United States v. Ortiz , 76 M.J. 189 ( 2017 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Keanu D. W. ORTIZ, Airman First Class
United States Air Force, Appellant
No. 16-0671
Crim. App. No. 38839
Argued February 7, 2017—Decided April 17, 2017
Military Judge: L. Martin Powell
For Appellant: Major Lauren A. Shure (argued); Major
Johnathan D. Legg and Brian L. Mizer, Esq. (on brief).
For Appellee: Major G. Matt Osborn (argued); Colonel
Katherine E. Oler and Gerald R. Bruce, Esq. (on brief).
Amici Curiae for Appellee: Colonel Mark H. Sydenham,
Lieutenant Colonel A. G. Courie III, and Major Anne C.
Hsieh (on brief)—for Army Government Appellate Divi-
sion. Colonel Valerie C. Danyluk, USMC, Lieutenant
Commander Justin C. Henderson, JAGC, USN, Lieuten-
ant James M. Belforti, JAGC, USN, and Brian K. Keller,
Esq. (on brief)—for Navy-Marine Corps Appellate Gov-
ernment Division.
Amicus Curiae in Support of Neither Party: Philip Sundel,
Esq. (argued); Brigadier General John G. Baker, USMC,
and Captain Brent G. Filbert, JAGC, USN (on brief)—for
Military Commissions Defense Organization.
Judge STUCKY delivered the opinion of the Court, in
which Chief Judge ERDMANN, and Judges RYAN,
OHLSON, and SPARKS, joined.
_______________
Judge STUCKY delivered the opinion of the Court.
While he was serving as a judge on the United States
Court of Military Commission Review (USCMCR), under an
appointment by the President with the advice and consent of
the Senate, Colonel Martin T. Mitchell simultaneously
served as an appellate military judge on the panel of the
United States Air Force Court of Criminal Appeals (CCA)
United States v. Ortiz, No. 16-0671/AF
Opinion of the Court
that reviewed Appellant’s case. We granted review of two
issues: (1) whether his simultaneous service on the two
courts violated the Appointments Clause of the Constitution;
and (2) whether he was statutorily barred from sitting on
the CCA. We specified an additional issue, asking whether
Colonel Mitchell’s appointment to the USCMCR made him a
principal officer in light of 10 U.S.C. § 949b(4)(C), (D) (2012),
which authorize the Secretary of Defense to reassign or
withdraw appellate military judges from the USCMCR.
We hold that Appellant is not entitled to relief because
the applicable statute, 10 U.S.C. § 973(b) (2012), does not by
its terms terminate Colonel Mitchell’s position as an appel-
late military judge on the CCA, and because, in any event,
the statute saves Colonel Mitchell’s actions in Appellant’s
case. We further hold that Colonel Mitchell’s status as re-
gards the CCA does not violate the Constitution’s Appoint-
ments Clause. U.S. Const. art. II, § 2, cl. 2. In light of these
holdings, we need not answer the specified issue.
I. Procedural History
A military judge sitting alone convicted Appellant, con-
sistent with his pleas, of knowingly and wrongfully viewing,
possessing, and distributing child pornography. Article 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934
(2012). The convening authority approved the adjudged sen-
tence: a dishonorable discharge, confinement for two years,
forfeiture of all pay and allowances, and reduction to the
grade of E-1. The CCA affirmed in a summary disposition.
United States v. Ortiz, No. 38839, 2016 CCA LEXIS 337,
2016 WL 3681307 (A.F. Ct. Crim. App. June 1, 2016).
II. Background
In the Military Commissions Act of 2009, Pub.
L. No. 111-84, div. A., tit. XVIII, § 1802, 123 Stat.
2190, 2603 (2009), Congress established the United
States Court of Military Commission Review
(USCMCR). 10 U.S.C. § 950f(a) (2012). As amended
in 2011, Pub. L. No. 112-81, § 1034(c), 125 Stat.
1573 (2011), the USCMCR was to consist of “one or
more panels, each composed of not less than three
judges on the Court.” 10 U.S.C. § 950f(a) (2012).
