Edmond v. U.S.

Citation520 U.S. 651,117 S.Ct. 1573,137 L.Ed.2d 917
Decision Date19 May 1997
Docket Number96262
PartiesJon E. EDMOND, Petitioner, v. UNITED STATES. Jake A. LAZENBY, Petitioner, v. UNITED STATES. Michael B. LEAVER, Petitioner, v. UNITED STATES. James A. LEONARD, Petitioner, v. UNITED STATES. Robert J. NICHOLS, Petitioner, v. UNITED STATES. Donald H. VENABLE, Petitioner, v. UNITED STATES
CourtUnited States Supreme Court
Syllabus *

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. 177, 115 S.Ct. 2031, 132 L.Ed.2d 136, 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. ____-____.

(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, 171-172, 114 S.Ct. 752, 757-758, 127 L.Ed.2d 1, 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. ____-____.

(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, 108 S.Ct. 2597, 2608-2609, 101 L.Ed.2d 569, and Freytag v. Commissioner, 501 U.S. 868, 111 S.Ct. 2631, 115 L.Ed.2d 764, distinguished. Pp. ____-____.

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.

Alan B. Morrison, Washington, DC, for petitioners.

Malcolm L. Stewart, Washington, DC, for respondent.

Justice SCALIA delivered the opinion of the Court.

We must determine in this case whether Congress has authorized the Secretary of Transportation to appoint civilian members of the Coast Guard Court of Criminal Appeals, and if so, whether this authorization is constitutional under the Appointments Clause of Article II.

I

The Coast Guard Court of Criminal Appeals (formerly known as the Coast Guard Court of Military Review) is an intermediate court within the military justice system. It is one of four military Courts of Criminal Appeals; others exist for the Army, the Air Force, and the Navy-Marine Corps. The Coast Guard Court of Criminal Appeals 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 (formerly known as the United States Court of Military Appeals). 1

Appellate military judges who are assigned to a Court of Criminal Appeals must be members of the bar, but may be commissioned officers or civilians. Art. 66(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C. §866(a). During the times relevant to this case, the Coast Guard Court of Criminal Appeals has had two civilian members, Chief Judge Joseph H. Baum and Associate Judge Alfred F. Bridgman, Jr. These judges were originally assigned to serve on the court by the General Counsel of the Department of Transportation, who is, ex officio, the Judge Advocate General of the Coast Guard, Art. 1(1), UCMJ, 10 U.S.C. §801(1). Subsequent events, however, called into question the validity of these assignments.

In Weiss v. United States, 510 U.S. 163, 114 S.Ct. 752, 127 L.Ed.2d 1 (1994), we considered whether the assignment of commissioned military officers to serve as military judges without reappointment under the Appointments Clause was constitutional. We held that military trial and appellate judges are officers of the United States and must be appointed pursuant to the Appointments Clause. Id., at 170, 114 S.Ct., at 757. We upheld the judicial assignments at issue in Weiss because each of the military judges had been previously appointed by the President as a commissioned military officer, and was serving on active duty under that commission at the time he was assigned to a military court. We noted, however, that "allowing civilians to be assigned to Courts of Military Review, without being appointed pursuant to the Appointments Clause, obviously presents a quite different question.'' Id., at 170, n. 4, 114 S.Ct., at 757, n. 4.

In anticipation of our decision in Weiss, Chief Judge Baum sent a memorandum to the Chief Counsel of the Coast Guard requesting that the Secretary, in his capacity as a department head, reappoint the judges so the court would be constitutionally valid beyond any doubt. See United States v. Senior, 36 M.J. 1016, 1018 (C.G.C.M.R.1993). On January 15, 1993, the Secretary of Transportation issued a memorandum "adopting'' the General Counsel's assignments to the Coast Guard Court of Military Review "as judicial appointments of my own.'' The memorandum then listed the names of " [t]hose judges presently assigned and appointed by me,'' including Chief Judge Baum and Judge Bridgman. Addendum to Brief for Petitioners A6.

Two Terms ago, in Ryder v. United States, 515 U.S. 177, 115 S.Ct. 2031, 132 L.Ed.2d 136 (1995), we considered the validity of a conviction that had been affirmed by a panel of the Coast Guard Court of Military Review, including its two civilian members, before the secretarial appointments of January 15, 1993. The Government conceded that the civilian judges of the Court of Military Review had not been appointed pursuant to the Appointments Clause, see Brief for United States in Ryder v. United States, O.T. 1994, No. 94-431, p. 9, n. 9, but argued that Ryder's conviction should be affirmed notwithstanding this defect. We disagreed, holding that Ryder was "entitled to a hearing before a properly appointed panel of'' the Coast Guard Court of Military Review. 515 U.S., at ----, 115 S.Ct. at ---- (slip op., at 10). We did not consider the validity of convictions affirmed by the court after the secretarial appointments.

Each of the petitioners in the present case was convicted by court-martial. In each case the conviction and sentence were affirmed, in whole or in part, by the Coast Guard Court of Criminal Appeals (or its predecessor the Court of Military Review) after the January 15, 1993, secretarial appointments. Chief Judge Baum participated in each decision, and Judge Bridgman participated in the appeals...

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