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\deflang1033\pard\plain\f3\fs17 
\par No. 94-1931
\par 
\par In The Supreme Court of The United States
\par 
\par OCTOBER TERM, 1995
\par 
\par JON E. EDMOND, PETITIONER
\par 
\par v.
\par 
\par UNITED STATES OF AMERICA
\par 
\par ON PETITION FOR A WRIT OF CERTIORARI 
\par TO THE UNITED STATES COURT OF APPEALS
\par FOR THE ARMED FORCES
\par 
\par BRIEF FOR THE UNITED STATES IN OPPOSITION
\par 
\par PETER J. PLOCKI
\par Attorney
\par Department of Transportation
\par Washington, D.C. 20590
\par 
\par JOHN F. KOEPPEN
\par Lieutenant Commander, USCG
\par Appellate Government Counsel
\par 
\par RICHARD C. YAZBEK
\par Commander, USCG
\par Appellate Government Counsel
\par Commandant (G-LMJ)
\par United States Coast Guard
\par Washington, D.C. 20593
\par (202)267-0272
\par 
\par DREW S. DAYS, III
\par Solicitor General
\par Department of Justice
\par Washington, D.C. 20530
\par (202)514-2217
\par 
\par  -------------------- Page Break --------------------                     
\par 
\par      QUESTION PRESENTED
\par 
\par Whether the Secretary of Transportation has
\par statutory authority to appoint judges to the Coast
\par Guard Court of Criminal Appeals (formerly known as
\par the Coast Guard Court of Military Review).
\par 
\par (I)
\par 
\par  -------------------- Page Break --------------------                     
\par 
\par TABLE OF CONTENTS
\par 
\par                      Page
\par 
\par Opinions  below   . . . . 1
\par Jurisdiction   . . . . 1
\par Statement   . . . . 2
\par Argument   . . . . 8
\par Conclusion   . . . . 14
\par 
\par     TABLE OF AUTHORITIES
\par 
\par Cases:
\par 
\par Carpenter v. United States, No. 93-676(June 19,1995)  . . . . 6
\par Freytag v. Commissioner, 501 U.S. 868 (1991)   . . . . 8
\par Ryder  v. United States, 115 S. Ct. 2031 (1995)  . . . . 3, 12, 14
\par United States v. Carpenter, 37 M.J. 291(C.M.A. 1993),
\par vacated and remanded, No. 93-676 (June 19,
\par 1995)  . . . . 4,6,6,7, 12
\par United States v. Kovac, 36 M.J. 521 (C.G.C.M.R. 1992),
\par aff 'd mem., 39 M.J. 29 (C.M.A. 1993), vacated and re-
\par manded sub nom. Clark v. United States, No. 93-966
\par (June 19,1996)   . . . . 4
\par United States v. Leonard, No. 95-0702/CG
\par (U.S.C.A.A.F. July 14,1995) . . . . 13
\par United States v. Prive, 35 M.J. 569 (C.G.C.M.R. 1992),
\par aff 'd mem., 39 M.J. 28 (C.M.A. 1993), vacated and re-
\par manded sub nom. Clark v. United States, No. 93-966
\par (June  19,1995) . . . . 10
\par United States v. Ryder, 39 M.J. 454 (C.M.A. 1994),
\par rev'd, 115 S. Ct. 2031(1995)   . . . . 6
\par United States v. Senior, 36 M.J. 1016 (C.G.C.M.R.
