Tuesday, October 28, 2008

More thoughts about the Denedo opposition

We have previously discussed the opposition to the SG's cert petition in Denedo. The cert petition is available here and the opp is available here.

As I've made clear, I don't believe that CAAF had jurisdiction in Denedo but I also don't believe that the Supremes have jurisdiction to grant cert at this point.

Several commentators have advanced arguments for SCOTUS jurisdiction, but I find those arguments unpersuasive. Let's unpack a couple of them to demonstrate why.

I think we all agree that SCOTUS has jurisdiction only if CAAF granted "relief." The opp cites a Seventh Circuit decision authored by then-Chief Judge Posner of the Seventh Circuit and joined by Judges Easterbrook and Manion. They observed: "Summary judgment is not relief. It is merely a procedural premise for relief. The relief is whatever the party moving for summary judgment was seeking and the court agrees the party is entitled to." Health Cost Controls, Inc. v. Washington, 187 F.3d 703, 706 (7th Cir. 1999). This appears to be quite helpful to Denedo's position that a remand for further proceedings isn't relief and thus doesn't give SCOTUS jurisdiction to review the case.

But 0846 Anon is unimpressed. He/she counters: "Looks like relief to me - allowing a discharged serviceman a hearing that he isn't entitled to." No offense, 0846 Anon, but if I could have Judge Posner or you on my side, I'll take Judge Posner.

Ten years ago, a group of three distinguished law professors published an empirical assessment that used "the number of citations to the published opinions of judges on the federal courts of appeals to measure the influence of individual judges." William M. Landes, Lawrence Lessig & Michael E. Solimine, Judicial Influence: A Citation Analysis of Federal Courts of Appeals Judges, 27 J. Legal Stud. 271, 271 (1998). (Click here for a "working paper" version of the study.) Guess who the study found to be the most influential judge on any federal court of appeals. Right, Judge Posner. Guess who was third. Yup, Judge Easterbrook.

Of course, as any Bill James fan would tell you, an empirical assessment is helpful only to the extent that it measures the right thing. Here, I don't think that anyone would express surprise that Judge Posner would be deemed the most influential federal court of appeals judge. On the contrary, wouldn't we be surprised and suspicious of any metric that suggested he isn't the most influential federal court of appeals judge? Eyeballing the list, it sure looks like the profs measured the right thing.

So it would be impossible for two federal court of appeals judges to provide more gravitas than does the combination of Posner and Easterbrook. (The number 2 judge -- Judge Selya -- sits on the First Circuit. The third member of the Health Cost Controls Inc. court -- Judge Manion -- ranked 83rd of 205.) So the Posner/Easterbrook/Manion view of "relief" is likely to be quite persuasive to the Supremes.

0846 Anon also offers a fallback position: "this is one of those issues that is capable of repetition yet avoiding review." But that isn't really true. The issue doesn't evade review. If CAAF were ever to grant relief in a post-finality case, the SG could seek cert then. But even if it were applicable, the "capable of repetition, yet evading review" doctrine is an exception to mootness. Davis v. FEC, 128 S. Ct. 2759, 2768 (2008). That doctrine doesn't create jurisdiction where none existed before.

If Denedo ever actually obtains relief from the military appellate courts, then SCOTUS can (and, in my mind, should) grant cert. If he doesn't, then SCOTUS should await some future case in which post-finality relief is granted to test CAAF's jurisdiction over such cases.

On the question of whether Denedo could be retried if he obtained relief, if his BCD were set aside, would he then revert to his status as a member of the United States Navy? If so, then jurisdiction would exist under Article 2(a)(1) to court-martial him. Even if not, Article 3(a) would provide a clear statutory basis for jurisdiction, though United States ex rel. Toth v. Quarles, 350 U.S. 11 (1966), suggests that the exercise of such jurisdiction might be unconstitutional. So, ironically, if Denedo were to win, his case could lead to revisiting Toth v. Quarles, which could have even greater jurisdictional significance that the jurisdictional question raised by the SG in his cert petition.


