Thursday, November 27, 2008

Some quick observations about Denedo

I'll be thinking about Denedo's implications over the next few days. If I have any thoughts that cross the semi-profound or mildly interesting threshold, I'll post them. But for now, here are some quick observations.

The Supremes granted cert on two cases on Tuesday -- Denedo and Nken v. Mukasey, 08-681. Interestingly, both arise from deportation issues. In Denedo, the SG represents the petitioner while in Nken, the SG represents the respondent. As reported SCOTUSblog (a.k.a., the Greatest Blog on Earth), the Court ordered expedited briefing in Nken and scheduled it for oral argument on 21 January. The Court didn't do so with Denedo, but this still suggests that Denedo will be argued promtply. So let's look at the briefing schedule.

Under SCOTUS Rule 25.1, the SG has 45 days to file his opening brief. That means his deadline is Friday, 9 January 2009. Rule 25.2 then gives Denedo's counsel 30 days to file their brief. 30 days from 9 January 2009 would be Sunday, 8 February. So if the SG files on his due date, the respondent's brief would be due on Monday, 9 February. Rule 25.3 then gives the SG a right to file a reply brief within 30 days or one week before the date of oral argument, whichever comes first. If everyone files on their due dates, that would result in an 11 March 2009 reply brief deadline, though I'll be surprised if SCOTUS doesn't truncate the reply brief period by scheduling oral argument sooner than 37 days from the filing of Denedo's brief.

Right now SCOTUS arguments are scheduled through 21 January. The Court will hear arguments on six days within the 30-day post-Denedo respondent-filing date of 9 February 2009: 23, 24, 25 February and 2, 3, 4 March. The Court doesn't have to hear oral argument on one of those days. It is also schedule to hear arguments on 23, 24, 25, 30, and 31 March, and 1, 20, 21, 22, 27, 28, and 29 April. Of course, as soon as we hear the argument has been scheduled, we'll let you know.

Here are a few other observations to put the Denedo grant into a larger context. The last time the Supreme Court granted cert to provide plenary review of a CAAF decision (as opposed to GVRing) was on 2 November 1998. Clinton v. Goldsmith, 525 U.S. 961 (1998). The last three cert grants to provide plenary review of CAAF decisions (as opposed to GVRing) all came on the SG's petitions. Denedo; Clinton v. Goldsmith; United States v. Scheffer, 520 U.S. 1227 (1997). I believe those are the only three cert petitions the SG has ever filed seeking review of a CAAF decision. (That in and of itself is pretty interesting considering that DOD pushed for the Military Justice Act of 1983 in large part to provide the SG a way of seeking review of CMA decisions. But by historical accident, the creation of that power came shortly after the wane of the Fletcher Court and the rise of far more respected Everett Court.) The last time the Supremes granted a servicemember's petition to provide plenary review of a CAAF decision (as opposed to GVRing) was on 8 November 1996. Edmond v. United States, 519 U.S. 977 (1996).

How surprising was it that the Supremes granted cert? Not very. While I erroneously predicted a denial due to jurisdictional and ripeness problems, I also noted that it's never wise to bet against the SG. Here's why. The indispensable Supreme Court Practice treatise tells us that SCOTUS "granted plenary review on 50 percent -- and summarily granted certiorari, vacated, and remanded on another 20 percent -- of the certiorari petitions filed by the Solicitor General between 1998 and 2005, in contrast to the 3 to 4 percent rate at which the Court grants paid petitions filed by other parties." Gressman, et al., Supreme Court Practice 237 (9th ed. 2007).


Anonymous said...

This is one of those rare "certainly," "of course," and "clearly" situations where use of the words is warranted. The SG is exceedingly cautious about filing cert petitions--the process is painful and drawn-out and heaped with briefing papers and intermediary decision-makers (make or breakers) to convince before getting to the SG. I won't swear to actual knowledge given my namesake's behind-the-scenes lineage and need to disavow, but I have it on good authority. I've heard a 75% grant rate cited recently for SG petitions, btw. Having said that--SCOTUS could've summarily reversed and didn't, so like most of these granted petitions, the outcome is still far from certain.

H Lime

Anonymous said...

Summary reversal is an interesting issue. I note the SG also had the option of asking for that and did not. SR would still leave the issue of whether the CCA ad jurisdiction or not.

Dew_Process said...

H Lime - earlier this week I saw some stats somewhere - the SG has a slightly better than 50% "grant" rate, which all things considered with SCOTUS is remarkable.

But, the SG's Cert Petition here is not one of that offices' better efforts because it leaves open too many loose ends and is, imho opinion, needlessly sloppy. I didn't think that I'd miss Paul Clement, but his cert petitions were "tight" and to the point. This appears to be a "committee" effort to "ratify" Judge Ryan's opinion.

The "policy" implications of the government's positions are mind-boggling, not to mention opening up every federal district court in the Country to be doing collateral military cases - something that the Supremes rejected in Noyd.

This may be a "cert improvidently granted" case by the time it's over.

Anonymous said...

"Mind boggling"? "Committee effort"? "Sloppy"?

Good sir, your suppositions are neither valorous nor discreet, nor, might I add, correct. Let me reassure you, if I know anything about the effort, it would have involved consideration of the matters you suppose were so blithely ignored and glossed over.

Of course, Harry Lime being who he is, far be it from me to dissuade you from nefarious conspiracy theories about the true reason behind SG filings or polemics against governmental incompetence.


Anonymous said...

What loose ends?

Paul said...

Dew: A committee effort? That is how all agency certs and briefs are written. Of course there was a committee. Who else would know the basics of the case and its application to that agency? When IRS wants a cert the SG conferences w/IRS. Same with EPA. All agencies submit input and help write the product. The SG does not have particular SMEs for each agency. While there are Assistants that may have specialized knowledge it does not devolve down to one ASG. Plus, each brief is vetted and circulated and redrafted before it is submitted. Of course it is by committee. Your backhanded retort of your opinion of the cert petition doesn't really state anything negative.

I agree with 18:28, what loose ends are you talking about?