[00:00:03] Speaker 04:
Case number 14-1227, Henry Omar Carter.

[00:00:09] Speaker 04:
Mr. Morrison for the petitioner, Mr. Palmer for the respondent.

[00:00:59] Speaker 03:
Good morning.

[00:00:59] Speaker 02:
Good morning, Your Honor.

[00:01:00] Speaker 02:
May it please the Court?

[00:01:02] Speaker 02:
This Court should issue a writ of mandamus to recuse Judge Pollard because he's entered into a discretionary financial relationship with the Secretary of Defense that compromises his independence as a judge.

[00:01:22] Speaker 02:
We've raised a great number of issues in the brief, but I think that it really comes down to two basic questions that the court needs to answer to resolve this case.

[00:01:32] Speaker 02:
The first is that, do the procedures governing Judge Pollard's employment compromise the independence that Congress intended him to have?

[00:01:41] Speaker 02:
The second question is, what if anything is wrong with Judge Pollard's outside law practice setting aside issues of bias or appearance of bias?

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So on the first question, I think the answer comes from the 2009 Act itself.

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In 2009, Congress enacted a series of reforms that were specifically aimed at enhancing public confidence in military commissions.

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Among other things, they designated the CMCR a court of record.

[00:02:10] Speaker 02:
That is a term of art that has legal significance.

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And we don't have to guess what it means.

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We know what it means, because the Supreme Court pulled us in Bumidia.

[00:02:19] Speaker 02:
In Rumidian, if I could just read that quote, it said, a court of record is a tribunal disinterested in the outcome and committed to procedures designed to ensure its own independence.

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There, of course, it was contrasting a cert panel, which is an executive panel, and a federal district court.

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Here we have a similar.

[00:02:42] Speaker 00:
So are part-time civilian judges permissible then?

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if they have some other employment?

[00:02:50] Speaker 02:
Well, that is the question here.

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We don't see any basis in the 2009 Act for his ability to be a part-time judge.

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The statutory default for federal judges is always full-time employment.

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Whenever there are some exceptions, obviously, the code of conduct recognizes that there are exceptions, but the code says this only were permitted by law.

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And if you look at the few exceptions that do exist, they're all embodied in a statute.

[00:03:19] Speaker 02:
So for example, federal magistrates can be full-time or part-time, but that's authorized by the Federal Magistrates Act.

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In addition, Congress specifically said that part-time magistrates are special government employees.

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for purposes of tile 18.

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So there's nothing discretionary about their ability to practice law and their treatment as a special government employee.

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Our complaint here... Is that established?

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I'm uncertain whether Mr. Pollard was a special government employee.

[00:03:54] Speaker 04:
On the one hand, one of his opinions said he was so designated, but then his later opinion said that he just received material about, from the Department of Defense, material about and also information that

[00:04:11] Speaker 04:
Under the previous regime, those judges were special government employees, but I don't see any evidence that he was ever designated.

[00:04:20] Speaker 04:
I don't even know how you get designated as a special government employee.

[00:04:25] Speaker 02:
Well, I do think he is a special government employee.

[00:04:28] Speaker 02:
He expressly relies on that to get from under 203A.

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That was his whole point.

[00:04:35] Speaker 04:
But he has to establish the fact that he relies on the statute, the ethics statute, doesn't prove that he's a special government employee.

[00:04:46] Speaker 02:
We don't think he can be a special government employee in any event, because I think it violates the plan.

[00:04:51] Speaker 03:
Is there someone who makes that designation?

[00:04:53] Speaker 03:
Is there a form that's filled out that says, you are hereby designated an SGE?

[00:05:00] Speaker 02:
Here's my understanding.

[00:05:01] Speaker 02:
I'm not exactly sure, to be honest with you.

[00:05:04] Speaker 02:
A highly qualified expert is an employment category.

[00:05:07] Speaker 02:
That defines your pay, and that's the type of employee you are.

[00:05:13] Speaker 02:
If you are part-time, that is, if you work 130 days a year or less, you're entitled to be treated for ethics purposes as a special government employee.

[00:05:24] Speaker 02:
And so long as you don't go over that limit, you're out from under 203A.

[00:05:32] Speaker 02:
My understanding is that it follows, more or less automatically, if you agree to be, I think it's a contractual matter.

[00:05:40] Speaker 02:
If there's a contract or an agreement that answers your question, I don't know because we asked for it and you won't give it to us.

[00:05:47] Speaker 02:
At the end of the day, I'm not sure that it matters because under the plain language of 202, 18 U.S.C.

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202, Article 1 judges cannot be designated special government employees.

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That's part of the problem with this arrangement.

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that if we're right about the plain language of 202, he is in fact committing a federal crime, which it would itself be a separate and independent ground to have him disqualified under this course decision in Microsoft.

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So to return to the point I was making about

[00:06:25] Speaker 02:
court of record is simply that that defines the kind of judge that Congress expected him to be.

