Friday, December 26, 2008

Top 10 military justice stories of 2008 -- #8: The Denedo cert grant

Military appellate courts have rarely encountered a potential exercise of authority that they thought was beyond their jurisdictional limits. Following a quiet period in the wake CAAF's SCOTUS-administered wing clipping in Clinton v. Goldsmith, CAAF has expansively interpreted its own jurisdiction in a series of divided decisions starting with Kreutzer v. United States, 60 M.J. 453 (C.A.A.F. 2005) (a case where I think Judge Crawford's dissent was right on the money), and continuing on with cases including United States v. Leak, 61 M.J. 234 (C.A.A.F. 2005), Loving v. United States, 62 M.J. 235 (C.A.A.F. 2005), and United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008). The CCAs have also gotten into the jurisdiction grabbing business in cases like United States v. Dossey, 66 M.J. 619 (N-M. Ct. Crim. App.), motion to withdraw petition granted, 67 M.J. 43 (C.A.A.F. 2008). Even when dealing with petitions for extraordinary relief concerning military commissions -- which CAAF clearly has no jurisdiction to grant -- CAAF has rejected the petitions on bases other than dismissing them for lack of jurisdiction. See Ali v. United States, 66 M.J. 474 (C.A.A.F. 2008); al Qosi v. Altenburg, 60 M.J. 461 (C.A.A.F. 2005) -- though in both of those cases, CAAF did note the possibility that it had no jurisdiction.

This body of case law -- which appears to go in just one direction: expansive interpretation of jurisdiction -- is all the more remarkable because CAAF occasionally gives lip service to the proposition that as an Article I court, its jurisdiction is to be narrowly determined based on a strict construction of its jurisdiction-granting statutes. See Loving, 62 M.J. at 239, 244. That's not to suggest that every divided opinion in which a majority found jurisdiction is wrong. I agree, for example, with CAAF's Loving opinion. But the odds are that when a court's jurisdiction is supposed to be narrowly interpreted and a series of divided opinions applies the court's jurisdiction expansively, the dissent is right at least some of the time.

Which brings us to Denedo, which SCOTUS granted cert to review on 25 November. Denedo v. United States, 77 U.S.L.W. 3106 (2008). A kid may get away with snatching one or two pre-dinner cookies from the cookie jar. But when the kid appears to be launching a sustained campaign of pre-dinner cookie snatching, a parent is probably going to put an end to the practice. And so, CAAF's opinion in the writ of error coram nobis case of Denedo v. United States may represent one-too-many cookies. Only three times has the Solicitor General ever asked the Supreme Court to review a CAAF/CMA opinion: United States v. Scheffer, Clinton v. Goldsmith, and United States v. Denedo. All three times, the Supremes agreed to hear the case. And in the first two instances, the Solicitor General prevailed. United States v. Scheffer, 523 U.S. 303 (1998); Clinton v. Goldsmith, 526 U.S. 529 (1999).

Denedo is significant on many levels. First, it carries the potential to not only nullify CAAF's most recent jurisdictional cookie jar raid, but also to change CAAF's attitude about the practice of cookie jar raiding. It's interesting that CAAF's latest divided opinion expansively interpreting military appellate courts' jurisdiction, United States v. Wuterich, 67 M.J. 63 (C.A.A.F. 2008), was released the week before the Supremes granted cert in Denedo. If the Supremes' decision in the case were to emphasize the jurisdictional limits on Article I courts and the imperative to narrowly construe their jurisdiction-granting statutes, might CAAF take another look at cases like Wuterich and Lopez de Victoria? (Of course, Lopez de Victoria's demise would eliminate CAAF's jurisdiction to look at a case like Wuterich.) An interesting case that may provide an early indicator of a Denedo effect is United States v. Rodriguez, No. 07-0900/MC. In that case, which was orally argued on 23 September, the second issue is "WHETHER THIS COURT HAS JURISDICTION TO CONSIDER APPELLANT'S UNTIMELY PETITION IN LIGHT OF BOWLES v. RUSSELL, 127 S.Ct. 2360 (2007)." Rodriguez is one of only two cases orally argued in September that has yet to be decided. Will CAAF wait for the Supremes' decision in Denedo before deciding Rodriguez? Will the mere granting of cert in Denedo lead to a more conservative construction of the court's jurisdiction in Rodriguez? Of course, we might never know the answer to that question. CAAF might have concluded well before the Supremes granted cert in Denedo that it didn't have jurisdiction to consider Rodriguez. But the very fact that Rodriguez is pending on CAAF's docket points to the ongoing importance of the fundamental jurisdictional questions that the Supremes will consider in Denedo.