The Secretary of Defense was authorized to “assign
persons who are appellate military judges” to the
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USCMCR as “judges.” § 950f(b)(2) [(emphasis add-
ed)]. The President was authorized to “appoint, by
and with the advice and consent of the Senate, ad-
ditional judges to the [USCMCR] [(immediately
preceding bracketed interpolation in original)].”
§ 950f(b)(3) [(emphasis added)].
In June 2013, the Judge Advocate General of
the Air Force detailed Lieutenant Colonel Martin
T. Mitchell to serve as an appellate military judge
on the CCA. Judge Mitchell was promoted to the
rank of colonel in June 2014. The Secretary of De-
fense assigned Colonel Mitchell to be a judge on the
USCMCR on October 28, 2014.
In In re Al-Nashiri, the U.S. Court of Appeals
for the District of Columbia Circuit, while not de-
ciding the question, expressed concern over wheth-
er judges on the USCMCR were principal officers,
in which case the assignment of appellate military
judges to that position by the Secretary of Defense
would violate the Appointments Clause of the Con-
stitution. 791 F.3d 71, 82 (D.C. Cir. 2015) (citing
U.S. Const. art. II, § 2, cl. 2). In a rather surprising
aside, the court suggested that “the President and
the Senate could decide to put to rest any Appoint-
ments Clause questions regarding the [US]CMCR’s
military judges by … re-nominating and re-
confirming the military judges to be [US]CMCR
judges.” Id. at 86[ (interpolations and emphasis in
original)].
Apparently in response to In re al-Nashiri, the
President nominated Colonel Mitchell for appoint-
ment as an appellate military judge on the
USCMCR. [(Emphasis added.)] The Senate received
the President’s nomination on March 14, 2016. 162
Cong. Rec. S1474 (daily ed. Mar. 14, 2016). The
Senate gave its advice and consent to the appoint-
ment of Martin T. Mitchell as colonel on April 28,
2016. 162 Cong. Rec. S2600 (daily ed. Apr. 28,
2016). Colonel Mitchell took the oath of office of
“Appellate Judge” of the USCMCR on May 2, 2016.
On May 25, 2016, President Obama signed Colonel
Mitchell’s commission appointing him to be “an
Appellate Military Judge of the United States
Court of Military Commission Review.”
United States v. Dalmazzi, 76 M.J. 1, 2 (C.A.A.F. 2016).
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Judge Mitchell was one of three appellate military judges
to participate in the Article 66(c), UCMJ, 10 U.S.C. § 866(c)
(2012), review of Appellant’s case. Unlike in Dalmazzi, how-
ever, the CCA’s opinion in Appellant’s case was issued after
the President appointed Colonel Mitchell to the USCMCR,
and so the issues are not moot. See 76 M.J. at 3.
III. Statutory Issue
The first assigned issue is:
Whether United States Court of Military Commis-
sion Review Judge, Martin T. Mitchell, is statutori-
ly authorized to sit as one of the Air Force Court of
Criminal Appeals judges on the panel that decided
Appellant’s case.
Appellant contends that the position of judge on the
USCMCR is a civil office, that by accepting such a position
Colonel Mitchell’s commission as a regular Air Force officer
was terminated as a matter of law, and that the UCMJ does
not authorize the Judge Advocates General to assign as
judges to the Courts of Criminal Appeals those who have
been appointed as judges of the USCMCR.
A regular officer of an armed force on the active duty list
may not, “[e]xcept as otherwise authorized by law, … hold,
or exercise the functions of, a civil office in the Government
of the United States … (ii) that requires an appointment by
the President by and with the advice and consent of the
Senate.” 10 U.S.C. § 973(b)(2)(A) (2012).
From its enactment in 1870, the statute provided that
“any such officer accepting or exercising the functions of a
civil office shall at once cease to be an officer of the army,
and his commission shall be vacated thereby.” Act of July 15,
1870, ch. 294, § 18, 16 Stat. 319. See also R.S. tit. xiv, ch. 1,
§ 1222 (2d ed. 1878). That statute was replaced in 1968,
with one that stated the “acceptance of such a civil office or
the exercise of its functions by such an officer terminated his
military appointment.” Pub. L. No. 90-235, § 4, 81 Stat. 753,
759 (1968). The statute was substantially amended in 1983.
