Disclosure: In my personal capacity I represent an appellant whose case is before CAAF with issues similar to those raised in this case.

CAAF will hear oral argument in the Air Force case of United States v. Dalmazzi, No. 16-0651/AF (CAAFlog case page), on Wednesday, December 7, 2016, after the oral argument in Boyce. While the case presents two issues challenging the participation of Colonel Martin T. Mitchell in the Air Force CCA’s review of the case – and similar issues have been granted review in 52 trailer cases – CAAF will instead hear oral argument on an issue it specified that questions whether the granted issues are moot:

Specified Issue: Whether the issues granted for review are moot where the record reflects that: Martin T. Mitchell took an oath purporting to install him as a judge of the U.S. Court of Military Commission Review (CMCR) on May 2, 2016; the Air Force Court of Criminal Appeals (AFCCA) issued an opinion in the underlying case with Judge Mitchell participating in his capacity as an AFCCA judge on May 12, 2016; and the President did not appoint Mitchell to the CMCR until May 25, 2016.

Granted Issue I: Whether United States Court of Military Commission Review Judge, Martin T. Mitchell, is statutorily authorized to sit as one of the Air Force Court of Criminal Appeals judges on the panel that decided Appellant’s case.

Granted Issue II: Whether Judge Martin T. Mitchell’s service on both the Air Force Court of Criminal Appeals and the United States Court of Military Commission Review violates the Appointments Clause given his status as a superior officer on the United States Court of Military Commission Review.

The Military Commissions Act of 2009 abolished the United States Court of Military Commission Review (CMCR) as an agency review board under the supervision of the Secretary of Defense and established a new CMCR as an independent Article I court of record. See 10 U.S.C. § 950f(a). Judges are appointed to the CMCR by the President through the formal mechanism of the Appointments Clause. 10 U.S.C. §950f(b)(3). However, the Secretary of Defense may also assign “commissioned officers of armed forces” to serve as appellate judges on the CMCR. 10 U.S.C. § 950f(b)(2).

The Secretary of Defense assigned Air Force Colonel Martin T. Mitchell to the CMCR on October 20, 2014, and he was sworn in on October 28, 2014. App. Br. on granted issues at 2. In 2015, however, in a decision on a petition for extraordinary relief that challenged the assignment of officers like Colonel Mitchell to the CMCR, the U.S. Court of Appeals for the District of Columbia Circuit suggested that any queston about the status of such assigned judges could be resolved by their nomination and confirmation by the President. In re Al-Nashiri, 791 F.3d 71, 86 (D.C. Cir. 2015). Soon afterward, on March 14, 2016, the President nominated Colonel Mitchell to be a judge on the CMCR. Other military officers who were similarly nominated include: Captain Donald C. King, U.S. Navy; Colonel Larss G. Celtnieks, U.S. Army; Colonel James W. Herring, U.S. Army; and Lieutenant Colonel Paulette V. Burton, U.S. Army. 162 CONG. REC. S 1473-74 (daily ed. Mar. 14, 2016).

These appointments are the basis for the challenges in Dalmazzi and dozens of trailer cases. But, as shown in the specified issue, there’s a matter of timing:

  • March 14, 2016: Colonel Mitchell nominated by POTUS.
  • April 28, 2016: Senate confirmation.
  • May 2, 2016: Judge Mitchell takes judicial oath as CMCR judge.
  • Mary 12, 2016: AFCCA decision in Dalmazzi.
  • May 18, 2016: Judge Mitchell authors order lifiting stay in Al-Nashiri and affirming prior rulings.
  • May 25, 2016: President and Secretary of Defense sign Judge Mitchell’s commission.

Dalmazzi’s brief on the specified issue points to Judge Mitchell’s judicial acts prior to the President signing his commission and concludes that:

for purposes of this case, by the time he took the judicial oath on May 2, 2016 and began “exercise[ing] the functions of” his new civil office, see 10 U.S.C. § 973(b)(1)(C)(2)(A), such conduct being recognized by the Executive Branch as appropriate and authoritative based on its actions in the Al-Nashiri case, the appointment of Judge Mitchell was consummated.

The issues granted, therefore, are not mooted by the President’s later delivery of Judge Mitchell’s judicial commission, because the commission is merely evidence of his prior appointment. As mootness is not ultimately a barrier to this Honorable Court reaching the merits, it should not hesitate “to say what the law is” with respect to the granted issues. See Marbury, 5 U.S. at 177.

App. Br. on specified issue at 8.

The Government’s response doesn’t address the oath or judicial acts, instead focusing on the actions of the President:

In this case, the only evidence of any act by the President to actually appoint Colonel Mitchell to the C.M.C.R. after the Senate’s confirmation of Colonel Mitchell’s nomination is the Certificate of Appointment signed by the President on 25 May 2016. The record is devoid of any evidence that the President exercised his constitutional power of appointment by performing a “public act,” an “open, unequivocal act,” or any other such action to actually effectuate Colonel Mitchell’s appointment prior to his signature on the Certificate of Appointment on 25 May 2016.

Thus, when AFCCA issued its decision in Appellant’s case on 12 May 2016, Colonel Mitchell was not yet appointed as a C.M.C.R. appellate military judge. While Colonel Mitchell had been nominated by the President and confirmed by the Senate to be an appointed appellate military judge on the C.M.C.R. by the time AFCCA issued its decision on 12 May 2016, the President had not yet actually appointed him as a C.M.C.R. appellate military judge. That appointment would not come until 13 days later on 25 May 2016.

Gov’t Br. on specified issue at 6-7.

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

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