\par 1993)   . . . . 5
\par Weiss v. United States, 114 S. Ct. 752(1994)  . . . . 3, 5, 6, 10
\par 
\par Constitution and statutes:
\par 
\par U.S. Const. Art. II, 2, C1. 2 (Appointments
\par Clause)  . . . . 5, 6, 7, 8, 12
\par Military Justice Act of 1968, Pub. L. No, 90-632, 27,
\par 82 Stat. 1341   . . . . 3
\par 
\par (III)
\par 
\par  -------------------- Page Break --------------------                     
\par 
\par IV
\par 
\par Statutes-Continued:
\par 
\par National Defense Authorization Act for Fiscal Year 1995,
\par Pub. L. No. 108-337, 108 Stat. 2663:
\par    924(a), 108 Stat. 2831 . . . . 3
\par    924(b), 108 Stat. 2831 . . . . 3
\par Uniform Code of Military Justice, 10 U.S.C. 801 et seq.:
\par Art. l(l), 10 U.S.C.  801(1)   . . . . 4, 11 
\par Art. 26, 10  U.S.C. 826  . . . . 5
\par Art. 66, 10  U.S.C. 866  . . . . 5,10
\par Art. 66(a), 10  U.S.C.  866(a) . . . . 3,4,6,10, 11
\par Art. 78, 10   U.S.C.  878  . . . . 7
\par Art. 134, 10  U.S.C.  934  . . . . 7
\par 5 U.S.C 101      . . . . 7
\par 14 U.S.C. 1 . . . . 2, 7
\par 14 U.S.C. 3 . . . . 2     
\par 14 U.S.C.  92(i)  . . . . 2, 10
\par 14 U.S.C. 633 . . . . 2, 10
\par 49 U.S.C. 102(a) . . . . 8
\par 49 U.S.C.. 102(b)  . . . . 8
\par 49 U.S.C. 102(e)  . . . .  9, 11
\par 49 U.S.C. 104(b)(2))  . . . . 9
\par 49 U.S.C. 104(b)(3)  . . . . 9
\par 49 U.S.C. 105(b) . . . . 9 
\par 49 U.S.C. 108(a)   . . . . 2
\par 49 U.S.C. 108(b)   . . . . 2, 10
\par 49 U.S.C. 323(a)  . . . . 2, 9
\par 
\par Miscellaneous: 
\par 
\par Index and Legislative History, Uniform Code of Military
\par Justice (l95O) . . . . 3                               
\par Uniform Code of Military Justice: Hearings on  H.R.
\par 2498 Before the Subcomm. of the House Armed
\par Services Comm., 81st Cong., 1st Sess. (1949) . . . . 3      
\par 
\par  -------------------- Page Break -------------------- 
\par                                        
\par In  The Supreme Court of the United States
\par 
\par       OCTOBER TERM, 1995
\par 
\par No. 94-1931
\par 
\par JON E. EDMOND, PETITIONER
\par 
\par v.
\par 
\par UNITED STATES OF AMERICA
\par 
\par ON PETITION FOR A WRIT  OF CERTIORARI
\par TO THE UNITED STATES COURT OF APPEALS
\par    FOR THE ARMED FORCES
\par 
\par BRIEF FOR THE UNITED STATES IN OPPOSITION
\par 
\par        OPINIONS BELOW
\par 
\par The opinion of the United States Court of Appeals
\par for the Armed Forces (Pet. App. la-10a) is reported at
\par 41 M.J. 419. The opinion of the United States Coast
\par Guard Court of Military Review (now called the
\par United States Coast Guard Court of Criminal
\par Appeals) (Pet. App. 11a-32a) is reported at 37 M.J. 787.
\par 
\par         JURISDICTION
\par 
\par The judgment of the United States Court of Ap-
\par peals for the Armed Forces was entered  on February
\par 28, 1995. The petition for a writ of certiorari was filed
\par on May 25, 1995. The jurisdiction of this Court is
\par 
\par (1)
\par 
\par -------------------- Page Break -------------------- 
\par                                           
\par   2
\par                              
\par invoked under 10 U.S.C.  867a (Supp.  V  1993) and 28
\par U.S.C. 1259(3) (Supp. v 1993).
\par 
\par      STATEMENT
\par 
\par 1. The United States Coast Guard is "a military
\par service and a branch of the armed forces of the United
\par States at all times." 14 U.S.C. 1. "Upon the declara-
\par tion of war or when the President directs, the Coast
\par Guard shall operate as a service in the Navy, and
\par * * * shall be subject to the orders of the Secretary
\par of the Navy." l4 U.S.C. 3. "Except when operating  as
\par a service in the  Navy." however, "the Coast Guard
\par is a part of the Department of Transportation."