Pub. L. No. 98-94, tit. X, pt. A, § 1002, 97 Stat. 614, 655
(1983). The language automatically terminating the officer’s
military appointment was repealed and a savings clause was
added: “Nothing in this subsection shall be construed to in-
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validate any action undertaken by an officer in furtherance
of assigned official duties.” 10 U.S.C. § 973(b)(5). However,
the fundamental prohibition on the holding of a civil office
was retained. 10 U.S.C. § 973(b)(2)(A).
We decide questions of statutory construction de novo.
United States v. Schloff, 74 M.J. 312, 313 (C.A.A.F. 2015).
From the earliest times, we have held to the “plain meaning”
method of statutory interpretation. Under that method, if a
statute is unambiguous, the plain meaning of the words will
control, so long as that meaning does not lead to an absurd
result. United States v. Kearns, 73 M.J. 177, 181 (C.A.A.F.
2014); United States v. King, 71 M.J. 50, 52 (C.A.A.F. 2012);
United States v. Graham, 16 M.J. 460, 462–66 (C.M.A.
1983); United States v. Dickerson, 6 C.M.A. 438, 449–
50,20 C.M.R. 154, 165–66 (1955). The essential question un-
derlying the first assigned issue is whether Judge Mitchell’s
appointment to the USCMCR terminated his military com-
mission and thereby nullified his participation in any case at
the CCA. We hold that it did not.
The 1983 amendments to the statute were occasioned by
an opinion of the Justice Department’s Office of Legal Coun-
sel, which opined that the longstanding practice of appoint-
ing military judge advocates as Special Assistant U.S. At-
torneys violated § 973. 1
While there is much that is unsettled about this situa-
tion, the aim of the statute is clear. The evil sought to be
protected against is the unauthorized holding of civil office
by officers of the armed forces on active duty, which is
thought to threaten “civilian supremacy in the conduct of
governmental affairs.” S. Rep. No. 98-174, at 232 (1983), as
reprinted in 1983 U.S.C.C.A.N. 1081, 1122. Thus, the prohi-
bitions in the statute are aimed at the holding of “civil office”
(here, civil office requiring presidential appointment with
Senate advice and consent) rather than the performance of
assigned military duty. Section 973 might prohibit Judge
1 The report language on the provision does not go beyond that
situation. S. Rep. No. 98-174, at 232–34 (1983), as reprinted in
1983 U.S.C.C.A.N. 1081, 1122–24. However, in view of the unam-
biguous nature of the statutory language, resort to legislative his-
tory is unnecessary.
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Mitchell from holding office at the USCMCR—a question
that is not before us—but nothing in the text suggests that it
prohibits Judge Mitchell from carrying out his assigned mil-
itary duties at the CCA. The wording of the savings clause
at subsection (b)(5), “Nothing in this subsection shall be con-
strued to invalidate any action taken by an officer in fur-
therance of assigned official duties” comports with this in-
terpretation, and applies by its terms to Judge Mitchell’s
assigned official duties at the CCA.
Contrary to Appellant’s argument, the current statute
neither requires the retirement or discharge of a service
member who occupies a prohibited civil office, nor operates
to automatically effectuate such termination. The language
supporting Appellant’s argument was expressly repealed
over thirty years ago. Accordingly, Judge Mitchell’s military
commission, and therefore, his service on the CCA, was un-
affected by his appointment to the USCMCR.
IV. Appointments Clause
The second assigned issue is as follows:
Whether Judge Martin T. Mitchell’s service on both
the Air Force Court of Criminal Appeals and the
United States Court of Military Commission Re-
view violates the Appointments Clause given his
status as a principal officer of the United States
Court of Military Commission Review.
The Appointments Clause of the Constitution provides
that the President:
shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint … all other Of-
ficers of the United States, whose Appointments
are not herein otherwise provided for, and which
shall be established by Law: but the Congress may
by Law vest the Appointment of such inferior Offic-
ers, as they think proper, in the President alone, in
the Courts of Law, or in the Heads of Depart-
ments.”
U.S. Const. art. II, § 2, cl. 2.
