[00:00:02] Speaker 00: case number 15-7057. [00:00:05] Speaker 00: Brian Nguyen at L versus District of Columbia at L, Appellants. [00:00:09] Speaker 00: Ms. [00:00:09] Speaker 00: Alikhan for the Appellants, Mr. Gura for the Appellees. [00:01:00] Speaker 03: Yes. [00:01:03] Speaker 03: Yes, absolutely. [00:01:04] Speaker 04: Good morning, Ms. [00:01:04] Speaker 04: Olicon. [00:01:06] Speaker 00: Good morning, and may it please the Court. [00:01:07] Speaker 00: My name is Lauren Olicon, and I represent the District of Columbia. [00:01:10] Speaker 00: I would like to reserve three minutes for rebuttal. [00:01:12] Speaker 03: Are you still appealing this case, or are you dropping the appeal? [00:01:15] Speaker 00: So we believe that there is a jurisdictional defect. [00:01:17] Speaker 03: No, no. [00:01:18] Speaker 03: I'm wondering what you're doing down at the district court. [00:01:20] Speaker 03: That's why we asked you to address it. [00:01:22] Speaker 03: Sure. [00:01:22] Speaker 03: Down at the district court. [00:01:23] Speaker 03: You took action to reassign the case in the district court when you had an appeal up here. [00:01:28] Speaker 03: I assume you were withdrawing your appeal then. [00:01:30] Speaker 00: Not at all, Judge Silverman. [00:01:31] Speaker 03: What were you doing down in the district court? [00:01:33] Speaker 00: We recognized that while the preliminary injunction proceedings are on appeal, the district court could still proceed on the merits. [00:01:37] Speaker 00: And so we wanted to ensure that any further merits. [00:01:40] Speaker 03: How could they when we have jurisdiction? [00:01:42] Speaker 00: There are several cases in which this court has recognized that P.I. [00:01:46] Speaker 00: proceedings are collateral to the underlying merits, and so the merits could go forward. [00:01:50] Speaker 00: And so we hope that they won't. [00:01:51] Speaker 00: But we just wanted to protect our rights and make sure that if anything were to happen in the district court, it would be before a properly authorized judge. [00:01:58] Speaker 00: Now, to be sure, that has nothing to do with the jurisdictional question that this Court is here confronted with. [00:02:02] Speaker 00: We think that this Court should look at the assignment statute and conclude that Judge Scullin lacked authority because he was not designated by the Chief Justice, nor was there a certificate of necessity put forth by the Chief Judge of the Court, and such that Judge Scullin was acting just without authority, and so his order is void. [00:02:20] Speaker 00: So now, if I may, I mean, the district took this appeal to correct fundamental errors in Judge Scullin's decision to grant a preliminary injunction against the district's good reason requirement for carrying a firearm on the district's crowded city streets. [00:02:32] Speaker 00: As you've noted, Judge Silverman, while on appeal, this court noted a jurisdictional issue. [00:02:36] Speaker 00: And because that's logically antecedent to the merits, I would like to address that first. [00:02:39] Speaker 00: So as I've begun to state, Judge Scullin lacked authority to preside over the preliminary injunction proceedings because the chief judge of this circuit never certified that a visiting judge was necessary for this case, and the chief justice of the United States never designated him to sit on this case. [00:02:53] Speaker 00: In the absence of those statutory prerequisites, Judge Scullin had no authority, and so this court, as the Supreme Court did in Frad, must hold that the order is void and remand the case for preliminary injunction proceedings to be held before a properly designated or authorized judge. [00:03:09] Speaker 00: I think that Fradd is the case that controls this most expressly. [00:03:11] Speaker 00: There you had a situation much like here, where there was an EDNY judge sitting in the SDNY by designation on a particular case. [00:03:19] Speaker 00: After that designation had expired, it was a criminal case, the probationer went back to the judge who was in the EDNY and asked him to vacate his probation. [00:03:27] Speaker 00: The EDNY judge purported to act as an SDNY judge. [00:03:31] Speaker 00: He brought the SDNY probation officer in. [00:03:33] Speaker 00: He captioned his ultimate order of releasing the defendant from probation as an SDNY order. [00:03:37] Speaker 00: And he filed it with the SDNY clerk's office. [00:03:40] Speaker 00: But what the Supreme Court held was that because the judge was not acting in the SDNY pursuant to a valid assignment, the judgment was void. [00:03:48] Speaker 04: But Judge Scullin was operating pursuant to the assignment of the Palmer case and under Section 296. [00:03:55] Speaker 04: designated judge performs all judicial duties for which he's designated and assigned, including any duty which might be required of a judge of the quarter district or circuit to which he's assigned. [00:04:06] Speaker 04: And the judges in this district routinely do take related cases under the local civil rule. [00:04:12] Speaker 04: So why is that not part of his assignment? [00:04:14] Speaker 00: So absolutely, Judge Pillard, a couple of responses to that. [00:04:17] Speaker 00: First, that was the same situation as in fraud. [00:04:19] Speaker 00: The probationer would routinely return to the judge who presided over the criminal proceedings. [00:04:23] Speaker 00: And the Supreme Court held that that didn't matter, because what you have to look at is the assignment statute. [00:04:27] Speaker 00: And that's because there are important policy considerations in the assignment statute. [00:04:32] Speaker 00: The president nominates a judge for a particular jurisdiction. [00:04:35] Speaker 00: The Senate confirms that judge for a particular jurisdiction. [00:04:37] Speaker 00: And with few exceptions, the judges are required to live in that jurisdiction. [00:04:41] Speaker 00: And that's because there's an interest in local cases being decided by local judges. [00:04:45] Speaker 00: Now, of course, the assignment statute understands and appreciates that in certain limited circumstances, such as where there's a vacancy by death or disability of a judge, or where there's a recusal situation, there may be a need to bring a judge from outside the jurisdiction into the jurisdiction to sit on the case. [00:04:59] Speaker 00: But that's only for extraordinary circumstances. [00:05:01] Speaker 00: And I think to get to the other heart of your question about the related case rules, to be sure Judge Scullin, when acting pursuant to a proper designation, was to carry out all of the local rules. [00:05:11] Speaker 00: But the jurisdictional statutes provide that he can only sit where designated. [00:05:16] Speaker 00: And if you look, I believe it's at A1 of our supplemental brief, the certificate of necessity designated to work on the Palmer case, did it specifically by docket number, did not include the random number. [00:05:25] Speaker 00: Same thing with the Chief Justice's certificate assigning Judge Scullin to the case. [00:05:29] Speaker 00: is specifically authorized to work on the Palmer case and not on the Rand case. [00:05:33] Speaker 04: But you have designation to deal with an overload of business, a backlog of business, and the reason for the related case rule is to efficiently deal with the business of the court. [00:05:42] Speaker 04: It would seem like it's quite consistent with a designation for 10 [00:05:48] Speaker 04: enumerated cases to say, and whatever goes with that ball of wax. [00:05:53] Speaker 04: And so it seems like it's quite in line with the policy that supports the designation to have the visiting judge use the designated case rule. [00:06:02] Speaker 00: So I have three responses to that. [00:06:04] Speaker 00: First, had the certificate of necessity said this case and related cases, we'd be in a very different circumstance. [00:06:09] Speaker 00: Of course, we'd still have the Chief Justice needing to assign Palmer and Doll related cases. [00:06:14] Speaker 00: So we don't have that here. [00:06:15] Speaker 00: But a legal response, my second response, is to look to Judge Kaczynski's opinion in the Motor Fuels litigation case. [00:06:20] Speaker 00: And that was, if you'll give me a minute to explain, sort of a long procedural history. [00:06:24] Speaker 00: It was a panel on multi-district litigation that had handled all the pretrial proceedings for a particular case. [00:06:29] Speaker 00: And then, under the rules for multi-district litigation, the case is supposed to go back to the original district court for trial. [00:06:35] Speaker 00: There, the judge who presided over the multi-district litigation offered it. [00:06:39] Speaker 03: Could you go a little slower, Counselor? [00:06:40] Speaker 00: Sure, absolutely, Judge Silken. [00:06:41] Speaker 00: I'm having a little difficulty following you. [00:06:42] Speaker 00: I know that I have a little time, so I'm trying to cram a lot in, but it will certainly go slower. [00:06:46] Speaker 03: You have as much time as you need. [00:06:47] Speaker 00: Well, thank you. [00:06:48] Speaker 00: I appreciate that. [00:06:49] Speaker 03: The presiding judge is very gracious