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Cox v. United States

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Supreme Court of the United States
Cox v. United States
Term: 2017
Important Dates
Argument: January 16, 2018
Decided: June 22, 2018
Outcome
Dismissed as improvidently granted


Cox v. United States is a case argued during the October 2017 term of the U.S. Supreme Court. Argument in the cases was held on January 16, 2018. The case came on a writ of certiorari to the United States Court of Appeals for the Armed Forces. The court consolidated arguments in the case with arguments in Cox v. United States and Ortiz v. United States.

The issue in this case was whether a judge's service on the United States Court of Military Commission Review disqualifies the judge from also serving on the Air Force Court of Criminal Appeals. The court also considered whether the petitioners' claims were moot and whether the court had jurisdiction to hear the case.

HIGHLIGHTS
  • The case: Petitioners, members of the military who were convicted of crimes by a military judge, challenged their convictions on the grounds that at least one of the judges on the panels that heard each respective appeal was also a judge on the United States Court of Military Commission Review and should have been disqualified.
  • The issue: Does service on the U.S. Court of Military Commission Review disqualify a judge from also serving on the Air Force Court of Criminal Appeals?
  • The outcome: The Supreme Court dismissed Cox's appeal as improvidently granted, which allowed the decision of the lower court to stand.[1] In Ortiz v. United States, a case consolidated with Cox's case, the Supreme Court affirmed the ruling of the United States Court of Appeals for the Armed Forces on a vote of 7 - 2.[2]


    • In brief: The petitioners, all members of the military, appealed their criminal convictions to the United States Air Force Court of Criminal Appeals (CCA). In each case, the CCA affirmed or declined to reconsider the conviction, and each petitioner subsequently appealed to the United States Court of Appeals for the Armed Forces (CAAF). In each case, at least one member of the CCA panel that heard the appeal was also a judge on the United States Court of Military Commission Review (USCMCR). Petitioners argued that the judges' simultaneous service on the USCMCR should have disqualified them from serving as a CCA judge. The issue on appeal was whether simultaneous service on the CCA by a United States Court of Military Commission Review (USCMCR) judge violates the long-held rule that active-duty military officers may not hold civilian posts without express approval.

    You can review the lower court's opinion here.[3]

    Background

    Legal question

    This was a case about the appointment of judges to military appellate courts when they are also serving on the United States Court of Military Commission Review (CMCR). The CMCR is composed of both military and civilian judges and has appellate jurisdiction over all appeals from United States Military courts with regard to military commission cases. Generally, active-duty military officers are barred from simultaneously holding a civilian post without express approval by Congress. The issue in this case was whether service on the CMCR, a civilian post, means that a CMCR judge cannot simultaneously serve as a member of the military on a military court.[3]

    Case background

    Six members of the military who were convicted of criminal offenses filed this appeal. All six appealed their convictions to the CCA, and in each case, at least one of the judges on the CCA panel was simultaneously serving as a judge on the United States Court of Military Commission Review (USCMCR)[3] Their convictions were either affirmed by the CCA or their petitions for reconsideration were denied by the CCA, and each petitioner then appealed to the United States Court of Appeals for the Armed Forces (CAAF). Each argued that the judges on the CCA panels who were simultaneously serving as judges on the USCMCR should have been disqualified from CCA service. At the time of petitioners' hearings, the CCA judges who were also serving as USCMCR judges had been confirmed to the CCA but had not yet received their commissions from the president.[3]

    Panel opinion

    These cases arose after the CAAF issued an opinion in Dalmazzi v. United States, a case that the United States Supreme Court consolidated with this case and with Ortiz v. United States. In this case, the CAAF dismissed the petitioners' appeals by relying on its opinion in Dalmazzi. In Dalmazzi, the court ruled that Second Lieutenant Nicole Dalmazzi's claim was moot because the USCMCR judge who sat on the CAA panel deciding Dalmazzi's case, Colonel Martin T. Mitchell, had not yet received his commission. The CAAF noted that the CCA's ruling upholding Dalmazzi's conviction was issued "ten days after Colonel Mitchell took the oath of office as a USCMCR appellate judge but two weeks before the President signed his commission." Without a signed commission, the court said, "the President is free to change his mind and not make the appointment; afterwards, he is not."[4] The court wrote:

