Wednesday, June 25, 2008

Denedo update

Not surprisingly, the Chief Justice has granted the Acting SG's request for an extension until 1 August to file a cert petition in Denedo. United States v. Denedo, No. 07A1027.


Norbert Basiil MacLean III said...

CAAFlog, Thomas updated on HR 3174.

Norbert Basil MacLean III said...

I do not believe the Government can take an appeal to SCOTUS in Denedo for the following reasons:

Denedo’s petition was a writ-appeal filed under CAAF rule 27(b)[prior to the effectiveness of the 1 March 2008 amendment to that rule], which is not a petition for review under UCMJ article 867(a)(3). Rather it is a writ-appeal permitted specifically by CAAF rules. CAAF rule 27(b) as it stood when Denedo filed his writ appeal provided in relevant part “upon the filing of pleadings by the parties, the Court may grant or deny the writ-appeal petition or take other action the circumstances may require.”

CAAF did not grant or deny relief to Denedo, rather CAAF took “other action the circumstances . . . required” by remanding to the lower court for additional fact-finding. Because the writ-appeal was not a petition for review under UCMJ article 867(a)(3), no jurisdiction for SCOTUS review exists under 28 USC 1259(3). Additionally, SCOTUS does not have jurisdiction under 28 USC 1259(4) because the statute mandates that CAAF must have granted relief to trigger high court consideration. What CAAF did in Denedo was that it took “other action.” Certainly it did not grant relief. Thus the “granted relief” term as it is used in section 1259(4) is not triggered. This would also seem to comport with the two Congressional Research Service memos on SCOTUS jurisdiction related to the review of cases from CAAF. (One of the two CRS memos can be retrieved on the JAA website: ) CAAF remanding to an inferior court for a DuBay hearing is not granting relief in the context of a writ-appeal petition under CAAF Rule 27(b).

When Congress passed the Military Justice Act of 1983 it only gave very limited avenues for SCOTUS review of CAAF decisions. As this blog has reported, there are two bills pending in this Congress to broaden SCOTUS jurisdiction and fix the inequity in the law as pointed out by the American Bar Association in its report to Congress in August 2006. ( )The two bills are (1) Equal Justice for Our Military Act of 2007, HR 3174; and (2) Equal Justice for U.S. Military Personnel Act of 2007, S-2052. The bills are identical except in name. But even with the passage of either bill SCOTUS would not have jurisdiction of Denedo’s case, at it present posture, because CAAF has not granted or denied relief. As indicated above, it took “other action” by remanding for additional fact finding.

Notwithstanding the above, judicial economy and efficiency favors a finality of the writ-appeal, on the merits, prior to SCOTUS review. If Denedo loses on the merits under current law SCOTUS won’t have jurisdiction. Most of the bloggers here believe that the majority in Denedo got it wrong. I respectfully disagree. Though I believe Judge Ryan’s well reasoned dissent provides for healthy debate on the issue.

Those who disagree with the above, can you point to any authority, either cases, statutes and/or rules that would indicate SCOTUS has jurisdiction in the Denedo case at its current posture?

Anonymous said...

Why are you all afraid of SCOTUS looking at Denedo? This is shocking. If CAAF is correct then they will be validated and if they are incorrect they will not. All these demands, especially from you norbert, about an Appellant getting to SCOTUS seems misplaced when you are debating nuanced definitions of word trying to preclude the government from getting a "yes" or "no." What is your fear? That SCOTUS will say CAAF acted improperly? Don't we want to get this important issue settled?

Norbert Basil MacLean III said...

Anon: 0729:

I’m not afraid of SCOTUS reviewing any military case. I believe that both the Government and the military defendant should have equal opportunity to appeal to the high court. I’m a firm believer in full procedural due process for a military defendant as well as the Government. If you are going to take away a military defendant's right to vote (in certain states); loss of the right to bear arms; and heaps of other civil disabilities based upon a military conviction at minimum the military defendant should have procedural due process. However, as the current law now stands, 28 USC § 1259, Supreme Court review of military cases is only able to occur in very limited circumstances.

