Wednesday, June 10, 2009

Tomorrow's House hearing on H.R. 569

The witness list for tomorrow's hearing on the Equal Justice for Our Military Act has shrunk. Here's the new lineup according to the House Judiciary Committee's web site:

Panel I

Hon. Susan Davis
U.S. House of Representatives
53rd District, CA

Panel II

Dwight H. Sullivan
Attorney
Washington, DC

Major General (Ret.) John D. Altenburg, Jr.
Attorney
Washington, DC

There's a link to watch via webcast here.

37 comments:

Mike "No Man" Navarre said...

DoD is mailing it in? That is a little blog running and meant in good fun for all those at DoD. I realize there are many and varied reasons why a witness would be removed from a hearing list. But, it is rather odd to have a hearing on a law affecting the military and have no one representing the military testifying. I think they are running scared from the current panel.

CAAFlog, I will email you a word that, if you work it into your testimony I promise to never mock your computer skills again. For those in DoD, again, that's a little blog humor.

Mike "No Man" Navarre said...
This comment has been removed by the author.
Norbert Basil MacLean III said...

ABA Pres H. Thomas Wells, Jr. had a scheduling conflict when the hearing was moved from last Friday to this week.

As far as Army BG Dunn, it is not clear to me why she is no longer testifying. It was my understanding that BG Dunn was going to testify in opposition of the bill. But now I've heard scuttlebutt that the Obama administration is not going to oppose the bill after DOJ and OMB looked at the issue.

Anonymous said...

Why would they? As an aside, I might even suggest the government's position in Denedo was a hangover from the interregnum that didn't enough Obama consideration.

Anonymous said...

This whole issue is making a mountain out of a molehill. Petition for cert all you want. Winning the powerball probably has better odds.

Socrates said...

Not necessarily. If Congress enacts a package of military justice reforms, in concert, it could signal the Court to take a closer look at military justice. A few cert petitions could get more scrutiny if Congress winks and nods to the high court to take these issues more seriously. Plus, more persistent and quality cert petitions could create a little nudge.

Norbert Basil MacLean III said...

FYI, the Air Force Times is already running a story about the hearing here.

Dwight Sullivan said...

The Air Force Times gets a key fact horribly wrong. The article says that estimates of the cost of the bill range from $30,000 to $1 million PER CASE. The $30,000 estimate was the cost of the bill to the entire U.S. government for a year, not per case. It's simply preposterous to suggest that the cost to the U.S. government of litigating a Supreme Court case is $1 million. In fact, the entire monetary cost to the U.S. government for one cert petition is around $1,000.

Anonymous said...

I assume that $1,000 figure doesn't include the cost of the counsel's time or the time spent by the admin staff.

Dwight Sullivan said...

Anon 1340, it doesn't because there is no monetary cost to the United States arising from that expenditue of time. An appellate defense counsel makes the same amount of money regardless of whether he or she works 50 hours a week or 90 hours a week. Same with administrative support.

Anonymous said...

Seeking justice should have no price tag . . .

Anonymous said...

Freedom isn't free...

Anonymous said...

By the time a case gets to the Cert stage, the appellate attorney should already know the issue. These costs are not linear. The biggest investment of time is at the first level of appeal. Rough estimate of time to put together a Cert petition is about 25 hours: 1) Final research: 5 hours; 2) Writing: 10 hours; 3) Review & Editing by colleagues/supervisors: 5 hours; 4) Administrative time to format, publish & deliver: 5 hours.

Military Cert petitions not getting granted is a self-fulfilling process: few try, few succeed.

Anonymous said...

I meant to say "self-fullfilling prophecy."

John O'Connor said...

"Freedom's just another word for nothing left to lose."

While it's true that t6here is no direct cost from counsel's use of time, there are potential indirect costs of the increased volume of cert petitions requires adding additional appellate defense lawyers to the ranks, and also opportunity costs in that any time spent on a cert petition is necessarily time not spent on some other case.

The appropriate weight to be accorded these costs in assessing whether this bill is a good idea is a value judgment very much in the eye of the beholder.

Dwight Sullivan said...

