Opinion Analysis: The Supreme Court affirms that it has appellate jurisdiction over CAAF decisions and that an appellate military judge may sit on both a CCA and the CMCR
The Supreme Court decided Ortiz v. United States, 585 U.S. __, No. 16-1423 (link to slip op.), on Friday, June 22, 2018. In a 7-2 decision, the Court affirms the existence of appellate jurisdiction over CAAF and also affirms CAAF’s decision that found no violation in concurrent service of appellate military judges on both a Court of Criminal Appeals (CCAs) and the Court of Military Commission Review (CMCR).
Justice Kagan writes for the Court. Justice Thomas writes separately, concurring. Justice Alito dissents, joined by Justice Gorsuch, disagreeing that the Court has appellate jurisdiction over CAAF.
The Military Commissions Act of 2009 established the CMCR as an independent Article I court of record. Judges are appointed to the CMCR by the President, with Senate confirmation. Additionally, the Secretary of Defense may also assign commissioned officers of the armed forces to serve as appellate judges on the CMCR. Ortiz, and a large group of consolidated and trailer cases, involve commissioned officers who were assigned by the Secretary of Defense to the CMCR and then (to avoid a potential constitutional challenge to their CMCR assignments) nominated by the President and confirmed by the Senate, all while simultaneously serving as appellate military judges on CCAs. The court-martial convictions in Ortiz and the others cases were reviewed by CCA panels that included these dual-hatted officers, and the petitioners challenged the judges’ continued service as CCA judges under both the Appointments Clause of the Constitution and also a federal statute – 10 U.S.C. § 973 – that generally prohibits military officers from holding civil office.
CAAF rejected some of the challenges as moot in United States v. Dalmazzi, 76 M.J. 1 (C.A.A.F. 2016) (CAAFlog case page), because the CCA decisions were issued before the challenged judges were appointed to the CMCR by the President. But CAAF addressed the substance of the challenges – and rejected them – in United States v. Ortiz, 76 M.J. 189 (C.A.A.F. 2017) (CAAFlog case page), holding that there was 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.
Many petitions for certiorari followed, and the Supreme Court granted review in three cases: Dalmazzi v. United States, No. 16-961; Cox, et al., v. United States, No. 16-1017 (the Dalmazzi trailer cases); and Ortiz v. United States, No. 16-1423. Those grants were the #2 Military Justice Story of 2017. The Court also held petitions for certiorari in a large number of Ortiz trailer cases (the largest of which is Abdirahman).
Those grants – and Friday’s decision – are the first plenary review of a court-martial by SCOTUS since United States v. Denedo, 556 U.S. 904 (2009) (the #8 Military Justice Story of 2008).
Justice Kagan’s majority opinion addresses three issues. First, she explains that the Court has appellate jurisdiction over CAAF decisions, rejecting a challenge from a law professor who appeared as an amicus curiae:
“[T]he essential criterion of appellate jurisdiction,” the Chief Justice explained, is “that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.” 1 Cranch, at 175. Marbury’s petition, Chief Justice Marshall held, commenced the cause—or, to use the more modern word, the case; hence, it was not a matter for appellate jurisdiction. Bamzai contends that the same is true of Ortiz’s petition.
On any ordinary understanding of the great Chief Justice’s words, that is a surprising claim. Ortiz’s petition asks us to “revise and correct” the latest decision in a “cause” that began in and progressed through military justice “proceedings.” Ibid. Or, as the Government puts the point, this case fits within Chief Justice Marshall’s standard because “it comes to th[is] Court on review of the Court of Appeals for the Armed Forces’ decision, which reviewed a criminal proceeding that originated in [a] court-martial.” Tr. of Oral Arg. 47–48. So this Court would hardly be the first to render a decision in the case. Unless Chief Justice Marshall’s test implicitly exempts cases instituted in a military court—as contrasted, for example, with an ordinary federal court—the case is now appellate.
The military justice system’s essential character—in a word, judicial—provides no reason to make that distinction. . . .
Slip op. at 7-8. But Justices Alito and Gorsuch dissent, with Justice Alito explaining:
Due to reforms adopted in the recent past, it is possible today to mistake a military tribunal for a regular court and thus to forget its fundamental nature as an instrument of military discipline, but no one would have made that mistake at the time of the founding and for many years thereafter.
Diss. op. at 21. And concluding:
the majority has done nothing to undermine the overwhelming historical consensus that courts-martial permissibly carry out their functions by exercising executive rather than judicial power.
Diss. op. at 26.