Denedo is also significant in that it's just the third case in which the SG has sought cert to review a CAAF decision and it's the first plenary cert grant issued to review a CAAF decision in a decade. Oh, and it displaced the Golden CAAF from the Kabul Klipper's stateroom, resulting in its relocation to the Washington Navy Yard's Appellate Center of Excellence.

Obviously the Supremes' ultimate decision in the case will be one of our top-10 military justice stories of 2009. We look forward to following the case's progress in the new year.


Anonymous said...

"But the odds are that when a court's jurisdiction is supposed to be narrowly interpreted and a series of divided opinions applies the court's jurisdiction expansively, the dissent is right at least some of the time."

I think that right and wrong are not applicable terms. You don't have to be a lawyer to see that Judge Ryan is textually "right" about CAAF lacking jurisdiction in Denedo. So what? It is equally "right" to argue that there was no adequate relief available in the Article III courts and that there is an actual person involved here whose liberty is at issue.

The better question - who has five votes?

John O'Connor said...

Why would anyone think that the grant of cert in Denedo would change CAAF's view toward an (over)expansive view of its jurisdiction when the actual decision in Clinton v. Goldsmith had no such effect?

And, with all respect to my friends at NIMJ, it's difficult to take seriously a top-ten list that puts a cert grant on CAAF juerisdiction just one place ahead of a left-leaning trust providing a grant so NIMJ can have a couple of staff attorneys.

Dew_Process said...

The issue in Denedo is NOT whether CAAF had "jurisdiction" - Art. 67(a)(3), UCMJ, gives them statutory jurisdiction.

The correct "Question Presented" is whether the N-MC CCA had "jurisdiction" to entertain the Extraordinary Writ of Coram Nobis?

The "issue" with CAAF in Denedo is whether the language in Art. 67a(a), UCMJ, i.e., "The Supreme Court may not review by writ of certiorari under this section any action of the [CAAF] in refusing to grant a petition for review," precludes SCOTUS jurisdiction, when the CAAF has yet to "grant" or "refuse(d) to grant" Denedo's Writ Appeal petition?

The sub-issue with CAAF is whether or not "remanding" the case specifically to get the Government's position "on the record" is relief, as the SCOTUS "Jurisdictional Basis" is 28 USC 1259:

"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:
* * * *
(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."

If they can't get 5 Justices to agree that a remand expressly for the purposes of perfecting the record so that the CAAF can make an "informed" decision constitutes 1259 "relief," then SCOTUS doesn't have jurisdiction.

The practical question boils down to this - does the writ of error coram nobis apply to Article 66, UCMJ, Courts after normal appellate review has expired? If SCOTUS says "no" [the essence of Judge Ryan's analysis], that would appear to be contrary to the Legislative Intent of the UCMJ's Drafters, but would provide clarity for the military. But, on the other hand, it creates a potential for then seeking such relief in every federal district court in the Country - the proverbial "Pandora's Box."

The Pandora's Box here, ironically, is best viewed through Justice Scalia's opinion in Spencer v. Kemma, 523 U.S. 1 (1998), and his discussion of "collateral consequences." I.N.S. v. St. Cyr, 533 U.S. 289 (2001), is clearly implicated, and authorizes judicial review - so the question returns to, does a CCA as an Article I, Court, have the "jurisdiction" to issue an appropriate writ?

The same 5 justice majority in St. Cyr is still on the Court... The SG's merits Brief should be interesting reading.

Dwight Sullivan said...

Of course, if JO'C's suggestion that the Supremes' ruling in Denedo won't have an impact beyond the Denedo case itself, then NIMJ's increasing in staffing will likely prove MORE significant than the Supremes' grant of cert in Denedo.

