Ortiz v. United States

Facts of the Case

Petitioner Keanu Ortiz, an Airman First Class, was convicted by a court-martial of possessing and distributing child pornography, and he was sentenced to two years’ imprisonment and a dishonorable discharge. An Air Force Court of Criminal Appeals (CCA) panel, including Colonel Martin Mitchell, affirmed that decision. The Court of Appeals for the Armed Forces (CAAF) then granted Ortiz’s petition for review to consider whether Judge Mitchell was disqualified from serving on the CCA because he had been appointed to the Court of Military Commission Review (CMCR). The Secretary of Defense had initially put Judge Mitchell on the CMCR under his statutory authority to assign officers who are appellate military judges to serve on that court. To moot a possible constitutional problem with the assignment, the President (with the Senate’s advice and consent) also appointed Judge Mitchell to the CMCR pursuant to


Does the Court have jurisdiction to review two of the consolidated cases under 28 U.S.C. § 1259(3)?Does Judge Martin T. Mitchell’s simultaneous service on the US Court of Military Commission Review (CMCR) and the US Air Force Court of Criminal Appeals (AFCCA) violate the Appointments Clause?Does Judge Mitchell’s service on the CMCR disqualify him from continuing to serve on the AFCCA?Did the US Court of Appeals for the Armed Forces err in holding Petitioner’s claims moot?


The Court has jurisdiction to review decisions by the US Court of Appeals for the Armed Forces, and Judge Mitchell’s simultaneous service on the CMCR and AFCCA does not violate the Appointments Clause or 10 U.S.C. § 973(b)(2)(A). Justice Elena Kagan delivered the opinion of the 7-2 majority.First, the Court found that the CAAF’s not being an Article III court does not remove the jurisdiction of the Supreme Court to review its decisions. The Supreme Court uncontroversially reviews the decisions of many non-Article III courts, including state courts and those of the District of Columbia. Nor does the fact that CAAF is part of the Executive Branch remove the Supreme Court’s jurisdiction over it. Because it is a permanent court of record established by Congress, the Supreme Court may properly exercise jurisdiction over it.Second, as to Judge Mitchell’s simultaneous service on CMCR and AFCCA, the Court found that the express authorization to assign military officers to the CMCR under §950f(b)(2) was both necessary and sufficient to exempt him from §973(b)(2)(A). Once the Secretary of Defense placed Judge Mitchell on the CMCR, the president’s subsequent appointment of him to AFCCA did not negate the secretary’s earlier action but ratified it. With respect to the constitutional claim, the Court held that it has never interpreted the Appointments Clause to impose rules about dual service.Justice Clarence Thomas filed a concurring opinion. He joined the majority’s opinion in full but wrote separately to say that the conclusion reached by the Court is consistent with the founders’ understanding of judicial power.Justice Samuel Alito filed a dissenting opinion, in which Justice Neil Gorsuch joined. The dissent would find the Court lacks jurisdiction over decisions by the CAAF because the Supreme Court’s appellate jurisdiction permits it to review only the lawful exercise of judicial power. Because the CAAF is a military tribunal and part of the Executive Branch, the dissent argues the Court lacks jurisdiction to review its decisions.

Case Information

  • Citation: 585 US _ (2018)
  • Granted: Sep 28, 2017
  • Argued: Jan 16, 2018
  • Decided Jun 22, 2018