Friday, May 29, 2009

BIG news: Rodriguez files cert petition

Yes, that Rodriguez. United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009).

The cert petition was filed on Wednesday. Rodriguez v. United States, No. 08-1465. The SG's response is due 29 June. I haven't seen the cert petition, so I don't know what the QP is. But I have serious doubts that the case falls within the Supremes' statutory cert jurisdiction, since CAAF vacated the grant of review and dismissed the petition. Of course, we'll probably never know for sure. In all likelihood, the SG will simply waive the United States' right to file a response.

I'll be at the Supremes on Monday; I'll try to get a copy of the cert petition then. In the meantime, if anyone has an electronic copy, please send it to us at


Socrates said...

The famous quip is that Russia is a country with unpredictable past.

Does an order to vacate amount to Stalin's attempts to airbrush events out of its history?

The CAAF grant in Rodriguez actually happened, right? It was a historical fact. It was not a tree that fell in the forest with nobody nearby. It made noise. we all heard it.

By the very logic CAAF used to deny its own jurisdiction for Rodriguez, the Supreme Court actually has jurisdiction over his petition for a grant of cert.

Essentially, CAAF stripped itself of the judicial power to excuse or amend a jurisdictional statute.

So, CAAF granted Rodriguez at T1. Its attempt to vacate the Rodriguez grant at T2 makes no difference as to the statutory requisite for Supreme Court jurisdiction. You just look at the plain language and the requirements are satisfied.

Put differently, if CAAF is the "gatekeeper" to Supreme Court cert jurisdiction, Rodriguez already went through the gate at T1. CAAF's attempt to evict Rodriguez, and kick him back outside the gate, is too late.

If one buys the counter-argument that CAAF has the inherent judicial authority to issue a valid vacate order - imposing, in effect, an asterisk and footnote onto the UCMJ's Supreme Court certiorari language - then one might as well buy that CAAF has the inherent judicial auhority to make more MINOR time and deadline exceptions.

Perverse irony. But it may never be exposed.

Dwight Sullivan said...

So-crates, you make a very good argument -- and one with which CAAF itself apparently agrees. In Wuterich, CAAF vacated NMCCA's opinion and then proceeded to decide the substantive issue itself. I submitted a reconsideration petition, arguing that since CAAF vacated NMCCA's opinion, it no longer had jurisdiction, since its own jurisdiction, according to Lopez de Victoria, arose from its power to review the CCA opinion, which had been vacated.

I argued:

By vacating the lower court's opinion, this Court rendered it void. As the United States Court of Appeals for the Fourth Circuit has observed:

"Vacate" means "to render an act void; as, to vacate an entry of record, or a judgment." Black's Law Dictionary 1548 (6th ed. 1990). And a judgment that is "void," as opposed to one that is merely "voidable," "is nugatory and ineffectual so that nothing can cure it." Id. at 1573.

United States v. Martin, 378 F.3d 353, 357 (4th Cir.), cert. denied, 543 U.S. 1029 (2004); see also, e.g., Smith v. Potter, 513 F.3d 781, 782 (7th Cir. 2008) (“void judgments are legal nullities” (quoting United States v. Indoor Cultivation Equipment, 766 F.2d 1153, 1159 (7th Cir. 1985)); Nara v. Frank, 488 F.3d 187, 199 (3d Cir. 2007) ("When an appellate court vacates a lower court's order, it renders the lower court's order null and void."); Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 661 (1st Cir. 1997) ( "'vacate' means 'to annul’ or 'to render . . . void'" (quoting BLACK’S LAW DICTIONARY 1548 (6th ed. 1990))).

I reasoned: "[H]aving vacated the lower court's opinion, this Court voided that court's review of the Government's appeal, thus removing this case from Article 67(a)(3)'s scope. Because this Court's jurisdiction over an Article 62 appeal is derived solely from its authority to review the lower courts' opinions, the demise of the lower court's opinion extinguished this Court's jurisdiction."

CAAF was unimpressed. Less than 24 hours after we filed our reply to the government's opposition, CAAF denied the reconsideration petition.

But its singularly unlikely that the Supremes will ever address the interesting jurisdictional issue that the Rodriguez cert petition presents.