In 2012 we wondered if petitions for certiorari in military cases were an endangered species. At that point a decade had passed since the last grant of a petition filed by a servicemember, and that was just a summary remand (535 U.S. 1014). Two decades have passed since the Supreme Court last conducted a plenary review of a case brought by a servicemember. See Edmond v. United States, 520 U.S. 651 (1997) (holding that Sec. of Trans. may appoint civilians to the Coast Guard CCA). The Solicitor General, however, has a better track record, getting certiorari more recently in United States v. Denedo, 556 U.S. 904 (2009) (the #8 Military Justice Story of 2008).
The number of petitions increased after 2012, but a successful petition for certiorari in a military case is a rarity. So much so that we idolize it with a little statue we call the Golden CAAF. Here it is in the hand of Marcus Fulton circa 2008, before it was awarded to the Navy-Marine Corps Appellate Government Division for their role in the grant in Denedo:
In 2017 we awarded the Golden CAAF II for a tripartite grant in Dalmazzi v. United States, Cox v. United States, and Ortiz v. United States, to University of Texas School of Law professor Stephen Vladeck, who is lead counsel. He introduced it to UT mascot Bevo, and forwarded a picture:
The Supreme Court’s grant of certiorari is our #2 Military Justice Story of 2017.
There were plenty of contenders for the Golden CAAF II over the years. Examples include Smith v. United States, No. 10-18; Ali v. United States, No. 12-805; Behenna v. United States, No. 12-802; Hornback v. Unites States, No. 13-1533; Akbar v. United States, No. 15-1257; and Sterling v. United States, No. 16-814.
None of them made the cut.
Dalmazzi, Ortiz, and Cox (consolidated under Dalmazzi) challenge the participation of judges of the United States Court of Military Commission Review (USCMCR) on panels of the Army and Air Force Courts of Criminal Appeals. The issues are:
I. Whether the Court of Appeals for the Armed Forces erred in holding that the petitioner’s challenge to Judge Martin T. Mitchell’s continued service on the U.S. Air Force Court of Criminal Appeals, after he was nominated and confirmed to the Article I U.S. Court of Military Commission Review, was moot – because his CMCR commission had not been signed until after the U.S. Air Force CCA decided her case on the merits, even though she moved for reconsideration after the commission was signed.
II. 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), which requires 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.”
III. Whether Judge Mitchell’s simultaneous service on both the CMCR and the AFCCA violated the appointments clause.
IV. Whether the Supreme Court has jurisdiction to review [Dalmazzi] and Cox v. United States under 28 U.S.C. § 1259(3).
The fourth issue was specified by the Court itself. The background is a little complicated.
The Military Commissions Act of 2009 established the CMCR as an independent Article I court of record. See 10 U.S.C. § 950f(a). 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).
The Secretary of Defense assigned Air Force Colonel Martin T. Mitchell to the CMCR on October 20, 2014, and he was sworn in on October 28, 2014. Afterward, in 2015, in a decision on a petition for extraordinary relief that challenged the assignment of officers like Colonel Mitchell to the CMCR, 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.
Those appointments were the basis for the challenges in Dalmazzi, Ortiz, Cox. Cox is actually Cox, et al., because it involves six petitioners whose cases were trailers to Dalmazzi. 166 more servicemembers petitioned as Abdirahman et al. v. United States, No. 17-206 (discussed here), and that petition has been held since conference on October 13.
Dalmazzi came first. In United States v. Dalmazzi, 76 M.J. 1 (C.A.A.F. Dec. 15, 2016) (CAAFlog case page), CAAF issued a per curiam decision just eight days after oral argument holding that Dalmazzi’s challenge is moot because the judge had not yet been appointed as a CMCR judge when the CCA decided the case. CAAF vacated its grant of review, ostensibly depriving the Supreme Court of jurisdiction under 28 U.S.C. § 1259(3).
Ortiz was next. In United States v. Ortiz, 76 M.J. 189 (C.A.A.F. Apr. 17, 2017) (CAAFlog case page), CAAF found no error in a CMCR judgecontinuing to serve on a CCA. There is no question that SCOTUS has jurisdiction in Ortiz.
Cox is the Dalmazzi trailers; CAAF granted review in those cases, but vacated the grants in light of Dalmazzi.
Abdirahman is the Ortiz trailers.
Oral argument is scheduled for January 16, 2018.