No. 94-431 In the Supreme Court of the United States OCTOBER TERM, 1994 JAMES D. RYDER, PETITIONER v. UNITED STATES OF AMERICA ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES BRIEF FOR THE UNITED STATES DREW S. DAYS, III Solicitor General MICHAEL R. DREEBEN Deputy Solicitor General MALCOLM L. STEWART Assistant to the Solicitor General Department of Justice Washington, D.C. 20530 (202)514-2217 PAUL M. GEIER Assistant General Counsel for Litigation Department of Transportation Washington, D.C. 20590 CHARLES J. BENNARDINI Lieutenant Commander, USCG Senior Appellate Government Counsel JOHN F. KOEPPEN Lieutenant Commander, USCG Appellate Government Counsel Commander (G-LMJ) United States Coast Guard Washington, D.C. 20593 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the United States Court of Military Appeals correctly affirmed petitioner's conviction despite its conclusion that the civilian members of the Coast Guard Court of Military Review had been selected for their positions in violation of the Appointments Clause of the Constitution, Art. II, 2, Cl. 2. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Opinions below . . . . 1 Jurisdiction . . . . 1 Constitutional provision involved . . . .2 Statement . . . . 2 A. Military justice overview . . . . 2 B. The Coast Guard Court of Military Review . . . .6 C. The instant case . . . . 7 Summary of argument . . . .10 Argument: The acts of the civilian judges who reviewed petitioner's conviction should be accorded de facto validity despite the existence of an Appointments Clause violation . . . .13 I. A defect in an officer's appointment does not mandate that the officer's acts be invalidated when that result is contrary to the public interest . . . . 13 II. The civilian judges' past judicial acts were correctly determined to be de facto valid . . . . 22 III. The decision of the Court of Military Appeals does not violate the constitutional prohibition against advisory opinions, and it is consistent with this Court's decision in Griffith v. Kentucky . . . . 31 Conclusion . . . . 36 TABLE OF AUTHORITIES Cases: Allen v. State Board of Elections, 393 U.S. 544 (1969) . . . .16 American Trucking Ass'ns v. Smith, 496 U.S. 167 (1990) . . . . 19, 35 Ball v. United States, 140 U.S. 118 (1891) . . . .15 Batson v. Kentucky, 476 U.S. 79 (1986) . . . . 34, 35 Buckley v. Valeo, 424 U.S. 1 (1976) . . . . 10, 13, 14, 16, 17, 18, 22 Butler v. McKellar, 494 U.S. 407 (1990) . . . . 20, 30 Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) . . . . 16 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page Cipriano v. City of Houma, 395 U.S. 701 (1969) . . . . 16, 17 Coleman v. Thompson, 501 U.S. 722 (1991) . . . . 28 Douglas v. California, 372 U.S. 353 (1963) . . . . 27, 28 Dynes v. Hoover, 61 U.S. (20 How.) 65 (1857) . . . . 32 EEOC v. Sears, Rocbuck & Co., 650 F.2d 14 (2d Cir. 1981) . . . . 15 England v. Louisiana State Board of Medical Examiners, 375 U.S. 411 (1964) . . . . 16 Evitts v. Lucey, 469 U.S. 387 (1985) . . . . 27 Freytag v. Commissioner of Internal Revenue, 501 U.S. 868 (1991) . . . . 11-12, 22, 23, 28 Glidden Co. v. Zdanok, 370 U.S. 530 (1962) . . . . 25, 26, 28 Goeke v. Branch, No. 94-898 (Mar. 20, 1995) . . . . 26 Green v. Skulute, 839 F. Supp. 797 (D. Wyo. 1993) . . . . 31 Griffin v. Illinois, 351 U.S. 12 (1956) . . . . 27 Griffith v. Kentucky, 479 U.S. 314 (1987) . . . . 13, 19, 29, 34, 35 Harlow v. Fitzgerald, 457 U.S. 800 (1982) . . . . 20 Harper v. Virginia Dep't of Taxation, 113 S. Ct. 2510 (1993) . . . . 19, 34 James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991) . . . . 11, 18, 19,34 Jones v. Barnes, 463 U.S. 745 (1983) . . . . 26 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) . . . . 33, 34 McDowell v. United States, 159 U.S. 596 (1895) . . . . 15, 16 McKane v. Durston, 153 U.S. 684 (1894) . . . . 26 Middendorf v. Henry, 425 U.S. 25 (1976) . . . . 29 Mistretta v. United States, 488 U.S. 361 (1989) . . . . 22 Northern Pipeline Construction Co. v. Marathon Pipe Line CO., 458 U.S. 50 (1982) . . . . 16, 17,32 Norton v. Shelby County, 118 U.S. 425 (1886) . . . . 11, 15 Ortwein v. Schwab, 410 U.S. 656 (1973) . . . . 26 Parker v. Levy, 417 U.S. 733 (1974) . . . . 28 Penry v. Lynaugh, 492 U.S. 302 (1989) . . . . 20 Preiser v. Newkirk, 422 U.S. 395 (1975) . . . . 32 ---------------------------------------- Page Break ---------------------------------------- V Cases-Continued: Page Ryan v. Tinsley, 316 F.2d 430 (10th Cir.), appeal dismissed, cert. denied, 375 U.S. 17 (1963) . . . . 16 Saint Francis College v. A1-Khazraji, 481 U.S. 604 (1987) . . . . 16 Schlesinger v. Councilman, 420 U.S. 738 (1975) . . . . 30-31 Solorio v. United States, 483 U.S. 435 (1987) . . . . 26, 28 Teague v. Lane, 489 U.S. 288 (1989) . . . . 30 United Public Workers v. Mitchell, 330 U.S. 75 (1947) . . . . 32 United States v. Augenblick, 393 U.S. 348 (1969) . . . . 30 United States v. Carpenter, 37 M.J. 291 (C.M.A. 1993), petition for cert. pending, No. 93-676 . . . . 6, 7, 9, 10, 14, 20, 21, 25, 30, 35 United States v. Cole, 31 M.J. 270 (C.M.A. 1990) . . . . 5 United States v. Estate of Donnelly, 397 U.S. 286 (1970) . . . . 20 United States v. Kovac, 36 M.J. 521 (C.G.C.M.R. 1992), aff'd mem., 39 M.J. 29 (C.M.A. 1993) . . . .6, 7 United States v. Leon, 468 U.S. 897 (1984) . . . . 20, 33 United States v. Munoz-Flores, 495 U.S. 385 (1990) . . . . 23 United States v. Prive, 35 M.J. 569 (C.G.C.M.R. 1992), aff'd mem., 39 M.J. 28 (C.M.A. 1993) . . . . 8 United States v. Townsend, petition for review granted in part, 41 M.J. 121 (C.M.A. 1994) . . . . 30 United States ex rel. Doss v. Lindsley, 148 F.2d 22 (7th Cir.), cert. denied, 325 U.S. 858 (1945) . . . . 11, 15 United States National Bank of Oregon v. Independent insurance Agents of America, Inc., 113 S. Ct. 2173 (1993) . . . . 32 Wainwright v. Sykes, 433 U.S. 72 (1977) . . . . 30 Waite v. City of Santa Cruz, 184 U.S. 302 (1902) . . . . 15 Weiss v. United States, 114 S. Ct. 752 (1994) . . . . 2, 4, 9, 23,24, 25, 26, 27 Constitution and statutes: U.S. Const. : Art. I . . . . 2 ---------------------------------------- Page Break ---------------------------------------- VI Constitution and statutes Continued: Page Art. I, 8, Cl. 14 . . . . 2 Art. II, 2, Cl.2 (Appointments Clause) . . . . passim Art. III . . . . 12, 16, 18, 20, 25, 31, 32 Amend. IV . . . . 20,33 Military Justice Act of 1968, Pub. L. No. 90-632, 82 Stat. 1335: 9,82 Stat. 1336 . . . . 3 27, 82 Stat. 1341 . . . . 5 National Defense Authorization Act for Fiscal Year 1995, Pub. L. No. 103-337, 924, 108 Stat. 2831 -2832 . . . . 4 Uniform Code of Military Justice, 10 U.S.C. 801 et seq.: Art. 1(1), 10 U.S.C. 801(1) . . . . 4 Art. 16(1), 10 U. S.C. 816(1) . . . . 3 Art. 16(2), 10 U.S.C. 816(2) . . . . 3 Art. 16(3), 10 U.S.C. 816(3) . . . . 2 Art. 18, 10 U.S.C. 818 . . . . 3 Art. 19, 10 U.S.C. 819 . . . . 3 Art. 20, 10 U.S.C. 820 . . . . 2 Art. 25, 10 U.S.C. 825 . . . . 3 Art. 26, 10 U.S.C. 826 . . . . 3, 4, 9, 24 Art. 51, 10 U.S.C. 851 . . . . 3 Art. 60, 10 U.S.C. 860 . . . . 3 Art. 66, 10 U.S.C. 866 . . . . 5, 9, 27 Art. 66(a), 10 U.S.C. 866(a) . . . . 5, 7, 9 Art. 67, 10 U.S.C. 867 (Supp. V 1993) . . . . 6 Art. 76, 10 U.S.C. 876 . . . . 30 Art. 112a, 10 U.S.C. 912(a) . . . . 7 Art. 134, 10 U.S.C. 934 . . . . 7 Art. 142, 10 U.S.C. 142 (Supp. V 1993) . . . . 6 Voting Rights Act of 1965, 5, 42 U.S.C. 1973c . . . . 16 10 U.S.C. 101(a)(4) (Supp. V 1993) . . . . 4 10 U.S.C.. 531 . . . . 4 10 U.S.C. 3037 . . . . 4 10 U.S.C. 5148 . . . . 4 10 U.S.C. 8037 . . . . 4 14 U.S.C. 1 . . . . 4 14 U.S.C. 211 . . . . 4 49 U.S.C. 323(a) . . . . 21 ---------------------------------------- Page Break ---------------------------------------- VII Miscellaneous: Page Index and Legislative History, Uniform Code of Military Justice (1950) . . . . 5 Uniform Code of Military Justice: Hearings on H.R. 2498 Before the Subcomm. of the House Armed Services Comm., 81st Cong., 1st Sess. (1949) . . . . 5 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1994 No. 94-431 JAMES D. RYDER, PETITIONER v. UNITED STATES OF AMERICA ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES BRIEF FOR THE UNITED STATES OPINIONS BELOW The opinion of the United States Court of Military Appeals (now called the United States Court of Appeals for the Armed Forces). (Pet. App. 1a-10a) is reported at 39 M.J. 454. The initial opinion of the United States Coast Guard Court of Military Review (now called the United States Coast Guard Court of Criminal Appeals) (Pet. App. 11a-22a) is reported at 34 M. J. 1077. The opinion of the Coast Guard Court of Military Review on recon- sideration (Pet. App. 23a-25a) is reported at 34 M.J. 1259. JURISDICTION The judgment of the United States Court of Military Appeals was entered on June 23, 1994. The petition for a writ of certiorari was filed on September 9, 1994, and was (1) ---------------------------------------- Page Break ---------------------------------------- 2 granted on January 6, 1995. 