At the heart of Michael New’s latest legal foray is the argument that President Clinton’s order to deploy U.S. troops to support the UN peacekeeping operation in Macedonia violated 22 U.S.C. §§ 287d, 287d-1.

The counsel of record on the New v. United States cert petition, No. 12-892, is Herbert W. Titus, the founding dean of Regent University’s law school.  He’s also the general counsel of the Michael New Action Fund.

His firm issued this statement about the filing of the cert petition in New:

Today we filed a Petition for Writ of Certiorari in the case of Michael G. New v. United States of America in the United States Supreme Court.The petition urges the Supreme Court to grant the petition for the following reasons. First, the perfunctory disposition of petitioner’s coram nobis petition by the military courts conflicts with United States v. Denedo (Denedo II). Further, subject matter jurisdiction of this writ under 28 U.S.C. Section 1259(3) is an important federal question that has not been, but should be, decided by the Supreme Court. Finally, the United States Court of Appeals for the Armed Forces wrongfully denied New coram nobis relief from a fundamentally flawed court-martial by its failure to address the government’s misapplication of the Supreme Court’s political question doctrine.

The petition itself is available here.

Here are the QPs:

1. Whether the military courts’ perfunctory dispositions denying the requested coram nobis relief conflict with United States v. Denedo, 556 U.S. 904 (2009), wherein this Court ruled that it is “the responsibility of military courts to reexamine judgments in rare cases where a fundamental flaw is alleged”?

2. Whether this Court has certiorari jurisdiction under 28 U.S.C. Section 1259(3) to review an order of CAAF denying coram nobis relief when sought by a member of the armed services, in light of this Court’s ruling in United States v. Denedo that 28 U.S.C. Section 1259(4) confers certiorari jurisdiction to review a Government’s petition seeking reversal of a CAAF decision granting such relief?

3. Whether CAAF wrongfully denied coram nobis relief from a “fundamentally flawed” court-martial by its failure to address the Government’s misapplication of this Court’s political question doctrine to whether President William J. Clinton’s order to deploy New to a United Nations multilateral “peace operation” violated the United Nations Participation Act?

Note that the cert petition’s statement that CAAF’s order denying the writ appeal petition is unreported is wrong.  It’s reported at 71 M.J. 395.  Here’s the text of that summary disposition:

Misc. No. 12–8025/AR.  Michael G. New, Appellant v. United States, Appellee. On consideration of the writ-appeal petition, it is ordered that said writ-appeal petition is hereby denied.

Here’s the cert petition’s explanation for why the Supremes have jurisdiction:

Having “considered” New’s petition, as stated in its Order, CAAF reviewed that petition as provided in 10 U.S.C. Section 867(a)(3), but denied relief. Accordingly, this Court has jurisdiction to entertain New’s petition for a writ of certiorari to CAAF under 28 U.S.C. Section 1259(3).

Here’s what 28 U.S.C. § 1259(3) says:

Decisions of the United States Court of Appeals for the Armed Forces may be reviewed by the Supreme Court by writ of certiorari in the following cases . . .  (3) Cases in which the Court of Appeals for the Armed Forces granted a petition for review under section 867(a)(3) of title 10.
Article 67(a)(3) of the UCMJ (10 U.S.C. § 867(a)(3)) provides:
The Court of Appeals for the Armed Forces shall review the record in . . . (3) all cases reviewed by a Court of Criminal Appeals in which, upon petition of the accused and on good cause shown, the Court of Appeals for the Armed Forces has granted a review.
How you get “the Court of Appeals for the Armed Forces has granted a review” from “said writ-appeal petition is hereby denied” isn’t apparent to me.  But the cert petition argues for such a result at length (pp. 25-27):