John O'Connor said...

Dwight, I suspect you know that's not my suggestion at all. I am ever hopeful that the Supreme Court will come to view CAAF as in need of very, very specific guidance as to what it can do and what it cannot do, in words that can't be ignored with a straight face. Call me a dreamer.

Dwight Sullivan said...

JO'C, please read my comment again. I wrote of your "suggestion that the Supremes' ruling in Denedo WON'T have an impact beyond the Denedo case itself" (emphasis added), not that you suggested it SHOULDN'T. Please substitute "prediction" if you don't like the word "suggestion."

Anonymous said...

Can someone make an equity argument concerning the value of strict interpretation of jurisdiction?

Why is it wrong for CAAF to exercise jurisdiction over someone who may have been screwed over in miltary court, but, through no fault of his own did not find out until several years later?

We have our own separate legal system, so why can't this system be utilized to fix its own potential mistakes?

Sending people who have been screwed over by military court to federal court doesn't seem to have any common sense justification, unless you are the government and want to make it as difficult as possible for a servicemember.

In either scenario, a U.S. court is going to have to consider the gripe, so how is it more efficient to make a federal court do it instead of a military appellate court?

Anonymous said...

It will be the ultimate irony if the Supremes do clip CAAF's wings. The era of "deference" to the military justice system would seem to be over as it is clear that the military courts cannot be "trusted."

Notably, none of the 5 Judges in Goldsmith are currently on the Court as "active" judges, and certainly none of the current CAAF judges have ever come close to Judge Sullivan's expansive concept of CAAF's jurisdiction.

What happens in cases such as Gray v. Mahoney,39 M.J. 299 (CMA 1994)? Did Congress really intend that Article III courts "supervise" military justice? Or, in cases such as McCray v. Grande, 38 M.J. 657 (ACMR 1993), must an accused now go directly to federal court for Habeas Corpus relief?

A few of us were "around" when the CMA decided McPhail v. U.S., 1 M.J. 457 (CMA 1976) - now there was a revolutionary decision!! But, notably, in the 32 years since McPhail was decided, Congress with all of its pro-prosecution tinkering of the UCMJ, has never legislatively overruled or restrained the Court's premise of supervisory jurisdiction where there is no statutory jurisdiction.

There is only one positive thing that can result from the Supreme's agreeing with the government in Denedo - civilian defense counsel will have a huge market to collaterally attack military court-martial proceedings, since Detailed Defense Counsel are precluded by arcane rules prohibiting such representation.

Anon 0546 makes a good point. But, SCOTUS has answered that long ago in Noyd v. Bond,396 U.S. 683 (1969). Noyd's language is informative:

"When after the Second World War, Congress became convinced of the need to assure direct civilian review over military justice, it deliberately chose to confide this power to a specialized Court of Military Appeals, so that disinterested civilian judges could gain over time a fully developed understanding of the distinctive problems and legal traditions of the Armed Forces.
* * * * *
Petitioner, however, has made no effort to invoke the jurisdiction of the Court of Military Appeals. Nevertheless, he would have civilian courts intervene precipitately into military life without the guidance of the court to which Congress has confided primary responsibility for the supervision of military justice in this country and abroad." Id. at 694-95.

Denedo, under the government's theory, will do just that.

Mike "No Man" Navarre said...

Anon Sun Dec 28, 06:43:00 PM EST raises a good point and one I have been pndering ever since our discussion of the cost of the Equal Justice Act and the ability to take MilJus cases to the COFC. While the "cost" of Denedo may be to reduce the cost of MilJust cases I thinkthere is a very legitimate possbility that it is an overall enlargement of costs to the system. Federal habeas cases are far larger drains in Gov't resources and will involve DOJ and the service lawyers. I think the contraoversy is, however, ultimately a legislative cotnroversy as this is not really something that the courts are well suited (or should) address.

John O'Connor said...


Please re-read my original post. I never suggested nor predicted that the "ruling" in Denedo would have no effect on CAAF. My sole point was that there was no particularly good reason to think the mere grant of cert in Denedo (as opposed to a decision in that case we have not yet seen) would affect CAAF's conduct in the interim.