115 S. Ct. 713. The juris- diction of this Court rests on 28 U.S.C. 1259(3) (Supp. V 1993). CONSTITUTIONAL PROVISION INVOLVED The Appointments Clause of the Constitution, Art. II, 2, Cl. 2, provides as follows: [The President] * * * shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. STATEMENT A. Military Justice Overview Pursuant to Article I of the Constitution, Congress has established three tiers of military courts. See U.S. Const. Art. I, 8, Cl. 14; see Weiss v. United States, 114 S. Ct. 752, 755-756 (1994). At the trial level are the courts-martial, of which there are three types: sum- mary, special, and general. The summary court-martial adjudicates only minor offenses, has jurisdiction only over enlisted service members, and can be conducted only with their consent. It is presided over by a single com- missioned officer who can impose up to one month of confinement and other relatively modest punishments, Arts. 16(3), 20, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 816(3), 820. ---------------------------------------- Page Break ---------------------------------------- 3 The special court-martial usually consists of a military judge and three court-martial members,1 although the Code allows the members to sit without a judge, or the accused to elect to be tried by the judge alone. Art. 16(2), UCMJ, 10 U.S.C. 816(2). A special court-martial has jurisdiction over most offenses under the UCMJ. The maximum punishment that it may impose, however, is six months' confinement, three months of hard labor without confinement, a bad-conduct discharge, partial and temporary forfeitures of pay, and a reduction in rank. Art. 19, UCMJ, 10 U.S.C. 819. The general court-martial consists of either a military judge and at least five members, or the judge alone if the accused so requests. Art. 16(1), UCMJ, 10 U.S.C. 816(1).2 A general court-martial has jurisdiction over all offenses under the UCMJ and may impose any lawful sentence, including death. Art. 18, UCMJ, 10 U.S.C. 818. The military judge acts as presiding officer at a special or general court-martial. Art. 26, UCMJ, 10 U.S.C. 826. The judge rules on all legal questions and instructs court-martial members regarding the law and procedures to be followed. Art. 51, UCMJ, 10 U.S.C. 851. The members decide guilt or innocence and impose sentence unless the trial is before the judge alone. Ibid. No sentence imposed becomes final until it is approved by the officer who convened the court-martial. Art. 60, UCMJ, 10 U.S.C. 860. ___________________(footnotes) 1 Court-martial members may be officers or enlisted personnel, depending on the military status of the accused; the members' responsibilities are analogous to, but somewhat greater than, those of civilian jurors. See Art. 25, UCMJ, 10 U.S.C. 825. 2 The position of military judge has officially existed only since passage of the Military Justice Act of 1968, Pub. L. No. 90-632, 9, 82 Stat. 1336. --------------------------------------- Page Break ---------------------------------------- 4 Military trial judges must be commissioned officers of the armed forces and members of the bar of a federal court or a State's highest court. Art. 26, UCMJ, 10 U.S.C. 826. All commissioned officers are appointed by the President with the advice and consent of the Senate. See 10 U.S.C. 531 (Department of Defense); 14 U.S.C. 211 (Coast Guard). The judges are selected and certified as qualified by the Judge Advocate General of their branch of the armed forces.3 The judges do not serve for fixed terms and may perform judicial duties only when assigned to do so by the appropriate Judge Advocate General. This Court has found the manner of as- signment of commissioned officers as trial judges by the Judge Advocate General to be consistent with the requirements of the Appointments Clause of the Con- stitution, Art. 11, 2, Cl. 2. Weiss, 114 S. Ct. at 759. At the next tier are the four Courts of Criminal Appeals (formerly known as Courts of Military Re- view),4 one each for the Army, Air Force, Coast Guard, ___________________(footnotes) 3 In the Coast Guard, the Judge Advocate General is the General Counsel of the Department of Transportation, Art. l(l), UCMJ, 10 U.S.C. 801(1), while the Judge Advocate General for the Army, Navy, Marine Corps, and Air Force is the principal legal officer for that service. See 10 U.S.C. 3037 (Army); 10 U.S.C. 5148 (Navy-Marine Corps); 10 U.S.C. 8037 (Air Force). Although the Coast Guard is an "agency" within the Department of Transportation, it is also an armed service at all times. See 10 U.S.C. 101(a)(4); 14 U.S.C. 1. 4 Effective October 5, 1994, Section 924 of the National Defense Authorization Act for Fiscal Year 1995, Pub. L. No. 103-337, 108 Stat. 2831-2832, redesignated the several Courts of Military Review as Courts of Criminal Appeals. Section 924 also redesignated the Court of Military Appeals-the highest court within the military justice system as the Court of Appeals for the Armed Forces. For the sake of clarity, this brief will refer to those courts as the Coast Guard Court of Military Review and the Court ---------------------------------------- Page Break ---------------------------------------- 5 and Navy-Marine Corps. Those courts, which usually sit in three-judge panels, review all cases in which the sentence imposed exceeds one year of confinement, involves the dismissal of a commissioned officer, or involves the punitive discharge of an enlisted service member. Art. 66, UCMJ, 10 U.S.C. 866. The courts may review de novo both factual and legal findings,5 and they may overturn convictions and sentences. Ibid. The position of appellate military judge first came into existence with the creation of the Courts of Military Review by the Military Justice Act of 1968, Pub. L. No. 90-632, 27, 82 Stat. 1341. Appellate judges may be com- missioned officers or civilians, but each must be a member of a bar of a federal court or of a State's highest court. Art. 66, UCMJ, 10 U.S.C. 866.6 The judges are selected and assigned to serve by the appropriate Judge Advocate General. Ibid. Like military trial judges, ___________________(footnotes) of Military Appeals-their names at the time they ruled on petitioner's case. 5 As the Court of Military Appeals has noted, "[t]his awesome, plenary, de novo power of review grants unto the Court of Military Review authority to, indeed, substitute its judgment for that of the [trial] court members." United States v. Cole, 31 M.J. 270, 272 (1990) (internal quotation marks omitted). 6 Article 66(a) of the UCMJ expressly authorizes the service of civilian judges on the Courts of Military Review. See 10 U.S.C. 866(a) ("Appellate military judges who are assigned to a Court of Military Review may be commissioned officers or civilians."). The legislative history indicates that the use of civilian judges was authorized by Congress at the request of the Coast Guard, which desired the flexibility, due to its small number of lawyers, to appoint a civilian judge to the court. See Uniform Code of Military Justice: Hearings on H.R. 2498 Before the Subcomm. of the House Armed Services Comm., 81st Cong., 1st Sess. 1189 (1949), reprinted in Index and Legislative History, Uniform Code of Military Justice (1950). ---------------------------------------- Page Break ---------------------------------------- 6 appellate judges do not serve for a fixed term. With the exception of the two retired commissioned officers on the Coast Guard Court who serve in a civilian capacity, all appellate military judges in all of the military services are commissioned officers. Atop the system is the Court of Appeals for the Armed Forces (formerly known as the Court of Military Appeals, see note 4, supra). That court consists of five civilian judges who are appointed by the President, with the advice and consent of the Senate, for fixed terms of 15 years. Arts. 67, 142, UCMJ, 10 U.S.C. 867, 942 (Supp. V 1993). B. The Coast Guard Court of Military Review The Coast Guard Court of Military Review is composed of five appellate judges, three of whom are active-duty commissioned officers in the pay grade of 0-6. United States v. Carpenter, 37 M.J. 291, 293-295 (C.M.A. 1993), petition for cert. pending, No. 93-676 (filed Oct. 29, 1993). The other two members of the court are "civilians," serving in the civilian pay grade of GS-15. Those two judges-Chief Judge Joseph H. Baum and Associate Judge Alfred F. Bridgman, Jr.- are retired commissioned officers who attained the military pay grade of 0-6 before retirement. Ibid.; United States v. Kovac, 36 M.J. 521, 525 (C.G.C.M.R. 1992), aff'd mem., 39 M.J. 29 (C.M.A. 1993).7 ___________________(footnotes) 7 Both Chief Judge Baum and Associate Judge Bridgman were first assigned as appellate military judges while still on active duty. Chief Judge Baum was assigned to the Navy-Marine Corps Court of Military Review in 1976 as an active-duty Navy Captain. Kovac, 36 M.J. at 526. He served in that capacity until 1982, when he retired from active duty. Ibid. Associate Judge Bridgman was appointed to the Coast Guard Court of Military Review in 1975, while still on active duty. Ibid. He served in that capacity until his retirement from active duty in 1977. Ibid. After his ---------------------------------------- Page Break ---------------------------------------- 7 Before January 15, 1993, members of the Coast Guard Court of Military Review were appointed by the General Counsel of the Department of Transportation, who is also the Judge Advocate General for the United States Coast Guard. Carpenter, 37 M.J. at 294; see note 3, supra.8 on that date, the Secretary of Transportation issued a memorandum stating that "[t]he assignment of appellate military judges to the Coast Guard Court of Military Review, as reflected in the General Counsel's memo of April 20, 1992, is adopted this date as judicial appointments of my own." See Carpenter, 37 M.J. at 294 n.1, 