OCTOBER TERM, 1994
Syllabus
RYDER
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
No. 94-431. Argued April 18, 1995-Decided June 12, 1995
Petitioner, an enlisted member of the Coast Guard, was convicted
by a court-martial of drug offenses, and the Coast Guard Court of
Military Review affirmed. On rehearing, that court rejected
petitioner's claim that its composition violated the Appointments
Clause, U. S. Const., Art. II, § 2, cl. 2, because two of the
judges on petitioner's three-judge panel were civilians appointed
by the General Counsel of the Department of Transportation. The
Court of Military Appeals agreed with petitioner that the
appointments violated the Clause under its previous decision in
United States v.
Carpenter, 37 M. J. 291, that
appellate military judges are inferior officers who must be
appointed by a President, a court of law, or a head of a
department. The court nonetheless affirmed petitioner's conviction
on the ground that the actions of the two civilian judges were
valid
de facto, citing
Buckley v.
Valeo,
424 U. S. 1 (1976)
(per curiam).
Held: The Court of Military Appeals erred in according
de facto validity to the actions of the civilian judges of
the Coast Guard Court of Military Review. Pp. 180-188.
(a) The
de facto officer doctrine-which confers validity
upon acts performed under the color of official title even though
it is later discovered that the legality of the actor's appointment
or election to office is deficient-cannot be invoked to authorize
the actions of the judges in question. Those cases in which this
Court relied upon the doctrine in deciding criminal defendants'
challenges to the authority of a judge who participated in the
proceedings leading to their conviction and sentence, see,
e.
g., Ball v.
United States, 140 U. S. 118, are
distinguishable here because,
inter alia, petitioner's claim
is that there has been a trespass upon the constitutional power of
appointment, not merely a misapplication of a statute providing for
the assignment of already appointed judges. One who makes a timely
challenge to the constitutionality of the appointment of an officer
who adjudicates his case is entitled to a decision on the merits of
the question and whatever relief may be appropriate if a violation
indeed occurred. Cf.
Glidden Co. v.
Zdanok, 370 U. S.
530, 536. Any other rule would create a disincentive to raise
Appointments Clause challenges with respect to questionable
judicial appointments.
Buckley v.
Valeo and
Connor v.
Williams, 404 U. S. 549,
178
Syllabus
which
Buckley cited as authority, were civil cases that
did not explicitly rely on the
de facto officer doctrine in
validating the past acts of public officials against constitutional
challenges, and this Court is not inclined to extend those cases
beyond their facts. Pp. 180-184.
(b) The Court rejects the Government's several alternative
defenses of the Court of Military Appeals' decision to give its
Carpenter holding prospective application only. First, the
argument that the latter court exercised remedial discretion
pursuant to
Chevron Oil Co. v.
Huson, 404 U. S. 97,
is unavailing because there is not the sort of grave disruption or
inequity involved in awarding retrospective relief to this
petitioner that would bring the
Chevron Oil doctrine into
play. Nor is it persuasively argued that qualified immunity, which
specially protects public officials from damages liability for
judgment calls made in a legally uncertain environment, should be
extended to protect such officials from Appointments Clause
attacks, which do not involve personal damages, but can only
invalidate actions taken pursuant to defective title. Similarly,
the practice of denying criminal defendants an exclusionary remedy
from Fourth Amendment violations when those errors occur despite
the Government actors' good faith,
United States v.
Leon, 468 U.
S. 897, does not require the affirmance of petitioner's
conviction, since no collateral consequence arises from rectifying
an Appointments Clause violation, see id., at 907, and such
rectification provides a suitable incentive to make challenges
under the Clause, see id., at 918-921. Finally, the Government's
harmless-error argument need not be considered, since it was not
raised below and there is no indication that the Court of Military
Appeals determined that no harm occurred in this case. The related
argument that any defect in the Court of Military Review
proceedings was in effect cured by review in the Court of Military
Appeals must be rejected because of the difference in function and
authority between the two courts. Petitioner is therefore entitled
to a hearing before a properly appointed panel of the Coast Guard
Court of Military Review. Pp.184-188.
39 M. J. 454, reversed and remanded.
REHNQUIST, C. J., delivered the opinion for a unanimous
Court.
Allen Lotz argued the cause and filed a brief for
petitioner.
