Sunday, December 28, 2008

This week in military justice -- 28 December 2008 edition

This week at the Supremes: We know of no anticipated military justice developments at the Supreme Court this week. If I calculate correctly, the SG's merits brief in Denedo is due on Friday, 9 January 2009.

This week at CAAF: CAAF has no oral arguments this week. CAAF will hold its first oral arguments of the new calendar year on Monday, 12 January. Of course, CAAF could release opinions and/or grants of review this week. If so, we'll let you know. CAAF has scheduled oral arguments on 12 January, 3 February (Project Outreach), 5 February (Project Outreach), and 9 February. CAAF has empty oral argument dates still listed for 13 January and 9 February, as well as 25 and 26 February, 9, 10, 16, 17, and 31 March, and another seven days in April and May. If a petition is granted or a certificate of review is filed tomorrow, the normal briefing schedule would run on Monday, 9 March. If a petition were to be granted or a certificate of review were to be filed on Tuesday, then the normal briefing schedule would run on Thursday, 12 March. If a petition were to be granted or a certificate of review filed a week from tomorrow, the normal briefing schedule would run on 16 March. And if a petition were to be granted or a certificate of review filed a week from Tuesday, the normal briefing schedule would run on Thursday, 19 March -- past the dates of the next eight empty oral argument dates on CAAF's schedule. And CAAF currently has only five granted-but-unscheduled cases to sprinkle over those eight dates: United States v. Miller, No. 08-0580/AR (granted 9 Oct); United States v. Thomas, No. 08-0738/NA (granted 6 Nov); United States v. Gardinier, No. 06-0591/AR (granted 6 Nov); United States v. Paige, No. 08-0805/MC (granted 9 Dec); and United States v. Weston, 08-0594/MC (granted 15 Dec).

CAAF has announced eight opinions of the court so far this term. It has heard oral argument in another 18 cases that have yet to be decided. And it has those five cases still awaiting scheduling. That's 31 cases. Assuming no more cases are granted before Tuesday, 6 January and assuming that CAAF thereafter picks up the grant pace enough to hold two oral arguments on each of the eight argument dates from 31 March through the end of the term, that would mean that CAAF would issue a total of 47 opinions of the court. CAAF's web site shows the number of opinions of the court issued each year from the FY 1985 through FY 2007 terms. The smallest number of opinions of the court over that span was 55 (FY 07 term). CAAF appears in danger of undercutting that number by a fairly wide margin. Last term CAAF issued 65 opinions of the court -- a figure that appears out of reach for this term.

This week at the CCAs: There are no known oral arguments at the CCAs this week. (The Coast Guard Court appears to remain the sole CCA that doesn't post its oral argument schedule online. But it would be surprising if CGCCA were to hold an oral argument on the week of the New Year's holiday.) It's possible that one or more CCAs could issue a published opinion this week. We'll continue to monitor the CCAs to the extent that they make their opinions publicly available.

This week at the court-martial level: I'm unaware of any significant trial-level activity this week.

As always, please let us know if you're aware of any military justice developments or upcoming significant events. You can reach us at


Anonymous said...

Any way to calculate [other than calling the Clerk's Office] how many Petitions are pending at the CAAF? We may see a flurry of Summary Dispositions as the Court appears to be slowly feeling its way post-Crawford.

Anonymous said...

I wonder - does CAAF have the "rule of two," like the Supreme Court's "rule of four" where a fifth Justice will be obliged to vote to grant cert even when only four vote to grant?

Dwight Sullivan said...

2044 Anon, as Gene Fidell discussed at page 41 of his indispensable CAAF rules guide (available on NIMJ's web site here:, CAAF does require just two judges' votes to grant review.