Ortiz v. United States, No. 16–1423.

CourtU.S. Supreme Court
Writing for the CourtJustice KAGAN delivered the opinion of the Court.
Citation138 S.Ct. 2165,201 L.Ed.2d 601
Parties Keanu D.W. ORTIZ, Petitioner v. UNITED STATES.
Docket NumberNo. 16–1423.
Decision Date22 June 2018

138 S.Ct. 2165
201 L.Ed.2d 601

Keanu D.W. ORTIZ, Petitioner
v.
UNITED STATES.

No. 16–1423.

Supreme Court of the United States

Argued Jan. 16, 2018.
Decided June 22, 2018.


Brian L. Mizer, Johnathan D. Legg, Lauren–Ann L. Shure, Appellate Defense Counsel, Air Force Legal Ops. Agency, MD, Eugene R. Fidell, New Haven, CT, Stephen I. Vladeck, Austin, TX, Mary J. Bradley, Christopher D. Carrier, Defense Appellate Division, Army Legal Services Agency, Fort Belvoir, VA, for Petitioners.

Noel J. Francisco, Solicitor General, Dana J. Boente, Acting Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Brian H. Fletcher, Assistant to the Solicitor General, Joseph F. Palmer, Danielle S. Tarin, Attorneys, Department of Justice, Washington, DC, for Respondent.

Justice KAGAN delivered the opinion of the Court.

This case is about the legality of a military officer serving as a judge on both an Air Force appeals court and the Court of Military Commission Review (CMCR). The petitioner, an airman convicted of crimes in the military justice system, contends that the judge's holding of dual offices violated a statute regulating military service, as well as the Constitution's Appointments Clause. The Court of Appeals for the Armed Forces (CAAF) rejected those claims, and we granted a petition for certiorari. We hold first that this Court has jurisdiction to review decisions of the CAAF, even though it is not an Article III court. We then affirm the CAAF's determination that the judge's simultaneous service was lawful.

I

In the exercise of its authority over the armed forces, Congress has long provided for specialized military courts to adjudicate charges against service members. Today, trial-level courts-martial hear cases involving a wide range of offenses, including crimes unconnected with military service; as a result, the jurisdiction of those tribunals overlaps substantially with that of state and federal courts. See Solorio v. United States, 483 U.S. 435, 436, 107 S.Ct. 2924, 97 L.Ed.2d 364 (1987) ; United States v. Kebodeaux, 570 U.S. 387, 404, 133 S.Ct. 2496, 186 L.Ed.2d 540 (2013) (ALITO, J., concurring in judgment). And courts-martial are now subject to several tiers of appellate review, thus forming part of an integrated "court-martial system" that closely resembles civilian structures of justice.

138 S.Ct. 2171

United States v. Denedo, 556 U.S. 904, 920, 129 S.Ct. 2213, 173 L.Ed.2d 1235 (2009) ; see Weiss v. United States, 510 U.S. 163, 174, 114 S.Ct. 752, 127 L.Ed.2d 1 (1994).

That system begins with the court-martial itself, an officer-led tribunal convened to determine guilt or innocence and levy appropriate punishment, up to lifetime imprisonment or execution. See 10 U.S.C. §§ 816, 818, 856a. The next phase of military justice occurs at one of four appellate courts: the Court of Criminal Appeals (CCA) for the Army, Navy–Marine Corps, Air Force, or Coast Guard. Those courts, using three-judge panels of either officers or civilians, review all decisions in which the sentence imposed involves a punitive discharge, incarceration for more than one year, or death. See §§ 866(a)-(c). Atop the court-martial system is the CAAF, a "court of record" made up of five civilian judges appointed to serve 15–year terms. § 941 ; see §§ 942(a)-(b). The CAAF must review certain weighty cases (including those in which capital punishment was imposed), and may grant petitions for review in any others. See § 867. Finally, this Court possesses statutory authority to step in afterward: Under 28 U.S.C. § 1259, we have jurisdiction to review the CAAF's decisions by writ of certiorari.

Petitioner Keanu Ortiz's case has run the gamut of this legal system. Ortiz, an Airman First Class in the Air Force, was charged with knowingly possessing and distributing child pornography, in violation of the Uniform Code of Military Justice. A court-martial found Ortiz guilty as charged and imposed a sentence of two years' imprisonment and a dishonorable discharge. On appeal, an Air Force CCA panel, including Colonel Martin Mitchell, summarily affirmed the court-martial's decision. The CAAF then granted Ortiz's petition for review to consider whether Judge Mitchell was disqualified from serving on the CCA, thus entitling Ortiz to an appellate do-over.