Initially I believed that the Government could take an appeal to the Supreme Court in Denedo at its present posture. In fact, just a few weeks ago in the Legal Times I wrote commentary on 9 June 2008: “Who Hears the Troops?” And I took such a position. However, after reflecting upon the issue and participating in debate on this blog, I now believe otherwise. This belief is not for fear of a particular outcome. Rather this belief comes from the statute’s plain language and CAAF Rule 27(b). It also draws from my nearly seven year study of the issue of SCOTUS jurisdiction as it relates to military justice cases.

In a perfect world everyone, the Government and a defendant, would get their day in court upon the merits. As many of you have pointed out on this blog we do not live in a perfect world. The bottom line is that, it is now my belief, SCOTUS does not have jurisdiction to review Denedo at its current state. CAAF did not grant or deny relief to Denedo, it took “other action” in a writ-appeal for extraordinary relief. Under current law if CAAF grants Denedo relief at the end of the day the Government will have the opportunity to petition for certiorari. And if Denedo is denied relief, he will be sealed out of the Supreme Court. In such a situation, the Supreme Court does not exist for Denedo. And if HR 3174 or S-2052 are passed and signed into law then at the end of the day if either party loses (relief is granted or denied), both can have the opportunity to petition the high court for certiorari. If the Navy Judge Advocate General and/or the Executive Branch are not happy about the current law, they can, just as I have for the last seven years, lobby Congress to change 28 USC § 1259. Every year the Department of Defense General Counsel submits legislative proposals to Congress which are vetted by the Office of Management and Budget. If DoD is not pleased with the current law then propose something different to Congress as they have an avenue to do so.

CAAFlog said...

0729 Anon,

Professor Joseph Singer famously wrote, "We are all legal realists now." Joseph William Singer, Review Essay, Legal Realism Now, 76 Cal. L. Rev. 465, 467 (1988). But that doesn't mean every legal argument is design to reach a desired result.

I don't fear Supreme Court review of Denedo. I just don't interpret the Supreme Court's jurisdiction granting statute as giving it authority to review Denedo in its current procedural posture. And since the whole point of reviewing Denedo would be to determine whether CAAF exceeded its jurisdiction granting statute, it would be especially strange for the Supremes to do so in the course of trying to confine CAAF to its proper jurisdiction.

Reasonable minds can differ over whether 28 U.S.C. § 1259 grants the Supremes jurisdiction to review Denedo -- though I haven't found any of the arguments advanced thus far in favor of jurisdiction to be convincing. They either construe the word "relief" in a manner inconsistent with its normal usage or try to shoehorn CAAF's review of Denedo under Article 67(a)(3) without any demonstration that Denedo was actually reviewed under that subsection.

But while reasonable minds may differ, I think the case against jurisdiction is certainly sufficiently strong to at least allow for the possibility that those who advance it are making a good faith effort to construe the law as written rather than acting irrationally out of fear. (It would be especially irrational for those of us who have publicly argued that Denedo exceeded CAAF's jurisdiction to be "afraid of SCOTUS looking at Denedo?". as you posited.)

Anonymous said...

I think the jurisdictional arguments are all thoughtful and sound. What I am getting at is the side that feels CAAF correctly decided Denedo seem (in some part) to be concerned with SCOTUS reviewing the decision. I can only take that to mean they are concerned with the result. The other side who thought CAAF never had jurisdiction are dancing on the fine line: If CAAF never had jurisdiction to decide the case that would mean SCOTUS never had that door opened to them. SCOTUS could say, "We don't have jurisdiction to hear this case." And if NMCCA grants relief and CAAF denies the petition, the government then would not be able to challenge it again. In the end, I personally think that SCOTUS weighing in on the issue, one way or another, is best for all sides.

CAAFlog said...

