source: Caselaw Access Project

author: Justice Scalia Justice Ginsburg,

license: Public Domain

text:
    EDWARDS et al. v. BALISOK
    No. 95-1352.
    Argued November 13, 1996
    Decided May 19, 1997

      Kathleen D. Mix, Chief Deputy Attorney General of Washington, argued the cause for petitioners. With her on the briefs were Christine 0. Gregoire, Attorney General, and Talis Merle Abolins, William Berggren Collins, Mary E. Fairhurst, and Daniel J. Judge, Assistant Attorneys General.

      Thomas H. Speedy Rice argued the cause for respondent. With him on the brief was George A. Critchlow.

        A. brief of amici curiae urging reversal was filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, George Williamson, Chief Assistant Attorney General, and Peter J. Siggins, Senior Assistant Attorney General, Charles F. C. Ruff, Corporation Counsel of the District of Columbia, and by the Attorneys General for their respective States as follows: Bruce M. Botelho of Alaska, Grant Woods of Arizona, Gale A. Norton of Colorado, Richard Blumenthal of Connecticut, Robert A. Butterworth of Florida, Carla J. Stovall of Kansas, Mike Moore of Mississippi, Joe Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Dennis C. Vacco of New York, W. A. Drew Edmondson of Oklahoma, Thomas W. Corbett, Jr., of Pennsylvania,
        Charles Molony Condon of South Carolina, James S. Gilmore III of Virginia, and James E. Doyle of Wisconsin.

        David C. Fathi, John Midgley, Patricia J. Arthur, Don Saunders, Katrin E. Frank, and Steven R. Shapiro filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.

   Justice Scalia

delivered the opinion of the Court.

In Heck v. Humphrey, 512 U. S. 477, 487 (1994), this Court held that a state prisoner’s claim for damages is not cognizable under 42 U. S. C. § 1983 if “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,” unless the prisoner can demonstrate that the conviction or sentence has previously been invalidated. This case presents the question whether a claim for damages and declaratory relief brought by a state prisoner challenging the validity of the procedures used to deprive him of good-time credits is cognizable under § 1983.

Respondent Jerry Balisok is an inmate at the Washington State Penitentiary in Walla Walla. On August 16, 1993, he was charged with, and at a hearing on September 2 was found guilty of, four prison infractions. He was sentenced to 10 days in isolation, 20 days in segregation, and deprivation of 30 days’ good-time credit he had previously earned toward his release. His appeal within the prison’s appeal system was rejected for failure to comply with the applicable procedural requirements.

On January 26, 1994, respondent filed the present § 1983 action alleging that the procedures used in his disciplinary proceeding violated his Fourteenth Amendment due process rights. His amended complaint requested a declaration that the procedures employed by state officials violated due process, compensatory and punitive damages for use of the unconstitutional procedures, an injunction to prevent future violations, and any other relief the court deems just and equitable. Taking account of our opinion in Preiser v. Rodriguez, 411 U. S. 475, 500 (1973), which held that the sole remedy in federal court for a prisoner seeking restoration of good-time credits is a writ of habeas corpus, Balisok’s amended complaint did not request restoration of the lost credits. (As the District Court noted, however, he expressly reserved the right to seek that relief in an appropriate forum. App. to Pet. for Cert. F-4.)

The District Court, applying our opinion in Heck, held that a judgment in Balisok’s favor “would necessarily imply the invalidity of the disciplinary hearing and the resulting sanctions.” App. to Pet. for Cert. F-14. Rather than grant petitioners’ motion to dismiss, however, the District Court stayed this action pending filing and resolution of a state-court action for restoration of the good-time credits. It authorized an immediate appeal of its ruling pursuant to 28 U. S. C. § 1292(b), and the Court of Appeals for the Ninth Circuit reversed, holding that a claim challenging only the procedures employed in a disciplinary hearing is always cognizable under §1983. App. to Pet. for Cert. A-2, judgt. order reported at 70 F. 3d 1277 (1995). We granted certiorari. 517 U. S. 1166 (1996).

The violations of due process alleged by respondent are similar to those alleged by the plaintiff in Heck. There, the allegations were that the state officials had conducted an arbitrary investigation, had knowingly destroyed exculpatory evidence, and had caused an illegal voice identification procedure to be used at the plaintiff’s criminal trial. 512 U. S., at 479. Here, respondent principally alleged that petitioner Edwards, who was the hearing officer at his disciplinary proceeding, concealed exculpatory witness statements and refused to ask specified questions of requested witnesses, App. to Pet. for Cert. 1-3 to 1-7, which prevented respondent from introducing extant exculpatory material and “intentionally denied” him the right to present evidence in his defense, Brief for Respondent 3. (Respondent also alleged that Edwards failed to provide a statement of the facts supporting the guilty finding against him, App. to Pet. for Cert. 1-6 to 1-7, and that petitioner Wood erroneously rejected his appeal as exceeding the page limitation, id., at 1-7 to 1-8.)

There is, however, this critical difference from Heck: Respondent, in his amended complaint, limited his request to damages for depriving him of good-time credits without due process, not for depriving him of good-time credits undeservedly as a substantive matter. That is to say, his claim posited that the procedures were wrong, but not necessarily that the result was. The distinction between these two sorts of claims is clearly established in our case law, as is the plaintiff’s entitlement to recover at least nominal damages under § 1983 if he proves the former one without also proving the latter one. See Carey v. Piphus, 435 U. S. 247, 266-267 (1978). The Court of Appeals was of the view that this difference from Heck was dispositive, following Circuit precedent to the effect that a claim challenging only the procedures employed in a disciplinary hearing is always cognizable under § 1983. See App. to Pet. for Cert. A-2, citing Gotcher v. Wood, 66 F. 3d 1097, 1099 (CA9 1995), cert. pending, No. 95-1385.

That principle is incorrect, since it disregards the possibility, clearly envisioned by Heck, that the nature of the challenge to the procedures could be such as necessarily to imply the invalidity of the judgment. This possibility is alluded to in the very passage from Heck relied upon by the Court of Appeals, a passage that distinguished the earlier case of Wolff v. McDonnell, 418 U. S. 539 (1974), as follows:

“In light of the earlier language characterizing the claim as one of ‘damages for the deprivation of civil rights,’ rather than damages for the deprivation of good-time credits, we think this passage recognized a § 1983 claim for using the wrong procedures, not for reaching the wrong result (1 e., denying good-time credits). Nor is there any indication in the opinion, or any reason to believe, that using the wrong procedures necessarily vitiated the denial of good-time credits. Thus, the claim at issue in Wolff did not call into question the lawfulness of the plaintiff’s continuing confinement.” Heck, 512 U. S., at 482-483 (emphasis added and deleted).

