Sunday, August 31, 2008

Acting SG vs. JAJG cont'

In West's United States Code Annotated, the notes following 28 U.S.C. § 509 set out the Executive Orders establishing the Federal Legal Council. That Council is "composed of the Attorney General and the representatives of not more than 16 other agencies." The Executive Orders establishing the Council provide, "Whenever two or more Executive agencies are unable to resolve a legal dispute between them, including the question of which has jurisdiction to administer a particular program or to regulate a particular activity, each agency is encouraged to submit the dispute to the Attorney General." The Executive Orders also lay out a procedure for resolving inter-agency legal disputes: "Whenever two or more Executive agencies whose heads serve at the pleasure of the President are unable to resolve such a legal dispute, the agencies shall submit the dispute to the Attorney General prior to proceeding in any court, except where there is specific statutory vesting of responsibility for a resolution elsewhere."

When he was the Assistant Attorney General for the Office of Legal Counsel, Theodore Olson discussed the Federal Legal Council and observed:

[T]o permit [one executive agency or department] to appear in a judicial proceeding in which the United States has exercised its authority to appear as a party (or has otherwise presented its views, e.g., as an amicus), and present views on its own behalf which are independent of or contrary to those presented by the United States, would be inconsistent with the integrity of the Executive in the exercise of his Article II powers and responsibilities. Such a circumstance would, literally, put the Executive in the untenable position of speaking with two conflicting voices, abdicating his constitutional responsibility to "take Care that the Laws [are] faithfully executed."
Litigation Authority of the Equal Opportunity Commission in Title VII Suits Against State and Local Governmental Entities, 7 Op. O.L.C. 47, 65 (1983) (third alteration in the original).

In light of the Executive Orders establishing the Federal Legal Council and the OLC Opinion, was it proper for various military appellate government divisions to simultaneously advocate directly opposite positions regarding CAAF's jurisdiction to hear an appeal of a CCA's ruling on an Article 62 appeal?

In light of the view that the Executive Branch must speak with one voice, should CAAF abandon its longstanding practice of inviting (or even accepting) amicus briefs from all of the appellate government divisions when some particularly important legal issue arises? Isn't the result of such an invitation multiple submissions from a single party (the United States), none of which should adopt a divergent position from another?


John O'Connor said...

I agree with you. The appellate government divisions are not independent agencies. The reality, of course, is tha the volume of cases briefed and argued doesn't permit optimal coordination with the other divisions or main justice (something that presumably is true of U.S. Attorneys offices as well), so there will be come inconsistencies, but it's unthinkable to me that two divisions could take divergent views in the same case (or knowingly on the same issue in different cases).

To me, a worse case of this was when the Air Force appellate government division tried to disqualify civilian appellate defense counsel who was retained at the direction of the Air Force JAG. If I were on CAAF, I would have said to government counsel:

1. Was this retention authorized by the Air Foce JAG?

2. Have you gone to the JAG and asked him to remove the civilian counsel, or gone over his head within the Air Force or Defense Department, or to the President?

3. Then please don't ask me to resolve intra-executive policy disputes.

Mike "No Man" Navarre said...

In light of this disputer resolution mechanism and the Denedo petition, shouldn't a certain Art. 62 appeal by the government be dropped? I mean let's not dwell on the past. Let's focus on what is still screwed up with . . . these divergent positions.

John O'Connor said...

I don't get your point, No Man. It's not internally inconsistent for the government to believe CAAF is dead wrong on whether Article 62 decisions can be appealed to CAAF (I happen to think CAAF is probably right) but to take appeals because CAAF has said they are allowed. That's simply applying the rules you're stuck with, but isn't being internally inconsistent.

Anonymous said...

True, some of the government appellate divisions disagreed with CAAF regarding 62 appeals. However, that is the state of the law so working within the law seems to be perfectly acceptable. Should t government just throw a fit, take their ball and go home since CAAF disagreed with their position? Or should the government exercise it whenever legally and ethically appropriate and subtly point out to CAF that they need to reconsider their position?

John O'Connor said...

Exactly right, Anonymous. I had a court-martial that came after CAAF decided Scheffer and before the Supreme Court reversed. The defense was putting in an exculpatory polygraph. I have an inculpatory polygraph. Even though I thought CAAF was wrong in Scheffer, and the United States had taken the position in the Supreme Court (and at CAAF) that polygraph evidence was inadmissible, I think it was right for me to apply the law as it was (even if the United States position was that the existing law was wrong), to use the inculpatory polygraph to counter the exculpatory polygraph the defense was putting in.

Dwight Sullivan said...

I concur with my learned colleagues. I hate the designated hitter rule. If I owned an American League team, I would seek to have the rule changed. But unless and until the AL did away with that abomination, I would continue to bat some aging power hitter with no wheels in place of the pitcher. Or, to paraphrase Secretary Rumsfeld, you go to court with the legal system you have, not the legal system you might wish to have.

Paul said...

And for that, Big Papi thanks you!

Mike "No Man" Navarre said...
This comment has been removed by the author.
Mike "No Man" Navarre said...

Ignore the Man who doesn't read carefully enough. I missed the part where the FJC dealt only with divergent positions in a single case, versus my uninformed reading which thought the FLC would have the government actually speak with one voice in multiple cases. The latter being far too lofty a goal in today's bureaucracy, I recede to the gentleman from Maryland and Syracuse.