With him on the briefs were G. Arthur Robbins and Alan B.
Morrison.
Deputy Solicitor General Wallace argued the cause for the
United States. On the brief were
Solicitor General
179
Days, Deputy Solicitor General Dreeben, Malcolm L. Stewart, and
Paul M. Geier.
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner, an enlisted member of the United States Coast Guard,
challenges his conviction by a court-martial. His conviction was
affirmed first by the Coast Guard Court of Military Review, and
then by the United States Court of Military Appeals.1 The latter
court agreed with petitioner that the two civilian judges who
served on the Court of Military Review had not been appointed in
accordance with the dictates of the Appointments Clause, U. S.
Const., Art. II, § 2, cl. 2, but nonetheless held that the actions
of those judges were valid
de facto. We hold that the
judges' actions were not valid
de facto.
Petitioner was convicted of several drug offenses, and was
sentenced by a general court-martial to five years' confinement
(later reduced to three years), forfeiture of pay, reduction in
grade, and a dishonorable discharge. He appealed to the Coast Guard
Court of Military Review, which, except in one minor aspect,
affirmed his conviction. 34 M. J. 1077 (1992). On request for
rehearing, petitioner challenged the composition of that court as
violative of the Appointments Clause of the Constitution because
two of the judges on the three-judge panel were civilians appointed
by the General Counsel of the Department of Transportation. The
court granted rehearing and rejected this challenge. 34 M. J. 1259
(1992).
IThe National Defense Authorization Act for Fiscal Year 1995,
Pub. L. 103-337, § 924, 108 Stat. 2831, changed the nomenclature
for the military appellate courts. The previous "Court[s] of
Military Review" were rechristened as the "Court[s] of Criminal
Appeals" and the previous "United States Court of Military Appeals"
was redesignated as the "United States Court of Appeals for the
Armed Forces." We adhere to the former names consistent with all
previous proceedings in this case.
180
The Court of Military Appeals likewise affirmed petitioner's
conviction, 39 M. J. 454 (1994), although it agreed with petitioner
that the appellate judges on the Coast Guard Court of Military
Review had been appointed in violation of the Appointments Clause.
The court relied for this conclusion on its previous decision in
United States v.
Carpenter, 37 M. J. 291 (1993),
where it had decided that appellate military judges are inferior
officers whose service requires appointment by a President, a court
of law, or a head of a department. U. S. Const., Art. II, § 2, cl.
2.2 Despite finding a constitutional violation in the appointment
of two judges on petitioner's three-judge appellate panel, the
Court of Military Appeals affirmed his conviction on the ground
that the actions of these judges were valid
de facto, citing
Buckley v.
Valeo, 424 U. S. 1 (1976)
(per
curiam). We granted certiorari. 513 U. S. 1071 (1995).
The
de facto officer doctrine confers validity upon acts
performed by a person acting under the color of official title even
though it is later discovered that the legality of that person's
appointment or election to office is deficient.
Norton v.
Shelby County, 118 U. S. 425, 440
(1886). "The de facto doctrine springs from the fear of the chaos
that would result from multiple and repetitious suits challenging
every action taken by every official whose claim to office could be
open to question, and seeks to protect the public by insuring the
orderly functioning of the government despite technical defects in
title to office." 63A Am. Jur. 2d, Public Officers
2 The Appointments Clause reads in full:
"[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." U. S. Const., Art.
II, § 2, cl. 2.
181
and Employees §578, pp. 1080-1081 (1984) (footnote omitted). The
doctrine has been relied upon by this Court in several cases
involving challenges by criminal defendants to the authority of a
judge who participated in some part of the proceedings leading to
their conviction and sentence.
In
Ball v.
United States, 140 U. S. 118 (1891), a
Circuit Judge assigned a District Judge from the Western District
of Louisiana to sit in the Eastern District of Texas as a
replacement for the resident judge who had fallen ill and who later
died. The assigned judge continued to sit until the successor to
the deceased judge was duly appointed. The assigned judge had
sentenced Ball after the resident judge had died, and Ball made no
objection at that time. Balliater moved in arrest of judgment
challenging the sentence imposed upon him by the assigned judge
after the death of the resident judge, but this Court held that the
assigned judge "was judge
de facto if not
de jure,
and his acts as such are not open to collateral attack."