300. C. The Instant Case Petitioner, a member of the United States Coast Guard, was convicted at a general court-martial of 11 specifications of marijuana use, three specifications of use of lysergic acid diethylamide (LSD), one specifi- cation of cocaine use, one specification of soliciting Coast Guard personnel to use LSD, and one specification of soliciting Coast Guard personnel to distribute LSD, in violation of Articles 112a and 134 of the UCMJ, 10 U.S.C. 912a, 934. Pet. App. 12a, 24a. He was sentenced to five years' confinement, forfeiture of $699 per month for 60 months, reduction to the lowest enlisted pay grade (E-l), and a dishonorable discharge from the Coast Guard. Id. at 2a. The convening authority reduced the period of confinement to three years and the period of forfeitures ___________________(footnotes) retirement, he was again assigned to the same court in 1978 and has served continuously since that time. Ibid. 8 The Judge Advocate General is authorized to "establish a Court of Military Review" and to "designate" one of the appellate military judges as chief judge. Article 66(a), UCMJ, 10 U.S.C. 866(a). ---------------------------------------- Page Break ---------------------------------------- 8 to three years but approved the adjudged sentence in all other respects. Ibid. Petitioner appealed to the Coast Guard Court of Military Review. He contended that (1) his convictions resulted from the improper admission of evidence, (2) his sentence was disproportionately harsh, and (3) he had been denied effective assistance of counsel. See Pet. App. 12a-13a. When petitioner's appeal was heard, the judges of the Coast Guard Court of Military Review were serv- ing pursuant to appointments by the General Counsel. Petitioner's panel consisted of Chief Judge Baum and Associate Judge Bridgman, the civilian judges, and Judge Shkor, a commissioned officer. Id. at 12a, 24a. The court affirmed petitioner's convictions and sen- tence. Pet. App. 11a-22a. In response to petitioner's motion, the court ordered reconsideration of its decision. See id. at 24a. On reconsideration, petitioner argued, inter alia, that the method of assigning judges to the Court of Military Review violated the Appointments Clause of the Constitution. The court rejected that contention on the authority of United States v. Prive, 35 M.J. 569 (C.G.C.M.R. 1992), aff'd mem., 39 M.J. 28 (C.M.A. 1993). Pet. App. 24a-25a. Approximately one year later, the Court of Military Appeals held in Carpenter that the method by which the Chief Judge of the Coast Guard Court of Military Review had been selected before January 15, 1993, violated the Appointments Clause. The government argued in that case that "because the Chief Judge of the Coast Guard Court of Military Review is a retired Navy captain, he is already an Officer of the United States by virtue of his military commission, so he does not need a second judicial appointment to serve as an appellate military judge." 37 M.J. at 294-295. The Court of Military Appeals rejected that contention on two bases. First, the ---------------------------------------- Page Break ---------------------------------------- 9 court stated that "Chief Judge Baum is not acting in his capacity as a Navy captain when he sits as an appellate military judge," explaining that "the billet for the Chief Judge is a civilian billet" and that the Chief Judge "is paid as a civilian employee." Id. at 295. Second, the court found that "Chief Judge Baum's duties as Chief Judge are not `germane' to the duties of a retired Navy officer." Ibid. Accordingly, the court concluded that the selection of a civilian as Chief Judge by the Judge Advocate General, who was not the "Head[] of [a] Department[]," violated the Appointments Clause. Id. at 294.9 The Court of Military Appeals concluded, however, that Carpenter's conviction and sentence should be ___________________(footnotes) 9 This Court concluded in Weiss v. United States, 114 S. Ct. 752, 757 (1994), that "those serving as military judges must be appointed pursuant to the Appointments Clause." All of the trial and appellate judges whose appointments were at issue in Weiss were active-duty commissioned officers-a position that requires appointment by the President with the advice and consent of the Senate. See ibid. This Court recognized that Congress, in Articles 26 and 66 of the UCMJ, 10 U.S.C. 826, 866, did not require a second appointment to the position of military judge before the assumption of judicial duties. 114 S. Ct. at 760. The Court also concluded that the Appointments Clause itself does not require a second appointment before military officers may discharge the duties of military judge. Ibid. The Court noted, however, that "[t]he constitutionality of the provision allowing civilians to be assigned to Courts of Military Review, without being appointed pursuant to the Appointments Clause, obviously presents a different question." Id. at 757 n.4 (citing Art. 66(a), UCMJ, 10 U.S.C. 866(a)). The government does not contest the holding in Carpenter that the manner in which the civilian judges of the Coast Guard Court of Military Review had been selected before January 15, 1993, violated the Appointments Clause. ---------------------------------------- Page Break ---------------------------------------- 10 affirmed despite the constitutional flaw in the appoint- ment process. The court explained: We next turn to the question of the effect of the Chief Judge's defective appointment. Just as the acts of the federal election commissioners were accorded de facto validity in Buckley v. Valeo, 424 U.S. [1,] 142 [(1976) (per curiam)], * * * we hold that the judicial acts of the Chief Judge are entitled to de facto validity. Accordingly, we hold that the decision of the Court of Military Review in this case is valid, notwithstanding the defective appointment of the Chief Judge. Carpenter, 37 M.J. at 295. In the present case, petitioner argued in the Court of Military Appeals that the appellate review of his court- martial by the Court of Military Review should be set aside on the ground that the two civilian judges of the Court of Military Review who participated in his case were unconstitutionally appointed. Relying on Carpenter, the Court of Military Appeals declined to afford him relief on that basis. Pet. App. 2a n.1. The Court of Military Appeals also rejected petitioner's contention that his convictions had been based on improperly admitted evidence. See id. at la-lea. The Court of Military Appeals therefore affirmed the judgment of the Coast Guard Court of Military Review. Id. at 10a. SUMMARY OF ARGUMENT 1. The Court of Military Appeals correctly applied Buckley v. Valeo, 424 U.S. 1, 142 (1976) (per curiam), in holding that the prior judicial acts of the civilian judges of the Coast Guard Court of Military Review should be accorded de facto validity. It has long been the law, ---------------------------------------- Page Break ---------------------------------------- 11 under the de facto officer doctrine, that "[a] person actually performing the duties of an office under color of title is an officer de facto, and his acts as such officer are valid so far as the public or third parties who have an interest in them are concerned." United States ex rel. Doss v. Lindsley, 148 F.2d 22, 23 (7th Cir.), cert. denied, 325 U.S. 858 (1945). The de facto officer doctrine "is founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby." Norton v. Shelby County, 118 U.S. 425,441 (1886). Similar concerns have led this Court to determine, in appropriate cases, that decisions regarding the legality of an officer's appointment or exercise of power should be given prospective application only. The Court in such decisions "has never been required to distinguish the remedial from the choice-of-law aspect of its decision," James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 536 (1991) (opinion of Souter, J.). In this case, the decision of the Court of Military Appeals to accord de facto validity to the acts of civilian members of the Coast Guard Court of Military Review, despite the Appoint- ments Clause violation, should be understood to rest on remedial rather than on choice-of-law principles. The Court of Military Appeals acknowledged that an Appointments Clause violation had occurred; it simply determined that the unconstitutional manner of the civilian judges' appointments did not entitle a defendant to vacatur of the Coast Guard Court of Military Review's decisions. 2. The Appointments Clause reinforces the "struc- tural integrity" of the Constitution by preventing the encroachment of one branch of government upon another and "by preventing the diffusion of the appointment power." Freytag v. Commissioner of Internal Revenue, ---------------------------------------- Page Break ---------------------------------------- 12 501 U.S. 868, 878 (1991). The purpose of the Appoint- ments Clause is not principally to safeguard individual rights and liberties. Nor is there is any reason to believe that the constitutional violation in this case affected the outcome of petitioner's appeal. Because petitioner's personal rights were not violated, and he indeed possessed no constitutional entitlement to appellate review of any sort, vacatur of the decision of the Coast Guard Court of Military Review could be defended only as a means of increasing the incentive for litigants to raise Appointments Clause challenges, thereby decreasing the likelihood that violations would escape judicial resolution. Whatever the merits of that mode of analysis in other contexts, it has no application to the military justice system. In light of the significant need for order and stability in military society in general and in the military justice system in particular, courts have exercised restraint before intervening in military affairs. This Court should refrain from requiring disruptive remedies for the military justice system, when those remedies are solely justified to encourage the enforcement of structural provisions unrelated to the interests of the defendant servicemen. 