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. In January 2014, the Air Force Office of Special Investigations (“AFOSI”) began investigating commissioned officers for drug offenses. During the course of the investigation of Dalmazzi and others, the AFOSI discovered evidence that some officers had illegally disclosed testing materials used to evaluate Air Force operators on “intercontinental ballistic missile systems.”
Although the AFOSI lacked sufficient evidence to discipline Dalmazzi over the disclosure of the testing materials, it eventually charged her with using ecstasy in violation of 10 U.S.C. § 912a. A military judge sentenced Dalmazzi to dismissal from the Air Force and one month of confinement, and the court-martial affirmed the sentence. Dalmazzi appealed her sentence to the United States Air Force Court of Criminal Appeals (“CCA”). She argued that the highly publicized investigation of the test materials had compromised her chain of command, effectively pressuring them to charge her because they feared that not doing so would lead to their own dismissal. The CCA affirmed Dalmazzi’s charges and sentence.
The United States Court of Appeals for the Armed Forces granted review of Dalmazzi’s case. There, Dalmazzi argued that the presence of Colonel Martin T. Mitchell on the CCA panel that had affirmed her sentence violated both the Appointments Clause of the Constitution and 10 U.S.C. § 973 (b)(2)(A)(ii), because Mitchell was also a judge on the United States Court of Military Commission Review (“CMCR”). The statute prohibits military officers from holding any civil office that requires a presidential appointment with advice and consent of the Senate. Mitchell had been appointed to serve as a judge on the CCA in June 2013 and the Secretary of Defense assigned him to the CMCR on October 28, 2014. After these appointments, in In re al–Nashiri, the U.S. Court of Appeals for the District of Columbia began to question the status of CMCR judges, particularly whether they were principal officers. The court suggested that if the judges were in fact principal officers, they would need to be appointed by the president to avoid violating the Appointments Clause of the Constitution. In response to the In re al–Nashiri decision, President Obama nominated Colonel Mitchell to the CMCR, thus sidestepping the Secretary of Defense’s potentially problematic assignment of Colonel Mitchell to the court. The Senate received the nomination on March 14, 2016, gave its advice and consent on April 28, 2016, and President Obama signed Colonel Mitchell’s commission on May 25, 2016.
Dalmazzi argued that due to the dual service ban in 10 U.S.C. § 973 (b)(2)(A)(ii), Colonel Mitchell could not serve simultaneously as both a CMCR judge and a CCA judge, and that his simultaneous service on both courts violated the Appointments Clause. Finding that President Obama’s May 25, 2016, commission of Colonel Mitchell signified his appointment to the CMCR, the Court held that Colonel Mitchell had not yet been appointed a judge of the CMCR at the time of Dalmazzi’s judgment. As a result, the Court held the case moot as to the issues Dalmazzi raised. Her petition for review was vacated and denied.
In February of 2017, Dalmazzi petitioned the Supreme Court of the United States for a writ of certiorari, which was granted on September 28, 2017. Her case is consolidated with Ortiz v. United States and Cox v. United States, both of which concern similar claims against military officers holding simultaneous positions as civil servants.
THE BAN AGAINST DUAL -OFFICEHOLDING
Dalmazzi and her fellow petitioners (collectively “Dalmazzi”) allege that President Obama’s appointment of four judges from the United States Court of Appeals for the Armed Forces to the U.S. Court of Military Commission Review (“CMCR”) violates 10 U.S.C. § 973(b)(2), which prohibits military officers from holding a civil office requiring appointment by the president and advice and consent of the Senate, unless otherwise authorized by law. First, Dalmazzi notes that both Congress and the Department of Justice have adopted a broad definition of the term “civil office.” Thus, Dalmazzi claims that a civil office includes any position that is established by law, that involves a “clear exercise of the sovereign power of the United States,” and that civilians can hold. Dalmazzi contends that CMCR judgeships meet all of these criteria, as they are open to civilians, involve adjudication of domestic criminal law and are established by federal statute. Second, Dalmazzi asserts that under the Appointments Clause, CMCR judges must be nominated by the president with the advice and consent of the Senate because they are principal rather than inferior executive branch officers. Because CMCR judges issue final decisions, have an extended tenure, may only be removed for cause, and exercise broad discretion, Dalmazzi concludes that they are principal officers who must be approved by presidential appointment with the advice and consent of the Senate. Finally, Dalmazzi notes that Congress has not otherwise authorized military officers to serve on the CMCR.
