Denedo -- what next?

Under SCOTUS Rule 16.5, "the Clerk will distribute the petition, brief in opposition, and any reply brief to the Court for its consideration no less than 10 days after the brief in opposition is filed." So Denedo should be circulated next Thursday or shortly thereafter. The SG can file a reply to Denedo's opp in the meantime. Since the original cert petition didn't address the jurisdictional problem that the opp highlighted, I suspect he will.

Military [j]ustice news

This borders on being non-military justice news, but, hey, it's our blog. News from Iraq is that an Iraqi man was convicted and sentenced to death (two others were acquitted) yesterday for the abduction and murder of two US soldiers from the 101st Airborne., NYT report (via WSJ Law Blog) here and WaPo report here. Head of the Iraqi Law and Order Task Force (LAOTF), Col. Rafael Lara, Jr., was quoted in the WaPo report as saying, "I'm very pleased to see the Iraqi judiciary exercise discretion and the rules of procedure . . . Iraqi courts have taken a good step today." While I won't call that faint praise, that wasn't exactly a ringing endorsement. Col. Lara also expressed regret that the court did not convict all the defendants. I imagine a fair number of Iraqi prosecutors heard that statement and thought, Pot meet Kettle, Kettle meet Pot (see our coverage of Iraqi civilian killings courts-martial here, here, etc.)

The Iraqi criminal justice system, which to me looks more like the French system, was implemented with the help of many of our readers. I hope today's verdict is satisfying for you and lets you take some pride in the work you did.

Drawing a new Mendoza line: corrected CA actions vs. new CA actions

CAAF's docket continues to rocket. On Friday, CAAF cleaned up a case that appears to be a Gogue trailer. United States v. Owens, __ M.J. ___, No. 7-0856/AR [sic] (C.A.A.F. Oct. 24, 2008) (summary disposition). On Tuesday, CAAF issued its second opinion of the court for the term.

Judge Stucky wrote for a unanimous court, overturning a published NMCCA decision dealing with post-trial processing on remand. United States v. Mendoza, __ M.J. ___, No. 08-0246/NA (C.A.A.F. Oct. 28, 2008). The issue is whether upon remand for a new action, the CA must obtain a new recommendation from the SJA and provide the defense with an opportunity to make R.C.M. 1105 and 1106 submissions before taking the new action.

CAAF drew a distinction between a a corrected action and a new action. The former doesn't require a new SJAR and opportunity for defense submissions while the latter does, held CAAF. (Who nailed that outcome when we first discussed Mendoza here? Beloved CAAFlog commentator JO'C.)

In this case, NMCCA's remand order didn't authorize a corrected action but required a new one. CAAF held that the CA erred by taking that new action without a new SJAR or opportunity for defense submissions. CAAF remanded the case to NMCCA to determine whether Petty Officer Mendoza was prejudiced by that omission.

To quote Tone Loc, funky cold Medina

On 7 July 2008, CAAF granted review of this issue: "WHETHER THE MILITARY JUDGE ERRED WHEN HE HELD APPELLANT'S WAIVER OF HIS ARTICLE 32 RIGHTS FOR HIS 20 SEPTEMBER 2001 COURT-MARTIAL APPLIED TO HIS 23 OCTOBER 2006 REHEARING." United States v. von Bergen, 67 M.J. 4 (C.A.A.F. 2008). Today, CAAF called for briefing of an additional issue in the case. CAAF's order provides:

Upon further consideration of the granted issue, 67 M.J. 4 (C.A.A.F. 2008), the briefs of the parties, and in light of United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008), the Court has determined that supplemental briefing prior to oral argument would be of assistance in resolving the granted issue. Accordingly, it is, by the Court, this 28th day of October, 2008, ORDERED: That the Appellant and the United States shall, on or before November 7, 2008, each file a supplemental brief addressing the impact of United States v. Medina, if any, upon the granted issue.

United States v. von Bergen, __ M.J. ___, No. 03-0629/AF (C.A.A.F. Oct. 28, 2008).

The esteemed Major Howard H. Hoege III has lauded Medina, observing: "Allowing Article 134 to previously devolve into the ultimate safety new for the government -- to the point where military judges explain to the accused that the only reason they include a clause 1 or 2 element is to gird the accused's conviction from a successful appeal -- gives life to the accusation that Article 134 is 'the Devil's Article.' The good news from Medina is that military justice practitioners may look forward to much cleaner practice both in the realm of article 134 and the breadth of offense-relation doctrines." Major Howard H. Hoege III, Flying Without a Net: United States v. Medina & Its Implications for Article 134 Practice, Army Law., June 2008, at 37, 49 (footnote omitted). Tone Loc made a similar point: "That medina's a monster y'all." CAAF appears ready to take another shot of the funky cold Medina in von Bergen.