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He's supposed to commit himself to procedures that are designed to ensure his own independence.

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That's why courts of record have greater deference to their judgments because they're soon to be disinterested in so.

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And that's what Congress was trying to achieve in the 2009 Act, to give military commission defendants greater level of due process, precisely to enhance public confidence in the outcome.

[00:06:59] Speaker 02:
When we look at the terms and conditions of Judge Pollard's employment, it's clear, at least it's clear to us,

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that he can't possibly be committed to procedures that ensure his independence.

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He is an Article 1 judge presiding over a criminal case who has agreed contractually to be an at-will employee of the prosecutor.

[00:07:26] Speaker 02:
He's an Article 1 judge presiding over a criminal case.

[00:07:29] Speaker 03:
Who's agreed?

[00:07:30] Speaker 03:
What do you do with your opponent's argument that by statute, the Secretary of Defense is not allowed to interfere?

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And there's this body of case law out of the UCMJ, which gives meaning to that, which suggests a type of independence that is consistent with the judicial obligations.

[00:07:51] Speaker 02:
I guess two responses to that, Your Honor.

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The MCA says that the Secretary cannot use any unauthorized means to interfere with the decision.

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And that's where the body of case law comes in.

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It gives meaning to that, and it suggests that any type of interference would be unauthorized.

[00:08:12] Speaker 02:
This isn't unauthorized.

[00:08:13] Speaker 02:
The Secretary, by statute, is allowed to administer the HQE program.

[00:08:19] Speaker 02:
Now, we think it violates Carter's rights under the MCA.

[00:08:23] Speaker 03:
Do we have any evidence of the Secretary of Defense exercising that authority that you say he has to terminate a judge or to give them a bonus or an incentive?

[00:08:34] Speaker 02:
I don't know, but I don't think I have to know, because then that's my second point, is that the relevant standard for determining whether there's an appearance of bias under 455A is whether a reasonable person

[00:08:49] Speaker 03:
No, but you know the government's argument is that, no, there's a statute that forbids the Secretary from doing that, and there's no evidence that he's done contrary to that.

[00:08:59] Speaker 02:
Yes, Your Honor.

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And we presume that the Secretary obeys the law.

[00:09:03] Speaker 02:
But that doesn't change the appearance of the arrangement.

[00:09:08] Speaker 00:
It also – if I could just – And the – when you say the appearance of the arrangement, really flush that out, what exactly are you concerned about happening?

[00:09:18] Speaker 02:
The apparent Judge Pollard is intended to be a judge with

[00:09:24] Speaker 02:
an indefinite appointment in good cause tenure.

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The purpose of giving him those protections would be to insulate him from the influence of the secretary.

[00:09:33] Speaker 02:
If he's an at-will employee, even if he might be an at-will employee, there's going to be at least ambiguity about whether he's going to lose his job or not.

[00:09:45] Speaker 02:
I mean, if you don't know whether he's at-will, Judge Pollard doesn't know whether or not he's at-will, and the public is not going to know whether he's at-will.

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And the standard is,

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What would the public think?

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Would it be reasonable to believe?

[00:09:56] Speaker 03:
I think the government's argument – no, we do know that, that – because the secretary can't interfere.

[00:10:01] Speaker 02:
Well, and with – I don't think there's any difference then with respect to the bonus.

[00:10:05] Speaker 02:
You are correct that I do not know whether he's gotten a bonus yet.

[00:10:09] Speaker 02:
He hasn't told me.

[00:10:10] Speaker 02:
I don't know.

[00:10:11] Speaker 02:
But he could get one.

[00:10:13] Speaker 02:
And that is – that influence has a –

[00:10:20] Speaker 04:
He's entitled to a pay increase for extraordinary service, but it's not a bonus.

[00:10:26] Speaker 02:
I'm using bonus in a colloquial sense, Your Honor.

[00:10:29] Speaker 02:
Maybe I should be more precise.

[00:10:30] Speaker 02:
What he's actually entitled to is a retention incentive award.

[00:10:35] Speaker 02:
And that can be paid annually, or it can be paid cumulatively.

[00:10:38] Speaker 02:
Under the regulations, under the statute, he's limited to a maximum of six years.

[00:10:44] Speaker 02:
So in theory, the Secretary of Defense could cut him a check for 300-some thousand dollars when he leaves.

[00:10:51] Speaker 02:
And what's the public supposed to do with that?

[00:10:55] Speaker 02:
The question is... I think you're right.

[00:10:58] Speaker 03:
If that is the case, that would be trodden.

[00:11:01] Speaker 03:
I think you're going to hear from the government that that in fact is not the case.

[00:11:04] Speaker 03:
That doesn't depend on whether there's a special government ability or not.

[00:11:07] Speaker 02:
Correct.

[00:11:08] Speaker 02:
That's a separate issue.

[00:11:09] Speaker 02:
That only relates to his ability to practice law.

[00:11:11] Speaker 02:
But the third sort of discretionary element that depends on

[00:11:20] Speaker 02:
I'm sorry, let me back up for a minute.

