US (United States) Code. Title 28. Part I: Organization of courts. Chapter 3: Courts of appeals

Codificación normativa de EEUU (Estados Unidos). Legislación federal estadounidense # Judiciary and judicial procedure

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-CITE-

28 USC CHAPTER 3 - COURTS OF APPEALS 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART I - ORGANIZATION OF COURTS

CHAPTER 3 - COURTS OF APPEALS

-HEAD-

CHAPTER 3 - COURTS OF APPEALS

-MISC1-

Sec.

41. Number and composition of circuits.

42. Allotment of Supreme Court justices to circuits.

43. Creation and composition of courts.

44. Appointment, tenure, residence and salary of circuit

judges.

45. Chief judges; precedence of judges.

46. Assignment of judges; panels; hearings; quorum.

47. Disqualification of trial judge to hear appeal.

48. Terms of court.

49. Assignment of judges to division to appoint

independent counsels.

AMENDMENTS

1983 - Pub. L. 97-409, Sec. 2(b)(2), Jan. 3, 1983, 96 Stat. 2039,

substituted "independent counsels" for "special prosecutors" in

item 49.

1978 - Pub. L. 95-521, title VI, Sec. 602(b), Oct. 26, 1978, 92

Stat. 1874, added item 49.

Pub. L. 95-486, Sec. 5(c), Oct. 20, 1978, 92 Stat. 1633,

substituted "panels" for "divisions" in item 46.

-End-

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28 USC Sec. 41 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART I - ORGANIZATION OF COURTS

CHAPTER 3 - COURTS OF APPEALS

-HEAD-

Sec. 41. Number and composition of circuits

-STATUTE-

The thirteen judicial circuits of the United States are

constituted as follows:

Circuits Composition

--------------------------------------------------------------------

District of Columbia District of Columbia.

First Maine, Massachusetts, New Hampshire, Puerto

Rico, Rhode Island.

Second Connecticut, New York, Vermont.

Third Delaware, New Jersey, Pennsylvania, Virgin

Islands.

Fourth Maryland, North Carolina, South Carolina,

Virginia, West Virginia.

Fifth District of the Canal Zone, Louisiana,

Mississippi, Texas.

Sixth Kentucky, Michigan, Ohio, Tennessee.

Seventh Illinois, Indiana, Wisconsin.

Eighth Arkansas, Iowa, Minnesota, Missouri,

Nebraska, North Dakota, South Dakota.

Ninth Alaska, Arizona, California, Idaho,

Montana, Nevada, Oregon, Washington, Guam,

Hawaii.

Tenth Colorado, Kansas, New Mexico, Oklahoma,

Utah, Wyoming.

Eleventh Alabama, Florida, Georgia.

Federal All Federal judicial districts.

--------------------------------------------------------------------

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 870; Oct. 31, 1951, ch. 655, Sec.

34, 65 Stat. 723; Pub. L. 96-452, Sec. 2, Oct. 14, 1980, 94 Stat.

1994; Pub. L. 97-164, title I, Sec. 101, Apr. 2, 1982, 96 Stat.

25.)

-MISC1-

HISTORICAL AND REVISION NOTES

Based on title 28, U.S.C. 1940 ed., Sec. 211, and section 864 of

title 48, U.S.C., 1940 ed., Territories and Insular Possessions

(Apr. 12, 1900, ch. 191, Sec. 35, 31 Stat. 85; Mar. 3, 1911, ch.

231, Sec. 116, 36 Stat. 1131; Jan. 28, 1915, ch. 22, Secs. 1, 2, 38

Stat. 803; Mar. 2, 1917, ch. 145, Sec. 42, 39 Stat. 966; Feb. 13,

1925, ch. 229, Secs. 1, 13, 43 Stat. 936, 942; Jan. 31, 1928, ch.

14, Sec. 1, 45 Stat. 54; Feb. 28, 1929, ch. 363, Sec. 1, 45 Stat.

1346; May 17, 1932, ch. 190, 47 Stat. 158).

Form of section was simplified.

The District of Columbia was added as a separate circuit. This is

in accord with the decision of the Supreme Court of the United

States which held the Court of Appeals for the District of Columbia

to be a circuit court of appeals within the Transfer Act of Sept.

14, 1922, ch. 305, 42 Stat. 837, incorporated in the Judicial Code

as Sec. 238(a), but repealed by act Feb. 13, 1925, ch. 229, Sec.

13, 43 Stat. 942. (See Swift and Co. v. U.S., 1928, 48 S.Ct. 311,

276 U.S. 311, 72 L.Ed. 587.)

In recognizing the District of Columbia as a separate circuit,

the Supreme Court recently used this language: "* * * the eleven

circuits forming the single federal judicature * * *". Comm'r. v.

Bedford's Estate, 65 S.Ct. 1157, at page 1160, 325 U.S. 283, 89

L.Ed. 611.

See section 17 of title 28, U.S.C., 1940 ed., providing, "For the

purposes of sections 17-23 of this title, the District of Columbia

shall be deemed to be a judicial circuit * * *", and act Dec. 23,

1944, ch. 724, 58 Stat. 925, which amended section 215 of title 28,

U.S.C., 1940 ed., incorporated in section 42 of this title. Such

amendment provided that for the purposes of said section 215 "the

District of Columbia shall be deemed to be a judicial circuit."

Many other acts of Congress have recognized the District of

Columbia as a separate circuit. (See the following acts; Aug. 24,

1937, ch. 754, 50 Stat. 751; Feb. 11, 1938, ch. 25, 52 Stat. 28;

Aug. 5, 1939, ch. 433, 53 Stat. 1204; Aug. 7, 1939, ch. 501, 53

Stat. 1223; Dec. 29, 1942, ch. 835, 56 Stat. 1094; May 11, 1944,

ch. 192, 58 Stat. 218; Dec. 23, 1944, ch. 724, 58 Stat. 925.)

See also the following acts recognizing the Court of Appeals for

the District of Columbia as a circuit court of appeals: Aug. 15,

1921, ch. 64, 42 Stat. 162; July 5, 1935, ch. 372, 49 Stat. 454;

Aug. 24, 1937, ch. 754, 50 Stat. 751; Apr. 6, 1942, ch. 210, 56

Stat. 198; May 9, 1942, ch. 295, 56 Stat. 271. See also Rule 81(d)

Federal Rules of Civil Procedure.

In the following cases the Supreme Court of the United States has

recognized the status of the Court of Appeals of the District of

Columbia as a permanent establishment within the federal judicial

system: O'Donoghue v. United States, 1933, 53 S.Ct. 740, 289 U.S.

516, 77 L.Ed. 1356; Federal Trade Commission v. Klesner, 1927, 47

S.Ct. 557, 274 U.S. 145, 71 L.Ed. 972; Claiborne-Annapolis Ferry v.

United States, 1932, 52 S.Ct. 440, 285 U.S. 382, 76 L.Ed. 808;

United States v. California Canneries, 1929, 49 S.Ct. 423, 279 U.S.

553, 73 L.Ed. 838.

Alaska, Canal Zone, and Virgin Islands were added to the 9th,

5th, and 3rd Circuits, respectively, to conform to section 1294 of

this title.

Some of the provisions of section 864 of title 48, U.S.C., 1940

ed., have been retained in said title. For those which were

incorporated in other sections of this revised title, see

Distribution Table.

AMENDMENTS

1982 - Pub. L. 97-164 increased number of judicial circuits from

twelve to thirteen through addition of Federal circuit composed of

all Federal judicial districts.

1980 - Pub. L. 96-452 substituted "twelve" for "eleven" in text

preceding table, substituted "District of the Canal Zone" for

"Alabama, Canal Zone, Florida, Georgia" in item relating to fifth

circuit, and added new item relating to eleventh circuit.

1951 - Act Oct. 31, 1951, inserted reference to Guam in that part

relating to composition of Ninth judicial circuit.

EFFECTIVE DATE OF 1982 AMENDMENT

Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section

402 of Pub. L. 97-164, set out as a note under section 171 of this

title.

