CAAFlog » September 2013 Term » United States v. Janssen

CAAF decided the Air Force case of United States v. Janssen, No 14-0130/AF, 73 M.J. 221 (CAAFlog case page) (link to slip op.), on Tuesday, April 15, 2014, finding that Congress did not give the Secretary of Defense the authority to appoint a civilian as an appellate military judge. CAAF finds that the Secretary’s action appointing to the Air Force Court of Criminal Appeals one Mr. Soybel (a civilian litigation attorney employed by the Air Force who is also a retired Air Force judge advocate who served as an appellate military judge while on active duty), rather than recalling him to active duty to return to the CCA, was invalid.

Judge Stucky writes for a unanimous court.

As a civilian, Judge Soybel (as he is repeatedly referred to in CAAF’s opinion) was first appointed to the AFCCA by the Judge Advocate General of the Air Force on January 25, 2013. He promptly got to work, participating in numerous cases, including Janssen. However, on May 23, 2013, the CCA recalled all of those cases. Then, on June 25, 2013, the Secretary of Defense issued a memorandum that re-appointed Judge Soybel to the CCA, and he again participated in numerous cases, again including Janssen. The CCA refused to reconsider those cases, and Janssen appealed to CAAF.

Judge Soybel’s appointment was presumably made to assist with the backlog at the AFCCA, and together the backlog and the appointment issue were our #9 military justice story of 2013. But CAAF summarily remanded numerous cases over the summer due to concerns with the appointment, and then on December 19, 2013, it granted review in Janssen and ordered expedited briefing on a single issue:

Whether the civilian judge on Appellant’s Air Force Court of Criminal Appeals panel was properly appointed. See U.S. Const. Article II, Section 2, Clause 2; 10 U.S.C. § 113 (2012); 5 U.S.C. § 3101 (2012).

CAAF also granted numerous trailers (I’m tracking eight: Jones, Grawey, Annis, Burns, Johnson, Dixon, Albright, and Peacock). But the controversies continued to mount, as CAAF rejected the Government’s brief of the granted issue in an order that stated:

On consideration of Appellee’s brief and its January 15, 2014, letter to the Clerk, [citing supplemental authority] we find that they insufficiently address the assigned issue and Appellant’s argument. . . .

The Government submitted a second brief that surveyed the legal landscape and posed the ultimate question for who has the power to make such an appointment of “if not the Secretary of Defense, then whom?” Gov’t Second Br. at 13. Judge Stucky answers, “the President”:

The conclusion is clear: While Congress certainly has the authority under the Appointments Clause to authorize the Secretary of Defense to appoint appellate military judges, either through general legislation granting authority to appoint inferior officers or specific legislation granting authority to appoint appellate military judges, it has not done so. This being the case, the appointment of Judge Soybel was required to be done by the President with Senate advice and consent, which is the default method for the appointments of inferior officers. See Edmond, 520 U.S. at 660. Since this was not done, his appointment as an appellate military judge is invalid and of no effect.

Slip op. at 13.

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CAAF has decided the “Soybel” issue against the Gov., which affects Janssen and approximately 32 trailers.

United States v. Janssen,

We hold that the Government failed to establish that the judge was properly appointed under United States v. Janssen, the Appointments Clause of the Constitution of the United States. U.S. Const. art. II, § 2, cl. 2.

As Phil noted earlier today in this post, CAAF issued an order (link) that effectively rejected the Government’s brief in the AFCCA appointments case of United States v. Janssen, No 14-0130/AF (CAAFlog case page).

Janssen involves a challenge to the appointment of a civilian employee of the Department of Defense (who is also a retired Air Force officer) to the Air Force Court of Criminal Appeals. The appointment was presumably made to assist with the backlog at that court, and together the backlog and the appointment were our #9 military justice story of 2013. But CAAF summarily remanded numerous cases over the summer due to concerns with the appointment, and then on December 19, 2013, it granted review in Janssen and ordered expedited briefing on a single issue:

Whether the civilian judge on Appellant’s Air Force Court of Criminal Appeals panel was properly appointed.See U.S. Const. Article II, Section 2, Clause 2; 10 U.S.C. § 113 (2012); 5 U.S.C. § 3101 (2012).