I must quibble with a portion of JO'C's analysis. He writes, "any time spent on a cert petition is necessarily time not spent on some other case." That is largely, though not entirely, true. Work spent on one case is often applicable to other cases as well. So time spent on a cert petition may simultaneously be time spent on other cases. But my larger quibble is that JO'C appears to treat work hours as a zero-sum game. Given his years of civilian practice, that's understandable. A civilian law firm may work its minions to the maximum extent of human duration. But the military doesn't. The result of H.R. 569's passage may not be time taken from other cases to devote to cert petitions; rather, it may mean more work hours to devote to cert petitions.

But in reality, the number of additional cert petitions filed by military appellate defense counsel will be extremely small. Members of the Supreme Court bar aren't allowed to file frivolous cert petitions. See Austin v. United States, 513 U.S. 5 (1994). The number of cases that CAAF denies that include non-frivolous issues will be extremely small.

Remember that Army DAD went almost five years -- from 18 November 2002 until 17 September 2007 -- without filing a single cert petition. If not one of the cases CAAF granted and Army DAD lost was deemed worthy of a cert petition prepared by counsel, how many cases that CAAF denies will cross that threshold? Not many.

John O'Connor said...

I must quibble with Dwight's quibble. Anticipating Dwight's quibble, I did not say that time spent on a cert petition necessarily would have been spent on another case (as opposed to, say, watching a baseball game or goofing off).

I said that the time was necessarily not being spent on some other case (not that it "would have" been spent on another case but for the cert petition). That's a slightly different point.

While I suppose it's true that work on a cert petition "might" be usable in another case, I would imagine that much of the substantive research would have already been done in briefing the appeal at the CCA and CAAF, with cert petition research mostly going toward addressing non-merits issues such as circuit splits that have relatively little utility for another case.

Dwight Sullivan said...

I think JO'C's invocation of the concept of "opportunity costs" suggests a zero-sum game. And note that I distinguished my minor quibble with the literal interpretation of what JO'C wrote (that there will likely be some minor overlap of cert petition work with other pending cases) with my larger quibble with what JO'C's post "appears to" suggest.

Dwight Sullivan said...

p.s. -- for a Nats fan, anything that prevents one from watching baseball is probably a net plus.

John O'Connor said...

I didn't suggest a zero-sum game, and I don't know why you would assume that invocation of "opportunity costs" necessarily implies a zero-sum game. My reference to opportunity costs suggests that time not spent on a cert petition "could" be spent on something else, and one of those things "could" be another appeal.

Time not spent on some random pending appeal (let's call it Appeal X) is spent on something, whether it's a cert petition, or watching Three Stooges reruns, or doing something else. If the time is spent on watrching Three Stooges re-runs, a court or supervisory counsel might make the point that the needs of Appeal X support spending that time on the appeal rather than television re-runs. When the time is spent on a cert petition (instead of some leisure activity) it is harder to complain that the time is not being spent on Appeal X.

In any event, I would think it safe to assume, in the aggregate, out of all the cert petitions drafted, that "some" time spent on cert petitions would be devoted to other appellate work if there were no cert petitions. If your theory is that ALL time that will be spent writing a cert petition for a case where the CAAF denies review will come out of leisure time, ane done will come out of time that otherwise would be spent on another appeal, well, I guess that is one possibility.

Again, whether any of that's enough to make this largely symbolic bill a good idea or not is very much a personal value judgment to which persons can reach differing conclusions.

Re the Nats, tell me about it. My 8-year-old daughter and I have taken to calling Kearns "Schlep-rock," because everything he does turns out bad. And my daughter loudly exclaims "WHYYYYYYYY!!!" every time they put Hanrahan in.

Anonymous said...

Will this post be deleted if I ask one question? How and where do I sign up to get one of these gov't jobs where legal papers prepared for the S.C. do not create more very expensive legal work or even a lot more workload for 40-hour a week gov't workers? (Civilian federal employees as a whole-WILL- not work more than 40 hours without comp-time)

Ban my IP address if you will. This is a private/military blog and so no right for us Anon's

Dwight Sullivan said...