and kind. [00:06:53] Speaker 00: I have no doubt. [00:06:56] Speaker 00: So in that case, when the case was supposed to be remanded to the trial courts in California, the judge who had presided over the multi-district litigation volunteered and said, it would be more efficient for me to preside over this case. [00:07:08] Speaker 00: I know it. [00:07:09] Speaker 00: I know the parties. [00:07:10] Speaker 00: I presided over all the pretrial proceedings. [00:07:12] Speaker 00: And what Judge Kaczynski said is that interest in efficiency, which is akin to the efficiencies realized in the related case, [00:07:18] Speaker 00: is not sufficient. [00:07:19] Speaker 00: The assignment statute requires that it be necessary or that there be a necessity to have a judge coming from outside of the jurisdiction. [00:07:27] Speaker 00: And Judge Kuczynski said, you need to read that narrowly. [00:07:29] Speaker 00: And we think that's right, because there is an interest in local judges presiding over local cases. [00:07:33] Speaker 03: Well, now, wait a minute. [00:07:34] Speaker 03: The whole question is what the Chief Justice did here, isn't it? [00:07:38] Speaker 03: We don't second-guess the Chief Justice's determination as to whether another judge is needed. [00:07:45] Speaker 00: And that's exactly right. [00:07:47] Speaker 03: And that goes to my... You're making this argument as if, gee, we want to emphasize local control and we want to emphasize that other judges come in only when it's absolutely necessary, as if we were reviewing the Chief Justice's designation. [00:08:02] Speaker 00: Not at all. [00:08:03] Speaker 03: So the only question is whether the Chief Justice designation covered this case or not. [00:08:08] Speaker 00: It did not, as I noted. [00:08:09] Speaker 00: Isn't that the only issue? [00:08:10] Speaker 00: Exactly. [00:08:11] Speaker 00: A1 and A2 are briefed. [00:08:12] Speaker 00: We have the certificate of necessity that was authored by the Chief Judge of this circuit. [00:08:16] Speaker 00: He designated that there was a necessity for Judge Scullin to work on just the Palmer case and some other cases, to be short, but not the Wren case, which is a different docket number, a different case. [00:08:24] Speaker 00: Indeed, that case concerned a law that hadn't even been passed at the time that the certificate of necessity was authored, assuming that Judge Scullin would work on [00:08:31] Speaker 00: Palmer. [00:08:32] Speaker 00: Next, you have the Chief Justice's letter designating Chief Judge Scullin. [00:08:35] Speaker 00: And again, that specifically enumerates the cases to which Judge Scullin was assigned. [00:08:39] Speaker 00: That included Palmer. [00:08:40] Speaker 00: It did not include Wren. [00:08:42] Speaker 00: So absolutely, Judge Stillerman, I think that ends the inquiry. [00:08:44] Speaker 00: But just so I could finish with a third response to Judge Pillard, the reason why we know that this court doesn't routinely have designated judges work on related cases is that we surveyed cases on the docket that Judge Scullin had been authorized or designated to work on. [00:08:59] Speaker 00: So in the cases that we found, they fell into three broad categories. [00:09:03] Speaker 00: First, there was a case that was assigned to Judge Scullin pursuant to a valid certificate of necessity and designation. [00:09:08] Speaker 00: When a second related case came in, there was then a new certificate of necessity and a new designation such that he could then work on both of those cases. [00:09:15] Speaker 00: In another situation, there were three cases that had been deemed related prior to when Judge Scullin was designated and assigned to them. [00:09:22] Speaker 00: The certificate of necessity and the letter of designation spell out the docket numbers for each of those three cases. [00:09:28] Speaker 00: So we know that there's not a routine practice in this circuit. [00:09:31] Speaker 00: And so we know there are alternative ways. [00:09:33] Speaker 02: Opposed there were, would that make any difference? [00:09:37] Speaker 00: I think that had there been a certificate of necessity that said, Judge Scullin is assigned to the Palmer case and all related cases. [00:09:42] Speaker 02: No, no, no, no. [00:09:43] Speaker 02: That's not what we're talking about. [00:09:44] Speaker 02: You're talking about was there a practice of doing that? [00:09:49] Speaker 02: Would that cure the defect? [00:09:51] Speaker 00: I don't think it would. [00:09:52] Speaker 00: I just highlight this to show. [00:09:54] Speaker 00: I know I don't think it would. [00:09:55] Speaker 