Appellant filed his brief (available here) on January 3, 2014, providing additional facts. The civilian judge, Mr. Soybel, was first appointed to the AFCCA by the Judge Advocate General of the Air Force on January 25, 2013. He promptly got to work, participating in numerous cases. However, on May 23, 2013, the CCA recalled all of those cases. Then, on June 25, 2013, the Secretary of Defense issued a memorandum that appointed (re-appointed?) Mr. Soybel to the CCA, and he again participated in numerous cases, including Janssen. The CCA refused to reconsider these cases, and Janssen appealed to CAAF.

Appellant’s position is relatively straightforward:

The Supreme Court ruled that Article 66 gives Judge Advocates General the duty to establish courts of criminal appeals and the authority to assign officers as appellate military judges. Edmond v. United States, 520 U.S. 651 (1997). But it does not empower them to create inferior officers and therefore does not empower them to appoint civilians as appellate military judges.

App. Br. at 7. In Edmond, the Supreme Court determined that Congress vested appointment authority for the Coast Guard CCA in the Secretary of Transportation through the broad authority granted to that Secretary in 49 U.S.C. § 323(a). But no similar statute exists for the Secretary of Defense.

Rather, “the Secretary of Defense, in appointing Mr. Soybel as an appellate military judge, cited 5 U.S.C. § 3101 as his authority for the appointment.” App. Br. at 8. But there are significant differences between the two statutes.

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On Thursday, December 19, CAAF granted review and ordered expedited briefing in the Air Force case of United States v. Janssen, No 14-0130/AF, with the following issue:

Whether the civilian judge on Appellant’s Air Force Court of Criminal Appeals panel was properly appointed. See U.S. Const. Article II, Section 2, Clause 2; 10 U.S.C. § 113 (2012); 5 U.S.C. § 3101 (2012).

We’ve been following this issue for a few months (since at least this September post, and most recently this post on Dec. 4, and this post on Dec. 5). Appellate Military Judge Lawrence M. Soybel, who retired from the Air Force, was appointed to the Air Force Court of Criminal Appeals as a civilian. For reasons not yet clear, there were problems with the initial appointment and the Secretary of Defense re-appointed Mr. Soybel on June 25, 2013. Cases in which Judge Soybel participated before the re-appointment have received reconsideration by the CCA or remand from CAAF.

Janssen is one such case. The AFCCA first decided Janssen in May, with a per curiam opinion by a three-judge panel that included Judge Soybel (link to slip op.). The AFCCA then reconsidered the case in July before the same panel, issuing a second per curiam opinion with a footnote that stated, “Upon our own motion, this Court vacated the previous decision in this case for reconsideration before a properly constituted panel. Our decision today reaffirms our earlier decision” (link to slip op.).

CAAF has scheduled the case for oral argument on January 28, 2014.

In other news from CAAF, former-Sergeant Hasan Akbar, who attacked fellow soldiers in Kuwait in 2003, killing two and wounding 14 others, and who was sentenced to death in 2005, has moved for leave to exceed the court’s page limit for a brief:

No. 13-7001/AR.  U.S. v. Hasan K. AKBAR.  CCA 20050514.  On consideration of Appellant’s motion to file a brief in excess of fifty pages, the Court notes that Rule 24(b) of its Rules of Practice and Procedure provides that briefs filed with the Court shall not exceed thirty pages, unless otherwise authorized by order of the Court or by motion of a party granted by the Court.  In addition, Rules 24(c) provides a type-volume limitation providing that briefs are acceptable if they contain no more than 14,000 words or 1,300 lines of text.

Appellant’s motion requests permission to file a brief in excess of fifty pages, and proposes to submit a brief in excess of 500 pages.  It is ordered that on or before January 3, 2013, Appellant supplement his motion with a review of federal circuit courts’ capital case exceptions to the analogous page limitation under Rule 32(a)(7) of the Federal Rules of Appellate Procedure, if any, including any Supreme Court exceptions to its own page limitations in the context of capital cases.

(emphasis added). The Army CCA affirmed the death sentence in 2012 (discussed here). Akbar is one of only six military death row inmates. The whole list (in the order sentence was adjudged) is: Gray, Loving, Akbar, Witt, Hennis, and Hasan. Of note, the death sentence in Witt was set aside by the CCA in August (discussed here), but the court has granted a Government motion for reconsideration (discussed here).

Finally, CAAF has increased the fee to join the bar to $50 (link to notice).