That issue arose from Judge Mitchell's simultaneous service on the CMCR. Congress created the CMCR as an appellate tribunal to review the decisions of military commissions, particularly those operating in Guantanamo Bay.1 The Secretary of Defense put Judge Mitchell on that court shortly after he became a member of the CCA, under a statutory provision authorizing the Secretary to "assign [officers] who are appellate military judges" to serve on the CMCR as well. 10 U.S.C. § 950f(b)(2). Around the same time, a military-commission defendant argued to the Court of Appeals for the D.C. Circuit that the Appointments Clause requires the President and Senate (rather than the Secretary) to place judges on the CMCR. The D.C. Circuit avoided resolving that issue, but suggested that the President and Senate could "put [it] to rest" by appointing the very CMCR judges whom the Secretary had previously assigned. In re al–Nashiri, 791 F.3d 71, 86 (2015). The President decided to take that advice, and nominated each of those judges—Mitchell, among them—under an adjacent statutory provision authorizing him to "appoint, by and with the advice and consent of the Senate," CMCR judges. § 950f(b)(3). The Senate then confirmed those nominations. About a month later, Judge Mitchell—now wearing his CCA robe—participated in the panel decision rejecting Ortiz's appeal.

In Ortiz's view, Judge Mitchell's appointment to the CMCR barred his continued service on the CCA under both a

138 S.Ct. 2172

statute and the Constitution. First, Ortiz invoked 10 U.S.C. § 973(b). That statute, designed to ensure civilian preeminence in government, provides that unless "otherwise authorized by law," an active-duty military officer like Judge Mitchell "may not hold, or exercise the functions of," certain "civil office[s]" in the Federal Government. § 973(b)(2)(A). According to Ortiz, a CMCR judgeship is a covered civil office, and no other law allowed the President to put Mitchell in that position: Thus, his appointment to the CMCR violated § 973(b). See Brief in Support of Petition Granted in No. 16–0671 (CAAF), pp. 17–22. And the proper remedy, Ortiz argued, was to terminate Judge Mitchell's military service effective the date of his CMCR appointment and void all his later actions as a CCA judge—including his decision on Ortiz's appeal. See ibid. Second and independently, Ortiz relied on the Appointments Clause to challenge Judge Mitchell's dual service. See id., at 27–40. The premise of his argument was that CMCR judges are "principal officers" under that Clause, whereas CCA judges (as this Court has held) are "inferior officers." Edmond v. United States, 520 U.S. 651, 666, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997). Ortiz claimed that the Appointments Clause prohibits someone serving as a principal officer on one court (the CMCR) from sitting alongside inferior officers on another court (the CCA). Because Judge Mitchell had done just that, Ortiz concluded, the CCA's ruling on his appeal could not stand.

The CAAF rejected both grounds for ordering another appeal. See 76 M.J. 189 (2017). In considering the statutory question, the court chose not to decide whether § 973(b) precluded Judge Mitchell from serving on the CMCR while an active-duty officer. Even if so, the CAAF held, the remedy for the violation would not involve terminating the judge's military service or voiding actions he took on the CCA. See id., at 192. Turning next to the constitutional issue, the CAAF "s[aw] no Appointments Clause problem." Id., at 193. Even assuming Judge Mitchell was a principal officer when sitting on the CMCR, the court held, that status in no way affected his service on the CCA: "When Colonel Mitchell sits as a CCA judge, he is no different from any other CCA judge." Ibid. The CAAF thus upheld the CCA's affirmance of Ortiz's convictions.

This Court granted Ortiz's petition for certiorari to consider whether either § 973(b) or the Appointments Clause prevents a military officer from serving, as Judge Mitchell did, on both a CCA and the CMCR. 582 U.S. ––––, 138 S.Ct. 54, 198 L.Ed.2d 780 (2017). We now affirm the decision below.2

II

We begin with a question of our own jurisdiction to review the CAAF's decisions. Congress has explicitly authorized us to undertake such review in 28 U.S.C. § 1259. See ibid. ("Decisions of the [CAAF] may be reviewed by the Supreme Court by writ of certiorari"). Both

138 S.Ct. 2173

the Federal Government and Ortiz view that grant of jurisdiction as constitutionally proper. But an amicus curiae, Professor Aditya Bamzai, argues that it goes beyond what Article III allows. That position is a new one to this Court: We have previously reviewed nine CAAF decisions without anyone objecting that we lacked the power to do so.3 Still, we think the argument is serious, and deserving of sustained consideration. That analysis 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...

