                         UNITED STATES, Appellee

                                         v.

                    David J. JANSSEN, Senior Airman
                       U.S. Air Force, Appellant

                                  No. 14-0130
                           Crim. App. No. 37681

       United States Court of Appeals for the Armed Forces

                         Argued January 28, 2014

                          Decided April 15, 2014

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 A. Davis (argued).

For Appellee: Major Daniel J. Breen (argued); Lieutenant
Colonel C. Taylor Smith and Gerald R. Bruce, Esq. (on brief).


Military Judge:    Don M. Christensen




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Janssen, No. 14-0130/AF


     Judge STUCKY delivered the opinion of the Court.

          [The President] shall nominate, and by and with
     the Advice and Consent of the Senate, shall appoint
     . . . 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.

          [T]he Appointments Clause of Article II is more
     than a matter of “etiquette or protocol”; it is among
     the significant structural safeguards of the
     constitutional scheme.

Edmond v. United States, 520 U.S. 651, 659 (1997).

     Most criminal cases decided by federal courts of appeals

raise questions of statutory interpretation or, if the

Constitution is directly implicated, the guarantees of

individual rights provided therein for criminal prosecution.         It

is relatively rare for a case to raise an issue involving the

fundamental structural provisions devised by the Framers in

allocating power within the government they constructed.      This

is such a case.

     We granted review to consider whether an appellate military

judge on the panel of the United States Air Force Court of

Criminal Appeals (CCA) that affirmed Appellant’s convictions and

sentence was properly appointed.       We hold that the Government

failed to establish that the judge was properly appointed under



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United States v. Janssen, No. 14-0130/AF


the Appointments Clause of the Constitution of the United

States.   U.S. Const. art. II, § 2, cl. 2.

                           I.   Background

     A general court-martial with members convicted Appellant,

contrary to his pleas, of disobeying the order of a

noncommissioned officer, rape, assault consummated by a battery,

endeavoring to impede an investigation, and breaking

restriction.    Articles 91, 120, 128, and 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 891, 920, 928, 934 (2012).

The members sentenced Appellant to a bad-conduct discharge,

confinement for twelve years and eight months, forfeiture of

$1,300 pay per month for twelve years, and reduction to the

grade of E-1.   The convening authority approved only so much of

the sentence as called for a bad-conduct discharge, confinement

for nine years, and reduction to the grade of E-1.

     The case was originally docketed at the CCA on June 24,

2010, but pursuant to Appellant’s motion was remanded on July

20, 2011, for preparation of a substantially verbatim record of

trial.    The record was completed and the convening authority

issued a new action consistent with his original action.

     On January 25, 2013, the Air Force Judge Advocate General,

purportedly acting under Article 66(a), UCMJ, 10 U.S.C. § 866(a)

(2012), appointed Laurence M. Soybel to the position of

appellate military judge on the CCA.    At the time of this


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United States v. Janssen, No. 14-0130/AF


appointment, Mr. Soybel, a retired Air Force officer and former

appellate military judge, was serving as a civilian litigation

attorney in the Department of the Air Force (DAF).   Judge Soybel

was reassigned from his DAF civilian position; he was not

recalled to active duty.

     A panel of the CCA that included Judge Soybel set aside

Appellant’s Article 134 convictions and dismissed those

specifications because they failed to include the terminal

element, but nevertheless affirmed the sentence.   United States

v. Janssen, ACM No. 37681 (f rev), 2013 CCA LEXIS 397, at *12–

*13, *21, 2013 WL 2448987, at *4, *7 (A.F. Ct. Crim. App. May 9,

2013) (unpublished).   Two weeks later, on May 23, 2013, the CCA

ordered the case returned to the court for reconsideration.1

United States v. Janssen, ACM No. 37681 (f rev), slip op. at 1

(A.F. Ct. Crim. App. May 23, 2013) (notice of reconsideration).

     On June 25, 2013, the Secretary of Defense, “[p]ursuant to

[his] authority under title 5, United States Code, section 3101

et seq.,” purported to “appoint Mr. Laurence M. Soybel, a

civilian employee of the Department of the Air Force, to serve

as appellate military judge on the Air Force Court of Criminal

Appeals.”   Memorandum from Chuck Hagel, Sec’y of Def., to Eric

1
  Appellant’s was one of thirty-four cases the CCA ordered
returned to that court for reconsideration on May 23, 2013. No
reason was given for the recalls in the order. Appellants in
several of the other recalled cases had already challenged Judge
Soybel’s appointment in petitions for review at this Court.

