CAAF decided the Air Force case of United States v. Jones, 74 M.J. 95, No. 14-0057/AF (CAAFlog case page) (link to slip op.), on Wednesday, March 11, 2015. The court holds that the de facto officer doctrine does not apply to permit the inclusion of Mr. Soybel (a civilian litigation attorney employed by the Air Force who is also a retired Air Force judge advocate) on the panel of the Air Force Court of Criminal Appeals that reviewed Appellant’s case. CAAF reverses the decision of the Air Force court and remands the case for a new review before a properly constituted panel.

Judge Stucky writes for a unanimous court.

Jones is a sequel to last term’s blockbuster decision in United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page), where the court concluded that Mr. Soybel’s appointment to the AFCCA was invalid. Yet while the appellant in Janssen made a prompt objection to Mr. Soybel’s participation in the CCA’s review of his case, the appellant in Jones did not raise the issue at the CCA. This failure to object led CAAF to grant review of a single issue in Jones:

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).

Judge Stucky’s opinion is short, and he rejects the Government’s two main arguments with just a handful of sentences.

First, addressing the Government’s contention that “acceptance of untimely complaints runs contrary to the spirit of the de facto officer doctrine and invites appellate gamesmanship,” Gov’t Br. at 8, Judge Stucky explains that:

[T]he Government urges that we treat the issue of Mr. Soybel’s appointment as forfeited by the failure of Appellant to raise the issue prior to petitioning this Court. The problem with this approach is that it ignores the consistent treatment of the de facto officer doctrine by the Supreme Court, which has drawn a distinction between deficiencies which are “merely technical” and may be forfeited if not timely raised, and those which “embod[y] a strong policy concerning the proper administration of judicial business,” which the Court will reach on direct review whether raised below or not.

Slip op. at 4-5. The deficiency in this case is clearly more than “merely technical,” as Judge Stucky highlights that:

The purported appointment of Mr. Soybel as an appellate military judge by the Secretary of Defense, in contrast, was wholly without statutory authority. . . . The error in this case was therefore of constitutional dimensions — certainly “fundamental” by any reckoning.

Slip op. at 6. The Government also contended that there was a meaningful distinction between “direct attacks” and “collateral attacks” on an official’s appointment, and that Appellant’s challenge was merely a collateral attack. Gov’t Br. at 7 (citing Horwitz v. State Bd. of Medical Examiners of State of Colo., 822 F.2d 1508, 1516 (10th Cir. 1987)). Judge Stucky rejects this argument in a footnote:

The Government also attempts to draw a distinction, based on administrative agency cases of doubtful relevance, between “direct” and “collateral” attacks on the validity of official action. Essentially, the argument is that waiver applies to “collateral” attacks that the incumbent improperly holds the office, not to “direct” attacks that the incumbent lacks qualifications to hold the office. This argument ignores the Supreme Court’s caution against extending civil cases which may impliedly apply a form of the de facto officer doctrine beyond their facts. It also places the Government in the strange position of arguing that Mr. Soybel’s possession of some judicial experience and a law license immunizes his appointment against constitutional attack.

Slip op. at 4 n.1 (citation omitted).

CAAF’s rejection of the de facto officer doctrine in this case is perhaps unremarkable. But an interesting twist is that the court’s opinion in Janssen (also authored by Judge Stucky and published less than a year ago) refers to Mr. Soybel as “Judge Soybel” (a total of seven times), while today’s opinion in Jones refers to him exclusively as “Mr. Soybel” (a total of ten times) (though the opinion also notes that he is a retired colonel).

And so continues the long saga of the AFCCA’s docket (our #9 military justice story of 2013). Unfortunately, this consequences of the appointment (and the backlog of cases that prompted it) will likely be a significant military justice issue for a while longer.

Case Links:
AFCCA opinion
AFCCA opinion on reconsideration
Blog post: Here come the trailers
Blog post: CAAF to re-examine the Soybel appointment
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

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