\par 49 U.S.C.  108(a); see also 14 U.S.C. 1.
\par The Secretary of Transportation possesses general
\par statutory authority to "appoint and fix the pay of
\par officers and employees of the Department of Trans-
\par portation and [tin] prescribe their duties and powers."
\par 49 U.S.C. 323(a) The Secretary is also given broad
\par authority to oversee the Coast Guard at all times
\par when it is not operating as a service in the Navy.
\par Thus, the Commandant of the Coast Guard is directed
\par to "carry out duties and powers prescribed by the
\par Secretary of Transportation" and "reports directly to
\par the Secretary." 49 U.S.C. l08(b). The Secretary of
\par Transportation" "may promulgate such regulations
\par and orders as he deems appropriate to carry out the
\par provisions of [Title 14] or any other law applicable
\par to the Coast Guard," 14 U.S.C. 633, and "[f]or the
\par purpose of executing the duties and functions of the
\par Coast Guard the Secretary may * * * do any and all
\par things necessary to carry out the purposes of [Title
\par 14]," 14 U.S.C.  92(i).
\par 2. This case concerns the method of appointment of
\par judges on the Coast Guard Court of Criminal Appeals
\par 
\par -------------------- Page Break -------------------- 
\par                                         
\par 3
\par 
\par (formerIy known as the Coast Guard Court of
\par Military Review).  1 The Court of Military Review
\par hears appeals from the decisions of courts-martial,
\par subject to review by the United States Court of
\par Appeals for the Armed Forces. See generally Weiss
\par v. United States, 114 S. Ct. 752, 755-756 (1994); Ryder
\par v. United States, 115 S. Ct. 2031, 2037-2038 (1995).
\par The position of appellate military judge first came
\par into existence with the Military Justice Act of  1968,
\par Pub. L. No. 90-632, 27, 82 Stat. 1341. Appellate
\par judges may be commissioned officers or civilians, but
\par each must be a member of a bar of a federal court or of
\par a State's highest court. Art. 66(a), Uniform Code of
\par Military Justice (UCMJ), 10 U.S.C. 866(a). 2  The
\par 1 Effective October 5, 1994, Section 924(b) of the National
\par Defense Authorization Act for Fiscal Year 1995, Pub. L. No.
\par 103-337, 108 Stat. 2831, redesignated the several Courts of
\par Military Review as Courts of Criminal Appeals. Section 924(a)
\par redesignated the Court of Military Appeals-the highest court
\par within the military justice system-as the Court of Appeals for
\par the Armed Forces. 108 Stat. 2831. For the sake of clarity, this
\par brief will refer to those courts as the Coast Guard Court of
\par Military Review and the Court of Appeals for the Armed
\par Forces-their names at the time they ruled on petitioner's
\par case. 2 Article 66(a) of the UCMJ expressly authorizes the
\par service of civilian judges on the Courts of Military Review.
\par See 10 U.S.C. 866(a) ("Appellate military judges who are
\par assigned to a [Court of Military Review] may be commissioned
\par officers or civilians."). The legislative history indicates that
\par the use of civilian judges was authorized by Congress at the
\par request of the Coast Guard, which desired the flexibility, due
\par to its small number of lawyers, to appoint a civilian judge to
\par the court. See Uniform Code of Military Justice: Hearings on
\par H.R. 2498 Before the Subcomm. of the House Armed Services
\par Comm., 81st Cong., 1st Sess. 1189 (1949), reprinted in Index and
\par Legislative History, Uniform Code of Military Justice (1950).
\par 
\par -------------------- Page Break -------------------- 
\par                                        
\par 4
\par 
\par UCMJ provides that each service's Judge Advocate
\par General "shall establish a Court of Military Review"
\par and "shall designate as chief judge one of the appellate
\par military judges of the Court of Military Review
\par established by him." Ibid. In the Coast Guard, the
\par Judge Advocate General is the General Counsel of the
\par Department of Transportation. Art. l(l), UCMJ, 10
\par U.S.C. 801(1).
