Supreme Court Report

Supreme Court of the United States · Official docket →

Nicole A. Dalmazzi v. United States

Paid petition · United States Court of Appeals for the Armed Forces, No. 16-0651 · judgment December 15, 2016

Decided · June 22, 2018
Pre-decision estimate: 6% cert probability (95% interval 2%–20%)

Before the decision, modestly above the 4.1% base rate. The model weighted this up for a petition filed soon after the judgment below and the Court of Appeals for the Armed Forces below.

Questions presented

Consolidated with 16-1017. Since shortly after the Civil War, federal law has required express authorization from Congress before active-duty military officers may hold a "civil office,” including positions that require "an appointment by the President by and with the advice and consent of the Senate." 10 U.S.C. § 973(b)(2)(A)(ii). After President Obama nominated and the Senate confirmed Colonel Martin T. Mitchell as a judge of the Article I U.S. Court of Military Commission Review (CMCR), Judge Mitchell continued to serve on the U.S. Air Force Court of Criminal Appeals (AFCCA). The U.S. Court of Appeals for the Armed Forces (CAAF) rejected as moot Petitioner's challenge to Judge Mitchell's continued service on the AFCCA, because his CMCR commission had not been signed until after the AFCCA decided her case on the merits-even though she moved for reconsideration after the commission was signed. The Questions Presented are:

  1. Whether the Court of Appeals erred in holding that Petitioner's claims were moot.

  2. Whether Judge Mitchell's service on the CMCR disqualified him from continuing to serve on the AFCCA under 10 U.S.C. § 973(b)(2)(A)(ii).

  3. Whether Judge Mitchell's simultaneous service on both the CMCR and the AFCCA violated the Appointments Clause.

Counsel of record

For petitioner
Stephen I. Vladeck

For respondent
Noel John Francisco
Jones Day

Case

Conference history
Distributed for 2 conferences

Amicus briefs
1 merits
(1 supporting pet./neither)

Order
Miscellaneous order, January 5, 2018

Argument & decision

Argued January 16, 2018 — Stephen I. Vladeck · Aditya Bamzai · Brian H. Fletcher. Listen and read along · the Court’s audio

Decided June 22, 2018. Opinion by Per Curiam.

Proceedings

  1. Jul 24 2018
    JUDGMENT ISSUED.
  2. Jun 22 2018
    Writ of certiorari DISMISSED as improvidently granted. Opinion per curiam.
  3. Jun 04 2018
    Letter of respondent United States filed. VIDED. (Distributed)
  4. May 23 2018
    Letter of petitioners Nicole A.Dalmazzi, et al. filed. VIDED. (Distributed)
  5. Jan 16 2018
    Argued. For petitioners: Stephen I. Vladeck, Austin, Tex. For Professor Aditya Bamzai as amicus curiae: Aditya Bamzai, Charlottesville, VA. For respondent: Brian H. Fletcher, Assistant to the Solicitor General, Department of Justice, Washington, D. C. VIDED.
  6. Jan 10 2018
    Letter of respondent United States filed. VIDED. (Distributed)
  7. Jan 05 2018
    Motion of Professor Aditya Bamzai for enlargement of time for oral argument, for leave to participate in oral argument as amicus curiae and for divided argument GRANTED, and the time is divided as follows: 30 minutes for petitioners, 10 minutes for Professor Aditya Bamzai, and 30 minutes for respondent. VIDED
  8. Jan 05 2018
    Reply of petitioner Nicole A.Dalmazzi filed. VIDED. (Distributed)
  9. Dec 14 2017
    Motion of Aditya Bamzai for leave to participate in oral argument as amicus curiae and for divided argument filed. VIDED.
  10. Dec 07 2017
    Brief of respondent United States filed. VIDED.
  11. Nov 22 2017
    CIRCULATED.
  12. Nov 17 2017
    SET FOR ARGUMENT ON Tuesday, January 16, 2018. VIDED
  13. Nov 14 2017
    Brief amicus curiae of Aditya Bamzai in support of neither party filed. VIDED.
  14. Nov 07 2017
    Joint appendix filed. VIDED. (Statement of costs filed)
  15. Nov 07 2017
    Brief of petitioners filed. VIDED.
  16. Sep 28 2017
    Petition GRANTED, and the petitions for writs of certiorari in Nos. 16-1017 and 16-1423 are granted. The cases are consolidated, and a total of one hour is allotted for oral argument. In addition to the questions presented by the petitions, the parties are directed to brief and argue the following question: Whether this Court has jurisdiction to review the cases in Nos. 16-961 and 16-1017 under 28 U. S. C. § 1259(3).
  17. Sep 06 2017
    DISTRIBUTED for Conference of 9/25/2017.
  18. May 19 2017
    Reply of petitioner Nicole A. Dalmazzi filed. VIDED.
  19. May 15 2017
    Brief of respondent United States in opposition filed. VIDED.
  20. Apr 19 2017
    Order further extending time to file response to petition to and including May 15, 2017.
  21. Mar 16 2017
    Order extending time to file response to petition to and including April 24, 2017.
  22. Feb 24 2017
    Supplemental brief of petitioner Nicole A. Dalmazzi filed.
  23. Feb 22 2017
    Response Requested. (Due March 24, 2017)
  24. Feb 15 2017
    DISTRIBUTED for Conference of March 3, 2017.
  25. Feb 09 2017
    Waiver of right of respondent United States to respond filed.
  26. Feb 01 2017
    Petition for a writ of certiorari filed. (Response due March 6, 2017)