Equal Justice for United States Military Personnel Act rescheduled for markup

As we have previously discussed, Senate Bill 2052 and House Bill 3174 would permit servicemembers to seek cert even if CAAF denies their petitions for review. The Senate Judiciary Committee has rescheduled its markup of S. 2052. As indicated here, the markup will be on 11 September 2008.

One indication of the bill's continued importance is the pending cert petition in Stevenson v. United States, No. 07-1397. The issue in the case is whether the military has jurisdiction to court-martial a former servicemember on the permanent disabled retired list who is receiving no retirement pay from the military, but is rather receiving disability compensation from the Department of Veterans Affairs. Here's a link to the cert petition. In his opposition to the cert petition (here's a link), the Acting SG argued that the Supremes have no jurisdiction to grant cert on this issue because CAAF had granted review on a different issue in the case. Since at least October 2006, the office of the Solicitor General has argued that 28 U.S.C. § 1259 and Article 67a of the UCMJ limit the Supremes' jurisdiction to the particular issues that CAAF grants; the SG has argued that the Supremes' cert jurisdiction doesn't extend to other issues in the case that CAAF didn't choose to review. That argument appears to be wrong; the relevant portion of § 1259 provides that "[d]ecisions of the United States Court of Appeals for the Armed Forces may be reviewed by the Supreme Court by writ of certiorari in the following cases . . . (3) Cases in which the Court of Appeals for the Armed Forces granted a petition for review under section 867(a)(3) of title 10." Note that the statute speaks of cases in which CAAF granted a petition. Stevenson is a case in which CAAF granted a petition, so it appears to be reviewable. Relying on Gene Fidell's definitive analysis of this issue, Stevenson reply brief effectively rebuts the Acting SG's narrow interpretation of § 1259 and Article 67a.

But if the Acting SG's interpretation were correct, it would radically reduce the number of military justice cases that fall within the Supremes' cert jurisdiction. Under the Acting SG's interpretation, the Supremes would have no cert jurisdiction in the many, many cases in which CAAF grants a petition but no particular issue in the case and then summarily affirms. The main reason CAAF appears to do so is to open the door to the Supremes. But, according to the Acting SG, CAAF hasn't actually succeeded in doing so.

Even if S. 2052 were to become law, it would be too late to resolve that issue for purposes of Stevenson, which has already been distributed for the Supremes' 29 September conference. But definitively rejecting the Acting SG's cramped interpretation of § 1259 and Article 67a for future cases would be yet another benefit of S. 2052's enactment.