Congress has explicitly authorized the United States Supreme Court to review decisions issued by United States Court of Appeals for the Armed Forces in 28 U.S.C.S. § 1259. The judicial character and constitutional pedigree of the court-martial system enable the Supreme Court, in exercising appellate jurisdiction, to review the decisions of the court sitting at its apex.
Petitioner Keanu Ortiz, an Airman First Class, was convicted by a court-martial of possessing and distributing child pornography, and he was sentenced to two years’ imprisonment and a dishonorable discharge. An Air Force Court of Criminal Appeals (CCA) panel, including Colonel Martin Mitchell, affirmed that decision. The Court of Appeals for the Armed Forces (CAAF) then granted Ortiz’s petition for review to consider whether Judge Mitchell was disqualified from serving on the CCA because he had been appointed to the Court of Military Commission Review (CMCR). The Secretary of Defense had initially put Judge Mitchell on the CMCR under his statutory authority to assign officers who are appellate military judges to serve on that court. To moot a possible constitutional problem with the assignment, the President (with the Senate’s advice and consent) also appointed Judge Mitchell to the CMCR pursuant to §950f(b)(3). Shortly thereafter, Judge Mitchell participated in Ortiz’s CCA appeal. Ortiz claimed that Judge Mitchell’s CMCR appointment barred his continued CCA service under both a statute and the Constitution. First, he argued that the appointment violated §973(b)(2)(A), which provides that unless otherwise authorized by law, an active-duty military officer may not hold, or exercise the functions of certain civil office in the federal government. Second, he argued that the Appointments Clause prohibits simultaneous service on the CMCR and the CCA. The CAAF rejected both grounds for ordering another appeal.
Did Judge Mitchell’s simultaneous service on the CCA and the CMCR violated §973(b)(2)(A) and the Appointments Clause?
The Court first established its jurisdiction to review the decision of the Court of Appeals for the Armed Forces (CAAF). According to the Court, the judicial character and constitutional pedigree of the court-martial system enable the Court, in exercising appellate jurisdiction, to review the decisions of the court sitting at its apex. Establishing its jurisdiction to review the CAAF decision, the Court held that Judge Mitchell’s simultaneous service on the CCA and the CMCR violated neither §973(b)(2)(A) nor the Appointments Clause. Ortiz argues that Judge Mitchell was not “authorized by law” to serve on the CMCR after his appointment because §950f(b)(3) makes no express reference to military officers. In the circumstances here, however, the express authorization to assign military officers to the CMCR under §950f(b)(2) was the only thing necessary to exempt Judge Mitchell from §973(b)(2)(A). The Court opined that after his appointment, Judge Mitchell served on the CMCR by virtue of both the Secretary’s assignment and the President’s appointment and because §950f(b)(2) expressly authorized the Secretary’s assignment, Judge Mitchell’s CMCR service could not run afoul of §973(b)(2)(A)’s general rule. Ortiz further argues that, under the Appointments Clause, a single judge cannot serve as an inferior officer on one court and a principal officer on another. However, the Court posited that it has never read the Appointments Clause to impose rules about dual service, separate and distinct from methods of appointment. The Court asserted that Ortiz does not show how Judge Mitchell’s CMCR service would result in “undue influence” on his CCA colleagues.