Saturday, December 02, 2006

A Kisala cert petition by any other name smells as sweet?

On Friday, 1 December, LT Brian Mizer of the Navy-Marine Corps Appellate Defense Division filed a cert petition challenging CAAF's ruling in United States v. Kisala, 64 M.J. 50 (C.A.A.F. 2006), which upheld the legality of an order to submit to the anthrax vaccine. But LT Mizer, who is one of the leading members of the military appellate bar, is not counsel in Kisala, an Army case. Rather, he filed his cert petition in a case with the unlikely caption of Ocean T. Rose, Lance Corporal, United States Marine Corps, et al. v. United States. Rose is one of the many Kisala trailer cases. See United States v. Rose, 64 M.J. 56 (C.A.A.F. 2006). The Rose cert petition is filed on behalf of ten Marines and one Sailor. No case number is assigned yet and the cert petition isn't yet on the Supremes' web site because it must first be screened, ironically enough, for anthrax.

The Rose cert petition sets out the QPs in Garnerian "deep issue" format, culminating in these two questions:

1. Were the orders given to Petitioners to take Anthrax Vaccine Absorbed lawful when Petitioners had not given informed consent?

2. If the orders given to Petitioners were not barred by Executive Order 13139, and 10 U.S.C. § 1107, do servicemembers have a due process right to refuse unwanted medical treatment, including vaccines that are used as a prophylaxis against chemical and biological warfare?

This excerpt from the Reasons for Granting the Petition section provides a flavor of the arguments:

The lower court’s willingness to give deference to the FDA order that the District Court held was entitled to no deference, and that it ultimately invalidated more than a year before the lower court’s decision, has put the military courts squarely at odds with their civilian counterparts. This conflict has led to the absurd result that the orders given to Petitioners, and those similarly situated, were simultaneously illegal, according to the government-wide injunction issued by the District Court, and legal, according to the Court of Appeals for the Armed Forces. Only this Court can resolve this conflict. Absent review by this Court, the military convictions of those servicemembers who refused orders to receive AVA will be final.


While almost any cert petition that doesn't list the S.G. as counsel of record is a long shot, this one seems likely to receive some serious consideration. Along with the cert petition seeking review of the unsuccessful collateral challenge in New, I put Rose on my list of military cert petitions to watch.

Will Kisala's counsel also file a cert petition? If so, and if the Supremes buck the odds and decide to consider the anthrax vaccine issue, which will be argued? Stay tuned to CAAFlog for all the exciting details.

--Dwight Sullivan

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