3. The Court of Military Appeals' determination that the existence of an Appointments Clause violation did not mandate vacatur of the decision of the Coast Guard Court of" Military Review was not an impermissible advisory opinion. First, the Court of Military Appeals is not an Article III court and consequently is not subject to the constitutional prohibition of advisory opinions. In any event, the court's action is not properly charac- terized as advisory. In a prior case, the court thoroughly explicated its ultimate determination that the decision of the Coast Guard Court of Military Review should be affirmed despite the violation it found-no different in ---------------------------------------- Page Break ---------------------------------------- 13 principle from an opinion explaining that a defendant's trial involved a deprivation of constitutional rights but that the error was harmless beyond a reasonable doubt. Finally, there is no merit to petitioner's contention that the Court of Military Appeals' decision conflicts with this Court's holding in Griffith v. Kentucky, 479 U.S. 314 (1987). The Court of Military Appeals concluded that vacatur of the lower court's decision was not an appropriate remedy for the Appointments Clause viola- tion, and it declined to afford relief either to the defendant who litigated the claim or to similarly situated defendants. The principle upon which Griffith rests- that similarly situated criminal defendants should not receive different treatment simply because of the happenstance that one case rather than another is used as the vehicle for the announcement of a new rule- therefore has no application to the present case. ARGUMENT THE ACTS OF THE CIVILIAN JUDGES WHO REVIEWED PETITIONER'S CONVICTION SHOULD BE ACCORDED DE FACTO VALIDITY DESPITE THE EXISTENCE OF AN APPOINTMENTS CLAUSE VIOLATION I. A Defect In An Officer's Appointment Does Not Mandate That The Officer's Acts Be Invalidated When That Result Is Contrary To The Public Interest In Buckley v. Valeo, 424 U.S. 1, 142 (1976) (per curiam), this Court held that the Federal Election Commission as then composed could not constitutionally exercise the power to enforce or administer the campaign finance laws, because it violated the Appointments Clause of the Constitution for Congress itself to select the members ---------------------------------------- Page Break ---------------------------------------- 14 of a commission vested with such powers. Id. at 140-142. The Court concluded, however, that the defective ap- pointment of the commissioners did not require invalidation of their past acts. The Court explained: [T]he Commission's inability to exercise certain powers because of the method by which its members have been selected should not affect the validity of the Commission's administrative actions and determinations to this date * * *. The past acts of the Commission are therefore accorded de facto validity, just as we have recognized should be the case with respect to legislative acts performed by legislators held to have been elected in accordance with an unconstitutional apportionment plan. Id. at 142 (citing cases). Relying on Buckley, the Court of Military Appeals ruled in United States v. Carpenter, 37 M.J. 291, 295 (C.M.A. 1993), petition for cert. pending, No. 93-676 (filed Ott. 29, 1993), that the judicial acts of the civilian Chief Judge of the Coast Guard Court of Military Review are "entitled to de facto validity," despite the violation of the Appointments Clause in his appointment. In our view, that holding is correct. The question whether the Constitution was violated by the method of appointment of an officer of the United States is distinct from the question whether the violation requires that the officer's past acts be invalidated. This Court's cases teach that the latter issue-a remedial question- implicates the public interest, and that the public's legitimate reliance on the stability of government action can justify according de facto validity to the acts of a defectively appointed officer. A. This Court has long recognized, through the de facto officer doctrine, the public interest in validating ---------------------------------------- Page Break ---------------------------------------- 15 the actions of public officers despite flaws in their appointment. See, e.g., Norton v. Shelby County, 118 U.S. 425, 441-449 (1886); Ball v. United States, 140 U.S. 118, 128-129 (1891); McDowell v. United States, 159 U.S. I 596, 601-602 (1895); Waite v. City of Santa Cruz, 184 U.S. 302, 323 (1902). Under that doctrine, "[a] person actually I performing the duties of an office under color of title is an officer de facto, and his acts as such officer are valid so far as the public or third parties who have an interest in them are concerned." United States ex rel. Doss v. Lindsley, 148 F.2d 22,23 (7th Cir.), cert. denied, 325 U.S. 858 (1945). The de facto officer doctrine, which limits the extent to which acts of officers may be invalidated on the ground of purported defects in the legality of their appointment or election, "is founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby." Norton, 118 U.S. at 441. Accord EEOC v. Sears, Roebuck & Co., 650 F.2d 14, 17 (2d Cir. 1981) ("The de facto officer doctrine was developed to protect the public from the chaos and uncertainty that would ensue if actions taken by individuals apparently occupying government offices could later be invalidated by exposing defects in the officials' titles."). It is therefore well established that "where there is an office to be filled and one acting under color of authority fills the office and discharges its duties, his actions are those of an officer de facto and binding upon the public." McDowell, 159 U.S. at 602. Where the de facto officer doctrine has been applied, this Court has typically declined to address the legal validity of the officer's appointment or election, on the theory that any defect in the manner of the officer's selection furnished no basis for a "collateral attack" on his acts in office. Ball, 140 U.S. at 129; see also McDowell, 159 U.S. ---------------------------------------- Page Break ---------------------------------------- 16 at 601-602; Lindsley, 148 F.2d at 23; Ryan v. Tinsley, 316 F.2d 430, 432 (10th Cir.), appeal dismissed, cert. denied 375 U.S. 17 (1963). In more recent decisions, the Court has also recognized the public interest in avoiding the retroactive invalidation of the acts of public officials. In contrast to the de facto officer cases, however, the more recent decisions have addressed and decided issues concerning the constitutional validity of the challenged officers' appointments or exercises of power, but have determined that the decision upholding the constitutional claim should be given prospective effect only. See Buckley v, Valeo, supra (Appointments Clause violation); Northern Pipeline Construction, Co. v. Marathon Pipe Line Co., 458 U.S. 50, 87-88 (1982) (plurality opinion) (finding unconstitutional Congress's grant of judicial power to non-Article III bankruptcy judges, but declining to invalidate prior acts of those judges); id. at 92 (Rehnquist, J., joined by O'Connor, J., concurring in the judgment); Cipriano v. City of Houma, 395 U.S. 701,706 (1969) (per curiam) (finding voting restriction uncon- stitutional, but declining to invalidate municipal securities issued by the unconstitutionally elected body); Allen v. State Board of Elections, 393 U.S. 544,572 (1969) (finding violation of Section 5 of the Voting Rights Act of 1965, but giving "only prospective effect to our decision'').10 The Court characterized its action in ___________________(footnotes) 10 In other contexts as well, the Court has occasionally determined that a newly announced rule of law should not be given retroactive effect. See Saint Francis College v. A1-Khazraji, 481 U.S. 604, 608-609 (1987); Chevron Oil Co. v. Huson, 404 U.S. 97, 105-109 (1971 ); England v. Louisiana State Board of Medical Examiners, 375 U.S. 411,422 (1964). ---------------------------------------- Page Break ---------------------------------------- 17 Buckley as according "de facto validity" to the past official acts. Buckley, 424 U.S. at 142. When the Court has determined to apply a holding prospectively only, it has invoked considerations closely related to those that underlie the de facto officer doctrine. In Northern Pipeline, for example, the plura- lity explained that retroactive application of its holding "would surely visit substantial injustice and hardship upon those litigants who relied upon the Act's vesting of jurisdiction in the bankruptcy courts." 