Appellant alleges that Congress intended to establish the
USCMCR as an independent Article I court and protected its
judges from removal other than for cause. He then argues
that assigning a principal officer appointed to the USCMCR
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with advice and consent to a CCA with inferior officers vio-
lates the Appointments Clause. This is because mixing prin-
cipal and inferior officers on a CCA allows the Judge Advo-
cates General to “exercise an indirect veto” over the
principal officers on the CCA. The CCA, according to this
argument, can be “packed” by the assignment of military of-
ficers and the appointment of a chief judge. 2 Article 66, as-
serts Appellant, “is being implemented in a way that puts
military officers, and by extension the Judge Advocate Gen-
eral, in the position to exercise a formal supervisory authori-
ty over the lone principal officer on the CCA.”
The problem with this argument is that it presumes that
Colonel Mitchell’s status as a principal officer on the
USCMCR somehow carries over to the CCA, and invests him
with authority or status not held by ordinary CCA judges.
That is not the case. One is a principal or an inferior officer
by virtue of appointment and exercise of the duties of the
office. When Colonel Mitchell sits as a CCA judge, he is no
different from any other CCA judge under Article 66. The
Judge Advocate General’s administrative supervision of the
CCA is limited even as to the CCA, see Edmond v. United
States, 520 U.S. 651, 664 (1997), and has no authority or ef-
fect on the judicial or administrative functions of the
USCMCR. The scheme devised by Congress and the Execu-
tive is not illogical in a situation in which service as a
USCMCR judge is perforce a part-time activity. See In re
Khadr, 823 F.3d 92, 96 (D.C. Cir. 2016) (stating that the
USCMCR “is an unusual court in that its caseload depends
on the number of military commission proceedings appealed
to it. At any given time, therefore, the Court’s judges may
have very little to do”). Just as military officers on active du-
2 The brief asserts that, unless appointed by the President
with advice and consent, CCA judges must be military officers. It
cites United States v. Janssen, 73 M.J. 221, 225 (C.A.A.F. 2014)
for that proposition. That is not what Janssen held. The case held
that civilians appointed to the CCAs must be appointed in one of
the methods set out in the Appointments Clause for inferior offic-
ers. In the case of the appointment at issue in Janssen, there was
no statutory authority for such appointment. The lack of such au-
thority was the reason for requiring the default method of presi-
dential appointment with advice and consent to be used.
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ty hold three- and four-star ranks only while assigned to bil-
lets carrying those ranks, see 10 U.S.C. § 601 (2012), so
Colonel Mitchell and the others similarly placed enjoy the
perquisites of office only while exercising the functions of the
office. We see no Appointments Clause problem from the
point of view of Colonel Mitchell’s exercising the functions of
an appellate military judge under Article 66.
It is important to note what we need not and do not de-
cide here. First, we decide no statutory issue beyond that set
out above. We do not decide whether the USCMCR is a pro-
hibited civil office or whether it is “authorized by law” ac-
cording to § 973. On the statutory issue, we simply hold that
§ 973 does not operate to invalidate the actions military of-
ficers appointed to civil office take in furtherance of their
military duties or to require the retirement or discharge of
these officers. The prohibition in § 973(b)(2)(A)(ii) may in-
deed affect Colonel Mitchell’s status as a judge of the
USCMCR, but that is not for us to decide.
Second, we decide no issue under the Constitution’s Ap-
pointments Clause beyond that treated above. We intimate
no opinion as to the jurisdiction, functions, or operation of
the USCMCR, or Colonel Mitchell’s membership on it. By
virtue of his presidential appointment to the USCMCR,
Colonel Mitchell may well be a principal officer; certainly,
the Executive’s response to al-Nashiri would seem to indi-
cate an executive intent to treat these appointees as princi-
pal officers, but that is a question for another day, as are
any Appointments Clause questions pertaining to the
USCMCR in its earlier incarnation.
Finally, we need not decide the specified issue, which
again goes to Colonel Mitchell’s status as a principal officer
vel non on the USCMCR.
V. Judgment
The judgment of the United States Air Force Court of
Criminal Appeals is affirmed.
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