Anonymous said...

If his BCD is set aside he is administratively discharged as he is past his EAOS. There would be not jurisdiction on him.

The troubling thing is the bottom line up front, CAAFlog admits that CAAF doesn't have jurisdiction to hear the case. So CAAF can operate sans oversight if they know how to manipulate the system. What should SCOTUS do if an Art. 1 court is clearly acting outside of it's jurisdiction? Allow it to go unchecked?

Dwight Sullivan said...

While it has long been Navy policy to administratively discharge any member of the Navy whose punitive discharge is set aside (for end of obligated service if applicable and good of the service if not), historically it hasn't been the case that the member is AUTOMATICALLY DEEMED DISCHARGED. Rather, an affirmative act had to be taken. Assuming that this is still the case under the NAVPERSMAN, Denedo could be put on legal hold rather than discharged and court-martial jurisdiction could be retained.

And if a lower court is exceeding its jurisdiction, surely the correct response isn't for SCOTUS to exceed its jurisdiction to slap down the lower court. Rather, SCOTUS should wait for a case to properly fall within its jurisdiction and then slap down the lower court.

Anonymous said...

So, if after a Dubay and a new NMCCA hearing that overturns the conviction and the case is remanded to the JAG to send to an appropriate CA that CA can say, "Welcome back to the Navy Mr. Denedo, you are going to Iraq tomorrow."

Dwight Sullivan said...

2207 Anon: Yes.

Dwight Sullivan said...

Whoops, that should have read NAVMILPERSMAN. I'm getting rusty in my bizarre Navy abbreviation skills.

Anonymous said...

Re bringing the accused back into the Navy and sending him to Iraq: I agree an affirmative act is necessary to effect his discharge, but I don't know of any authority that would allow the Navy under these circumstances to extend the accused's EAOS, over his objection.

Dwight Sullivan said...

I'm not an expert on military personnel law (thank goodness) and it's been a long time since I've looked at these issues, but it seems likely to me that if Denedo had remaining time on his enlistment when he was convicted, that the Navy could treat his time in confinement and appellate leave as bad time and hold him for the remaining period of his enlistment. And the Navy could almost certainly put him on legal hold and decline to execute any discharge until revived military justice proceedings are complete.

Dew_Process said...

I think the horse has gotten before the cart, here...

The underlying issue should be, did the N-MC CCA have jurisdiction to entertain the writ originally?

The gov't moved to dismiss at the CCA, which the Court denied, then they denied relief on the merits. The gov't didn't cross-appeal that denial.

So, if the CCA had jurisdiction, CAAF clearly has jurisdiction. That's the problem in this case, it is procedurally backwards. CAAF has "jurisdiction" to determine IF it has jurisdiction, but it's not clear that they've even reached that point, which is why the case isn't "ripe" for the Supremes.

Dwight's instinct is correct - if Denedo had time left on his enlistment at the time he was placed on appellate leave, what (if any) time he still owes will depend on how his appellate leave form is worded, and the regs in place at the time.

I think Toth v. Quarles can be distinguished, as he opposed military jurisdiction all along, and sought a habe before he was tried back in Korea. Here, Denedo by filing the Writ at the CCA impliedly consents to jurisdiction by the military - if he has no military "status" [cf. Solorio], then of course there's no in personam jurisdiction, and the subject matter jurisdiction is irrelevant.

The Navy did not contest in personam jurisdiction at the CCA, just subject matter jurisdiction - at least that's how I read their pleadings. Had they done that, i.e., said, "Hey, you're a civilian and have no standing here," it would be a different ball game, as they say. Rather, they focused on the "finality" issue.

nancy truax said...

As a general matter, I think it's only "bad time" if the member is retried and convicted. Otherwise, he'd at least be entitled to back pay (offset by civilian earnings) for all the time spent on appellate leave. See 10 U.S.C. 707.