CAAF decided the Air Force case of United States v. Janssen, No 14-0130/AF, 73 M.J. 221 (CAAFlog case page) (link to slip op.), on Tuesday, April 15, 2014, finding that Congress did not give the Secretary of Defense the authority to appoint a civilian as an appellate military judge. CAAF finds that the Secretary’s action appointing to the Air Force Court of Criminal Appeals one Mr. Soybel (a civilian litigation attorney employed by the Air Force who is also a retired Air Force judge advocate who served as an appellate military judge while on active duty), rather than recalling him to active duty to return to the CCA, was invalid.

Judge Stucky writes for a unanimous court.

As a civilian, Judge Soybel (as he is repeatedly referred to in CAAF’s opinion) 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, including Janssen. 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 re-appointed Judge Soybel to the CCA, and he again participated in numerous cases, again including Janssen. The CCA refused to reconsider those cases, and Janssen appealed to CAAF.

Judge Soybel’s appointment was presumably made to assist with the backlog at the AFCCA, and together the backlog and the appointment issue 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).

CAAF also granted numerous trailers (I’m tracking eight: Jones, Grawey, Annis, Burns, Johnson, Dixon, Albright, and Peacock). But the controversies continued to mount, as CAAF rejected the Government’s brief of the granted issue in an order that stated:

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. . . .

The Government submitted a second brief that surveyed the legal landscape and posed the ultimate question for who has the power to make such an appointment of “if not the Secretary of Defense, then whom?” Gov’t Second Br. at 13. Judge Stucky answers, “the President”:

The conclusion is clear: While Congress certainly has the authority under the Appointments Clause to authorize the Secretary of Defense to appoint appellate military judges, either through general legislation granting authority to appoint inferior officers or specific legislation granting authority to appoint appellate military judges, it has not done so. This being the case, the appointment of Judge Soybel was required to be done by the President with Senate advice and consent, which is the default method for the appointments of inferior officers. See Edmond, 520 U.S. at 660. Since this was not done, his appointment as an appellate military judge is invalid and of no effect.

Slip op. at 13.

Judge Stucky’s opinion of the court explains that “the Government [did] not argue that any specific statutory authority exists for the action of the Secretary of Defense. Rather, it relie[d] on general, government-wide ‘housekeeping’ statutes for the necessary authority.” Slip op. at 9. But CAAF finds that these general statutes fall short:

The fundamental problem with the Government’s contention that 5 U.S.C. § 301 (which grants only the power to prescribe regulations) and 5 U.S.C. § 3101 (which establishes a general authority to employ, subject to appropriations) authorize the Secretary’s action is that the argument makes no sense in the face of the statutory structure that Congress has enacted for the Department of Defense. Chapter 4 of Title 10, United States Code, (10 U.S.C. §§ 131-144 (2012)) sets out in great detail the officials who make up the Office of the Secretary of Defense, and the procedures to be employed for their appointment. There are, for example, fourteen assistant secretaries of defense, who are appointed by the President with Senate advice and consent, although they are certainly “inferior officers” constitutionally. 10 U.S.C. § 138(a) (2012). Some have statutory portfolios and others do not

More to the point, Congress has established three positions within the Office of the Secretary and explicitly provided that the Secretary alone shall appoint them. This raises the obvious question of why Congress would go to the trouble of enshrining the positions in statute and providing for their appointment if, as the Government argues, the Secretary already has the authority under the sections of Title 5 to do so. One searches the sections of Title 10 in vain for any provision conferring a general appointment power for officers after the manner of the Transportation Department statute upheld in Edmond, and at oral argument, Government counsel conceded that he had been unable to find any instance in which the Secretary of Defense had in fact appointed an inferior officer under the authority of Title 5.

Furthermore, the structure of the sections of Title 5 undercuts the argument that they confer the kind of general authority that the Government argues for.

Slip op. at 11-12.

