CAAFlog » October 2016 Term » United States v. Dalmazzi

Today the Supreme Court called for a response to the cert. petition in Dalmazzi v. United States, No. 16-961 (CAAFlog case page). Prior to this action the case was scheduled for conference on March 3. The response is due on March 24.

In a petition filed today and available here, Second Lieutenant Dalmazzi seeks Supreme Court review of CAAF’s decision in United States v. Dalmazzi, __ M.J. __ (C.A.A.F. Dec. 15, 2016) (CAAFlog case page). The petition begins:

Since shortly after the Civil War, federal law has required 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.” 10 U.S.C. § 973(b)(2)(A)(ii).

After President Obama nominated and the Senate confirmed Colonel Martin T. Mitchell as a judge of the Article I U.S. Court of Military Commission Review (CMCR), Judge Mitchell continued to serve on the U.S. Air Force Court of Criminal Appeals (AFCCA). The U.S. Court of Appeals for the Armed Forces (CAAF) rejected as moot Petitioner’s challenge to Judge Mitchell’s continued service on the AFCCA, because his CMCR commission had not been signed until after the AFCCA decided her case on the merits—even though she moved for reconsideration after the commission was signed.

The Questions Presented are:

1. Whether the Court of Appeals erred in holding that Petitioner’s claims were moot.

2. 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).

3. Whether Judge Mitchell’s simultaneous service on both the CMCR and the AFCCA violated the Appointments Clause.

Beyond raising the underling Appointments Clause issue (that is still before CAAF with United States v. Ortiz, No. 16-0671/AF (CAAFlog case page) and – by my count – 84 trailer cases as of yesterday, including one in which I represent the appellant in my civilian capacity), the petition also implicates the jurisdiction-limiting provisions of 28 U.S.C. § 1259 because CAAF’s per curiam opinion in this case vacated the grant of review.

Disclosure: In my personal capacity I represent an appellant whose case is before CAAF with issues similar to those raised in this case.

In a per curiam opinion issued today in United States v. Dalmazzi, 76 M.J. 1, No. 16-0651/AF (CAAFlog case page) (link to slip op.), CAAF finds that the appellant’s challenge to the participation of a judge of the United States Court of Military Commission Review (USCMCR) on the panel of the Air Force Court of Criminal Appeals that decided her case is moot because the judge had not yet been appointed as a USCMCR judge when the CCA decided the case.

CAAF’s reasoning for why the date of the appointment is controlling is that:

three separate actions are required for the President to appoint an “additional judge” to the USCMCR under the terms of 10 U.S.C. § 950f: (1) the President nominates a person for the position and sends his name to the Senate for confirmation; (2) the Senate confirms the nominee; and (3) the President appoints the confirmed nominee to the position.

Normally, the President signs a commission as evidence of the appointment. But

if an appointment was to be evidenced by any public act, other than the commission, the performance of such public act would create the officer; and if he was not removable at the will of the President, would either give him a right to his commission, or enable him to perform the duties without it. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 156 (1803). While not necessary for the appointment, the commission is “conclusive evidence of it.” Id. at 157. Before the issuance of the commission, the President is free to change his mind and not make the appointment; afterwards, he is not. See Dysart v. United States, 369 F.3d 1303, 1311 (Fed. Cir. 2004).

Appellant argues that actions Colonel Mitchell took as a judge on the USCMCR before the President issued the commission were public acts that evidenced his appointment. We disagree. It is the President who must perform some public act that evinces the appointment, not the purported appointee. See, e.g., Dysart, 369 F.3d at 1306, 1312. Other than the commission, issued on May 25, 2016, there is no evidence that the President appointed Colonel Mitchell to the USCMCR. Therefore, that is the date of his presidential appointment as judge to the USCMCR.

Slip op. at 4.

The underlying issue remains before CAAF in dozens of cases presenting the same challenge involving judges on the Army, Air Force, and Navy-Marine Corps courts.

Case Links:
AFCCA opinion
Blog post: CAAF to review whether an appellate military judge can sit on both a CCA and the CMCR
Blog post: CAAF grants oral argument to the Military Commissions Defense Organization as amicus in support of neither party in Dalmazzi
Appellant’s brief on granted issues
Appellee’s (Government) brief on granted issues
Appellant’s reply brief on granted issues
Amicus brief of the Military Commissions Defense Organization
Amicus brief of the Army Appellate Government Division
Amicus Brief of the Navy-Marine Corps Appellate Government Division
Blog post: Potential mootness in Dalmazzi
Appellant’s brief on specified issue
Appellee’s (Government) brief on specified issue
• Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

Audio of today’s arguments at CAAF is available at the following links:

United States v. Boyce, No. 16-0546/AF (CAAFlog case page): Oral argument audio

United States v. Dalmazzi, No. 16-0651/AF (CAAFlog case page): Oral argument audio

Disclosure: In my personal capacity I represent an appellant whose case is before CAAF with issues similar to those raised in this case.