    “ 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. 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. As Colonel Mitchell had not yet been appointed a judge of the USCMCR at the time the judgment in Appellant’s case was released, the case is moot as to these issues.[3][5] ”

    Relying on the holding in Dalmazzi, the court denied petitioners' claims.[3]

    Petitioner's challenge

    The petitioners challenged the holding of the United States Court of Appeals for the Armed Forces. They argued that their claims were not moot and that the service of USCMCR judges on the CCA panels that heard their appeals should render the CCA's rulings void.[6]

    Certiorari granted

    On February 21, 2017, the petitioners initiated proceedings in the Supreme Court of the United States in filing a petition for a writ of certiorari to the United States Court of Appeals for the Armed Forces. The U.S. Supreme Court granted petitioners' request for certiorari on September 28, 2017, consolidating arguments in the case with arguments in Dalmazzi v. United States and Ortiz v. United States. Argument in the case was held on January 16, 2018.[6]

    Question presented

    Question presented:

    "1. Whether the Court of Appeals erred in holding that Petitioners' claims were moot. 2. Whether these judges' service on the CMCR disqualified them from continuing to serve on the CCAs under 10 U.S.C. § 973(b)(2)(A)(ii). 3. Whether the judges' simultaneous service on both the CMCR and the AFCCA violated the Appointments Clause.

    CONSOLIDATED WITH 16-961 AND 16-1423 FOR ONE HOUR ORAL ARGUMENT. IN ADDITION TO THE QUESTIONS PRESENTED BY THE PETITIONS, THE PARTIES ARE DIRECTED TO BRIEF AND ARGUE THE FOLLOWING QUESTION: WHETHER THIS COURT HAS JURISDICTION TO REVIEW THE CASES IN NOS. 16- 961 AND 16-1017 UNDER 28 U. S. C. § 1259(3)."[6]

    Audio

    • Audio of oral argument:[7]



    Transcript

    • Transcript of oral argument:[8]

    Outcome

    Decision

    The Supreme Court issued a one-sentence per curiam opinion in Cox's case, dismissing the appeal as improvidently granted. Because the appeal was dismissed, the lower court's ruling stands.[1]

    In one of the cases consolidated with Cox's case, Ortiz v. United States, the Supreme Court affirmed the ruling of the United States Court of Appeals for the Armed Forces on a 7 - 2 vote.[2] The Ortiz opinion is discussed below.

    Majority opinion

    Justice Elena Kagan wrote the opinion for the Ortiz majority, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor.[2]

    Kagan first addressed an issue that neither party had raised: whether the court had jurisdiction to rule on appeals from the United States Court of Appeals for the Armed Forces (CAAF), since that court was created by Congress via Article I of the United States Constitution and is not an Article III court. Kagan and the majority concluded that the Supreme Court did have jurisdiction to hear CAAF appeals. Kagan wrote, "Congress has explicitly authorized us to undertake such review in 28 U. S. C. §1259." The majority's analysis of that question, Kagan continued, "leads us to conclude that the judicial character and constitutional pedigree of the court-martial system enable this Court, in exercising appellate jurisdiction, to review the decisions of the court sitting at its apex." Moreover, she said, "we have routinely, and uncontroversially, exercised appellate jurisdiction over cases adjudicated in the non-Article III District of Columbia courts."[2]

    Kagan then turned to the issue on appeal: whether Judge Mitchell was permitted to simultaneously serve as a USCMCR judge and a CCA judge. Kagan concluded that neither federal law nor the Appointments Clause prohibited the simultaneous service. First, she wrote, federal law expressly permitted the Secretary of Defense to appoint Mitchell as a judge CMCR.

    “ The authorization in §950f(b)(2) was the only thing necessary to exempt Judge Mitchell from the civil office holding ban—not just before but also after his presidential appointment. That provision, as just noted, unambiguously permitted the Secretary of Defense to place Judge Mitchell on the CMCR, even if such a judgeship is a 'civil office. And once that happened, the President’s later appointment of Judge Mitchell made not a whit of difference. Nothing in §950f (or any other law) suggests that the President’s appointment erased or otherwise negated the Secretary’s earlier action. To the contrary, that appointment (made for purposes of protecting against a constitutional challenge, see supra, at 3) merely ratified what the Secretary had already done.[2][5] ”


    Kagan then rejected the plaintiffs' contention that Mitchell's simultaneous service violated the Appointments Clause:

    “ This Court has never read the Appointments Clause to impose rules about dual service, separate and distinct from methods of appointment. Nor has it ever recognized principles of 'incongruity' or 'incompatibility' to test the permissibility of holding two offices. As Ortiz himself acknowledges, he can cite no authority holding that the Appointments Clause prohibits this sort of simultaneous service.