[00:11:22] Speaker 02:
The point I want to try to get at is it gives him an incentive to stay in the good graces of the Secretary of Defense.

[00:11:30] Speaker 02:
That's the appearance of it, at least.

[00:11:32] Speaker 02:
And it's the same with the practice of law, because he's not entitled to be a special government employee.

[00:11:38] Speaker 02:
Indeed, we say it's illegal.

[00:11:40] Speaker 02:
So the Secretary of Defense has granted him this status, which allows him to maintain his outside practice.

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And the Secretary could withdraw that status any time he wants.

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So Judge Pollard knows the entire time he's acting as a judge.

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that his ability to earn outside income depends on the continuing discretion of the Secretary of Defense.

[00:12:02] Speaker 02:
Our argument is that gives him an incentive

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to favor the Secretary of Defense.

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And if that's true, that creates an appearance of impropriety, or excuse me, an appearance of bias, and he is disqualified.

[00:12:16] Speaker 00:
Now the government says, just on the at-will issue, which is a little different from what you were just talking about, the government says that he's only removable for cause.

[00:12:27] Speaker 02:
He's only supposed to be removable for cause.

[00:12:29] Speaker 02:
We agree with that.

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That was the nature of the appointment that he accepted.

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Our position is that he bargained that away when he agreed to become an HQA.

[00:12:39] Speaker 02:
So he's bargained away the tenure that he had.

[00:12:42] Speaker 00:
And then the government comes back and says, well, the statute, though, as Judge Griffith's pointing out, really precludes use of the set of that provision in that way.

[00:12:51] Speaker 00:
And I guess your response is, well, we'll see, but the uncertainty is too much of a problem.

[00:12:55] Speaker 02:
Exactly.

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That's my response.

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I see that I'm within my rebuttal time, so I will, if there are no further questions.

[00:13:01] Speaker 02:
Oh, excuse me.

[00:13:02] Speaker 02:
I do want to make one other point before I sit down.

[00:13:07] Speaker 02:
If we're right,

[00:13:10] Speaker 02:
There is irreparable harm here because Judge Pollard is at least, there's an appearance of bias if nothing else.

[00:13:17] Speaker 02:
The government hasn't offered this court any reason to not err on the side of caution.

[00:13:24] Speaker 02:
Because if he's removed, there's not going to be any harm to the process.

[00:13:27] Speaker 02:
There are four judges on my panel, three of whom are military judges.

[00:13:32] Speaker 02:
So if Judge Pollard is recused, the case just goes on and these issues drop out of the case.

[00:13:37] Speaker 00:
What was Congress's purpose in having civilians appointed to this court?

[00:13:43] Speaker 02:
Congress just decided that there were going to be two classes of judges, and they treated their tenure differently.

[00:13:51] Speaker 02:
I actually don't know exactly why Congress decided to do that.

[00:13:55] Speaker 02:
That's quite unusual.

[00:13:56] Speaker 02:
It may well be that they wanted more stability from the civilian judges, because the military judges rotate on and off, which is... Wasn't it an appearance of independence by having outsiders as part of the process and not just military judges?

[00:14:13] Speaker 02:
I think that, yeah, I think you're right.

[00:14:14] Speaker 02:
I think that is, I agree with that.

[00:14:16] Speaker 02:
That is part of it.

[00:14:17] Speaker 00:
I mean, that's the irony of this, is that bringing in the outsiders, the civilians who are not in the military culture, is now being viewed as threatening the independence, quote unquote, of the military judges.

[00:14:33] Speaker 02:
The irony here is that the military judges have far more practical independence than Judge Pollard does.

[00:14:38] Speaker 02:
There's no military judge that's an at-will employee of the Secretary of Defense, even apparent.

[00:14:43] Speaker 00:
I think Congress was concerned about the appearance of military judges.

[00:14:47] Speaker 00:
Correct.

[00:14:49] Speaker 04:
What arguments that you've made here today could you not make on an appeal from the decision of the three-judge court?

[00:15:00] Speaker 02:
An appearance of bias is waivable.

[00:15:03] Speaker 02:
So I think I probably have to raise it on mandate.

[00:15:11] Speaker 04:
And it's also, it's well established that that's irreparable harm.

[00:15:14] Speaker 04:
But you haven't waived it.

[00:15:16] Speaker 04:
I mean, that's the point.

[00:15:17] Speaker 04:
The Liljeberg, for example, the Supreme Court's decision there came long after that district judge sat on the case, and that was an appearance of bias case.

[00:15:26] Speaker 04:
So I don't know why we need the mandamus at this point.

[00:15:30] Speaker 04:
Why not just wait for the decision of the court and then review it on appeal?

[00:15:36] Speaker 02:
Well, I think the best answer to that is what the court said in the sherry last year, and that is a judge who is biased is a classic case of irreparable harm.

