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Wednesday, August 27, 2008
Denedo predictions?
Friday is the Acting SG's deadline to submit a cert petition to the Supremes in Denedo, No. 07A1027. Do you think he'll file? My prediction is no due to a combination of the case's apparent failure to satisfy any of the four jurisdictional hooks under 28 U.S.C. § 1259 and ripeness concerns. Other predictions and (especially) insider knowledge are welcome in the comments section.
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16 comments:
I guess it is a difference on the definition of "relief" in para (4). Is accepting the case on Writ and then sending it back to NMCCA relief? It does seem strange that CAAF can manipulate the case without oversight. That is, they can take the Writ and send it to NMCCA for review. If NMCCA grants no relief then CAAF can again send it back for further review. In essence CAAF would not be granting any relief. My money is on the SG filing.
I don't buy CAAFlog's jurisdictional argument. In my mind, the SG SHOULD file, but something in the back of my head says he won't.
There's no mantel in my stateroom, so I parked the Golden CAAF on my TV. Absent heavy seas, I bet it stays right there.
I've asked Vegas but they are not opening any lines on it yet. However, I am told the British will bet on anything. $10 says the SG files. What may be interesting is that at CAAF on the writ Denedo had a civilian counsel (with military assigned). If it goes to SCOTUS I wonder if he can afford that expense and stick with the civilian.
Anon 0947 - I suspect the civilian attorney would gladly perform services pro bono for the opportunity to argue before the Supreme Court. Wouldn't you?
But as to CAAFlog's initial question, my prediction is "yes" - the SG will file.
My prediction is that the acting SG will not file. Denedo is not ripe for SCOTUS review as 28 USC 1259(4)’s jurisdictional requirement cannot be triggered at this time (CAAF did not grant relief). Notwithstanding, I don’t believe the Government wants to draw any attention to the current inequity in 28 USC 1259(3) and (4) since there are two pending bills in this Congress, HR 3174 and S.2052. DoD and the administration are opposed to the two bills and the general idea of equal access to the high court for service members. Extensive briefings in SCOTUS on jurisdiction, and the history thereof, could potentially draw national attention to the fact that service members do not have equal access to the nation’s highest court while enemy combatants and illegal aliens enjoy full procedural due process protections in accessing SCOTUS. In a presidential election year with two bills pending in Congress – the acting SG isn’t going to touch this one.
I doubt Denedo will draw national attention. But I say the SG will file.
I agree with DB that the civilian attorney would gladly take the case pro bono. Either that, or some other civilian attorney or law professor would jump at the opportunity.
I will remain silent on the filing prediction.
Why can't an active duty attorney do it?
Anon 1349:
Certainly that attorney could, as long as he/she were admitted to practice before the Supreme Court. But Denedo felt compelled to employ a civilian attorney at his own expense before CAAF. It probably means that if expense is not an obstacle, Denedo would not want to risk his odds before the Supreme Court with his military counsel.
Denedo may have gone with a civilian because he was discharged from the military some 7 years prior to his Writ and was not entitled to a military counsel. I am not sure if expense is an issue for him but then again he probably still has all the money left from the checks he stole and cashed.
If the SG was not going to file why take two enlargements?
Anon 1646:
SG has done the same thing before, then opted not to file in the end.
Insider info says CAAFlog is wrong.
I've seen the SG take one enlargement but never two in a case where they are not going to file. This would be true especially in light of the thought that there is a jurisdictional reason not to file. If it is straight up jurisdictional (i.e., CAAF granted no relief so the door is closed) the SG would not take a second enlargement (my humble opinion). However, I too throw my vote towards the SG filing.
Anon 2202:
It's been a few years, but my recollection was that following CAAF's decision in U.S. v. Jenkins in 2004, the SG requested two extensions before ultimately declining to file.
I don't know what was going on behind the scenes in that case, and maybe that was just an exception to the general rule, but it has happened.
I predict the SG will file!
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