    And if we were ever to apply the Clause to dual officeholding, we would not start here. Ortiz tells no plausible story about how Judge Mitchell’s service on the CMCR would result in 'undue influence' on his CCA colleagues. The CMCR does not review the CCA’s decisions (or vice versa); indeed, the two courts do not have any overlapping jurisdiction. They are parts of separate judicial systems, adjudicating different kinds of charges against different kinds of defendants. We cannot imagine that anyone on the CCA acceded to Judge Mitchell’s views because he also sat on the CMCR—any more than we can imagine a judge on an Article III Court of Appeals yielding to a colleague because she did double duty on the Foreign Intelligence Surveillance Court of Review (another specialized court).[2][9][5]

    		”


    For those reasons, Kagan concluded, "There is no violation of the Appointments Clause."Cite error: The opening <ref> tag is malformed or has a bad name

    Concurrence by Justice Thomas

    Justice Clarence Thomas joined the majority's ruling and also wrote separately. Thomas wrote to emphasize his understanding of why the court had jurisdiction over CAAF appeals.

    “ I join the Court’s opinion in full, which persuasively explains why petitioner’s statutory and constitutional arguments lack merit. I also agree that the statute giving this Court appellate jurisdiction to review the decisions of the Court of Appeals for the Armed Forces (CAAF), 28 U. S. C. §1259, complies with Article III of the Constitution. I write separately to explain why that conclusion is consistent with the Founders’ understanding of judicial power—specifically, the distinction they drew between public and private rights . . . Because the CAAF exercises a judicial power, the statute giving this Court appellate jurisdiction over its decisions does not violate Article III.[2][10][5] ”


    Dissent by Justice Alito

    Justice Samuel Alito dissented from the court's ruling, joined by Justice Neil Gorsuch. Alito would have held that the court did not jurisdiction to hear CAAF appeals.

    “ Our appellate jurisdiction permits us to review one thing: the lawful exercise of judicial power. Lower federal courts exercise the judicial power of the United States. State courts exercise the judicial power of sovereign state governments. Even territorial courts, we have held, exercise the judicial power of the territorial governments set up by Congress. Executive Branch officers, on the other hand, cannot lawfully exercise the judicial power of any sovereign, no matter how court-like their decisionmaking process might appear. That means their decisions cannot be appealed directly to our Court . . . Courts-martial are older than the Republic and have always been understood to be Executive Branch entities that help the President, as Commander in Chief, to discipline the Armed Forces. As currently constituted, military tribunals do not comply with Article III, and thus they cannot exercise the Federal Government’s judicial power. That fact compels us to dismiss Ortiz’s petition for lack of jurisdiction.[2][5] ”


    Text of the opinions

    See also

    Footnotes

    1. ↑ 1.0 1.1 United States Supreme Court, "Cox v. United States Opinion, June 22, 2018
    2. ↑ 2.0 2.1 2.2 2.3 2.4 2.5 2.6 2.7 United States Supreme Court, "Ortiz v. United States Opinion," June 22, 2018
    3. ↑ 3.0 3.1 3.2 3.3 3.4 3.5 Cox v. United States, January 17, 2017
    4. ↑ U.S. Court of Appeals for the Armed Forces, United States of America v. Dalmazzi, December 15, 2017
    5. ↑ 5.0 5.1 5.2 5.3 5.4 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    6. ↑ 6.0 6.1 6.2 Supreme Court of the United States, Cox v. United States Question Presented, September 28, 2017
    7. ↑ Supreme Court of the United States, Cox v. United States, argued January 16, 2018
    8. ↑ 16-961 768b.pdf Supreme Court of the United States, Cox v. United States, argued January 16, 2018
    9. ↑ Quotations and citations omitted.
    10. ↑ Quotations and citations omitted.
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