Ortiz v. United States

A judge’s simultaneous service on the Court of Criminal Appeals and the Court of Military Commission Review violates neither §973(b)(2)(A) nor the Appointments Clause.

A court-martial sentenced Petitioner to two years in prison and a dishonorable discharge from the Air Force. An Air Force Court of Criminal Appeals (CCA) panel, including Colonel Mitchell, affirmed on appeal. The Secretary of Defense placed Colonel Mitchell on the Court of Military Commission Review (CMCR) prior to his participation in the decision of Petitioner’s case as a CCA judge. The President subsequently affirmed this decision, officially appointing Mitchell to the CMCR. The Court of Appeals for the Armed Forces (CAAF) granted Petitioner’s request for review. Petitioner invoked 10 U.S.C. §973(b) which prohibits an active duty military officer from holding certain civil offices, arguing that Colonel Mitchell was prohibited from holding simultaneous positions on the CCA and CMCR. Petitioner also argued that Judge Mitchell’s dual service violated the Appointments Clause because CMCR judges are “principal officers” while CCA judges are “inferior officers.” The CAAF rejected both arguments and denied the appeal. The Supreme Court held that § 950f(b)(2) authorized the Secretary to place Mitchell on the CMCR. The President’s later appointment merely affirmed the decision. Petitioner argued that the President’s appointment created a secondary position. The Supreme Court disagreed stating that he maintained the same position, doing the same work after the Presidential appointment. The Court held that the Appointments Clause does not prohibit dual service. AFFIRMED.