458 U.S. at 88 (plurality opinion); see also id. at 92 (Rehnquist, J., concurring in the judgment). The Court therefore stayed its judgment to "afford Congress an opportunity to constitute the bankruptcy courts or to adopt other valid means of adjudication, without impairing the interim administration of the bankruptcy laws." Id. at 88. And in Cipriano, 395 U.S. at 706, the Court declined to impose "[significant hardships" and "substantial in- equitable results" on cities that had issued bonds authorized by invalidly elected bodies. From the decisions discussed above emerge two principles that are central to the Court's resolution of this case. First, a legal defect in the manner of an officer's appointment does not automatically necessitate invalidation of that officer's prior acts. The Court in Buckley applied that principle, moreover, even though the flaw in the officers' appointment was constitutional in nature, and even though the powers exercised by the commissioners included quasi-adjudicatory functions. See 424 U.S. at 140 ("All aspects of the Act are brought within the Commission's broad administrative powers: rulemaking, advisory opinions, and determinations of eligibility for funds and even for federal elective office ---------------------------------------- Page Break ---------------------------------------- 18 itself.'').11 Second, in determining how a new legal rule is to be applied to the parties before it, a court may legitimately take account of the reasonable expectations held by the parties and the public generally at the time of the conduct whose legality is at issue. B. Like this Court in Buckley and Northern Pipeline, the Court of Military Appeals in Carpenter issued a "purely prospective" decision, in which the new rule announced by the decision is not applied to past conduct, whether of the parties who litigated the issue or of others, but rather is made "effective with respect to all conduct occurring after the date of that decision." James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 536 (1991 ) (opinion of Souter, J.).12 In prior cases in ___________________(footnotes) 11 Similarly in Northern Pipeline, the Court applied its decision prospectively despite the fact that judges lacking the tenure and salary protections of Article III had been permitted to adjudicate civil actions that, as a constitutional matter, could properly be assigned (within the federal system) only to Article III judges. 12 In Beam, Justices Souter and Stevens expressly reserved the question whether "pure" prospectivity was permissible, 501 U.S. at 544, while acknowledging that in some cases the Court had followed that course, id. at 536 (citing, inter alia, Buckley v. Valeo, supra). The Chief Justice and Justices White, O'Connor, and Kennedy would have held in Beam that the Court could decline, in an appropriate case, to apply newly announced rules of law to the parties before it. 501 U.S. at 544-547 (White, J., concurring in the judgment); id. at 549-559 (O'Connor, J., dissenting). Justices Marshall, Blackmun, and Scalia would have held that prospective decisionmaking violated Article III. Id. at 547-548 (Blackmun, J. concurring in the judgment); id. at 548-549 (Scalia, J., concurring in the judgment). Beam, itself involved the different question whether a court could engage in "selective prospectivity," in which a court "appl[ies] a new rule in the case in which it is pronounced, then return[s] to the old one with respect to all others arising on facts predating the pronouncement." Beam, 501 U.S. at 537 (opinion of ---------------------------------------- Page Break ---------------------------------------- 19 which the Court has declined to give "retroactive effect" to newly announced rules of law, the Court has not been "required * * * to distinguish the two senses in which retroactivity may be used." American Trucking Ass'ns v. Smith, 496 U.S. 167, 209 (1990) (Stevens, J., dissenting, joined by Brennan, Marshall & Blackmun, JJ.). "A decision may be denied `retroactive effect' in the sense that conduct occurring prior to the date of decision is not judged under current law, or it may be denied `retro- active effect' in the sense that independent principles of law limit the relief that a court may provide under current law. " Ibid. That distinction, as Justice Souter noted in Beam, is between "the remedial" and "the choice-of-law" aspect of judicial decisionmaking. 501 U.S. at 536 (opinion of Souter, J.). If the prospectivity determination is regarded as a decision concerning choice of law, its effect would be to treat past conduct that contravenes a newly established rule as lawful, on the ground that the conduct predated the rule's announcement. To regard the issue as one of remedy, in contrast, is to say that in determining the relief to be awarded for a legal violation, a court may attach significance to the fact that the prevailing rule of law was understood differently when the conduct in ___________________(footnotes) Souter, J.). The Court has definitively rejected that practice, holding that "[w]hen [the Supreme] Court applies a rule of federal law to the parties before it, that rule is the controlling inter- pretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate [the Court's] announcement of the rule." Harper v. Virginia Dep't of Taxation, 113 S. Ct. ,2510, 2517 (1993). The Court previously rejected the practice of selective prospectivity in criminal cases in Griffith v. Kentucky, 479 U.S. 314 (1987). This case involves no issue of "selective prospectivity." ---------------------------------------- Page Break ---------------------------------------- 20 question occurred, that disruption of past affairs may be against the public interest, and that the relief for violations that occurred before the present decision may differ from the relief awarded for identical violations that occur afterwards. Whatever the merits of pure pro- spectivity as a choice-of-law principle, the exercise of equitable discretion in the formulation of remedies is consistent with Article III. In particular, consideration of reliance interests in determining appropriate relief is fully in keeping with traditional conceptions of the judicial role. See United States v. Estate of Donnelly, 397 U.S. 286, 295-297 (1970) (Harlan, J., concurring).13 In our view, the decision of the Court of Military Appeals in Carpenter is properly understood as resting on remedial rather than on choice-of-law principles. The court did not purport to hold that the participation of the civilian judge on the Coast Guard Court of Military Review was lawful at the time the Court of Military Review heard Carpenter's case. To the contrary, its analysis made clear that the Appointments Clause violation existed at the time of that appeal. See 37 M.J. at 294-295. Rather, having concluded that the civilian ___________________(footnotes) 13 Indeed, in a variety of contexts, the availability of a particular remedy for unlawful government conduct may depend upon whether the illegality of that conduct was clearly established at the time of its occurrence. See, e.g., Butler v. McKellar, 494 U.S. 407, 414 (1990) (habeas corpus); Harlow v. Fitzgerald, 457 U.S. 800, 813-819 (1982) (qualified immunity); United States v. Leon, 468 U.S. 897, 918-921 (1984) (Fourth Amendment ex- clusionary rule). Protection of reliance interests in that manner is particularly justified where the requested remedy serves to deter future violations and thereby advance societal interests, rather than to vindicate rights personal to the individual litigant. See Leon, 468 U.S. at 906-908; cf. Penry v. Lynaugh, 492 U.S. 302, 352 (1989) (Scalia, J., concurring in part and dissenting in part). ---------------------------------------- Page Break ---------------------------------------- 21 judge's participation "does not satisfy the Appointments Clause," the court next considered "the question of the effect of the [civilian judge's] defective appointment." Id. at 295. Its affirmance of the Coast Guard Court of Military Review's decision was thus based not on the theory that the civilian judge had been properly appointed (under some prior interpretation of the Appointments Clause), but on the theory that the unconstitutional manner of that judge's appointment did not entitle Carpenter to the remedy of vacatur of the lower court's ruling. The Court of Military Appeals did not directly address the question whether future rulings of the Coast Guard Court of Military Review would be vacated if the govern- ment failed to eliminate the constitutional infirmity. That question was, in any event, highly theoretical, because by the time of the Court of Military Appeals' ruling in Carpenter, the civilian judges on the Coast Guard Court of Military Review had received new appointments from the Secretary of Transportation-a head of a department-and they were therefore appointed in compliance with the Constitution. See Carpenter, 37 M.J. at 294 n.1, 300.14 The court's citation to Buckley, ___________________(footnotes) 14 In his brief on the merits, petitioner appears to acknow- ledge the constitutionality of those appointments, by requesting that this Court "reverse the judgment of the Court of Military Appeals, and remand the case for a new hearing of his appeal in the Coast Guard Court of Military Review." Pet. Br. 23. In his petition for a writ of certiorari, however, petitioner suggested that the Secretary's January 15, 1993, appointments to the Coast Guard Court of Military Review might be unauthorized by statute and therefore