U.S. v. AbdullahU.S. v. Abdullah
For Appellant: Captain Andrew W. Moore (argued); Colonel Philip M. Staten, Lieutenant Colonel Autumn R. Porter, and Jonathan F. Potter, Esq. (on brief); Lieutenant Colonel William M. Grady and Lieutenant Colonel Robert D. Luyties.
For Appellee: Captain Meghan E. Moore (argued); Colonel Richard E. Gorini, Major Vy T. Nguyen, and Captain Andrew T. Bobowski (on brief); Major Marc B. Sawyer and Captain Anthony J. Scarpati.
Judge JOHNSON delivered the opinion of the Court, in which Judge SPARKS and Senior Judge EFFRON joined. Chief Judge OHLSON filed a separate opinion concurring in the judgment, in which Judge HARDY joined. Judge HARDY filed a separate opinion concurring in the judgment.
A military judge sitting as a special court-martial convicted Appellant, pursuant to his pleas, of one specification each of desertion, absence without leave, willfully disobeying a superior commissioned officer, and wrongful use of a controlled substance, in violation of
We granted review to determine whether a retired appellate judge and an appellate judge on terminal leave impermissibly participated in the en banc decision of the CCA. For the reasons stated below, we hold that under the circumstances of this case, the retired appellate judge‘s participation in the decision was impermissible, and this error requires remand for a new
I. Background
In a memorandum opinion issued on April 30, 2024, the CCA held that dilatory post-trial processing violated due process and warranted relief under
In an opinion on reconsideration issued on November 5, 2024, the en banc CCA held that there was no unreasonable post-trial delay in violation of due process or
Appellant petitioned this Court for review of the question whether the CCA lawfully conducted its en banc review of his case where former Senior Judge Walker and former Chief Judge Smawley were not in regular active service when Abdullah II was issued.1 Attached to the Supplement to the Petition for Grant of Review were two memoranda concerning the composition of Army CCA panels. The first, dated July 22, 2024, identifies Colonel Pond as Chief Judge and reflects that Senior Judge Walker was assigned to CCA Panel 4 as of that date. Former Chief Judge
Upon consideration of Appellant‘s Supplement to the Petition for Grant of Review and his request for judicial notice, we concluded there was insufficient evidence to answer the assigned issue. Accordingly, on March 24, 2025, we ordered the Government to file an answer to the Supplement and provide an affidavit answering the following questions:
- For former-Chief Judge Smawley:
- (a) On what date did his assignment to the United States Army Court of Criminal Appeals end?
- (b) If he retired, on what date did he retire from the United States Army?
- (c) If he retired, what date did he begin terminal leave?
- For former-Senior Judge Walker:
- (a) On what date did she retire?
- (b) On what date did she begin terminal leave?
United States v. Abdullah, 85 M.J. 406 (C.A.A.F. 2025) (order). The motion for judicial notice was denied as moot. Id.
On April 21, 2025, the Government filed an affidavit with this Court providing the following information:
- For former-Chief Judge Smawley:
- (a) Chief Judge Smawley relinquished command on 22 July 2024.
- (b) Chief Judge Smawley retired from the Army on October 31, 2024.
- (c) Chief Judge Smawley‘s transition leave started on September 1, 2024. Chief Judge Smawley completed his uncharged transition absence (transition administrative absence/involuntary separation administrative absence) from August 13, 2024, through August 31, 2024.
- For former-Senior Judge Walker
- (a) Colonel Walker retired on November 30, 2024.
- (b) Colonel Walker‘s terminal/transition leave ran from October 10, 2024, until her retirement. Colonel Walker completed her uncharged transition absence (transition administrative absence/involuntary separation administrative absence) from September 20, 2024 through October 9, 2024.
We then granted review of a modified issue: “Whether a retired appellate judge and an appellate judge on terminal leave impermissibly participated in an en banc decision of the United States Army Court of Criminal Appeals.” United States v. Abdullah, 86 M.J. 138 (C.A.A.F. 2025) (order granting review).
II. Standard of Review
Whether a court is properly constituted is a question of law that this Court reviews de novo. United States v. Janssen, 73 M.J. 221, 224 (C.A.A.F. 2014).