Finding no authority for the appointment, Judge Stucky considers possibility of saving the CCA’s action on the case by application of the de facto officer doctrine. This doctrine “confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.” Ryder v. United States, 515 U.S. 177, 180 (1995) (citing Norton v. Shelby County, 118 U.S. 425, 440 (1886)). But under the facts of this case, where Appellant challenged Judge Soybel’s appointment as soon as he learned of it, CAAF declines to apply the doctrine, noting that the Supreme Court also declined to apply the doctrine in Ryder because it “would create a disincentive to raise Appointments Clause challenges with respect to questionable judicial appointments.” Slip op. at 13-14 (quoting Ryder, 515 U.S. at 183).

So CAAF returns the case to the Air Force CCA, “for a new review under Article 66, UCMJ, 10 U.S.C. § 866 (2012), before a properly constituted panel of that court.” Slip op. at 14.

It will be the third such review by the CCA in this case.

Case Links:
• AFCCA opinion
• AFCCA opinion on reconsideration
• Blog post: CAAF to review the AFCCA’s Appointments Clause issue
• Appellant’s brief
• Appellee’s (Government) first brief
• CAAF’s order of January 16, 2014
• Blog post: The soybel’s go rolling along
• Blog post: A hard look at the Government brief rejected by CAAF
• Appellee’s (Government) second brief
CAAF argument audio
CAAF opinion
• Blog post: CAAF decides Janssen
Blog post: Opinion analysis

14 Responses to “Opinion Analysis: United States v. Janssen, No 14-0130/AF”

  1. Dew_Process says:

    Let’s see . . . if AF CCA has “fact-finding” powers UP Art. 66(c), why then isn’t “reconsideration” barred by the Former Jeopardy Clause of the Fifth Amendment??  Why does the government get another “bite of the apple” to affirm the convictions when it was their [pick a word] that caused / created this issue in the first place?  Why should the Accused/Appellant’s suffer because of another government “whoops” moment?
    Back to the Merlot . . . carry on!

  2. AF Capt says:

    CAAF’s holding was that the court was not properly constituted.  Therefore, the court only “heard” the case in the same sense a moot court would: that is to say, with no authority to do so.  Only a properly constituted court may hear a case.  Since the court did not in fact hear the case, then there is no double jeopardy issue.

  3. Dew_Process says:

    @ AF Capt – I am talking about constitutional former jeopardy.  That jeopardy attached for the benefit of the Accused at the time of the panel’s swearing and it doesn’t vanish. Normally, the “bar” is deemed waived by the Accused’s successful appeal so that one cannot thereafter complain about a new trial that one asked for via an appeal.  But, that’s not precisely the case here. Especially in the context of the unique fact-finding powers of a CCA under Article 66(c).
    Janssen upon becoming aware of the problem with Mr. Soybell’s appointment promptly objected. Notably – and of importance here – is the fact that after the “problem” was identified and the AF took another shot at trying to fudge itself around the Appointment’s Clause – the AF CCA’s opinion upon reconsideration was a per curiam  opinion of the panel. Rule 4, of the CCA Rules states that a majority of the panel constitutes a quorum, i.e., 2 judges sans Soybell.  So the CCA “heard” the case.  Soybell’s apparent appointment as an appellate judge, as CAAF noted, was “invalid and of no effect.”  Since there were still 2 validly appointed appellate judges on the panel (a quorum), Soybell could have recused himself, the other 2 judges could have granted the Appellant’s challenge or the Chief Judge could have assigned a third, validly appointed judge to that panel — all matters beyond the control of the Appellant, but subject to his timely objections which the Court ignored.
    And so, during this process, what was the Government up to? First, they filed a Brief at the CAAF which the Court rejected! Second, they could have “confessed error” and urged that the court vacatethe CCA opinion – but they didn’t. Presumably, the Appellant is still doing “time” on his 9 year sentence at the DB without his appeal having been heard on the merits.  If I were Janssen, I suspect that would be ‘prejudicial.’
    It is also important to follow CAAF’s language here, which respectfully was not as you analogize to a “moot court.”  Had CAAF ascertained that the AF CCA panel which included Soybell lacked jurisdiction to hear the case, then I might agree with your nullity theory.  But, that’s not what CAAF did here. Rather, the CAAF reversed the AF CCA’s decision — it did not vacate the decision for want of jurisdiction.  Jeopardy, btw, remained attached.
    My rhetorical question above was based in part upon Watada v. Head,  530 F.Supp.2d 1136 (W.D. Wash. 2007), where the federal judge first enjoined a retrial and ultimately granted 1LT Watada habeas relief. [DISCLAIMER: I advised Watada’s counsel on certain aspects of the proceedings in federal court].  Before anyone gets too bent out of shape, I realize that Watada was a “mistrial” case, but conceptually, what happened at the CCA here was for all intents and purposes, a “mis-appeal,” caused by the government.  It is an interesting issue under the quasi-unique parameters of military appeals to a CCA — that was my point.
    CAAF, btw, did not hold that the “Court” was “not properly constituted,” it only held that Soybell’s appointment was invalid. [Slip Opn. at 13].