[00:15:47] Speaker 02:
It's irreparable harm to the

[00:15:49] Speaker 02:
to the petitioner, to Mr. Cotter, because it's impossible to tell on direct appeal all the ways that bias may have infected the decision.

[00:15:58] Speaker 02:
Then you reverse.

[00:15:59] Speaker 02:
It's also, well that could be corrected with him, but you can't correct the harm to the public interest.

[00:16:04] Speaker 02:
And that's the other part of the irreparable harm.

[00:16:07] Speaker 02:
Allowing a case to proceed with a biased judge necessarily undermines public confidence in the integrity of the system.

[00:16:14] Speaker 03:
But isn't that corrected by reversal as well?

[00:16:17] Speaker 02:
not according to the mandamus case law, that's why it's a classic case for mandamus.

[00:16:21] Speaker 02:
Is that personal bias or is it appearance of bias?

[00:16:26] Speaker 02:
It is only appearance of bias that affects the public interest.

[00:16:30] Speaker 02:
Personal bias, actual bias does too, doesn't it?

[00:16:35] Speaker 02:
Right, but the appearance of harm standard

[00:16:38] Speaker 02:
is what causes, is what gives rise to irreparable harm to the public interest in the integrity of the system.

[00:16:44] Speaker 00:
But this raises another point, which is that you could raise it on appeal, of course.

[00:16:49] Speaker 00:
You want mandamus to correct it now, but the standard for mandamus, as you're well aware, is clear and indisputable right and lots of adjectives like that that we use.

[00:17:00] Speaker 00:
And the uncertainty, I guess this is

[00:17:03] Speaker 00:
My concern, the uncertainty about how this pay arrangement may play out or the worst case scenarios, and I know you would dispute that characterization, but the worst case scenarios about how it might play out seem inconsistent with saying as of this moment, there's some clear and indisputable right to relief.

[00:17:22] Speaker 02:
Well, I think the clear and indisputable right to relief is to avoid the irreparable harm that is caused by having to submit to a proceeding where there's a biased judge, precisely because how are we going to be able to prove after the fact that he was in fact biased?

[00:17:38] Speaker 02:
We're not going to be in any better position than we are now.

[00:17:40] Speaker 02:
Coffee votes for your client in the election.

[00:17:45] Speaker 02:
Judges vote the other way.

[00:17:47] Speaker 02:
Clear?

[00:17:48] Speaker 02:
We'll see how that turns out.

[00:17:50] Speaker 02:
There are no further questions.

[00:17:51] Speaker 03:
We'll give you some time back.

[00:17:52] Speaker 03:
Thank you very much.

[00:17:58] Speaker 03:
We meet again, Mr Palmer.

[00:18:01] Speaker 03:
It's been a good week.

[00:18:05] Speaker 01:
Good morning.

[00:18:05] Speaker 01:
I'm Joseph Palmer for the Justice Department.

[00:18:08] Speaker 01:
I'd like to begin by saying that

[00:18:16] Speaker 01:
Judge Griffith's characterization of our reliance on the statutory guarantee of independence by the CMCR judges is principally what we're relying on here.

[00:18:29] Speaker 00:
But then can you just explain to me in plain English his removal, removability, pay and bonuses?

[00:18:41] Speaker 00:
And that's the, you know, I've been a government employee for 25 years.

[00:18:44] Speaker 00:
I know that.

[00:18:45] Speaker 00:
That's what every government employee wants to know.

[00:18:47] Speaker 00:
Removability, pay, bonuses.

[00:18:49] Speaker 00:
What is the status for this person?

[00:18:53] Speaker 01:
Your Honor, in the record, I think the best source for that information is the statement by the CMCR clerk that's in the Joint Appendix beginning at page 41 that indicates that he is paid a particular hourly rate and then states that that's it for pay.

[00:19:09] Speaker 00:
So that's the $79 an hour, I think it is.

[00:19:12] Speaker 01:
I think that's correct, Your Honor.

[00:19:14] Speaker 01:
And so there isn't any indication in the record in this case that there has ever been a bonus paid or a bonus offered.

[00:19:22] Speaker 00:
But is it possible?

[00:19:23] Speaker 00:
This is my question.

[00:19:24] Speaker 00:
In other words, every government employee knows, oh, if I do good work, I can get that end of the year bonus.

[00:19:32] Speaker 00:
Is that possible here?

[00:19:36] Speaker 01:
It may be possible in theory, but it would clearly be inconsistent with the Military Commissions Act for such a bonus to have any.

[00:19:47] Speaker 00:
So are you going to rule out then, or is someone going to rule out the payment of a bonus for a situation like that?

[00:19:53] Speaker 00:
If I could get a $20,000 bonus at the end of the year from Congress or the president, then people would question my impartiality.

[00:20:05] Speaker 01:
And because of that, that's why we think, then, that the statute is what governs and makes it so.

[00:20:12] Speaker 00:
Does that preclude the bonus?

[00:20:13] Speaker 00:
Does the statute preclude a bonus?

