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CAAF quickly dispatched the government's motion to stay the mandate, which was filed AFTER CAAF had already issued the mandate:
On December 4, after our Court issued the Dearing mandate, Respondent filed a motion to stay the mandate. In a separate filing on the same day, Respondent urged our Court to deny Petitioner’s request for extraordinary relief while the Government considered whether to seek review of the Dearing decision in the Supreme Court. We note that the Dearing mandate was issued in accordance with our rules seven days after we completed action on the petition for reconsideration. See C.A.A.F. R. 43A(a). Respondent did not file the request for a stay until after the mandate was issued. Respondent has provided no explanation or basis for its untimely filing. Accordingly, the motion to stay the mandate is denied.
United States v. Dearing, __ M.J. ___, Nos. 05-0405 & 07-8004/NA (C.A.A.F. Dec. 14, 2006) (summary disposition).
Nor would CAAF recall its mandate:
Respondent has not identified any extraordinary circumstance warranting recall. Respondent simply cited the internal consideration within the executive branch on whether to seek discretionary Supreme Court review of our decision in Dearing. Such internal review is a standard feature of government litigation, not the type of “grave, unforeseen contingenc[y]” described in Calderon, 523 U.S. at 550. The case before us does not appear to present any extraordinary circumstances. See 2006 CAAF LEXIS 1399, *2-*3 (discussing the context of the present litigation).
Id.
CAAF then easily concluded that Dearing was entitled to either release or tranfer to pretrial confinement status because he had already served more than the maximum period of confinement for the one offense of which he remains convicted. CAAF emphasized, "Our Court’s decision on the merits in the present case is in the same posture, in terms of finality, as the decision of any other appellate court that has issued a mandate and that is subject to discretionary review by the Supreme Court." Id.
Granting a writ in this case was necessary and proper. It was the only means to compel the government to do what it was already legally obligated to do: comply with CAAF's ruling and mandate. So there was nothing "extraordinary" about the writ, but only about the circumstances that required it.
--Dwight Sullivan
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Dearing may win again and again. While the C.A.A.F. issued its most recent decision in this case last Thursday, as of this morning, the government had refused to remove Dearing from confinement at the USDB or place him in pretrial confinement. The United States informed LT Scott Stoebner that they have been unable to find brig chasers since last Thursday. LT Stoebner filed a motion to dismiss the charges and specifications with prejudice at the C.A.A.F. this afternoon. Can the United States lose the same case five times?
Anybody have an update, did the government in fact release Dearing or do a pretrial confinement hearing?
Ah, yes, Chief Justice Taney's unsuccessful attempt to spring Lieutenant John Merryman of the Baltimore County Horse Guards in my home state of Maryland. Guert, I wondered if you were there, but I see you were Chief of Ordnance at the New York Navy Yard in 1861. Was this the topic of much talk in the officers' mess?
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