The same point was apparent in Heck’s, summary of its holding:

“We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid,6 a § 1983 plaintiff must prove that the conviction or sentence has been [overturned].” Id., at 486-487 (emphasis added).

The footnote appended to the above-italicized clause gave a concrete example of “a § 1983 action that does not seek damages directly attributable to conviction or confinement but whose successful prosecution would necessarily imply that the plaintiff’s criminal conviction was wrongful.” Id., at 486, n. 6. The Court of Appeals was thus incorrect in asserting that a claim seeking damages only “for using the wrong procedure, not for reaching the wrong result,” Gotcher, supra, at 1099, would never be subject to the limitation announced in Heck.

The principal procedural defect complained of by respondent would, if established, necessarily imply the invalidity of the deprivation of his good-time credits. His claim is, first of all, that he was completely denied the opportunity to put on a defense through specifically identified witnesses who possessed exculpatory evidence. It appears that all witness testimony in his defense was excluded. See App. to Pet. for Cert. F-2 (District Court opinion) (“At the infraction hearing ..., [respondent] asked that the witness statements be read into the record. According to [respondent], Edwards replied that no witness statements had been submitted on his behalf”)- This is an obvious procedural defect, and state and federal courts have reinstated good-time credits (absent a new hearing) when it is established. See, e. g., Kingsley v. Bureau of Prisons, 937 F. 2d 26, 27, 31 (CA2 1991); Dumas v. State, 654 So. 2d 48, 49 (Ala. Crim. App. 1994); Mahers v. State, 437 N. W. 2d 565, 568-569 (Iowa 1989); In re Contras, 199 App. Div. 2d 601, 602, 604 N. Y. S. 2d 651, 652 (1993). Cf. In re Reismiller, 101 Wash. 2d 291, 293-297, 678 P. 2d 323, 325, 326 (1984); In re Burton, 80 Wash. App. 573, 585, 910 P. 2d 1295, 1304 (1996). Respondent’s claim, however, goes even further, asserting that the cause of the exclusion of the exculpatory evidence was the deceit and bias of the hearing officer himself. He contends that the hearing officer lied about the nonexistence of witness statements, see App. to Pet. for Cert. 1-4,1-6,1-7; Brief for Respondent 2-3; App. 4, and thus “intentionally denied” him the right to present the extant exculpatory evidence, Brief for Respondent 3. A criminal defendant tried by a partial judge is entitled to have his conviction set aside, no matter how strong the evidence against him. Tumey v. Ohio, 273 U. S. 510, 535 (1927); Arizona v. Fulminante, 499 U. S. 279, 308 (1991). The due process requirements for a prison disciplinary hearing are in many respects less demanding than those for criminal prosecution, but they are not so lax as to let stand the decision of a biased hearing officer who dishonestly suppresses evidence of innocence. Cf. Wolff, supra, at 570-571.

Respondent contends that a judgment in his favor would not imply the invalidity of the loss of his good-time credits because Washington courts follow a “some or any evidence” standard, under which, “if there is any evidence in the record to support the prison hearing determination, then the court will not undertake an entire review of the record and will uphold prison hearing results.” Brief for Respondent 7, citing Superintendent, Mass. Correctional Institution at Walpole v. Hill, 472 U. S. 445 (1985); Brief for Respondent 21 (citing Washington state cases). Here, respondent points out, the record contains ample evidence to support the judgment under this standard. That may be true, but when the basis for attacking the judgment is not insufficiency of the evidence, it is irrelevant. As the Washington Supreme Court has explained: “The evidentiary requirements of due process are satisfied if there is ‘some evidence’ in the record to support a prison disciplinary decision revoking good time credits.” In re Johnston, 109 Wash. 2d 493, 497, 745 P. 2d 864, 867 (1987) (emphasis added). Similarly, our discussion in Hill in no way abrogated the due process requirements enunciated in Wolff, but simply held that in addition to those requirements, revocation of good-time credits does not comport with “‘the minimum requirements of procedural due process,”’ unless the findings are “supported by some evidence in the record.” 472 U. S., at 454 (quoting Wolff, supra, at 558).

We conclude, therefore, that respondent’s claim for declaratory relief and money damages, based on allegations of deceit and bias on the part of the decisionmaker that necessarily imply the invalidity of the punishment imposed, is not cognizable under § 1983. Respondent also requests, however, prospective injunctive relief. His amended complaint alleges that prison officials routinely fail to date-stamp witness statements that are made in cases involving “jail house attorney[s]” like himself, in order to weaken any due process challenge for failure to call witnesses. App. to Pet. for Cert. 1-4. He requests an injunction requiring prison officials to date-stamp witness statements at the time they are received. Id., at 1-10. Ordinarily, a prayer for such prospective relief will not “necessarily imply” the invalidity of a previous loss of good-time credits, and so may properly be brought under §1983. To prevail, of course, respondent must establish standing, see Lewis v. Casey, 518 U. S. 343, 351-354 (1996), and meet the usual requirements for injunctive relief, see, e. g., O’Shea v. Littleton, 414 U. S. 488, 499, 502 (1974). Neither the Ninth Circuit nor the District Court considered this injunctive claim, and its validity was neither briefed nor argued here. We leave this issue for consideration by the lower courts on remand.

Since we are remanding, we must add a word concerning the District Court’s decision to stay this § 1983 action while respondent sought restoration of his good-time credits, rather than dismiss it. The District Court was of the view that once respondent had exhausted his state remedies, the §1983 action could proceed. App. to Pet. for Cert. F-14. This was error. We reemphasize that § 1983 contains no judicially imposed exhaustion requirement, Heck, 512 U. S., at 481, 483; absent some other bar to the suit, a claim either is cognizable under § 1983 and should immediately go forward, or is not cognizable and should be dismissed.

The judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Ginsburg,

with whom Justice Souter and Justice Breyer join,

concurring.

