Nguyen v. United States, 539 U.S. 69, 10 (2003)

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78

NGUYEN v. UNITED STATES

Opinion of the Court

128-129 (1891) (assigned judge had de facto authority to replace a deceased judge even though he had been designated to replace a disabled judge). We observed in McDowell, however, that the judge whose assignment had been questioned was otherwise qualified to serve, because he was "a judge of the United States District Court, having all the powers attached to such office," and because the Circuit Judge was otherwise empowered to designate him. 159 U. S., at 601.

By contrast, we have agreed to correct, at least on direct review, violations of a statutory provision that "embodies a strong policy concerning the proper administration of judicial business" even though the defect was not raised in a timely manner. Glidden, 370 U. S., at 536 (plurality opinion). In American Constr. Co. v. Jacksonville, T. & K. W. R. Co., 148 U. S. 372 (1893), the case Justice Harlan cited for this proposition in Glidden, a judgment of the Circuit Court of Appeals was challenged because one member of that court had been prohibited by statute from taking part in the hearing and decision of the appeal.10 This Court succinctly observed: "If the statute made him incompetent to sit at the hearing, the decree in which he took part was unlawful, and perhaps absolutely void, and should certainly be set aside or quashed by any court having authority to review it by appeal, error or certiorari." 148 U. S., at 387. The American Constr. Co. rule was again applied in William Cramp & Sons Ship & Engine Building Co. v. International Curtiss Marine Tur-10 The petitioners in American Constr. Co. challenged the participation of a Circuit Judge who, while sitting as a trial judge, had entered an order closely related to the matter under review in the Circuit Court of Appeals. At the time, the relevant statute governing the composition of the circuit courts of appeals provided that "no justice or judge before whom a cause or question may have been tried or heard in a district court, or existing circuit court, shall sit on the trial or hearing of such cause or question in the circuit court of appeals." Evarts Act, ch. 517, 3, 26 Stat. 827.

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