Nguyen v. United States, 539 U.S. 69, 11 (2003)

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Cite as: 539 U. S. 69 (2003)

Opinion of the Court

bine Co., 228 U. S. 645 (1913), even though the parties had consented in the Circuit Court of Appeals to the participation of a District Judge who was not permitted by statute to consider the appeal. Id., at 650. Rather than sift through the underlying merits, we remanded to the Circuit Court of Appeals "so that the case may be heard by a competent court, [organized] conformably to the requirements of the statute." Id., at 651. See also Moran v. Dillingham, 174 U. S. 153, 158 (1899) ("[T]his court, without considering whether that decree was or was not erroneous in other respects, orders the Decree of the Circuit Court of Appeals to be set aside and quashed, and the case remanded to that court to be there heard and determined according to law by a bench of competent judges" (emphasis deleted)).

We are confronted in petitioners' cases with a question of judicial authority more fundamental than whether "some effort has been made to conform with the formal conditions on which [a judge's] particular powers depend." Johnson v. Manhattan R. Co., 61 F. 2d 934, 938 (CA2 1932) (L. Hand, J.). The difference between the irregular judicial designations in McDowell and Ball and the impermissible panel designation in the instant cases is therefore the difference between an action which could have been taken, if properly pursued, and one which could never have been taken at all. Like the statutes in William Cramp & Sons, Moran, and American Constr. Co., 292(a) embodies weighty congressional policy concerning the proper organization of the federal courts.11

11 The Government seeks to distinguish William Cramp & Sons, Moran, and American Constr. Co. on the ground that the statutory provision at issue in each of those cases, unlike 292(a), "expressly prohibited" the challenged judge's participation. Brief for United States 18. In light of our conclusion that there is no plausible interpretation of 292(a) permitting the designation in the instant cases, see supra, at 74-76, we think this is a distinction without a difference. In any event, there was no "express" prohibition at play in United States v. American-Foreign S. S. Corp., 363 U. S. 685, 690-691 (1960), in which this Court vacated the judgment of a


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