CAAFlog » CAAF Judges

Because of a change in circumstances, Judge Stucky is looking for a clerk for a two-year commitment beginning in August 2017. The candidate should have completed law school (J.D.) no later than spring 2017 and have taken the bar examination no later than the summer of 2017. If interested, please email a resume and transcript (need not be official) as soon as possible to edward.mcgugin@armfor.uscourts.gov. Interviews will be scheduled as qualified candidates submit applications.

More details here.

In an article available here (free registration required), the National Law Journal profiles CAAF’s Judge Margaret Ryan:

Ryan is one of the 20 judges President-elect Donald Trump has named as possible nominees to the high court. A former active duty U.S. Marine and judge advocate general, clerk to Justice Clarence Thomas and a private practitioner, Ryan is also the only judge on the Trump list who sits on a court in Washington.

So a visit to the stately armed forces courtroom in Judiciary Square, once the home of the U.S. Court of Appeals for the D.C. Circuit, was in order. On the docket Nov. 16 were two sexual-assault or -contact cases appealed by the government, one involving an Army specialist, the other an Army sergeant.

The cases heard at oral argument on November 16 were United States v. Swift, No. 16-0407/AR (CAAFlog case page), and United States v. Haverty, No. 16-0423/AR (CAAFlog case page).

Thanks to our reader for the news tip.

Back in May, GOP presidential nominee Donald Trump released a list (available here) of people that he would consider for nomination to the Supreme Court. On Friday he released an additional list (available here). A familiar name appears on that list: CAAF’s Judge Margaret Ryan.

CAAF’s website has the following sad notice:

Senior Judge H.F. “Sparky” Gierke, who served as a Judge and Chief Judge of the U.S. Court of Appeals for the Armed Forces from 1991-2006, passed away on Sunday, August 7, 2016 in Bismarck, ND. He was 73. Senior Judge Gierke was also a former Justice of the North Dakota Supreme Court and the first Vietnam veteran to serve as National Commander of the American Legion.

The funeral will take place on Friday, August 12, 2016, in Bismarck.

A full memorial tribute will be published in the Military Justice Reporter

In United States v. Lieutenant Colonel Jones, Military Judge, and Howell, Real Party in Interest, No. 201200264 (N-M. Ct. Crim. App. Dec. 29, 2015) (discussed here), the NMCCA split 4-4 to partially grant the Government’s post-trial petition for extraordinary relief from the military judge’s ruling that it was unlawful punishment to fail to pay the accused at his restored grade of E-6 after his case was reversed on appeal. The Navy JAG subsequently certified the case to CAAF (discussed here) and the accused also filed a writ-appeal petition.

Judge Ryan has recused herself from the case:

Notice of Recusal and Designation

Nos. 16-0289/MC and 16-0367/MC. U.S. v. Stephen P. Howell. CCA 201200264.  Notice is hereby provided that Judge Margaret A. Ryan has recused herself from participation in the above-captioned case. At the request of Chief Judge Charles E. “Chip” Erdmann, Chief Justice John G. Roberts, Jr., has designated Senior Judge Royce C. Lamberth of the United States District Court for the District of Columbia to perform the duties of a Judge of the United States Court of Appeals for the Armed Forces in this case pursuant to Article 142(f), Uniform Code of Military Justice, 10 U.S.C. § 942(f) (2012).

Recusals are rare at CAAF. I’m only aware of a few in recent history:

  • Judge Ohlson’s recusal from United States v. Newton, 74 M.J. 69 (C.A.A.F. Feb. 25, 2015) (CAAFlog case page).
  • Judge Ryan’s recusal from United States v. Hernandez, No. 15-0178 (C.A.A.F. Jul. 16, 2015) (vacated as improvidently granted).
  • The recusal of then-Chief Judge Effron, Judge Baker, and Judge Ryan from United States v. Schweitzer, 68 M.J. 133 (C.A.A.F. 2009), and United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009).

Yesterday the Senate confirmed the nomination of CAAF’s commissioner, John E. Sparks, to fill the seat on the court that has been vacant since the expiration of then-Chief Judge Baker’s term on July 31, 2015 (discussed here).

A record of the confirmation vote is available here.

The White House announcement of the nomination is available here.

Congratulations to Judge Sparks!

In a notice posted here, Judge Stucky announces an opening for a full-time clerk:

Judge Stucky anticipates one opening for a full-time term clerk beginning September 2017 for a two-year period (2017-2019).

