                         UNITED STATES, Appellee

                                         v.

                  William R. JONES, Second Lieutenant
                        U.S. Air Force Appellant

                                  No. 14-0057
                           Crim. App. No. 38028

       United States Court of Appeals for the Armed Forces

                        Argued November 19, 2014

                          Decided March 11, 2015

STUCKY, J., delivered the opinion of the Court, in which BAKER,
C.J., and ERDMANN, RYAN, and OHLSON, JJ., joined.


                                     Counsel


For Appellant:    Captain Jeffrey Davis (argued); Major Zaven T.
Saroyan.


For Appellee: Captain Richard J. Schrider (argued); Major
Daniel J. Breen and Gerald R. Bruce, Esq. (on brief); Major
Charles G. Warren.


Military Judge:    Matthew Van Dalen


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Jones, No. 14-0057/AF


     Judge STUCKY delivered the opinion of the Court.

     We granted review to consider whether the de facto officer

doctrine conferred validity upon Laurence Soybel’s participation

in the judgment of the United States Air Force Court of Criminal

Appeals (CCA) in this case, despite the invalidity of his

appointment as a judge to that court.    We hold that because the

defect in this appointment was not merely technical, but

fundamental, the de facto officer doctrine cannot apply.

                         I.    Background

     Contrary to Appellant’s pleas, an officer panel convicted

him of drunk driving, assault consummated by a battery, and

conduct unbecoming an officer and a gentleman.    Articles 111,

128, 133, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§§ 911, 928, 933 (2012). The convening authority approved the

adjudged sentence of a dismissal, confinement for six months,

and forfeiture of all pay and allowances.    With Mr. Soybel -- a

retired judge advocate colonel who had not been recalled to

active duty -- on the panel, the CCA issued a judgment affirming

the findings and sentence.    United States v. Jones, No. 38028,

2013 CCA LEXIS 314, at *2-3, 2013 WL 1910841, at *1 (A.F. Ct.

Crim. App. Apr. 15, 2013) (per curiam).     On reconsideration,

with Mr. Soybel again sitting on the case, the CCA vacated its

previous judgment and again affirmed the findings and sentence.

United States v. Jones, No. 38028 (recon), 2013 CCA LEXIS 630,


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at *3, 2013 WL 3971615, at *1 (A.F. Ct. Crim. App. July 23,

2013).

     The details of Mr. Soybel’s appointment are discussed at

length in United States v. Janssen, 73 M.J. 221, 222 (C.A.A.F.

2014).   Mr. Soybel was purportedly appointed as an appellate

military judge first by the Judge Advocate General of the Air

Force, and then by the Secretary of Defense.    Id.    These

appointments were invalid under the Appointments Clause of the

Constitution, U.S. Const. art. II, § 2, cl. 2.    73 M.J. at 225.

We declined to apply the de facto officer doctrine to the

appellant in Janssen following the reasoning in Ryder v. United

States, 515 U.S. 177, 182-84 (1995).     73 M.J. at 225-26.    Among

other reasons, Janssen had not been notified that Mr. Soybel was

on the panel until the date of the CCA’s judgment, and thus

could not have known to challenge his participation at the

appropriate time.   Id.   That is not the case here:   a Notice of

Special Panel, as well as a reconsidered opinion were issued on

July 23, 2013, but Appellant made no challenge to Mr. Soybel’s

participation on that panel in Appellant’s second motion for

reconsideration on September 20, 2013.    Given that Appellant was

on notice of Mr. Soybel’s participation but failed to challenge

it below, we are obliged to assess whether or not this compels a

different result from that reached in Janssen.




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United States v. Jones, No. 14-0057/AF


                          II.   Discussion

     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.”

Ryder, 515 U.S. at 180, quoted in Nguyen v. United States, 539

U.S. 69, 77 (2003).   The Supreme Court has indicated, however,

that the doctrine will not apply when the officer’s deficiency

is “fundamental.”   Nguyen, 539 U.S. at 79.

