OCTOBER TERM, 1994
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,
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