[00:20:16] Speaker 00:
Are you willing to say that?

[00:20:17] Speaker 00:
Is someone willing to say that?

[00:20:19] Speaker 01:
Yes, I think it does, Your Honor, that the statute, that it would be hard to imagine.

[00:20:24] Speaker 03:
What did you mean, then, when you said theoretically that's possible?

[00:20:28] Speaker 01:
I just meant what I wanted to do was to not to concede that under the regulations that apply to HQEs, that there is a provision for those payments.

[00:20:41] Speaker 00:
Absent the statutory provision, it might have been theoretically possible, but you're saying the statutory provision makes that not possible.

[00:20:48] Speaker 01:
Yes.

[00:20:48] Speaker 00:
OK, so we can X out the possibility of bonuses or incentive awards or whatever nomenclature you might put on that?

[00:20:57] Speaker 01:
Yes, I think that the statute makes it so that the existence of that kind of incentive in the circumstance of a CMCR judge would be inconsistent.

[00:21:08] Speaker 00:
So we've got the pay and the bonuses cleared up.

[00:21:10] Speaker 00:
How about the removability?

[00:21:13] Speaker 01:
Well, the removability, again, I think isn't governed by the regulations or by the designation.

[00:21:18] Speaker 01:
It's governed by the

[00:21:21] Speaker 01:
statute or by the constitutional status of a judge who has been appointed by the President and confirmed by the Senate.

[00:21:32] Speaker 00:
So what are you telling me?

[00:21:34] Speaker 01:
So under the Supreme Court's case in Weiner that we've cited in our brief,

[00:21:39] Speaker 01:
The statute is silent about whether the removability of the judges.

[00:21:43] Speaker 00:
Right.

[00:21:43] Speaker 00:
So Wiener had implied for cause protection, right?

[00:21:48] Speaker 01:
Yes.

[00:21:49] Speaker 00:
And is that what you're saying applies here?

[00:21:50] Speaker 00:
There's an implied for cause protection.

[00:21:53] Speaker 01:
I think that's probably correct because the Wiener doctrine applies to this.

[00:21:59] Speaker 00:
But if it's only probably correct, this is what his concern is, then

[00:22:05] Speaker 00:
the judge will think I'm removable at will if I issue a harsh decision against the government, and that's the whole point here.

[00:22:15] Speaker 00:
So knowing it's not good enough to just know after the fact, you have to know up front.

[00:22:19] Speaker 00:
That's why we have life tenure.

[00:22:21] Speaker 00:
You have to know up front what your tenure is so that you're not concerned about being removed for a decision that's unpopular.

[00:22:30] Speaker 00:
So do we know up front?

[00:22:31] Speaker 00:
Are you willing to say that?

[00:22:32] Speaker 00:
Is the government willing to say there is foreclosed protection?

[00:22:36] Speaker 01:
We've said that in the brief, Your Honor, and I think that that's, I don't know that there has been an official statement by the government that that's true.

[00:22:42] Speaker 00:
You're comfortable if we, well, if our opinion says that you've said that there's for-cause protection, are you comfortable with that?

[00:22:55] Speaker 01:
I think so, Your Honor.

[00:22:56] Speaker 01:
I don't, we certainly haven't disputed that.

[00:23:01] Speaker 01:
Okay.

[00:23:01] Speaker 01:
Or made any arguments for why that would be.

[00:23:05] Speaker 00:
Well, then we have no bonuses and we have for-cause protection.

[00:23:07] Speaker 00:
That eliminates a lot of the problem.

[00:23:13] Speaker 01:
Again, the government's position is that the statutory protections in the Military Commissions Act are what is the, and as Judge Griffith mentioned, the case law that goes on.

[00:23:23] Speaker 00:
Just on that, so I just connect the dots here.

[00:23:26] Speaker 00:
The statutory protections are why you're willing to say no bonuses and for-cause protection.

[00:23:31] Speaker 01:
That's correct, Your Honor.

[00:23:32] Speaker 00:
Although I should say that I don't think that we would concede that if... By the way, we don't know what for-cause protection means, but someday we'll figure that out after 80 years of... But anyway.

[00:23:44] Speaker 01:
Indeed, Your Honor.

[00:23:45] Speaker 01:
But let me say this.

[00:23:46] Speaker 01:
I think that if it were... Congress could have made the judges specify that they did not have for-cause protection.

[00:23:56] Speaker 01:
And in that circumstances, I still think we would say that they are sufficiently independent

[00:24:00] Speaker 00:
Well, for due process purposes, perhaps.

[00:24:02] Speaker 00:
But it's because 455 kicks in here, right?

[00:24:06] Speaker 01:
It does.

[00:24:07] Speaker 01:
It's incorporated through the court's rules.

[00:24:11] Speaker 04:
What do you do with, since we're on 455, what do you do with Section 454?

[00:24:18] Speaker 04:
How do you get around that?

[00:24:19] Speaker 04:
It says no judge appointed under the authority of the United States.