     Citing Ryder and Janssen, the Government urges that we

treat the issue of Mr. Soybel’s appointment as forfeited by the

failure of Appellant to raise the issue prior to petitioning

this Court.1   The problem with this approach is that it ignores

the consistent treatment of the de facto officer doctrine by the

Supreme Court, which has drawn a distinction between

deficiencies which are “merely technical” and may be forfeited

if not timely raised, and those which “embod[y] a strong policy

1
  The Government also attempts to draw a distinction, based on
administrative agency cases of doubtful relevance, between
“direct” and “collateral” attacks on the validity of official
action. Essentially, the argument is that waiver applies to
“collateral” attacks that the incumbent improperly holds the
office, not to “direct” attacks that the incumbent lacks
qualifications to hold the office. This argument ignores the
Supreme Court’s caution against extending civil cases which may
impliedly apply a form of the de facto officer doctrine beyond
their facts. Ryder, 515 U.S. at 183–84. It also places the
Government in the strange position of arguing that Mr. Soybel’s
possession of some judicial experience and a law license
immunizes his appointment against constitutional attack.

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United States v. Jones, No. 14-0057/AF


concerning the proper administration of judicial business,”

which the Court will reach on direct review whether raised below

or not.   Glidden Co. v. Zdanok, 370 U.S. 530, 535–36 (1962)

(plurality opinion); see Nguyen, 539 U.S. at 77–80.

      The holding in Nguyen controls the outcome of this case.

In Nguyen, the Chief Judge of the United States Court of Appeals

for the Ninth Circuit designated an Article IV territorial

judge, the Chief Judge of the District Court for the Northern

Mariana Islands, to sit on a Ninth Circuit panel when that court

conducted a special sitting in the Territory of Guam.      Id. at

71–72.    The President, with the Senate’s advice and consent, had

appointed the Chief Judge of the Northern Mariana Islands for a

fixed term, removable for cause.       Id. at 73; see 48 U.S.C.

§ 1821(b)(1) (2012).   No objection was made at the time to the

judge’s sitting, nor was rehearing sought.      Nguyen, 539 U.S. at

73.   The issue was not raised until certiorari was sought at the

Supreme Court.   Id.   The Court refused to apply the de facto

officer doctrine, stating that the statute in question, 28

U.S.C. § 292(a) (2012), which regulated the designation of U.S.

district judges to sit on the courts of appeals, “embodies

weighty congressional policy concerning the proper organization

of the federal courts.”   539 U.S. at 79.     Holding that the

reference to “district judges” in the statute was limited to

those appointed to serve during good behavior under Article III


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United States v. Jones, No. 14-0057/AF


of the Constitution, the Court vacated and remanded for

consideration of the appeal by a properly constituted panel of

the Ninth Circuit.   Id. at 83.

     If the de facto officer doctrine did not apply in Nguyen,

it cannot, a fortiori, apply in this case.    In Nguyen, there was

no question as to the validity of the Northern Marianas Chief

Judge’s appointment.   He had been properly appointed to his

office by the President, with Senate advice and consent, as

provided in the relevant statute.     48 U.S.C. § 1821(b)(1)

(2012).   The problem was that he was designated to sit on a

panel of the Ninth Circuit in violation of the statute governing

such designations.   The purported appointment of Mr. Soybel as

an appellate military judge by the Secretary of Defense, in

contrast, was wholly without statutory authority.    It was

therefore required to be made by the President, with Senate

advice and consent, as provided in the Appointments Clause.

U.S. Const. art. II, § 2, cl. 2; see Edmond v. United States,

520 U.S. 651, 660 (1997); Janssen, 73 M.J. at 225.     The error in

this case was therefore of constitutional dimensions --

certainly “fundamental” by any reckoning.    Having found

fundamental error, we decline to apply forfeiture and hold that,




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United States v. Jones, No. 14-0057/AF


consistent with Nguyen, the de facto officer doctrine does not

apply.2

                         III.   Judgment

     The decision of the United States Air Force Court of

Criminal Appeals is reversed.   The record is returned to the

Judge Advocate General of the Air Force for remand to the Court

of Criminal Appeals for a new review under Article 66, UCMJ, 10

U.S.C. § 866 (2012), before a properly constituted panel of that

court.




2
  “A fortiori is this [refusal to apply forfeiture] so when the
challenge is based upon nonfrivolous constitutional grounds.”
Glidden, 370 U.S. at 536.

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