The United States rejects Dalmazzi’s claim that CMRC judgeships constitute a civil office. The United States maintains that the ordinary meaning of the term “civil” is non-military. By this definition, the United States explains that the CMRC cannot be a civil body because it is a military commission established “to try alien unprivileged enemy belligerents for law-of-war offenses.” Thus, the United States contends that the CMRC is part of the larger military justice system, and its members occupy a military office even if they are technically civilians. Moreover, the United States refutes Dalmazzi’s assertion that CMRC judges must be appointed with the advice and consent of the Senate, noting a related provision, 10 U.S.C. § 950f(b)(2), that authorizes the Secretary of Defense to assign appellate military judges to serve on the CMRC. The United States posits that these assigned CMRC judges hold the same office as their appointed colleagues, and therefore that military personnel are authorized by law to hold that office. According to the United States, Congress’s allowance of both appointment and assignment to the same judicial positions resolves the relevant statutory inquiry without implicating the Appointments Clause.
THE AUTOMATIC TERMINATION REMEDY
Dalmazzi contends that the appropriate remedy for a § 973(b)(2) violation is the officer’s immediate termination from the military. Dalmazzi notes that had this remedy been carried out, the four judges that President Obama appointed to the CMRC would have been unable to rule on the Petitioners’ cases before the CCA. Dalmazzi acknowledges that Congress deleted language referring to automatic termination when it amended § 973(b)(2) in 1983, but asserts that the statute still implicitly codifies the common-law doctrine of incompatibility, under which termination is the default solution. Dalmazzi also alleges that the 1983 changes were purely retroactive, and were intended only to “eliminate termination as a default remedy for violations that pre-dated the amendments.”
The United States disputes Dalmazzi’s arguments regarding automatic termination of military personnel holding civil offices, noting that Congress eliminated any such provision when it rewrote § 973(b)(2) in 1983. In addition, the United States counters Dalmazzi’s claim that the current statute incorporates the common-law incompatibility doctrine, noting that Congress’s deletion of the relevant language in 1983 suggests that it intended to renounce the doctrine. From a constitutional standpoint, the United States contends that service on the CCA is not incompatible with service on the CMRC because the two entities do not adjudicate the same cases. Similarly, the United States rejects the suggestion that judges who serve simultaneously on the CCA and the CMRC might acquire a superior status that would improperly influence the decisions of their CCA colleagues, observing that CCA panels are already made up of judges holding various military designations.
JURISDICTION AND JUSTICIABILITY
Dalmazzi argues that the Supreme Court may hear her appeal under 28 U.S.C. § 1259(3), which gives the Supreme Court jurisdiction in cases where the U.S. Court of Appeals for the Armed Forces (“CAAF”) granted a petition for review. Dalmazzi asserts that the jurisdictional requirements of § 1259(3) are met in any case where the CAAF grants a petition and gives a decision, regardless of the decision’s content. Thus, Dalmazzi maintains it is irrelevant that the CAAF vacated its original orders granting review in her case, because this disposition does not change the fact that the CAAF allowed review in the first place. Furthermore, Dalmazzi points out that allowing the CAAF to shield cases from Supreme Court scrutiny whenever it reverses a grant of review could create constitutional problems.
Dalmazzi also contends that her claims are not moot because she has an ongoing interest in overturning her conviction by seeking to disqualify the wrongfully appointed judges. Dalmazzi asserts that the dual-officeholding ban in § 1259(3) is implicated “as soon as a military officer begins to exercise the functions of an unauthorized civil office.” According to Dalmazzi, it does not matter when President Obama formalized the judge’s appointment, as long as the judge was “exercising the functions” of a CMCR judge when he ruled on her case. Dalmazzi maintains that all four of the judges were exercising their CMCR functions at this time, because they were already confirmed and had begun participating in CMCR cases.
The United States responds that the Supreme Court lacks jurisdiction in the Dalmazzi and Cox cases because the CAAF vacated its orders granting review and therefore did not “grant a petition for review” under § 1259(3). The United States points out that it is within the CAAF’s authority to rescind orders granting review, and that this decision does not raise a constitutional issue regardless of when it is made. Moreover, the United States points to a related statutory provision, 10 U.S.C. § 867(a), which precludes Supreme Court review for any case in which the CAAF “refus[ed] to grant a petition for review.” The United States asserts that this provision confirms that cases in which the CAAF vacated petitions for review cannot be appealed to the Supreme Court. The United States likewise rejects the assertion that § 1259 is unconstitutional because it allows the Supreme Court to exercise original rather than appellate jurisdiction over CAAF decisions, noting that the Court’s appellate jurisdiction has long been extended to cover non-Article III territorial courts, state courts, and military courts-martial.
