The Volokh Conspiracy
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The Associated Press (Jessica Gresko) has the details:
A lawsuit over the District of Columbia's strict gun law hit a speed bump Tuesday when an appeals court ruled that a federal judge who halted the law's enforcement didn't have authority to rule on the case.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled that Judge Frederick J. Scullin Jr. overstepped his authority by ruling. The decision sets up the case for another round of legal wrangling.
Writing for the three-judge panel, Judge David B. Sentelle said that Scullin had not been specifically assigned the case, though he had been assigned an earlier, related case. Sentelle wrote that the fact that Scullin had ruled in the newer case was "quite understandable." Scullin, a New York judge, was given authority to oversee a handful of cases in Washington. Those included one involving the city's gun law, but Scullin was not specifically given authority to oversee the follow-up case.
"We realize that we are undoing the work of litigation to date, but we have no choice," Sentelle wrote for the court in a five-page opinion.
The case will now be re-assigned to a new judge so that the legal challenge can continue, said Alan Gura, a lawyer for the group challenging the law. The ruling will have no effect on the current state of gun laws in the city, Gura said, because Scullin's ruling halting the law's enforcement had been itself been put on hold by the appeals court.
The opinion is here (some paragraph breaks added):
Appellants District of Columbia and the District's Police Chief appeal from the grant of a preliminary injunction restraining enforcement of a "good reason" standard in the D.C. Code provision governing the issuance of licenses for the carrying of concealed weapons.
Although the parties fully briefed the case on the merits, we will not reach the substantive issues raised in their original submissions, as we must dispose of the matter on jurisdictional grounds. The controlling fact in this case is the identity of the judge who decided it in the district court—The Honorable Senior United States District Judge Frederick J. Scullin, Jr., of the Northern District of New York. The difficulty in this case is evident from the office of the deciding judge. Judge Scullin is a Judge of the Northern District of New York, not of the United States District Court for the District of Columbia. Under the Constitution and the statutes, the President, with the advice and consent of the Senate, appoints a judge to the district court of a particular district, where he exercises the jurisdiction of the court.
It is possible for a district judge, including a senior judge, to lawfully adjudicate matters in another district. However, in order for a judge to exercise this judicial authority in a district located outside the circuit of his home district, the judge must be "designated and assigned by the Chief Justice."
Before the visiting judge may be designated and assigned by the Chief Justice, the chief judge of the receiving district must "present . . . a certificate of necessity." Then, and only then, may the Chief Justice of the United States "designate and assign" the judge duties in the receiving district. Id. Although Judge Scullin had served under a properly issued designation, the difficulty in the present case is that designation was limited to specific and enumerated cases. The present litigation is not one of those cases.
The error in this case is quite understandable. The calendar committee of the district court assigned the matter to Judge Scullin because it deemed the case to be related to another case over which Judge Scullin presided. The difficulty is, while the earlier case was within the Chief Justice's designation, the present one is not.
Although we are satisfied the statutes clearly determine on their face that Judge Scullin had no authority to decide this matter, there is also clear precedent compelling that result. In Frad v. Kelly, 302 U.S. 312 (1937), a district judge sat as a visiting judge under a designation for a specified period of time. After the expiration of that time, he issued an order in a case which he had previously heard in the visited district. The Supreme Court concluded that the order was "null" because the judge by that time had no authority in the district in which he issued the order.
The Court explained that while a visiting judge could "perform the functions which are incidental and supplementary to the duties performed by him while present and acting in the designated district," neither the statute nor the designation empowered him to act beyond the temporal limitations under which he was designated. In explaining its holding, the Court noted that the statutory limitations on the authority of visiting judges are jurisdictional.
We conclude that Frad controls this case. Like the designated judge in Frad, Judge Scullin had a limited 5 designation that did not extend beyond the specifications of that designation. In Frad, the breached limitation was temporal; in this case, it is case designation. In either case, a judge acting beyond his designation acts without jurisdiction.
Appellees argue that the de facto officer doctrine supports Judge Scullin's jurisdiction, but that doctrine does not apply. The de facto officer doctrine applies in the context of technical defects and confers validity upon acts performed by a person acting under color of official title, even if it is later determined that the title is deficient. The designation for specific cases is not a technical matter. It is in fact jurisdictional.
We realize that we are undoing the work of litigation to date, but we have no choice. As the Supreme Court noted in Frad, an order entered by a judge without jurisdiction is "null." Of course in Frad, the Supreme Court caused the undoing of litigation which had gone far beyond the stage we address today.
Similarly, in United States v. American-Foreign Steamship, 363 U.S. 685 (1960), the Supreme Court vacated an en banc decision of a court of appeals when a senior judge sat with the en banc court, in violation of the statute. There, as here, no party challenged the judge's authority until after the decision issued. Nonetheless, because the mere participation of one of a group of judges was beyond the statutory limits of that judge's authority, the judgment was undone….
We have no choice but to vacate the order entered, as it was beyond the jurisdiction of the issuing judge.