CAAFlog » SCOTUS MilJus Cases

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.

Read more »

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. 16-961Cox, 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:

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.


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.
§ 1259(3).


Thanks to Ryan Yoder for the tip.

A petition for certiorari was filed yesterday in Abdirahman, et al. v. United States, No 17-____. A copy is available here.

The petition consolidates 167 cases (including two courts-martial involving the same accused) and:

raises the same questions as those already presented in Ortiz v. United States, No. 16-1423 (U.S. filed May 19, 2017), and the same merits questions as those already presented in Dalmazzi v. United States, No. 16-961 (U.S. filed Feb. 1, 2017) and Cox v. United States, No. 16-1017 (U.S. filed Feb. 21, 2017).

Each of the 167 cases consolidated in this Petition presents facts that are identical in all relevant respects to those presented in Ortiz. That is to say, each Petitioner:

(1) was convicted by a court-martial;

(2) had their conviction affirmed by a panel of their service-branch Court of Criminal Appeals (CCA) that included at least one judge also serving at that time as an “additional judge” of the U.S. Court of Military Commission Review (CMCR);

(3) petitioned for review before the Court of Appeals for the Armed Forces (CAAF); and

(4) had CAAF grant their petition for review and affirm the decision of the CCA.

After sidestepping the questions presented in this Petition in Dalmazzi, see Dalmazzi v. United States, 76 M.J. 1 (C.A.A.F. 2016) (per curiam), CAAF reached them in Ortiz v. United States, 76 M.J. 189 (C.A.A.F. 2017). There, the Court of Appeals rejected a servicemember’s challenge to the continuing service of Colonel Martin T. Mitchell as a judge on the Air Force CCA after President Obama had signed his commission to serve as an “additional judge” on the CMCR. See id. CAAF did not decide whether Judge Mitchell’s dual officeholding violated 10 U.S.C. § 973(b)(2)(A)(ii) or Article II of the Constitution. Instead, it concluded that, at a minimum, his continuing service on the Air Force CCA was neither unlawful nor unconstitutional, without regard to whether his service on the CMCR might be. See id. at 192–93. After that ruling, the Court of Appeals issued summary, one-sentence orders affirming the CCAs’ rulings in each of the Petitioners’ cases.

Petitioners’ claims rise and fall with Ortiz. Therefore, this Petition should be held pending the disposition of the petition in Ortiz. If this Court grants certiorari in Ortiz and reverses or vacates the decision below, it should grant this Petition as well, vacate the judgments in all of the Petitioners’ cases, and remand to the Court of Appeals for further proceedings in light of this Court’s ruling in Ortiz.

Pet. at 1-2.

Today’s SCOTUS order list includes the following:



In United States v. Sterling, 75 M.J. 407 (C.A.A.F. Aug. 10, 2016) (CAAFlog case page), part of our #8 Military Justice Story of 2016, CAAF found that disobedience of an order could qualify for protection under the Religious Freedom Restoration Act (RFRA), however the majority concluded that the appellant (who represented herself at trial) failed to establish that the order she violated substantially burdened her exercise of religion.

Thanks to reader John Marshall for the heads up.

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, 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.

Petition available here.

(CAAFlog case page)

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

Alas, the Golden CAAF II remains without a new home as the Supreme Court denied what was the best prospect of a certiorari grant in a Mil Jus case in some time.  Yesterday’s orders list (here) denied certiorari in United States v. Akbar, No. 15-1257.  Going to be a long cold winter without Mil Jus at SCOTUS again.  At this rate, the Golden CAAF II will be a full grown steer (or would it be a cow, not sure we’ve determined gender) by the time it finds a home.

The Government’s response opposing the petition for certiorari in Akbar v. United States, No. 15-1257 (CAAFlog case page) is available here.

Thanks to our friend for sending the brief.

Here (subscription req’d) is a link to Marcia Coyle’s piece in the National Law Journal Supreme Court Brief discussing the Akbar cert. petition and amicus brief from NIMJ, featuring quotes from NIMJ’s Prof. Stephen Vladeck.  From the portion visible outside the firewall:

In the past eight years, the Obama administration has been no stranger to charges it has violated separation of powers or exceeded its statutory authority. But a new charge comes from an unusual source—the military justice system—in a U.S. Supreme Court petition that has the potential to dismantle the military’s capital punishment scheme.

Our prior coverage of the cert. petition is here and here.  H/t JB/SV

The Supreme Court received two additional briefs in support of the petition for certiorari in Akbar v. United States, No. 15-1257 (Akbar CAAFlog case page).  The first from the National Association of Criminal Defense Lawyers (NACDL), here, supports the defense’s substantive argument in their petition asking for the SCOTUS to reverse its prior decision in Loving v. United States, 517 U.S. 748 (1996), which found the military’s capital sentencing scheme to be constitutional.  See prior coverage here.  The second from the Air Force and Navy-Marine Corps appellate defense shops, here, addresses the related issue, which is not directly addressed in the petition for certiorari, that trial defense counsel for the accused was not qualified, in accordance with prevailing standards, to handle a capital case.

Love the argument in the Akbar v. United States, No. 15-1257, Petition for Certiorari (here).

Ring v. Arizona, 536 U.S. 584 (2002) held that aggravating factors in capital cases constitute elements of the crime that must be tried to a jury. Does it violate the Constitutional separation-of-powers or exceed statutory authority for the President, rather than Congress, to prescribe the aggravating-factor elements that permit a court-martial to impose a death sentence on a member of the armed forces.

Scintillating reading ladies and gentlemen, scintillating.