[00:24:24] Speaker 04:
Well, is any judge appointed under the authority of the United States that practices the laws guilty of a high misdemeanor?

[00:24:34] Speaker 04:
He's a judge.

[00:24:35] Speaker 04:
He was appointed under the authority of the United States.

[00:24:39] Speaker 01:
Our position is that that's a term of art that applies to Article III judges and also to the specified non-Article III courts that are enumerated in Section 460.

[00:24:54] Speaker 01:
So Section 460 states that certain provisions of that chapter, including Section 454, apply also to

[00:25:09] Speaker 01:
the Court of Federal Claims and to judges of territorial courts.

[00:25:12] Speaker 01:
And the fact that it specifies those two particular non-Article 3 courts indicates Congress's intent that that provision not apply.

[00:25:21] Speaker 04:
So you apply expressio unius across statutes, not within a statute.

[00:25:28] Speaker 04:
And the Supreme Court is warned against that sort of analysis, has it not?

[00:25:32] Speaker 01:
I think in this circumstance, it's appropriate because the Section 460 cross-references those other statutes explicitly, including Section 4.

[00:25:41] Speaker 03:
If we disagreed with your analysis and plot that we just have an example of some redundancy here, Congress is redundant all the time, and that 454 does apply here, what then?

[00:25:57] Speaker 01:
Well, I think if the court determined that it was clear and indisputable that Section 454 prohibited CMCR judges from practicing law, then in that circumstance, what we would have here is a good faith and an unintentional violation of that provision, and so this court would not need to

[00:26:21] Speaker 01:
grant the writ and order disqualification, but rather clarify the meaning of that statement.

[00:26:25] Speaker 03:
The writ requires bias, doesn't it?

[00:26:27] Speaker 03:
In our case law says, when we're looking at mandamus and recusal, it has to include bias.

[00:26:34] Speaker 03:
So I would have thought your answer would have been more along those lines, that there's nothing about practicing law that would show bias.

[00:26:41] Speaker 01:
Yes, that's correct, Your Honor.

[00:26:42] Speaker 01:
So I was already moving past those thresholds.

[00:26:45] Speaker 03:
It's not a recusal statute either, is it?

[00:26:47] Speaker 03:
454.

[00:26:47] Speaker 03:
455 is.

[00:26:49] Speaker 03:
454 is not a recusal statute, is it?

[00:26:53] Speaker 03:
I don't believe so.

[00:26:54] Speaker 01:
I don't think it is, Your Honor, and so I, I agree with you.

[00:26:56] Speaker 03:
It's right, it's right and Miller doesn't list it as one of the three recusal statutes.

[00:27:01] Speaker 01:
And so I think we agree that the kind of structural disqualification type claims that the petitioner raises here are analogous to the kind of claims that were raised in Nishiri and that this court found inappropriate for mandamus relief because although they went to the structural independence of the military judges on the court, they didn't raise a claim of personal bias.

[00:27:26] Speaker 01:
indicate that the judge had some personal animus or direct financial profit in the outcome.

[00:27:34] Speaker 01:
That kind of claim, the kind of claim that the courts have found... Do you know what the origin of 454 is?

[00:27:42] Speaker 04:
I think it's... The cross reference in the code version I have here says it was enacted in 1948.

[00:27:54] Speaker 04:
Was that the revision of the judicial code?

[00:27:59] Speaker 04:
There was a great controversy about somebody named Kennesaw Mountain Landis.

[00:28:05] Speaker 04:
He was a federal district judge at the same time.

[00:28:14] Speaker 04:
And I'm wondering whether that provision was enacted because of his dual role as commissioner of baseball plus the, but that's not practice of law, so maybe it is.

[00:28:29] Speaker 01:
I'm not familiar with the history, Your Honor, although I think we would concede that generally, for full-time judges, the practice of law is inappropriate.

[00:28:38] Speaker 01:
And what the argument here is that in the context of a part-time court, the Congress understood would be part-time.

[00:28:45] Speaker 01:
Law of war courts are necessarily convened as needed.

[00:28:49] Speaker 01:
The predecessor court of military commission review was part-time.

[00:28:52] Speaker 01:
There's never been a sufficient number of cases on the docket to warrant a full-time judges or staff.

[00:28:58] Speaker 01:
The fact that the appellate military judges are necessarily part-time because they serve also on their respective service courts of appeals.

[00:29:07] Speaker 01:
indicates that Congress understood that this would be a part-time... How do we know that he's a special government employee?

[00:29:17] Speaker 04:
You heard the questions that were asked with your colleague here, and I just don't find any evidence of that.

[00:29:25] Speaker 04:
What is the procedure for deeming someone a special government employee?

[00:29:31] Speaker 01:
Well, I think that the statute empowers the

[00:29:37] Speaker 01:
the – in this circumstance, the Secretary of Defense to designate executive branch employees and officers as special government employees.