To quote the Beach Boys, be true to your school

My recent non-military justice rant about U.S. law schools disgorging about 44,000 graduates a year elicited a couple of suggestions to consolidate the three military justice schools. One of these suggestions expressly proposed consolidating them at Charlottesville.

For many reasons that I won't explore in depth now, I wouldn't want to see the various military justice schools consolidated. My fear is that a "purple" school wouldn't be purple at all, but rather would be Army Green. And while Army doctrine is fine for the Army, it isn't for the sea services. (I'll let others more knowledgeable about air power opine as to whether it's appropriate for the Air Force.)

But that said, I must concede that if there were a substantial cost savings to be realized through such a consolidation, I would probably have to swallow my Armyphobia and endorse the idea. (Not that anyone cares about my endorsement, but I do enjoy working through these thought problems.) But would consolidating the military justice schools actually result in cost savings?

In the past, I've heard proposals to consolidate all of the military justice schools at a new facility to be built at Fort Jackson, South Carolina. I would suspect that the cost of building such a new facility would far exceed any cost savings to be realized from consolidation for decades to come. And even if it could conceivably result in some net savings 30 years out, this seems like a bad time to be making a considerable up-front expenditure to realize savings decades in the future.

So the question is whether any of the current military justice schools have sufficient excess capacity to absorb the other two. And I suspect that the answer to that question is no. During my most recent visits to TJAGLCS -- the only school that could conceivably accommodate the other two -- office space seemed to be in short supply. In the annual military justice reports, perhaps I'm missing the stats for TJAGLCS and the Air Force JAG School, but I could find a breakdown for the number of basic lawyer students only in the Naval Justice School report. NJS graduated 135 students from its basic lawyer course in Fiscal Year 2007. Could TJAGLCS accommodate twice that number of additional basic lawyer students (assuming rough parity between the number of new sea service and Air Force judge advocates) in its current facility? If so, then perhaps substantial costs could be saved by consolidating the three schools at Charlottesville. (C'ville is a higher per diem area than Maxwell, but lower than Newport, so per diem considerations are likely to be a wash, at least assuming that TJALCS has sufficient billeting to accommodate all of the basic lawyer students rather than throwing them out on the local economy.) If not, then far from saving money, consolidation would probably result in substantial additional spending.

Does anyone have actual data or recent experience that would inform the answer to these questions?

More thoughts about the Denedo opposition

We have previously discussed the opposition to the SG's cert petition in Denedo. The cert petition is available here and the opp is available here.

As I've made clear, I don't believe that CAAF had jurisdiction in Denedo but I also don't believe that the Supremes have jurisdiction to grant cert at this point.

Several commentators have advanced arguments for SCOTUS jurisdiction, but I find those arguments unpersuasive. Let's unpack a couple of them to demonstrate why.

I think we all agree that SCOTUS has jurisdiction only if CAAF granted "relief." The opp cites a Seventh Circuit decision authored by then-Chief Judge Posner of the Seventh Circuit and joined by Judges Easterbrook and Manion. They observed: "Summary judgment is not relief. It is merely a procedural premise for relief. The relief is whatever the party moving for summary judgment was seeking and the court agrees the party is entitled to." Health Cost Controls, Inc. v. Washington, 187 F.3d 703, 706 (7th Cir. 1999). This appears to be quite helpful to Denedo's position that a remand for further proceedings isn't relief and thus doesn't give SCOTUS jurisdiction to review the case.

But 0846 Anon is unimpressed. He/she counters: "Looks like relief to me - allowing a discharged serviceman a hearing that he isn't entitled to." No offense, 0846 Anon, but if I could have Judge Posner or you on my side, I'll take Judge Posner.

Ten years ago, a group of three distinguished law professors published an empirical assessment that used "the number of citations to the published opinions of judges on the federal courts of appeals to measure the influence of individual judges." William M. Landes, Lawrence Lessig & Michael E. Solimine, Judicial Influence: A Citation Analysis of Federal Courts of Appeals Judges, 27 J. Legal Stud. 271, 271 (1998). (Click here for a "working paper" version of the study.) Guess who the study found to be the most influential judge on any federal court of appeals. Right, Judge Posner. Guess who was third. Yup, Judge Easterbrook.

