In the Air Force case of United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page), a unanimous CAAF found that Congress did not give the Secretary of Defense the authority to appoint a civilian as an appellate military judge, and 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 Soybel twice participated in the AFCCA’s review of Janssen, prompting the appeal to CAAF.

Writing for the court, Judge Stucky considered the 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 Janssen, where the appellant challenged Judge Soybel’s appointment as soon as he learned of it, CAAF declined 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.” Janssen, slip op. at 13-14 (quoting Ryder, 515 U.S. at 183).

After CAAF granted review in Janssen on December 19, 2013, the court granted review in numerous trailers (my notes show eight: Jones, Grawey, Annis, Burns, Johnson, Dixon, Albright, and Peacock). CAAF’s daily journal for Friday, June 27, shows action in two of those cases. In one, CAAF summarily reverses in light of Janssen:

No. 13-0531/AF. U.S. v. Matthew B. ALBRIGHT. CCA 37961. Upon further consideration of the granted issue, 73 M.J. 193 (C.A.A.F. Jan. 2, 2014), and in light of United States v. Janssen, 73 M.J. 221 (C.A.A.F. 2014), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is reversed.  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, Uniform Code of Military Justice, 10 U.S.C. § 866 (2012), before a properly constituted panel of that court.

But in the other, CAAF does something very different:

No. 14-0057/AF. U.S. v. William R. JONES. CCA 38028. Upon further consideration of the granted issue, 73 M.J. 138 (C.A.A.F. Dec. 23, 2013), it is ordered that said petition is hereby granted on the following issue:

WHETHER THE DE FACTO OFFICER DOCTRINE CONFERRED VALIDITY UPON JUDGE SOYBEL’S PARTICIPATION IN THE AIR FORCE COURT OF CRIMINAL APPEALS’ DECISION IN APPELLANT’S CASE.  SEE RYDER v. UNITED STATES, 515 U.S. 177, 182-84 (1995); NGUYEN v. UNITED STATES, 539 U.S. 69, 72-73 (2003); UNITED STATES v. AMERICAN-FOREIGN S.S. CORP., 363 U.S. 685 (1960); AYSHIRE COLLIERIES CORP. v. UNITED STATES, 331 U.S. 132 (1947); NORTON v. SHELBY COUNTY, 118 U.S. 425, 446 (1886); UNITED STATES v. JANSSEN, 73 M.J. 221 (C.A.A.F. 2014); UNITED STATES v. ELLIOTT, 15 M.J. 347 (C.M.A. 1983).

Briefs will be filed under Rule 25.

Presumably the appellant in Jones was late in challenging the appointment. Whether that matters remains to be seen.

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