In a petition filed today and available here, Second Lieutenant Dalmazzi seeks Supreme Court review of CAAF’s decision in United States v. Dalmazzi, 76 M.J. 1 (C.A.A.F. Dec. 15, 2016) (CAAFlog case page). The petition begins:
Since shortly after the Civil War, federal law has required express authorization from Congress before active-duty military officers may hold a “civil office,” including positions that require “an appointment by the President by and with the advice and consent of the Senate.” 10 U.S.C. § 973(b)(2)(A)(ii).
After President Obama nominated and the Senate confirmed Colonel Martin T. Mitchell as a judge of the Article I U.S. Court of Military Commission Review (CMCR), Judge Mitchell continued to serve on the U.S. Air Force Court of Criminal Appeals (AFCCA). The U.S. Court of Appeals for the Armed Forces (CAAF) rejected as moot Petitioner’s challenge to Judge Mitchell’s continued service on the AFCCA, because his CMCR commission had not been signed until after the AFCCA decided her case on the merits—even though she moved for reconsideration after the commission was signed.
The Questions Presented are:
1. Whether the Court of Appeals erred in holding that Petitioner’s claims were moot.
2. Whether Judge Mitchell’s service on the CMCR disqualified him from continuing to serve on the AFCCA under 10 U.S.C. § 973(b)(2)(A)(ii).
3. Whether Judge Mitchell’s simultaneous service on both the CMCR and the AFCCA violated the Appointments Clause.
Beyond raising the underling Appointments Clause issue (that is still before CAAF with United States v. Ortiz, No. 16-0671/AF (CAAFlog case page) and – by my count – 84 trailer cases as of yesterday, including one in which I represent the appellant in my civilian capacity), the petition also implicates the jurisdiction-limiting provisions of 28 U.S.C. § 1259 because CAAF’s per curiam opinion in this case vacated the grant of review.