invalid. See Pet. 7 n.3. As we noted in our brief in opposition (Br. in Opp. 8 n.4), the validity of the January 15, 1993, appointments is not squarely presented in this case, and peti- tioner's attack on those appointments is in any event without merit. See 49 U.S.C. 323(a) (Secretary of Transportation is ---------------------------------------- Page Break ---------------------------------------- 22 however, at least suggests that the Court of Military Appeals would vacate rulings if the violation were not remedied-i.e., that the remedy for future Appointments Clause violations would have been different from those that had occurred in the past. As we show below, that exercise of remedial discretion by the Court of Military Appeals was justified. In light of the nature of the violation, the insubstantial and speculative nature of any impact it may have had on peti- tioner's appeal, the absence of any constitutional re- quirement of appellate review within the military justice system, and the substantial public interest in avoiding disruption of that system, the decision to frame relief prospectively only should be upheld. II. The Civilian Judges' Past Judicial Acts Were Correctly Determined To Be De Facto Valid A. The Appointments Clause of the Constitution, Art. II, 2, Cl. 2, requires that principal officers of the United States be appointed by the President with the advice and consent of the Senate. Inferior officers may be appointed by the President alone, the Head of a Department, or a court of law. The Appointments Clause is deeply rooted in separation-of-powers principles. See Buckley, 424 U.S. at 124. Although this Court has focused its separation-of-powers jurisprudence on the danger of one branch aggrandizing its power at the expense of another, see, e.g., Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 878 (1991) (citing Mistretta v. United States, 488 U.S. 361, 382 (1989)), the Appointments Clause "not only guards against this ___________________(footnotes) authorized to "appoint and fix the pay of officers and employees of the Department of Transportation and [to] prescribe their duties and powers"). ---------------------------------------- Page Break ---------------------------------------- 23 encroachment but also preserves another aspect of the Constitution's structural integrity by preventing the diffusion of the appointment power." Freytag, 501 U.S. at 878. See also id. at 880 ("The structural interests protected by the Appointments Clause are not those of any one branch of Government, but of the entire Republic."). In a general sense, of course, such structural requirements of the separation of powers can be said to "safeguard liberty." United States v. Munoz-Flores, 495 U.S. 385, 395 (1990). But the central purpose of limiting the appointment power in the Executive Branch to the President and the Heads of Departments is to ensure that appointments are made in a politically accountable fashion. Freytag, 501 U.S. at 884 ("The Framers understood * * * that by limiting the appointment power, they could ensure that those who wielded it were accountable to political force and the will of the people."); id. at 886 ("The[] heads [of Cabinet-level departments] are subject to the exercise of political oversight and share the President's accountability to the people."). That objective has no direct role in protecting individual rights and liberties. Here, for example, any protection that petitioner would have enjoyed if his conviction were reviewed by judges appointed by a head of a department rather than the Judge Advocate General would be tan- gential at best. Indeed, in holding in Weiss v. United States, 114 S. Ct. 752 (1994), that military judges are "Officers of the United States" who must be selected in accordance with the Appointments Clause, the Court did not suggest that officers so appointed would be more ---------------------------------------- Page Break ---------------------------------------- 24 protective of defendants' rights than would judges appointed (as in this case) by a Judge Advocate General.15 Petitioner does not maintain that the method of appointing judges to the Coast Guard Court of Military Review before the Secretarial appointment of January 15, 1993, had an actual adverse effect on the outcome of his case. He does not even contend that the system of assigning appellate judges that was in place when his case was reviewed by the Court of Military Review was likely to impair his right to receive a fair and impartial appellate review. Nor is there any reason to believe that the civilian judges who considered petitioner's appeal were either insufficiently concerned with the rights of defendant servicemen or insufficiently qualified to exercise their assigned functions. Indeed, both civilian judges who sat on petitioner's appeal to the Coast Guard Court of Military Review had previously served as appellate military judges, pursuant to constitutionally valid appointments, before their retirement as active- duty officers. See note 7, supra. The insubstantial likelihood that the constitutional infirmity affected the outcome of petitioner's appeal bears heavily on the determination of appropriate relief.16 ___________________(footnotes) 15 In rejecting the due process challenge in Weiss, the Court noted that under Article 26 of the UCMJ, 10 U.S.C. 826, military trial judges are placed under the authority of the service's Judge Advocate General. Weiss, 114 S. Ct. at 762. The Court concluded that this structure helps to protect the military judge's independence. Ibid. 16 The likelihood of prejudice from the Appointments Clause violation here was further diminished by petitioner's right to seek further review, in the United States Court of Military Appeals, of his challenges to the manner in which his trial was conducted. As this Court observed in Weiss, the Court of Military Appeals "has ---------------------------------------- Page Break ---------------------------------------- 25 Petitioner argues that the approach taken by the Court of Military Appeals in Carpenter "would effectively remove all [Appointments Clause] claims from judicial review and thereby allow Congress or the Executive to violate the explicit provisions of the Appointments Clause with impunity, because the de facto officer doctrine would always prevent a court from reaching the merits of the issue of the challenged appointment. " Pet. Br. 20. The Court of Military Appeals in Carpenter, however, did not cite or apply the "de facto officer doctrine," and it did not decline to adjudicate the merits of Carpenter's Appointments Clause claim. Rather, it squarely held that the civilian member of the Coast Guard Court of Military Review had been unconstitutionally appointed, but it affirmed the court's decision on the ground that "the judicial acts of the [civilian judge] are entitled to de facto validity." 37 M.J. at 295. That disposition ensured that the under- lying legal issue did not go unresolved, while taking account of the lack of prejudice to the defendant in the formulation of an appropriate remedy for the con- stitutional violation.17 ___________________(footnotes) demonstrated its vigilance in checking any attempts to exert improper influence over military judges." 114 S. Ct. at 762. 17 For similar reasons, petitioner's reliance (Br. 16) on Glidden Co. v. Zdanok, 370 U.S. 530, 535-536 (1962) (opinion of Harlan, J.), is misplaced. Petitioner argues (Br. 16) that the de facto officer doctrine "does not apply when the defect is more than technical, and implicates a strong policy concerning the proper functioning of the government as reflected in the Constitution." As we have explained, however, the court below did not apply the "de facto officer doctrine''-which would have obviated the need to adjudicate the constitutional issue-but instead accorded de facto validity to an official's actions after deciding the constitutional issue, as this Court did in Buckley and Northern Pipeline. ---------------------------------------- Page Break ---------------------------------------- 26 B. Petitioner contends that the Court of Military Appeals' decision will leave him "without a remedy for the violation [of] his right to have his court-martial reviewed by a constitutionally-appointed court." Pet. Br. 20. Petitioner does not, however, identify the source of such a "right. " While Congress has established a system of appellate review in the military, "[t]his Court has long recognized that, even in criminal cases, due process does not require a State to provide an appellate system." Ortwein v. Schwab, 410 U.S. 656, 660 (1973). Accord, e.g., Goeke v. Branch, No. 94-898 (Mar. 20, 1995) (per curiam), slip op. 6; Jones v. Barnes, 463 U.S. 745,751 (1983); McKane v. Durston, 153 U.S. 684,687 (1894). Any contention that the Constitution requires appellate review of a criminal conviction would be particularly unfounded in the context of the military justice system, since "Congress has primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military." Solorio v. United States, 483 U.S. 435,447 (1987); see also id. at 448 (Court has "adhered to this principle of deference in a variety of ___________________(footnotes) Moreover, petitioner is not assisted by Justice Harlan's conclusion that the de facto officer principle was inapplicable to the Article III violation charged in Glidden. Buckley and Northern Pipeline make clear that