Even if the Supreme Court concludes that it has jurisdiction, the United States argues that because the CAAF had discretion to grant or deny the petition for review, its decision should be analyzed under an abuse of discretion standard. The United States contends that the CAAF’s actions clearly pass this standard because it denied review after discovering that the cases did not present any relevant questions. The United States also claims that the CAAF intended to convey that Dalmazzi’s petition was “moot” in that it did not touch on any relevant issues, not that it was moot under Article III. Finally, the United States argues that the question of whether the challenged judges were “exercising” their CMCR functions is immaterial because that is not sufficient to establish that the CAAF abused its discretion in denying review.
THE LIMITS OF SUPREME COURT APPELLATE POWER
Writing in support of neither party, Professor Aditya Bamzai argues that if the Supreme Court were able to exercise appellate review over a military commission’s actions, theoretically the Court could review all adjudicatory decisions, even if they are not made by an Article III court. Bamzai asserts that this expansion could lead to the Supreme Court reviewing decisions currently outside of its jurisdiction, such as a decision of the National Labor Review Board or a multinational tribunal. Bamzai also claims that the Supreme Court’s review of Executive Branch bodies like the CAAF would undermine the separation of powers that is central to the constitutional order. If the Court took a step in that direction, Bamzai suggests, Congress might eventually flood the Supreme Court with requests to directly review various agency decisions, thereby undermining the distinction between the judicial and executive branches. In order to preserve the existing constitutional order, Bamzai argues that petitioners such as Dalmazzi should seek judicial redress through habeas corpus proceedings, as well as other collateral review, in federal district court.
In response, the United States argues that the Ortiz case is in fact within the purview of the Supreme Court’s appellate jurisdiction. The United States initially notes that the Supreme Court has long exercised appellate jurisdiction over non-Article III courts, including state courts and the courts of federal territories. The United States analogizes the court-martial system to these other courts created by Congress. Therefore, the United States contends, the Supreme Court likewise has power to review the decisions of the court-martial system, even though it is not an Article III tribunal. Moreover, if the Supreme Court does review court-martial decisions, this does not automatically extend its jurisdiction to all non-Article III courts. Finally, the United States rejects collateral review of these decisions as a sufficient alternative, pointing out that such collateral challenges would preclude the government from seeking appellate review of unfavorable CAAF decisions.
THE CONSTITUTIONAL IMPLICATIONS OF DUAL OFFICE-HOLDING
According to Dalmazzi, if the Supreme Court were to allow judges to serve on both the CAAF and the CMCR, a host of constitutional issues would arise from their dual appointments. First, Dalmazzi argues that the officer’s dual status as an inferior Executive Branch officer of the CCA and a principal Executive Branch officer of the CMCR would generate unconstitutional conflicts of interest. Dalmazzi claims that an “incongruity” arises when an individual is both subordinate to Executive Branch principal officers (by way of his appointment as an inferior officer), and simultaneously stands to unduly influence his fellow inferior officers, who may be swayed by his additional role as principal officer. . Dalmazzi acknowledges that whether such a conflict rises to the “functional incompatibility” prohibited by the Appointments Clause is a question of first impression, but she points out that the United States has failed to identify a single instance of an individual serving as both an inferior and principal officer on separate federal courts–“let alone precedent holding that such simultaneous service is constitutional.” Dalmazzi also contends that because the President can only remove CMCR judges for cause, the President’s authority over a military officer such as Colonel Mitchell would be restricted to a degree inconsistent with the Commander-in-Chief Clause, which gives the president full control over the military and its officers.
The United States responds to Dalmazzi’s constitutional arguments by asserting that the Appointments Clause permits the judges to be assigned to CCAs without being appointed. The United States further argues that despite Dalmazzi’s claim of an “incongruity,” she provides no textual evidence that such dual service amounts to an unconstitutional aberration. The United States also contends that Dalmazzi’s Appointments Clause argument misconstrues a dually appointed officer’s role, since a principal officer’s status on one panel would not carry over to a second panel on which he or she was serving as an inferior officer. Thus, according to the United States, there are no conflicts of interest of the kind Dalmazzi claims exist. Finally, with respect to Dalmazzi’s Commander-in-Chief Clause argument, the United States point out that the judges in question could still possibly be reassigned by the President after they were appointed. As a result, the United States argues that there is no improper restraint on the President’s power over military officers.
- Harry Graver, Military Commissions Loom Large at Supreme Court, Lawfare (Oct. 3, 2017).