In their opposition to cert, Denedo’s counsel make two main points: (1) the Supremes don’t have jurisdiction to grant cert in the case’s current posture; and (2) CAAF was right. I agree with the first point even though I disagree with the second.
The opp observes that the SG invoked jurisdiction under 28 U.S.C. § 1259(4), which allows the Court to review “[c]ases, other than those described in paragraphs (1), (2), and (3) of this subsection, in which the Court of Appeals for the Armed Forces has granted relief.” The opp notes that CAAF remanded to NMCCA for further proceedings with the direction that “[i]f prejudice is found, [that] court shall determine whether the requested relief should be granted.” The opp argues: “A remand, without relief, is not ‘relief.’ It is merely a procedural step that may lead to adjudication of the merits. ‘Relief’ is the substance of what the moving party seeks and what the court finds he or she is entitled to. Health Cost Controls of Illinois, Inc. v. Washington, 187 F.3d 703, 706 (7th Cir. 1999)
(Posner, C.J.).” Opp at 5.
The opposition has a discussion of Clinton v. Goldsmith, 526 U.S. 529 (1999), that is sufficiently interesting, nuanced, and short to be best read in toto rather than summarized here. The opp also notes that the case presents no circuit split crying out for resolution. And the opp presents a compelling case that Denedo has nowhere else to turn if not to the military appellate courts. Finally, the opp calls attention to the “irony” that “in its effort to call into question the jurisdiction of the Court of Appeals the government has overlooked this Court’s lack of jurisdiction over the petition.” Opp. at 14. (Now THAT, Ms. Morissette, is ironic.)
But even if the Supremes did have jurisdiction, there is another good argument — not included in the opp — suggesting that cert is inappropriate. And that argument was made by, of all people, the Solicitor General. In his opp to a military cert petition earlier in the same month that he filed his Denedo cert petition, the SG argued that the personal jurisdiction issue presented by Stevenson v. United States, No. 07-1397, was “premature at this juncture.” Brief for the United States in Opposition, Stevenson v. United States, No. 07-1397, at 9 (filed August 4, 2008). In Stevenson, the SG wrote:
The court below remanded this case for a factual determination whether a search warrant whose execution resulted in obtaining crucial evidence in this case was predicated upon tainted information. Resolution of that issue in petitioner’s favor could result in the reversal of his conviction, thereby rendering the question presented by this petition moot. If petitioner does not prevail on the issue on remand, petitioner may then be able to present his contention to this Court in a petition for a writ of certiorari seeking review of a final judgment against him.
Id. (internal citation omitted).
Similarly, in Denedo, CAAF remanded the case for further proceedings by a lower court to determine whether to grant relief. Resolution of that issue in the United States’ favor would moot the question presented by its cert petition. If the United States doesn’t prevail in that litigation, then it can return to the Supremes with a ripe certiorari petition.
As troubling as CAAF’s ruling in Denedo is, the case doesn’t appear to fall within the Supremes’ statutory cert jurisdiction and, even if it did, isn’t ripe. Just like it passed on Stevenson, the Supremes should pass on Denedo.