separation-of-powers violations, whether arising under the Appointments Clause or Article III, do not invariably mandate retrospective relief. In any event, Glidden involved the life tenure and compensation of Article III judges, which were "designed in part for the benefit of litigants." Glidden, 370 U.S. at 536 (opinion of Harlan, J.) (emphasis added), while this case involves a violation of the Appointments Clause, which has at most an indirect and attenuated connection to the individual rights of defendants appearing before military appellate judges selected by the Coast Guard's Judge Advocate General rather than by the "Head[] of [a] Department[]." ---------------------------------------- Page Break ---------------------------------------- 27 contexts where * * * the constitutional rights of servicemen were implicated"); Weiss, 114 S. Ct. at 760- 761. Petitioner, therefore, was not constitutionally entitled to any appellate review of his criminal convic- tions and sentence. Rather, his right of appeal to the Coast Guard Court of Military Review was conferred only by statute, see Art. 66, UCMJ, 10 U.S.C. 866. The fact that Congress was not required to provide petitioner with appellate review of his convictions and sentence does not bear on the question whether an Appointments Clause violation occurred in this case. Although Congress was under no obligation to create appellate military judgeships, the persons who occupy the judgeships that Congress chose to create are "Officers of the United States" whose selection is governed by the Appointments Clause. See Weiss, 114 S. Ct. at 757 ("those serving as military judges must be appointed pursuant to the Appointments Clause"). But while two of the appellate judges in this case were unconstitutionally appointed, it cannot properly be said that petitioner was thereby deprived of a constitutional right. And that consideration is quite relevant to the determination whether petitioner's conviction should be vacated as an appropriate remedy for the Appointments Clause violation that has occurred.18 ___________________(footnotes) 18 This Court has held that if the government chooses to provide appellate review of criminal convictions, its conduct of the appellate process is subject to constitutional constraints. See Griffin V. Illinois, 351 U.S. 12 (1956) (indigent appellant in criminal case must be provided with trial transcript at state expense); Douglas v. California, 372 U.S. 353 (1963) (right to appointed counsel in first appeal as of right); Evitts v. Lucey, 469 U.S. 387 (1985) (right to effective assistance of counsel in first appeal as of right). Those decisions are best understood as resting on the "equality demanded by the Fourteenth Amendment," ---------------------------------------- Page Break ---------------------------------------- 28 C. In light of "the strong interest of the federal judiciary in maintaining the constitutional plan o separation of powers," Freytag, 501 U.S. at 879 (quoting Glidden Co. v. Zdanok, 370 U.S. 530, 536 (1962) (opinion of Harlan, J.)), vacatur of the decision of the Coast Guard Court of Military Review could be defended as a judicially defined means of deterring violations of the Appointments Clause. Automatic vacatur of actions taken by officers chosen in violation of the Appointments Clause would concededly increase the incentive for litigants to raise Appointments Clause challenges, and thus decrease the likelihood that violations would persist because of the absence of a judicial check. A rule of vacatur might thereby be said to serve the interests "of the entire Republic," Freytag, 501 U.S. at 880, "by pre- venting the diffusion of the appointment power" that the Constitution forbids, id. at 878. Whatever the merits of the deterrent rationale in other contexts, however, it has no application to the military justice system. This Court has frequently recognized the "very significant differences between military law and civilian law and between the military community and the civilian community," Parker v. Levy, 417 U.S. 733, 752 (1974), and the consequent need for judicial reluctance to intervene in military affairs. See, e.g., Solorio, 483 U.S. at 444 (citing cases). The military justice system is an important means of maintaining ___________________(footnotes) Douglas, 372 U.S. at 358, which forbids excessive disparities in the treatment of indigent and non-indigent defendants. See Coleman v. Thompson, 501 U.S. 722, 755-756 (1991) (discussing Douglas and Evitts). Here, by contrast, petitioner does not contend that vacatur of the decision of the Coast Guard Court of Military Review is necessary to ensure that he is not unfairly disadvantaged vis-a-vis any similarly situated class of criminal defendants. ---------------------------------------- Page Break ---------------------------------------- 29 order and discipline within the armed services. Accord- ingly, the enforcement of the rulings of that system should not lightly be set aside. Of course, this Court is required to ensure that military trials are free from constitutional violations actually prejudicial to the accused. This Court need not insist, however, that the military justice system be used as a vehicle for the enforcement of structural constitutional provisions that have only a tangential relationship to the interests of the defendant servicemen. Cf. Middendorf v. Henry, 425 U.S. 25, 43 (1976) ("Dealing with areas of law peculiar to the military branches, the Court of Military Appeals' judgments are normally entitled to great deference.").19 D. To require readjudication of petitioner's appeal would impose significant burdens on the Coast Guard justice system. If that relief is granted to petitioner, it must also be granted in all other cases pending on direct review in which the issue has been preserved. See Griffith v. Kentucky, 479 U.S. 314, 321-322 (1987). In addition to the instant case, there are seven cases currently pending before this Court in which the issue ___________________(footnotes) 19 As noted above, see pages 21-22, supra, the Court of Military Appeals' citation to Buckley at least suggests that the court would have vacated future decisions of the Coast Guard Court of Military Review, despite the absence of prejudice to the defendants, if the Appointments Clause violation had not been cured. The court's willingness to use vacatur (or at least the threat of vacatur) to ensure prospective compliance did not, however, oblige the court to vacate decisions issued before its announcement of the constitutional rule. ---------------------------------------- Page Break ---------------------------------------- 30 has been preserved.20 One such case is also pending before the Court of Military Appeals.21 Although we agree with petitioner's assertion (Pet. Br. 21) that "[c]ases which are already final would not be affected" if this Court were to grant petitioner's request for relief, a decision in petitioner's favor would be likely to spawn extensive collateral litigation in addition to those cases pending on direct review.22 The importance to the Coast ___________________(footnotes) 20 In addition to Carpenter, supra, the petition for certiorari in Clark v. United States, No. 93-966 (filed Dec. 20, 1993), presents the same Appointments Clause challenge on behalf of six defendants whose convictions were affirmed by the Court of Military Appeals. 21 See United States v. Townsend, petition for review granted in part, 41 M.J. 121 (C.M.A. 1994). 22 Article 76 of the UCMJ, 10 U.S.C. 876, provides that "[t]he appellate review of records of trial provided by this chapter, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this chapter, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this chapter, are final and conclusive." This Court has held, however, that "[t]he legislative history of [Article 76] makes clear that relief by way of habeas corpus was an implied exception to that finality clause." United. States v. Augenblick, 393 U.S. 348, 349-350 (1969). Particularly in light of the limitations on habeas review announced in Wainwright v. Sykes, 433 U.S. 72 (1977); Teague v. Lane, 489 U.S. 288 (1989); and Butler v. McKellar, 494 U.S. 407 (1990), we believe that such collateral challenges would ultimately fail, even if this Court orders that the decision of the Coast Guard Court of Military Review be vacated in this case. The prospect of extensive litigation respecting convictions that have become final is, however, a relevant consideration in determining the appropriate remedy for the Appointments Clause violation. We note as well that persons convicted by military courts have frequently attempted (with mixed success) to employ avenues of collateral review other than habeas corpus to attack the validity of their convictions. See, e.g., Schlesinger v. Councilman, 420 U.S. ---------------------------------------- Page Break ---------------------------------------- 31 Guard and the public of avoiding disruptive liti-gation and consequent waste of government resources may properly be considered in formulating an appro-priate remedy for the Appointments Clause violation at issue here. Petitioner contends that "[t]here are no third parties involved here who have relied to their detriment on the acts of the improperly appointed [civilian judges]." Pet. Br. 21. That argument ignores the interests of the officers and enlisted members of the Coast Guard, their dependents, and