  4. Zachary D Spilman says:

    And the Moreno clock is still ticking…

    Janssen’s sentence was adjudged on December 13, 2009.

  5. Christopher Mathews says:

    @ D_P –
    How do you square your comment above that CAAF, btw, did not hold that the “Court” was “not properly constituted,” it only held that Soybell’s appointment was invalid with this language from the opinion itself: 
    The record is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for a new review under Article 66, UCMJ, 10 U.S.C. § 866 (2012), before a properly constituted panel of that court.

  6. Christopher Mathews says:

    @ Zach –
    You just know the appellate defense shop will be asking to supplement their briefs to include discussion of Moreno. 

  7. stewie says:

    I assume (making a you know what of Uma Thurman) that he squares it by saying CAAF is wrong, it was properly constituted because there was a quorum of two.  I’m not sure how you get to a double jeopardy issue in this case though.

  8. Dew_Process says:

    @ Christopher Matthews:  I’m not sure that you can, which is one of the screwy things about the decision. Had they come right out and said that Soybell was an “interloper” and thus (somehow) tainted the appellate process that would be understandable, but it makes little sense as you cogently suggest as written because of the apparent internal, inconsistency. But then, under that scenario, why didn’t they vacate the CCA decision rather than reverse it?  Maybe CAAF made a semantical error?  I don’t know, but if it’s not “jurisdictional” in the sense that only 2 judges are needed for a quorum and the fact that it was a per curiam decision by AF CCA [versus Soybell having authored the “Opinion of the Court,” why the verbal gymnastics?
    Let me make a purely speculative hypothesis — It is quite understandable that under the circumstances that the 5 CAAF Judges first “agreed” that they needed to speak, to the extent possible, with one voice on this issue.  Assuming that for purposes of the discussion here, one innocuous explanation is that the final version of the CAAF opinion was an amalgamation of circulated drafts and that this apparent “inconsistency” slipped through the drafting / editing cracks.
    Just a thought and thanks for pointing that out.

  9. Anonymous Air Force Senior Defense Counsel with initials NM says:

    I thought Jeopardy applied to retrial, not “reappeal.” DP – are you arguing Jeopardy should attach because the service courts have fact-finding authority? 

  10. Zeke says:

    @ Zach –

    It will be the third such review by the CCA in this case.

    I think it’s to be the first, and the court will need to explain the delay in getting a first review done under Moreno.  The government was on notice of the statutory requirements to have a valid appointment as soon as they realized the erroneous appointment by TJAG the first time around.  Having to resort to such a ill suited statute as authority in the appointment memo itself also should have clued in at least one of the Air Force’s army of lawyers.  There was no excuse for having the Secretary presume Constitutional authorities so clearly not granted him.  Thus, there is no excuse for this delay in getting an initial review done in this case by a lawfully constituted panel of a CCA.