\par The Coast Guard Court of  Military Review is com-
\par posed of five appellate judges, three of whom are
\par active-duty commissioned officers in the pay grade of
\par 0-6. United States v. Carpenter, 37 M.J. 291, 293-295
\par (C.M.A. 1993), vacated and remanded, No. 93-676 (June
\par 19, 1995). The other two members of the court are
\par "civilians," serving in the civilian pay grade of GS-15.
\par Those two judges-Chief Judge Joseph H. Baum and
\par Associate Judge Alfred F. Bridgman, Jr. are retired
\par commissioned officers who attained the military pay
\par grade of O-6 before retirement. Ibid.; United States v.
\par Kovac, 36 M.J. 521, 525 (C.G.C.M.R. 1992), aff'd mem.,
\par 39 M.J. 29 (C.M.A. 1993), vacated and remanded sub
\par nom. Clark v. United States, No. 93-966 (June 19,
\par 1995).
\par Both Chief Judge Baum and Associate Judge Bridg-
\par man received their initial appointments as civilian
\par judges of the Coast Guard Court of Military Review
\par from the Judge Advocate General of the Coast Guard.
\par See Kovac, 36 M.J. at 525. On January 15, 1993, the
\par Secretary of Transportation issued a memorandum
\par stating that "[t]he assignment of appellate military
\par judges to the Coast Guard  Court of Military Review,
\par as reflected in the General Counsel's memo of April
\par 20, 1992, is adopted this date as judicial appoint-
\par ments of my own." See Carpenter, 37 M.J. at 294 n.1,
\par 300. The Secretary's issuance of  that memorandum
\par 
\par -------------------- Page Break -------------------- 
\par             
\par 5
\par 
\par appears to have been precipitated by a communi-
\par cation from Chief Judge Baum to the Chief Counsel
\par of the Coast Guard, expressing on behalf of the Coast
\par Guard Court of Military Review the view that "the
\par Secretary, in his capacity as a cabinet level head of
\par department, [should] reappoint the judges so the
\par Court would be constitutionally valid beyond any
\par doubt." United States v. Senior, 36 M.J. 1016, 1018
\par (C.G.C.M.R. 1993).
\par In Carpenter, the Court of Appeals for the Armed
\par Forces held that the method by which Chief Judge
\par Baum had been selected before January 15, 1993,
\par violated the Appointments Clause of the Constitution,
\par Art. II, 2, C1. 2.  3 The court noted that the Gen-
\par eral Counsel of the Department of Transportation "is
\par not a department head, so appointment by him does
\par not satisfy the Appointments Clause." 37 M.J. at 294.4
\par 
\par ___________________(footnotes)
\par                                                   
\par 3 The Appointments Clause states that the President "shall
\par nominate, and by and with the Advice and Consent of the
\par Senate, shall appoint Ambassadors, other public Ministers and
\par Consuls, Judges of the supreme Court, and all other Officers of
\par the United States, whose Appointments are not herein other-
\par wise provided for, and which shall be established by Law: but
\par the Congress may by Law vest the Appointment of such
\par inferior Officers, as they think proper, in the President alone,
\par in the Courts of Law, or in the Heads of Departments."
\par 4 This Court concluded in Weiss, 114 S. Ct. at 757, that
\par "those serving as military judges must be appointed pursuant
\par to the Appointments Clause." All of the trial and appellate
\par judges whose appointments were at issue in Weiss were active-
\par duty commissioned officers-a position that requires appoint-
\par ment by the President with the advice and consent of the
\par Senate. See ibid. This Court recognized that Congress, in
\par Articles 26 and 66 of the UCMJ, 10 U.S.C. 826, 866, did not
\par require a second appointment to the position of military judge
\par before the assumption of judicial duties. 114 S. Ct. at 758, 760.
