Tuesday, November 11, 2008

Another thought about Denedo

I continue to be amused by the irony of those who would have the Supreme Court exceed its statutory cert jurisdiction to slap CAAF's hand for reaching into a forbidden jurisdictional cookie jar in Denedo. (NOTE: I'm not implying that all those who support cert in Denedo are relying on such arguments; I understand that one can argue that granting cert in Denedo would be permitted under 28 U.S.C. § 1259, though I don't buy that argument myself. But some commentators have attempted to concoct non-statutory (and non-existent) bases for the Supremes to review Denedo.)

The Supreme Court's jurisdiction to review CAAF cases is entirely a creature of statute. The statute that created that authority is the Military Justice Act of 1983, codified for current purposes at 28 U.S.C. § 1259. Unfortunately for the government in Denedo, § 1259 is highly restrictive in its jurisdictional grant. Usually these restrictions favor the government and disadvantage the accused. But in Denedo, § 1259's jurisdictional gerrymandering happens to hurt the government.

Let's compare the statute that authorizes SCOTUS review of the Article III courts of appeals' decisions with that authorizing SCOTUS review of CAAF decisions. 28 U.S.C. § 1254 provides, in relevant part: "Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: (1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree." If a similar statute applied to review of CAAF decisions, then the Supreme Court would have jurisdiction to review Denedo now, though it would have complete discretion to decline to exercise that jurisdiction for any reason, including lack of ripeness. But the statute providing SCOTUS jurisdiction over CAAF cases reads nothing like § 1254 -- and the reason it doesn't was to severely restrict military appellants' right to even seek cert. § 1259 provides:

Decisions 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:
(1) Cases reviewed by the Court of Appeals for the Armed Forces under section 867(a)(1) of title 10.
(2) Cases certified to the Court of Appeals for the Armed Forces by the Judge Advocate General under section 867(a)(2) of title 10.
(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.
(4) Cases, other than those described in paragraphs (1), (2), and (3) of this subsection, in which the Court of Appeals for the Armed Forces granted relief.
The only basis under which Denedo could possibly qualify for review is (4), but since CAAF didn't "grant relief," as that phrase is typically construed, it doesn't fall within SCOTUS's statutory jurisdiction.

So those who think that the United States should have a right to seek SCOTUS review of Denedo now should be getting in touch with their members of Congress to seek an amendment to § 1259 to make it read more like § 1254.

Interestingly, neither of the pending bills before Congress to expand SCOTUS's cert jurisdiction over military justice cases wouldn't bring Denedo within the Supremes' statutory cert jurisdiction. Both H.R. 3174 (which has been passed by the full House of Representatives) and S. 2052 (which has been favorably reported out of the Senate Judiciary Committee) would amend § 1259 by adding "or denied" after "granted" in subsections 3 and 4. But because relief has yet to be either granted nor denied in Denedo, SCOTUS statutory cert jurisdiction doesn't exist now and still wouldn't exist even if one of those bills were to become law.

But there's no cause for alarm unless and until § 1259 is amended to function more like § 1254. If CAAF ever were to actually affect the United States' interests by granting relief in Denedo or some similar case, then the United States would have jurisdiction under current law to seek relief from the Supremes. In essence, the current version of § 1259 elevates what would normally be the prudential consideration of ripeness into an actual jurisdictional requirement.


Anonymous said...

Come on, Mr. Sullivan, quit being a CAAF apologist. CAAF was dead wrong and needs to be put back in its box.

Anonymous said...

Great point Col Puleo!

Anonymous said...

Anon 08:07: Totally innapropriate.

Anonymous said...

one n, three p's

Anonymous said...

As that phrase is typically applied? I am not sure I agree that a remand, in an of it self is not sufficient enough to consider it relief. I do not think that relief has to be the lessening of punishment but can be contrued to mean a judicial opportunity to have the case heard where there previously was not opportunity. In fact, remand is relief. Denedo had a right to have CAAF review the case. He waived that right and now CAAF has given him the opportunity at a second bite at the apple. SCOTUS recently said in Boumediene, "A remand is not the only relief available for detainees caught in the Court’s hypothetical conundrum." It seems like the Supremes may view remand as a form of relief.

John O'Connor said...

I agree with Anon 1517. I've always thought that Denedo got relief as that term is used to describe SCOTUS's jurisdiction.

Could a court find differently? Sure. But I think that's the most reasonable construction of the statute.

Dwight Sullivan said...

Anon 1517,

"SCOTUS" said no such think in Boumediene. The quotation you offer comes from Chief Justice Roberts' dissent. Boumediene v. Bush, 128 S. Ct. 2229, 2290 (2008) (Roberts, C.J., dissenting).