I agree that Balisok’s claim is not cognizable under 42 U. S. C. § 1983 to the extent that it is “based on allegations of deceit and bias on the part of the decisionmaker,” ante, at 648; those allegations, as the Court explains, “necessarily imply the invalidity of the punishment imposed,” ibid.; see ante, at 646-648. Balisok alleged other procedural defects, however, including the failure of prison official Edwards “to specify what facts and evidence supported the finding of guilt.” App. to Pet. for Cert. F-3 (District Court order); see Wolff v. McDonnell, 418 U. S. 539, 564-565 (1974) (inmate subjected to discipline is entitled to a written statement of reasons and evidence relied on). A defect of this order, unlike the principal “deceit and bias” procedural defect Balisok alleged, see ante, at 646-647, would not necessarily imply the invalidity of the deprivation of his good-time credits, and therefore is immediately cognizable under § 1983. On this understanding, I join the Court’s opinion.

      The amended complaint could be considered ambiguous on the point, but this was the Court of Appeals’ interpretation, which has been accepted by petitioners. Brief for Petitioners 5.


author: Justice Scalia Justice Souter,

text:
    EDMOND v. UNITED STATES
    No. 96-262.
    Argued February 24, 1997
    Decided May 19, 1997

      Alan B. Morrison argued the cause for petitioners. With him on the briefs was Allen Lotz.

      Malcolm L. Stewart argued the cause for the United States. With him on the brief were Acting Solicitor General Dellinger, Deputy Solicitor General Dreeben, Douglas N. Letter, Nancy E. McFadden, Paul M. Geier, Peter J Plocki, and Frank R. Levi

      Together with Lazenby v. United States; Leaver v. United States; Leonard v. United States; Nichols v. United States; and Venable v. United States, also on certiorari to the same court (see this Court’s Rule 12.4).

   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).

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 (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. 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.

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 “[tjhose 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 (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 188. 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 involving two of the petitioners. The Court of Appeals for the Armed Forces affirmed the convictions, relying on its holding on remand in United States v. Ryder, 44 M. J. 9 (1996), that the Secretary of Transportation’s appointments were valid and cured the defect that had previously existed. 45 M. J. 19 (1996); 44 M. J. 273 (1996); 44 M. J. 272 (1996). Petitioners sought review in a consolidated petition pursuant to this Court’s Rule 12.4, and we granted certiorari, 519 U. S. 977 (1996).

II

Petitioners argue that the Secretary’s civilian appointments to the Coast Guard Court of Criminal Appeals are invalid for two reasons: First, the Secretary lacks authority under 49 U. S. C. § 323(a) to appoint members of the court; second, judges of military Courts of Criminal Appeals are principal, not inferior, officers within the meaning of the Appointments Clause, and must therefore be appointed by the President with the advice and consent of the Senate. We consider these contentions in turn.

Congress has established the Coast Guard as a military service and branch of the Armed Forces that, except in time of war (when it operates as a service within the Navy), is part of the Department of Transportation. 14 U. S. C. §§ 1-3. The Secretary of Transportation has broad authority over the Coast Guard, including the power to “promulgate such regulations and orders as he deems appropriate to carry out the provisions of [Title 14] or any other law applicable to the Coast Guard,” §633. The Commandant of the Coast Guard is required to “carry out duties and powers prescribed by the Secretary of Transportation,” and he “reports directly to the Secretary.” 49 U. S. C. § 108(b). Most relevant to the present case, § 323(a) provides: “The Secretary of Transportation may appoint and fix the pay of officers and employees of the Department of Transportation and may prescribe their duties and powers.” Petitioners do not dispute that judges of the Coast Guard Court of Criminal Appeals are officers of the Department of Transportation. Thus, although the statute does not specifically mention Coast Guard judges, the plain language of § 323(a) appears to give the Secretary power to appoint them.

Petitioners argue, however, that § 323(a) is a default statute, applicable only where Congress has not otherwise provided for the appointment of specific officers. Petitioners contend that Article 66(a) of the UCMJ, 10 U. S. C. § 866(a), gives the Judge Advocate General of each military branch exclusive authority to appoint judges of his respective Court of Criminal Appeals. That provision reads as follows:

“Each Judge Advocate General shall establish a Court of Criminal Appeals which shall be composed of one or more panels, and each such panel shall be composed of not less than three appellate military judges.... Appellate military judges who are assigned to a Court of Criminal Appeals may be commissioned officers or civilians, each of whom must be a member of a bar of a Federal court or of the highest court of a State. The Judge Advocate General shall designate as chief judge one of the appellate military judges of the Court of Criminal Appeals established by him. The chief judge shall determine on which panels of the court the appellate judges assigned to the court will serve and which military judge assigned to the court will act as senior judge on each panel.”

Were we to accept petitioners’ interpretation of Article 66(a) as providing for the “appointment” of Court of Criminal Appeals judges, their argument that Congress intended it to be the exclusive means of appointment might prove persuasive. Ordinarily, where a specific provision conflicts with a general one, the specific governs. Busic v. United States, 446 U. S. 398, 406 (1980). Conspicuously absent from Article 66(a), however, is any mention of the “appointment” of military judges. Instead, the statute refers to judges “who are assigned to a Court of Criminal Appeals” (emphasis added). The difference between the power to “assign” officers to a particular task and the power to “appoint” those officers is not merely stylistic. In Weiss, we upheld the assignment of military officers to serve on military courts because they had previously been “appointed” as officers of the United States pursuant to the Appointments Clause, and because Congress had not designated the position of a military judge as one requiring reappointment. 510 U. S., at 176. We noted in Weiss that Congress has consistently used the word “appoint” with respect to military positions requiring a separate appointment, rather than using terms not found within the Appointments Clause, such as “assign”: “Congress repeatedly and consistently distinguished between an office that would require a separate appointment and a position or duty to which one could be ‘assigned’ or ‘detailed’ by a superior officer.” Id., at 172. We found it significant that the sections of the UCMJ relating to military judges “speak explicitly and exclusively in terms of ‘detail’ or ‘assign’; nowhere in these sections is mention made of a separate appointment.” Ibid. This analysis suggests that Article 66(a) concerns not the appointment of Court of Criminal Appeals judges, but only their assignment.

Moreover, we see no other way to interpret Article 66(a) that would make it consistent with the Constitution. Under the Appointments Clause, Congress could not give the Judge Advocates General power to “appoint” even inferior officers of the United States; that power can be conferred only upon the President, department heads, and courts of law. Thus, petitioners are asking us to interpret Article 66(a) in a manner that would render it clearly unconstitutional — which we must of course avoid doing if there is another reasonable interpretation available. NLRB v. Catholic Bishop of Chicago, 440 U. S. 490, 500 (1979); Blodgett v. Holden, 275 U. S. 142 (1927). Petitioners respond that reading § 323(a) to permit the Secretary to appoint Court of Criminal Appeals judges causes us unnecessarily to reach the constitutional question whether those judges are inferior officers under the Appointments Clause, since Congress.may vest only the appointment of inferior officers in a department head. But a constitutional question confronted in order to preserve, if possible, a congressional enactment is not a constitutional question confronted unnecessarily.