Id., at 128-129.
Similarly, in
McDowell v.
United States, 159 U. S. 596 (1895), a
Circuit Judge assigned a judge from the Eastern District of North
Carolina to sit as a District Judge in the District of South
Carolina until a vacancy in the latter district was filled.
McDowell was indicted and convicted during the term in which the
assigned judge served, but made no objection at the time of his
indictment or trial. He later challenged the validity of his
conviction because of a claimed error in the assigned judge's
designation. This Court decided that the assigned judge was a
"judge
de facto," and that "his actions as such, so far as
they affect third persons, are not open to question."
Id.,
at 601. The Court further observed that McDowell's claim "presents
a mere matter of statutory construction .... It involves no
trespass upon the executive power of appointment."
Id., at
598. In a later case,
Ex parte Ward, 173 U. S. 452 (1899),
petitioner sought an original writ of habeas corpus to challenge
the authority of the District Judge who had sentenced him on
182
the grounds that the appointment of the judge during a Senate
recess was improper. This Court held that "the title of a person
acting with color of authority, even if he be not a good officer in
point of law, cannot be collaterally attacked."
Id., at
456.
In the case before us, petitioner challenged the composition of
the Coast Guard Court of Military Review while his case was pending
before that court on direct review. Unlike the defendants in
Ball, McDowell, and
Ward, petitioner raised his
objection to the judges' titles before those very judges and prior
to their action on his case. And his claim is based on the
Appointments Clause of Article II of the Constitution-a claim that
there
has been a "trespass upon the executive power of
appointment,"
McDowell, supra, at 598, rather than a
misapplication of a statute providing for the assignment of already
appointed judges to serve in other districts.
In
Buckley v.
Valeo, supra, at 125, we said "[t]he
Appointments Clause could, of course, be read as merely dealing
with etiquette or protocol in describing 'Officers of the United
States' but the drafters had a less frivolous purpose in mind." The
Clause is a bulwark against one branch aggrandizing its power at
the expense of another branch, but it is more: it "preserves
another aspect of the Constitution's structural integrity by
preventing the diffusion of the appointment power."
Freytag
v.
Commissioner, 501 U. S. 868, 878
(1991). In
Glidden Co. v.
Zdanok, 370 U. S. 530 (1962), we
declined to invoke the
de facto officer doctrine in order to
avoid deciding a question arising under Article III of the
Constitution, saying that the cases in which we had relied on that
doctrine did not involve "basic constitutional protections designed
in part for the benefit of litigants."
Id., at 536
(plurality opinion). We think that one who makes a timely challenge
to the constitutional validity of the appointment of an officer who
adjudicates his case is entitled to a decision on the merits of the
question and whatever
183
relief may be appropriate if a violation indeed occurred. Any
other rule would create a disincentive to raise Appointments Clause
challenges with respect to questionable judicial appointments.
The Court of Military Appeals relied, not without reason, on our
decision in
Buckley v.
Valeo, 424 U. S. 1 (1976). There,
plaintiffs challenged the appointment of the Federal Election
Commission members on separation-of-powers grounds. The Court
agreed with them and held that the appointment of four members of
the Commission by Congress, rather than the President, violated the
Appointments Clause. It nonetheless quite summarily held that the
"past acts of the Commission are therefore accorded
de facto
validity."
Id., at 142. We cited as authority for this
determination
Connor v.
Williams, 404 U. S. 549, 550-551
(1972), in which we held that legislative acts performed by
legislators held to have been elected in accordance with an
unconstitutional apportionment were not therefore void.
Neither
Buckley nor
Connor explicitly relied on
the
de facto officer doctrine, though the result reached in
each case validated the past acts of public officials. But in
Buckley, the constitutional challenge raised by the
plaintiffs was decided in their favor, and the declaratory and
injunctive relief they sought was awarded to them. And
Connor, like other voting rights cases, see
Allen v.
State Bd. of Elections, 393 U. S. 544, 572 (1969);
Cipriano v.
City of Houma, 395 U. S. 701 (1969)
(per curiam), did not involve a defect in a specific
officer's title, but rather a challenge to the composition of an
entire legislative body. The Court assumed,
arguendo, that
an equal protection violation infected the District Court's
reapportionment plan, declined to invalidate the elections that had
already occurred, and reserved judgment on the propriety of the
prospective relief requested by petitioners pending completion of
further District Court proceedings that could rectify any
constitutional violation present in the court-ordered redistricting
plan.
