Case No. 16-961 | C.A.A.F. Decision
What happens when a defendant who is tried, found guilty, and convicted by a court, appeals that conviction to an appellate panel who affirms the conviction, but on which a judge sits whose appointment might violate federal law? That is what the Court is set to decide in Dalmazzi v. United States.
Nicole Dalmazzi, a Second Lieutenant in the United States Air Force, was convicted by a military judge of using ecstasy, a controlled substance. She was sentenced to dismissal from the Air Force and confinement for one month. The United States Air Force Court of Criminal Appeals (“AFCCA”) affirmed the findings and sentence. Shortly thereafter, Dalmazzi moved the AFCCA to vacate its decision because of the participation of the United States Court of Military Commission Review (“USCMCR”) Judge Martin Mitchell on the panel. Before the AFCCA ruled on the motion, Dalmazzi appealed to the United States Court of Appeals for the Armed Forces.
In 2009, Congress established the USCMCR, which consists of at least one panel of at least three judges. The Secretary of Defense is authorized to assign persons who are military judges to the USCMCR as judges, and the President may appoint, with the advice and consent of the Senate, additional judges. In June of 2013, the Judge Advocate General of the Air Force detailed Judge Mitchell to serve as an appellate military judge on the AFCCA, and in October of 2014, the Secretary of Defense assigned Mitchell to be a judge on the USCMCR.
In In re Al-Nashiri, 791 F.3d 71, (D.C. Cir. 2015), the Court of Appeals for the District of Columbia expressed concern over whether judges on the USCMCR were principal officers, in which case the appointment by the Secretary of Defense would violate the Constitution. The court suggested that “the President and the Senate could decide to put to rest any Appointments Clause questions regarding the [US]CMCR’s military judges by . . . re-nominating and re-confirming military judges to be [US]CMCR judges.” Id. at 86. Thus, the President nominated Judge Mitchell for appointment as an appellate military judge on the USMCR. The Senate received the nomination on March 14, 2016, gave its advice and consent on April 28, and Judge Mitchell took his oath on May 2. President Obama signed his commission on May 25.
Judge Mitchell was one of three appellate military judges to participate in the AFCCA appeal affirming the findings and sentence of Dalmazzi. The AFCCA decision was issued on May 12, 2016, ten days after Mitchell took the oath of office but two weeks before his commission was signed. As such, Dalmazzi argues that as a USCMCR judge, Judge Mitchell was prohibited by 10 U.S.C. § 973(b)(2)(A)(ii)—which prevents an officer of an armed force on active duty from holding or exercising the functions of a civil office in the Government of the United States that requires an appointment by the President by and with the advice and consent of the Senate—from sitting on the AFCCA. Dalmazzi also argues that Judge Mitchell’s service on both the USCMCR and the AFCCA violated the Appointments Clause of the Constitution.
Because Judge Mitchell’s commission had not been signed until after the AFCCA decided Dalmazzi’s case, the Federal Circuit dismissed the appeal as moot. The Court, however, has agreed to hear the case, consolidated with two similar cases, to decide whether the case was in fact moot, whether Judge Mitchell’s service on the USCMCR disqualified him from continuing to serve on the AFCCA, and whether Judge Mitchell’s simultaneous service on both the USCMCR and the AFCCA violated the Appointments Clause.