III. Discussion
“A complete
A. Applicable Legal Principles
Appellate military judges are assigned to the Courts of Criminal Appeals (CCAs) by the Judge Advocates General (TJAGs) in accordance with qualifications set forth in
(1) IN GENERAL.— . . . Appellate military judges who are assigned to a Court of Criminal Appeals may be commissioned officers or civilians, each of whom must be a member of a bar of a Federal court or of the highest court of a State and must be certified by the Judge Advocate General as qualified, by reason of education, training, experience, and judicial temperament, for duty as an appellate military judge. . . . In accordance with regulations prescribed by the President, assignments of appellate military judges under this section (article) shall be for appropriate minimum periods, subject to such exceptions as may be authorized in the regulations.
(2) ADDITIONAL QUALIFICATIONS.— In addition to any other qualifications specified in paragraph (1), any commissioned officer or civilian assigned as an appellate military judge to a Court of Criminal Appeals shall have not fewer than 12 years of experience in the practice of law before such assignment.
Unlike federal judges who are guaranteed lifetime tenure during “good Behaviour,”
Consistent with these limitations, the Code of Judicial Conduct for Army Trial and Appellate Judges applies to officers only “when serving in a judicial assignment or performing judicial functions on active duty.” Code of Judicial Conduct for Army Trial and Appellate Judges, I. Applicability of This Code, at 6 (May 16, 2008). “The intent of this Code is to cover only those individuals who have been certified as judges by The Judge Advocate General and are currently performing in a judicial assignment or performing judicial functions.” Id. at Comment [2].
[A] judge assigned to the Court shall be deemed to be in regular active service if: (1) in the active component of the armed forces; (2) in the reserve component of the armed forces and serving on active duty with the Court for a period of more than 30 consecutive days; or (3) a civilian judge who is a full-time employee of the agency from which appointed. . . . [or] when a reserve component military judge who does not meet the above criteria is duly assigned to a matter.
B. The Error
Former Chief Judge Smawley was not eligible to participate in Abdullah II because he was a retired officer not assigned as a CCA judge when the case was decided. “[A] case or controversy is determined when it is decided.” Yovino v. Rizo, 586 U.S. 181, 185 (2019) (per curiam) (citation modified). Abdullah II was decided on November 5, 2024, when the CCA issued its en banc decision. Former Chief Judge Smawley retired on October 31, 2024. There is no evidence in the record that he was assigned to serve as a CCA judge after his retirement. As a retired officer not assigned to the CCA, he was ineligible to participate in the decision in Abdullah II.
In United States v. American-Foreign S.S. Corp., the Supreme Court held that a judge who retired after the intermediate appellate court granted a petition for rehearing en banc but before it issued its decision was statutorily barred from participating in the en banc decision. 363 U.S. 685, 691 (1960). The relevant statute provided that en banc proceedings “shall be heard and determined by . . . all active circuit judges of the circuit.”
In the service courts, as in the federal courts, a case is decided when the court‘s decision is issued. See, e.g., United States v. Schreck, 10 M.J. 374, 374 (C.M.A. 1981) (noting that the Court “decided this case” on the date that the lead opinion and two separate opinions in the case issued); see also United States v. Jeffers, No. ACM 38664 (recon), 2016 CCA LEXIS 52, at *8, 2016 WL 381592, at *3 (A.F. Ct. Crim. App. Jan. 28, 2016) (holding that “cases provide precedential (or persuasive) value when decided and issued, regardless of their inchoate nature” pending appeal). Joint Rule 7 requires the participation of the assigned judges until “final resolution” of the matter before the court. JRAP 7(a) (providing that “concurrence of a majority . . . shall be required for a final resolution of any matter before the panel or Court en banc“). “Final resolution” is synonymous with “heard and determined,” the statutory language at issue in American-Foreign S.S. Corp., 363 U.S. at 688. Compare Resolution, Black‘s Law Dictionary (12th ed. 2024) (“[a] court‘s solemn judgment or decision“), with Heard and Determined, Black‘s Law Dictionary (12th ed. 2024) (“having been presented to a court that rendered judgment“). Therefore, a case is finally resolved when a decision is issued. The CCA‘s November 5, 2024, decision in Abdullah II was its final resolution of the case.
No. 88-176, 77 Stat. 331 (1963). In its current form,
that any senior circuit judge of the circuit shall be eligible (1) to participate, at his election and upon designation and assignment pursuant to section 294(c) of this title and the rules of the circuit, as a member of an in banc court reviewing a decision of a panel of which such judge was a member, or (2) to continue to participate in the decision of a case or controversy that was heard or reheard by the court in banc at a time when such judge was in regular active service.