EFFECTIVE DATE OF 1980 AMENDMENT

Section 12 of Pub. L. 96-452 provided that: "This Act and the

amendments made by this Act [amending this section and sections 44

and 48 of this title, and enacting provisions set out as notes

under this section] shall take effect on October 1, 1981."

-TRANS-

TERMINATION OF UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE

CANAL ZONE

For termination of the United States District Court for the

District of the Canal Zone at end of the "transition period", being

the 30-month period beginning Oct. 1, 1979, and ending midnight

Mar. 31, 1982, see Paragraph 5 of Article XI of the Panama Canal

Treaty of 1977 and sections 2101 and 2201 to 2203 of Pub. L. 96-70,

title II, Sept. 27, 1979, 93 Stat. 493, formerly classified to

sections 3831 and 3841 to 3843, respectively, of Title 22, Foreign

Relations and Intercourse.

-MISC2-

COMMISSION ON STRUCTURAL ALTERNATIVES FOR THE FEDERAL COURTS OF

APPEALS

Pub. L. 105-119, title III, Sec. 305, Nov. 26, 1997, 111 Stat.

2491, established Commission on Structural Alternatives for the

Federal Courts of Appeals, directed Commission to study division of

United States into judicial circuits, study structure and alignment

of Federal Court of Appeals system, and report to President and

Congress its recommendations of changes needed to expeditiously and

effectively dispose of caseload of Federal Courts of Appeals,

consistent with fundamental concepts of fairness and due process,

provided for Commission's membership and compensation of members

and staff, authorized appropriations, and provided for termination

of Commission 90 days after submission of its report.

ASSIGNMENT OF JUDGES AND PROCEDURE FOR ADMINISTRATION OF PENDING

CASES WITH REGARD TO REORGANIZATION OF THE FIFTH CIRCUIT COURT OF

APPEALS

Sections 5 to 10 of Pub. L. 96-452 provided that:

"Sec. 5. Each circuit judge in regular active service of the

former fifth circuit whose official station on the day before the

effective date of this Act [Oct. 1, 1981] -

"(1) is in Louisiana, Mississippi, or Texas is assigned as a

circuit judge of the new fifth circuit; and

"(2) is in Alabama, Florida, or Georgia is assigned as a

circuit judge of the eleventh circuit.

"Sec. 6. Each judge who is a senior judge of the former fifth

circuit on the day before the effective date of this Act [Oct. 1,

1981] may elect to be assigned to the new fifth circuit or to the

eleventh circuit and shall notify the Director of the

Administrative Office of the United States Courts of such election.

"Sec. 7. The seniority of each judge -

"(1) who is assigned under section 5 of this Act; or

"(2) who elects to be assigned under section 6 of this Act;

shall run from the date of commission of such judge as a judge of

the former fifth circuit.

"Sec. 8. The eleventh circuit is authorized to hold terms or

sessions of court at New Orleans, Louisiana, until such time as

adequate facilities for such court are provided in Atlanta,

Georgia.

"Sec. 9. The provisions of the following paragraphs of this

section apply to any case in which, on the day before the effective

date of this Act [Oct. 1, 1981], an appeal or other proceeding has

been filed with the former fifth circuit:

"(1) If the matter has been submitted for decision, further

proceedings in respect of the matter shall be had in the same

manner and with the same effect as if this Act [amending sections

41, 44, and 48 of this title, and enacting provisions set out as

notes under this section] had not been enacted.

"(2) If the matter has not been submitted for decision, the

appeal or proceeding, together with the original papers, printed

records, and record entries duly certified, shall, by appropriate

orders, be transferred to the court to which it would have gone

had this Act been in full force and effect at the time such

appeal was taken or other proceeding commenced, and further

proceedings in respect of the case shall be had in the same

manner and with the same effect as if the appeal or other

proceeding had been filed in such court.

"(3) A petition for rehearing or a petition for rehearing en

banc in a matter decided before the effective date of this Act

[Oct. 1, 1981], or submitted before the effective date of this

Act and decided on or after the effective date as provided in

paragraph (1) of this section, shall be treated in the same

manner and with the same effect as though this Act had not been

enacted. If a petition for rehearing en banc is granted, the

matter shall be reheard by a court comprised as though this Act

had not been enacted.

"Sec. 10. As used in sections 5, 6, 7, 8, and 9 of this Act, the

term -

"(1) 'former fifth circuit' means the fifth judicial circuit of

the United States as in existence on the day before the effective

date of this Act [Oct. 1, 1981];

"(2) the term 'new fifth circuit' means the fifth judicial

circuit of the United States established by the amendment made by

section 2(2) of this Act [amending item relating to the fifth

circuit in this section]; and

"(3) the term 'eleventh circuit' means the eleventh judicial

circuit of the United States established by the amendment made by

section 2(3) of this Act [adding item relating to the eleventh

circuit in this section]."

ADMINISTRATIVE ACTION BY FIFTH CIRCUIT COURT OF APPEALS;

TERMINATION OF COURT

Section 11 of Pub. L. 96-452 provided that: "The court of appeals

for the fifth circuit as constituted on the day before the

effective date of this Act [Oct. 1, 1981] may take such

administrative action as may be required to carry out this Act

[amending sections 41, 44, and 48 of this title, and enacting

provisions set out as notes under this section]. Such court shall

cease to exist for administrative purposes on July 1, 1984."

APPEALS COURT ADMINISTRATIVE UNITS

Pub. L. 95-486, Sec. 6, Oct. 20, 1978, 92 Stat. 1633, provided

that: "Any court of appeals having more than 15 active judges may

constitute itself into administrative units complete with such

facilities and staff as may be prescribed by the Administrative

Office of the United States Courts, and may perform its en banc

function by such number of members of its en banc courts as may be

prescribed by rule of the court of appeals."

NORTHERN MARIANA ISLANDS

Pub. L. 95-157, Sec. 1(a), Nov. 8, 1977, 91 Stat. 1265, provided

that the Northern Mariana Islands be part of the same judicial

circuit as Guam, i.e., the Ninth Circuit. See section 1694(a) of

Title 48, Territories and Insular Possessions.

COMMISSION ON REVISION OF THE FEDERAL APPELLATE SYSTEM

Pub. L. 92-489, Oct. 13, 1972, 86 Stat. 807, as amended by Pub.

L. 93-420, Sept. 19, 1974, 88 Stat. 1153, provided for the

establishment, membership, travel expenses, personnel, experts and

consultants, administrative and research services, cooperation of

other governmental agencies, and appropriations of not to exceed

$606,000 of a Commission on Revision of the Federal Court Appellate

System which Commission was to study the geographical division of

the judicial circuits and the structure and internal procedures of

the appellate court system and to report to the President,

Congress, and the Chief Justice its recommendations for changes in

the geographical boundaries of the circuits to expedite disposition

of judicial business and for changes in the appellate court

structure to expedite disposition of the appellate courts caseload

in a manner consistent with fundamental concepts of fairness and

due process. The Commission was to cease existence ninety days

after submission of its final report, which report was submitted

June 20, 1975.

CONTINUATION OF ORGANIZATION OF COURT

Section 2(b) of act June 25, 1948, ch. 646, 62 Stat. 985,

provided in part that the provisions of this title as set out in

section 1 of act June 25, 1948, with respect to the organization of

each of the several courts therein provided, shall be construed as

continuations of existing law, and the tenure of the judges,

officers, and employees thereof and of the United States attorneys

and marshals and their deputies and assistants, in office on Sept.

1, 1948, shall not be affected by its enactment, but each of them

shall continue to serve in the same capacity under the appropriate

provisions of this title, pursuant to his prior appointment.

-End-

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28 USC Sec. 42 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART I - ORGANIZATION OF COURTS

CHAPTER 3 - COURTS OF APPEALS

-HEAD-

Sec. 42. Allotment of Supreme Court justices to circuits

-STATUTE-

The Chief Justice of the United States and the associate justices

of the Supreme Court shall from time to time be allotted as circuit

justices among the circuits by order of the Supreme Court. The

Chief Justice may make such allotments in vacation.

A justice may be assigned to more than one circuit, and two or

more justices may be assigned to the same circuit.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 870.)

