As Phil noted earlier today in this post, CAAF issued an order (link) that effectively rejected the Government’s brief in the AFCCA appointments case of United States v. Janssen, No 14-0130/AF (CAAFlog case page).

Janssen involves a challenge to the appointment of a civilian employee of the Department of Defense (who is also a retired Air Force officer) to the Air Force Court of Criminal Appeals. The appointment was presumably made to assist with the backlog at that court, and together the backlog and the appointment were our #9 military justice story of 2013. But CAAF summarily remanded numerous cases over the summer due to concerns with the appointment, and then on December 19, 2013, it granted review in Janssen and ordered expedited briefing on a single 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).

Appellant filed his brief (available here) on January 3, 2014, providing additional facts. The civilian judge, Mr. Soybel, was first appointed to the AFCCA by the Judge Advocate General of the Air Force on January 25, 2013. He promptly got to work, participating in numerous cases. However, on May 23, 2013, the CCA recalled all of those cases. Then, on June 25, 2013, the Secretary of Defense issued a memorandum that appointed (re-appointed?) Mr. Soybel to the CCA, and he again participated in numerous cases, including Janssen. The CCA refused to reconsider these cases, and Janssen appealed to CAAF.

Appellant’s position is relatively straightforward:

The Supreme Court ruled that Article 66 gives Judge Advocates General the duty to establish courts of criminal appeals and the authority to assign officers as appellate military judges. Edmond v. United States, 520 U.S. 651 (1997). But it does not empower them to create inferior officers and therefore does not empower them to appoint civilians as appellate military judges.

App. Br. at 7. In Edmond, the Supreme Court determined that Congress vested appointment authority for the Coast Guard CCA in the Secretary of Transportation through the broad authority granted to that Secretary in 49 U.S.C. § 323(a). But no similar statute exists for the Secretary of Defense.

Rather, “the Secretary of Defense, in appointing Mr. Soybel as an appellate military judge, cited 5 U.S.C. § 3101 as his authority for the appointment.” App. Br. at 8. But there are significant differences between the two statutes.

Appellant’s brief identifies four such differences:

First, unlike 49 U.S.C. § 323(a), 5 U.S.C. § 3101 does not name any particular department head as being the beneficiary of Congress’ vestment.

Second, unlike 49 U.S.C. § 323(a), 5 U.S.C. § 3101 does not mention the appointment of officers, but instead authorizes only the employment of employees. . . .

Third, unlike 49 U.S.C. § 323(a), 5 U.S.C. § 3101 is not an unconditional grant of authority but instead limits the “agency, military department, and government of the District of Columbia” to the hiring of employees “as Congress may appropriate for from year to year.”

Finally, unlike 49 U.S.C. § 323(a), 5 U.S.C. § 3101 does not authorize the beneficiary of that power to define the “duties and powers” of employees or officers. Instead, Congress has vested such authority regarding employees of the Department of Defense in the Office of Personnel Management (OPM).

App. Br. at 9 (paragraphing added). These differences may be insurmountable for the Government as it tries to salvage Mr. Soybel’s second/re-appointment.

But in its brief dated January 13, 2014 (available here), the Government hardly even tries.

Clocking in at a breathtakingly short five numbered pages (and the fifth page is little more than signatures), the Government’s brief makes a single, simple argument:

Under U.S. Const. Article II, Section 2, Clause 2, “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” The Secretary of Defense is a “Head of [a] Department” and “has authority, direction, and control over the Department of Defense.” 10 U.S.C. § 113(a-b). In exercising this authority, the Secretary of Defense has the congressional authority to “employ such number of employees. . . .” 5 U.S.C. § 3101. Under Article 66(a), UCMJ, Congress determined that appellate judges “may be commissioned officers or civilians” under the direction of The Judge Advocate General, a Department of Defense officer subordinate to the Secretary of Defense. On 25 June 2013, pursuant to this authority, the Secretary of Defense “appointed” Judge Soybel to “serve as an appellate military judge on the Air Force Court of Criminal Appeals.”

Gov’t Br. at 2-3. There is no direct discussion of any of the arguments made by Appellant, and no meaningful consideration of the differences between the language of 49 U.S.C. § 323(a) and 5 U.S.C. § 3101. And the Government’s use of quotes around the word “appointed” is an interesting technique.

The Government’s brief might, at best, be read to say that AFCCA judges are just DoD employees like any others, and that the Secretary can hire whomever he wants, but it doesn’t actually say that (perhaps because there is a rather formal hiring process for DoD employees that likely was not used in this case; did anyone see a notice for a seat on the AFCCA?). The brief really just boils down to an assertion of “it’s legal because we say so.”

CAAF was not amused:

On consideration of Appellee’s brief and its January 15, 2014, letter to the Clerk, [citing supplemental authority] we find that they insufficiently address the assigned issue and Appellant’s argument. . . .

Accordingly, it is, by the Court, this 16th day of January, 2014, ORDERED: That, on or before January 23, 2014, Appellee will file a supplemental brief fully addressing the assigned issue and Appellant’s arguments. No extensions of time to file will be granted.

CAAF order dated Jan 16.

3 Responses to “A hard look at the Government brief rejected by CAAF in United States v. Janssen, No 14-0130/AF”

  1. Peanut Gallery says:

    To quote SoonerGrunt: “The stupid. It burns.”

  2. anon says:

    Just a simple caveman lawyer, but after the AF recognized that there was an appointment issue (which arguably was pretty clear cut on prior decision from the CAVC) why did they just not recall Judge Soybel to active-duty — even if AF thinks it is correct in interpreting the appointment through Sec Def?  This one boggles my mind because I’m absolutely certain that multiple experienced and senior JAGs had input into this process.  All for road less travelled and fighting the good fight . . . but not walking through a minefield when there is a clear path to the other side. 

  3. Phil Cave says:

    I have uploaded the AG filings of 13 and 15 January at this link.