(Bench Opinion)

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

EDMOND v. UNITED STATES

certiorari to the united states court of appeals for the armed forces

No. 96–262. Argued February 24, 1997—Decided May 19, 1997

The Coast Guard Court of Criminal Appeals (formerly the Coast Guard Court of Military Review) hears appeals from the decisions of courts-martial, and its decisions are subject to review by the United States Court of Appeals for the Armed Forces. Under Article 66(a) of the Uniform Code of Military Justice (UCMJ), its judges may be commissioned officers or civilians. During the times here relevant, the court had two civilian members, both of whom were originally assigned to the court by the General Counsel of the Department of Transportation. In anticipation of the possible invalidation of these assignments under the Appointments Clause, Article II, §2, cl. 2, the Secretary of Transportation issued a memorandum "adopting" the General Counsel's earlier judicial assignments as appointments of his own. In Ryder v. United States, 515 U. S. ___, this Court overturned a conviction that had been affirmed, before the secretarial appointments, by a Coast Guard Court of Military Review panel that included both civilian members, as it was conceded that the judges had not been validly appointed pursuant to the Appointments Clause. The present case concerns the validity of six convictions that were affirmed by the Coast Guard Court of Criminal Appeals (or its predecessor), with one or both civilian judges participating, after the secretarial appointments. The Court of Appeals for the Armed Forces affirmed the convictions, relying on its holding on remand in Ryder that the Secretary's appointments were valid and cured the defect that had previously existed.

Held: The judicial appointments at issue are valid. Pp. 4–15.

(a) Congress has authorized the Secretary to appoint civilian members of the Coast Guard Court of Criminal Appeals. Petitioners' argument that those appointments are invalid because the Secretary lacks the power under 49 U. S. C. §323(a) to appoint Coast Guard judges is rejected. Although §323(a) does not specifically mention such judges, its plain language authorizes the Secretary to "appoint and fix the pay of officers and employees of the Department." This Court rejects petitioners' assertion that §323(a) is a default statute superseded by express language in Article 66(a) of the UCMJ giving the Judge Advocate General of each military branch exclusive authority to appoint Court of Criminal Appeals judges. Conspicuously absent from Article 66(a) is any mention of "appointment." Instead, the statute refers only to judges "who are assigned to a Court of Criminal Appeals" (emphasis added). The fact that this Court found the distinction to be significant in Weiss v. United States, 510 U. S. 163, 171–72, suggests that Article 66(a) concerns not the appointment of judges, but only their assignment. A contrary interpretation of Article 66(a) would render it unconstitutional, for under the Appointments Clause Congress could not give Judge Advocates General power to "appoint" even inferior officers of the United States. Pp. 4–7.

(b) The Secretary's authorization to appoint civilian Court of Criminal Appeals judges is constitutional. The Appointments Clause gives the President the exclusive power to select principal officers by and with the advice and consent of the Senate, but authorizes Congress to "vest the Appointment of . . . inferior Officers . . . in the Heads of Departments." Despite the importance of the responsibilities the judges in question bear, they are "inferior Officers" under the Clause. Generally speaking, "inferior officers" are officers whose work is directed and supervised at some level by others who were appointed by presidential nomination with the Senate's advice and consent. See, e.g., 1 Stat. 28, ch. 4, §§1, 2. Supervision of the work of Coast Guard Court of Criminal Appeals judges is divided between the General Counsel of the Department of Transportation (who is subordinate to the Secretary) and the Court of Appeals for the Armed Forces. See Arts. 66(f), 67(a), UCMJ. Significantly, these judges have no power to render a final decision on behalf of the United States unless permitted to do so by other executive officers, and hence they are inferior within the meaning of Article II. Morrison v. Olson, 487 U. S. 654, 671–672, and Freytag v. Commissioner, 501 U. S. 868, distinguished. Pp. 7–15.

45 M. J. 19 (first judgment), 44 M. J. 273 (second, third, fifth, and sixth judgments), and 44 M. J. 272 (fourth judgment), affirmed.

Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O'Connor, Kennedy, Thomas, Ginsburg, and Breyer, JJ., joined, and in which Souter, J., joined as to Parts I and II. Souter, J., filed an opinion concurring in part and concurring in the judgment.