-MISC1-

HISTORICAL AND REVISION NOTES

Based on title 28, U.S.C., 1940 ed., Sec. 215 (Mar. 3, 1911, ch.

231, Sec. 119, 36 Stat. 1131; Dec. 23, 1944, ch. 724, 58 Stat.

925).

The authority of the Chief Justice in vacation to assign a

circuit justice to more than one circuit was extended by omitting

the phrase "whenever by reason of death or resignation, no Justice

is allotted to a circuit."

The provision in section 215 of Title 28, U.S.C., 1940 ed., that,

for the purposes of said section, the "District of Columbia shall

be deemed to be a judicial circuit," was omitted, since the

District of Columbia is made a judicial circuit by section 41 of

this title.

The last paragraph was added to make clear the intent of Congress

that the powers of the Court to assign the justices among the

several circuits should be completely flexible.

Changes were made in phraseology.

-End-

-CITE-

28 USC Sec. 43 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART I - ORGANIZATION OF COURTS

CHAPTER 3 - COURTS OF APPEALS

-HEAD-

Sec. 43. Creation and composition of courts

-STATUTE-

(a) There shall be in each circuit a court of appeals, which

shall be a court of record, known as the United States Court of

Appeals for the circuit.

(b) Each court of appeals shall consist of the circuit judges of

the circuit in regular active service. The circuit justice and

justices or judges designated or assigned shall be competent to sit

as judges of the court.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 870; Pub. L. 88-176, Sec. 1(a),

Nov. 13, 1963, 77 Stat. 331.)

-MISC1-

HISTORICAL AND REVISION NOTES

Based on title 28, U.S.C., 1940 ed., Sec. 212 (Mar. 3, 1911, ch.

231, Sec. 117, 36 Stat. 1131).

The provision in section 212 of title 28, U.S.C., 1940 ed., for a

three-judge court of appeals was permissive and did not limit the

power of the court to sit in banc. Thus, subsection (b) reflects

present status of law, namely, that court is composed of not only

circuit judges of the circuit in active service, of whom there may

be more than three, but the circuit justice or justices and judges

who may be assigned or designated to the court. (See Textile Mills

Securities Corporation v. Commissioner of Internal Revenue, 1942,

62 S.Ct. 272, 314 U.S. 326, 86 L.Ed. 249 and Reviser's Notes under

section 46 of this title.)

Words "with appellate jurisdiction, as hereinafter limited and

established" were omitted as covered by section 1291 et seq. of

this title, conferring appellate jurisdiction on the courts of

appeals.

The term "court of appeals" was substituted in this section and

throughout this title for the term "circuit court of appeals."

Provision for a quorum of the court is now covered by section

46(d) of this title.

AMENDMENTS

1963 - Subsec. (b). Pub. L. 88-176 inserted "regular" before

"active service".

-CHANGE-

CHANGE OF NAME OF COURT

Section 2(b) of act June 25, 1948, provided in part that each

circuit court of appeals should, after Sept. 1, 1948, be known as a

United States Court of Appeals, but that the enactment of act June

25, 1948 should in no way entail any loss of rights, interruption

of jurisdiction, or prejudice to matters pending in any such courts

on Sept. 1, 1948.

-End-

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28 USC Sec. 44 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART I - ORGANIZATION OF COURTS

CHAPTER 3 - COURTS OF APPEALS

-HEAD-

Sec. 44. Appointment, tenure, residence and salary of circuit

judges

-STATUTE-

(a) The President shall appoint, by and with the advice and

consent of the Senate, circuit judges for the several circuits as

follows:

Circuits Number of

Judges

--------------------------------------------------------------------

District of Columbia 12

First 6

Second 13

Third 14

Fourth 15

Fifth 17

Sixth 16

Seventh 11

Eighth 11

Ninth 28

Tenth 12

Eleventh 12

Federal 12.

--------------------------------------------------------------------

(b) Circuit judges shall hold office during good behavior.

(c) Except in the District of Columbia, each circuit judge shall

be a resident of the circuit for which appointed at the time of his

appointment and thereafter while in active service. While in active

service, each circuit judge of the Federal judicial circuit

appointed after the effective date of the Federal Courts

Improvement Act of 1982, and the chief judge of the Federal

judicial circuit, whenever appointed, shall reside within fifty

miles of the District of Columbia. In each circuit (other than the

Federal judicial circuit) there shall be at least one circuit judge

in regular active service appointed from the residents of each

state (!1) in that circuit.

(d) Each circuit judge shall receive a salary at an annual rate

determined under section 225 of the Federal Salary Act of 1967 (2

U.S.C. 351-361), as adjusted by section 461 of this title.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 871; Aug. 3, 1949, ch. 387, Sec.

1, 63 Stat. 493; Feb. 10, 1954, ch. 6, Sec. 1, 68 Stat. 8; Mar. 2,

1955, ch. 9, Sec. 1(b), 69 Stat. 10; Pub. L. 87-36, Sec. 1(b), May

19, 1961, 75 Stat. 80; Pub. L. 88-426, title IV, Sec. 403(b), Aug.

14, 1964, 78 Stat. 434; Pub. L. 89-372, Sec. 1(b), Mar. 18, 1966,

80 Stat. 75; Pub. L. 90-347, Sec. 3, June 18, 1968, 82 Stat. 184;

Pub. L. 94-82, title II, Sec. 205(b)(2), Aug. 9, 1975, 89 Stat.

422; Pub. L. 95-486, Sec. 3(b), Oct. 20, 1978, 92 Stat. 1632; Pub.

L. 96-452, Sec. 3, Oct. 14, 1980, 94 Stat. 1994; Pub. L. 97-164,

title I, Sec. 102, Apr. 2, 1982, 96 Stat. 25; Pub. L. 98-353, title

II, Sec. 201(b), July 10, 1984, 98 Stat. 346; Pub. L. 101-650,

title II, Sec. 202(b), Dec. 1, 1990, 104 Stat. 5099; Pub. L.

102-198, Sec. 10(c), Dec. 9, 1991, 105 Stat. 1626; Pub. L. 105-119,

title III, Sec. 307, Nov. 26, 1997, 111 Stat. 2493.)

-MISC1-

HISTORICAL AND REVISION NOTES

Based on title 28, U.S.C., 1940 ed., Sec. 213, and sections

11-201, 11-202, District of Columbia Code, 1940 ed. (Feb. 9, 1893,

ch. 74, Sec. 1, 27 Stat. 434; Mar. 3, 1901, ch. 854, Secs. 221,

222, 31 Stat. 1224; Mar. 3, 1911, ch. 231, Sec. 118, 36 Stat. 1131;

Jan. 13, 1912, ch. 9, 37 Stat. 52; Feb. 25, 1919, ch. 29, Sec. 2,

40 Stat. 1156; Sept. 14, 1922, ch. 306, Sec. 6, 42 Stat. 840; Mar.

3, 1925, ch. 437, 43 Stat. 1116; Dec. 13, 1926, ch. 6, Sec. 1, 44

Stat. 919; Feb. 28, 1929, ch. 363, Sec. 2, 45 Stat. 1347; Mar. 1,

1929, ch. 413, Secs. 1, 2, 45 Stat. 1414; June 10, 1930, ch. 437,

46 Stat. 538; June 10, 1930, ch. 438, 46 Stat. 538; June 19, 1930,

ch. 538, 46 Stat. 785; June 16, 1933, ch. 102, 48 Stat. 310; Aug.

2, 1935, ch. 425, Sec. 1, 49 Stat. 508; June 24, 1936, ch. 735,

Sec. 1, 49 Stat. 1903; Apr. 14, 1937, ch. 80, 50 Stat. 64; May 31,

1938, ch. 290, Secs. 1, 3, 52 Stat. 584, 585; May 24, 1940, ch.

209, Sec. 1, 54 Stat. 219; Dec. 14, 1942, ch. 731, 56 Stat. 1050;

Dec. 7, 1944, ch. 521, Sec. 1, 58 Stat. 796; July 31, 1946, ch.

704, Sec. 1, 60 Stat. 716).

