Glidden Company v. Zdanok Lurk v. United States

Decision Date25 June 1962
Docket NumberNos. 242 and 481,s. 242 and 481
Citation82 S.Ct. 1459,8 L.Ed.2d 671,370 U.S. 530
PartiesThe GLIDDEN COMPANY, etc., Petitioner, v. Olga ZDANOK et al. Benny LURK, Petitioner, v. UNITED STATES
CourtU.S. Supreme Court

Chester Bordeau, New York City, for petitioner. Morris Shapiro, New York City, for respondents. Solicitor General Archibald Cox for United States, as intervener. Francis M. Shea, New York City, for United States Court of Claims, as amicus curiae, by special leave of Court.

Eugene Gressman, Washington, D.C., for petitioner. Solicitor General Archibald Cox for respondent. Roger Robb, Washington, D.C., for United States Court of Customs and Patent Appeals, as amicus curiae, by special leave of Court.

Mr. Justice HARLAN announced the judgment of the Court and an opinion joined by Mr. Justice BRENNAN and Mr. Justice STEWART.

In Ex parte Bakelite Corp., 279 U.S. 438, 49 S.Ct. 411, 73 L.Ed. 789, and Williams v. United States, 289 U.S. 553, 53 S.Ct. 751, 77 L.Ed. 1372, this Court held that the United States Court of Customs and Patent Appeals and the United States Court of Claims were neither confined in jurisdiction nor protected in independency by Article III of the Constitution, but that both had been created by virtue of other, substantive, powers possessed by Congress under Article I. The Congress has since pronounced its disagreement by providing as to each that 'such court is hereby declared to be a court established under article III of the Constitution of the United States.'1 The petitioners in these cases invite us to reaffirm the authority of our earlier decisions, and thus hold for naught these congressional pronouncements, at least as sought to be applied to judges appointed prior to their enactment.

No. 242 is a suit brought by individual employees in a New York state court to recover damages for breach of a collective bargaining agreement, and removed to the Federal District Court for the Southern District of New York by the defendant employer on the ground of diversity of citizenship. The employees' right to recover was sustained by a divided panel of the Court of Appeals, in an opinion by Judge J. Warren Madden, then an active judge of the Court of Claims sitting by designation of the Chief Justice of the United States under 28 U.S.C. § 293(a), 28 U.S.C.A. § 293(a).2 No. 481 is a criminal prosecution instituted in the United States District Court for the District of Columbia and resulting in a conviction for armed robbery. The trial was presided over by Judge Joseph R. Jackson, a retired judge of the Court of Customs and Patent Appeals sitting by similar designation.3 The petitioner's application for leave to appeal to the Court of Appeals in forma pauperis, respecting the validity of this designation and alleged trial error, was upheld by this Court last Term, 366 U.S. 712, 81 S.Ct. 1229, 6 L.Ed.2d 845; we are now asked to review the Court of Appeals' affirmance of his conviction. Because of the significance of the 'designation' issue for the federal judicial system, we granted certiorari in the two cases, 368 U.S. 814, 815, 82 S.Ct. 56, 110, 7 L.Ed.2d 22, 23, limited to the question whether the judgment in either was vitiated by the respective participation of the judges named.4

The claim advanced by the petitioners, that they were denied the protection of judges with tenure and compensation guaranteed by Article III, has nothing to do with the manner in which either of these judges conducted himself in these proceedings. No contention is made that either Judge Madden or Judge Jackson displayed a lack of appropriate judicial independence, or that either sought by his rulings to curry favor with Congress or the Executive. Both indeed enjoy statutory assurance of tenure and compensation,5 and were it not for the explicit provisions of Article III we should be quite unable to say that either judge's participation even colorably denied the petitioners independent judicial hearings.

Article III, § 1, however, is explicit and gives the petitioners a basis for complaint without requiring them to point to particular instances of mistreatment in the record. It provides:

'The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.'6

Apart from this provision, it is settled that neither the tenure nor salary of federal officers is constitutionally protected from impairment by Congress. Crenshaw v. United States, 134 U.S. 99, 107—108, 10 S.Ct. 431, 433, 434, 33 L.Ed. 825; cf. Butler v. Pennsylvania, 10 How. 402, 416—418, 13 L.Ed. 472. The statutory declaration, therefore, that the judges of these two courts should serve during good behavior and with undiminished salary, see note 5, supra, was ineffective to bind any subsequent Congress unless those judges were invested at appointment with the protections of Article III. United States v. Fisher, 109 U.S. 143, 145, 3 S.Ct. 154, 155, 27 L.Ed. 885; see McAllister v. United States, 141 U.S. 174, 186, 11 S.Ct. 949, 953, 35 L.Ed. 693. And the petitioners naturally point to the Bakelite and Williams cases, supra, as establishing that no such constitutional protection was in fact conferred.