Consideration will be given to:

  • Students who have completed at least two years of law school at the time of application, and
  • Attorneys who have been in practice for less than three years at the time of application.

The compensation for clerks is similar to that at other federal courts.

Application period: From June 20, 2016, until the position is filled.

No. 15-0742/AF & 15-0750/AF. United States, Appellee/Cross-Appellant v. Kevin Gay, Appellant/Cross – Appellee. CCA 385525.
No. 16-0053/AF. U.S. v. Shelby L. Williams. CCA 38454.
No. 16-0054/AF. U.S. v. Gavin B. Atchak. CCA 38526.
No. 16-0091/AR. U.S. v. Djoulou K. Caldwell. CCA 20140425.

In view of the existence of a vacant position on the Court, notice is hereby given that the Chief Judge has called upon Senior Judge Walter T. Cox III to perform judicial duties in the above referenced cases, and that Senior Judge Cox has consented to perform judicial duties in said cases under Article 142(e)(1)(A)(ii), Uniform Code of Military Justice, 10 U.S.C. § 942(e)(1)(A)(ii)(2012).

With the expiration of Judge Baker’s appointment to CAAF this past summer, and the nomination of CAAF’s commissioner, John E. Sparks, to fill the vacancy still pending (both matters discussed in this post), CAAF is currently a four-judge court. In recent years that meant a senior judge would join the court, pursuant to Article 142(e). But Article 142(f) allows the Chief Justice to designate an Article III judge to fill that role.

And that’s exactly what’s happening this term:

No. 15-0087/MC. U.S. v. Carlton Wilder, Jr. CCA 201400118.
No. 15-0384/CG & 15-0387/CG. U.S. v. Christopher S. Cooley. CCA 1389.
No. 15-0425/AF. U.S. v. Alan J. Killion, Jr. CCA S32193.
No. 15-0477/AF. U.S. v. Nicholas E. Busch. CCA 38530.

At the request of Chief Judge Charles E. “Chip” Erdmann, Chief Justice John G. Roberts, Jr., has designated Judge Albert Diaz of the United States Court of Appeals for the Fourth Circuit to perform the duties of a Judge of the United States Court of Appeals for the Armed Forces for the above captioned cases pursuant to Article 142(f), Uniform Code of Military Justice, 10 U.S.C. § 942(f)(2012).

No. 15-0140/AR. U.S. v. Henry L. Williams III. CCA 20130284.
No. 15-0172/MC. U.S. v. Francis L. Captain. CCA 201300137.
No. 15-0334/MC. U.S. v. Quantaus R. Riggins. CCA 201400046.
No. 15-0361/MC. U.S. v. Matthew P. Hoffman. CCA 201400067.
No. 15-0413/AF. U.S. v. Sebastian P. LaBella. CCA 37679.
No. 15-0476/AR. U.S. v. Eric L. Rapert. CCA 20130309.

At the request of Chief Judge Charles E. “Chip” Erdmann, Chief Justice John G. Roberts, Jr., has designated Senior Judge Royce C. Lamberth of the United States District Court for the District of Columbia to perform the duties of a Judge of the United States Court of Appeals for the Armed Forces for the above captioned cases pursuant to Article 142(f), Uniform Code of Military Justice, 10 U.S.C. § 942 (f) (2012).

The last time this occurred was in United States v. Schweitzer, 68 M.J. 133 (C.A.A.F. 2009), and United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009), when then-Chief Judge Effron, Judge Baker, and Judge Ryan all recused themselves. See 67 M.J. 265-266.

Today is the last day of Chief Judge James Baker’s appointment to CAAF.

CAAF judges are appointed by the President, with the advice and consent of the Senate, for 15 year terms. Chief Judge Baker joined the court in September 2000, meaning that today is the last day of his term. See Article 142(b)(2)(B).

The position of chief judge rotates every fives years. Chief Judge Baker assumed the position in 2011 when now-Senior Judge Effron left the court. Judge Erdmann will be the next chief judge.

Despite the expiration of his term, Chief Judge Baker’s service to the court will continue. As of this morning, five cases argued at CAAF during the September 2014 Term of Court are undecided. Article 142(e)(1)(B) allows Chief Judge Baker to continue to serve on the court as a senior judge, and I suspect he will do so in at least one of the undecided cases (the review of the capital case of United States v. Akbar, No. 13-7001/AR (CAAFlog case page)). Chief Judge Baker will also be available to assist the court in future cases as a senior judge.

We wish Chief Judge Baker fair winds, following seas, and the very best for the future.