This section includes the members of the United States Court of

Appeals for the District of Columbia and designates them as

"judges" rather than as "justices", thus harmonizing it with the

provisions of section 41 of this title, which specifically

designates the District of Columbia as a judicial circuit of the

United States. In doing so it consolidates sections 11-201, 11-202

of the District of Columbia Code, 1940 ed., which provided for one

"chief justice" and five associate "justices."

Act February 9, 1893, established a court of appeals for the

District of Columbia to consist of one chief justice and two

associate justices whose jurisdiction was almost entirely to review

the judgments of the Supreme Court of the District of Columbia, the

name of which was changed in 1936 to the District Court of the

United States for the District of Columbia. Circuit courts were

established by the first Judiciary Act of September 24, 1789, Sec.

4, and R.S. Sec. 608, enacted June 22, 1874. R.S. Sec. 605 provided

that the words "circuit justice" and "justice of a circuit" should

designate the justice of the Supreme Court of the United States

allotted to any circuit; that "judge" when applied to any circuit

included such justice.

The Judiciary Appropriation Act, 1945, Act June 26, 1944, ch.

277, Sec. 202, 58 Stat. 358, provided that as used in that Act,

"the term 'circuit court of appeals' includes the United States

Court of Appeals for the District of Columbia; the term 'senior

circuit judge' includes the Chief Justice of the United States

Court of Appeals for the District of Columbia; and the term

'circuit judge' includes associate justice of the United States

Court of Appeals for the District of Columbia; and the term 'judge'

includes justice."

Provisions in section 11-202 of the District of Columbia Code,

1940 ed., and section 213 of title 28, U.S.C., 1940 ed., for

payment of salaries in monthly installments were omitted, since

time of payment is a matter of administrative convenience (20 Comp.

Gen. 834).

The exception in subsection (c) extends to circuit judges in the

District of Columbia the effect of the recent decision in U.S. ex

rel. Laughlin v. Eicher, D.C. 1944, 56 F.Supp. 972, holding that

residence requirement of section 1 of title 28, U.S.C., 1940 ed.,

did not apply to district judges in the District of Columbia. (See

Reviser's Note under section 134 of this title.)

The provision in section 213 of the title 28, U.S.C., 1940 ed.,

that "it shall be the duty of each circuit judge in each circuit to

sit as one of the judges of the circuit court of appeals in that

circuit from time to time according to law," was omitted as

unnecessary since the duty to serve is implied by the creation and

composition of the court in section 43 of this title.

Last sentence, providing that nothing in section 213 of title 28,

U.S.C., 1940 ed., should prevent a circuit judge from holding

district court as provided by law, was omitted as unnecessary. (See

section 291 of this title authorizing assignments to district

courts.)

Subsection (b) was added in conformity with the U.S.

Constitution, art. 3.

Changes were made in phraseology.

-REFTEXT-

REFERENCES IN TEXT

The effective date of the Federal Courts Improvement Act of 1982,

referred to in subsec. (c), is the effective date of Pub. L.

97-164, Oct. 1, 1982. See Effective Date of 1982 Amendment note set

out under section 171 of this title.

Section 225 of the Federal Salary Act of 1967, referred to in

subsec. (d), is section 225 of Pub. L. 90-206, Dec. 16, 1967, 81

Stat. 642, as amended, which is classified to chapter 11 (Sec. 351

et seq.) of Title 2, The Congress.

-MISC2-

AMENDMENTS

1997 - Subsec. (c). Pub. L. 105-119 inserted at end "In each

circuit (other than the Federal judicial circuit) there shall be at

least one circuit judge in regular active service appointed from

the residents of each state in that circuit."

1991 - Subsec. (c). Pub. L. 102-198 substituted "the Federal

Courts Improvement Act of 1982" for "this Act".

1990 - Subsec. (a). Pub. L. 101-650 altered number of permanent

circuit judgeships in named circuits as follows:

Circuits Former New

--------------------------------------------------------------------

Third 12 14

Fourth 11 15

Fifth 16 17

Sixth 15 16

Eighth 10 11

Tenth 10 12

--------------------------------------------------------------------

1984 - Subsec. (a). Pub. L. 98-353 altered number of permanent

circuit judgeships in named circuits as follows:

Circuits Former New

--------------------------------------------------------------------

District of Columbia 11 12

First 4 6

Second 11 13

Third 10 12

Fourth 10 11

Fifth 14 16

Sixth 11 15

Seventh 9 11

Eighth 9 10

Ninth 23 28

Tenth 8 10

Eleventh 12 12

Federal 12 12

--------------------------------------------------------------------

1982 - Subsec. (a). Pub. L. 97-164, Sec. 102(a), inserted item

relating to Federal circuit with 12 judges.

Subsec. (c). Pub. L. 97-164, Sec. 102(b), inserted provision

relating to requirement that judges of Federal judicial circuit

reside within fifty miles of the District of Columbia.

1980 - Subsec. (a). Pub. L. 96-452 substituted "14" for "26" in

item relating to fifth circuit, and added item relating to eleventh

circuit.

1978 - Subsec. (a). Pub. L. 95-486 altered number of permanent

circuit judgeships in the named circuits as follows:

Circuits Former New

--------------------------------------------------------------------

District of Columbia 9 11

First 3 4

Second 9 11

Third 9 10

Fourth 7 10

Fifth 15 26

Sixth 9 11

Seventh 8 9

Eighth 8 9

Ninth 13 23

Tenth 7 8

--------------------------------------------------------------------

1975 - Subsec. (d). Pub. L. 94-82 substituted provision that each

circuit judge shall receive a salary at an annual rate determined

under section 225 of the Federal Salary Act of 1967, as adjusted by

section 461 of this title, for provision that each circuit judge

shall receive a salary of $33,000 a year.

1968 - Subsec. (a). Pub. L. 90-347 increased the number of

circuit judges in the enumerated circuits as follows: Third

Circuit, eight to nine; Fifth Circuit, nine to fifteen; Sixth

Circuit, eight to nine; Ninth Circuit, nine to thirteen, and Tenth

Circuit, six to seven.

1966 - Subsec. (a). Pub. L. 89-372 increased the number of

circuit judges in the enumerated circuits as follows: Fourth

Circuit, five to seven; Sixth Circuit, six to eight; Seventh

Circuit, seven to eight; Eighth Circuit, seven to eight.

1964 - Subsec. (d). Pub. L. 88-426 increased the salary of the

circuit judges from $25,500 to $33,000.

1961 - Subsec. (a). Pub. L. 87-36 increased the number of circuit

judges in the enumerated circuits, as follows: Second Circuit, six

to nine; Third Circuit, seven to eight; Fourth Circuit, three to

five; Fifth Circuit, seven to nine; Seventh Circuit, six to seven;

and Tenth Circuit, five to six.

1955 - Subsec. (d). Act Mar. 2, 1955, increased the salary of

circuit judges from "$17,500" a year to "$25,500".

1954 - Subsec. (a). Act Feb. 10, 1954, increased the number of

circuit judges in the Fifth Circuit from six to seven, and in the

Ninth Circuit from seven to nine.

1949 - Subsec. (a). Act Aug. 3, 1949, increased the number of

circuit judges for the District of Columbia from six to nine, for

the third circuit from six to seven, for the seventh circuit from

five to six, and for the tenth circuit from four to five.

EFFECTIVE DATE OF 1990 AMENDMENT

Section 206 of title II of Pub. L. 101-650 provided that: "This

title [amending this section and section 133 of this title and

enacting provisions set out as notes under this section and

sections 133 and 331 of this title] shall take effect on the date

of the enactment of this title [Dec. 1, 1990]."

EFFECTIVE DATE OF 1982 AMENDMENT

Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section

402 of Pub. L. 97-164, set out as a note under section 171 of this

title.

EFFECTIVE DATE OF 1980 AMENDMENT

Amendment by Pub. L. 96-452 effective Oct. 1, 1981, see section

12 of Pub. L. 96-452, set out as a note under section 41 of this

title.

