Composition of Article III Courts of Appeals

Justice System Journal, 2005 by Lochner, Todd

In Khanh Phuong Nguyen v. United States, 539 U.S. 69 (2003), the U.S. Supreme Court considered whether territorial judges appointed under Article IV of the Constitution may sit by designation on a federal court of appeals. Justice Stevens, joined by Justices O'Connor, Kennedy, Souter, and Thomas, held that they could not, and that, as a result, the lower court's judgment had to be vacated. Chief Justice Rehnquist, joined by Justices Scalia, Ginsburg, and Breyer, dissented, arguing that while it was "undoubtedly a mistake" to allow an Article IV judge on a court-of-appeals panel, such a mistake did not constitute reversible error and thus did not justify vacating the convictions the court of appeals had affirmed.

Nguyen and Phan were convicted of narcotics violations in the District Court of Guam, which, pursuant to the Organic Act of Guam, 48 U.S.C. 1424, is a territorial court with subject-matter jurisdiction over both federal and local laws. They appealed their convictions to the Court of Appeals for the Ninth Circuit. The panel convened to hear the appeal consisted of the chief judge and a senior circuit judge of the Ninth Circuit, as well as the chief judge of the U.S. District Court of the Northern Mariana Islands. That court is an Article IV territorial court whose judges serve fixed ten-year terms unless "removed by the President for cause." 48 U.S.C. 1821(b)(1). Although neither petitioner objected to the composition of the panel prior to the judgment in which the court of appeals unanimously affirmed their convictions, 284 F.3d 1086 (9th Cir. 2002), they subsequently filed a petition for a writ of certiorari requesting that the Supreme Court vacate the decision because the panel's composition was invalid. (In a companion case, in which a panel of the same two Ninth Circuit judges were joined by the chief judge of the U.S. District Court of Guam, Oden v. Northern Marianas College, 284 F.3d 1058 (9th Cir. 2002), the Supreme Court granted certiorari, vacated the Ninth Circuit's judgment, and remanded for reconsideration in light of its principal ruling. 123 S.Ct. 2601 (2003)).

Speaking for the Supreme Court's majority in Nguyen, Justice Stevens began by stating that 28 U.S.C. 292(a) allows the chief judge of a circuit to assign district judges within the circuit to serve on the court of appeals but fails to define the term "district judges." He concluded that territorial judges could not be considered "district judges" under Sec. 292(a) for two reasons. First, he noted that Title 28 contemplates that a "court of the United States" will be created under Chapter 5 of that title, whereas territorial courts are created under a different statutory provision. The relevant law, he noted, "exhaustively enumerates" all of the judicial districts in which there shall be a United States District Court but failed to mention the territorial court of the Northern Mariana Islands. Id. Second, Chapter 5 describes district judges as holding office "during good behavior" (the equivalent of lifetime appointments), whereas Article IV judges serve fixed terms. Id.

Having concluded that the statute "cannot be read to permit the designation to the court of appeals of a judge of the District Court for the Northern Mariana Islands," id. at 75, Justice Stevens went on to reject the solicitor general's arguments that the convictions below should be upheld. The government, drawing on Ryder v. United States, 515 U.S. 177 (1995), argued that although the panel was constituted improperly, the "de facto officer" doctrine "confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person's appointment . . . is deficient." Id. at 180. Justice Stevens disagreed. He noted that the de facto officer doctrine is applied only in cases of "merely technical" defects of statutory authority, not where the statutory violation "embodies a strong policy concerning the proper administration of judicial business," the situation in the present case.

Justice Stevens also rejected the government's argument that because petitioners' hearing before the panel was not fundamentally unfair and did not impugn the integrity or public reputation of the court, and because the petitioners failed to lodge an initial objection to the panel's composition, relief was not appropriate under plainerror review. Justice Stevens suggested that the invalid composition of the panel was not cured simply by the fact that the Article IV judge was "well qualified" and the proceedings were "fair." Id. at 81. Indeed, even if all the parties below had requested an Article IV judge, that judge's mere presence rendered the panel invalid. The government's final argument was that the court-of-appeals decision should be upheld because 28 U.S.C. 46(d) allows two judges to constitute a proper quorum to legally conduct business. This claim was also rejected on the ground that the statute requires three judges in the first instance; that is, it contemplates a situation where, should a third judge die or be disqualified, the other two judges could finish the court's business, not a situation in which a properly composed panel did not exist ab initia.