CAAF will hear oral argument in the Air Force case of United States v. Dalmazzi, No. 16-0651/AF (CAAFlog case page), on Wednesday, December 7, 2016, after the oral argument in Boyce. While the case presents two issues challenging the participation of Colonel Martin T. Mitchell in the Air Force CCA’s review of the case – and similar issues have been granted review in 52 trailer cases – CAAF will instead hear oral argument on an issue it specified that questions whether the granted issues are moot:

Specified Issue: Whether the issues granted for review are moot where the record reflects that: Martin T. Mitchell took an oath purporting to install him as a judge of the U.S. Court of Military Commission Review (CMCR) on May 2, 2016; the Air Force Court of Criminal Appeals (AFCCA) issued an opinion in the underlying case with Judge Mitchell participating in his capacity as an AFCCA judge on May 12, 2016; and the President did not appoint Mitchell to the CMCR until May 25, 2016.

Granted Issue I: Whether United States Court of Military Commission Review Judge, Martin T. Mitchell, is statutorily authorized to sit as one of the Air Force Court of Criminal Appeals judges on the panel that decided Appellant’s case.

Granted Issue II: Whether Judge Martin T. Mitchell’s service on both the Air Force Court of Criminal Appeals and the United States Court of Military Commission Review violates the Appointments Clause given his status as a superior officer on the United States Court of Military Commission Review.

Read more »

In the Air Force case of United States v. Dalmazzi, No. 16-0651/AF (CAAFlog case page), CAAF is considering whether a judge of the United States Court of Military Commission Review (appointed by the President and confirmed by the Senate) may also serve as an appellate military judge on a court of criminal appeals. CAAF granted review of two issues in Dalmazzi:

I. Whether United States Court of Military Commission Review Judge, Martin T. Mitchell, is statutorily authorized to sit as one of the Air Force Court of Criminal Appeals judges on the panel that decided Appellant’s case.

II. Whether Judge Martin T. Mitchell’s service on both the Air Force Court of Criminal Appeals and the United States Court of Military Commission Review violates the Appointments Clause given his status as a superior officer on the United States Court of Military Commission Review.

CAAF also granted review of Dalmazzi-type issues in 44 trailer cases. Additionally, CAAF accepted an amicus brief from the Military Commissions Defense Organization and granted the organization 10 minutes of oral argument time (discussed here).

But last week CAAF rescinded that grant of argument time to amicus because it found an issue that has the potential to render the claim in Dalmazzi moot:

No. 16-0651/AF. U.S. v. Nicole A. Dalmazzi. CCA 38808. On further consideration of the record of trial, as supplemented following the order of the Court dated October 28, 2016, it is ordered that the parties brief the following specified issue:

WHETHER THE ISSUES GRANTED FOR REVIEW ARE MOOT WHERE THE RECORD REFLECTS THAT: MARTIN T. MITCHELL TOOK AN OATH PURPORTING TO INSTALL HIM AS A JUDGE OF THE U.S. COURT OF MILITARY COMMISSION REVIEW (CMCR) ON MAY 2, 2016; THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) ISSUED AN OPINION IN THE UNDERLYING CASE WITH JUDGE MITCHELL PARTICIPATING IN HIS CAPACITY AS AN AFCCA JUDGE ON MAY 12, 2016; AND THE PRESIDENT DID NOT APPOINT MITCHELL TO THE CMCR UNTIL MAY 25, 2016.

The parties will brief this issue contemporaneously, and file their briefs on or before December 1, 2016.  It is further ordered that the Court will hear oral argument only on the specified issue at the hearing scheduled for December 7, 2016, and that the order allotting amicus curiae 10 minutes to present oral argument is hereby rescinded.

While this new discovery may resolve the issue in Dalmazzi, the trailer cases (which involve other judges and later decisions) will remain.

In the Air Force case of United States v. Dalmazzi, No. 16-0651/AF (CAAFlog case page), CAAF is considering whether a judge of the United States Court of Military Commission Review (appointed by the President and confirmed by the Senate) may also serve as an appellate military judge on a court of criminal appeals. CAAF has already granted review of eight trailer cases.

Yesterday it granted review of six more, ordering no briefs to be filed.

Dalmazzi now has 14 trailers, 12 of which are from the Army.