We conclude that Article 66(a) does not give Judge Advocates General authority to appoint Court of Criminal Appeals judges; that § 323(a) does give the Secretary of Transportation authority to do so; and we turn to the constitutional question whether this is consistent with the Appointments Clause.

III

The Appointments Clause of Article II of the Constitution reads as follows:

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and 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.

As we recognized in Buckley v. Valeo, 424 U. S. 1, 125 (1976) (per curiam), the 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. By vesting the President with the exclusive power to select the principal (noninferior) officers of the United States, the Appointments Clause prevents congressional encroachment upon the Executive and Judicial Branches. See id., at 128-131; Weiss, supra, at 183-185 (Souter, J., concurring); Freytag v. Commissioner, 501 U. S. 868, 904, and n. 4 (1991) (Scalia, J., concurring). This disposition was also designed to assure a higher quality of appointments: The Framers anticipated that the President would be less vulnerable to interest-group pressure and personal favoritism than would a collective body. “The sole and undivided responsibility of one man will naturally beget a livelier sense of duty, and a more exact regard to reputation.” The Federalist No. 76, p. 387 (M. Beloff ed. 1987) (A. Hamilton); accord, 3 J. Story, Commentaries on the Constitution of the United States 374-375 (1833). The President’s power to select principal officers of the United States was not left unguarded, however, as Article II further requires the “Advice and Consent of the Senate.” This serves both to curb Executive abuses of the appointment power, see 3 Story, supra, at 376-377, and “to promote a judicious choice of [persons] for filling the offices of the union,” The Federalist No. 76, at 386-387. By requiring the joint participation of the President and the Senate, the Appointments Clause was designed to ensure public accountability for both the making of a bad appointment and the rejection of a good one. Hamilton observed:

“The blame of a bad nomination would fall upon the president singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the senate; aggravated by the consideration of their having counteracted the good intentions of the executive. If an ill appointment should be made, the executive for nominating, and the senate for approving, would participate, though in different degrees, in the opprobrium and disgrace.” Id., No. 77, at 392.

See also 3 Story, supra, at 375 (“If [the President] should ... surrender the public patronage into the hands of profligate men, or low adventurers, it will be impossible for him long to retain public favour”).

The prescribed manner of appointment for principal officers is also the default manner of appointment for inferior officers. “[B]ut,” the Appointments Clause continues, “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.” This provision, sometimes referred to as the “Excepting Clause,” was added to the proposed Constitution on the last day of the Grand Convention, with little discussion. See 2 M. Farrand, Records of the Federal Convention of 1787, pp. 627-628 (1911 ed.). As one of our early opinions suggests, its obvious purpose is administrative convenience, see United States v. Germaine, 99 U. S. 508, 510 (1879)—but that convenience was deemed to outweigh the benefits of the more cumbersome procedure only with respect to the appointment of “inferior Officers.” Section 323(a), which confers appointment power upon the Secretary of Transportation, can constitutionally be applied to the appointment of Court of Criminal Appeals judges only if those judges are “inferior Officers.”

Our cases have not set forth an exclusive criterion for distinguishing between principal and inferior officers for Appointments Clause purposes. Among the offices that we have found to be inferior are that of a district court clerk, Ex parte Hennen, 13 Pet. 225, 258 (1839), an election supervisor, Ex parte Siebold, 100 U. S. 371, 397-398 (1880), a vice consul charged temporarily with the duties of the consul, United States v. Eaton, 169 U. S. 331, 343 (1898), and a “United States commissioner” in district court proceedings, Go-Bart Importing Co. v. United States, 282 U. S. 344, 352-354 (1931). Most recently, in Morrison v. Olson, 487 U. S. 654 (1988), we held that the independent counsel created by provisions of the Ethics in Government Act of 1978, 28 U. S. C. §§ 591-599, was an inferior officer. In reaching that conclusion, we relied on several factors: that the independent counsel was subject to removal by a higher officer (the Attorney General), that she performed only limited duties, that her jurisdiction was narrow, and that her tenure was limited. 487 U. S., at 671-672.

Petitioners are quite correct that the last two of these conclusions do not hold- with regard to the office of military judge at issue here. It is not “limited in tenure,” as that phrase was used in Morrison to describe “appointment] essentially to accomplish a single task [at the end of which] the office is terminated.” Id., at 672. Nor are military judges “limited in jurisdiction,” as used in Morrison to refer to the fact that an independent counsel may investigate and prosecute only those individuals, and for only those crimes, that are within the scope of jurisdiction granted by the special three-judge appointing panel. See Weiss, 510 U. S., at 192 (Souter, J., concurring). However, Morrison did not purport to set forth a definitive test for whether an office is “inferior” under the Appointments Clause. To the contrary, it explicitly stated: “We need not attempt here to decide exactly where the line falls between the two types of officers, because in our view [the independent counsel] clearly falls on the inferior officer’ side of that line.” 487 U. S., at 671.

To support principal-officer status, petitioners emphasize the importance of the responsibilities that Court of Criminal Appeals judges bear. They review those court-martial proceedings that result in the most serious sentences, including those “in which the sentence, as approved, extends to death, dismissal . . . , dishonorable or bad-conduct discharge, or confinement for one year or more.” Art. 66(b)(1), UCMJ, 10 U. S. C. § 866(b)(1). They must ensure that the court-martial’s finding of guilt and its sentence are “correct in law and fact,” id., Art. 66(c), § 866(c), which includes resolution of constitutional challenges. And finally, unlike most appellate judges, Court of Criminal Appeals judges are not required to defer to the trial court’s factual findings, but may independently “weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.” Ibid. We do not dispute that military appellate judges are charged with exercising significant authority on behalf of the United States. This, however, is also true of offices that we have held were “inferior” within the meaning of the Appointments Clause. See, e. g., Freytag v. Commissioner, 501 U. S., at 881-882 (special trial judges having “significan[t]... duties and discretion” are inferior officers). The exercise of “significant authority pursuant to the laws of the United States” marks, not the line between principal and inferior officer for Appointments Clause purposes, but rather, as we said in Buckley, the line between officer and nonofficer. 424 U. S., at 126.

