Nguyen v. United States, 539 U.S. 69, 19 (2003)

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

Rehnquist, C. J., dissenting

motion for further rehearing en banc. Petitioner did not forfeit the error, so Rule 52(b) did not apply.

That is not the case here. Petitioners Nguyen and Phan learned before oral argument that Chief Judge Munson was a member of their Court of Appeals panel. They nonetheless failed to object at oral argument or in a petition for rehearing en banc. This forfeiture requires us to apply the Olano test faithfully.

The Court also relies mistakenly on William Cramp & Sons Ship & Engine Building Co. v. International Curtiss Marine Turbine Co., 228 U. S. 645 (1913), and American Constr. Co. v. Jacksonville, T. & K. W. R. Co., 148 U. S. 372 (1893). Ante, at 78-79, and n. 11. In both cases, this Court considered an Act of Congress providing that " 'no judge before whom a cause or question may have been tried or heard in a district court . . . shall sit on the trial or hearing of such cause or question in the Circuit Court of Appeals.' " 228 U. S., at 649; 148 U. S., at 387. This Court held that, when a district judge sat in contravention of that "comprehensive and inflexible" prohibition, 228 U. S., at 650, the court of appeals was statutorily unable to act. See also American Construction, supra, at 387.

But these cases do not control here because, as the Court fails to note, both cases predate our adoption of the standard for plain-error review in Atkinson in 1936, and Congress' codification of that standard in Rule 52(b) in 1944. This, and not some broader principle, explains the Court's failure in those cases to apply our modern plain-error analysis. The Court has no such excuse. The cases can also easily be distinguished from this litigation on the facts: They held only that courts constituted "in violation of the express prohibitions of [a] statute" lack the authority to act. Cramp, 228 U. S., at 650 (emphasis added). In contrast, the Ninth Circuit panel in this litigation did not run afoul of any "comprehensive and inflexible" statutory "prohibition." Ibid. Rather, the error must be deduced by negative implication,


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