CAAFlog » September 2014 Term » United States v. Jones

CAAF decided the Air Force case of United States v. Jones, 74 M.J. 95, No. 14-0057/AF (CAAFlog case page) (link to slip op.), on Wednesday, March 11, 2015. The court holds that the de facto officer doctrine does not apply to permit the inclusion of Mr. Soybel (a civilian litigation attorney employed by the Air Force who is also a retired Air Force judge advocate) on the panel of the Air Force Court of Criminal Appeals that reviewed Appellant’s case. CAAF reverses the decision of the Air Force court and remands the case for a new review before a properly constituted panel.

Judge Stucky writes for a unanimous court.

Jones is a sequel to last term’s blockbuster decision in United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page), where the court concluded that Mr. Soybel’s appointment to the AFCCA was invalid. Yet while the appellant in Janssen made a prompt objection to Mr. Soybel’s participation in the CCA’s review of his case, the appellant in Jones did not raise the issue at the CCA. This failure to object led CAAF to grant review of a single issue in Jones:

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).

Judge Stucky’s opinion is short, and he rejects the Government’s two main arguments with just a handful of sentences.

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Audio of yesterday’s oral arguments is available at the following links:

United States v. Newton, No. 14-0415/AR (CAAFlog case page): Oral argument audio.

United States v. Jones, No. 14-0057/AF (CAAFlog case page): Oral argument audio.

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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In the Air Force case of United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page), a unanimous CAAF found that Congress did not give the Secretary of Defense the authority to appoint a civilian as an appellate military judge, and 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 Soybel twice participated in the AFCCA’s review of Janssen, prompting the appeal to CAAF.

Writing for the court, Judge Stucky considered the possibility of saving the CCA’s action on the case by application of the de facto officer doctrine. This 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).

After CAAF granted review in Janssen on December 19, 2013, the court granted review in numerous trailers (my notes show eight: Jones, Grawey, Annis, Burns, Johnson, Dixon, Albright, and Peacock). CAAF’s daily journal for Friday, June 27, shows action in two of those cases. In one, CAAF summarily reverses in light of Janssen:

No. 13-0531/AF. U.S. v. Matthew B. ALBRIGHT. CCA 37961. Upon further consideration of the granted issue, 73 M.J. 193 (C.A.A.F. Jan. 2, 2014), and in light of United States v. Janssen, 73 M.J. 221 (C.A.A.F. 2014), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is reversed.  The record is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (2012), before a properly constituted panel of that court.

But in the other, CAAF does something very different:

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.

Presumably the appellant in Jones was late in challenging the appointment. Whether that matters remains to be seen.

On the heels of CAAF’s grant of the AFCCA’s Appointments Clause issue in Janssen (CAAFlog case page), on December 19, and its order for expedited briefing, the court granted review of the composition of the AFCCA panel in six more cases on December 23:

No. 14-0057/AF. U.S. v. William R. JONES. CCA 38028
No. 14-0060/AF. U.S. v. Jeremy J. GRAWEY. CCA S32029
No. 14-0125/AF. U.S. v. Danny L. ANNIS. CCA 38001
No. 14-0138/AF. U.S. v. Danny M. BURNS. CCA 37847
No. 14-0156/AF. U.S. v. Devon P. JOHNSON. CCA S32047
No. 14-0157/AF. U.S. v. Alphonso K. DIXON. CCA S32061

CAAF ordered no briefs to be filed.

CAAF also granted review of what looks to be a trailer to Winckelmann (CAAFlog case page):

No. 14-0044/AF.  U.S. v. Morgan A. WINN.  CCA 37772.  Review granted on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FAILING TO ORDER A REHEARING ON SENTENCE.

No briefs will be filed under Rule 25.

The AFCCA decided Winn on May 15, 2013, (link to slip op.), setting aside Appellant’s convictions for indecent acts and indecent exposure, in violation of Article 134, due to factual insufficiency. The court affirmed only Appellant’s conviction for knowingly transferring obscene materials to a the 13-year-old girl, in violation of Article 134 and 18 U.S.C. § 1470. The CCA then reassessed the sentence, adjudged by members, of confinement for 12 months, total forfeitures, reduction to the grade of E-1, and a bad-conduct discharge, and approved the sentence in whole.