00: I think the lack of the specification of the Wren case number on any certificate of necessity or on any letter of designation by the Chief Justice means that Judge Scullin lacked authority to preside over the case. [00:10:05] Speaker 00: And that in and of itself renders the judgment void. [00:10:08] Speaker 00: That requires this court to remand the preliminary injunction proceedings back to the district court so that a properly authorized judge can review it in the first instance. [00:10:16] Speaker 03: Should we get to the merits of this? [00:10:18] Speaker 03: What are you saying? [00:10:19] Speaker 03: I have one question on the merits. [00:10:26] Speaker 00: Absolutely. [00:10:27] Speaker 03: You argue that the statute restricting authority to carry or bear arms is allowed in an urban jurisdiction, where it would not be allowed in a non-urban jurisdiction as a matter of constitutional law. [00:10:48] Speaker 03: Is that correct? [00:10:49] Speaker 00: Our position is that when you look at the right that was codified in the second amendment, because it was codified- Wait a minute, counsel, just answer yes or no to that. [00:10:55] Speaker 00: We believe that the right is more circumscribed in cities. [00:11:00] Speaker 03: Yeah, that's your point. [00:11:02] Speaker 03: All right, now I'm a little puzzled in how you draw lines. [00:11:05] Speaker 03: If that were the constitutional rule, how would you draw lines? [00:11:11] Speaker 03: Would it depend on, in a particular jurisdiction, as to how rural it is? [00:11:16] Speaker 00: So I don't think the court needs to answer that question. [00:11:19] Speaker 00: No, I want you to answer the question. [00:11:20] Speaker 03: But weren't to do so... If your constitutional principle is right, you do have to answer that question. [00:11:25] Speaker 00: And so as a matter of constitutional principles, the Second Amendment codified a pre-existing right. [00:11:30] Speaker 03: We know that in seven... Counselor, you're not answering my question. [00:11:32] Speaker 03: How do you draw a line? [00:11:33] Speaker 00: I draw the line the same way that early American and English authorities did, which is in urban areas, fairs and marketplaces. [00:11:40] Speaker 03: What do you mean in urban areas? [00:11:42] Speaker 03: If you had an area that was partly urban and partly rural, but the same jurisdiction, [00:11:49] Speaker 03: Would the Constitution allow a restriction in certain streets, but not in other streets, because it's rule? [00:11:56] Speaker 00: I think that could be jurisdiction-wide, and I would look to Kachalsky and Woolard and Drake for that, because those were statewide bans in New York, Maryland, and New Jersey, which included both urban and rural areas. [00:12:05] Speaker 03: So then your argument is not limited to urban areas? [00:12:09] Speaker 00: in the district, which is an exclusively open jurisdiction. [00:12:12] Speaker 03: You're talking about a constitutional principle, not just a special rule for the District of Columbia. [00:12:17] Speaker 00: Absolutely. [00:12:17] Speaker 03: How do you draw the line? [00:12:19] Speaker 03: For instance, Honolulu is the city and county of Honolulu, so it's the whole island. [00:12:27] Speaker 03: So if Honolulu would adopt your law, how would it would it draw a line between the urban part of the city and county and the non urban part? [00:12:38] Speaker 03: I think I would go down through certain streets. [00:12:41] Speaker 03: You would not be able to carry a gun. [00:12:43] Speaker 03: But if you cross the street, you would be able to. [00:12:45] Speaker 00: I think the Honolulu legislature would need to look at that. [00:12:47] Speaker 00: I presume they would do what New York, New Jersey, and Maryland did, which is to say, as a county-wide or state-wide issue, we think that the public safety concerns of carrying a weapon on the urban streets are such we should have. [00:12:58] Speaker 03: In other words, you do it same way because you can't draw a line limiting it to urban areas. [00:13:02] Speaker 03: Then very well maybe, but of course- Okay, so then your argument goes out the window. [00:13:06] Speaker 00: I don't think so. [00:13:07] Speaker 00: The district isn't exclusively urban jurisdiction. [00:13:08] Speaker 03: The question- No, it isn't. [00:13:09] Speaker 03: No, it isn't. [00:13:10] Speaker 03: There are suburban areas in the district. [00:13:12] Speaker 00: Well, there are some parts that are under federal control at Rock Creek Park, but no one is disputing that the district is exclusively an urban jurisdiction. [00:13:21] Speaker 