Thursday, August 02, 2007

All things reconsidered revisited

We recently saw that of the 19 cases it lost at CAAF last term, the government sought reconsideration in 4 of them. Make that 5. Today's daily journal update included a denial of Army GAD's reconsideration request in United States v. Lewis, 65 M.J. 85 (C.A.A.F. 2007). United States v. Lewis, __ M.J. ___, No. 07-5002/AR (C.A.A.F. Aug. 1, 2007).

So the government sought reconsideration in more than a quarter of the cases it lost last term. And Army GAD sought reconsideration in half of the cases it lost. (Reconsideration sought in McAllister, Gardinier & Lewis; no reconsideration sought in Wise, Albaaj & Resch.)

The various appellate government divisions' reconsideration practice has been both frequent and fruitless. CAAF denied all five of the government's reconsideration petitions.


John O'Connor said...

But if someone came in your office and offered you $10,000 to file a motion for reconsideration, wouldn't you do it? (wink).

Anonymous said...

That's just snarky, JOC.

Fruitlessness is in the eye of the beholder. Reconsideration at its best is the natural first step to further appellate litigation, and one would hope that before seeking reconsideration the government divisions would ensure the SG is firmly behind their desire to seek cert when the reconsideration is denied. Reconsideration denial is almost a given, but denial certainly makes the court look less reasonable when overturned on appeal.


egn said...

If Army GAD is indeed filing for reconsideration as a preparatory step to seeking cert, then that would offer a stark contrast to Army DAD's apparent policy of shirking any practice associated with the Supreme Court. This also doesn't do much to inspire servicemembers' confidence in being represented by military defense counsel.

Sacramentum said...

Several years ago, an appellate attorney told me that if the Army, or any of the services, wants to seek cert, they have to get the agreement of all the other services and DoD General Counsel before they can approach the SG.

If that is true, it's hard to believe the Govt can get its act together on this. They don't seem to agree on much of anything.

And I doubt the CAAF's rules would give the Govt appellate divisions enough time to get agreement from the other services and get an endorsement from the SG

egn said...

Sacramentum, your source informed you correctly, more or less. The other services' JAGs have to at least not object to it, which is what happened a few years ago when there was a spate of attempts from the various services' appellate government to get Supreme Court consideration for their issues. They all made it at least as far as the SG before dying.

In the case where I was appellate defense counsel, the SG petitioned the Supreme Court once (or was it twice) for an extension before deciding they didn't want to file.