Cutting off the gerrymander's tail: the SG argued for circumscribing the Supremes' cert jurisdiction over cases reviewed by CAAF

McKeel v. United States is a pending cert petition, No. 06-58, seeking review of a case affirmed by CAAF. 63 M.J. 81 (C.A.A.F. 2006). The cert petition raises two issues, one of which (an immunity issue) was addressed by CAAF and one of which (a Sixth Amendment venue issue) wasn't. The S.G. initially waived the United States' response. On 3 Aug, the Supremes asked the S.G. to respond, which he did on 5 Oct.

The S.G. argued, in part, that the Supremes have no jurisdiction over the issue that CAAF didn't review. Here's the S.G.'s argument:

This Court's authority to review decisions of the CAAF is derived from 28 U.S.C. 1259. Under Section 1259(3), the Court may review cases, such as this one, in which the CAAF has granted a petition for review under 10 U.S.C. 867(a)(3). That authority to review CAAF decisions, however, is expressly qualified by 10 U.S.C. 867a(a), which provides that this Court "may not review by a writ of certiorari under [28 U.S.C. 1259] any action of the Court of Appeals for the Armed Forces in refus ing to grant a petition for review."

That limitation on review is applicable here. While the CAAF granted a petition for review on petitioner's claim that he was entitled to transactional immunity, it refused to grant a petition to review his Sixth Amendment claim. Under the terms of Section 867a(a), the Court may not review the CAAF's action in refusing to grant review of that claim.

(available at http://www.usdoj.gov/osg/briefs/2006/0responses/2006-0058.resp.html)

I have previously posted about the Military Justice Act of 1983's gerrymandering of the Supremes' cert jurisdiction over CMA/CAAF cases to favor the government. Now, like a Texas politician trying to track down a planeload of renegade legislators over Oklahoma, the S.G. seeks to augment his advantage.

The Military Justice Act's plain language appears to allow the Supremes to grant review of an issue that CAAF did not, as long as CAAF opened the door to Supreme Court review by granting the petition. To the extent that there is any ambiguity, the Act's legislative history seems to confirm this conclusion. To demonstrate this point, I hope that Gene Fidell will allow me to offer an extended quotation from his invaluable "Review of Decisions of the United States Court of Appeals for the Armed Forces by the Supreme Court of the United States":

The legislative history of the 1983 act makes it clear that the Supreme Court has jurisdiction over any case in which the lower court granted review, even if the grant did not include the particular issue on which the certiorari petition is predicated. Section 1259 gives the Court jurisdiction over "decisions" of the Court of Appeals [for the Armed Forces] in, among other things, "cases" reviewed under article 67(a)(3). This is in contrast with an earlier administration proposal that would have confined the certiorari jurisdiction to "issues" on which the lower court had granted review. The House of Representatives eschewed the "issues" approach and passed a bill employing the broader "cases" phraeseology in 1980. That language was carried over in the measure that became the 1983 act.

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 149, 150-51 (Eugene R. Fidell & Dwight H. Sullivan eds., 2002) (endnotes omitted).

Gene concludes his analysis by noting: "Congress's use of the broader term in the legislation ultimately enacted indicates its intention to permit review by writ of certiorari over any issue raised in the Court of Appeals, provided the court granted review on some issue, and the measure has been universally so understood." Id. at 151. Until now, Gene, until now.

--Dwight Sullivan