Justice Kagan then addresses the substantive issue: whether appellate military judges may serve on both a CCA and the CMCR (a question the dissenters do not reach). The answer is yes, for two reasons.
First, the majority rejects the argument that 10 U.S.C. § 973 prohibits such dual service. That statute prohibits military officers from holding civil office “except as otherwise authorized by law.” 10 U.S.C. § 973(b)(2). Justice Kagan explains that the separate statute authorizing the Secretary of Defense to assign military officers to the CMCR means that such service is authorized by law:
In the circumstances here, however, the authorization in §950f(b)(2) was the only thing necessary to exempt Judge Mitchell from the civil office-holding ban—not just before but also after his presidential appointment. That provision, as just noted, unambiguously permitted the Secretary of Defense to place Judge Mitchell on the CMCR, even if such a judgeship is a “civil office.” See supra, at 20. And once that happened, the President’s later appointment of Judge Mitchell made not a whit of difference. Nothing in §950f (or any other law) suggests that the President’s appointment erased or otherwise negated the Secretary’s earlier action. To the contrary, that appointment (made for purposes of protecting against a constitutional challenge, see supra, at 3) merely ratified what the Secretary had already done. The nomination papers that the President submitted to the Senate reflect that fact. They sought confirmation of Judge Mitchell’s appointment as a CMCR judge “[i]n accordance with [his] continued status as [a CMCR] judge pursuant to [his] assignment by the Secretary of Defense[,] under 10 U. S. C. Section950f(b)(2).” 162 Cong. Rec. S1474 (Mar. 14, 2016). So after the Senate approved the nomination, Judge Mitchell served on the CMCR by virtue of both the Secretary’s assignment and the President’s appointment. And because §950f(b)(2) expressly authorized the Secretary’s assignment, Judge Mitchell’s service on the CMCR could not run afoul of §973(b)(2)(A)’s general rule.
Slip op. at 21-22. Put differently:
Congress determined that military officers threaten civilian preeminence in government by either “hold[ing]” or “exercis[ing] the functions of ” important civil offices. Except . . . if Congress decides otherwise and says as much.
And once again, here Congress did exactly that. Judge Mitchell became a CMCR judge, while remaining in the military, because of a secretarial assignment that Congress explicitly authorized. See supra, at 20–21. After his presidential appointment, he continued on the same court,doing the same work, in keeping with the same congressional approval. Even supposing he obtained a “new office” in the way Ortiz says, that acquisition is of no moment. With or without that formal office, Judge Mitchell “h[e]ld, or exercise[d] the functions of,” a CMCR judgeship, and so was subject to §973(b)(2)(A)’s ban. But likewise, with or without that formal office, Judge Mitchell could receive permission from Congress to do the job—that is, to sit as a judge on the CMCR. And §950f(b)(2) gave Judge Mitchell that legislative green light, from the date of his assignment through his ruling on Ortiz’s case and beyond.
Slip op. at 23.
Second, Justice Kagan rejects any challenge based on the Appointments Clause:
This Court has never read the Appointments Clause to impose rules about dual service, separate and distinct from methods of appointment. Nor has it ever recognized principles of “incongruity” or “incompatibility” to test the permissibility of holding two offices. As Ortiz himself acknowledges, he can“cite no authority holding that the Appointments Clause prohibits this sort of simultaneous service.” Id., at 52.
And if we were ever to apply the Clause to dual office-holding, we would not start here. Ortiz tells no plausible story about how Judge Mitchell’s service on the CMCR would result in “undue influence” on his CCA colleagues.The CMCR does not review the CCA’s decisions (or vice versa); indeed, the two courts do not have any overlapping jurisdiction. They are parts of separate judicial systems, adjudicating different kinds of charges against different kinds of defendants. See supra, at 1–3, and n. 1. We cannot imagine that anyone on the CCA acceded to Judge Mitchell’s views because he also sat on the CMCR—any more than we can imagine a judge on an Article III Court of Appeals yielding to a colleague because she did double duty on the Foreign Intelligence Surveillance Court of Review (another specialized court). The CAAF put the point well: “When Colonel Mitchell sits as a CCA judge, he is no different from any other CCA judge.” 76 M. J., at 193; see supra, at 5. So there is no violation of the Appointments Clause.
Slip op. at 24-25.
As for Dalmazzi (the case CAAF found moot) and Cox (the Dalmazzi trailer cases), both of which were also granted certiorari, the Court dismisses those petitions as improvidently granted. Slip op. at 5 n.2
Disclosure: In my civilian capacity I represent service members who raised Dalmazzi/Ortiz issues.