00: The plaintiffs do not as well. [00:13:23] Speaker 00: So, but the question is whether, when the second amendment was codified in 1791, there were pre-existing limitations on the right to regulate firearms in urban areas and city streets. [00:13:34] Speaker 00: And we've demonstrated in our brief and in the Everytown Brief and Appendix that since 1328, there have been significant regulations such that the right is circumscribed outside the home. [00:13:43] Speaker 00: And based on that, we think under any level of scrutiny, if- Thank you, Kat. [00:13:47] Speaker 03: Thank you, Kat. [00:13:47] Speaker 00: Thank you very much. [00:13:48] Speaker 00: Thank you, Ms. [00:13:48] Speaker 00: Olegana. [00:13:58] Speaker 04: Good morning, Mr. Gura. [00:13:59] Speaker 01: Good morning, Your Honors. [00:14:00] Speaker 01: May it please the court, Alan Gura, for the appellees. [00:14:04] Speaker 01: There's at least one point that the city made with which we agree, and it relates to a point that Judge Silverman made here with which we also agree. [00:14:12] Speaker 01: First of all, with respect to the city, the city's briefing tells the court that it should not lightly go into conflict with other circuits. [00:14:18] Speaker 02: uh... and of course you may want to start with the jurisdiction. [00:14:22] Speaker 01: That isn't a jurisdictional point, Your Honor. [00:14:25] Speaker 01: And Judge Silverman tells us that, and I think it's correct, that the main question here with respect to Judge Scullin's appointment is what did the Chief Justice do when he appointed, designated Judge Scullin to perform judicial duties in specifically the Palmer case? [00:14:44] Speaker 01: There is no question whatsoever that that designation to perform judicial duties was not qualified in any way. [00:14:51] Speaker 01: Judge Scullin had the absolute obligation to take related cases. [00:14:56] Speaker 01: Even if he disagreed with our designation under Rule 40.5, the committee could have sent the case back to him if it felt that it was indeed a related. [00:15:05] Speaker 03: So if there were sequential modifications of the D.C. [00:15:08] Speaker 03: law on carrying each time [00:15:13] Speaker 03: the DC council wrote a new law dealing with a subject that could be assigned to the same judge? [00:15:21] Speaker 01: Not necessarily. [00:15:22] Speaker 01: The difference is... No, no, not necessarily. [00:15:23] Speaker 01: Could it be? [00:15:26] Speaker 01: It would not be an automatic rule. [00:15:27] Speaker 01: What made it related here was that this new law was in fact before Judge Scullin because it was a subject of proceedings before him. [00:15:35] Speaker 01: The question was whether or not the new law complied with his order in Palmer, whether or not... You seem to now be arguing that the [00:15:42] Speaker 02: calendar committee of the district court by making a determination as to relatedness can expand the authority granted by the Chief Judge. [00:15:52] Speaker 01: No, I'm not saying that, Your Honor. [00:15:54] Speaker 01: What I'm saying is that when the judicial duties that are assigned to Judge Scullin, there are judicial duties assigned to him, he agrees to undertake them, those judicial duties include... What were the words here on this designation? [00:16:08] Speaker 01: To perform judicial duties, I believe. [00:16:10] Speaker 02: That's not near all the words. [00:16:12] Speaker 02: In a particular case, what did they say in this case? [00:16:20] Speaker 01: I don't have it directly in front of me, but I believe it's to perform judicial duties in the following cases and also to complete such other business, which is not really the language on which we're relying. [00:16:29] Speaker 01: But when this came across his desk, it came across his desk as the judge in Palmer. [00:16:34] Speaker 01: And what I was getting to is trying to relate the issue to what other circuits have done. [00:16:39] Speaker 01: And this is a subject which did not come up in counsel's argument. [00:16:43] Speaker 01: I didn't hear any reference to the judge's de facto adoption. [00:16:46] Speaker 01: We've had two circuit courts, both the Third Circuit and the Ninth Circuit sitting on Bonk, hold that an improper designation or a defect in the designation is not jurisdictional, but rather a ministerial act which can be cured with a non-proton order. [00:17:01] Speaker 02: That's a defect in the designation. [00:17:03] Speaker 02: Here the question is more like Fred, which is the Supreme Court. [00:17:07] Speaker 02: This goes outside the decision. [00:17:09] Speaker 02: The question is whether [00:17:11] Speaker 02: And the Supreme Court did use the language of jurisdiction in Fred. [00:17:15] Speaker 02: Well, Your Honor, the difference... Are you saying the Supreme Court's wrong in Fred? [00:17:18] Speaker 01: No, I'm saying the Supreme Court's right in the U.N., which is the case that's more direct than a point. [00:17:22] Speaker 01: Fred is a very different type of designation than we have here. [00:17:25] Speaker 02: In Fred... Nonetheless, it was a designation in a very similar form. [00:17:30] Speaker 02: It was a designation to perform certain judicial duties. [00:17:34] Speaker 02: The argument there was that he went beyond it as to date. [00:17:37] Speaker 02: Here it's a designation to perform certain judicial duties. [00:17:40] Speaker 02: The argument is he went beyond it as to date number. [00:17:43] Speaker 02: Why is not the question of whether or not it's jurisdictional precisely the same question in each case? [00:17:50] Speaker 03: Actually, I would raise a question, whether yours is A-4CRI. [00:17:55] Speaker 03: I think Judge Sentel's point is absolutely correct, but yours is even weaker than FRAG. [00:18:02] Speaker 01: No, Your Honor. [00:18:02] Speaker 01: First of all, I believe there are two – fragmented two points, Judge Sentel. [00:18:07] Speaker 01: The first point as to whether or not he was – the designation was effective because it had expired is a question of – relates to this Court's first question. [00:18:16] Speaker 01: The other point that Frad made, which relates to this court's second question, is the jurisdictional question. [00:18:22] Speaker 01: And when it comes to jurisdiction, the question is, even if it was expired, even if it was not appropriate to sit in this case, even if there was some problem with the designation, the question is, does it make a jurisdictional difference? [00:18:35] Speaker 02: And here... And Frad said it did, didn't it? [00:18:38] Speaker 01: In the Frad circumstances, it did. [00:18:40] Speaker 02: Yeah, it was outside the designation. [00:18:46] Speaker 02: the judge had no great day. [00:18:48] Speaker 01: That is the circumstances of Fradd. [00:18:51] Speaker 01: However, Fradd did not undo McDowell. [00:18:55] Speaker 01: It didn't undo Ball, and it did not preclude. [00:18:57] Speaker 02: What did McDowell do that had something to do with this case? [00:18:59] Speaker 01: The question there was the Judge de facto doctrine, which is a different question altogether. [00:19:03] Speaker 01: Altogether different question, yes. [00:19:04] Speaker 01: Okay, even if Judge Scullin had no authority to enter this order, even if the designation had expired or didn't extend under Rule 40.5, even if there was some kind of problem, and even if the court doesn't wish to do what other courts have suggested, which is to simply see if this could be remedied with a non-quoton order, which is actually something that the Third Circuit did in the Two Guys case, but even if there was some defect, okay, then the question becomes jurisdiction. [00:19:30] Speaker 01: And when it comes to jurisdiction, Fradd does not undo the judge de facto doctrine. [00:19:35] Speaker 01: The problem with Fradd is that the judge and Fradd exercised the jurisdiction of the wrong court. [00:19:41] Speaker 01: Having expired in the district where he was appointed, he went back to the Eastern District and kept on trying to do things from that district. [00:19:49] Speaker 01: And this is what the Ninth Circuit explained. [00:19:51] Speaker 03: I don't understand how the de facto doctrine can possibly cure a lack of jurisdiction. [00:19:56] Speaker 03: Either a court had jurisdiction or it didn't. [00:19:59] Speaker 01: It is a jurisdictional doctrine, Your Honor. [00:20:01] Speaker 01: The issue is that appointments, designations, are not in and of themselves jurisdictional. [00:20:09] Speaker 01: These are ministerial, technical designations. [00:20:12] Speaker 02: If they're not, then why did the Supreme Court use the language of jurisdiction and press? [00:20:16] Speaker 01: Because in Fred, the wrong court's jurisdiction was exercised. [00:20:20] Speaker 02: It was wrong because he was outside the district. [00:20:23] Speaker 04: And I don't understand the distinction you're trying to draw there, because here, to the extent that Judge Scullin was not performing judicial duties in the listed cases in the Chief Justice's order, he was acting as a judge of the Northern District of New York. [00:20:39] Speaker 04: So it's the same defect. [00:20:40] Speaker 01: No, Your Honor. [00:20:42] Speaker 01: We would not see it