\par 
\par -------------------- Page Break -------------------- 
\par        
\par 6
\par 
\par The court heId, however, that Chief Judge Baum's
\par prior judicial acts were "entitled  to de facto validity,"
\par id. at 295, and affirmed Carpenter's conviction and
\par sentence, id. at 299.5
\par In dictum, the court also addressed the validity of
\par the recent secretarial appointments of the members
\par of the Court of Military Review. The court stated
\par that the Secretary of Transportation had "appointed
\par all members of the Court of Military Review on
\par January 15, 1993,  fully complying with the Appoint-
\par 
\par ___________________(footnotes)
\par 
\par The Court also concluded that the Appointments Clause itself
\par does not require a second appointment before military officers
\par may discharge the duties of military judge. Id. at 760. The
\par Court noted, however, that "[t]he constitutionality of the
\par provision allowing civilians to be assigned to Courts of Military
\par Review, without being appointed pursuant to the Appoint-
\par ments Clause, obviously presents a quite different question ."
\par Id. at 757 n.4 (citing Art. 66(a), UCMJ, 10 U.S.C. 866(a)). The
\par government conceded in Ryder that the Judge Advocate
\par General's appointment of civilian members to the Coast Guard
\par Court of Military Review did not comply with the Appoint-
\par ments Clause. Sec 94-431 U.S. Br. 9 n.9.
\par 5 In United States v. Ryder, 39 M.J. 454, 455 n.* (C.M.A.
\par 1994), rev'd, 115 S. Ct. 2031 (1995), the court relied on Carpenter
\par in affirming the defendant's conviction and sentence. (As in
\par Carpenter, the decision of the Coast Guard Court of Military
\par Review in Ryder  was issued before January 15, 1993. See 115
\par S. Ct. at 2034.) This Court reversed, holding that Ryder was
\par "entitled to a hearing before a properly appointed panel of" the
\par Coast Guard Court of Military Review. Id. at 2038. The Court
\par did not address the validity of the secretarial appointments of
\par January 15, 1993. The judgment of the Court of Appeals for the
\par Armed Forces in Carpenter was subsequently vacated and
\par remanded for further consideration in light of this Court's
\par decision in Ryder. See Carpenter v. United States, No. 93-676
\par (June 19, 1995).
\par 
\par -------------------- Page Break -------------------- 
\par              
\par 7
\par 
\par ments Clause as of that date." 37  M.J. at 294  n.1. The
\par court explained that
\par 
\par Congress has authorized the Secretary of Trans-
\par portation to "appoint . . . officers and employees of
\par the Department of Transportation," of which the
\par Coast Guard is a part (14 USC  1) without Senate
\par confirmation. 49 USC 323. The Secretary of
\par Transportation is the head of a "department" as
\par that term is used in the Appointments Clause,
\par since he is the head of one of the cabinet-level
\par executive departments. See 5 USC  101; Freytag
\par v. C.I.R., [501 U.S. 868, 886 (1991)]. Since Con-
\par gress has expressly delegated the appointment
\par of "officers" within the Department of Transpor-
\par tation to the Secretary of Transportation, the
\par Appointments Clause would be satisfied if the
\par Secretary of Transportation appointed the judges
\par of the Coast Guard Court of Military Review.
\par Id. at 294.
\par 3. Petitioner, a member of the United States Coast
\par Guard, was convicted at a general court-martial of
\par violating Articles 78 and 134 of the UCMJ, 10 U.S.C.
\par 878 and 934, by (1) being an accessory after the fact to
\par attempted sodomy; (2) committing an indecent act; and
\par (3) dishonorably failing to maintain sufficient funds to
\par honor three personal checks. Pet.  App. 11a-12a. The
\par convening authority approved the sentence of reduc-
\par tion to pay grade E-1, forfeiture of all pay and allow-
\par ances, confinement for one year, and a bad conduct
\par discharge.  Id. at 12a.