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22 practice notes
  • Jackson v. Modly, No. 18-5180
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 14, 2020
    ...e.g. , 10 U.S.C. §§ 886, 890, 892. Such a court-martial can result in imprisonment, see e.g. , Ortiz v. United States , ––– U.S. ––––, 138 S. Ct. 2165, 2168, 201 L.Ed.2d 601 (2018) ("Courts-martial try service members ... and can impose terms of imprisonment ..."); United States v. Sanchez-......
  • Currier v. Virginia, No. 16–1348.
    • United States
    • U.S. Supreme Court
    • June 22, 2018
    ...a second time for the later-occurring home invasion offense. Here, by contrast, the two trials involved the same criminal episode. See 138 S.Ct. 2165 Ashe, 397 U.S., at 446, 90 S.Ct. 1189 ("same robbery"); Turner, 407 U.S., at 368–369, 92 S.Ct. 2096 ("the same set of facts, circumstances, a......
  • In re Opinions & Orders by the Fisc Addressing Bulk Collection of Data Under the Foreign Intelligence Surveillance Act, Docket No. FISCR 20-01
    • United States
    • U.S. Foreign Intelligence Surveillance Court
    • April 24, 2020
    ...(3d Cir. 1981) (quoting United States v. RMI Co. , 599 F.2d 1183, 1186 (3d Cir. 1979) ); accord Ortiz v. United States , ––– U.S. ––––, 138 S. Ct. 2165, 2173, 201 L. Ed. 2d 601 (2018) (citing Marbury v. Madison , 5 U.S. 137, 175, 1 Cranch 137, 2 L. Ed. 60 (1803) ); In re Al Baluchi , 952 F.......
  • United States v. Rice, 19-0178
    • United States
    • United States Court of Appeals, Armed Forces
    • May 21, 2020
    ...or domestic, or, subject to R.C.M. 907(b)(2)(C) and regulations of the Secretary concerned, by both."); see also Ortiz v. United States, 138 S.Ct. 2165, 2174- 75 (2018) ("[T]he jurisdiction of [courts-martial] overlaps significantly with the criminal jurisdiction of federal and state courts......
  • Request a trial to view additional results
21 cases
  • Jackson v. Modly, No. 18-5180
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 14, 2020
    ...e.g. , 10 U.S.C. §§ 886, 890, 892. Such a court-martial can result in imprisonment, see e.g. , Ortiz v. United States , ––– U.S. ––––, 138 S. Ct. 2165, 2168, 201 L.Ed.2d 601 (2018) ("Courts-martial try service members ... and can impose terms of imprisonment ..."); United States v. Sanchez-......
  • Currier v. Virginia, No. 16–1348.
    • United States
    • U.S. Supreme Court
    • June 22, 2018
    ...a second time for the later-occurring home invasion offense. Here, by contrast, the two trials involved the same criminal episode. See 138 S.Ct. 2165 Ashe, 397 U.S., at 446, 90 S.Ct. 1189 ("same robbery"); Turner, 407 U.S., at 368–369, 92 S.Ct. 2096 ("the same set of facts, circumstances, a......
  • In re Opinions & Orders by the Fisc Addressing Bulk Collection of Data Under the Foreign Intelligence Surveillance Act, Docket No. FISCR 20-01
    • United States
    • U.S. Foreign Intelligence Surveillance Court
    • April 24, 2020
    ...(3d Cir. 1981) (quoting United States v. RMI Co. , 599 F.2d 1183, 1186 (3d Cir. 1979) ); accord Ortiz v. United States , ––– U.S. ––––, 138 S. Ct. 2165, 2173, 201 L. Ed. 2d 601 (2018) (citing Marbury v. Madison , 5 U.S. 137, 175, 1 Cranch 137, 2 L. Ed. 60 (1803) ); In re Al Baluchi , 952 F.......
  • United States v. Rice, 19-0178
    • United States
    • United States Court of Appeals, Armed Forces
    • May 21, 2020
    ...or domestic, or, subject to R.C.M. 907(b)(2)(C) and regulations of the Secretary concerned, by both."); see also Ortiz v. United States, 138 S.Ct. 2165, 2174- 75 (2018) ("[T]he jurisdiction of [courts-martial] overlaps significantly with the criminal jurisdiction of federal and state courts......
  • Request a trial to view additional results
2 books & journal articles

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