Gene Fidell reports that yesterday the President nominated CAAF’s commissioner, John E. Sparks, to fill Chief Judge Baker’s position on the court. The White House announcement is available here and provides the following biography of Mr. Sparks:

John E. Sparks is the Commissioner to the Chief Judge of the United States Court of Appeals for the Armed Forces, a position he has held since 2000.  Prior to this, Mr. Sparks was Principal Deputy General Counsel of the Navy from 1999 to 2000 and Special Assistant to the Secretary of Agriculture from 1998 to 1999.  From 1996 to 1998, Mr. Sparks was a Deputy Legal Advisor for the National Security Council.  He served as Military Assistant to the General Counsel at the Department of the Navy from 1994 to 1996 and as a Military Judge at Camp Lejeune, North Carolina from 1991 to 1994.  Mr. Sparks served as military defense counsel, military prosecutor, and Chief Legal Assistance Officer from 1986 to 1991, and held various positions as an infantry officer in the U.S. Marine Corps from 1976 to 1986.  He retired from the U.S. Marine Corps in 1998.  Mr. Sparks received a B.S. from the United States Naval Academy and a J.D. from the University of Connecticut.

On 14 September 2011, the White House announced President Obama’s first appointment to the Court of Appeals for the Armed Forces: career Justice Department attorney Kevin Ohlson. The nomination seemed relatively uncontroversial … but it would languish for more than two years before finally winning Senate confirmation.

Judge Ohlson’s resume was, on its face, impeccable: graduate of the University of Virginia School of Law; former U.S. Army officer and Gulf War veteran; Bronze Star recipient; former Assistant United States Attorney. His career in DOJ included service as chief of staff to then-Deputy Attorney General Eric Holder in the Clinton Administration, and a rise through the ranks in the Bush years, culminating in service as Director of the Executive Office of Immigration Review. From 2009-2011, he was chief of staff to now-Attorney General Holder.

His nomination, however, soon became sidetracked by questions concerning the so-called “gun-walking” operations meant to track the movement and use of firearms by drug runners and organized crime. These operations, which began in 2006, culminated in Operation Fast and Furious, an ambitious and failed program criticized sharply by congressional Republicans. Although Judge Ohlson disclaimed any involvement in Fast and Furious, his nomination stalled and was returned without action to the White House at the end of the 112th Congress.

His rocky road to the bench arguably was simply a part of the ongoing Washington melodrama involving partisan opposition to Presidential nominees, complicated by his long-standing ties to Attorney General Holder, a perennial bête noir of the political right. Despite the initial failure of the Senate to act on his nomination, the President renominated Judge Ohlson in 2013. This time his nomination met with no significant opposition and he was confirmed by a voice vote of the Senate on October 16, 2013. Judge Ohlson’s confirmation came more than a month before the rule change that effectively eliminated the filibuster for lower-court judicial nominees.

With the addition of Judge Ohlson, CAAF returns to its full complement of five judges. It remains to be seen what kind of jurist he will be; but one incident from his days in the Justice Department may offer a clue. As head of DOJ’s Professional Misconduct Review unit, he overruled a 2012 staff recommendation that prosecutors who failed to turn over exculpatory evidence deserved no sanction, ordering both prosecutors suspended without pay. That decision (although subsequently reversed by the MSPB) suggests Judge Ohlson may not be reluctant to call the government to account when dealing with the rights of the accused.

Yesterday the Senate confirmed the President’s renomination of Kevin Ohlson, formerly the head of the Professional Misconduct Review Unit in the Department of Justice, to fill the CAAF vacancy created when Judge Effron retired in 2011.

Mr. Ohlson’s bio from his 2011 nomination:

Kevin A. Ohlson is the Chief of the Professional Misconduct Review Unit in the Department of Justice.  From 2009 to January 2011, he was Chief of Staff and Counselor to United States Attorney General Eric Holder.  From 2007 to 2009, he was the Director of the Executive Office for Immigration Review (EOIR), where he had previously served as Deputy Director from 2002 to 2007.  From 2001 to 2002, he was a member of the Board of Immigration Appeals.  From 1997 to 2001, Mr. Ohlson was Chief of Staff to the Deputy Attorney General.  Prior to that, he served as an Assistant U.S. Attorney for the District of Columbia.  In 1990, while serving as an Assistant U.S. Attorney, he was recalled to active duty service in the United States Army and was awarded the Bronze Star for his actions during the Persian Gulf War.  At the conclusion of his military service, Mr. Ohlson resumed his duties as an Assistant U.S. Attorney.  Mr. Ohlson was commissioned as an officer in the United States Army in 1986 and served as a judge advocate and paratrooper.  He holds a B.A. from Washington and Jefferson College and a J.D. from the University of Virginia School of Law.