Of course, as any Bill James fan would tell you, an empirical assessment is helpful only to the extent that it measures the right thing. Here, I don't think that anyone would express surprise that Judge Posner would be deemed the most influential federal court of appeals judge. On the contrary, wouldn't we be surprised and suspicious of any metric that suggested he isn't the most influential federal court of appeals judge? Eyeballing the list, it sure looks like the profs measured the right thing.

So it would be impossible for two federal court of appeals judges to provide more gravitas than does the combination of Posner and Easterbrook. (The number 2 judge -- Judge Selya -- sits on the First Circuit. The third member of the Health Cost Controls Inc. court -- Judge Manion -- ranked 83rd of 205.) So the Posner/Easterbrook/Manion view of "relief" is likely to be quite persuasive to the Supremes.

0846 Anon also offers a fallback position: "this is one of those issues that is capable of repetition yet avoiding review." But that isn't really true. The issue doesn't evade review. If CAAF were ever to grant relief in a post-finality case, the SG could seek cert then. But even if it were applicable, the "capable of repetition, yet evading review" doctrine is an exception to mootness. Davis v. FEC, 128 S. Ct. 2759, 2768 (2008). That doctrine doesn't create jurisdiction where none existed before.

If Denedo ever actually obtains relief from the military appellate courts, then SCOTUS can (and, in my mind, should) grant cert. If he doesn't, then SCOTUS should await some future case in which post-finality relief is granted to test CAAF's jurisdiction over such cases.

On the question of whether Denedo could be retried if he obtained relief, if his BCD were set aside, would he then revert to his status as a member of the United States Navy? If so, then jurisdiction would exist under Article 2(a)(1) to court-martial him. Even if not, Article 3(a) would provide a clear statutory basis for jurisdiction, though United States ex rel. Toth v. Quarles, 350 U.S. 11 (1966), suggests that the exercise of such jurisdiction might be unconstitutional. So, ironically, if Denedo were to win, his case could lead to revisiting Toth v. Quarles, which could have even greater jurisdictional significance that the jurisdictional question raised by the SG in his cert petition.

Big news day

This is a big news day, with a new CAAF opinion out and an interesting specified issue from CAAF. I'll be posting more about those developments later tonight. But first I have a bit of non-CAAFlog business to attend to and then I'll be following up with posts on a couple of open threads before turning to new business.

Denedo opposition

In their opposition to cert, Denedo's counsel make two main points: (1) the Supremes don't have jurisdiction to grant cert in the case's current posture; and (2) CAAF was right. I agree with the first point even though I disagree with the second.

The opp observes that the SG invoked jurisdiction under 28 U.S.C. § 1259(4), which allows the Court to review "[c]ases, other than those described in paragraphs (1), (2), and (3) of this subsection, in which the Court of Appeals for the Armed Forces has granted relief." The opp notes that CAAF remanded to NMCCA for further proceedings with the direction that "[i]f prejudice is found, [that] court shall determine whether the requested relief should be granted." The opp argues: "A remand, without relief, is not 'relief.' It is merely a procedural step that may lead to adjudication of the merits. 'Relief' is the substance of what the moving party seeks and what the court finds he or she is entitled to. Health Cost Controls of Illinois, Inc. v. Washington, 187 F.3d 703, 706 (7th Cir. 1999)
(Posner, C.J.)." Opp at 5.

The opposition has a discussion of Clinton v. Goldsmith, 526 U.S. 529 (1999), that is sufficiently interesting, nuanced, and short to be best read in toto rather than summarized here. The opp also notes that the case presents no circuit split crying out for resolution. And the opp presents a compelling case that Denedo has nowhere else to turn if not to the military appellate courts. Finally, the opp calls attention to the "irony" that "in its effort to call into question the jurisdiction of the Court of Appeals the government has overlooked this Court's lack of jurisdiction over the petition." Opp. at 14. (Now THAT, Ms. Morissette, is ironic.)