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United States v. Janssen, No. 14-0130/AF


Fanning, Sec’y of the Air Force (June 25, 2013).   On July 22,

2013, the CCA issued a Notice of Special Panel indicating that

Appellant’s case was referred to a panel that again included

Judge Soybel.   United States v. Janssen, ACM No. 37681 (recon)

(A.F. Ct. Crim. App. July 22, 2013) (notice of special panel).

In its reconsideration of Appellant’s case, also issued on July

22, the CCA asserted, in a footnote and without further

explanation, that, upon its own motion, it had “vacated the

previous decision in this case for reconsideration before a

properly constituted panel.”   United States v. Janssen, ACM No.

37681 (recon), 2013 CCA LEXIS 627, at *1 n.1, 2013 WL 3972252,

at n.1 (A.F. Ct. Crim. App. July 22, 2013) (unpublished).    This

special panel reached the same results Panel 1 had in its

decision of May 9.   2013 CCA LEXIS 627, at *21, 2013 WL 3972252,

at *7.

     On August 16, 2013, Appellant moved the CCA to vacate its

July 22 decision, asserting that the Secretary of Defense lacked

the statutory authority to appoint inferior officers.   In an

order issued on September 11, 2013, the CCA denied the motion to

vacate, agreeing with the Government that the Secretary of

Defense had authority to appoint Mr. Soybel to serve as an

appellate military judge on the CCA.   United States v. Janssen,

ACM No. 37681 (A.F. Ct. Crim. App. Sept. 11, 2013) (order

denying motion to vacate).


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United States v. Janssen, No. 14-0130/AF


                       II.   Discussion

     Although the Military Justice Act of 19682 established the

offices of military judge and appellate military judge and

converted the Boards of Review to Courts of Military Review,

litigation over the constitutional status of the military

judiciary did not occur until the 1990s.    In Weiss v. United

States, the Supreme Court held that military officers serving as

trial and appellate military judges were not appointed in

violation of the Appointments Clause.     510 U.S. 163, 170 (1994).

This was because Congress had not, by statute, required a

separate judicial appointment for them, and their judicial

duties were not so distinct from their duties as military

officers as to require separate appointments by the force of the

Appointments Clause.   Id. at 171.   It followed that their

appointments as officers by the President, upon Senate advice

and consent, sufficed to satisfy the requirements of the clause.

Id. at 173-77.3

     The disposition of the Appointments Clause issue in Weiss

made it unnecessary to decide whether appellate military judges


2
  Pub. L. 90-632, 82 Stat. 1335 (1968).
3
  The Supreme Court also held that the lack of fixed terms of
office for trial and appellate military judges did not violate
the Due Process Clause. Weiss, 510 U.S. at 176-81. See United
States v. Graf, 35 M.J. 450, 455 (C.M.A. 1992) (holding that “a
fixed term of office is not required as a matter of
constitutional due process for military judges at courts-
martial”).

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United States v. Janssen, No. 14-0130/AF


were “principal officers,” who must be appointed with Senate

advice and consent, or “inferior officers,” who may be appointed

by the alternative means set out in the Appointments Clause if

Congress so provides.4

     It was in this context that the question of the appointment

of civilians as appellate military judges arose.   Although the

UCMJ had from the beginning authorized the service of civilians

on what became the Courts of Criminal Appeals, the only armed

force to do so regularly was the Coast Guard, which was not a

part of the Department of Defense5 and operates under a separate

set of statutes.

     In United States v. Carpenter, we held that the appointment

of the civilian chief judge of the Coast Guard Court of Military

Review by the General Counsel of the Department of

Transportation violated the Appointments Clause, because he was

an inferior officer who had to be appointed in accordance with

its provisions.    However, we applied the de facto officer

doctrine6 to validate his acts, notwithstanding the invalid


4
  Justice Souter carefully analyzed this question in his
concurrence in Weiss, 510 U.S. at 182-94.
5
  Except when it operates as a service in the Navy, see 14 U.S.C.
§ 1 (2012), which it has not done since World War II. Robert
Scheina, The Coast Guard at War, United States Coast Guard,
http://www.uscg.mil/history/articles/h_CGatwar.asp (last updated
Oct. 11, 2012).
6
  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 [his]

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United States v. Janssen, No. 14-0130/AF


appointment.    37 M.J. 291 (C.M.A. 1993).   In Ryder v. United

States, the Supreme Court refused to apply the de facto officer

doctrine in another Coast Guard case and remanded for “a hearing

before a properly appointed panel” of the Coast Guard court.