that way. [00:20:43] Speaker 01: We would assert that. [00:20:45] Speaker 01: When he took on as a related case assignment, the Wren case, this case, he did that in the Palmer case. [00:20:52] Speaker 01: He was a judge in Palmer, and he goes to work as a Palmer. [00:20:56] Speaker 04: That just begs the question. [00:20:58] Speaker 04: You're just asserting the conclusion that you want. [00:21:01] Speaker 04: But he was designated to perform judicial duties in Palmer, not in Wren. [00:21:06] Speaker 04: And we're trying to decide whether his performing of judicial duties in Wren. [00:21:10] Speaker 04: And I thought you were relying on the related case rule for that. [00:21:13] Speaker 04: And he wasn't authorized to take related cases. [00:21:17] Speaker 04: And we have evidence that when the Chief Justice wants to specifically authorize four related case considerations, that happens. [00:21:24] Speaker 01: Well, Your Honor, even if the related case rule would not be enough to bring Ren within the designation that Judge Scullin had, the question then becomes, and this is the Court's second question, [00:21:38] Speaker 01: Is there a jurisdictional impact on that? [00:21:41] Speaker 01: And that is answered by the Nguyen case, which is a Supreme Court case from, I believe it's 2004. [00:21:45] Speaker 01: And they survey all the various jurisdictional statements that have been made over the years by themselves and other courts. [00:21:54] Speaker 01: And they come to the following dividing line. [00:21:56] Speaker 01: And here's the test. [00:21:58] Speaker 02: The test is... Can you give me the citation for what you're making? [00:22:01] Speaker 01: Sure. [00:22:01] Speaker 01: This is Nguyen. [00:22:02] Speaker 01: This is 539 U.S. [00:22:03] Speaker 01: and it's on page 79. [00:22:06] Speaker 01: This is a case where there was a judge who sat improperly in a Ninth Circuit panel, but he was an Article IV judge from Guam. [00:22:18] Speaker 01: An Article IV? [00:22:19] Speaker 01: An Article IV judge, a territorial judge. [00:22:22] Speaker 01: And the Supreme Court, surveying the cases, said the following. [00:22:26] Speaker 01: The difference between irregular judicial designations [00:22:29] Speaker 01: which are encompassed by the de facto doctrine, and the, quote, impermissible designations is, quote, the difference between an action which could have been taken if properly pursued and one which could never have been taken at all, close quote. [00:22:44] Speaker 01: That's the difference. [00:22:45] Speaker 01: So, could Judge Scollin, even if he was improperly designated, could he... Wait, what was the holding in that case? [00:22:52] Speaker 03: The holding in that case is that it was impermissible because... Because the Article 4 judge was like... [00:23:01] Speaker 03: a person pulled off the street. [00:23:03] Speaker 03: Essentially. [00:23:03] Speaker 03: And so I had no illusion of judicial authority, so there's no jurisdiction of the panel. [00:23:07] Speaker 01: That's correct, but Article 3. [00:23:08] Speaker 03: And this is the case you're citing in your favor. [00:23:11] Speaker 01: Yes, because we have an Article 3 judge. [00:23:14] Speaker 01: Judge Scullin is a confirmed district court judge. [00:23:16] Speaker 01: He could have been appointed. [00:23:17] Speaker 01: There's a statute that allows him to be appointed. [00:23:21] Speaker 01: There is no question that we can still, even tomorrow, get an order from Chief Justice Roberts, an unquotonic appointing him to the rent case, and all would be OK. [00:23:29] Speaker 01: And we have cases that stand for that proposition as well. [00:23:32] Speaker 01: Nobody got one, did they? [00:23:34] Speaker 03: I was about to ask that question. [00:23:36] Speaker 03: Do you have such an order? [00:23:37] Speaker 01: I don't have such an order. [00:23:38] Speaker 01: Perhaps we should go ask for one, because this is something that... Since there is one, since there isn't one, it's not really relevant, is it? [00:23:44] Speaker 01: Well, it is relevant to this. [00:23:45] Speaker 03: Because of an order such an order... Is it too late now, at a time of moral argument, to suggest you might have gotten a... [00:23:50] Speaker 03: order from the Chief Justice? [00:23:52] Speaker 01: No, it's relevant today, this argument, for this reason. [00:23:56] Speaker 01: The very fact that such an order is even available, the very fact that such an order could have been entered at any time, suggests that this is a judge who could have been appointed to the case. [00:24:05] Speaker 01: And because he could have been