  11. Dew_Process says:

    @ AFSDC/NM – I raised this issue under that theory, viz., that because of the CCA’s virtually unique “fact-finding” powers, in a rhetorical manner.  I’m not saying that it’s ever been tried before, nor am I predicting that it would be successful – and certainly not n the AF CCA.  But, my rumination was along these lines.
    Say X is being court-martialed and jeopardy as clearly attached, as it did here.  Midway through the court-martial, the DC ascertains that for whatever is the excuse, that the Order “designating” the individual as a MJ IAW Art. 26(c), had never been signed and proceeds to challenge the MJ for cause or objects to his/her sitting as the MJ – much like what happened in Janssen.  The government proceeds to “pooh-pooh” the defense’s claim – again, as in Janssen – the MJ buys into the government’s argument, remains and the accused is convicted and gets a BCD and 9 years confinement.  There is little doubt that the Accused’s right to assert former jeopardy in the event of a retrial.  Unlike the civilian practice, a military defendant does not have to file a notice of appeal to trigger appellate jurisdiction – that happens as a matter of law by virtue of his/her sentence. So, again unlike civilian practice – especially since the BCD cannot be executed until appellate review is finished – the appellate process at the CCA is not really a waiver of any former jeopardy protection as it is merely a statutorily mandated continuation of the court-martial process.
    With that premise, especially since the Appellant has been prejudiced by the delay (by virtue of remaining in custody) and his first two attempts at appellate relief were in fact frustrated by the government’s machinations attempting to salvage a conviction, rather than seek justice, why not if you’re his Appellate Defense Counsel  seek what, for lack of a better term, what I call Watada relief?  Maybe it will be accepted by the Court or down the road, maybe not.  But, consider this, some smart defense lawyer made the first Motion to Suppress  under the Fourth Amendment – it had never been done before, but then one day, a majority at SCOTUS vindicated him.
    If you’re an AF SDC, you may remember the litigation “cloud” that surrounded a certain AF GCM MJ in Florida a couple of years back who was only an inactive member  of his Bar (Florida), and the many Recusal Motions made IAW Art. 26(b), because of that.  I don’t know how that was ultimately resolved, but in a case I had involving him, my complaint to the Chief Judge of the AF resulted in a different judge being detailed.
    @ Zeke:  Concur on the Moreno issue – that could easily be nipped in the bud if CAAF had said, “And oh, btw, we’re deferring all additional confinement while you folks get your act together.”

  12. Zachary D Spilman says:

    You know Dew_Process, footnote 2 of then-Judge Baker’s dissent in United States v. Girouard, 70 M.J. 5 (C.A.A.F. 2011) (link to slip op.) raised the question of whether our system of automatic review impacts the double jeopardy waiver that normally attaches to a criminal appeal. He wrote:

    Ordinarily, an appeal would waive such a question of double jeopardy; however, here the context is one in which Appellant’s case was automatically referred to the CCA, which declined to apply Jones. As a result, Appellant’s only recourse was to appeal to this Court. It is unclear whether, for double jeopardy purposes, that should be viewed as waiver of any double jeopardy claim.

    I don’t think this question has an answer (yet).

  13. Zachary D Spilman says:

    Thanks to a reader for pointing out United States v. Elliott, 15 M.J. 347, 349 (C.M.A. 1983):

    As Congress has unequivocally commanded that a panel of a Court of Military Review “be composed of not less than three appellate military judges” and has made no exception, as it did in establishing our own Court, we hold that a panel cannot lawfully operate during a time when it has less than three members.

    Article 66 begins:

    (a) Each Judge Advocate General shall establish a Court of Criminal Appeals which shall be composed of one or more panels, and each such panel shall be composed of not less than three appellate military judges. For the purpose of reviewing court-martial cases, the court may sit in panels or as a whole in accordance with rules prescribed under subsection (f). Any decision of a panel may be reconsidered by the court sitting as a whole in accordance with such rules. . . .

  14. Anonymous Air Force Senior Defense Counsel with initials NM says:

    Thanks DP.  I remember said cloud.  As I recall, that issue may have found its way into the AoE for US v. Witt, which still hasn’t managed it’s way out of AFCCA yet.
    I’ve always preferred prosecuting as opposed to defending, but one of the things I greatly enjoy about being a member of the defense bar (or The Dark Side) is an obligation to be imaginative in applying existing law in ways that could uniquely benefit our current client.  Just because the chances of success are very slim, doesn’t mean an imaginitive issue shouldn’t be raised.
    Thanks for taking a minute to explain your idea to me. “A statutorily mandated continuation of the court-martial process.”  I like the sound of that…