\par Petitioner appealed to the Coast Guard Court of
\par Military Review, arguing, inter alia, that the method
\par by which the judges of that court were appointed
\par violated the Appointments Clause. The Coast Guard
\par 
\par -------------------- Page Break -------------------- 
\par             
\par 8
\par 
\par Court of Military Review affirmed petitioner's con-
\par viction  on  June 25, 19932 see" Pet. App. lla-32a-more
\par than five months after the Secretary's January 15
\par memorandum adopting the Judge Advocate General's
\par appointments as his own.  6   The court rejected peti-
\par tioner's Appointments Clause challenge without dis-
\par cussion. See id. at 32a. The Court of Appeals for the
\par Armed Forces granted- review on three issues,
\par including petitioner's contention that the manner
\par in which the judges of the Coast Guard Court
\par of Military Review had been designated violated
\par the Appointments Clause. 39 M.J. 428 (C.M.A. 1984).
\par The court ultimately affirmed petitioner's convic-
\par tion and sentence, stating that petitioner's Appoint-
\par ments Clause challenge  "ha[d] been disposed of by"
\par Carpenter. Pet. App. 2a n.1.
\par 
\par        ARGUMENT
\par 
\par 1. The Secretary of Transportation is a "Head[] of
\par Department[]" within the meaning of the Appoint-
\par ments Clause, see 5 U.S.C. 101; 49 U.S.C. 102(a) and
\par (b); Freytag v. Commissioner, 501 U.S. 868, 886
\par (1991), who may be vested by Congress with the power
\par to appoint "inferior Officers." Petitioner contends
\par (Pet. 8-11) that, although the Secretary of Trans-
\par portation appointed the judges on the Coast Guard
\par Court of Military Review who reviewed his case, the
\par Secretary lacked statutory authority to do so. That
\par 
\par ___________________(footnotes)
\par 
\par 6  Petitioner's assignment of errors was filed in the Coast
\par Guard Court of Military Review on December 8, 1992, at a time
\par when the members of  that court were still serving pursuant
\par to the appointments of the Judge Advocate General.  The
\par government's brief was filed, however, and the court's decision
\par was rendered, after the Secretary's January 15, 1993, mem-
\par orrandum, adopting the earlier appointments as his own.
\par 
\par -------------------- Page Break -------------------- 
\par                                           
\par 9
\par 
\par contention is incorrect and does not warrant review
\par by this Court.  7
\par a. The appointments at issue here fall within the
\par express terms of the Secretary's statutory authority.
\par The Secretary of Transportation is empowered to
\par "appoint and fix the pay of officers and employees of
\par the Department of Transportation and [to] prescribe
\par their duties and powers." 49 U.S.C. 323(a)  8   In addi-
\par tion to the general grant of authority over the
\par Department as a whole, he is charged with oversight
\par of the Coast Guard at all times when it is not
\par operating as a service in the Navy. The Commandant
\par of the Coast Guard is directed to "carry out duties
\par and powers prescribed by the Secretary of Trans-
\par portation," and he "reports directly to the Secre-
\par 
\par ___________________(footnotes)
\par 
\par 7   Petitioner  also asserts in passing that "[t]he question of
\par whether the judges of the [Coast Guard Court of Military
\par Review] are principal or inferior officers is not clearIy settled,"
\par and that `(there is a strong argument to be made that they are
\par principal officers" who must be appointed by the President.
\par Pet. 9 n.4.  Petitioner does not expressly contend that the
\par judges are principal officers, however, nor does he ask the
\par Court to grant certiorari to resolve the issue. In the Court of
\par Appeals for the Armed Forces as well, petitioner failed to raise
\par the argument that members of the Coast Guard Court of
\par Military Review are principal officers.
\par s Petitioner notes that the Secretary is given specific
\par statutory authorization to appoint particular officers within the
\par Department of Transportation, see Pet. 10 (citing 49 U.S.C.
\par 102(e), 104(b)(2) and (3), and 105(b)), and contends that "[n]one
\par of these provisions wouId be necessary if 49 U.S.C.  323(a)
\par meant precisely what it says." Pet. 10. Each of the provi-
\par sions cited by petitioner, however, authorizes the Secretary
\par of Transportation to appoint a particular officer "with the
\par approval of the President," a qualification not included in the
\par general grant of authority under Section 323(a).
