Dalmazzi v. United States
Issues
Does the appointment of military officers serving on the Army or Air Force Courts of Criminal Appeals to the United States Court of Military Commission Review violate either 10 U.S.C. § 973(b)(2) or the Constitution, and does the Supreme Court have appellate jurisdiction to review the case under 28 U.S.C. § 1259(3)?
In 2016, President Obama appointed four active-duty military officers already serving on the Army or Air Force Courts of Criminal Appeals (CCAs) to serve as judges on the United States Court of Military Commission Review (CMCR). This case consolidates petitions from eight servicemembers whose appeals were each ruled on in a CCA proceeding by one of the judges also appointed to the CMCR. Dalmazzi and her fellow petitioners, individuals whose sentences were affirmed by one of these judges, challenge the judges’ dual appointments as violations of 10 U.S.C. § 973(b)(2), which bars military officers from holding civil offices requiring appointment by the president with the advice and consent of the Senate. Dalmazzi also argues that the Supreme Court has jurisdiction to hear the appeal under 28 U.S.C. § 1259(3). The United States counters that the CMRC judgeship is not a civil office and appointments there do not require advice and consent of the Senate. Additionally, the United States argues that the Supreme Court lacks jurisdiction in some of the consolidated cases. This case creates potential implications for the scope of the Appointments Clause and the Executive Branch’s power to select judges.
Questions as Framed for the Court by the Parties
- Whether this Court has jurisdiction in Nos. 16-961 and 16-1017 under 28 U.S.C. § 1259(3).
- Whether CAAF erred in Nos. 16-961 and 16-1017 in holding that Petitioners’ claims were moot.
- Whether the four judges’ CMCR appointments violated § 973(b)(2)(A)(ii), thereby disqualifying them from continuing to serve on the CCAs.
- Whether the Appointments Clause prohibits a judge from simultaneously serving on both the CMCR and the CCAs.
Petitioner Nicole Dalmazzi was a Second Lieutenant in the United States Air Force. See United States v. Dalmazzi, ACM No. 38808, 2016 WL 3193181, at *1 (A.F. Ct. Crim. App. May 12, 2016). In January 2014, the Air Force Office of Special Investigations (“AFOSI”) began investigating commissioned officers for drug offenses.
Edited by
Additional Resources
- Harry Graver, Military Commissions Loom Large at Supreme Court, Lawfare (Oct. 3, 2017).