EFFECTIVE DATE OF 1964 AMENDMENT

Amendment by Pub. L. 88-426 effective on first day of first pay

period which begins on or after July 1, 1964, except to extent

provided in section 501(c) of Pub. L. 88-426, see section 501 of

Pub. L. 88-426.

EFFECTIVE DATE OF 1955 AMENDMENT

Amendment by act Mar. 2, 1955, effective Mar. 1, 1955, see

section 5 of act Mar. 2, 1955, set out as a note under section 31

of Title 2, The Congress.

NOMINATION TO FEDERAL JUDGESHIP ON NONDISCRIMINATORY BASIS

Section 211 of Pub. L. 98-353 provided that: "It is the sense of

the Congress that the President, in selecting individuals for

nomination to the Federal judgeships created by this Act [see Short

Title of 1984 Amendment note set out under section 151 of this

title], shall give due consideration to qualified individuals

without regard to race, color, sex, religion, or national origin."

CONTINUED SERVICE OF JUDGES

Section 165 of Pub. L. 97-164 provided that judges of United

States Court of Claims and of United States Court of Customs and

Patent Appeals in regular active service on Oct. 1, 1982, would

continue in office as judges of United States Court of Appeals for

the Federal Circuit and senior judges of United States Court of

Claims and of United States Court of Customs and Patent Appeals on

Oct. 1, 1982, would continue in office as senior judges of United

States Court of Appeals for the Federal Circuit.

CONGRESSIONAL STATEMENT REGARDING APPOINTMENT OF JUDGES

Section 168 of Pub. L. 97-164 provided that: "The Congress -

"(1) takes notice of the fact that the quality of the Federal

judiciary is determined by the competence and experience of its

judges; and

"(2) suggests that the President, in nominating individuals to

judgeships on the United States Court of Appeals for the Federal

Circuit and the United States Claims Court [now United States

Court of Federal Claims], select from a broad range of qualified

individuals."

SALARY INCREASES

2003 - Salaries of circuit judges increased to $164,000 per

annum, effective on first day of first pay period beginning on or

after Jan. 1, 2003, by Ex. Ord. No. 13282, Dec. 31, 2002, 68 F.R.

1133, as amended by Ex. Ord. No. 13291, Sec. 3, Mar. 21, 2003, 68

F.R. 14525, set out as a note under section 5332 of Title 5,

Government Organization and Employees.

2002 - Salaries of circuit judges increased to $159,100 per

annum, effective on first day of first pay period beginning on or

after Jan. 1, 2002, by Ex. Ord. No. 13249, Dec. 28, 2001, 67 F.R.

639, formerly set out as a note under section 5332 of Title 5.

2001 - Salaries of circuit judges increased to $153,900 per

annum, effective on first day of first pay period beginning on or

after Jan. 1, 2001, by Ex. Ord. No. 13182, Dec. 23, 2000, 65 F.R.

82879, 66 F.R. 10057, formerly set out as a note under section 5332

of Title 5.

2000 - Salaries of circuit judges increased to $149,900 per

annum, effective on first day of first pay period beginning on or

after Jan. 1, 2000, by Ex. Ord. No. 13144, Dec. 21, 1999, 64 F.R.

72237, formerly set out as a note under section 5332 of Title 5.

1999 - Salaries of circuit judges continued at $145,000 per

annum, by Ex. Ord. No. 13106, Dec. 7, 1998, 63 F.R. 68151, formerly

set out as a note under section 5332 of Title 5.

1998 - Salaries of circuit judges increased to $145,000 per

annum, effective on first day of first pay period beginning on or

after Jan. 1, 1998, by Ex. Ord. No. 13071, Dec. 29, 1997, 62 F.R.

68521, formerly set out as a note under section 5332 of Title 5.

1997 - Salaries of circuit judges continued at $141,700 per

annum, by Ex. Ord. No. 13033, Dec. 27, 1996, 61 F.R. 68987,

formerly set out as a note under section 5332 of Title 5.

1996 - Salaries of circuit judges continued at $141,700 per

annum, by Ex. Ord. No. 12984, Dec. 28, 1995, 61 F.R. 237, formerly

set out as a note under section 5332 of Title 5.

1995 - Salaries of circuit judges continued at $141,700 per

annum, by Ex. Ord. No. 12944, Dec. 28, 1994, 60 F.R. 309, formerly

set out as a note under section 5332 of Title 5.

1993 - Salaries of circuit judges increased to $141,700 per

annum, effective on first day of first pay period beginning on or

after Jan. 1, 1993, by Ex. Ord. No. 12826, Dec. 30, 1992, 57 F.R.

62909, formerly set out as a note under section 5332 of Title 5.

1992 - Salaries of circuit judges increased to $137,300 per

annum, effective on first day of first pay period beginning on or

after Jan. 1, 1992, by Ex. Ord. No. 12786, Dec. 26, 1991, 56 F.R.

67453, formerly set out as a note under section 5332 of Title 5.

1991 - Salaries of circuit judges increased to $132,700 per

annum, effective on first day of first pay period beginning on or

after Jan. 1, 1991, by Ex. Ord. No. 12736, Dec. 12, 1990, 55 F.R.

51385, formerly set out as a note under section 5332 of Title 5.

1990 - Salaries of circuit judges continued at $95,000 per annum,

and increased to $102,500, effective on first day of first pay

period beginning on or after Jan. 31, 1990, by Ex. Ord. No. 12698,

Dec. 23, 1989, 54 F.R. 53473, formerly set out as a note under

section 5332 of Title 5.

1989 - Salaries of circuit judges increased in the amount of 25

percent of their rates (as last in effect before the increase),

effective Jan. 1, 1991, see Pub. L. 101-194, title VII, Sec.

703(a)(3), Nov. 30, 1989, 103 Stat. 1768, set out as a note under

section 5318 of Title 5.

Salaries of circuit judges continued at $95,000 per annum by Ex.

Ord. No. 12663, Jan. 6, 1989, 54 F.R. 791, formerly set out as a

note under section 5332 of Title 5.

1988 - Salaries of circuit judges continued at $95,000 per annum

by Ex. Ord. No. 12622, Dec. 31, 1987, 53 F.R. 222, formerly set out

as a note under section 5332 of Title 5.

1987 - Salaries of circuit judges increased to $95,000 per annum,

on recommendation of the President of the United States, see note

set out under section 358 of Title 2, The Congress.

Salaries of circuit judges increased to $85,700 effective on

first day of first pay period beginning on or after Jan. 1, 1987,

by Ex. Ord. No. 12578, Dec. 31, 1986, 55 F.R. 505, formerly set out

as a note under section 5332 of Title 5, Government Organization

and Employees.

1985 - Salaries of circuit judges increased to $83,200 effective

on first day of first pay period beginning on or after Jan. 1,

1985, by Ex. Ord. No. 12496, Dec. 28, 1984, 50 F.R. 211, as amended

by Ex. Ord. No. 12540, Dec. 30, 1985, 51 F.R. 577, formerly set out

as a note under section 5332 of Title 5.

1984 - Salaries of circuit judges increased to $80,400 effective

on first day of first pay period beginning on or after Jan. 1,

1984, by Ex. Ord. No. 12456, Dec. 30, 1983, 49 F.R. 347, as amended

Ex. Ord. No. 12477, May 23, 1984, 49 F.R. 22041; Ex. Ord. No.

12487, Sept. 14, 1984, 49 F.R. 36493, formerly set out as a note

under section 5332 of Title 5.

1982 - Salaries of circuit judges increased to $77,300 effective

on first day of first pay period beginning on or after Oct. 1,

1982, by Ex. Ord. No. 12387, Oct. 8, 1982, 47 F.R. 44981, formerly

set out as a note under section 5332 of Title 5. Ex. Ord. No. 12387

further provided that pursuant to section 140 of Pub. L. 97-92

funds are not available to pay a salary at a rate which exceeds the

rate in effect on Dec. 15, 1981, which was $74,300.

Maximum rate payable after Dec. 17, 1982, increased from $74,300

to $77,300, see Pub. L. 97-377, title I, Sec. 129(b)-(d), Dec. 21,

1982, 96 Stat. 1914, set out as a note under section 5318 of Title

5.