This calls to mind a particularly uncomfortable exchange during the Supreme Court oral argument of another military justice case, United States v. Scheffer, 523 U.S. 303 (1998). Note that the questioner in this exchange was Chief Justice Rehnquist:

QUESTION: Ms. Sheffield, a moment ago, you were--you read a quotation from Taylor against Illinois. Were you quoting from the court opinion or the dissent?

MS. SHEFFIELD: It was a dissent, Your Honor. And I should have specified.

QUESTION: I think you should have made that clear.


OyezOyez said...

I think this post puts the cart before the horse. SCOTUS's authority to say "what the law is" (e.g., limits on CAAF's grant of authority) is not a made-up non-statutory basis of jurisdiction, but is fundamental to the Supreme Court being the highest body within the judicial branch. See Marbury.

If SCOTUS wants to smack CAAF for exceeding its jurisdiction, the Opinion will read like Parisi and Goldsmith. It's not clear to me that it has to (or should have to) ground itself in one of the statutory grants of jurisdiction it would use in the normal course of CAAF appeals.

Dwight Sullivan said...


I don't have time to go into a detailed rebuttal of your proposition right now, but it's wrong. You must consider the difference between the Supremes' original jurisdiction and the Supremes' appellate jurisdiction. Article III, section 2, clause 2 of the Constitution allows Congress to regulate the latter but not the former. And Supreme Court precedent holds that the Court's appellate jurisdiction must have a statutory basis. This conclusion is particularly imperative when dealing with review of decisions by Article I courts, like CAAF.

Plus, in any event, the SG asserted jurisdiction on the basis of Section 1259. So if there was no relief -- under the definition of that term offered by such a legal luminary as Judge Posner -- then there is no jurisdiction under Section 1259.

It might be interesting to consider whether the SG could have sought a writ of prohibition rather than a writ of certiorari, relying on SCOTUS's potential appellate jurisdiction. But he didn't. If the case doesn't fall within section 1259, then the Supremes have no jurisdiction to issue the writ of certiorari that the SG has sought.

While I disagree with 1517 Anon and JO'C, they are offering statutory bases to find jurisdiction. If they're right about how to construe the legal term "relief" (and I'll stick with Judge Posner's view that they're wrong), then jurisdiction exists. But arguments such as yours are the kind that strike me as highly ironic -- concocting jurisdiction where there is none to slap down CAAF for exercising jurisdiction where it had none.

Dew_Process said...

The cart IS before the horse here. The underlying question must be, did the N-MC CCA have jurisdiction? That's where the writ was filed. The government moved to Dismiss for lack of jurisdiction, and lost. The government did not cross-appeal that denial.

When the CCA denied relief on the merits, CAAF has presumptive jurisdiction over the Writ-Appeal, under Art. 67(a)(3). But, CAAF has not yet "granted a review" and Article 67a(a)'s language would seem to be controlling: "Decisions of the [CAAF] are subject to review by the Supreme Court by writ of certiorari as provided in section 1259 of Title 28."

1259(4), says: "Cases, other than those described in paragraphs (1), (2), and (3) of this subsection, in which the Court of Appeals for the Armed Forces granted relief."

I must agree with Dwight - "relief" is the key, and a remand under the circumstances here, is hardly "relief" for anyone. Is a remand order a "Decision" in the case? Would also seem to be an appropriate question.

Goldsmith never addressed the issue here - there were two related, but separate cases before CAAF in Goldsmith, a writ appeal from the AF CCA, and an original writ at the CAAF. CAAF denied the writ-APPEAL as moot in Goldsmith, and granted relief on the original writ. THAT is the case that went to SCOTUS, not the writ-appeal.

Denedo's action at the CCA level was in the nature of a Petition for a Writ of Error Coram Nobis - which has a long military jurisprudential history and which "reopens" a case where there originally was jurisdiction.

I think that the SG's decision not to reply to Denedo's jurisdictional argument is somewhat telling.

Anonymous said...

But did the LORD create man in his own image?

Anonymous said...

Guessing about the SGs motives in not replying is just arm chair QBing. Obviously, there were guesses speculating why the SG didn't reply which were all wrong. I again urge people to stick with what they know, the facts and if you don't know the facts then you are no different than Joe the plumber (except you probably pay taxes).

Anonymous said...

Now we can all speculate about why the SCOTUS Clerk distributed the case before the SG's Reply was filed. Ain't blogging grand....

Anonymous said...

Yep, the SG wore a green tie that day as well, we all know green ties are a sign of weakness. I think the SG thinks the case is weak but won't admit it.