There is considerable discussion below about the extent to which the Acting SG’s cert petition in Denedo was coordinated among the services. Anonymous posters claiming to be involved in the process (we cant’ really know, can we?) tell us that there was considerable coordination. (I wish they would also tell us why the Supremes have jurisdiction, but they haven’t done that yet.)
Here’s what I find interesting. As we discussed some time ago, the Navy-Marine Corps Appellate Government Division (Code 46) and the Army Government Appellate Division (GAD) took the position in Lopez de Victoria and Michael that CAAF had no jurisdiction to review a CCA’s ruling on an Article 62 appeal while the Air Force Government Trial & Appellate Counsel Division (JAJG) took the position in Miller and Webb that CAAF did have such jurisdiction. [DISCLAIMER: I was an appellate defense counsel in Miller.] As explained by the appellees in both Miller (before I was one of his counsel) and Webb, taking such an inconsistent position on behalf of the United States actually appears to have been impermissible; differences in litigation positions between various departments and agencies are supposed to be resolved internally rather than flaunted for all to see. Interestingly, in the Denedo cert petition, the Acting SG adopts the position of Code 46 and GAD while rejecting the position of JAJG.
In the Denedo cert petition, the Acting SG writes: “The decision below represents the latest iteration of [CAAF’s] efforts to expand its role beyond its congressionally prescribed jurisdiction to ‘review * * * specified sentences imposed by courts-martial.’ Goldsmith, 526 U.S. at 534.” The very first example the cert petition offers of such extra-statutory expansion is United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008).