CAAF will hear oral argument in the Air Force case of United States v. Jones, No. 14-0057/AF (CAAFlog case page) on Wednesday, November 19, 2014. In the wake of last term’s blockbuster decision in United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page), CAAF will revisit the impact of the appointment of one Mr. Soybel (a civilian litigation attorney employed by the Air Force who is also a retired Air Force judge advocate) to the Air Force Court of Criminal Appeals. In Janssen, CAAF found Mr. Soybel’s appointment to be invalid after concluding that Congress did not give the Secretary of Defense or the Judge Advocate General the authority to appoint a civilian as an appellate military judge.
Writing for the court in Janssen, Judge Stucky considered the possibility of saving the CCA’s action in the case by application of the de facto officer doctrine. That doctrine “confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.” Ryder v. United States, 515 U.S. 177, 180 (1995) (citing Norton v. Shelby County, 118 U.S. 425, 440 (1886)). But under the facts of Janssen, where the appellant challenged Judge Soybel’s appointment as soon as he learned of it, CAAF declined to apply the doctrine, noting that the Supreme Court also declined to apply the doctrine in Ryder because it “would create a disincentive to raise Appointments Clause challenges with respect to questionable judicial appointments.” Janssen, slip op. at 13-14 (quoting Ryder, 515 U.S. at 183).
However, in Jones the appellant lodged practically no objections. After Second Lieutenant Jones was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of drunken operation of a motor vehicle, assault consummated by a battery, and conduct unbecoming, in violation of Articles 111, 128, and 133, and was sentenced to confinement for six months, total forfeitures, and a dismissal, his case was docketed at the Air Force CCA. Mr. Soybel was then appointed to the CCA by the Judge Advocate General of the Air Force, and Mr. Soybel was part of a three-judge panel of the CCA that affirmed the findings and sentence in Jones. But the CCA reconsidered the case after the Secretary of Defense made a second appointment of Mr. Soybel to the court. Mr. Soybel also participated in the reconsideration, and again the CCA affirmed the findings and sentence. Appellant asserted a number of errors during the CCA’s reviews, but he did not challenge the legality of Mr. Soybel’s appointment to the court.
Appellant eventually raised the issue of Mr. Soybel’s appointment – for the first time – at CAAF. CAAF granted review of Jones as a trailer case to Janssen, and then CAAF decided Janssen. Yet rather than remand Jones for a new review consistent with Janssen, CAAF did something very different. On June 27, 2014, (over two months after deciding Janssen) CAAF issued the following order:
No. 14-0057/AF. U.S. v. William R. JONES. CCA 38028. Upon further consideration of the granted issue, 73 M.J. 138 (C.A.A.F. Dec. 23, 2013), it is ordered that said petition is hereby granted on the following issue:
WHETHER THE DE FACTO OFFICER DOCTRINE CONFERRED VALIDITY UPON JUDGE SOYBEL’S PARTICIPATION IN THE AIR FORCE COURT OF CRIMINAL APPEALS’ DECISION IN APPELLANT’S CASE. SEE RYDER v. UNITED STATES, 515 U.S. 177, 182-84 (1995); NGUYEN v. UNITED STATES, 539 U.S. 69, 72-73 (2003); UNITED STATES v. AMERICAN-FOREIGN S.S. CORP., 363 U.S. 685 (1960); AYSHIRE COLLIERIES CORP. v. UNITED STATES, 331 U.S. 132 (1947); NORTON v. SHELBY COUNTY, 118 U.S. 425, 446 (1886); UNITED STATES v. JANSSEN, 73 M.J. 221 (C.A.A.F. 2014); UNITED STATES v. ELLIOTT, 15 M.J. 347 (C.M.A. 1983).
Briefs will be filed under Rule 25.
In plain English, CAAF is considering whether it should affirm the Air Force court’s decision in Jones despite the fact that Mr. Soybel improperly participated in that decision.
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