Generally speaking, the term “inferior officer” connotes a relationship with some higher ranking officer or officers below the President: Whether one is an “inferior” officer depends on whether he has a superior. It is not enough that other officers may be identified who formally maintain' a higher rank, or possess responsibilities of a greater magnitude. If that were the intention, the Constitution might have used the phrase “lesser officer.” Rather, in the context of a Clause designed to preserve political accountability relative to important Government assignments, we think it evident that “inferior officers” are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.

This understanding of the Appointments Clause conforms with the views of the first Congress. On July 27,1789, Congress established the first Executive department, the Department of Foreign Affairs. In so doing, it expressly designated the Secretary of the Department as a “principal officer,” and his subordinate, the Chief Clerk of the Department, as an “inferior officer:

“Section 1. Be it enacted . . . That there shall be an Executive department, to be denominated the Department of Foreign Affairs, and that there shall be a principal officer therein, to be called the Secretary for the Department of Foreign Affairs, who shall perform and execute such duties as shall from time to time be enjoined on or intrusted to him by the President of the United States, agreeable to the Constitution, relative to [matters respecting foreign affairs]; and furthermore, that the said principal officer shall conduct the business of the said department in such manner as the President of the United States shall from time to time order or instruct.
“Sec. 2. And be it further enacted, That there shall be in the said department, an inferior officer, to be appointed by the said principal officer, and to be employed therein as he shall deem proper, and to be called the chief Clerk in the Department of Foreign Affairs. . . .” Ch. 4, 1 Stat. 28.

Congress used similar language in establishing the Department of War, repeatedly referring to the Secretary of that department as a “principal officer,” and the Chief Clerk, who would be “employed” within the Department as the Secretary “shall deem proper,” as an “inferior officer.” Ch. 7, 1 Stat. 49.

Supervision of the work of Court of Criminal Appeals judges is divided between the Judge Advocate General (who in the Coast Guard is subordinate to the Secretary of Transportation) and the Court of Appeals for the Armed Forces. The Judge Advocate General exercises administrative oversight over the Court of Criminal Appeals. He is charged with the responsibility to “prescribe uniform rules of procedure” for the court, and must “meet periodically [with other Judge Advocates General] to formulate policies and procedure in regard to review of court-martial cases.” Art. 66(f), UCMJ, 10 U. S. C. § 866(f). It is conceded by the parties that the Judge Advocate General may also remove a Court of Criminal Appeals judge from his judicial assignment without cause. The power to remove officers, we have recognized, is a powerful tool for control. Bowsher v. Synar, 478 U. S. 714, 727 (1986); Myers v. United States, 272 U. S. 52 (1926).

The Judge Advocate General’s control over Court of Criminal Appeals judges is, to be sure, not complete. He may not attempt to influence (by threat of removal or otherwise) the outcome of individual proceedings, Art. 37, UCMJ, 10 U. S. C. § 837, and has no power to reverse decisions of the court. This latter power does reside, however, in another Executive Branch entity, the Court of Appeals for the Armed Forces. That court reviews every decision of the Courts of Criminal Appeals in which: (a) the sentence extends to death; (b) the Judge Advocate General orders such review; or (c) the court itself grants review upon petition of the accused. Id., Art. 67(a), § 867(a). The scope of review is narrower than that exercised by the Court of Criminal Appeals: so long as there is some competent evidence in the record to establish each element of the offense beyond a reasonable doubt, the Court of Appeals for the Armed Forces will not reevaluate the facts. Id., Art. 67(c), § 867(c); United States v. Wilson, 6 M. J. 214 (C. M. A. 1979). This limitation upon review does not in our opinion render the judges of the Court of Criminal Appeals principal officers. What is significant is that the judges of the Court of Criminal Appeals have no power to render a final decision on behalf of the United States unless permitted to do so by other Executive officers.

Finally, petitioners argue that Freytag v. Commissioner, 501 U. S. 868 (1991), which held that special trial judges charged with assisting Tax Court judges were inferior officers and could be appointed by the Chief Judge of the Tax Court, suggests that Court of Criminal Appeals judges are principal officers. Petitioners contend that Court of Criminal Appeals judges more closely resemble Tax Court judges — who we implied (according to petitioners) were principal officers — than they do special trial judges. We note initially that Freytag does not hold that Tax Court judges are principal officers; only the appointment of special trial judges was at issue in that case. Moreover, there are two significant distinctions between Tax Court judges and Court of Criminal Appeals judges. First, there is no Executive Branch tribunal comparable to the Court of Appeals for the Armed Forces that reviews the work of the Tax Court; its decisions are appealable only to courts of the Third Branch. 26 U. S. C. § 7482. And second, there is no officer comparable to a Judge Advocate General who supervises the work of the Tax Court, with power to determine its procedural rules, to remove any judge without cause, and to order any decision submitted for review. Freytag does not control our decision here.

* * *

We conclude that 49 U. S. C. § 323(a) authorizes the Secretary of Transportation to appoint judges of the Coast Guard Court of Criminal Appeals; and that such appointment is in conformity with the Appointments Clause of the Constitution, since those judges are “inferior Officers” within the meaning of that provision, by reason of the supervision over their work exercised by the General Counsel of the Department of Transportation in his capacity as Judge Advocate General and the Court of Appeals for the Armed Forces. The judicial appointments at issue in this case are therefore valid.

Accordingly, we affirm the judgment of the Court of Appeals for the Armed Forces with respect to each petitioner.

It is so ordered.

Justice Souter,

concurring in part and concurring in the judgment.

I join in Parts I and II of the Court’s opinion and agree with the reasoning in Part III insofar as it describes an important, and even necessary, reason for holding judges of the Coast Guard Court of Criminal Appeals to be inferior officers within the meaning of the Appointments Clause, U. S. Const., Art. II, § 2, cl. 2. The Court states that “[generally speaking, the term ‘inferior officer’ connotes a relationship [of supervision and. direction] with some higher ranking officer or officers below the President: Whether one is an ‘inferior’ officer depends on whether he has a superior.” Ante, at 662. The Court goes on to show that administrative supervision of these judges by the Judge Advocate General of the Coast Guard, combined with his power to control them by removal from a case, establishes that the intermediate appellate judges here have the necessary superior. With this conclusion I agree, but unlike the Court I am not prepared to decide on that basis alone that these judges are inferior officers.

