Dalmazzi v. U.S.

Whether the Appointments Clause, U.S. Const. art. II, § 2, cl. 2, or the prohibition of active-duty military service officers from dual-officeholding pursuant to 10 U.S.C. § 973(b)(2)(A)(ii), disqualifies a judge who sits on a military Court of Criminal Appeals, if they are also commissioned or appointed to the U.S. Court of Military Commission Review.

Petitioners were active military service members and were court-martialed for unrelated crimes, convicted of the crimes, and the Court of Criminal Appeals (CCA) of their service-branch affirmed the convictions. At least one judge sitting on each of the three-judge CCA panels were also commissioned, appointed, or confirmed to serve on the U.S. Court of Military Commission Review (CMCR). The United States Court of Appeals for the Armed Forces (CAAF) upheld the CCA rulings. On appeal to the U.S. Supreme Court, Petitioners argue that dual-officeholding constitutes two separate violations of law. First, Petitioners argue the CCA decisions are void, because 10 U.S.C. § 973(b)(2)(A)(ii) prohibits active military officers from also holding a Presidentially appointed office. Second, Petitioners argue the Appointments Clause, U.S. Const. art. II, § 2, cl. 2, does not permit appointed officers from serving alongside unappointed officers on a military court, because it creates "incongruity" in the officer's service, causing a threat to judicial integrity. Petitioners note that the appointed officers are subordinates to Executive Branch officeholders, while also splitting judicial authority with unappointed members of the military court panel. Petitioners seek disqualification of the dual-officeholders from their respective CCA and remand to the CAAF for arguments on the merits.