This is a petition for a writ of certiorari to CAAF under 28 U.S.C. Section 1259(3) in a case where CAAF, after “consideration of [New’s] writ-appeal petition,” issued an order denying New’s petition for extraordinary relief in the nature of a writ of coram nobis. CAAF decisions “are subject to review by the Supreme Court by writ of certiorari as provided in section 1259 [in] cases reviewed by [CAAF].” 22 Moore’s Federal Practice – Civil, C. 407, § 407.01[b].  As the U.S. Court of Appeals for the Federal Circuit observed, “those plaintiffs whose cases are reviewed by the CMA [now CAAF] can seek review by petition to the Supreme Court.” Matias v. United States, 923 F.2d 821, 824 (Fed. Cir. 1990). Only in those cases where CAAF “denie[s] review” are they not subject to this Court’s certiorari jurisdiction under 28 U.S.C. Section 1259(3). Davis v. Marsh, 876 F.2d 1446, 1448 n. 3 (9th Cir. 1989).

On its face, the CAAF order denying New’s writ-appeal petition was a denial of relief after “consideration” of New’s writ-appeal petition, the Government Answer, and New’s Reply — not a denial of review. As the Government has stated in its Answer, CAAF reviews decisions of a service court on a petition for extraordinary relief as a writ-appeal, under Rules 4(b)(2) and 18(a)(4).” Ans. (App. 69a) (emphasis added). In this context, “consideration” connotes review by deliberation or thoughtful examination, not a refusal to review. A fair reading of CAAF’s order is that CAAF granted review of the writ-appeal petition and, after review of that petition, the Government’s Answer, and New’s Reply, then denied New any of the relief requested.

To be sure, CAAF did not expressly state that it “granted a review” (as stated in 10 U.S.C. Section 867(a)(3)), nor was New’s petition a formal “petition for [such] review” (as stated in 28 U.S.C. Section 1259(3). But as this Court observed in Denedo II, the words in Section 1259(3) ought not be subjected to “parsimonious construction.”  Id., 556 U.S. at 909. To construe “review” in 28 U.S.C. 1259(3) and 10 U.S.C. Sections 867(a)(3) and 867a(a) as requiring a formal, preliminary step, before consideration on the merits, would exalt form over substance. Indeed, CAAF Rules 4(b)(2) and 18(a)(4) do not require a writ-appeal petition for extraordinary relief to formally request a “grant of review,” as Rules 4(a)(3) and 18(a)(1) do for direct appeals from a court-martial conviction.  See CAAF Rules (App. 29a-31a).

After examining New’s writ-appeal petition, it was wholly within CAAF’s discretion to issue an order refusing to review that petition. CAAF Rule 4(b) provides that the “Court may, in its discretion, entertain a writ-appeal petition….” (App. 30a). In short, CAAF was not obliged to entertain New’s writ-appeal petition. It could have refused to do so, and to state accordingly in an order dismissing the writ-appeal petition. Instead, by its plain language CAAF exercised its discretion to receive New’s writ-appeal petition and give “consideration” to its merits. Because, under its current rules, CAAF could have declined to give any such consideration, adoption of a common-sense meaning of “review” would not take from CAAF “the key that allows access to the SupremeCourt,” and therefore, would not undermine 28 U.S.C. Section 1259(3)’s design to have a “mitigating effect on the caseload of the Supreme Court.”  See Matias, 923 F.2d at 824. All CAAF need do is to specify that it was denying review, which it did not do in this case.

3 Responses to “The New cert petition”

  1. ConLaw says:

    FYI: You’ll never get the time back that you spent on these blog posts.

  2. Gene Fidell says:

    The Supreme Court’s jurisdiction is fixed by statute and this case quite simply lies outside the statute. While we are at the store, however, let us note that the statutory limitation, be it ever so binding and regardless of what one thinks about the New case, unfairly discriminates against military personnel. 

  3. John O'Connor says:

    Gene, the statutory limitation doesn’t discriminate against military personnel.  It discriminates against persons convicted by court-martial, whether they be military personnel or civilians.  ;-)