the public generally, who rely upon the Coast Guard's system of military justice to reinforce order and discipline within the service. The Coast Guard Court of Military Review and its judges are an integral part of that system. In light of petitioner's failure to demonstrate any meaningful likelihood of prejudice from the Appointments Clause violation, the public interest in a stable military justice system supports the Court of Military Appeals' disposition of this case. III. The Decision Of The Court Of Military Appeals Does Not Violate The Constitutional Prohibition Against Advisory Opinions, And It Is Con- sistent With This Court's Decision In Griffith v. Kentucky A. Petitioner suggests that a court that declines to afford any remedy beyond a declaration of the applicable law must refrain from ruling on the merits of the constitutional issue "because to do otherwise would be to ___________________(footnotes) 738, 751 (1975) ("certain remedies alternative to habeas, par- ticularly suits for backpay, historically have been available" to persons convicted of military offenses "if the court-martial lacked jurisdiction"); Green, v. Skulute, 839 F. Supp. 797, 801-802 (D. Wyo. 1993). --------------------------------------- Page Break ---------------------------------------- 32 render an advisory opinion." Pet. Br. 19. That argument is flawed in two respects. First, the general prohibition against the issuance of advisory opinions by federal courts is grounded in the "case or controversy" requirement of Article III. See, e.g., United States National Bank of Oregon v. Indepen- dent Insurance Agents of America, Inc., 113 S. Ct. 2173, 2178 (1993); Preiser v. Newkirk, 422 U.S. 395,401 (1975); United Public Workers v. Mitchell, 330 U.S. 75,89 (1947) ("the federal courts established pursuant to Article 111 of the Constitution do not render advisory opinions"). Because the Court of Military Appeals is not an Article III court, 23 that prohibition does not apply here. Thus, even if the Court of Military Appeals' discussion of the Appointments Clause issue in Carpenter were properly characterized as an advisory opinion, the issuance of that opinion would have violated no constitutional command.24 ___________________(footnotes) 23 See Dynes v. Hoover, 61 U.S. (20 How.) 65, 79 (1857) (Congress's "power to provide for the trial and punishment of military and naval offences * * * is given without any connection between it and the 3d article of the Constitution defining the judicial power of the United States; indeed, * * * the two powers are entirely independent of each other"); Northern Pipeline, 458 U.S. at 66 (plurality opinion). 24 This Court's consideration of the remedial question presented creates no risk of an impermissible advisory opinion. The Court is not required to rule on the merits of petitioner's Appointments Clause challenge, since the government does not contest the Court of Military Appeals' holding that an Appoint- ments Clause violation occurred. The only question before the Court is whether that violation entitles petitioner to vacatur of the Coast Guard Court of Military Review's decision-a question whose resolution is plainly essential to the Court's determination of the rights of the parties. ---------------------------------------- Page Break ---------------------------------------- 33 In any event, the Carpenter opinion is not properly characterized as advisory. It is instead a thorough explication of the Court of Military Appeals' ultimate determination that the decision of the Coast Guard Court of Military Review should be affirmed. It is in principle no different from an opinion explaining that a defendant's trial involved a deprivation of constitutional rights but that the error was harmless.25 Of course, a reviewing court will sometimes decline to reach the merits of the defendant's claim on the ground that any error was harmless. We are aware of no decision, how- ever, suggesting that a federal court is constitutionally required to resolve the issue of harmlessness before it considers the merits of the underlying claim.26 ___________________(footnotes) 25 In United States v. Leon, supra, the Court recognized a limited good-faith exception to the Fourth Amendment ex- clusionary rule but noted that "[t]here is no need for courts to adopt the inflexible practice of always deciding whether the officers' conduct manifested objective good faith before turning to the question whether the Fourth Amendment has been violated. Defendants seeking suppression of the fruits of allegedly unconstitutional searches or seizures undoubtedly raise live controversies which Art. III empowers federal courts to adjudicate. As cases addressing questions of good faith immunity under 42 U.S. C. 1983 and cases involving the harmless-error doctrine make clear, courts have considerable discretion in conforming their decisionmaking processes to the exigencies of particular cases." 468 U.S. at 924-925 (citations omitted). The Court concluded that " [i]f the resolution of a particular Fourth Amendment question is necessary to guide future action by law enforcement officers and magistrates, nothing will prevent reviewing courts from deciding that question before turning to the good-faith issue." Id. at 925. 26 In Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), the Court stated: In the order in which the court has viewed this subject, the following questions have been considered and decided. ---------------------------------------- Page Break ---------------------------------------- 34 B. In Griffith v. Kentucky, 479 U.S. 314 (1987), this Court considered the question whether its decision in Batson v. Kentucky, 476 U.S. 79 (1986), should be applied retroactively to other cases pending on direct review. The Court determined that "after we have decided a new rule in the case selected, the integrity of judicial review requires that we apply that rule to all similar cases pending cm direct review." 479 U.S. at 322-323. The Court emphasized that "selective application of new rules violates the principle of treating similarly situated defendants the same." Id. at 323. Petitioner contends (Pet. 19-20) that the Court of Military Appeals' decision in Carpenter is contrary to this Court's decision in Griffith. That claim is without merit. The decision in Griffith involved the propriety of selective rather than pure prospectivity. See Beam, 501 U.S. at 538 (opinion of Souter, J.), id. at 545 (White, J., concurring in the judgment); Harper v. Virginia Dep`t of Taxation, 113 S. Ct. 2510, 2530 (1993) (O'Connor, J., dissenting). The principle on which Griffith rests-that similarly situated criminal defendants should not receive different treatment simply because of the happenstance that one case rather than another is used as the vehicle for the announcement of a new rule-has no application ___________________(footnotes) 1st Has the applicant a right to the commission he demands? 2dly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? 3dly. If they do afford him a remedy, is it a mandamus issuing from this court? 5 U.S. (1 Cranch) at 154. The Court resolved the first two questions in Marbury's favor but ultimately determined that it was without power to afford him relief. ---------------------------------------- Page Break ---------------------------------------- 35 to the present case.27 Cf. American Trucking Ass`ns, 496 U.S. at 220-221 (Stevens, J., dissenting). The Court of Military Appeals did not afford Carpenter relief more extensive than that provided to petitioner. To the contrary, the court in Carpenter (as in the present case) affirmed the decision of the Coast Guard Court of Military Review. 37 M.J. at 299. Of course, if petitioner is constitutionally entitled to a new appeal before the Coast Guard Court of Military Review as a remedy for the Appointments Clause violation, the decision of the Court of Military Appeals cannot stand. Griffith has no bearing, however, on whether such an entitlement exists. ___________________(footnotes) 27 The Court in Batson held that " [i]f the trial court [on remand] decides that the facts establish, prima facie, purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, our precedents require that petitioner's conviction be reversed." 476 U.S. at 100. Thus, the need to prevent "the actual inequity that results when only one of many similarly situated defendants receives the benefit of the new rule," Griffith v. Kentucky, 479 U.S. at 327-328 (internal quotation marks omitted), required that Batson be applied retroactively to cases pending on direct review not only in the choice-of-law sense (i.e., that prosecutors' race-based peremptory challenges be treated as illegal) but in the remedial sense (i. e., that proof of a violation would mandate reversal of the conviction) as well. ---------------------------------------- Page Break ---------------------------------------- 36 CONCLUSION The judgment of the Court of Military Appeals should be affirmed. Respectfully submitted. DREW S. DAYS, 111 Solicitor General MICHAEL R. DREEBEN Deputy Solicitor General MALCOLM L. STEWART Assistant to the Solicitor General PAUL M. GEIER Assistant General Counsel for Litigation Department of Transportation CHARLES J. BENNARDINI Lieutenant Commander, USCG Senior Appellate Government Counsel JOHN F. KOEPPEN Lieutenant Commander, USCG Appellate Government Counsel Commander (G-LMJ) United States Coast Guard MARCH 1995