1944 Anon, two points. First, that sure doesn't describe the federal civilian attorneys I know, including the ones who worked for me in the OMC Defense office. Second, cert petitions filed on behalf of court-martial accused are almost invariably prepared by military officers. Plus, military cert petitions demand almost no resources on the government side. In this year's SCOTUS Term and last (the only terms for which this info is readily available on the web), the SG waived the United States' right to respond to EVERY military cert petition filed -- though in three cases, the Supremes did call for a response from the SG.

Dwight Sullivan said...

p.s. to 1944 Anon. I don't thing that's the kind of comment the No Man had in mind when recently wrote about inappropriate postings. I think the kind of posts that prompted his message (and that have been frustrating me) involve personal attacks, school yard taunts, wildly off-topic information, and baiting. We're not trying to stomp out debate -- even if that debate includes criticisms. Heck, a lot of our posts criticize. We're just trying to keep the debate rational.

Anonymous said...

Here's an off-topic post: Weston just released. CAAF affirms.

Anonymous said...

Posted by Dwight Sullivan: "Members of the Supreme Court bar aren't allowed to file frivolous cert petitions. See Austin v. United States, 513 U.S. 5 (1994). The number of cases that CAAF denies that include non-frivolous issues will be extremely small."

But the same "frivolous" requirement applies at all levels of appeal. A lawyer can't raise a frivolous issue at any level. CAAF has a lot of room to deny review of a case other than b/c it raises frivolous issues. I think you underestimate this new bill will have on the number of cert petitions filed. Frivolousness is a VERY low standard...

Mike "No Man" Navarre said...

Anon 2205:

I think you over estimate the investment of military appellate clients in their cases. I think they are no more invested in their cases then those that lose at CAAF. Thus, you'll get about the same ratio of clients wanting to file petitions, though likely a lower ratio of cases counsel are willing to file due to the constraint CAAFlog mentioned in his opening remarks.

As for the JO'C-CAAFlog dispute, which is beginning to sound like a Wild Bill Clinton debate about the word "is," I have to side with JO'C (I think). There is some margninal cost to the military appellate system from the bill. The additional man hours may not result in an additional body at any of the appellate shops. But, in the aggregate, some work will be shifted from those counsel that were before passage fully employed and will after passage take on additional work in filing add'l SCOTUS petitions. That may mean they don;t perform as many collateral duties, thus those get shifted to other officers or they get to write fewer caustic comments on their favorite blog, but I digress. Unless counsel are not fully employed at appellate defense shops, there is a marginal cost--albeit a very tiny one.

Anonymous said...

Good sire Sullivan,

I must quibble with your comment made previous to your quibble with JO'C and his counter-quibble, and your counter, counter-quibble and his counter x 3 quibble. You say: "An appellate defense counsel makes the same amount of money regardless of whether he or she works 50 hours a week or 90 hours a week. Same with administrative support.


First, start with an ADC work week in the 32 hour range. Then say he/she makes the same if he/she works up to 36 hours.

90 hours, give me a break. Only the insane or true believers like yourself, would ever consider approaching 40.

Me

Mike "No Man" Navarre said...

Anon 1944:

That's a stupid question (not a personal attack; though not the preferred tone for discourse, it won't be deleted).

You are stupid (that's a personal attack, will be deleted).

The next time I have to come in here, I'm crackin' skulls, is that clear Mr. Bender?

Anonymous said...

Only a sucker would increase his workload by a significant factor for the same money. Government workers are government workers for a reason - 9 to 5 baby. If the hours increase and the money stays the same, the smart attorneys at the appellate shops will pull the ripcord...which is unfortunate b/c that will only leave the dumb ones to handle all the appeals.

Dwight Sullivan said...

Anon 2005, you write: "But the same "frivolous" requirement applies at all levels of appeal. A lawyer can't raise a frivolous issue at any level." That's wrong. United States v. Grostefon actually REQUIRES appellate defense counsel to file frivolous issues at both the CCA and and CAAF. And I'm not hyperbolizing; that's what it actually requires.

