On Thursday, December 19, CAAF granted review and ordered expedited briefing in the Air Force case of United States v. Janssen, No 14-0130/AF, with the following issue:

Whether the civilian judge on Appellant’s Air Force Court of Criminal Appeals panel was properly appointed. See U.S. Const. Article II, Section 2, Clause 2; 10 U.S.C. § 113 (2012); 5 U.S.C. § 3101 (2012).

We’ve been following this issue for a few months (since at least this September post, and most recently this post on Dec. 4, and this post on Dec. 5). Appellate Military Judge Lawrence M. Soybel, who retired from the Air Force, was appointed to the Air Force Court of Criminal Appeals as a civilian. For reasons not yet clear, there were problems with the initial appointment and the Secretary of Defense re-appointed Mr. Soybel on June 25, 2013. Cases in which Judge Soybel participated before the re-appointment have received reconsideration by the CCA or remand from CAAF.

Janssen is one such case. The AFCCA first decided Janssen in May, with a per curiam opinion by a three-judge panel that included Judge Soybel (link to slip op.). The AFCCA then reconsidered the case in July before the same panel, issuing a second per curiam opinion with a footnote that stated, “Upon our own motion, this Court vacated the previous decision in this case for reconsideration before a properly constituted panel. Our decision today reaffirms our earlier decision” (link to slip op.).

CAAF has scheduled the case for oral argument on January 28, 2014.

In other news from CAAF, former-Sergeant Hasan Akbar, who attacked fellow soldiers in Kuwait in 2003, killing two and wounding 14 others, and who was sentenced to death in 2005, has moved for leave to exceed the court’s page limit for a brief:

No. 13-7001/AR.  U.S. v. Hasan K. AKBAR.  CCA 20050514.  On consideration of Appellant’s motion to file a brief in excess of fifty pages, the Court notes that Rule 24(b) of its Rules of Practice and Procedure provides that briefs filed with the Court shall not exceed thirty pages, unless otherwise authorized by order of the Court or by motion of a party granted by the Court.  In addition, Rules 24(c) provides a type-volume limitation providing that briefs are acceptable if they contain no more than 14,000 words or 1,300 lines of text.

Appellant’s motion requests permission to file a brief in excess of fifty pages, and proposes to submit a brief in excess of 500 pages.  It is ordered that on or before January 3, 2013, Appellant supplement his motion with a review of federal circuit courts’ capital case exceptions to the analogous page limitation under Rule 32(a)(7) of the Federal Rules of Appellate Procedure, if any, including any Supreme Court exceptions to its own page limitations in the context of capital cases.

(emphasis added). The Army CCA affirmed the death sentence in 2012 (discussed here). Akbar is one of only six military death row inmates. The whole list (in the order sentence was adjudged) is: Gray, Loving, Akbar, Witt, Hennis, and Hasan. Of note, the death sentence in Witt was set aside by the CCA in August (discussed here), but the court has granted a Government motion for reconsideration (discussed here).

Finally, CAAF has increased the fee to join the bar to $50 (link to notice).

One Response to “CAAF to review the AFCCA’s Appointments Clause issue (and other news)”

  1. mlwilde says:

    I think we can all agree that the most important issue here is the $50.