Limitations on use of funds for fiscal year ending Sept. 30,

1983, appropriated by any Act to pay the salary or pay of any

individual in legislative, executive, or judicial branch in

position equal to or above level V of the Executive Schedule, see

section 101(e) of Pub. L. 97-276, as amended, set out as a note

under section 5318 of Title 5.

1981 - Salaries of circuit judges increased to $74,300 effective

on first day of first pay period beginning on or after Oct. 1,

1981, by Ex. Ord. No. 12330, Oct. 15, 1981, 46 F.R. 50921, formerly

set out as a note under section 5332 of Title 5.

Limitations on use of funds for fiscal year ending Sept. 30,

1982, appropriated by any Act to pay the salary or pay of any

individual in legislative, executive, or judicial branch in

position equal to or above level V of the Executive Schedule, see

sections 101(g) and 141 of Pub. L. 97-92, set out as a note under

section 5318 of Title 5.

1980 - Salaries of circuit judges increased to $70,900 effective

on first day of first pay period beginning on or after Oct. 1,

1980, by Ex. Ord. No. 12248, Oct. 16, 1980, 45 F.R. 69199, formerly

set out as a note under section 5332 of Title 5. Ex. Ord. No. 12248

further provided that pursuant to Pub. L. 96-369 funds are not

available to pay a salary at a rate which exceeds the rate in

effect on Sept. 30, 1980, which was $60,662.50.

Limitations on use of funds for fiscal year ending Sept. 30,

1981, appropriated by any Act to pay the salary or pay of any

individual in legislative, executive, or judicial branch in

position equal to or above level V of the Executive Schedule, see

section 101(c) of Pub. L. 96-536, as amended, set out as a note

under section 5318 of Title 5.

1979 - Salaries of circuit judges increased to $65,000 effective

on first day of first applicable pay period beginning on or after

Oct. 1, 1979, by Ex. Ord. No. 12165, Oct. 9, 1979, 44 F.R. 58671,

as amended by Ex. Ord. No. 12200, Mar. 12, 1980, 45 F.R. 16443,

formerly set out as a note under section 5332 of Title 5. Ex. Ord.

No. 12165 further provided that pursuant to Pub. L. 96-86 funds

appropriated for fiscal year 1980 may not be used to pay a salary

at a rate which exceeds an increase of 5.5 percent over the

applicable rate payable for such position or office in effect on

Sept. 30, 1978, which was $60,662.50 for circuit judges.

Applicability to funds appropriated by any Act for fiscal year

ending Sept. 30, 1980, of limitation of section 304 of Pub. L.

95-391 on use of funds to pay the salary or pay of any individual

in legislative, executive, or judicial branch in position equal to

or above Level V of the Executive Schedule, see section 101 of Pub.

L. 96-86, set out as a note under section 5318 of Title 5.

1978 - Salaries of circuit judges increased to $60,700 effective

on first day of first pay period beginning on or after Oct. 1,

1978, by Ex. Ord. No. 12087, Oct. 7, 1978, 43 F.R. 46823, formerly

set out as a note under section 5332 of Title 5. Ex. Ord. No. 12087

further provided that pursuant to the Legislative Branch

Appropriation Act, 1979 [Pub. L. 95-391, title III, Sec. 304, Sept.

30, 1978, 92 Stat. 788, set out as a note under section 5318 of

Title 5], funds are not available to pay a salary at a rate which

exceeds the rate in effect on Sept. 30, 1978, which was $57,500.

1977 - Salaries of circuit judges increased to $57,500 per annum,

on recommendation of the President of the United States, see note

set out under section 358 of Title 2, The Congress.

1976 - Salaries of circuit judges increased to $46,800 effective

on first day of first pay period beginning on or after Oct. 1,

1976, by Ex. Ord. No. 11941, Oct. 1, 1976, 41 F.R. 43889, formerly

set out as a note under section 5332 of Title 5, Government

Organization and Employees. Ex. Ord. No. 11941 further provided

that pursuant to Legislative Branch Appropriation Act, 1977, funds

are not available to pay a salary at a rate which exceeds rate in

effect on Sept. 30, 1976, which was $44,600.

1975 - Salaries of circuit judges increased to $44,600 effective

on first day of first pay period beginning on or after Oct. 1,

1975, by Ex. Ord. No. 11883, Oct. 6, 1975, 40 F.R. 47091, formerly

set out as a note under section 5332 of Title 5.

1969 - Salary of circuit judge increased from $33,000 to $42,500

per annum, commencing Feb. 14, 1969, on recommendation of President

of United States, see note set out under section 358 of Title 2,

The Congress.

1946 - Salaries of circuit judges increased from $12,500 to

$17,500 a year by act July 31, 1946, ch. 704, Sec. 1, 60 Stat. 716.

1926 - Salaries of circuit judges increased from $8,500 to

$12,500 a year by act Dec. 13, 1926, ch. 6, Sec. 1, 44 Stat. 919.

1919 - Salaries of circuit judges increased from $7,000 to $8,500

a year by act Feb. 25, 1919, ch. 29, Sec. 1, 40 Stat. 1156.

1911 - Salaries of circuit court judges set at $7,000 a year by

the Judicial Code of 1911, act Mar. 3, 1911, ch. 231, Sec. 1, 36

Stat. 1131.

ADDITIONAL JUDGES

Since 1925, the appointment of additional judges was authorized

by the following acts:

Second circuit. Act May 31, 1938, ch. 290, Sec. 1, 52 Stat. 584.

Third circuit. Act Aug. 3, 1949, ch. 387, Sec. 1, 63 Stat. 493;

act Dec. 7, 1944, ch. 521, Sec. 1, 58 Stat. 796; act June 10, 1930,

ch. 438, 46 Stat. 538; act June 24, 1936, ch. 735, Sec. 1, 49 Stat.

1903, repealed by act May 31, 1938, ch. 290, Sec. 3, 52 Stat. 585.

Fifth circuit. Act Dec. 14, 1942, ch. 731, 56 Stat. 1050; act May

31, 1938, ch. 290, Sec. 1, 52 Stat. 584; act June 10, 1930, ch.

437, 46 Stat. 538.

Sixth circuit. Act May 24, 1940, ch. 209, Sec. 1, 54 Stat. 219;

act May 31, 1938, ch. 290, Sec. 1, 52 Stat. 584.

Seventh circuit. Act Aug. 3, 1949, ch. 387, Sec. 1, 63 Stat. 493;

act May 31, 1938, ch. 290, Sec. 1, 52 Stat. 584.

Eighth circuit. Act May 24, 1940, ch. 209, Sec. 1, 54 Stat. 219;

act Mar. 3, 1925, ch. 436, 43 Stat. 1116.

Ninth circuit. Act Apr. 14, 1937, ch. 80, 50 Stat. 64; act Aug.

2, 1935, ch. 425, Sec. 1, 49 Stat. 508; act June 16, 1933, ch. 102,

48 Stat. 310 (removing limitation on filling of vacancy); act Mar.

1, 1929, ch. 413, 45 Stat. 1414.

Tenth circuit. Act Aug. 3, 1949, ch. 387, Sec. 1, 63 Stat. 493.

District of Columbia Court of Appeals. Act Aug. 3, 1949, ch. 387,

Sec. 1, 63 Stat. 493; act May 31, 1938, ch. 290, Sec. 2, 52 Stat.

584; act June 19, 1930, ch. 538, 46 Stat. 785.

Act Feb. 28, 1929, ch. 363, Sec. 2, 45 Stat. 1346, 1347 provided

that "There shall be in the sixth, seventh, and tenth circuits,

respectively, four circuit judges; and in the second and eighth

circuits, respectively, five circuit judges; and, in each of the

other circuits three circuit judges, to be appointed by the

President, by and with the advice and consent of the Senate."

Another part of section 1 of act Feb. 10, 1954, which amended

subsec. (a) of this section, provided for the appointment by the

President, by and with the advice and consent of the Senate, of the

additional judges for the Fifth and Ninth Circuits, provided for in

such amendment.

