A petition for certiorari was filed yesterday in Abdirahman, et al. v. United States, No 17-____. A copy is available here.
The petition consolidates 167 cases (including two courts-martial involving the same accused) and:
raises the same questions as those already presented in Ortiz v. United States, No. 16-1423 (U.S. filed May 19, 2017), and the same merits questions as those already presented in Dalmazzi v. United States, No. 16-961 (U.S. filed Feb. 1, 2017) and Cox v. United States, No. 16-1017 (U.S. filed Feb. 21, 2017).
Each of the 167 cases consolidated in this Petition presents facts that are identical in all relevant respects to those presented in Ortiz. That is to say, each Petitioner:
(1) was convicted by a court-martial;
(2) had their conviction affirmed by a panel of their service-branch Court of Criminal Appeals (CCA) that included at least one judge also serving at that time as an “additional judge” of the U.S. Court of Military Commission Review (CMCR);
(3) petitioned for review before the Court of Appeals for the Armed Forces (CAAF); and
(4) had CAAF grant their petition for review and affirm the decision of the CCA.
After sidestepping the questions presented in this Petition in Dalmazzi, see Dalmazzi v. United States, 76 M.J. 1 (C.A.A.F. 2016) (per curiam), CAAF reached them in Ortiz v. United States, 76 M.J. 189 (C.A.A.F. 2017). There, the Court of Appeals rejected a servicemember’s challenge to the continuing service of Colonel Martin T. Mitchell as a judge on the Air Force CCA after President Obama had signed his commission to serve as an “additional judge” on the CMCR. See id. CAAF did not decide whether Judge Mitchell’s dual officeholding violated 10 U.S.C. § 973(b)(2)(A)(ii) or Article II of the Constitution. Instead, it concluded that, at a minimum, his continuing service on the Air Force CCA was neither unlawful nor unconstitutional, without regard to whether his service on the CMCR might be. See id. at 192–93. After that ruling, the Court of Appeals issued summary, one-sentence orders affirming the CCAs’ rulings in each of the Petitioners’ cases.
Petitioners’ claims rise and fall with Ortiz. Therefore, this Petition should be held pending the disposition of the petition in Ortiz. If this Court grants certiorari in Ortiz and reverses or vacates the decision below, it should grant this Petition as well, vacate the judgments in all of the Petitioners’ cases, and remand to the Court of Appeals for further proceedings in light of this Court’s ruling in Ortiz.
Pet. at 1-2.