Because the term “inferior officer” implies an official superior, one who has no superior is not an inferior officer. This unexceptionable maxim will in some instances be dispositive of status; it might, for example, lead to the conclusion that United States district judges cannot be inferior officers, since the power of appellate review does not extend to them personally, but is limited to their judgments. See In re Sealed Case, 838 F. 2d 476, 483 (CADC), rev’d sub nom. Morrison v. Olson, 487 U. S. 654 (1988) (suggesting that “lower federal judges . . . are principal officers” because they are “not subject to personal supervision,” 838 F. 2d, at 483); cf. ante, at 665.

It does not follow, however, that if one is subject to some supervision and control, one is an inferior officer. Having a superior officer is necessary for inferior officer status, but not sufficient to establish it. See, e. g., Morrison v. Olson, 487 U. S., at 654, 722 (“To be sure, it is not a sufficient condition for ‘inferior’ officer status that one be subordinate to a principal officer. Even an officer who is subordinate to a department head can be a principal officer”) (Scalia, J., dissenting). Accordingly, in Morrison, the Court’s determination that the independent counsel was “to some degree ‘inferior’” to the Attorney General, see id., at 671, did not end the enquiry. The Court went on to weigh the duties, jurisdiction, and tenure associated with the office, id., at 671-672, before concluding that the independent counsel was an inferior officer. Thus, under Morrison, the Solicitor General of the United States, for example, may well be a principal officer, despite his statutory “inferiority” to the Attorney General. See, e. g., 28 U. S. C. §505 (directing Presidential appointment, with the advice and consent of the Senate, of a Solicitor General to “assist the Attorney General in the performance of his duties”). The mere existence of a “superior” officer is not dispositive.

In this case, as the Court persuasively shows, the Judge Advocate General has substantial supervisory authority over the judges of the Coast Guard Court of Criminal Appeals. As the Court notes, the Judge Advocate General prescribes rules of procedure for the Court of Criminal Appeals, formulates policies for review of court-martial cases, and is authorized to remove judges from their judicial assignments without cause. See ante, at 664. While these facts establish that the condition of supervision and control necessary for inferior officer status has been met, I am wary of treating them as sufficient to demonstrate that the judges of the Court of Criminal Appeals are actually inferior officers under the Constitution.

In having to go beyond the Court’s opinion to decide that the criminal appeals judges are inferior officers, I do not claim the convenience of a single sufficient condition, and, indeed, at this stage of the Court’s thinking on the matter, I would not try to derive a single rule of sufficiency. What is needed, instead, is a detailed look at the powers and duties of these judges to see whether reasons favoring their inferior officer status within the constitutional scheme weigh more heavily than those to the contrary. Having tried to do this in a concurring opinion in Weiss v. United States, 510 U. S. 163, 182 (1994), I will not repeat the essay. See id., at 192-194 (reviewing the Morrison factors, including tenure, jurisdiction, duties, and removal; concluding that because it is “hard to say with any certainty” whether Courts of Military Review judges should be considered principal or inferior of-fleers, deference to the political branches’ judgment is appropriate). Here it is enough to add that after the passage of three Terms since writing in Weiss, I am unrepentant. I therefore join not only in the Court’s conclusion that the necessary supervisory condition for inferior officer status is satisfied here, but in the Court’s ultimate holding that the judges of the Coast Guard Court of Criminal Appeals are inferior officers within the meaning of the Appointments Clause.

       The names of the Courts of Military Review and of the United States Court of Military Appeals were changed, effective October 5,1994, by Pub. L. 103-337, §924,108 Stat. 2831.

       Article 141 of the UCMJ, 10 U.S.C. §941, states that the Court of Appeals for the Armed Forces “is established under article I of the Constitution,” and “is located for administrative purposes only in the Department of Defense. ” Although the statute does not specify the court’s “location” for nonadministrative purposes, other provisions of the UCMJ make clear that it is within the Executive .Branch. The court reviews the judgments of only military tribunals, id., Art. 67, §867; its judges must meet annually in committee with the Judge Advocates General and two members appointed by the Secretary of Defense to survey the operation of the military justice system, id., Art. 146, § 946; and the President may remove its judges for neglect of duty, misconduct, or mental or physical disability, id., Art. 142(c), § 942(c).


author: Chief Justice Rehnquist

text:
    UNITED STATES v. HYDE
    No. 96-667.
    Argued April 15, 1997
    Decided May 27, 1997

      James A. Feldman argued the cause for the United States. With him on the briefs were Acting Solicitor General Del-linger, Acting Assistant Attorney General Richard, Deputy Solicitor General Dreeben, and Patty Merkamp Stemler.

      Jonathan D. Soglin, by appointment of the Court, 519 U. S. 1106, argued the cause and filed a brief for respondent.

        Lisa Kemler filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance.

   Chief Justice Rehnquist

delivered the opinion of the Court.

Rule 32(e) of the Federal Rules of Criminal Procedure states that a district court may allow a defendant to withdraw his guilty plea before he is sentenced “if the defendant shows any fair and just reason.” After the defendant in this case pleaded guilty, pursuant to a plea agreement, the District Court accepted his plea but deferred decision on whether to accept the plea agreement. The defendant then sought to withdraw his plea. We hold that in such circumstances a defendant may not withdraw his plea unless he shows a “fair and just reason” under Rule 32(e).

A federal grand jury indicted respondent Robert Hyde on eight counts of mail fraud, wire fraud, and other fraud-related crimes. On the morning of his trial, respondent indicated his desire to enter plea negotiations with the Government. Those negotiations produced a plea agreement in which respondent agreed to plead guilty to four of the counts. In exchange, the Government agreed to move to dismiss the remaining four counts and not to bring further charges against respondent for other allegedly fraudulent conduct.

That afternoon, the parties appeared again before the District Court and submitted the plea agreement to the court, along with respondent’s “application for permission to enter [a] plea of guilty.” After placing respondent under oath, the court questioned him extensively to ensure that his plea was knowing and voluntary, and that he understood the consequences of pleading guilty, including the possibility of a maximum sentence of 30 years. The court asked respondent what he had done, and respondent admitted committing the crimes set out in the four counts. The court then asked the Government to set out what it was prepared to prove, and the Government did so. The court asked respondent whether he was pleading guilty because he was in fact guilty of the crimes set out in the four counts. Respondent said that he was. Finally, the court asked respondent how he pleaded to each count, and respondent stated “guilty.”

The District Court concluded that respondent was pleading guilty knowingly, voluntarily, and intelligently, and that there was a factual basis for the plea. The court therefore stated that it was accepting respondent’s guilty plea. It also stated that it was deferring decision on whether to accept the plea agreement, pending completion of the presentence report.