This is true even if the opinion was written and former Chief Judge Smawley had cast his final vote before retiring. The Government has cited, and we have found, no “rule or decision . . . that renders judges’ votes and opinions immutable at some point in time prior to their public release. And it is generally understood that a judge may change his or her position up to the very moment when a decision is released.” Yovino, 586 U.S. at 184.
In Yovino, the Supreme Court vacated an en banc decision authored by a United States Court of Appeals for the Ninth Circuit judge who passed away eleven days before the decision was issued. Id. at 183. A footnote to the en banc decision noted that before his death, the judge “fully participated in this case and authored this opinion. The majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death.” Id. at 184 (citation omitted) (internal quotation marks omitted). Nevertheless, the Supreme Court held:
Our holding in American-Foreign S.S. Corp. applies with equal if not greater force here. When the Ninth Circuit issued its opinion in this case, [the deceased judge] was neither an active judge nor a senior judge. For that reason, by statute he
was without power to participate in the en banc court‘s decision at the time it was rendered.
Id. at 185. The same is true here. Even assuming former Chief Judge Smawley was assigned as a CCA judge during the pendency of the appeal, to include the drafting and final voting on the decision, he was a retired officer not assigned as a CCA judge when the CCA issued its decision. Therefore, he was not eligible to participate in Abdullah II at the time the decision was rendered.4
Nothing prohibits the service secretaries from ordering to active duty a retired member of the regular service for assignment to a service court, see
C. The Remedy
In light of the participation of a retired officer not assigned as a CCA judge, we set aside the decision in Abdullah II and remand for further proceedings. See Ryder v. United States, 515 U.S. 177, 188 (1995) (declining to test for prejudice and holding a servicemember is entitled to a hearing before a properly appointed panel of the Court of Military Review, the predecessor to the CCA).
In Lane, we held that the participation of a United States Air Force Standby Reserve officer as an appellate military judge on a CCA panel that decided the appellant‘s case violated the Incompatibility Clause of the Constitution where the military judge was also a sitting United States Senator. 64 M.J. at 7. Although his vote was immaterial to the result because the panel was unanimous, and the case was submitted on its merits to the CCA without assignment of error, United States v. Lane, 60 M.J. 781, 782 (A.F. Ct. Crim. App. 2004) (per curiam), we held that “[o]nly a properly constituted appellate panel can complete the review required by
Lane is consistent with federal precedent vacating the opinion of an improperly constituted panel and remanding even if the disqualified judges’ presence did not materially impact the result. The Supreme Court “has never doubted its power to vacate the judgment entered by an improperly constituted court of appeals, even when there was a quorum of judges competent to consider the appeal.” Nguyen v. United States, 539 U.S. 69, 82 (2003) (citing cases). Federal circuit courts of appeals have applied the same remedy, vacating decisions in which a judge erroneously participated. See Mayor of Baltimore v. Mathews, 571 F.2d
We recognize that the erroneous participation of a judge in an en banc decision does not always require remand. For example, in Vines, we found error and acknowledged that remand was an option where the appellant‘s case was assigned to one lower court panel but decided by a different panel. 15 M.J. at 250. However, because one of the members of the assigned panel had retired and was unavailable, remand would not have resulted in review by the assigned panel. Id. Moreover, “[t]he accused [did] not challenge the qualifications of the appellate military judges who reviewed and decided his case, and there is nothing in the record before us which could support such a challenge.” Id. at 249. In other words, there was no question the deciding panel was properly constituted; the lower court simply sent the case to the wrong panel. We concluded “the only practical solution is to affirm the decision of the panel which did consider the accused‘s case since there is no codal impediment to such action.” Id. at 250.
