In Re Stephen J. Williams

Two of the three judges who decided Petitioner’s appeals were named defendants in a pending civil action brought by Petitioner, requiring their disqualification under 28 U.S.C. § 455(b)(5)(i). With only one authorized judge on the panel, no lawful quorum existed under 28 U.S.C. § 46(d). And because the SDNY action names all thirteen active judges of the Second Circuit as defendants, the en banc court is equally foreclosed — every active circuit judge is subject to the same disqualification. The questions are:

1. Whether mandamus is mandated to vacate orders issued by a panel that lacked statutory authority to act under 28 U.S.C. § 455(b)(5)(i), where the participation of the disqualified judges is itself the complete defect, the quorum failure independently confirms that no lawful tribunal existed, and — because the entire active bench of the circuit is subject to the same disqualification — no forum within the circuit is capable of providing relief?

2. Whether this Court’s constitutional responsibility to ensure that the judicial power of the United States is exercised only by lawfully constituted courts requires it to act when orders issued by a panel lacking statutory authority stand unremedied as purported exercises of that power?