[00:29:45] Speaker 01:
And I think in this case, again, referring to the statement by the court of the CMCR in the appendix at the beginning of page 41, it does indicate that the – both the predecessor civilian judges and the current civilian judges have been designated.

[00:29:59] Speaker 04:
I find a statement by Judge Pollard saying that he received correspondence from the Department of Defense saying that former, under the old regime, they were designated special government employees and that he received some material.

[00:30:14] Speaker 04:
There's nothing in there in his last iteration saying that he was so designated.

[00:30:21] Speaker 01:
I'm not sure that he stated it in so many words, but I think that the clear implication of his opinion is that he considers himself to be a special government employee, and I think that's also how the

[00:30:35] Speaker 03:
But you suggested that there's actually a formal designation that occurs at some place, that before perhaps you're retained, someone makes a decision that you can be retained as a special government employee, or do you know?

[00:30:48] Speaker 01:
I don't know, except to say that in this case, the way that I read the statement by the clerk of the court that they did make that decision,

[00:30:56] Speaker 01:
But that's how they would treat both the predecessor civilian judges and the civilian judge.

[00:31:00] Speaker 00:
You have to get that, don't you?

[00:31:02] Speaker 00:
In any government agency or else, there are all sorts of ethics things that kick in that you would be violating because you have outside employment, right?

[00:31:12] Speaker 01:
I think that's correct, Your Honor.

[00:31:13] Speaker 04:
Yeah.

[00:31:15] Speaker 04:
And he says in his opinion, contrary to the petitioner's contention, I did not request to be designated

[00:31:25] Speaker 04:
that I ever discussed this with anyone in the executive branch during the nomination or confirmation process.

[00:31:32] Speaker 04:
And then he had this email that he talks about with material.

[00:31:38] Speaker 04:
Where's the evidence of who was designated as special government employee?

[00:31:42] Speaker 01:
Well, I think those statements, Your Honor, were in the context of the claim by the petitioner that he had voluntarily given up his statutory and constitutional protections in order to obtain SGE status, that he had explicitly solicited it.

[00:31:58] Speaker 01:
And I think what he was trying to say there was just that he qualifies as an SGE and has been designated, but that he hadn't

[00:32:09] Speaker 01:
affirmatively sought that out and by being designated as an SGE, that didn't mean that he had somehow given up the structural protections that are his according to the Constitution.

[00:32:24] Speaker 04:
After the email, he said, in response, a few days later, I was provided with some general information regarding special government employees and told that the judges on the predecessor court had been designated SGU's.

[00:32:37] Speaker 04:
He didn't say anything about whether he was.

[00:32:41] Speaker 01:
Your Honor, I think in particular in the earlier order, so there are two orders that the... Well, he's clearing up the earlier order.

[00:32:49] Speaker 04:
That's why, because he said in the earlier order that he was designated, and now he's saying no, or not no, but he's saying, I just got some general information, and information about the predecessor.

[00:33:04] Speaker 04:
That's a critical question, isn't it?

[00:33:07] Speaker 04:
Because if he's not a special government employee, hasn't been designated, then the ethical restrictions have clearly applied him.

[00:33:16] Speaker 01:
I think that's right that it's important, Your Honor.

[00:33:18] Speaker 01:
I just read the overall thrust of both of his orders to be that he considers himself to be an SGE and as such is subject to the narrower conflict of interest rules in section 203.

[00:33:35] Speaker 04:
So that's enough if he considers himself, not whether the Secretary of Defense ever designated him as such.

[00:33:44] Speaker 04:
I don't know that there's any – there are all these rules.

[00:33:48] Speaker 04:
I looked at the regulations on the highly qualified experts, and there are detailed rules about how those individuals get designated as HQEs and who can do it and who has the authority, et cetera, et cetera, et cetera.

[00:34:04] Speaker 04:
Are there such rules with respect to special government employees?

[00:34:11] Speaker 01:
If there are, they aren't in the record.

[00:34:13] Speaker 01:
I know that.

[00:34:14] Speaker 01:
And I guess I'm just, I'm not certain of the answer, but I don't know that it's been in dispute in this case that he, I don't take the petitioner to be saying that there's some fault with the designation of the SGE.

[00:34:28] Speaker 01:
Indeed, the petitioner's position is that he's not properly, he can't be an SGE because of, by statute, not by that there's been an insufficient certification by the

[00:34:39] Speaker 01:
by the Department of Defense.

[00:34:42] Speaker 00:
You're saying it's undisputed, or it has not been disputed, that he is an SGE?

[00:34:47] Speaker 01:
No, I think Petitioner's claim is that he is statutorily ineligible under the definition to be an SGE.

[00:34:53] Speaker 01:
I don't know that I should speak for Petitioner, but I don't take them to have disputed the question of whether the executive branch has done what it must do to

[00:35:05] Speaker 00:
And the prior, the Griffin Bell and Coleman, when they were on the prior formulation of this, they were SGEs.

[00:35:14] Speaker 01:
That's correct.

