370 U.S. 530 (1962)
The Glidden Company was sued by individual employees in New York state court for damages arising from an alleged breach of a collective bargaining agreement.1 The employer removed the action to the United States District Court for the Southern District of New York on the basis of diversity of citizenship.2
A divided panel of the Court of Appeals for the Second Circuit, with Judge J. Warren Madden of the Court of Claims sitting by designation of the Chief Justice under 28 U.S.C. § 293(a), sustained the employees' right to recover. In a separate proceeding, petitioner Lurk was tried and convicted of armed robbery in the United States District Court for the District of Columbia.3 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.4 The Court of Appeals for the District of Columbia Circuit affirmed the conviction.5
Congress enacted legislation in 1953 declaring the Court of Claims to be a court established under Article III and in 1958 made the same declaration for the Court of Customs and Patent Appeals.6 Judges Madden and Jackson had been appointed to their respective courts prior to those enactments and therefore received their initial commissions under the pre-declaration statutory framework.
No challenge to the authority of either designated judge was raised in the district courts or in the courts of appeals.7 The Supreme Court granted certiorari in both cases, limited to the question whether the judgments were vitiated by the respective participation of the two judges.
Whether petitioners may challenge for the first time on appeal the constitutional authority of a Court of Claims judge and a retired Court of Customs and Patent Appeals judge who sat by designation?8
The de facto officer doctrine does not preclude examination on direct review of nonfrivolous constitutional challenges to a judge's authority when the defect implicates basic protections of Article III designed in part for the benefit of litigants.9
Yes. The established facts show that no challenge to the authority of Judge Madden or Judge Jackson was filed in the district courts or courts of appeals in either the Glidden breach-of-contract action or the Lurk armed-robbery prosecution.10 The petitioners first raised the Article III claim on certiorari to the Supreme Court. The rule permits such belated constitutional challenges on direct review, as the interest in preserving the constitutional plan of separation of powers prevails over ordinary forfeiture principles that would otherwise bar review of defects not raised at the earliest practicable moment.11
Petitioners may challenge the constitutional authority of the designated judges for the first time on appeal.12
Whether the Court of Claims and the Court of Customs and Patent Appeals were created as courts under Article III of the Constitution?
Whether a tribunal is recognized as created under Article III depends on whether its establishing legislation complies with the limitations of that article by confining its business to the federal cases and controversies specified in Article III and by according its judges the independence of tenure during good behavior and undiminished compensation expressly or impliedly required.13
Yes. The 1953 and 1958 congressional declarations, supported by legislative history examining the historical materials, expressed the intent that both courts exercise the judicial power under Article III.14 The Court of Claims adjudicates Tucker Act claims arising under federal law and controversies to which the United States is a party.15 The Court of Customs and Patent Appeals reviews customs classifications, patent and trademark matters, all of which fall within the federal-question and party-to-a-controversy heads of jurisdiction.16
Both courts issue final judgments subject to Supreme Court review and operate with the procedural hallmarks of judicial proceedings.17
The Court of Claims and the Court of Customs and Patent Appeals were created as courts under Article III of the Constitution.
Related opinions on this issue
Joined by The Chief Justice
Justice Clark concurred in the judgment that both courts are Article III courts.18 He emphasized that after the 1953 Act the Court of Claims jurisdiction became almost entirely Article III business and that the 1958 Act similarly transformed the Court of Customs and Patent Appeals.19 Clark would not overrule Bakelite and Williams outright but would hold that the courts, if confronted with the minuscule remaining reference or tariff-commission matters, should decline to render advisory opinions while otherwise exercising Article III authority.20
He stressed that the congressional mandate in the 1953 and 1958 Acts should be carried out by treating the courts as Article III tribunals for their primary jurisdiction.21
Joined by Justice Black
Justice Douglas dissented.22 He maintained that both courts were created under Article I to execute legislative powers over payment of debts and collection of customs duties. Douglas argued that statutory tenure alone cannot convert an Article I tribunal into an Article III court and that judges lacking constitutional guarantees of life tenure and irreducible salary cannot be assigned to sit in Article III cases involving life, liberty, or property.23
He contended that the distinction between Article I and Article III courts is intensely practical because it affects the independence required for adjudicating criminal and civil matters under the Bill of Rights.24
Whether judges appointed to the Court of Claims and the Court of Customs and Patent Appeals before the 1953 and 1958 congressional declarations enjoy the tenure and compensation protections of Article III?
Judges appointed to tribunals that Congress has validly constituted under Article III receive the protections of tenure during good behavior and compensation that shall not be diminished during their continuance in office, even if appointed before Congress expressly declared the courts' constitutional status, because the character of the court at the time of adjudication determines the constitutional quality of the judges' tenure.25
Yes. Judges Madden and Jackson were appointed prior to the declarations, yet the courts to which they were appointed are Article III courts. The established facts confirm that both judges enjoyed statutory assurances of tenure and compensation at the time of their service by designation.26 Because the underlying courts exercise the judicial power under Article III, the judges possess the constitutional protections of that article regardless of the date of their initial commissions.
Judges appointed to the Court of Claims and the Court of Customs and Patent Appeals before the 1953 and 1958 congressional declarations enjoy the tenure and compensation protections of Article III.
Related opinions on this issue
Joined by The Chief Justice
Justice Clark agreed that the pre-declaration judges enjoy Article III protections once Congress declared the courts' status.27 He noted that Judge Jackson remained a judge of the Court of Customs and Patent Appeals even after retirement and that the 1958 declaration controlled the status of that judgeship without requiring new appointments.28 Clark stressed that the 1953 and 1958 Acts renounced congressional power to terminate functions or reduce tenure and salary, and that no reappointment was needed despite the change in characterization.29
Joined by Justice Black
Justice Douglas dissented on this point as well.30 He contended that statutory tenure cannot supply the constitutional guarantees required by Article III and that judges whose tenure rests only on legislation cannot constitutionally sit in Article III proceedings.31 Douglas maintained that the judges of these courts were chosen for administrative skills rather than for the qualifications needed to preside over jury trials or to apply the Bill of Rights in cases involving life, liberty, or property.32
Whether the participation of those judges in the two proceedings vitiated the resulting judgments?33
Participation by judges who enjoy Article III tenure and compensation protections does not vitiate judgments rendered in Article III courts, because such judges possess the independence required by the Constitution and the specialized nature of their primary courts does not disable them from adjudicating the ordinary business of the district courts and courts of appeals.34
No. Because the Court of Claims and the Court of Customs and Patent Appeals are Article III courts, Judges Madden and Jackson possessed constitutional tenure and compensation when they sat by designation. The established facts show that the Glidden panel decided a diversity contract claim and that Judge Jackson presided over a criminal trial in the District of Columbia.35 Both matters fall within the regular jurisdiction of Article III courts.36 The specialized experience of the judges does not constitute a due-process disqualification from hearing staple federal cases.37
The participation of those judges in the two proceedings did not vitiate the resulting judgments.38