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.
• 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