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.