70
Syllabus
Judge of the District Court for the Northern Mariana Islands is literally a "district judge" of a court "within the [Ninth] [C]ircuit," such a reading of § 292(a) is so capacious that it would also justify the designation of "district judges" of any number of state courts "within" the Ninth Circuit. Moreover, historically, the term "United States District Court" in Title 28 has ordinarily excluded Article IV territorial courts, even when their jurisdiction is similar to that of an Article III United States District Court. E. g., Mookini v. United States, 303 U. S. 201, 205. Pp. 74-76.
(b) The Government's three grounds for leaving the judgments below undisturbed are not persuasive. First, this Court's precedents concerning alleged irregularities in the assignment of judges do not compel application here of the de facto officer doctrine, which confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person's appointment to office is deficient, Ryder v. United States, 515 U. S. 177, 180. Typically, the Court has found a judge's actions to be valid de facto when there is a "merely technical" defect of statutory authority, McDowell v. United States, 159 U. S. 596, 601-602, but not when, as here, there has been a violation of a statutory provision that embodies weighty congressional policy concerning the proper organization of the federal courts, see, e. g., American Constr. Co. v. Jacksonville, T. & K. W. R. Co., 148 U. S. 372, 387. Second, for essentially the same reasons, it is inappropriate to accept the Government's invitation to assess the merits of petitioners' convictions or whether the fairness, integrity, or public reputation of the proceedings were impaired by the composition of the panel. Third, the Government's argument that the presence of a quorum of two otherwise-qualified judges on the panel is sufficient to support the decision below is rejected for two reasons. The federal quorum statute, 28 U. S. C. § 46(d), has been on the books (in relevant part essentially unchanged) for over a century, yet this Court has never doubted its power to vacate a judgment entered by an improperly constituted court of appeals, even when there was a quorum of judges competent to consider the appeal. See, e. g., United States v. American-Foreign S. S. Corp., 363 U. S. 685. Moreover, the statute authorizing courts of appeals to sit in panels, § 46(b), requires the inclusion of at least three judges in the first instance. Although the two Article III judges who took part below would have constituted a quorum had the original panel been properly created, it is at least highly doubtful whether they had any authority to serve by themselves as a panel. Thus, it is appropriate to return these cases to the Ninth Circuit for fresh consideration by a properly constituted panel. Pp. 77-83.
284 F. 3d 1086, vacated and remanded.
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