Thanks to reader C for the tip.

On Thursday, the White House announced that President Obama has renominated Kevin Ohlson of the Justice Department to Judge Effron’s seat on CAAF.  The seat has been vacant since Judge Effron retired in 2011.  Since then, CAAF has called on either Senior Judge Effron or Senior Judge Cox to sit with it on cases in which it has heard oral argument and a smattering of other matters.

President Obama first nominated Mr. Ohlson for the seat on 14 September 2011.  That nomination died when the 112th Congress adjourned.

Mr. Ohlson is currently the head of the Professional Misconduct Review Unit in the Department of Justice.  But it was his previous DOJ service as Attorney General Eric Holder’s chief of staff that appeared to be responsible for sidetracking his confirmation during the last Congress.  At his SASC confirmation hearing, Mr. Ohlson was sharply questioned about Operation Fast and Furious by Senators McCain and Cornyn

When I briefly pop my head out of the military justice bubble, I notice that there’s a presidential election going on.  For we military justice wonks, a significant responsibility of the President elected in November will be to nominate two CAAF judges.

There is little chance that the Senate will vote on the current nomination of Kevin Ohlson to take Judge Effron’s seat, which has been vacant for almost a year.  That nomination will die when the Senate adjourns at the end of the current Congress.  So whoever is inaugurated on 21 January 2013 will be able to nominate a replacement for Judge Effron.

Chief Judge Baker’s term will expire on 30 September 2015.  So in November, the American electorate will also choose someone to fill that vacancy.

Unfortunately, Article 142 imposes two limitations on the President’s discretion that eliminate many preeminently qualified potential CAAF judges.

One, which we’ve discussed before, is Article 142(b)(1), as defined by Article 142(b)(4), which disqualifies anyone retired from the military after serving 20 years on active duty from serving as a CAAF judge.  The effect of this is to disqualify from CAAF — among many others — anyone who successfully served as a CCA judge, which would seem to be a pretty good background for a CAAF judge.  While I can understand why we may not want someone to go directly from the military onto CAAF, what about a distinguished former military jurist — like our own Judge Mathews the Greatest or ABA Executive Director Jack Rives — who has spent time in the civilian sector following military service?  Federal law provides that “[a] person may not be appointed as Secretary of Defense within seven years after relief from active duty as a commissioned officer of a regular component of an armed force.”  10 U.S.C. § 113 (2006).  Why is there a lifetime ban on retired active duty servicemembers from serving as a CAAF judge but only a seven-year cooling -off period for service as SECDEF?

A second limitation arises from Article 142(b)(3)’s political party restriction.  Under that provision, no more than three CAAF judges can be members of the same political party.  Why?  Who cares?  I assume that Judge Erdmann, Judge Stucky, and Judge Ryan are all Republicans.  All three are wonderful judges.  But this last term, Judge Erdmann and Judge Stucky tied for the two judges least likely to vote together.  In our end o’ term rankings, Judge Erdmann is usually among the most likely judges to vote for the defense, Judge Stucky is among the most likely to vote for the government, and Judge Ryan is in the middle.  None of them has a results oriented jurisprudence; rather, they vote the way they do as a matter of principle and don’t appear to hesitate to vote for either side when their principles favor a vote for that party.  It’s just that Judge Erdmann’s motivating jurisprudential principles make him more likely to vote for the defense than the Court’s average while Judge Stucky’s motivating jurisprudential principles make him more likely to vote for the government than the Court’s average with Judge Ryan in between.  All three have differing jurisprudential philosophies despite sharing a political affiliation (if my assumption is right).

If Judge Erdmann, Judge Stucky, and Judge Ryan are all Republicans, then the incoming President won’t be allowed to select a Republican to fill the current vacancy.  So if Governor Romney were to win the election, he could not nominate a member of his own political party for the post.

Those provisions of Article 142 that unnecessarily constrain the President’s discretion to select the optimal CAAF judge should be repealed or amended.

Today’s CAAF daily journal update included an order indicating that Senior Judge Effron will participate in CAAF’s determination of the writ appeal filed by Julian Assange and Wiki____s.  Assange v. United States. __ M.J. __, Misc. No. 12-8008 (C.A.A.F. Jan. 5, 2012).  The No Man previously discussed the writ appeal here.  The writ appeal petition is available here.