But where the CCA acts outside the scope of its authority—in this case, by including a person not assigned as a CCA judge in the en banc decision of the court—we do not require a showing of prejudice to justify a remand for a new
Even if it is necessary to find prejudice to provide Appellant with a remedy, we still conclude that remand is appropriate because the CCA‘s failure to ensure Appellant‘s case was decided by a properly constituted en banc court prejudiced Appellant‘s substantial rights. In Liljeberg v. Health Services Acquisition Corp., the Supreme Court set forth a three-factor test for evaluating the prejudicial effect of errors involving the participation of disqualified judges in a case: “the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public‘s confidence in the judicial process.” 486 U.S. 847, 864 (1988); see also United States v. Gonzalez, 79 M.J. 466, 470 (C.A.A.F. 2020) (Maggs, J., with whom Ryan, J., joined, dissenting) (recognizing that “[n]ot all errors in conducting a review under
“Because not every judicial disqualification requires reversal,” this Court has “adopted the standards announced by the Supreme Court in Liljeberg to determine whether a military judge‘s conduct warrants that remedy to vindicate public confidence in the military justice system.” United States v. Martinez, 70 M.J. 154, 158 (C.A.A.F. 2011). We apply the same standards to evaluate the conduct of appellate military judges. Witt, 75 M.J. at 384 (“Although CCA judges are not ‘judges of the United States,’ we have applied the Liljeberg factors in evaluating the participation of recused judges in the military justice system.“). As we have explained, the third Liljeberg factor “is not limit[ed] . . . to facts relevant to recusal, but rather review[s] the entire proceedings, to include any post-trial proceeding, the convening authority action, the action of the [CCA], or other facts relevant to the Liljeberg test.” United States v. Uribe, 80 M.J. 442, 449 (C.A.A.F. 2021) (citation modified).
The third Liljeberg factor is determinative in this case. First, public confidence in the military judicial process is undermined where judges act in cases from which they are recused. This is true, whether the judge‘s role is significant or minimal. The record supports the CCA‘s conclusion that “any ‘influence’ flowing from [the recused judge‘s] ‘recommendation’ was at best minimal and resulted in no discernible prejudice to the appellant.” Nonetheless, either a military judge is recused or he is not. A military judge who acts inconsistently with a recusal, no matter how minimally, may leave a wider audience to wonder whether the military judge lacks the same rigor when applying the law.
Id. at 20-21 (citation omitted); see also Witt, 75 M.J. at 384 (holding that the participation of disqualified judges in the Air Force CCA‘s en banc decision on reconsideration “produced a significant ‘risk of undermining the public‘s confidence in the judicial process,’ and thus prejudiced Appellant‘s substantial rights.
The participation of a former military appellate judge who is no longer assigned to the CCA makes the case for prejudice even stronger here. We conclude the third Liljeberg factor is dispositive as we did in Roach, and we reach the same result: former Chief Judge Smawley‘s
Appellant asks this Court to set aside the decision of the en banc CCA because two of the judges who participated in the decision were not assigned to the CCA when the decision issued. In light of our conclusions that former Chief Judge Smawley was not eligible to participate in a decision issued after he retired when he was no longer assigned to the CCA and that his participation materially prejudiced Appellant‘s substantial rights, in our decretal paragraph we set aside that decision of the CCA. As a result, we need not decide whether former Senior Judge Walker was eligible to participate in the decision of the en banc court when she was on terminal leave or whether her participation had a prejudicial impact.
IV. Conclusion
The decision of the United States Army Court of Criminal Appeals is set aside. The record is remanded for a new
In my view, the following principles control this case.
In order to be authorized to participate in deciding a United States Court of Criminal Appeals (CCA) case, a person must be properly serving as a CCA judge. United States v. Lane, 64 M.J. 1, 7 (C.A.A.F. 2006) (“Only a properly constituted appellate panel can complete the review required by
The Joint Rules of Appellate Procedure for Courts of Criminal Appeals (Jan. 1, 2019, amended through May 17, 2024) [hereinafter JRAP], state that in order for a military officer to properly sit to consider a case en banc, that person must be “in regular active service.” JRAP 7(a). And the JRAP further state that a military officer:
shall be deemed to be in regular active service for purposes of these rules if [he or she is]: (1) in the active component of the armed forces; [or] (2) in the reserve component of the armed forces and serving on active duty with the Court for a period of more than 30 consecutive days.1
JRAP 7(b).
Brigadier General (BG) Smawley (Ret.)—through no fault of his own—was no longer “in regular active service” at the time the en banc opinion in this case was finally issued because he had retired.2 Simply stated, BG Smawley (Ret.) did not fit into any of the categories provided under JRAP 7(b) on the date the opinion in this case was issued.
The date the opinion was issued is key because the Supreme Court has held that a case is not decided until a court issues its decision. See United States v. American-
Accordingly, because BG Smawley (Ret.) retired on October 31, 2024, but the opinion was not issued until November 5, 2024, BG Smawley (Ret.) was not authorized to participate in deciding this en banc CCA case.
