term awards (The Golden CAAFs?). But my nomination for Most Cert-Worthy Opinion in a Non-Capital Case has to be Kisala/Rose. Even though the potential petitioner only has a 3% chance of getting a grant, I put the chance of this administration wanting to do Senator Graham a favor at something less than that.

At the outset, I should disclose that I was LCpl Rose's attorney before the lower court, so I'm a partisan. But I found the opinion's heavy reliance on presumptions in favor of agency determinations (one of them even post hoc) to be pretty thin gruel. The most compelling argument that the vaccine is an IND is that there remains an active IND application on the vaccine for purposes of inhalational anthrax, a fact that renders the vaccine an IND by the FDA's own definition. Although the opinion mentions the pending IND application, it ignores the legal significance of it under the FDA's rules. Of course, just because an opinion is (in my view) inadequate or disappointing doesn't make it cert-worthy. But the opinion does conflict more or less with the DC Circuit, and I think the QP that could be crafted out of Kisala would make even the most sleepy clerk turn the page; something along the lines of "May the military perform illegal medical experiments on the sons and daughters of America?" Well it’s a start. We’ve only had five years to craft this one. While the narrow questions of whether Anthrax is an IND does not affect more than a dozen or so appellants at this point, the rationale of Kisala subjects over million active-duty service members to a significant diminution in their personal autonomy. I think a well crafted cert petition would covertly play to the residue of mistrust left by earlier disgraces such as the Tuskegee syphilis experiments and the like.

So I think you’re both wrong. The Golden CAAF goes to Kisala

--Marcus Fulton


Jason Grover said...

Does Loving change your opinion Marcus? Any thoughts on the government's desire to appeal Loving?

CAAFlog said...

I continue to believe that the Supremes will not review any CAAF case from this Term other than Lane. I think it more likely than not that they will review Lane.

I plan to put up several posts today, one addressing Lane, one addressing an aspect of the Supreme Courts' certiorari jurisdiction that is relevant to Loving, and one addressing two particular sentences in the Loving opinion that interested me in what will no doubt be an idiosyncratic way. But at the moment I am off to cheer for Frank Robinson in his final day in a major league uniform. Go Nats!

--Dwight Sullivan

Marcus Fulton said...

The catagory was "in a non-capital case," so it doesn't change my opinion. Col Sullivan persists in his beleive not only that Lane is the most likely to granted, but that it is actually going to be granted. Yet he hasn't explained why the politics work on this one. Who's pushing for this one to go? Maybe he knows something he isn't sharing. I'd offer to make it interesting but I'm afraid of the lifetime ban for betting on my own clients.