Connor, supra, at 550-
184
551. To the extent these civil cases may be thought to have
implicitly applied a form of the
de facto officer doctrine,
we are not inclined to extend them beyond their facts.3
The Government alternatively defends the decision of the Court
of Military Appeals on the grounds that it was, for several
reasons, proper for that court to give its decision in
Carpenter-holding that the appointment of the civilian
judges to the Coast Guard Court of Military Review violated the
Appointments Clause-prospective application only. It first argues
that the Court of Military Appeals exercised remedial discretion
pursuant to
Chevron Oil Co. v.
Huson, 404 U. S. 97
(1971).4 But whatever the continuing validity of
3 For similar reasons, we do not find instructive the Court's
disposition of petitioner's challenge in
Northern Pipeline
Constr. Co. v.
Marathon Pipe Line Co., 458 U. S. 50 (1982). The
Court declared the broad grant of jurisdiction to Article I
bankruptcy courts unconstitutional and applied its decision
prospectively only.
Id., at 88. But in doing so, it affirmed
the judgment of the District Court, which had dismissed
petitioner's bankruptcy action and afforded respondent the relief
requested pursuant to its constitutional challenge.
Id., at
57. So
Northern Pipeline is not a case in which the Court
invoked the
de facto officer doctrine to deny relief to the
party before it and therefore does not support the Government in
this case.
4 The Government advances a virtual cornucopia of factors more
or less peculiar to this case which it says validate the Court of
Military Appeals' exercise of discretion in this case and thus
support affirmance. It points to the lack of any substantial impact
that the improper appointments had on petitioner's appeal, to the
lack of any constitutional right to appellate review, and to the
deference owed the military and the public interest in avoiding
disruption of that system. Brief for United States 22. At oral
argument, it also contended that subsequent action taken by the
Secretary of Transportation to cure the Appointments Clause error,
the fact that petitioner's underlying claims of error were
meritless, and the fact that the civilian judges in this case had
previously served under proper appointments while on active duty
were relevant criteria. Tr. of Oral Arg. 29-30, 33-34. The
substance, if not the form, of several of these arguments is
discussed and rejected in the text. Those that are not discussed
are alternative grounds for affirmance which the Government did not
raise below, see Answer to Supplement for Petition for Review in
No. 68449 (Ct. Mil. App.), pp. 2-4, and which we decline to reach.
Jenkins v.
Anderson,
185
Chevron Oil after
Harper v.
Virginia Dept. of
Taxation, 509 U. S. 86 (1993), and
Reynoldsville Casket
Co. v.
Hyde, 514 U. S. 749 (1995),
there is not the sort of grave disruption or inequity involved in
awarding retrospective relief to this petitioner that would bring
that doctrine into play. The parties agree that the defective
appointments of the civilian judges affect only between 7 to 10
cases pending on direct review. As for the Government's concern
that a flood of habeas corpus petitions will ensue, precedent
provides little basis for such fears.
Ex parte Ward,
173 U. S. 452
(1899).
Nor does the Government persuade us that the inquiry into
clearly established law as it pertains to qualified immunity
counsels in favor of discretion to deny a remedy in this case.
Qualified immunity specially protects public officials from the
specter of damages liability for judgment calls made in a legally
uncertain environment.
Harlow v.
Fitzgerald, 457 U. S. 800, 806 (1982)
("[O]ur decisions consistently have held that government officials
are entitled to some form of immunity from
suits for
damages" (emphasis added)). Providing relief to a claimant
raising an Appointments Clause challenge does not subject public
officials to personal damages that represent a "potentially
disabling threa[t] of liability," but only invalidates actions
taken pursuant to defective title. The qualified immunity doctrine
need not be extended to protect public officials from such
attacks.
Similarly, the practice of denying criminal defendants an
exclusionary remedy from Fourth Amendment violations when those
errors occur despite the good faith of the Government actors,
United States v.