515 U.S. at 188.

     Thereafter, the Coast Guard changed the method of

appointing its civilian judges, lodging the authority in the

Secretary of Transportation, who was concededly a “head of

department” within the meaning of the Appointments Clause.      See

5 U.S.C. § 101 (2012).   In Edmond, the Supreme Court held that

(1) civilian appellate military judges were “inferior Officers”

within the meaning of the Appointments Clause, and (2) a statute

(49 U.S.C. § 323(a) (2012)) granting the Secretary of

Transportation authority to “appoint and fix the pay of officers

and employees of the Department of Transportation” gave the

Secretary the authority to appoint them.     520 U.S. at 666.

     “Congress may by Law vest the Appointment of such inferior

Officers, as they think proper, . . . in the Heads of

Departments.”   U.S. Const. art. II, § 2, cl. 2.   The question

presented in this case is therefore a narrow one, although one

of first impression in the Department of Defense:    Did Congress

“by law” vest the Secretary of Defense, the head of a


appointment to office is deficient.” Ryder v. United States,
515 U.S. 177, 180 (1995); Norton v. Shelby Cnty., 118 U.S. 425,
446 (1886).

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United States v. Janssen, No. 14-0130/AF


department, with the authority to appoint a civilian as an

appellate military judge?7    This is a question of law which we

review de novo.

     The Government does not argue that any specific statutory

authority exists for the action of the Secretary of Defense.8

Rather, it relies on general, government-wide “housekeeping”

statutes for the necessary authority.    In particular, the

Government relies on 5 U.S.C. § 301 (2012), which empowers a

department head to “prescribe regulations for the government of

his department [and] the conduct of its employees,” and on

5 U.S.C. § 3101 (2012), which grants each executive agency the

authority to “employ such number of employees . . . as Congress

may appropriate for from year to year.”    The Government points

to 5 U.S.C. § 2105(a) (2012), which includes an “officer” within

the definition of “employee” and argues that the power to employ

is the power to appoint.     Finally, the Government cites Willy v.

Admin. Rev. Bd., 423 F.3d 483, 491-92 (5th Cir. 2005), for the


7
  Although Judge Soybel is a retired regular Air Force officer,
he was not recalled to active duty to serve as an appellate
military judge, but was appointed as a civilian. In Carpenter,
the Court of Military Appeals rejected the argument that a
civilian judge’s previous confirmation as a military officer
sufficed in such a situation. 37 M.J. at 294-95. In Ryder, the
Supreme Court declined to reach the question. 515 U.S. at 184
n.4.
8
  The general grant of authority to the Secretary over the
department, 10 U.S.C. § 113 (2012), is cited in the Government’s
brief only for the proposition that the Secretary is a “head of
Department” -- a proposition conceded by all parties.

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United States v. Janssen, No. 14-0130/AF

proposition that 5 U.S.C. § 301 is authority for the Secretary’s

action.

     Willy was an Appointments Clause attack on the Secretary of

Labor’s delegation of decisional authority relating to certain

whistleblower claims to an administrative board created by

regulation.   423 F.3d at 490.   The United States Court of

Appeals for the Fifth Circuit found that the language of

5 U.S.C. § 301 and Reorganization Plan No. 6 of 1950, 15 Fed.

Reg. 3174 (proposed Mar. 13, 1950), gave the Secretary the

authority to establish the board and appoint its members.     Id.

at 491-93.

     We find Willy unpersuasive for several reasons.    In the

first place, Reorganization Plan No. 6 is specific to the

Secretary of Labor and has no relevance to the Secretary of

Defense.   In the second place, the statutory structure of the

authority of the Secretary of Labor and his department is

completely different from that of the Secretary of Defense.      The

Labor Department statutes (29 U.S.C. §§ 551-568 (2012)) are

short, vague, and very old.   As will be seen below, Congress has

legislated with great specificity on the powers of the Secretary

of Defense and the structure of the department.   Finally, we

disagree with the Fifth Circuit’s reading of Edmond, on the

degree of statutory specificity necessary to confer the power to

appoint.   The Supreme Court spent substantial time in Edmond


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United States v. Janssen, No. 14-0130/AF

differentiating between the “assignment” or “detail” of

appellate military judges and their “appointment.”   520 U.S.

at 656-58.   Words have meaning, and we interpret Edmond to

require statutory language specifically granting the head of a

department the power to appoint inferior officers.