One month later, before sentencing and the District Court’s decision about whether to accept the plea agreement, respondent filed a motion to withdraw his guilty plea. His motion alleged that he had pleaded guilty under duress from the Government and that his admissions to the District Court had in fact been false. After holding an evidentiary hearing, the court concluded that there was no evidence to support respondent’s claim of duress, and that respondent had not provided a “fair and just reason” for withdrawing his guilty plea, as required by Rule 32(e). The court therefore refused to let respondent withdraw his guilty plea. The court then accepted the plea agreement, entered judgment against respondent on the first four counts, dismissed the indictment’s remaining four counts on the Government’s motion, and sentenced respondent to a prison term of 2Vz years.

The Court of Appeals for the Ninth Circuit reversed, holding that respondent had an absolute right to withdraw his guilty plea before the District Court accepted the plea agreement. 92 F. 3d 779, 781 (1996). The court reasoned as follows: First, before a district court has accepted a defendant’s guilty plea, the defendant has an absolute right to withdraw that plea. Id., at 780 (citing United States v. Washman, 66 F. 3d 210, 212-213 (CA9 1995)). Second, the guilty plea and the plea agreement are “ ‘inextricably bound up together,’ ” such that the court’s deferral of the decision whether to accept the plea agreement also constitutes an automatic deferral of its decision whether to accept the guilty plea, even if the court explicitly states that it is accepting the guilty plea. 92 F. 3d, at 780 (quoting United States v. Cordova-Perez, 65 F. 3d 1552, 1556 (CA9 1995)). Combining these two propositions, the Court of Appeals held that “[i]f the court defers acceptance of the plea or of the plea agreement, the defendant may withdraw his plea for any reason or for no reason, until the time that the court does accept both the plea and the agreement.” 92 F. 3d, at 781.

The Courts of Appeals for the Fourth and Seventh Circuits have reached the opposite conclusion on this issue. United States v. Ewing, 957 F. 2d 115, 118-119 (CA4 1992); United States v. Ellison, 798 F. 2d 1102, 1106 (CA7 1986). We granted certiorari to resolve the conflict, 519 U. S. 1086 (1997), and now reverse.

To understand why we hold that Rule 32(e) governs here, we must go back to Rule 11, the principal provision in the Federal Rules of Criminal Procedure dealing with the subject of guilty pleas and plea agreements. The Court of Appeals equated acceptance of the guilty plea with acceptance of the plea agreement, and deferral of the plea agreement with deferral of the guilty plea. Nothing in the text of Rule 11 supports these conclusions. In fact, the text shows that the opposite is true: Guilty pleas can be accepted while plea agreements are deferred, and the acceptance of the two can be separated in time.

The prerequisites to accepting a guilty plea are set out in subdivisions (c) and (d) of Rule 11. Subdivision (c) says: “Before accepting a plea of guilty . . . , the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands,” numerous consequences of pleading guilty. For example, the court must ensure the defendant understands the maximum possible penalty that he may face by pleading guilty, Rule 11(c)(1), and the important constitutional rights he is waiving, including the right to a trial, Rules 11(c)(3), (4). Subdivision (d) says: “The court shall not accept a plea of guilty . . . without first, by addressing the defendant personally in open court, determining that the plea is voluntary.” The opening words of these two subdivisions are important: Together, they speak of steps a district court must take “[bjefore accepting a plea of guilty,” and without which it “shall not accept a plea of guilty” Based on this language, we conclude that once the court has taken these steps, it may, in its discretion, accept a defendant’s guilty' plea. The Court of Appeals would read an additional prerequisite into this list: A district court shall not accept a plea of guilty without first accepting the plea agreement. But that “prerequisite” is absent from the list set out in subdivisions (c) and (d), strongly suggesting that no such addition is warranted.

Subdivision (e), which covers plea agreements, also contradicts the Court of Appeals’ holding. That subdivision divides plea agreements into three types, based on what the Government agrees to do: In type A agreements, the Government agrees to move for dismissal of other charges; in type B, it agrees to recommend (or not oppose the defendant’s request for) a particular sentence; and in type C, it agrees that the defendant should receive a specific sentence. As to type A and type C agreements, the Rule states that “the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report.” Rule 11(e)(2). The plea agreement in this case is a type A agreement: The Government agreed to move to dismiss four counts, did not agree to recommend a particular sentence, and did not agree that a specific sentence was the appropriate disposition. The District Court deferred its decision about whether to accept or reject the agreement.

If the court had decided to reject the plea agreement, it would have turned to subdivision (e)(4) of Rule 11. That subdivision, a critical one for our purposes, provides:

“If the court rejects the plea agreement, the court shall ... advise the defendant personally ... that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw the plea, and advise the defendant that if the defendant persists in a guilty plea ... the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.” Rule 11(e)(4) (emphasis added).

Thus, if the court rejects the agreement, the defendant can “then” withdraw his plea for any reason and does not have to comply with Rule 32(e)’s “fair and just reason” requirement. This provision implements the commonsense notion that a defendant can no longer be bound by an agreement that the court has refused to sanction.

Under the Court of Appeals’ holding, however, the defendant can withdraw his plea “for any reason or for no reason” even if the district court does not reject the plea agreement, but merely defers decision on it. Thus, for the Court of Appeals, the rejection of the plea agreement has no significance: Before rejection, the defendant is free to withdraw his plea; after rejection, the same is true. But the text of Rule 11(e)(4) gives the rejection of the agreement a great deal of significance. Only “then” is the defendant granted “the opportunity” to withdraw his plea. The necessary implication of this provision is that if the court has neither rejected nor accepted the agreement, the defendant is not granted “the opportunity to then withdraw” his plea. The Court of Appeals’ holding contradicts this implication, and thus strips subdivision (e)(4) of any meaning.

Not only is the Court of Appeals’ holding contradicted by the very language of the Rules, it also debases the judicial proceeding at which a defendant pleads and the court accepts his plea. After the defendant has sworn in open court that he actually committed the crimes, after he has stated that he is pleading guilty because he is guilty, after the court has found a factual basis for the plea, and after the court has explicitly announced that it accepts the plea, the Court of Appeals would allow the defendant to withdraw his guilty plea simply on a lark. The Advisory Committee, in adding the “fair and just reason” standard to Rule 32(e) in 1983, explained why this cannot be so:

“Given the great care with which pleas are taken under [the] revised Rule 11, there is no reason to view pleas so taken as merely ‘tentative,’ subject to withdrawal before sentence whenever the government cannot establish prejudice. ‘Were withdrawal automatic in every case where the defendant decided to alter his tactics and present his theory of the case to the jury, the guilty plea would become a mere gesture, a temporary and meaningless formality reversible at the defendant’s whim. In fact, however, a guilty plea is no such trifle, but a “grave and solemn act,” which is “accepted only with care and discernment.’”” Advisory Committee’s Notes on Fed. Rule Crim. Proc. 32, 18 U. S. C. App., p. 794 (quoting United States v. Barker, 514 F. 2d 208, 221 (CADC 1975), in turn quoting Brady v. United States, 397 U. S. 742, 748 (1970)).