Section 1(a) of Pub. L. 87-36 provided that: "The President shall

appoint, by and with the advice and consent of the Senate, three

additional circuit judges for the second circuit, one additional

circuit judge for the third circuit, two additional circuit judges

for the fourth circuit, two additional circuit judges for the fifth

circuit, one additional circuit judge for the seventh circuit, and

one additional circuit judge for the tenth circuit."

Section 1(a) of Pub. L. 89-372 provided that: "The President

shall appoint, by and with the advice and consent of the Senate,

two additional circuit judges for the fourth circuit, two

additional circuit judges for the sixth circuit, one additional

circuit judge for the seventh circuit, and one additional circuit

judge for the eighth circuit."

Section 1(c) of Pub. L. 89-372, as amended by Pub. L. 90-347,

Sec. 2, June 18, 1968, 82 Stat. 183, provided that: "The President

shall appoint, by and with the advice and consent of the Senate,

four additional circuit judges for the fifth circuit." The second

sentence of section 1(c) of Pub. L. 89-372 which provided that the

first four vacancies occurring in the office of circuit judge in

the fifth circuit shall not be filled was deleted by section 2 of

Pub. L. 90-347, which also made those judgeships permanent and

further provided that the present incumbents of such judgeships

shall henceforth hold their offices under this section.

Section 1 of Pub. L. 90-347 provided: "That the President shall

appoint, by and with the advice and consent of the Senate, one

additional circuit judge for the third circuit, two additional

circuit judges for the fifth circuit, one additional circuit judge

for the sixth circuit, four additional circuit judges for the ninth

circuit, and one additional circuit judge for the tenth circuit."

Section 3(a) of Pub. L. 95-486 provided that: "The President

shall appoint, by and with the advice and consent of the Senate,

one additional circuit judgeship for the first circuit, two

additional circuit judgeships for the second circuit, one

additional circuit judgeship for the third circuit, three

additional circuit judgeships for the fourth circuit, eleven

additional circuit judgeships for the fifth circuit, two additional

circuit judgeships for the sixth circuit, one additional circuit

judgeship for the seventh circuit, one additional circuit judgeship

for the eighth circuit, ten additional circuit judgeships for the

ninth circuit, one additional circuit judgeship for the tenth

circuit, and two additional circuit judgeships for the District of

Columbia."

Section 201(a) of Pub. L. 98-353 provided that:

"(1) Subject to the provisions of paragraph (2), the President

shall appoint, by and with the advice and consent of the Senate,

two additional circuit judges for the first circuit court of

appeals, two additional circuit judges for the second circuit court

of appeals, two additional circuit judges for the third circuit

court of appeals, one additional circuit judge for the fourth

circuit court of appeals, two additional circuit judges for the

fifth circuit court of appeals, four additional circuit judges for

the sixth circuit court of appeals, two additional circuit judges

for the seventh circuit court of appeals, one additional circuit

judge for the eighth circuit court of appeals, five additional

circuit judges for the ninth circuit court of appeals, two

additional circuit judges for the tenth circuit court of appeals,

and one additional circuit judge for the District of Columbia

circuit court of appeals.

"(2) The President shall appoint, by and with the advice and

consent of the Senate, no more than 11 of such judges prior to

January 21, 1985."

Section 202(a) of Pub. L. 101-650 provided that: "The President

shall appoint, by and with the advice and consent of the Senate -

"(1) 2 additional circuit judges for the third circuit court of

appeals;

"(2) 4 additional circuit judges for the fourth circuit court

of appeals;

"(3) 1 additional circuit judge for the fifth circuit court of

appeals;

"(4) 1 additional circuit judge for the sixth circuit court of

appeals;

"(5) 1 additional circuit judge for the eighth circuit court of

appeals; and

"(6) 2 additional circuit judges for the tenth circuit court of

appeals."

-EXEC-

EXECUTIVE ORDER NO. 11972

Ex. Ord. No. 11972, Feb. 14, 1977, 42 F.R. 9659, as amended by

Ex. Ord. No. 11993, May 24, 1977, 42 F.R. 27197, which related to

the United States Circuit Judge Nominating Commission, was revoked

by Ex. Ord. No. 12059, May 11, 1978, 43 F.R. 20949, formerly set

out below.

EXECUTIVE ORDER NO. 12059

Ex. Ord. No. 12059, May 11, 1978, 43 F.R. 20949, as amended by

Ex. Ord. No. 12097, Nov. 8, 1978, 43 F.R. 52455, which established

the United States Circuit Judge Nominating Commission and provided

for its membership, functions, etc., was revoked by Ex. Ord. No.

12305, May 5, 1981, 46 F.R. 25421, set out as a note under section

14 of the Federal Advisory Committee Act in the Appendix to Title

5, Government Organization and Employees.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 992 of this title.

-FOOTNOTE-

(!1) So in original. Probably should be capitalized.

-End-

-CITE-

28 USC Sec. 45 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART I - ORGANIZATION OF COURTS

CHAPTER 3 - COURTS OF APPEALS

-HEAD-

Sec. 45. Chief judges; precedence of judges

-STATUTE-

(a)(1) The chief judge of the circuit shall be the circuit judge

in regular active service who is senior in commission of those

judges who -

(A) are sixty-four years of age or under;

(B) have served for one year or more as a circuit judge; and

(C) have not served previously as chief judge.

(2)(A) In any case in which no circuit judge meets the

qualifications of paragraph (1), the youngest circuit judge in

regular active service who is sixty-five years of age or over and

who has served as circuit judge for one year or more shall act as

the chief judge.

(B) In any case under subparagraph (A) in which there is no

circuit judge in regular active service who has served as a circuit

judge for one year or more, the circuit judge in regular active

service who is senior in commission and who has not served

previously as chief judge shall act as the chief judge.

(3)(A) Except as provided in subparagraph (C), the chief judge of

the circuit appointed under paragraph (1) shall serve for a term of

seven years and shall serve after expiration of such term until

another judge is eligible under paragraph (1) to serve as chief

judge of the circuit.

(B) Except as provided in subparagraph (C), a circuit judge

acting as chief judge under subparagraph (A) or (B) of paragraph

(2) shall serve until a judge has been appointed who meets the

qualifications under paragraph (1).

(C) No circuit judge may serve or act as chief judge of the

circuit after attaining the age of seventy years unless no other

circuit judge is qualified to serve as chief judge of the circuit

under paragraph (1) or is qualified to act as chief judge under

paragraph (2).

(b) The chief judge shall have precedence and preside at any

session of the court which he attends. Other circuit judges of the

court in regular active service shall have precedence and preside

according to the seniority of their commissions. Judges whose

commissions bear the same date shall have precedence according to

seniority in age. The circuit justice, however, shall have

precedence over all the circuit judges and shall preside at any

session which he attends.

(c) If the chief judge desires to be relieved of his duties as

chief judge while retaining his active status as circuit judge, he

may so certify to the Chief Justice of the United States, and

thereafter the chief judge of the circuit shall be such other

circuit judge who is qualified to serve or act as chief judge under

subsection (a).

(d) If a chief judge is temporarily unable to perform his duties

as such, they shall be performed by the circuit judge in active

service, present in the circuit and able and qualified to act, who

is next in precedence.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 871; Oct. 31, 1951, ch. 655, Sec.

35, 65 Stat. 723; Pub. L. 85-593, Sec. 1, Aug. 6, 1958, 72 Stat.

497; Pub. L. 97-164, title II, Secs. 201, 204, Apr. 2, 1982, 96

Stat. 51, 53.)

-MISC1-

HISTORICAL AND REVISION NOTES

Based on sections 216 and 216a of title 28, U.S.C., 1940 ed.

(Mar. 3, 1911, ch. 231, Sec. 120, 36 Stat. 1132; May 23, 1934, ch.

339, 48 Stat. 796).

Subsection (a), providing for "chief judge," is new. Such term is

adopted to replace the term "senior circuit judge" in recognition

of the great increase in administrative duties of such judge.

