Personally, I would like to see the Supreme Court review the issue of whether military appellate courts can issue extraordinary relief in cases like Denedo. That said, I don’t believe that Denedo itself, in its current procedural posture, provides a vehicle for doing so. I was looking forward to reading the Acting Solicitor General’s analysis of why the case falls within the Supremes’ cert jurisdiction. Unfortunately, that “analysis” was limited to a single unenlightening sentence.
The Acting SG’s cert petition in Denedo declares, “The jurisdiction of this Court is invoked under 28 U.S.C. 1259(4).” That’s it. It tells us nothing about why this case falls within § 1259(4). Under that statutory provision, “[d]ecisions of the United States Court of Appeals for the Armed Forces may be reviewed by the Supreme Court by writ of certiorari in . . . [c]ases . . . in which the Court of Appeals for the Armed Forces granted relief.”
In Denedo, CAAF’s decretal paragraph “remand[ed] Appellant’s petition to the United States Navy-Marine Corps Court of Criminal Appeals for further proceedings . . . . If prejudice is found, the court shall determine whether the requested relief should be granted.” Denedo v. United States, 66 M.J. 114, 130 (C.A.A.F. 2008). To me, that doesn’t look like a grant of relief. On the contrary, on its face it reserves judgment as to whether relief will ultimately be granted. But even if you disagree with me on that point, I hope you will at least agree that it isn’t obvious that CAAF’s decision falls within § 1259(4)’s scope. So why didn’t the Acting SG set out why the Supremes should conclude that CAAF granted relief for purposes of § 1259(4)? And what should he have said if he had addressed that issue?