[00:35:29] Speaker 02:
First of all, I need to thank you, Judge Randolph, for mentioning Kennesaw Mountain Landis, because I now want to bet, because I was told I could not work that into this oral argument.

[00:35:39] Speaker 02:
But to answer your question, that incident gave rise to the Code of Conduct for United States judges.

[00:35:44] Speaker 02:
Well, I know that.

[00:35:45] Speaker 02:
454 dates to 1812.

[00:35:46] Speaker 04:
But it's not the Code of Conduct we have now.

[00:35:49] Speaker 02:
Correct.

[00:35:50] Speaker 02:
It's been revised over time.

[00:35:53] Speaker 02:
That was the first code.

[00:35:54] Speaker 02:
Yeah, Roscoe Pound.

[00:35:56] Speaker 02:
But your question was the origin of 454, and it dates to 1812.

[00:36:02] Speaker 02:
So it is a fundamental, long-standing rule of judicial ethics.

[00:36:06] Speaker 04:
It was passed initially when?

[00:36:08] Speaker 02:
1812.

[00:36:10] Speaker 02:
So, a couple of points.

[00:36:14] Speaker 02:
We aren't making a structural claim.

[00:36:17] Speaker 02:
We're making the opposite of that.

[00:36:18] Speaker 02:
The sherry was a constitutional challenge to a provision of the MCA.

[00:36:23] Speaker 02:
They dealt with the assignment of military judges.

[00:36:25] Speaker 02:
That's a structural challenge.

[00:36:27] Speaker 02:
We're complaining that they're not fulfilling the structure that Congress gave us.

[00:36:33] Speaker 00:
Now, what if they're ineligible for bonuses and they're protected by four-cause protection

[00:36:40] Speaker 00:
as the government has confirmed slash conceded here.

[00:36:45] Speaker 02:
Well, I didn't hear it as that definitive, but I'll assume with your question that it is.

[00:36:50] Speaker 02:
That doesn't completely solve the problem, because we still have the practice of law.

[00:36:55] Speaker 00:
Right, no, but that solves those problems.

[00:36:57] Speaker 02:
That solves those problems.

[00:36:58] Speaker 02:
There are two problems with the practice of law.

[00:37:00] Speaker 02:
One is it's still dependent on the secretary's discretion.

[00:37:03] Speaker 02:
So he's still relying on the good grace of the secretary to allow him to do that while serving as a judge.

[00:37:10] Speaker 02:
And we say that creates the same sort of financial conflict.

[00:37:14] Speaker 02:
Secondly, if it's illegal or impeachable, then it is in propriety.

[00:37:20] Speaker 02:
It's actually in propriety.

[00:37:21] Speaker 00:
The 454 point, you mean?

[00:37:22] Speaker 02:
454 and 203.

[00:37:24] Speaker 02:
And in response to your question, Judge Griffith, I think he can be removed.

[00:37:28] Speaker 00:
That's not necessarily a 455 problem, is it?

[00:37:31] Speaker 02:
I think under Microsoft it is.

[00:37:33] Speaker 02:
Microsoft says that violations of the Code of Conduct, if they rise to the level where they impugn the integrity of the judiciary,

[00:37:41] Speaker 02:
are grounds for disqualification under 455 for the same reason.

[00:37:46] Speaker 02:
They create an appearance of impropriety that undermines confidence in justice.

[00:37:50] Speaker 03:
Talking to reporters about a case seems far afield from this, however.

[00:37:55] Speaker 03:
Let me ask you about 203.

[00:37:58] Speaker 03:
I don't believe you addressed this in your main argument, but maybe you did, and I've just forgotten.

[00:38:04] Speaker 03:
Do you have any evidence that Judge Pollard actually violated 203, that he had clients

[00:38:11] Speaker 03:
who were in litigation with the United States at the time, but he was representing them.

[00:38:16] Speaker 03:
Is there any evidence of that?

[00:38:18] Speaker 03:
I know there's the statement on the firm's website.

[00:38:21] Speaker 02:
Correct.

[00:38:21] Speaker 03:
But beyond that, is there any evidence?

[00:38:23] Speaker 03:
I couldn't find it.

[00:38:24] Speaker 02:
The state of the record is this.

[00:38:26] Speaker 02:
We challenged him on two or three grounds, and we said, it appears to us that you were violating the statute.

[00:38:33] Speaker 02:
His response was not, you're incorrect, I'm not violating the statute.

[00:38:38] Speaker 02:
His response was, I don't have to follow that.

[00:38:40] Speaker 02:
I'm not subject to 203A.

[00:38:42] Speaker 02:
So it seems to me that coupled with the fact that he clearly advertises that he has a federal practice, that's tantamount to a concession that he's in fact not complying with the significant constraints that 203A would put on his practice.

[00:38:58] Speaker 02:
There are no further questions.

[00:39:00] Speaker 03:
Thank you very much.

[00:39:01] Speaker 03:
The case is submitted.