The distinction referred to in those cases between 'constitutional' and 'legislative' courts has been productive of much confusion and controversy. Because of the highly theoretical nature of the problem in its present context, 7 we would be well advised to decide these cases on narrower grounds if any are fairly available. But for reasons that follow, we find ourselves unable to do so.


No challenge to the authority of the judges was filed in the course of the proceedings before them in either case. The Solicitor General, who submitted briefs and arguments for the United States, has seized upon this circumstance to suggest that the petitioners should be precluded by the so-called de facto doctrine from questioning the validity of these designations for the first time on appeal.

Whatever may be the rule when a judge's authority is challenged at the earliest practicable moment as it was in United States v. American-Foreign S.S. Corp., 363 U.S. 685, 80 S.Ct. 1336, 4 L.Ed.2d 1491, in other circumstances involving judicial authority this Court has described it as well settled 'that where there is an office to be filled and one, acting under color of authority, fills the office and discharges its duties, his actions are those of an officer de facto, and binding upon the public.' McDowell v. United States, 159 U.S. 596, 602, 16 S.Ct. 111, 113, 40 L.Ed. 271. The rule is founded upon an obviously sound policy of preventing litigants from abiding the outcome of a lawsuit and then overturning it if adverse upon a technicality of which they were previously aware. Although a United States Attorney may be permitted on behalf of the public to upset an order issued upon defective authority, Frad v. Kelly, 302 U.S. 312, 58 S.Ct. 188, 82 L.Ed. 282, a private litigant ordinarily may not. Ball v. United States, 140 U.S. 118, 128—129, 11 S.Ct. 761, 764, 765, 35 L.Ed. 377.

The rule does not obtain, of course, when the alleged defect of authority operates also as a limitation on this Court's appellate jurisdiction. Ayrshire Collieries Corp. v. United States, 331 U.S. 132, 67 S.Ct. 1168, 91 L.Ed. 1391 (three-judge court); United States v. Emholt, 105 U.S. 414, 26 L.Ed. 1077 (certificate of divided opinion). In other circumstances as well, when the statute claimed to restrict authority is not merely technical but embodies a strong policy concerning the proper administration of judicial business, this Court has treated the alleged defect as 'jurisdictional' and agreed to consider it on direct review even though not raised at the earliest practicable opportunity. E.g., American Construction Co. v. Jacksonville, T. & K.W.R. Co., 148 U.S. 372, 387—388, 13 S.Ct. 758, 764, 765, 37 L.Ed. 486.

A fortiori is this so when the challenge is based upon nonfrivolous constitutional grounds. In McDowell v. United States itself, supra, at 598—599, 16 S.Ct. at 111, 112, the Court, while holding that any defect in statutory authorization for a particular intracircuit assignment was immunized from examination by the de facto doctrine, specifically passed upon and upheld the constitutional authority of Congress to provide for such an assignment. And in Lamar v. United States, 241 U.S. 103, 117—118, 36 S.Ct. 535, 539, 540, 60 L.Ed. 912, the claim that an intercircuit assignment violated the criminal venue restrictions of the Sixth Amendment and usurped the presidential appointing power under Art. II, § 2, was heard here and determined upon its merits, despite the fact that it had not been raised in the District Court or in the Court of Appeals or even in this Court until the filing of a supplemental brief upon a second request for review.

The alleged defect of authority here relates to basic constitutional protections designed in part for the benefit of litigants. See O'Donoghue v. United States, 289 U.S. 516, 532—534, 53 S.Ct. 740, 743, 744, 77 L.Ed. 1356. It should be examinable at least on direct review, where its consideration encounters none of the objections associated with the principle of res judicata, that there be an end to litigation. At the most is weighed in opposition the disruption to sound appellate process entailed by entertaining objections not raised below, and that is plainly insufficient to overcome the strong interest of the federal judiciary in maintaining the constitutional plan of separation of powers. So this Court has con- cluded on an analogous balance struck to protect against intruding federal jurisdiction into the area...

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