\par 
\par -------------------- Page Break -------------------- 
\par 
\par 10
\par          
\par tary." 49 U.S.C. 108(b). The Secretary "may pro-
\par mulgate such regulations and orders as he deems
\par appropriate to carry out the provisions of [Title 14]
\par or any other law applicable to the Coast Guard,"
\par 14  U.S.C. 633, and "[f]or the purpose of executing the
\par duties and functions of the Coast Guard the Secretary
\par may * * * do any and all things necessary to carry
\par out the purposes of [Title 14]," 14 U.S.C. 92(i). Those
\par provisions give the Secretary of Transportation
\par ample statutory authority to appoint judges to the
\par Coast Guard Court of Military Review.
\par b. It is true that Article 66(a) of the UCMJ, 10
\par U.S.C. 866(a), provides that each service's Judge
\par Advocate General "shall establish a Court of Military
\par Review" and "shall designate as chief judge one of the
\par appellate military judges of the Court of Military
\par Review established by him." 9  That provision does not,
\par however, withdraw statutory authority to appoint
\par such judges from any other official who possesses it.
\par To construe Article 66(a) as divesting the Secretary
\par of Transportation of that power would be particu-
\par larly anomalous in light of the subordinate position of
\par the Judge Advocate General within the Department.
\par The Judge Advocate General of the Coast Guard is
\par 
\par ___________________(footnotes)
\par 
\par 9 "Although Article 66 does not specifically state that the
\par Judge Advocate General of  the respective service will desig-
\par nate the members of the Military Courts of Review, * * *
\par [t]hat is how the statute has been interpreted since its passage."
\par United States v. Prive, 35 M.J. 569, 571 (C.G.C.M.R. 1992),
\par aff'd mem., 39 M.J. 28 (C.M.A. 1993), vacated and remanded
\par sub nom. Clark v. United States, No. 93-966 (June 19, 1995).
\par See also Weiss v. United States, 114 S," Ct. 752, 766 (1994)
\par (judges of the Courts of Military Review "are  selected and
\par assigned to serve by the appropriate Judge Advocate
\par General") (citing Art. 66, UCMJ, 10 U.S.C. 866).
\par 
\par -------------------- Page Break -------------------- 
\par               
\par 11
\par 
\par the General Counsel of the Department of Trans-
\par portation. Art. I(1], UCMJ, 10 U.S.C. 801(1). The
\par General Counsel is directed by statute to "carry out,
\par duties' and powers prescribed by the Secretary,"
\par 49 U.S.C. 102(e), and could presumably be directed by
\par the Secretary to appoint a particular individual to the
\par Coast Guard Court of Military Review. To read
\par Article 66(a) as divesting the Secretary of his power
\par to appoint military judges within the Department
\par would make sense only if that power were given to
\par an official outside the Secretary's control. The Judge
\par Advocate General is not such a person.
\par c. Recognition of the Secretary's appointment
\par power furthers the purposes of the statutory scheme
\par as a whole. Article 66(a) expressly provides that
\par members of the Courts of Military Review "may be
\par commissioned officers or civilians"; Congress thus
\par sought to preserve the services' flexibility by en-
\par suring that a wider pool of potential judges would
\par possess the statutory qualifications.  See note 2,
\par supra. The Judge Advocate General, however, is not
\par a "Head of Department." Though he may assign to
\par military judgeships persons already commissioned as
\par military officers,  he lacks constitutional authority to
\par appoint civilian judges to military courts. See note 4,
\par supra. If Article 66(a) were construed as divesting
\par the Secretary of Transportation of his statutory
\par authority to appoint departmental officers and to
\par administer the Coast Guard, and as conferring upon
\par the Judge Advocate GeneraI exclusive authority to
\par select members of the Coast Guard Court of Military
\par Review, the use of civilian judges would be effectively
\par precluded despite Congress's express authorization of
\par their use.
