Friday, January 09, 2009

BREAKING NEWS: The SG has filed merits brief in Denedo

I've posted a copy of the SG's Denedo merits brief on Here's a link.


Mike "No Man" Navarre said...
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Mike "No Man" Navarre said...

I know this is a nit, but this gets on my nerves-the government's continuing citation to "Op. Att'y Gen.". When does Denedo's counsel get to cite to Op. Att'y. Denedo?

John O'Connor said...

When he's nominated by the President and confirmed by Congress.

Paul said...

So if the government is victorious there will no longer be ECN in the military?

Anonymous said...

The Solicitor General’s Merits Brief in Denedo contains a critical error. Under Argument 2 (a), [“The plain text of the UCMJ forecloses post-finality review in military courts”] beginning on page 17, the SG’s Merits Brief in regard to Article 76, UCMJ, is sound only in theory, but seriously flawed in practice. The argument would leave the Supreme Court of the United States with a mistaken impression of military appellate procedure.

The mistaken argument in this section also suggests to me that DoJ dominated the brief writing, and although Code 46 knows better, it had little input into this product.

The SG argues under this section that under “the final judgment” rule, once appellate review is complete and the discharge is executed, then further review of a court-martial is unavailable. The SG argues that finality comes from two (2) sources: a) Article 71, UCMJ, and b) Article 76, UCMJ. (Why the SG argues that Article 76 provides a “uniquely military type of finality” is beyond me. Article 71, too, is “uniquely,” and solely, “military.”)

The SG errs in explaining the effect of Article 76, UCMJ, in providing a “uniquely military type of finality once military orders have been issued to implement the court-martial judgment” [p. 18]

The SG relies substantially on the elegance and efficiency of Article 76, UCMJ, concluding that “[f]inality thus accrues under Article 76 when a military authority executes a punitive discharge.” [p. 19]; that Councilman recognized Article 76 as “the terminal point for proceedings within the court-martial system,” [p. 20]; that “[f]inality under Article 76 is the terminal point for proceedings within the court-martial and military justice system” [p. 21]; and that a military court’s jurisdiction “ends with *** discharge,” citing Solorio, 483 US 435 (1987).

The glaring error with this argument is that it’s not true.

While in an optimal universe the military’s administrative and judicial orbits align perfectly, the two worlds often do not align. Servicemembers, not infrequently, are sent a DD-214 discharge form before their court-martial reviews are final. Any military appellate defense attorney who has practiced for more than a year will probably have had at least one client - perhaps several clients – who have had this happen to them. Many times, the supplement has already been submitted to CAAF, or the stage of the appeal is so late, that seeking an administrative correction is not warranted. Practically, under the current legal regime, it doesn’t make much difference (except for the cut-off in benefits). But occasionally, each year, NAMALA, for example, must issue a correction to a DD-214 (their version of a “recall”) due to a CAAF opinion.

These “mistakes” and “corrections” are admittedly a small group of cases – perhaps a few dozen per year. But taken literally, the SG’s argument says that all of these appeals are illegitimate due to Article 76, UCMJ. The government would either have an obligation with such cases to inform CAAF once it sends a DD-214, “sorry CAAF, you have no more jurisdiction, we already issued the DD-214,” or to simply ignore CAAF’s opinion, under the SG’s reading of Article 76, UCMJ.

And I love the irony that would apply to this small group of cases: even mistakenly issued DD-214s would cut-off any further military court’s jurisdiction. This is because Congress confers jurisdiction by statute (See, e.g., Rodriguez). Even if CAAF reverses and remands a case, NAMALA cannot make a correction under the SG’s strict reliance on Article 76, UCMJ, because CAAF completely lacked jurisdiction once the DD-214 was issued! (I think we have an instant answer to post-trial delay…start mass-mailing those DD-214s. Voila – problem solved. And no further judicial review, either.)

You would think that the “reasonable” counter-arguments are easy to make: one cannot put form over substance; an appellate court naturally maintains jurisdiction over such cases; administrative mistakes cannot trump the serious business of criminal procedure. But alas, no. The harsh readings of Article 76, UCMJ, urged by the SG; and even now, under CAAF’s latest Rodriguez, decision, would preclude judges from being judges and exercising a mix of rules and reason. Instead, in the brave new robot-world of statutory construction, there is no room for such human judgments. Form over substance; administration over criminal procedure. Sounds like T.S. Eliot’s Wasteland.

The point is that the SG is misleading the highest court in our land by giving it the erroneous impression that Article 76, UCMJ, provides an elegant and efficient terminal point to active duty status. It does not.

And the arguments that the Government itself would need to employ to salvage the current system (of essentially ignoring or fixing mistaken discharges) would completely undercut the arguments it is making to win Denedo.

Gene Fidell, I think you should request from NAMALA (and sister service versions of their respective appellate leave authorities) (a) the numbers of pre-mature discharges per year; and (b) the numbers of DD-214 “recalls” or corrections they do each year. You may also want to solicit from military appellate defense attorneys, off-line, for names of those servicemembers who received DD-214s before final judgment.

Code 46, I think you have an ethical duty under “candor to the tribunal” to point-out this factual gap between theory and practice to the Supreme Court of the United States.

I suspect that I can guess your counter-argument - that such a small percentage of cases where premature discharges are issued or corrections to DD-214s are made are not relevant. I guess this turns on whether you think actual military practice matters.

Anonymous said...

Socrates, you're an imposter--the original, a good friend of mine, often quoted the exact language of Art 76 to me in his long-winded discourses, and reached the exact opposite conclusion that you did on precisely the same issue--wrongly issued discharges.

