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 GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE Feb 06 2006

The Honorable Lamar Smith Chairman Subcommittee on Courts,
 * the Internet and Intellectual Property

U.S. House of Representatives Washington, DC 20515-6216 Dear Mr. Chairman: This responds to your letter to the Secretary of Defense, dated November 4, 2005, requesting the Department's views on H.R. 1364, a bill "to amend title 28, United States Code, to enable the Supreme Court to review decisions in which the Court of Appeals for the Armed Forces denied relief." Your letter requested analysis of the relative merits of the legislation and asked for the Department's analysis of the number of appeals that would have been eligible for a petition of certiorari if the proposal had been enacted and in force each of the last five fiscal years that ended September 30, 2005. I have been asked to provide you a response.

The Department of Defense does not keep aggregate statistics of the number of appeals requested, but the United States Court of Appeals of the Armed Forces (USCAAF) annually publishes the Military Justice Reporter statistics regarding its appellate court activities. As requested, enclosed are USCAAF statistics for the past five fiscal years regarding petitions for grant of review filed and cases in which writ petitions and writ appeals were filed.

Over the past five fiscal years, the number of cases in which USCAAF denied review or dismissed a petition for review totaled 3,377, with another 368 cases in which USCAAF affirmed without granting relief. Additionally, a total of 143 extraordinary writ petitions or appeals of extraordinary writ petitions were denied or dismissed. If, as your letter states, the legislation makes clear that the Supreme Court review would only cover the latter category of writ petitions or appeals of writ petitions denied or dismissed, the current annual impact would appear to be roughly 29 cases per year, on average. While this may appear to be a relatively low number of cases, focusing on the aggregate number of cases alone is misleading in that it does not adequately take into consideration the time and effort required for Supreme Court review of petitions for certiorari. Opening this additional avenue of Supreme Court appeal will require legal reviews and briefs from numerous counsel in the Military Departments' Government and Defense Appellate Divisions, the Department of Defense Office of General Counsel, as well as within the Office of the Solicitor General, and the Supreme Court.