Supreme Court Review 2017/2018 TERM
TUESDAY, JANUARY 23, 2018
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Issue:  10 U.S.C. § 973(b)(2)(A)(ii)
Consolidated With:  Cox v. United States
Ortiz v. United States

Dalmazzi v. United States

16-961

QUESTION(S) PRESENTED

Since shortly after the Civil War, federal law has required express authorization from Congress before active-duty military officers may hold a “civil office,” including positions that require “an appointment by the President by and with the advice and consent of the Senate.” 10 U.S.C. § 973(b)(2)(A)(ii).

After President Obama nominated and the Senate confirmed Colonel Martin T. Mitchell as a judge of the Article I U.S. Court of Military Commission Review (CMCR), Judge Mitchell continued to serve on the U.S. Air Force Court of Criminal Appeals (AFCCA). The U.S. Court of Appeals for the Armed Forces (CAAF) rejected as moot Petitioner’s challenge to Judge Mitchell’s continued service on the AFCCA, because his CMCR commission had not been signed until after the AFCCA decided her case on the merits—even though she moved for reconsideration after the commission was signed.

The Questions Presented are:

1. Whether the Court of Appeals erred in holding that Petitioner’s claims were moot.

2. Whether Judge Mitchell’s service on the CMCR disqualified him from continuing to serve on the AFCCA under 10 U.S.C. § 973(b)(2)(A)(ii).

3. Whether Judge Mitchell’s simultaneous service on both the CMCR and the AFCCA violated the Appointments Clause.

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).

DECISION

Awaiting Oral Arguments

PROCEEDING BELOW

United States Court of Appeals for the Armed Forces
Decided December 15, 2016
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RELATED CASES

CASE NAME ISSUE DATE OF DECISION (if decided)
Cox v. United States 10 U.S.C. § 973(b)(2)(A)(ii) Not Yet Decided
Ortiz v. United States 10 U.S.C. § 973(b)(2)(A)(ii) Not Yet Decided