In fact, I think the real Socrates worked with the SG on this one. (He also told me he really dug how Congress adopted the true and ideal philosophical Form of utter "Finality" in this particular law.)

Since this is pending, I can't do more than pleasantly disagree with you.


Dew_Process said...

"Military law, like state law, is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment. This Court has played no role in its development; we have exerted no supervisory power over the courts which enforce it...." Burns v. Wilson, 346 U.S. 137,140 (1953)

"Congress has taken great care both to define the rights of those subject to military law, and provide a complete system of review within the military system to secure those rights. Only recently the Articles of War were completely revised, and thereafter, in conformity with its purpose to integrate the armed services, Congress established a Uniform Code of Military Justice applicable to all members of the military establishment." Id.

For No Man:

"Such opinions [of the Atty Gen], however, do not have the force of judicial decisions and, where so ‘episodic,’ have little weight in the reviewing of administrative practice." McElroy v. U.S. ex rel. Guagliardo, 361 U.S. 281, 286(1960). [Civilians court-martialied]

"If an available procedure has not been employed to rectify the alleged error which the federal court is asked to correct, any interference by the federal court may be wholly needless. The procedure established to police the errors of the tribunal whose judgment is challenged may be adequate for the occasion. If it is, any friction between the federal court and the military or state tribunal is saved. ... Such a principle of judicial administration is is no sense a suspension of the writ of habeas corpus. It is merely a deferment of resort to the writ until other corrective procedures are shown to be futile." Gusik v. Schilder, 340 U.S. 128, 132 (1950) [federal habe over court-martialed soldier].

Toussaint - pretty much so!

Dew_Process said...


"Apart from constitutional requirements, the question whether judicial review will be provided where Congress is silent depends on the whole setting of the particular statute and the scheme of regulation which is adopted."

Estep v. U.S., 327 U.S. 114, 120 (1946);

"The provision making the decisions of the local boards ‘final’ means to us that Congress chose not to give administrative action under this Act the customary scope of judicial review which obtains under other statutes. It means that the courts are not to weigh the evidence to determine whether the classification made by the local boards was justified. The decisions of the local boards made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant."
Id, at 122-23


"Undoubtedly the statutory provision that decisions of the selective service boards shall be ‘final‘ narrowly limits the scope of judicial examination of board actions; but it is clear that Congress through use of such words cannot deny any registrant the constitutional protections of due process of law." U.S. ex rel. Trainin v. Cain, 144 F.2d 944, 947 (2nd Cir. 1944), cert. denied 323 U.S. 795 (1945).

Justice Frankfurter's thoughts:

"The legislative history of the Uniform Code of Military Justice strongly suggests that it was precisely in the realm of collateral judicial attack on courts-martial that the concept of ‘finality’ was intended not to operate." Burns v. Wilson, 346 U.S. 844, (Mem. on denial of rehearing)(Frankfurter, J.)

Anonymous said...

J'OC should change his username to Snarky von Snarkensnark.

John O'Connor said...

That sounds too Germanic. I'll go with Snarky McSnarkalot. Actually, I think Navarre can take it.

Dew_Process said...

Has anyone read the Gov'ts Merits Brief all the way through? It's really pretty sloppy, conflating the actions of the N-M CCA and CAAF, and making a number of basic errors, reflecting a) unfamiliarity with military practice, e.g., the "judgment" of a court-martial [ain't no such thing, you get Findings and a Sentence]; and b) it is very strange that they did not even address a very significant (unanimous) case against them that SG Garre argued in 2001, Florida v. Thomas, 532 U.S. 774 (2001).

Yes I know that Thomas was a State case and pretrial appeal, but the "action" of the Florida Supreme Court was essentially the same as CAAF's herein - a remand, which could moot the entire matter.

Anonymous said...

Two other things jump out about the Denedo Merits brief. First, in the final section, the SG advances an argument that its cites don't support, namely, that Corum Nobis only allows a court to correct its OWN mistakes, not another. But wait, the cites all deal with courts in OTHER jurisdictions, not inferior courts.

Second, is the SG making a backhand argument for the Supreme Court to overturn Dubay? Please read that paragraph - because it seems pretty clear that the Government is going for broke.

One last thought, so we don't get too caught-up in the military angles and forget why the Supremes may have really granted cert: AG Mukasey just issued a ruling (one of his final rulings) that designated-deportees can't rely on their attorney's IAC in Immigration Court (an Art I court). Can't this AG ruling have a tangential effect on Denedo's substantive argument? That is, if a petitioner can't rely on IAC in a DIRECT appeal on a matter entirely withing the scope and purview of the court, why should another be able to rely on IAC as a collateral matter? Just a thought.

Dew_Process said...

Socrates - good point, but the difference I think is that in criminal cases, there must be both a provident plea and if a PTA, providency regarding that.

Here's an excerpt from Mukasey's decision:

"Although the Fifth Amendment applies to removal proceedings, its guarantee of due process does not include a general right to counsel, or a specific right to effective assistance of counsel, and is violated only by state action, namely, action that can be legally attributed to the Government. Lawyers privately retained by aliens in removal proceedings are not state actors for due process purposes."

If true, then why does Batson apply to us?

Dew_Process said...

Check out Jimenez v. Quarterman from SCOTUS yesterday.

Fn. 4:

"[W]e merely hold that, where a state court has in fact reopened direct review, the conviction is rendered nonfinal for purposes of §2244(d)(1)(A) during the pendency of the reopened appeal."


"The statute thus carries out “AEDPA’s goal of promoting ‘comity, finality, and federalism’ by giving state courts ‘thefirst opportunity to review [the] claim,’ and to ‘correct’ any‘constitutional violation in the first instance.’”

Maybe they'll remand Denedo... nah, that would be going against the SG.