One of the five seats on CAAF has been vacant since Senior Judge Erdmann’s 15-year term expired on July 31, 2017. President Trump nominated Professor (and Army Reserve Colonel) Gregory Maggs to the seat on September 28, 2017.
Yesterday the Senate Committee on Armed Services held a hearing on three nominations including that of Mr. Maggs. Video and documents are available here.
If confirmed, Gregory E. Maggs of Virginia will serve as a Judge on the U.S. Court of Appeals for the Armed Forces. Professor Greg Maggs currently serves as the Arthur Selwyn Miller Research Professor of Law and Co-Director of the National Security & U.S. Foreign Relations Law LL.M. Program at the George Washington University Law School in Washington, D.C., where he has taught since 1993. At GWU, Professor Maggs teaches and writes in the areas of constitutional law, counterterrorism, military justice, and national security law. He is the co-author of a leading military law casebook, Modern Military Justice: Cases and Materials, and has published two related books, along with dozens of articles in the fields of constitutional law and national security. In addition to his academic work, Professor Maggs serves as a Colonel in the U.S. Army Reserve, Judge Advocate General’s Corps. He received his commission in 1990 and was mobilized from 2007 to 2008. From 2007 to 2017, Professor Maggs served as a reserve trial and appellate military judge. Upon graduation from law school, he served as a law clerk to U.S. Supreme Court Justices Clarence Thomas and Anthony M. Kennedy and to Judge Joseph T. Sneed of the U.S. Court of Appeals for the Ninth Circuit. Professor Maggs earned his A.B., summa cum laude, from Harvard College, where he was inducted into Phi Beta Kappa, and was designated a John Harvard Scholar, and his J.D. from Harvard Law School, magna cum laude, where he served as articles co-chair of the Harvard Law Review. He also earned a Master of Strategic Studies from the U.S. Army War College.
One of the five seats on CAAF has been vacant since Senior Judge Erdmann’s 15-year term expired on July 31, 2017.
Charles E. “Chip” Erdmann’s 15-year appointment as a Judge on CAAF ended on Monday. We wish Chief Judge Erdmann fair winds and following seas.
He is replaced as Chief Judge by Scott W. Stucky, whose appointment expires on July 31, 2021 (the position of Chief Judge rotates by seniority every five years unless the judge’s appointment expires sooner).
A bit of trivia that I’m sure you will find useful is that Judge Ryan’s appointment expires on the same day as Chief Judge Stucky’s. In a rare moment of planning-ahead, Congress authorized her to retire one year early with full benefits in § 541 of the FY17 NDAA. It also passed a provision to prevent such same-day appointment expirations in the future.
Senior Judge Erdmann will continue to perform judicial duties, including in two cases still pending decisions by the court. The following notices were published in CAAF’s daily journal yesterday:
Notice – In Re October 2017 Term of Court
Article 142 of the Uniform Code of Military Justice, (UCMJ), 10 U.S.C. § 942 (2012), authorizes the appointment of five judges to serve on the Court. One of the positions is vacant. Unless the Court issues a notice that a senior judge or an Article III judge will perform judicial duties, the four judges in active service will perform the functions of the Court. See Articles 142 and 144, UCMJ, 10 U.S.C. §§ 942 and 944, and U.S.C.A.A.F. Rule 6(a).
No. 17-0049/MC. U.S. v. Tanner J. Forrester. CCA 201500295. [(CAAFlog case page)] 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 Charles E. Erdmann to perform judicial duties in the above-referenced case, and that Senior Judge Erdmann has consented to perform judicial duties in said case under Article 142(e)(1)(A)(ii), Uniform Code of Military Justice, 10 U.S.C. § 942(e)(1)(A)(ii) (2012).
No. 17-0153/AR. U.S. v. Edward. J. Mitchell II. CCA 20150776. [(CAAFlog case page)] 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 Charles E. Erdmann to perform judicial duties in the above-referenced case, and that Senior Judge Erdmann has consented to perform judicial duties in said case under Article 142(e)(1)(A)(ii), Uniform Code of Military Justice, 10 U.S.C. § 942(e)(1)(A)(ii) (2012).
There is no nominee for the vacancy.
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.
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.