In light of these circumstances, for the reasons cited in the majority opinion, United States v. Abdullah, __ M.J. __, __ (12-14) (C.A.A.F. 2026), the appropriate remedy is to vacate the CCA‘s decision and remand for consideration by a properly constituted en banc court. See Lane, 64 M.J. at 7.
Because the majority reaches this same result—albeit through a different analytical approach—I concur in the judgment.
I agree with Chief Judge Ohlson that Brigadier General (BG) Smawley (Ret.) was not eligible to participate in the en banc decision below because he was not in regular active service when the case was decided, and I join his opinion in full. I write separately to highlight a foundational constitutional question presented by this case but unaddressed by the parties: whether BG Smawley (Ret.) possessed the authority of an “Officer of the United States” when the United States Army Court of Criminal Appeals (ACCA) issued its en banc decision. See Buckley v. Valeo, 424 U.S. 1, 125-26 (1976) (per curiam) (holding “that any appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the United States’ “). I raise this question because the Constitution‘s Appointments Clause “is more than a matter of ‘etiquette or protocol‘; it is among the significant structural safeguards of the constitutional scheme.” Edmond v. United States, 520 U.S. 651, 659 (1997). Yet neither Appellant nor the Government discussed this issue in their briefs.
During a flurry of litigation during the 1990s, this Court and the Supreme Court examined the role of military judges on the Courts of Criminal Appeals (CCAs) and resolved several questions about their place in our tripartite federal government. From those cases, we know much about the constitutional status of CCA judges and how their positions relate to the Appointments Clause of
First, because they exercise significant authority under federal law, CCA judges are officers of the United States who must be appointed pursuant to the Appointments Clause. Weiss v. United States, 510 U.S. 163, 169-70 (1994); Edmond, 520 U.S. at 654. However, because their work is supervised by other executive branch officers in two separate ways, CCA judges are inferior rather than principal officers under the Constitution.1 Edmond, 520 U.S. at
Second, because CCA judges are officers of the United States, Congress cannot give TJAGs the power to appoint CCA judges because that power can only be conferred on the President, department heads, or a court of law. Edmond, 520 U.S. at 658. Thus, the language in
Third, this limitation on TJAGs’ authority is not an impediment to staffing the CCAs because all senior military officers—including BG Smawley (Ret.)—are already officers of the United States by virtue of being nominated by the President and confirmed by the Senate.3 Weiss, 510
But this case raises a question that the Supreme Court did not answer in the 1990s: whether a commissioned military officer in retired status retains his constitutional authority to exercise the duties of an officer of the United States. According to the Government‘s affidavit, BG Smawley (Ret.) “relinquished command” on July 22, 2024, underwent a period of transition leave, and retired from the Army on October 31, 2024. The en banc decision below was decided on November 5, 2024, five days after BG Smawley (Ret.) formally retired and approximately three months after he relinquished his command. In other words, at the
Neither party addressed what constitutional authority a senior judge advocate officer retains after transitioning to retired status in their briefs. At oral argument, the Government suggested that BG Smawley (Ret.) retained all his relevant authority after his retirement, based on the theory that once a commissioned military officer has been nominated by the President and confirmed by the Senate, he may act as an officer of the United States for the rest of his life. That may well be true as long as the officer stays on (or is recalled to) active duty, but it does not seem consistent with the military‘s own practice with respect to the authority of military officers after they retire.
There is remarkably little controlling legal authority describing what authorities a military officer retains after retirement. One limitation that Congress has made clear is that “[a] retired officer has no right to command except when on active duty.”
That report appears to have relied on Judge Tatel‘s separate opinion in Larrabee v. Del Toro, where he made similar observations about the retired enlisted Marines who make up the Fleet Marine Corps Reserve. See 45 F.4th 81, 102-03 (D.C. Cir. 2022) (Tatel, J., concurring in part and dissenting in part) (noting that the day-to-day lives of the Fleet Marine Corps Reserve are equivalent to those of
At the very least, there is a strong argument that the constitutional authority of BG Smawley (Ret.) as an officer of the United States was suspended once he entered retired status on October 31, 2024. Presumably, that authority could be returned to BG Smawley (Ret.) if the Secretary of the Army ordered him back to active duty pursuant to