It is my view that the ruling in Goldsmith had little discernible effect on CAAF's tenedency to view itself as the residual court for grievances related to military justice. But I didn't suggest or predict that the "ruling" in Denedo will have no practical effect beyond Denedo. It might not, but I could conceive of language in a Supreme Court decision in Denedo that would have a profound effect on how CAAF treats jurisdictional issues. We'll see when the case gets decided.

John O'Connor said...

Anon 1843:

Noyd's langauge notwithstanding, I can't see much of a reason why the Supreme Court should defer to CAAF on anything, with one exception. The CAAF may set its own internal rules and procedures, and I could see good reason to defer to the judgment of the CAAF as against, say, as due process or equal protection challenge to such internal rules and procedures based on CAAF's superior experience in how cases are processed and tried in the court-martial system as opposed to the civilian courts. That is, the CAAF, through acquired knowledge, might have a better sense of what procedures will "work" in the court-martial appellate environment (subject to being overruled by appropriate legislation).

Outside of internal operating procedures, it seems to me that Conmgress and the Presdient are the government actors entitlwed to deference as it relates to military justice legislation and procedures, based on the Constitution's grant of cognizance for various military matters to those branches of government.

Dwight Sullivan said...

JO'C, thanks for that clarification. I stand corrected.

Dew_Process said...

I agree No Man - but, another way of looking at it is that Congress already has spoken - the now CAAF is the "Supreme Court" of military jurisprudence, as the Legislative History of the UCMJ clearly shows.

When Congress "modified" the CMA in 1989, to add the 2 additional judges, it also enacted Art. 67a [at the government's request to "reign in" what they considered a too "liberal" court]. By 1989, there was expansive "writ" practice in both the then CMRs and CMA - something that Congress could have limited but didn't. Cf., McPhail.

They could have easily put limitations in the CAAF's enabling Act, Art. 141. Art. 144 will be a more interesting approach - the government's continued assertions of "broad" delegation in the 2001 AUMF, can be easily applied to the CAAF. If Congress delegated to the CAAF to sole and exclusive authority to determine their "rules of procedure" [Art.144], how can the Supremes say that the "remand" procedure in Denedo is wrong?

Prof. Laurie's seminal work, "Arming Military Justice" notes that the Elston Act's "torturous" system of review prompted the Drafters to relook at this issue, and that the UCMJ "working group" Chaired by Felix Larkin, expressly noted the "dramatic" increase in federal habeas litigation post WW II, and the desireability of keeping "these cases" out of federal courts.

The legislative history is quite clear - Congress intended the CMA/CAAF to have broad powers - something that the TJAG's opposed in 1950, and continue to do so today. But, the fact remains, that the TJAGs can "refer" otherwise nonreviewable court-martial matters to a CCA under Article 69, which then opens up CAAF jurisdiction.

Denedo could also be "mooted" come January, if the new Administration takes a different view on retroactive immigration consequences.

Also, the Navy TJAG could have (but didn't) Certified the CCA's lack of jurisdiction issue [raised at the N-MC CCA], to CAAF - it is fundamentally unfair to allow only the government to have the keys to the court house, something that the UCMJ intended to rectify.

JOC - With respect to constitutional issues, the Supremes are Supreme. But, in the context of all of the so-called "specialty" courts, e.g., CAAF, Tax Court, Claims Court, etc., they routinely and historically have given "prudential" deference to the decisions of those courts. But if the CAAF has power to issue a writ of habeas corpus, there's no technical jurisdictional distinction for a writ of coram nobis.

Stay tuned!

Dwight Sullivan said...

Dew, the 1989 legislation creating Article 67a moved language that had previously been in Article 67(h) to a new article. Congress gave the Supremes the power to review CMA decisions in 1983. Military Justice Act 1983, Pub. L. No. 98-209, 97 Stat. 1393 (1983).

Dew_Process said...

Egad! You're right! Mea culpa. I was looking up something in the 1989 Appropriations Bill on the issue of the CJ of SCOTUS assigning federal judges to the CAAF and saw the "new" Art. 67a legislation and totally forgot about it having first been put in Art 67. Good catch! **Salutes**