Leon, 468 U. S. 897 (1984),
does not require the affirmance of petitioner's conviction in this
case. Finding the deterrent remedy of suppression not compelled by
the Fourth Amendment, id., at 910, that case specifically relied on
the "objectionable collateral consequence of [the] interference
with the criminal justice system's
447 U. S. 231,
234-235, n. 1 (1980);
FTC v.
GroZier Inc., 462 U. S. 19, 23, n. 6
(1983).
186
truth-finding function" in requiring a blanket exclusionary
remedy for all violations, id., at 907, and the relative
ineffectiveness of such remedy to deter future Fourth Amendment
violations in particular cases, id., at 918-921. No similar
collateral consequence arises from rectifying an Appointments
Clause violation, and correcting Appointments Clause violations in
cases such as this one provides a suitable incentive to make such
challenges.
The Government finally suggests that the Court of Military
Appeals applied something akin to a harmless-error doctrine in
affirming petitioner's conviction, refusing to redress the
violation because petitioner suffered no adverse consequences from
the composition of the court. Brief for United States 33. The
Government did not argue below that the error, assuming it
occurred, was harmless, and there is no indication from the Court
of Military Appeals' summary disposition of this issue that it
determined that no harm occurred in this case. We therefore need
not address whether the alleged defects in the composition of
petitioner's appellate panel are susceptible to harmless-error
review. The Government also argues, at least obliquely, that
whatever defect there may have been in the proceedings before the
Coast Guard Court of Military Review was in effect cured by the
review available to petitioner in the Court of Military Appeals.
Id., at 24, n. 16. Again, because of the hierarchical nature
of sentence review in the system of military courts, we need not
address whether this defect is susceptible to the cure envisioned
by the Government.
Congress has established three tiers of military courts pursuant
to its power "[t]o make Rules for the Government and Regulation of
the land and naval Forces." U. S. Const., Art. I, § 8, cl. 14.
Cases such as the present one are tried before a general
court-martial consisting of a military judge and not less than five
service members or by a military judge alone. Art. 16(1), UCMJ, 10
U. S. C. § 816(1). Four Courts of Military Review (one each for the
Army, Air Force, Coast
187
Guard, and Navy-Marine Corps) hear appeals from courtsmartial in
cases where the approved sentence involves death, dismissal of a
commissioned officer, punitive discharge, or confinement for one
year or more. Art. 66, UCMJ, 10 U. S. C. § 866(b)(1). These courts,
which sit in panels of three or more, exercise
de novo
review over the factual findings and legal conclusions of the
court-martial. Art. 66(c), UCMJ, 10 U. S. C. §866(c).5
The court of last resort in the military justice system is the
Court of Military Appeals. Five civilian judges appointed by the
President and confirmed by the Senate constitute the court. Art.
142, UCMJ, 10 U. S. C. § 942 (1988 ed., Supp. V). The court grants
review in cases decided by the Courts of Military Review "upon
petition of the accused and on good cause shown." Art. 67, UCMJ, 10
U. S. C. § 867(a) (1988 ed., Supp. V). The scope of review is
narrower than the review exercised by the Court of Military Review;
so long as there is some competent evidence in the record to
establish the elements of an offense beyond a reasonable doubt, the
Court of Military Appeals will not reevaluate the facts.
United
States v.
Wilson, 6 M. J. 214 (1979).
Examining the difference in function and authority between the
Coast Guard Court of Military Review and the Court of Military
Appeals, it is quite clear that the former had broader discretion
to review claims of error, revise factual determinations, and
revise sentences than did the latter. It simply cannot be said,
therefore, that review by the properly constituted Court of
Military Appeals gave petitioner all the possibility for relief
that review by a properly constituted Coast Guard Court of Military
Review would have
5 The Court of Military Review "may affirm only such findings of
guilty, and the sentence or such part or amount of the sentence, as
it finds correct in law and fact and determines, on the basis of
the entire record, should be approved. In considering the record,
it may weigh the evidence, judge the credibility of witnesses, and
determine controverted questions offact." Art. 66(c), UCMJ, 10 U.
S. C. § 866(c).
188
given him. We therefore hold that the Court of Military Appeals
erred in according
de facto validity to the actions of the
civilian judges of the Coast Guard Court of Military Review.
Petitioner is entitled to a hearing before a properly appointed
panel of that court. The judgment is reversed, and the case is
remanded for proceedings consistent with this opinion.
It is so ordered.
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