In the Air Force case of United States v. Dalmazzi, No. 16-0651/AF (CAAFlog case page), CAAF is considering whether a judge of the United States Court of Military Commission Review (appointed by the President and confirmed by the Senate) may also serve as an appellate military judge on a court of criminal appeals. CAAF has already granted review of eight trailer cases, and more grants are sure to follow.

Oral argument in Dalmazzi is scheduled for Wednesday, December 7, 2016. The appellant’s brief is available here.

When CAAF granted review it specifically invited the Army, Coast Guard, and Navy-Marine Corps appellate defense and Government divisions to file amicus curiae briefs in the case. CAAF hasn’t (yet) posted any amicus briefs on its website, however a reader forwarded this amicus brief from the Military Commissions Defense Organization offered in support of neither party. The brief concludes:

The USCMCR is an Article I court of record whose judges are principal officers. The only question here is what effect should be given to the appointment of five military officers to be USCMCR judges pursuant to §950f(b)(3). If these appointments are construed to have validly elevated the individuals to the position of USCMCR Judge, then they automatically resigned their military commissions by operation of law and ceased to be eligible to perform military duties. Alternatively, if the appointments are construed as ab initio void, then they continued in their same rank and grade and remained eligible to perform their assigned military duties.

Br. at 20-21.

Yesterday, in this order, CAAF accepted the brief and granted the Military Commissions Defense Organization 10 minutes of oral argument.

In the Air Force case of United States v. Dalmazzi, No. 16-0651/AF (grant discussed here), CAAF is considering whether a judge of the United States Court of Military Commission Review (appointed by the President and confirmed by the Senate) may also serve as an appellate military judge on a court of criminal appeals. CAAF has already granted review of six trailer cases.

Yesterday it granted an interesting seventh:

No. 16-0677/AR. U.S. v. Jovanni Pimentel. CCA 20150361.  Appellant’s petition for reconsideration of this Court’s Order issued September 15, 2016, is hereby granted.  The Order denying the petition for grant of review issued September 15, 2016, is hereby vacated, and the petition for grant of review is hereby granted on the following issues:

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSIONS OF JUDGE HERRING AND JUDGE BURTON.

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGE HERRING AND JUDGE BURTON DO NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

No briefs will be filed under Rule 25.

(emphasis added).

In the Air Force case of United States v. Dalmazzi, No. 16-0651/AF (grant discussed here), CAAF is considering whether a judge of the United States Court of Military Commission Review (appointed by the President and confirmed by the Senate) may also serve as an appellate military judge on a court of criminal appeals.

The case ended last term with three trailers: United States v. Brown, No. 16-0714/AR (grant discussed here), United States v. Echols, No. 16-0720/AR, and United States v. Bustamonte, No. 16-0693/AR (grants discussed here).

Now it has three more:

No. 16-0732/AR. U.S. v. Kameron M. Coleman. CCA 20140709. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DOES NOT MEET THE UCMJ DEFINITION OF AN APPELLATE MILITARY JUDGE.

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

No briefs will be filed under Rule 25.

 

No. 16-0555/AR. U.S. v. Jason M. Commisso. CCA 20140205. On consideration of Appellant’s motion to enlarge the grant and vacate the decision of the United States Army Court of Criminal Appeals, it is ordered that said motion is hereby granted as it pertains to enlarging the grant but denied as it pertains to vacating the decision of the United States Army Court of Criminal Appeals.

I noted CAAF’s grant of review in Commisso here.

No. 16-0635/AR. U.S. v. Laith G. Cox. CCA 20130923. On consideration of Appellant’s petition for reconsideration of this Court’s Order issued September 7, 2016, it is ordered that said petition for reconsideration is hereby granted, and the petition for grant of review is hereby granted on the following issues:

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSIONS OF JUDGE HERRING AND JUDGE BURTON.

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGE HERRING AND JUDGE BURTON MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

No briefs will be filed under Rule 25.

On Friday, September 30, 2016 – the last day of the September 2015 Term, which is the last September term (discussed here) – CAAF granted review in five trailer cases.

First, the court granted, set-aside, and remanded in a trailer to United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page):

No. 16-0697/AR. U.S. v. Douglas E. Reynolds, Jr. CCA 20140856. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT’S MOTION TO USE CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 413 PURPOSES TO PROVE PROPENSITY TO COMMIT OTHER CHARGED MISCONDUCT.

The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of the granted issue in light of United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).

I can’t find an opinion on the Army CCA’s website (indicating that the CCA summarily affirmed the findings and sentence). This is the fifth such case reversed by CAAF since the court decided Hills.