\par 
\par -------------------- Page Break -------------------- 
\par                      
\par 12
\par 
\par 2. For the foregoing reasons, petitioner's claim
\par that the Secretary of Transportation lacked statu-
\par tory authority to appoint members of the Coast Guard
\par Court of Military Review lacks merit and does not
\par warrant this Court's, review. We acknowledge, how-
\par ever, that the basis on which the Court of Appeals for
\par the Armed Forces rejected petitioner's challenge is
\par not clear, That court stated only that petitioner's
\par claim "ha[d] been disposed of by" its earlier decision
\par in United States v. Carpenter, 37 M.J. 291 (C.M.A.
\par 1993), vacated and remanded, No. 93-676 (June 19,
\par 1995). Pet. App. 2a n.1. The court may have been
\par referring to dictum in Carpenter concluding that the
\par Secretary's January 15, 1993, memorandum adopting
\par the earlier appointments of the Judge Advocate
\par General satisfied the requirements of the Appoint-
\par ments Clause.  Carpenter, 37 M.J. at 294 & n.1; see
\par pages 6-7, supra. Because the Coast Guard Court of
\par Military Review decided petitioner's case on June 25,
\par 1993, rejection of petitioner's challenge based on that
\par aspect of Carpenter would have been logical and
\par appropriate. The Court of Appeals for the Armed
\par Forces may, however, have been relying on the
\par Carpenter court's conclusion that prior judicial acts
\par of the civilian judges were "entitled to de facto
\par validity," 37 M.J. at 295, despite the institutional
\par infirmity of the judges' initial appointments. That
\par holding was subsequently rejected by this Court in
\par Ryder v. United States, 115 S. Ct. 2031 (1995). See
\par note 5, supra. 10
\par 
\par ___________________(footnotes)
\par 
\par 10 We note that on July 14, 1995, the Court of Appeals
\par for the Armed Forces agreed to, review another defendant's
\par claim that "the Coast Guard Court of Criminal Appeals,
\par which includes civilian judges, lacked jurisdiction to review
\par 
\par -------------------- Page Break -------------------- 
\par                 
\par 13
\par 
\par For the reasons stated above, the judgment of the
\par Court of Appeals for the Armed Forces is correct, and
\par the question presented by the petition does not
\par warrant this Court's review. We believe that the
\par petition should therefore be denied despite the
\par uncertainty as to the ground of decision on which the
\par Court of Appeals for the Armed Forces relied.
\par Because of the possibility that the court below may
\par have relied on a rationale subsequently rejected by
\par this Court, however, the Court may wish to grant the
\par petition, vacate the judgment below, and remand the
\par case to the Court of Appeals for the Armed Forces for
\par further consideration in light of Ryder
\par 
\par ___________________(footnotes)
\par 
\par appellant's case where two of the court of criminal appeals
\par judges were civilians who were designated in violation of
\par the Appointments Clause of the Constitution." See United
\par States v. Leonard, No. 95-0702/CG, Supplement to Appel-
\par lant's Pet. at 5; Order Granting Review, No. 95-0702/CG
\par (U.S.C.A.A.F. July 14, 1995). In that case, as in this one, the
\par Coast Guard Court of Military Review issued its opinion after
\par the Secretary of Transportation's January 15, 1993, appoint-
\par ment of the members of that court.
\par 
\par -------------------- Page Break -------------------- 
\par                  
\par CONCLUSION
\par 
\par The petition for a writ of certiorari should be
\par denied. In the alternative, the petition should be
\par granted, the judgment below should be vacated, and
\par the case should be remanded to the Court of Appeals
\par for the Armed Forces for further consideration in
\par light of Ryder v. United Slates, 115 S. Ct. 2031 (1995).
\par 
\par Respectfully submitted.
\par 
\par         DREW S. DAYS III
\par           Solicitor General 
\par 
\par          PETER J. PLOCKI
\par           Attorney 
\par           Department of Transportation
\par 
\par          JOHN F, KOEPPEN
\par          Lieutenant Commander, USCG
\par          Appellate Government Counsel
\par 
\par          RICHARD C. YAZBEK
\par          Commander, USCG
\par          Appellate Government Counsel
\par          Commandant, (G-LMJ)
\par          United States Coast Guard
\par 
\par           JULY 1995 
\par 
\par 
\par }