     The fundamental problem with the Government’s contention

that 5 U.S.C. § 301 (which grants only the power to prescribe

regulations) and 5 U.S.C. § 3101 (which establishes a general

authority to employ, subject to appropriations) authorize the

Secretary’s action is that the argument makes no sense in the

face of the statutory structure that Congress has enacted for

the Department of Defense.   Chapter 4 of Title 10, United States

Code, (10 U.S.C. §§ 131-144 (2012)) sets out in great detail the

officials who make up the Office of the Secretary of Defense,

and the procedures to be employed for their appointment.     There

are, for example, fourteen assistant secretaries of defense, who

are appointed by the President with Senate advice and consent,

although they are certainly “inferior officers”

constitutionally.   10 U.S.C. § 138(a) (2012).   Some have

statutory portfolios and others do not.

     More to the point, Congress has established three positions

within the Office of the Secretary and explicitly provided that




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United States v. Janssen, No. 14-0130/AF

the Secretary alone shall appoint them.9    This raises the obvious

question of why Congress would go to the trouble of enshrining

the positions in statute and providing for their appointment if,

as the Government argues, the Secretary already has the

authority under the sections of Title 5 to do so.    One searches

the sections of Title 10 in vain for any provision conferring a

general appointment power for officers after the manner of the

Transportation Department statute upheld in Edmond, and at oral

argument, Government counsel conceded that he had been unable to

find any instance in which the Secretary of Defense had in fact

appointed an inferior officer under the authority of Title 5.

     Furthermore, the structure of the sections of Title 5

undercuts the argument that they confer the kind of general

authority that the Government argues for.    For example, in

Chapter 31 of Title 5, the same chapter as one of the statutes

the Government claims grants the Secretary general authority to

appoint inferior officers, Congress has specifically provided

for the appointment of administrative law judges.    5 U.S.C.

§ 3105 (2012).   This suggests that Congress did not intend Title

5 to serve as a general appointment authority for, among others,

Article I judges.   Further, if Congress had intended Title 5 to

9
  These are the Deputy Assistant Secretary of Defense for
Developmental Test and Evaluation (10 U.S.C. § 139b(a)(1)
(2012)), the Deputy Assistant Secretary of Defense for Systems
Engineering (10 U.S.C. § 139b(b)(1) (2012)), and the Director of
Small Business Programs (10 U.S.C. § 144(a) (2012)).

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United States v. Janssen, No. 14-0130/AF

be read to include the power to appoint inferior officers, it

would not have needed to grant the appropriate Secretary the

specific authority to “appoint civilian employees of the

department in which the Coast Guard is operating as appellate

military judges.”   14 U.S.C. § 153 (2012).

      The conclusion is clear:   While Congress certainly has the

authority under the Appointments Clause to authorize the

Secretary of Defense to appoint appellate military judges,

either through general legislation granting authority to appoint

inferior officers or specific legislation granting authority to

appoint appellate military judges, it has not done so.    This

being the case, the appointment of Judge Soybel was required to

be done by the President with Senate advice and consent, which

is the default method for the appointments of inferior officers.

See Edmond, 520 U.S. at 660.     Since this was not done, his

appointment as an appellate military judge is invalid and of no

effect.

      In Ryder, the Supreme Court declined to apply the de facto

officer doctrine to the actions of the invalidly appointed

members of the Coast Guard Court of Military Review, because the

petitioner challenged the composition of the court while his

case was pending before it on direct review.    515 U.S. at 182-

84.   The Supreme Court stated that applying the doctrine in such

a case “would create a disincentive to raise Appointments Clause


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United States v. Janssen, No. 14-0130/AF

challenges with respect to questionable judicial appointments.”

Id. at 183.   In this case, Appellant could not challenge the

Secretary of Defense’s appointment of Judge Soybel because he

had no notice that Judge Soybel was on the panel:    The CCA

issued the Notice of Special Panel on July 22, 2013, the same

date that it issued its opinion.     Appellant, however, promptly

challenged the composition of the panel through a motion to

vacate while the case was still on direct review and received a

decision on the merits from a panel of that court.    Under these

facts, we decline to apply the de facto officer doctrine.

     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.




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