But even if the Supremes did have jurisdiction, there is another good argument -- not included in the opp -- suggesting that cert is inappropriate. And that argument was made by, of all people, the Solicitor General. In his opp to a military cert petition earlier in the same month that he filed his Denedo cert petition, the SG argued that the personal jurisdiction issue presented by Stevenson v. United States, No. 07-1397, was "premature at this juncture." Brief for the United States in Opposition, Stevenson v. United States, No. 07-1397, at 9 (filed August 4, 2008). In Stevenson, the SG wrote:

The court below remanded this case for a factual determination whether a search warrant whose execution resulted in obtaining crucial evidence in this case was predicated upon tainted information. Resolution of that issue in petitioner's favor could result in the reversal of his conviction, thereby rendering the question presented by this petition moot. If petitioner does not prevail on the issue on remand, petitioner may then be able to present his contention to this Court in a petition for a writ of certiorari seeking review of a final judgment against him.

Id. (internal citation omitted).

Similarly, in Denedo, CAAF remanded the case for further proceedings by a lower court to determine whether to grant relief. Resolution of that issue in the United States' favor would moot the question presented by its cert petition. If the United States doesn't prevail in that litigation, then it can return to the Supremes with a ripe certiorari petition.

As troubling as CAAF's ruling in Denedo is, the case doesn't appear to fall within the Supremes' statutory cert jurisdiction and, even if it did, isn't ripe. Just like it passed on Stevenson, the Supremes should pass on Denedo.

Padding the bill: The CBO issues what looks like a highly inflated cost estimate for the Equal Justice for United States Military Personnel Act

The Congressional Budget Office's cost estimate for S. 2052, the Equal Justice for United States Military Personnel Act, which was issued on 22 October, is available here.

Relying on "information provided by the Department of Defense (DoD) and the American Bar Association," the cost estimate makes highly dubious claims. The CBO tells us that if the Supreme Court granted cert in a military case, "DoD could spend an additional $1 million to $2 million from appropriated funds to defend the case." Rarely have a read such an outlandish figure. I'm not guessing here. I've been military counsel in a granted Supreme Court case and I've been the head of a military defense office providing representation in a granted Supreme Court case. The only additional expenses to DOD that such a case would cause are printing and postage. It would be surprising if the two of them together reached $20,000 -- or 1/100th the high-end figure provided by the cost estimate. (Actually, the CBO estimate says that the additional $1-to-2 million expense would be "to defend the case." Since the Solicitor General's Office would actually defend the case -- and since it does its own printing in-house, which is presumably paid for by DOJ -- it's difficult to see why there would be any cost to DOD "to defend the case.")

Does ANYONE believe that the total cost to DOD of a granted case would approach even the low-end figure of $1 million?

The other outlandish claim is that even without an actual grant, the legislation would "cost about $1 million a year." This figure is derived under the assumptions that "the bill would make several hundred court-martialed service members eligible to file petitions each year, and that a substantial portion of those individuals would pursue review by the Supreme Court." This ignores actual practice under the current regime, in which cert petitions filed by appellate defense divisions are rare. If the legislation were to be enacted, no cert petition would be filed in the huge majority of eligible cases. In some much smaller number of cases, a military defense counsel would tell the client that there is no non-frivolous issue in the case and explain how the client can file pro se and the client would do so--at no cost to DOD. In some very small number of cases that currently wouldn't be eligible for cert, a military appellate defense division would file a cert petition on the client's behalf, thus creating additional printing expenses. To reach $1 million, there would have to be more than 200 such cases each year.

Let's provide some historical perspective. Gene Fidell observes that following the passage of the Military Justice Act of 1983, "[i]t took nine years before the number" of military cert petitions "exceeded two hundred." Eugene R. Fidell, Review of Decisions of the United States Court of Appeals for the Armed Forces by the Supreme Court of the United States, in Evolving Military Justice at 156 (Eugene R. Fidell & Dwight H. Sullivan, eds., 2002). The notion that almost ten times as many cert petitions would be filed annually from among the cases that CAAF deems insufficiently important to grant review is fanciful.

I've seen this trick many times before. When I was a registered lobbyist with the Maryland General Assembly, if the Governor's administration wanted to kill a bill, it would often try to engineer an expensive fiscal note from the Department of Legislative Services. I suspect that something similar happened here: DOD wants to kill the bill, so it puffed up its likely cost. What I can't understand is what role the ABA had in this cost estimate. The ABA supports this legislation. What figures did its lobbyist provide to the CBO?

Denedo opposition to cert filed

Denedo's counsel today filed their opposition to the SG's cert petition. The petition is available here. I'll post some thoughts about it tonight.