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.