So obvioulsy no cert petition will be filed in a case submitted to CAAF with no issues or with only Grostefon issues. Cert petitions are filed in only about 1/6 of the eligible cases under the current system and a substantial percentage of these (30% last term) are filed pro se IFP and not prepared by counsel. And as I mentioned, Army DAD went almost five years without filing a single cert petition. Clearly the frivolous standard has kept the number of cert petitions quite low in the current system and would continue to do so if H.R. 569 were to become law.

Dwight Sullivan said...

Regarding Anon 2242's comment. One of the problems with a blog is that it's often impossible to tell how much of a point is serious and how much in jest. I assume that some substantial portion of 2242's comment was meant in jest, but I can't tell how much. So here's a response to a small part that MIGHT have been serious.

To the best of my knowledge, there are currently only four civilians hired in military appellate defense offices -- one each in Air Force Appellate Defense and Appellate Government and one each in Navy-Marine Corps Appellate Defense and Appellate Government. I'm one of the four. I seriously doubt that any of the four of us would be influenced for retention purposes by an increase in work hours. (If that puts us in the dumb category, that won't be the fault of H.R. 569, because the status quo ante has we dumb attorneys already in place.)

To the best of my knowledge, every other attorney in the eight military appellate offices is an active duty judge advocate or drilling reservist judge advocate.

Anonymous said...

Regarding Grostefon issues, that's not the lawyer raising frivolous issues, that's the client personally raising issues, and the courts understand it as such.

At any rate, Mr. Sullivan's point is only valid if you believe CAAF grants review on EVERY non-frivolous issue raised before it. That's just not the case...

Dwight Sullivan said...

2321 Anon, my point isn't that CAAF grants review in every non-frivolous case. Of course it doesn't. If it did, then there would be no reason to pass H.R. 569. Here's my actual argument: the percentage of cases with non-frivolous issues will be far smaller in cases where CAAF denied review than it is in cases where CAAF grants review. We know that in cases where CAAF grants review and the servicemember loses, only about 1/6 result in a cert petition and less than 1/10 result in a cert petition filed by counsel. So take the roughly 700 cases in which CAAF denies review. Take out the no-issue cases. Take out the Grostefon cases. Multiple the remainder by .1. The resulting number will be VERY small. And the number of cert petitions filed by counsel in such cases will be even smaller than that.

Interestingly, two of the leading experts on Supreme Court practice predicted in 1984 that about 100 military cert petitions would be filed each year. In fact, the average number since 1984 has been 22.

Because the Military Justice Act of 1983 has been in effect for a quarter of a century, we actually have a great deal of data about the rates at which military cert petitions are filed. Those who predict that passage of H.R. 569 would result in a large increase in the number of cert petitions filed are predicting that future performance will differ markedly from what all of the data show us over the last quarter century. I think past performance is a much better predictor of future behavior.

Dwight Sullivan said...

2321 Anon, regarding frivolous issues, 2205 Anon wrote, "But the same 'frivolous' requirement applies at all levels of appeal." That is demonstrably incorrect. Compare United States v. Grostefon, 12 M.J. 431 (C.M.A.1982), with Austin v. United States, 513 U.S. 5 (1994).

Anonymous said...

Lawyers have an ethical duty NOT to raise frivolous issues...in any court. But that point aside, I have a general question about filing cert petitions for servicemembers: If CAAF grants review (must be at least one non-frivolous issue) and denies relief, why aren't the appellate shops required to file a cert petition on the servicemember's behalf? Does Rule 10 give them a way out?

Anonymous said...

One quibble. You say: "Lawyers have an ethical duty NOT to raise frivolous issues...in any court."

Not true. Grostefon REQUIRES the lawyer to at least "convey" the client's frivolous issues to the court. So maybe we are splitting hairs over what the term "raise" means. (You could counter that the client is the one actually "raising" the issue)

Don't let all the talk of "ethics" throw you off, either. When lawyers can interpret an issue in a way that involves saving time or grief, they tend to have a very expansive view of ethics. When lawyers can interpret an issue in a way that involves expending time, they have a parsimonious view of their ethical duty.

John O'Connor said...

No Man wrote:

"That's a stupid question (not a personal attack; though not the preferred tone for discourse, it won't be deleted).

You are stupid (that's a personal attack, will be deleted)."

-------

From here on out, I am beginning all posts with "Look, pal . . ."