If NMCCA were to grant relief, then the Judge Advocate General of the Navy could certify the case to CAAF under Article 67(b)(2). If the JAG did so, then whatever side lost at CAAF could go to the Supremes under 28 U.S.C. § 1259(2). So if relief is ultimately granted, then the government can guarantee its own ability to challenge that relief (or the jurisdiction upon which that relief depends) at the Supremes. On the other hand, if NMCCA were to deny relief and then the defense sought review again at CAAF and CAAF denied review, the defense would have no way to get to the Supremes. The Supremes' jurisdiction over military justice cases is flagrantly gerrymandered on behalf of the government.

As NBM3 has written, in its current procedural posture, Denedo doesn't appear to yet be ripe enough to fall within the Supremes' statutory jurisdiction over military justice cases.

And 1009 Anon, your basic argument seems to be that regardless of what the Supremes' jurisdiction granting statute actually says, it would be a good policy for the Supremes to be able to review CAAF's opinion in Denedo. Isn't that kind of reasoning exactly what the Denedo dissent condemned?

Norb MacLean III said...

Anon 1009:

I agree with CAAFlog’s analysis about the Navy Judge Advocate General certifying the case under UCMJ art. 67(b)(2) in the event NMCCA was to grant relief.

Again, I am not afraid of the Supreme Court reviewing the case. I believe that review of Denedo by the high court would certainly clarify the issue. Under Denedo’s circumstances I believe the only forum for him to bring his grievance is before the military courts by way of a petition for extraordinary relief.

I do not believe any district court has jurisdiction either under (1) the Little Tucker Act (due to the statute of limitations) or (2) under habeas (because the custody requirement cannot be met; Denedo is neither confined nor his he on parole or probation and he is not currently on active duty or appellate leave) or (3) under the Administrative Procedure Act (“APA”); or (4) under error coram nobis as explained by the majority’s opinion in Denedo. Nor does the U.S. Court of Federal Claims, under the Tucker Act, have jurisdiction due to the six year statute of limitations. Arguably had the United States moved to deport Denedo prior to the expiration of the six year statute of limitation the Court of Federal Claims would have had jurisdiction under the Tucker Act or a district court under the Little Tucker Act.

Thus far the Federal Circuit has not applied equitable tolling to the statute of limitations where a military defendant exercises remedies outside the course of the normal military appellate process (i.e.: an ex-writ). The various boards of correction, pre-Military Justice Act of 1983, would have had jurisdiction to adjudicate Denedo’s grievance but Congress took the board’s jurisdiction away when it passed that MJA of 1983 by virtue of 10 U.S.C. § 1552(f). Thus the APA would not apply to Denedo.

At the end of the day I desire clarification from the Supreme Court on this issue. If the military courts don’t have jurisdiction to redress Denedo’s grievance and if all other courts lack jurisdiction; a legislative fix to the issue would be warranted. If you listen to the oral argument of Clinton v. Goldsmith (which can be retrieved from, Justice O’Connor followed by Chief Justice Rehnquist, and then some of the other justices, inquired whether Goldsmith had another avenue for his redress of grievance. Goldsmith had several other forums to be heard, Tucker Act, Little Tucker Act; the APA, etc., in the district court as well as with the board of corrections and even the Court of Federal Claims. I don’t believe that is the same for Denedo under the circumstances of the facts and case at it presently stands.

Given my position above, can anyone point to any case law where, similar to Denedo’s situation, the Little Tucker Act; Tucker Act or APA applies? If not, can you cite a case where a convicted and discharged military defendant who completed his sentence (by completion I mean not on parole and issued his DD-214 and not on appellate leave) was able to raise habeas in a district court by fulfilling the custody requirement? Can you point to any case where a district court held that it had jurisdiction to review a military court-martial conviction under error coram nobis? Can you point to any case after the enactment of 10 U.S.C. § 1552(f) where a board of corrections had jurisdiction to set aside a court-martial conviction? If not, then under these circumstances if CAAF does not have jurisdiction to redress Denedo’s grievance he is left bereft without any forum to be heard.

Yes, I’d like the Supreme Court to address this issue because it would clarify whether or not CAAF has jurisdiction in cases such as in Denedo. However, as both CAAFlog and I seem to agree, Denedo at its present posture is not ripe for Supreme Court review. For me it’s about permitting a service member procedural due process to be heard on the merits.