Nguyen v. United States, 539 U.S. 69, 14 (2003)

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Opinion of the Court

It is also true that two judges of a three-judge panel constitute a quorum legally able to transact business.14 Moreover, settled law permits a quorum to proceed to judgment when one member of the panel dies or is disqualified. United States v. Allied Stevedoring Corp., 241 F. 2d 925, 927 (CA2 1957) (L. Hand, J.). For two reasons, however, the presence of a quorum on the Ninth Circuit panel does not save the judgments below. First, the quorum statute has been on the books (in relevant part essentially unchanged) for over a century,15 yet this Court has never doubted its power to vacate the judgment entered by an improperly constituted court of appeals, even when there was a quorum of judges competent to consider the appeal. See United States v. American-Foreign S. S. Corp., 363 U. S. 685 (1960); William Cramp & Sons Ship & Engine Building Co. v. International Curtiss Marine Turbine Co., 228 U. S. 645 (1913); American Constr. Co. v. Jacksonville, T. & K. W. R. Co., 148 U. S. 372 (1893).

Second, the statutory authority for courts of appeals to sit in panels, 28 U. S. C. 46(b), requires the inclusion of at least three judges in the first instance.16 As the Second Circuit

14 Title 28 U. S. C. 46(d) provides: "A majority of the number of judges authorized to constitute a court or panel thereof . . . shall constitute a quorum." As used in 46(d), "quorum . . . means such a number of the members of the court as may legally transact judicial business." Tobin v. Ramey, 206 F. 2d 505, 507 (CA5 1953).

15 See Act of Mar. 3, 1911, ch. 6, 117, 36 Stat. 1131: "There shall be in each circuit a circuit court of appeals, which shall consist of three judges, of whom two shall constitute a quorum . . . ."

The Evarts Act, which established the original circuit courts of appeals, contained essentially the same provision: "[T]here is hereby created in each circuit a circuit court of appeals, which shall consist of three judges, of whom two shall constitute a quorum." Ch. 517, 2, 26 Stat. 826.

16 Title 28 U. S. C. 46(b) provides, in pertinent part: "In each circuit the court may authorize the hearing and determination of cases and controversies by separate panels, each consisting of three judges, at least a majority

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