While the court decided the case on February 9, 2017 (two days after hearing oral argument), CAAF issued its opinion in the Air Force case of United States v. Ortiz, 76 M.J. 189, No. 16-0671/AF (CAAFlog case page) (link to slip op.), on Monday, April 17, 2017. Avoiding answering more than necessary to decide the case, CAAF finds no error in the participation of a Presidentially-appointed and Senate-confirmed judge of the Court of Military Commission Review (CMCR), who is also an Air Force Colonel, on the CCA panel that reviewed the appellant’s case. Ortiz is a replacement for United States v. Dalmazzi, 76 M.J. 1 (C.A.A.F. Dec. 15, 2016) (CAAFlog case page), which raised similar issues, was resolved on mootness grounds, and is now the subject of a petition for certiorari (discussed here).
Judge Stucky writes for a unanimous court.
Judges are appointed to the CMCR by the President through the formal mechanism of the Appointments Clause. 10 U.S.C. §950f(b)(3). However, the Secretary of Defense may also assign “commissioned officers of armed forces” to serve as appellate judges on the CMCR. 10 U.S.C. § 950f(b)(2). Using that authority, the Secretary of Defense assigned Air Force Colonel (and AFCCA Judge) Martin T. Mitchell to the CMCR on October 20, 2014, and he was sworn in on October 28, 2014. But then, in 2015, addressing a challenge to such assignments, the U.S. Court of Appeals for the District of Columbia Circuit suggested that any question about the status of such assigned judges could be resolved by their nomination and confirmation by the President. In re Al-Nashiri, 791 F.3d 71, 86 (D.C. Cir. 2015). So, on March 14, 2016, the President nominated Colonel Mitchell to be a judge on the CMCR. Other military officers who were similarly nominated include: Captain Donald C. King, U.S. Navy; Colonel Larss G. Celtnieks, U.S. Army; Colonel James W. Herring, U.S. Army; and Lieutenant Colonel Paulette V. Burton, U.S. Army. 162 CONG. REC. S 1473-74 (daily ed. Mar. 14, 2016). The Senate confirmed the nominations and the Judges were appointed.
The Army and Air Force officers (though not CPT King, apparently) continued to perform duties as appellate military judges on the CCAs, leading to numerous challenges. 93 such challenges, by my count, including Dalmazzi and Ortiz.
After finding the issues in Dalmazzi to be moot (because the CCA’s decision in Dalmazzi was issued before the President actually appointed the judge) CAAF granted review of three issues in Ortiz:
I. Whether United States Court of Military Commission Review Judge, Martin T. Mitchell, is statutorily authorized to sit as one of the Air Force Court of Criminal Appeals judges on the panel that decided Appellant’s case.
Amended Issue: II. Whether Judge Martin T. Mitchell’s Service on both the Air Force Court of Criminal Appeals and the United States Court of Military Commission Review violates the Appointments Clause given his status as a principal officer on the United States Court of Military Commission Review.
Specified Issue: III. Whether Judge Martin T. Mitchell was in fact a principal officer following his appointment by the President to the United States Court of Military Commission Review in light of the provisions of 10 U.S.C. § 949b(4)(c) and (d), authorizing reassignment or withdrawal of appellate military judges so appointed by the Secretary of Defense or his designee.
In today’s opinion Judge Stucky explains that the statute at issue doesn’t apply, the Appointments Clause is no impediment, and the specified issue need not be decided.
The statute at issue is 10 U.SC. § 973. It states, in part, that “except as otherwise authorized by law, an officer to whom this subsection applies may not hold, or exercise the functions of, a civil office in the Government of the United States.” Ortiz (and many others) claimed that this language means that Judge Mitchell can be either a military officer or a Presidentially-appointed and Senate-confirmed judge of the CMCR, but not both. CAAF disagrees, and Judge Stucky explains that this is an inaccurate read of the statute:
While there is much that is unsettled about this situation, the aim of the statute is clear. The evil sought to be protected against is the unauthorized holding of civil office by officers of the armed forces on active duty, which is thought to threaten “civilian supremacy in the conduct of governmental affairs.” S. Rep. No. 98-174, at 232 (1983), as reprinted in 1983 U.S.C.C.A.N. 1081, 1122. Thus, the prohibitions in the statute are aimed at the holding of “civil office” (here, civil office requiring presidential appointment with Senate advice and consent) rather than the performance of assigned military duty. Section 973 might prohibit Judge Mitchell from holding office at the USCMCR—a question that is not before us—but nothing in the text suggests that it prohibits Judge Mitchell from carrying out his assigned military duties at the CCA. The wording of the savings clause at subsection (b)(5), “Nothing in this subsection shall be construed to invalidate any action taken by an officer in furtherance of assigned official duties” comports with this in-terpretation, and applies by its terms to Judge Mitchell’s assigned official duties at the CCA.
Slip op. at 5-6 (emphasis added).
The Appointments Clause issue asserted that a Presidentially-appointed and Senate-confirmed judge of the CMCR (or elsewhere), who is a principle officer, can’t co-mingle with a regular CCA judge, who is an inferior officer (principal and inferior are Appointments Clause terms of art). Again CAAF disagrees, and Judge Stucky explains that:
The problem with this argument is that it presumes that Colonel Mitchell’s status as a principal officer on the USCMCR somehow carries over to the CCA, and invests him with authority or status not held by ordinary CCA judges. That is not the case. One is a principal or an inferior officer by virtue of appointment and exercise of the duties of the office. When Colonel Mitchell sits as a CCA judge, he is no different from any other CCA judge under Article 66.
Slip op. at 7. Having determined that the status of Judge Mitchell as a principal officer is immaterial, CAAF doesn’t trouble itself with the specified issue (regarding whether the appointment actually made Judge Mitchell a principal officer).
At the end of Judge Stucky’s opinion are two paragraphs disclaiming things the opinion does not decide:
It is important to note what we need not and do not decide here. First, we decide no statutory issue beyond that set out above. We do not decide whether the USCMCR is a prohibited civil office or whether it is “authorized by law” according to § 973. On the statutory issue, we simply hold that § 973 does not operate to invalidate the actions military officers appointed to civil office take in furtherance of their military duties or to require the retirement or discharge of these officers. The prohibition in § 973(b)(2)(A)(ii) may indeed affect Colonel Mitchell’s status as a judge of the USCMCR, but that is not for us to decide.
Second, we decide no issue under the Constitution’s Appointments Clause beyond that treated above. We intimate no opinion as to the jurisdiction, functions, or operation of the USCMCR, or Colonel Mitchell’s membership on it. By virtue of his presidential appointment to the USCMCR, Colonel Mitchell may well be a principal officer; certainly, the Executive’s response to al-Nashiri would seem to indicate an executive intent to treat these appointees as princi-pal officers, but that is a question for another day, as are any Appointments Clause questions pertaining to the USCMCR in its earlier incarnation.
Slip op. at 8.
The Supreme Court requested a response to the cert. petition in Dalmazzi. It’s due next Monday.
• AFCCA opinion
• Blog post: CAAF picks a replacement for Dalmazzi
• Appellant’s brief
• Appellee’s (A.F. App. Gov’t Div.) brief
• Amicus Curiae Brief: Army Appellate Government Division
• Amicus Curiae Brief: Navy-Marine Corps Appellate Government Division
• Amicus Curiae Brief: Military Commissions Defense Organization (& Appendix)
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis
Disclosure: In my personal capacity I represent an appellant whose case is one of the trailer cases with similar issues.