appointed to the case, and the district well aware... Well, he could have been appointed. [00:24:10] Speaker 01: But that's what makes him a judge de facto, which cures any problem in an improper... You're running a foul... Where do you have a case where there was such a curative act? [00:24:19] Speaker 02: You're giving me a case where they didn't find he could do it. [00:24:24] Speaker 01: Okay, how about I can give you several cases and we've cited them. [00:24:27] Speaker 01: How about Leary? [00:24:29] Speaker 01: This is a case where you had a [00:24:35] Speaker 01: Well, there wasn't the curative order. [00:24:36] Speaker 01: The curative order actually was in two guys. [00:24:37] Speaker 01: This is the Third Circuit case. [00:24:39] Speaker 01: If you look at footnote one, and the site for that case is 266F2nd, 427. [00:24:44] Speaker 01: There's a very long footnote one. [00:24:47] Speaker 01: And let me read for you the third full paragraph from that. [00:24:51] Speaker 01: 266F2nd, 427. [00:24:53] Speaker 01: 266F2nd, 427. [00:24:54] Speaker 01: This is Chief Judge Biggs of the Third Circuit writing, in preparing the opinion of this court, the fact that Judge Welsh's designation had terminated, [00:25:01] Speaker 01: on May 20th, 1958, appeared. [00:25:03] Speaker 01: And on February 17, 1959, the present writer, the chief judge, filed an order in the court below giving Judge Welsh as a general designation to the court below, not the pro-tunk as of May 21, 1958. [00:25:14] Speaker 01: And that cures the problem. [00:25:15] Speaker 01: It goes on to say, such defects have been held not to constitute a bargain. [00:25:19] Speaker 02: Assuming that that could have been done in this case, we've come back to the fact that it wasn't. [00:25:25] Speaker 02: Yes. [00:25:26] Speaker 01: Which is not ex- We're saying not pro-tunk thing. [00:25:28] Speaker 02: That's right. [00:25:29] Speaker 02: But the fact- We're saying not pro-tunk's work. [00:25:32] Speaker 03: You're on a foul of the ancient legal principle. [00:25:35] Speaker 03: If my aunt had wheels, she'd be a trolley car. [00:25:37] Speaker 01: Yes. [00:25:38] Speaker 01: Well, but we have not on a foul of the not-so-ancient legal principle in Union versus United States, which states that if a judge could have been appointed, he's a judge de facto. [00:25:51] Speaker 04: Thank you, Your Honor. [00:25:52] Speaker 04: Thank you, Mr. Gura. [00:25:57] Speaker 04: Did Ms. [00:25:58] Speaker 04: Alikhan have any time remaining? [00:26:01] Speaker 04: We'll give you one minute. [00:26:07] Speaker 00: Thank you, Your Honors. [00:26:07] Speaker 00: I just wanted to clarify a couple of questions. [00:26:09] Speaker 00: First, Judge Santel, you asked what the language of the designation said. [00:26:12] Speaker 00: It's on A2 of our supplemental brief. [00:26:14] Speaker 00: And it says that Judge Scullum is authorized to perform judicial duties in the United States District Court for the District of Columbia in, and then it lists, 10 cases. [00:26:22] Speaker 00: Wren, notably, is not one of those cases. [00:26:25] Speaker 00: Secondly, we do not believe the de facto judge doctrine applies. [00:26:28] Speaker 00: We think that Wynn is an opposite for a couple of reasons. [00:26:30] Speaker 00: I mean, first of all, Wynn proves our point, that when a judge is [00:26:35] Speaker 00: author is not authorized to not have the authority to take judicial actions, that decision is void. [00:26:39] Speaker 00: And when it's particularly important that there there was a quorum of authorized judges and the parties didn't raise it until I think very far into the proceedings, the rehearing petition at the Ninth Circuit, if not the Supreme Court, and the Supreme Court said it was still required to hold the judgment void and remand for normal proceedings. [00:26:55] Speaker 00: And finally, we can get the two guys' case to the extent to which there could be some attempt to correct this nunk pro-tunk. [00:27:01] Speaker 00: Two guys is not availing. [00:27:03] Speaker 00: There, it was a senior judge who was authorized to sit in that district. [00:27:06] Speaker 00: And so he only needed the authorization of the chief judge of that court. [00:27:10] Speaker 00: So the chief judge in that footnote says, I did intend him to sit. [00:27:13] Speaker 00: Here, with a situation where the judge is out of the circuit, you need the chief justice. [00:27:17] Speaker 00: And here, we don't have any indication that either the chief judge or the chief justice wanted Judge Scullin to preside over the Rem case. [00:27:23] Speaker 00: Thank you.