Nguyen v. United States, 539 U.S. 69, 15 (2003)

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

Rehnquist, C. J., dissenting

has noted, Congress apparently enacted 46(b) in part "to curtail the prior practice under which some circuits were routinely assigning some cases to two-judge panels." Murray v. National Broadcasting Co., 35 F. 3d 45, 47 (1994). It is "clear that the statute was not intended to preclude disposition by a panel of two judges in the event that one member of a three-judge panel to which the appeal is assigned becomes unable to participate," ibid., but it is less clear whether the quorum statute offers postjudgment absolution for the participation of a judge who was not otherwise competent to be part of the panel under 292(a). Thus, although the two Article III judges who took part in the decision of petitioners' appeals would have constituted a quorum if the original panel had been properly created, it is at least highly doubtful whether they had any authority to serve by themselves as a panel. In light of that doubt, it is appropriate to return these cases to the Ninth Circuit for fresh consideration of petitioners' appeals by a properly constituted panel organized "comformably to the requirements of the statute." 17 William Cramp & Sons, 228 U. S., at 651.

Accordingly, we vacate the judgments of the Court of Appeals and remand these cases for further proceedings consistent with this opinion.

It is so ordered.

Chief Justice Rehnquist, with whom Justice Scalia, Justice Ginsburg, and Justice Breyer join, dissenting.

Under Federal Rule of Criminal Procedure 52(b), courts have "a limited power to correct errors that were forfeited

of whom shall be judges of that court, unless such judges cannot sit because recused or disqualified . . . ."

17 Unlike the dissent, we believe that it would "flou[t] the stated will of Congress," post, at 84 (opinion of Rehnquist, C. J.), and call into serious question the integrity as well as the public reputation of judicial proceedings to permit the decision below to stand, for no one other than a properly constituted panel of Article III judges was empowered to exercise appellate jurisdiction in these cases.

83

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