Tuesday, June 09, 2009

Potential problems pish-posh: a rebuttal to the Kabul Klipper

The Kabul Klipper writes below about concerns that yesterday's SCOTUS opinion in United States v. Denedo will clip military appellate courts' wings by limiting their authority to issue pre-appellate extraordinary relief. I disagree with my learned colleague. As the Kabul Klipper himself acknowledges in his post, Denedo looks backwards for jurisdiction because coram nobis is a backward-looking writ. It don't think the opinion speaks to authority to issue writs of mandamus or prohibition; nor do I think military appellate courts will interpret the opinion aas precluding them from doing so.

An appellate court's authority to issue such a writ is typically thought of as existing if a case potentially falls within the appellate court's appellate jurisdiction. See, e.g., FTC v. Dean Foods Co., 384 U.S. 597, 603-04 (1966). Here's how the D.C. Circuit put it in a 2004 opinion: "Once there has been a proceeding of some kind instituted before an agency or court that might lead to an appeal, it makes sense to speak of the matter as being 'within [our] appellate jurisdiction' -- however prospective or potential that jurisdiction might be." In re Tennant, 359 F.3d 523, 529 (D.C. Cir. 2004). The author of those words? Then-Judge Roberts.


Marcus Fulton said...

I spent most of a day looking into potential jurisdiction. (It was liberty, before you accuse me of goofing off on the taxpayers' dime, and it's too hot to get off the ship here in Dubai.)

I don't really want to admit I'm wrong. It's asking a lot to believe that:

1. Military appellate courts are creatures of statute limited to the narrow tasks enumerated in the several statutes that govern them (accepted by the Denedo majority);

2. Through application of the All Writs Act, Seaman Recruit Dirtbag can name my CO as a respondent in a writ petition because his summary court-martial isn't going to is liking, and CCA would have jurisdiction either because

a. the AWA provides a general supervisory authority over all things military justice; or,

b. because there is conceivably some way that via Article 64-69 review the case could potentially come before CCA; and,

3. The application of the AWA as described above hasn't enlarged the jurisdiction of the military courts one iota (asserted by the Denedo majority.)

It's the Denedo Court's repeated assertion that the jurisdiction to hear the writ comes from the jurisdiction to hear the case that gives me some pause about the future of potential jurisdiction.

But after doing more digging on potential jurisdiction, starting with the cases you cited, you may have turned me around. It's worth remembering that Article III appellate courts are creatures of statute, too, and their jurisdictions are circumscribed by statute. That their appellate jurisdiction runs to "all final decisions of the district courts" has never acted as jurisdictional bar to writs filed before a judgment is final. Circuit courts' authority "is not confined to the issuance of writs in aid of jurisdiction already acquired by appeal but extends to those cases which are within its appellate jurisdiction although no appeal has been perfected." Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 25 (1943).

Other Article I courts are on board, too. The Court of Veterans's Appeals expressly adopted the Roche Court's rationale in the Article I context in In re Fee Agreement of Cox, 10 Vet. App. 361, 370 (1997) (Fee Agreement of Cox I), vacated on other grounds, 149 F.3d 1360 (Fed. Cir. 1998) (Fee Agreement of Cox II).

Again, it's worth pointing out that coram nobis isn't a very helpful vehicle for learning about potential jurisdiction. We'll have to wait for the firs post-Denedo writ cases to find out what the courts think. I bet it won't be very long.

Anonymous said...

Because the Klipper practices good OPSEC, Dubai is code for "somewhere in the world."

Marcus Fulton said...

Someone's been watching "Squeekers-Operational Security Mouse" on AFN. You can find more on our official site. We're somewhere hot and gritty, so could be Bahrain, Qatar, Kuwait, etc. They're starting to look the same.