The SG argues once more that SCOTUS’s cert jurisdiction over military justice cases is limited to the issues actually granted by CAAF
Note the following from the SG’s brief in opposition in Wiechmann v. United States, No. 09-418:
The petitioner (Pet. 3) raises only a Sixth Amendment claim, and he does not assert any independent violation of the UCMJ. Nor could petitioner raise a statutory claim. 28 U.S.C. 1259 limits this Court’s review to “[d]ecisions” of the CAAF. The CAAF granted review only on petitioner’s Sixth Amendment claim (Pet. App. 2a), and decided that issue only.
Brief for the United States in Opposition at 7 n.2.
This is a reprise of the debate between Gene Fidell and Michael Dreeben of the SG’s office over whether SCOTUS may exercise jurisdiction over an issue where CAAF granted review of the case, but didn’t grant review of the issue that the petitioner presents in a cert petition. Here are links (1, 2) to our previous discussion of this issue arising from the case of McKeel v. United States, No. 06-58. The second link includes an excerpt from Gene Fidell’s CAAF Rules Guide discussing the issue. And here’s a link to Mr. Dreeben’s letter to Gene, arguing the other side.
Those who take the time to study Mr. Dreeben’s letter may want to be aware that the bill originally provided for Supreme Court review by writ of certiorari of “issues” CAAF has granted, whereas the enacted version refers to “cases” in which CAAF has granted review. The change is obviously significant; my letter had mentioned it, but Mr. Dreeben’s response does not address it.
BNA’s authoratative Supreme Court Practice notes: “It is an unresolved question whether, once the Armed Forces court grants a petition for review on some issues, the Supreme Court has the power to consider other issues in the case that were not granted review. The Solicitor General has taken the position that review of those issues is unavailable. Brief for the United States in Opposition 6, McKeel v. United States, cert. denied, 127 S. Ct. 554 (2006).” Eugene Gressman et al., Supreme Court Practice 128 n. (9th ed. 2007).
I’d guess though that a “case” generally involves “issues” that have been raised before a court. If there are no issues, there is no case.
I think it unfair that military members don’t have the same appellate rights to the Supremes that civilian Americans do, but I think your case is based on the issues you raise.
If those issues aren’t addressed by CAAF, either because you didn’t raise them* or because CAAF didn’t grant review, then there is no case vis-a-vis those issues.
*(I realize the former isn’t at issue)
Wouldn’t the law of the case doctrine apply?
Procedurally, assume Appellant raises 3 issues before CAAF, and they grant only on issue A. Are issues B & C, first of all, “preserved” in the context of 28 USC 1259? That answer must be yes, as there is nothing more the Appellant could have done.
But, a Writ of Certiorari, directs that the “record” from the lower court be provided to the superior court, and that record would contain the issues raised, but not granted.
The harder question I think, is the interpretation to be given to Article 67a(a), which says: “DECISIONS of the United States Court of Appeals for the Armed Forces are subject to review by the Supreme Court by writ of certiorari….” Thus, is the denial of the grant of Review by CAAF as to issues B & C, a “decision” of the CAAF?
Anon 1450,
CAAF’s denial of review on issues B&C cannot, by itself, be a “decision” by CAAF. If it were, every military case in which the accused sought review at CAAF would be eligible for cert, since CAAF makes a “decision” to deny review on the entirety of cases frequently. That’s the problem with the law as it stands now, and why the equal justice for our military act should be passed into law. Forget the whole treating our soldiers as well as the terrorist argument. The law as it stands now just doesn’t make sense.
Anonymous 1450,
When CAAF grants one issue but not others, doesn’t its order say simply the petition is granted as to Issue I, not that it is granted as to Issue I and denied as to Issue II? Feel free to check me on this, but I believe the only time the Court of Appeals “denies” in haec verba when acting on a petition for grant of review is when it denies the whole thing. Granting (or specifying) any issue makes it a granted case.
Think about the many instances in which CAAF grants a petition and then summarily affirms. In such an instance, I would think that 28 U.S.C. 1259 would allow the appellant to seek cert of any issue, since the “decision” being challenged is the affirmance of the findings and sentence.
Now consider a case in which CAAF grants at least one issue while not granting review of one or more issues raised in the supp. Let’s say CAAF ultimately affirms. Is it the “decision” of CAAF to affirm the findings and sentence, thus allowing any challenge to be raised in a cert petition, or is the “decision” narrowly limited to the particular issue that CAAF addressed on the way to affirming the findings and sentence? The Supremes have suggested that 28 U.S.C. 1259 shouldn’t be construed parsimoneously. See United States v. Denedo, 129 S. Ct. 2213, 2219 (2009).
No, it wouldn’t be limited to the issue CAAF addresses on the way to affirming but it would be limited to the issues that CAAF grants review on.
Dwight’s 0711 post makes an excellent point about how odd the government’s reading is given the Court of Appeals’ summary disposition practice. I cannot recall CAAF identifying issues when summarily affirming. On the government’s McKeel view, therefore, an accused whose case was summarily affirmed (and which therefore never got full briefing and argument at CAAF) would have every right to seek certiorari on any issue set forth in the Supplement, while one whose case made it to the plenary docket but fewer than all of the issues set forth in the Supplement were granted could on certiorari only raise issues that had been granted. Make sense?
What if the Court of Appeals modifies the issue, as it occasionally does, when granting review? Is such an issue “granted” or not for McKeel purposes? Can the accused thereafter frame a certiorari Question Presented based on his Supplement’s framing of the issue or is he handcuffed to the Court of Appeals’ version?
It would be interesting to know if the government’s McKeel position is driven by the SG’s Office or reflects DoD policy? In other words, is it something on which DoD could/does drive the train or is it Supreme Court inside baseball on which the SG is in charge? If the former, OGC could fix this problem, but unfortunately, given its inexplicable resistance to the pending corrective legislation, this too does not seem to be in cards.
Does anyone know if Wiechmann’s counsel is going to develop the McKeel issue in the reply to the government’s opposition to certiorari?