This was Jurisdiction Day at CAAF, as the court heard back-to-back arguments on granted petitions challenging CCA rulings in favor of the government on Article 62 appeals. CAAF had specified issues in both cases concerning its own jurisdiction to hear such a case. Roughly the first fifteen minutes of each of the four counsel’s arguments were devoted to the jurisdiction issue.
Those who missed the arguments, to quote Henry V, “Shall think themselves accurs’d they were not [t]here.” Lopez de Victoria, the Army case, was first. I don’t know if this will carry through on the audio file of the argument on CAAF’s web (it isn’t up yet), but the atmosphere in the courtroom was filled with tension. The bench was extremely hot with the exception of Judge Erdmann, who asked the second question in the argument but then spoke no more. When Michael, the Navy case, was argued, it was as if the storm had passed and there was a less charged discussion of the jurisdiction issue.
Speaking of the second argument, I had previously written here about the inconsistent positions advanced by Army GAD on behalf of the United States and the Air Force Appellate Government Division on behalf of the Department of the Air Force. (Army GAD argued that CAAF didn’t have jurisdiction to review a CCA ruling on an Article 62 appeal while the Air Force Appellate Government Division argued that it did.) At the time I hadn’t seen the Navy-Marine Corps Appellate Government brief. I read it today; it’s an impressive piece of advocacy that sided with the Army in the intramural governmental split. I was nevertheless amused to see the Air Force Appellate Government representatives attending today’s argument sitting on the government side of the aisle.
It is usually foolish to attempt to predict a case’s outcome on the basis of oral argument. But perhaps not this time. By 1100 this morning, probably no one in the courtroom doubted that Chief Judge Effron, Judge Baker, and Judge Stucky will vote for the proposition that CAAF has jurisdiction to review a CCA’s ruling on an Article 62 appeal. While Judge Erdmann didn’t tip his hand, Chief Judge Effron emphasized that accepting Army GAD’s and the Navy-Marine Corps Appellate Government Division’s arguments that CAAF had no jurisdiction would require overruling United States v. Leak, 61 M.J. 234 (C.A.A.F. 2005) — a case in which the majority was comprised of Judge Baker, then-Judge Effron, Judge Erdmann, and Judge Crawford. So if Judge Erdmann takes the same position he did in Leak, he will likely join the apparent Effron-Baker-Stucky majority. (Chief Judge Effron emphasized that such a ruling would require overruling a number of other CMA/CAAF decisions as well. At one point, Judge Baker even suggested that the Army GAD counsel arguing the case consult with his second chair for the government’s position on the effect that accepting the GAD argument would have on such precedent. The Army GAD counsel did so, resumed the podium, and stuck to his guns by announcing that in the government’s view, those decisions would be nullities.)
Today Judge Ryan was certainly the juri-skeptic on the bench. In fact, much of the argument appeared to be thrusts and parries between the center of the bench and Judge Ryan delivered through questions to counsel.
While the discussion of the specified issues seemed deeper in Michael, that may prove to be the less interesting of the two cases. In Michael, CAAF appears highly likely to rule that it has jurisdiction to review NMCCA’s opinion and then affirm that opinion, though perhaps on a different ground (Judge Baker’s suggested “One Josh Rule” perhaps — a lighter moment to listen for on the audio file). If that’s the outcome, then there is little prospect for a cert petition to review the propriety of CAAF’s exercise of jurisdiction. (It’s possible that there could be a cross-petition raising the jurisdictional issue, but that seems unlikely given the SG’s modus operandi in responding to military cert petitions.) But Lopez de Victoria seemed like a much closer call on the merits. If CAAF rules that it has jurisdiction to review ACCA’s holding and then overrules it, will the Solicitor General seek cert in a reprise of Clinton v. Goldsmith? From my extremely limited knowledge of the government’s cert decision making process, it would seem that the Air Force Appellate Government Division’s support for CAAF jurisdiction would render a government cert petition far less likely. But if that is the outcome in Lopez de Victoria, presumably the Kabul Klipper will start another Golden CAAF vigil. Stay tuned — Lopez de Victoria may be one of the most exciting decisions of this term. It was certainly one of the most exciting oral arguments.