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.
• 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