We think the Court of Appeals’ holding would degrade the otherwise serious act of pleading guilty into something akin to a move in a game of chess.

The basis for the Court of Appeals’ decision was its prior statement in Cordova-Perez that “[t]he plea agreement and the [guilty] plea are inextricably bound up together.” 65 F. 3d, at 1556 (internal quotation marks omitted). This statement, on its own, is not necessarily incorrect. The guilty plea and the plea agreement are “bound up together” in the sense that a rejection of the agreement simultaneously frees the defendant from his commitment to plead guilty. See Rule 11(e)(4). And since the guilty plea is but one side of the plea agreement, the plea is obviously not wholly independent of the agreement.

But the Rules nowhere state that the guilty plea and the plea agreement must be treated identically. Instead, they explicitly envision a situation in which the defendant performs his side of the bargain (the guilty plea) before the Government is required to perform its side (here, the motion to dismiss four counts). If the court accepts the agreement and thus the Government’s promised performance, then the contemplated agreement is complete and the defendant gets the benefit of his bargain. But if the court rejects the Government’s promised performance, then the agreement is terminated and the defendant has the right to back out of his promised performance (the guilty plea), just as a binding contractual duty may be extinguished by the nonoccurrence of a condition subsequent. See J. Calamari & J. Perillo, Law of Contracts § 11-7, p. 441 (3d ed. 1987); 3A A. Corbin, Corbin on Contracts §628, p. 17 (I960).

If the Court of Appeals’ holding were correct, it would also be difficult to see what purpose Rule 32(e) would serve. Since 1983, that Rule has provided: “If a motion to withdraw a plea of guilty ... is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason.” Under the Court of Appeals’ holding, the “fair and just reason” standard would only be applicable between the time that the plea agreement is accepted and the sentence is imposed. Since the decision whether to accept the plea agreement will often be deferred until the sentencing hearing, see Rule 11(e)(2); USSG §6Bl.l(c), at which time the presentence report will have been submitted to the parties, objected to, revised, and filed with the court, see Fed. Rule Crim. Proc. 32(b)(6), the decision whether to accept the plea agreement will often be made at the same time that the defendant is sentenced. This leaves little, if any, time in which the “fair and just reason” standard would actually apply. We see no indication in the Rules to suggest that Rule 32(e) can be eviscerated in this manner, and the Court of Appeals did not point to one.

Respondent defends this cramped understanding of Rule 32(e) by arguing that the “fair and just reason” standard was meant to apply only to “fully accepted” guilty pleas, as opposed to “conditionally accepted” pleas — i. e., pleas that are accepted but later withdrawn under Rule 11(e)(4) if the plea agreement is rejected. He points out that the “fair and just reason” standard was derived from dictum in our pre-Rules opinion in Kercheval v. United States, 274 U. S. 220, 224 (1927), see Advisory Committee’s Notes on Rule 32, 18 U. S. C. App., p. 794, and that Kercheval spoke of a guilty plea as a final, not a conditional, act, see 274 U. S., at 223 (“A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence”). He then argues that since the Rule 32(e) standard was derived from Kercheval, the Rule must also have incorporated the Kercheval view that a guilty plea is a final, unconditional act. Thus, since his guilty plea was conditioned on the District Court accepting the plea agreement, the Rule simply does not apply.

We reject this somewhat tortuous argument. When the “fair and just reason” standard was added in 1983, the Rules already provided that the district court could defer decision on whether to accept the plea agreement, that it could then reject the agreement, and that the defendant would then be able to withdraw his guilty plea. Guilty pleas made pursuant to plea agreements were thus already subject to this sort of condition subsequent. Yet neither the new Rule 32(e) nor the Advisory Committee’s Notes accompanying it attempted to draw a distinction between “fully accepted” and “conditionally accepted” guilty pleas. Instead, the Rule simply says that the standard applies to motions to withdraw a guilty plea "made before sentence is imposed.” Respondent’s speculation that the Advisory Committee, this Court, and Congress had the Kercheval view of a guilty plea in mind when Rule 32(e) was amended in 1983 is thus contradicted by the Rules themselves.

Respondent’s only other substantial argument in defense of the Court of Appeals’ holding relies on an interpretation of the Advisory Committee’s Notes to Rule 32(b)(3). That Rule, concerning presentence reports, provides: “The report must not be submitted to the court or its contents disclosed to anyone unless the defendant has consented in writing, has pleaded guilty or nolo contendere, or has been found guilty.” This Rule obviously does not deal at all with motions to withdraw guilty pleas, and any comments in the Advisory Committee’s Notes to this Rule dealing with plea withdrawal could not alter the meaning of Rules 11 and 32(e) as we have construed them.

The judgment of the Court of Appeals is therefore

Reversed.

       See also Fed. Rule Crim. Proc. 11(f) (court should not enter judgment on an accepted guilty plea without confirming that the plea has a factual basis).

       Under the Sentencing Guidelines, a district court is required to defer its decision about whether to accept a type A or type C agreement until after it has reviewed the presentence report, unless the court believes that a presentence report is not required. United States Sentencing Commission, Guidelines Manual §6Bl.l(c) (Nov. 1995) (USSG).

       Respondent argues that it is unfair to bind the defendant to the terms of the plea agreement before the Government is so bound. He therefore argues that, as a policy matter, an interpretation of the Rules that results in such a differential treatment should be rejected. Even if respondent were correct in arguing that the defendant is bound before the Government is bound (a point we do not decide), the fact remains that our task here is not to act as policymaker, deciding how to make the Rules as fair as possible, but rather to determine what the Rules actually provide. Cf. Carlisle v. United States, 517 U. S. 416, 444-445 (1996) (district court may not use “inherent supervisory power” to correct perceived unfairness in application of Fed. Rule Crim. Proc. 29(a)’s 7-day time limit for filing motions for judgment of acquittal, if use of the power would “circumvent or conflict with the Federal Rules of Criminal Procedure”).