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.) (CAAFlog case page) (SCOTUSblog case page), 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).
Available here. Audio expected on Friday.
Excerpt (from pdf page 29):
With regard to how this Court could distinguish and save for another day the question of when Congress could give it direct appellate jurisdiction over an administrative tribunal, I do think the fact that Congress has called the Court of Appeals for the Armed Forces a court of record, that it acts like a court of record, and that it dispenses judgments in criminal cases are all reasons that distinguish it from administrative adjudication.
Here’s a link to SCOTUSblog’s analysis of today’s oral argument at the Supreme Court in Dalmazzi.
[Assistant to the solicitor general Brian H.] Fletcher sat down without using all of his 30 minutes of argument time, having faced relatively few questions about the merits of the service members’ challenge. Assuming that the justices get that far, that’s a good sign for the government. But Fletcher faced more, and tougher, questions about whether the court has the authority to hear the service members’ cases at all. The government and the service members agree that it does, but a University of Virginia law professor, Aditya Bamzai, argued today that it does not. Bamzai told the justices that the court can only review decisions by the U.S. Court of Appeals for the Armed Forces (CAAF), which heard the service members’ appeals from the CCAs, if those decisions are “appeals.” But because the CAAF is part of the executive branch, he concludes, it does not exercise real judicial power.
The justices struggled with the broader implications of Bamzai’s assertion throughout the oral argument. Breyer outlined the problem in a question for Vladeck, telling him that there are “many adjudicatory bodies in the executive branch”: How, he asked, do we draw a line that will allow us to hear appeals from the CAAF, but not from other entities such as the National Labor Relations Board or the Securities and Exchange Commission? There were no clear-cut answers to Breyer’s question; a decision on both the jurisdictional issue and, if necessary, the dual-officeholding ban is expected by summer.
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.
Just filed and available here.
The summary of the argument includes:
I. The President’s appointments of Judges Burton, Celtnieks, Herring, and Mitchell to the CMCR did not violate 10 U.S.C. 973(b). And even if they did, petitioners would not be entitled to relief from the CCA decisions affirming their convictions because Congress specifically provided that Section 973(b) does not invalidate the subsequent actions of a military officer who accepts a covered civil office. . .
II. A military officer’s simultaneous service on a CCA and the CMCR does not raise questions under the Appointments Clause or the Commander-in-Chief Clause. Petitioners identify nothing in the text or history of the Appointments Clause, or in this Court’s decisions, to support their assertion that the Clause imposes an ill-defined “incompatibility” or “incongruity” limitation on the circumstances in which an individual may hold two separate federal offices. And even if such a limit existed, it would not be implicated here. A military judge’s simultaneous service on a CCA and the CMCR is no more “incongruous” or “incompatible” than a district judge’s service on the Foreign Intelligence Surveillance Court or a circuit judge’s service on a three-judge district court. And petitioners’ argument that the Commander-in-Chief Clause does not permit the restrictions on removal that petitioners assume are triggered by presidential appointment to the CMCR rests on the erroneous premise that Judges Burton, Celtnieks, Herring, and Mitchell are not subject to 10 U.S.C. 949b(b)(4), the statutory provision governing reassignment of military judges serving on the CMCR.
III. This Court lacks jurisdiction in Dalmazzi and Cox, but has jurisdiction in Ortiz. . . .
IV. If the Court concludes that it has jurisdiction in Dalmazzi and Cox, it should not disturb the CAAF’s discretionary denials of review. The CAAF did not abuse its discretion in vacating its grants of review and denying the petitions in those cases when it discovered that the questions it had agreed to decide were not squarely presented.
This week at SCOTUS: On September 28, 2017, the Supreme Court granted certiorari in Dalmazzi v. United States, No. 16-961, Cox, et al., v. United States, No. 16-1017, and Ortiz v. United States, No. 16-1423, consolidating the cases and directing additional briefing on whether the Court has jurisdiction over those where CAAF vacated its grant of review. They are the first military cases to be granted cert. since United States v. Denedo, 556 U.S. 904 (2009). Our coverage of these cases will continue under the heading of Dalmazzi v. United States, No. 16-961 (CAAFlog case page) (SCOTUSblog case page).
In other SCOTUS news, the cert. petitions in Abdirahman, et at., and Alexander were distributed for conference on Oct. 13. Additionally, an extension of time to file a cert. petition was granted in Richards v. United States, No. 17A338, until November 10, 2017. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:
- Dalmazzi v. United States, No. 16-961 (cert granted Sep. 28) (CAAFlog case page) (SCOTUSblog case page)
- Alexander v. United States, No. 16-9536 (dist. for conf. on Oct. 13)
- Tso v. United States, No. 17A40 (ext. of time to file granted to Sep. 29)
- Bartee v. United States, No. 17-175 (resp. requested, due Oct. 30)
- Abdirahman, et al. v. United States, No. 17-206 (dist. for conf. on Oct. 13)
- Richards v. United States, No. 17A338 (ext. of time to file granted to Nov. 10)
This week at CAAF: The next scheduled oral argument at CAAF is on October 10, 2017.
This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.
This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on October 24, 2017. The argument will be heard at the Florida International University College of Law.
This week at the CGCCA: The Coast Guard CCA has a new website, but the link to its docket doesn’t work.
This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.
16-961 ) DALMAZZI, NICOLE A. V. UNITED STATES
16-1017 ) COX, LAITH G. V. UNITED STATES
16-1423 ) ORTIZ, KEANU D. V. UNITED STATES
The petitions for writs of certiorari are granted. The
cases are consolidated, and a total of one hour is allotted for
oral argument. In addition to the questions presented by the
petitions, the parties are directed to brief and argue the
following question: Whether this Court has jurisdiction to
review the cases in Nos. 16-961 and 16-1017 under 28 U. S. C.
Thanks to Ryan Yoder for the tip.
In a petition filed today and available here, Second Lieutenant Dalmazzi seeks Supreme Court review of CAAF’s decision in United States v. Dalmazzi, 76 M.J. 1 (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.
• 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