Next, CAAF granted review in two trailer cases to the Air Force case of United States v. McClour, No. 16-0455/AF (grant discussed here):

No. 16-0579/AF. U.S. v. William P. Smith, Jr. CCA 38728. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER, BY INSTRUCTING THE MEMBERS THAT THEY LACK THE POWER OF JURY NULLIFICATION, THE MILITARY JUDGE ERRED AND MATERIALLY PREJUDICED APPELLANT’S RIGHT TO BE TRIED BY A PANEL VESTED WITH ITS FULL PREROGATIVE.

No briefs will be filed under Rule 25.

No. 16-0674/AF. U.S. v. James M. Kmet. CCA 38755. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE AFCCA ERRED WHEN IT FAILED TO GRANT RELIEF WHERE THE MILITARY JUDGE INSTRUCTED THE MEMBERS, “IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF ANY OFFENSE CHARGED, YOU MUST FIND HIM GUILTY,” WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

No briefs will be filed under Rule 25.

The AFCCA’s decision in Smith is available here and its decision in Kmet is available here. These are the third and fourth trailer cases to McClour. All but one (Taylor, discussed here) are from the Air Force.

Finally, CAAF granted review in two trailers to the Air Force case of United States v. Dalmazzi, No. 16-0651/AF (grant discussed here):

No. 16-0693/AR. U.S. v. Marcos A. Bustamante. CCA 20150486. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

WHETHER JUDGE HERRING AND JUDGE BURTON, WHO CURRENTLY SIT ON THE CMCR, ARE STATUTORILY AUTHORIZED TO ALSO SIT ON THE ACCA.

WHETHER JUDGE HERRING AND JUDGE BURTON’S SIMULTANEOUS SERVICE ON BOTH THE CMCR AND ACCA VIOLATES THE APPOINTMENTS CLAUSE OF THE CONSTITUTION.

No briefs will be filed under Rule 25.

No. 16-0720/AR. U.S. v. Robert S. Echols. CCA 20160126. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

WHETHER CMCR JUDGE JAMES HERRING IS STATUTORILY AUTHORIZED TO SIT ON THE ARMY CCA.

WHETHER JUDGE JAMES HERRING’S SERVICE ON BOTH THE CMCR AND ARMY CCA VIOLATES THE APPOINTMENTS CLAUSE.

No briefs will be filed under Rule 25.

I can’t find opinions in either case on the Army CCA’s website (indicating that the CCA summarily affirmed the findings and sentence). There are now three Dalmazzi trailers at CAAF, all from the Army.

Disclosure: I represent – in my personal capacity – an appellant who has also raised a Dalmazzi issue at CAAF.

In the Air Force case of United States v. Dalmazzi, No. 16-0651/AF (grant discussed here), CAAF is considering whether a judge of the United States Court of Military Commission Review (appointed by the President and confirmed by the Senate) may also serve as an appellate military judge on a court of criminal appeals.

Yesterday CAAF granted review in a trailer case from the Army:

No. 16-0714/AR. U.S. v. Mattie L. Brown. CCA 20140346. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE CELTNIEKS.

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE CELTNIEKS DOES NOT MEET THE UCMJ DEFINITION OF AN APPELLATE MILITARY JUDGE.

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

No briefs will be filed under Rule 25.

Last week CAAF granted review – and specifically invited amicus briefs from the appellate divisions – in an Air Force case that questions whether an appellate military judge may sit on both a Court of Criminal Appeals and the United States Court of Military Commission Review:

No. 16-0651/AF. U.S. v. Nicole A. Dalmazzi. CCA 38808. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER UNITED STATES COURT OF MILITARY COMMISSION REVIEW JUDGE, MARTIN T. MITCHELL, IS STATUTORILY AUTHORIZED TO SIT AS ONE OF THE AIR FORCE COURT OF CRIMINAL APPEALS JUDGES ON THE PANEL THAT DECIDED APPELLANT’S CASE.

II. WHETHER JUDGE MARTIN T. MITCHELL’S SERVICE ON BOTH THE AIR FORCE COURT OF CRIMINAL APPEALS AND THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW VIOLATES THE APPOINTMENTS CLAUSE GIVEN HIS STATUS AS A SUPERIOR OFFICER ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.

Briefs will be filed under Rule 25.

The Chiefs of the Appellate Defense and Appellate Government Divisions of the United States Army, the United States Coast Guard, and the United States Navy-Marine Corps are invited to file amicus curiae briefs on these issues. These briefs will be filed under Rule 26.

Just two years ago, in United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page), a unanimous CAAF concluded that the appointment of a civilian Air Force employee to the Air Force Court of Criminal Appeals was invalid. Then, in another unanimous opinion issued last year in United States v. Jones, 74 M.J. 95 (C.A.A.F. Mar. 11, 2015) (CAAFlog case page), CAAF rejected application of the de facto officer doctrine to the appointment.