Subsection (b) conforms with section 4 of this title relating to

precedence of associate justices of the Supreme Court, and

consolidates the provisions of the second and third sentences of

section 216 of title 28, U.S.C., 1940 ed. The designation when

filed in the court of appeals will not only record the transfer of

function from the relieved chief judge to his successor, but will

also determine the question of willingness of the successor to

serve.

Other provisions of section 216 of title 28, U.S.C., 1940 ed.,

are covered by section 47 of this title.

Subsection (c) is new.

Subsection (d) is based on section 216a of title 28, U.S.C., 1940

ed.

The official status of the Chief Justice of the Court of Appeals

for the District of Columbia holding office on the effective date

of the act is preserved by section 2 of the bill to enact revised

Title 28.

Changes were made in phraseology.

AMENDMENTS

1982 - Subsec. (a). Pub. L. 97-164, Sec. 201(a), designated

existing first sentence of subsec. (a) as par. (1), substituted

"The chief judge of the circuit shall be the circuit judge in

regular active service who is senior in commission of those judges

who - (A) are sixty-four years of age or under; (B) have served for

one year or more as a circuit judge; and (C) have not served

previously as chief judge" for "The circuit judge in regular active

service who is senior in commission and under seventy years of age

shall be the chief judge of the circuit" in par. (1) as so

designated, designated existing second sentence of subsec. (a) as

par. (2)(A), substituted "In any case in which no circuit judge

meets the qualifications of paragraph (1), the youngest circuit

judge in regular active service who is sixty-five years of age or

over and who has served as circuit judge for one year or more shall

act as the chief judge" for "If all the circuit judges in regular

active service are seventy years of age or older the youngest shall

act as chief judge until a judge has been appointed and qualified

who is under seventy years of age, but a judge may not act as chief

judge until he has served as a circuit judge for one year" in par.

(2)(A) as so designated, and added pars. (2)(B) and (3).

Subsec. (b). Pub. L. 97-164, Sec. 204, inserted "of the court in

regular active service" after "circuit judges" in second sentence.

Subsec. (c). Pub. L. 97-164, Sec. 201(b), amended subsec. (c)

generally, substituting "the chief judge of the circuit shall be

such other circuit judge who is qualified to serve or act as chief

judge under subsection (a)" for "the circuit judge in active

service next in precedence and willing to serve shall be designated

by the Chief Justice as the chief judge of the circuit".

1958 - Subsec. (a). Pub. L. 85-593 provided that chief judges of

circuit courts cease to serve as such upon reaching the age of

seventy, that the youngest circuit judge act as chief judge where

all circuit judges in regular active service are seventy years or

older until a judge under seventy has been appointed and qualified,

and that circuit judge must have served one year before acting as

chief judge.

1951 - Subsec. (a). Act Oct. 31, 1951, inserted "in active

service who is".

EFFECTIVE DATE OF 1982 AMENDMENT

Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section

402 of Pub. L. 97-164, set out as a note under section 171 of this

title.

EFFECTIVE DATE OF 1958 AMENDMENT

Section 3 of Pub. L. 85-593, as amended by Pub. L. 95-486, Sec.

4, Oct. 20, 1978, 92 Stat. 1632, provided that: "The amendments to

sections 45 and 136 of title 28 of the United States Code made by

this Act shall take effect at the expiration of one year from the

date of enactment of this Act [Aug. 6, 1958]."

SAVINGS PROVISION

Section 203 of part A of title II of Pub. L. 97-164 provided

that:

"(a) The amendments to section 45 of title 28, United States

Code, and to section 136 of such title, made by sections 201 and

202 of this Act, shall not apply to or affect any person serving as

chief judge on the effective date of this Act [Oct. 1, 1982].

"(b) The provisions of section 45(a) of title 28, United States

Code, as in effect on the day before the effective date of this Act

[Oct. 1, 1982], shall apply to the chief judge of a circuit serving

on such effective date. The provisions of section 136(a) of title

28, United States Code, as in effect on the day before the

effective date of this part [Oct. 1, 1982], shall apply to the

chief judge of a district court serving on such effective date."

APPOINTMENT OF CHIEF JUDGE OF COURT OF APPEALS FOR THE FEDERAL

CIRCUIT

Section 166 of Pub. L. 97-164 provided that: "Notwithstanding the

provisions of section 45(a) of title 28, United States Code, the

first chief judge of the United States Court of Appeals for the

Federal Circuit shall be the Chief Judge of the United States Court

of Claims or the Chief Judge of the United States Court of Customs

and Patent Appeals, whoever has served longer as chief judge of his

court. Notwithstanding section 45 of title 28, United States Code,

whichever of the two chief judges does not become the first chief

judge of the United States Court of Appeals for the Federal Circuit

under the preceding sentence shall, while in active service, have

precedence and be deemed senior in commission over all the circuit

judges of the United States Court of Appeals for the Federal

Circuit (other than the first chief judge of that circuit). When

the person who first serves as chief judge of the United States

Court of Appeals for the Federal Circuit vacates that position, the

position shall be filled in accordance with section 45(a) of title

28, United States Code, as modified by the preceding sentence of

this section."

CHIEF JUDGE OF COURT OF APPEALS FOR DISTRICT OF COLUMBIA

Section 2(a) of act June 25, 1948, provided in part that the

Chief Justice of the Court of Appeals for the District of Columbia

in office on Sept. 1, 1948, shall thereafter be known as the Chief

Judge.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 353, 372 of this title.

-End-

-CITE-

28 USC Sec. 46 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART I - ORGANIZATION OF COURTS

CHAPTER 3 - COURTS OF APPEALS

-HEAD-

Sec. 46. Assignment of judges; panels; hearings; quorum

-STATUTE-

(a) Circuit judges shall sit on the court and its panels in such

order and at such times as the court directs.

(b) In each circuit the court may authorize the hearing and

determination of cases and controversies by separate panels, each

consisting of three judges, at least a majority of whom shall be

judges of that court, unless such judges cannot sit because recused

or disqualified, or unless the chief judge of that court certifies

that there is an emergency including, but not limited to, the

unavailability of a judge of the court because of illness. Such

panels shall sit at the times and places and hear the cases and

controversies assigned as the court directs. The United States

Court of Appeals for the Federal Circuit shall determine by rule a

procedure for the rotation of judges from panel to panel to ensure

that all of the judges sit on a representative cross section of the

cases heard and, notwithstanding the first sentence of this

subsection, may determine by rule the number of judges, not less

than three, who constitute a panel.

(c) Cases and controversies shall be heard and determined by a

court or panel of not more than three judges (except that the

United States Court of Appeals for the Federal Circuit may sit in

panels of more than three judges if its rules so provide), unless a

hearing or rehearing before the court in banc is ordered by a

majority of the circuit judges of the circuit who are in regular

active service. A court in banc shall consist of all circuit judges

in regular active service, or such number of judges as may be

prescribed in accordance with section 6 of Public Law 95-486 (92

Stat. 1633), except that any senior circuit judge of the circuit

shall be eligible (1) to participate, at his election and upon

designation and assignment pursuant to section 294(c) of this title

and the rules of the circuit, as a member of an in banc court

reviewing a decision of a panel of which such judge was a member,

or (2) to continue to participate in the decision of a case or

controversy that was heard or reheard by the court in banc at a

time when such judge was in regular active service.

(d) A majority of the number of judges authorized to constitute a

court or panel thereof, as provided in paragraph (c), shall

constitute a quorum.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 871; Pub. L. 88-176, Sec. 1(b),

Nov. 13, 1963, 77 Stat. 331; Pub. L. 95-486, Sec. 5(a), (b), Oct.

20, 1978, 92 Stat. 1633; Pub. L. 97-164, title I, Sec. 103, title

II, Sec. 205, Apr. 2, 1982, 96 Stat. 25, 53; Pub. L. 104-175, Sec.

1, Aug. 6, 1996, 110 Stat. 1556.)

-MISC1-

HISTORICAL AND REVISION NOTES

Based in part on title 28, U.S.C., 1940 ed., Sec. 212 (Mar. 3,

1911, ch. 231, Sec. 117, 36 Stat. 1131).

Subsections (a)-(c) authorize the establishment of divisions of

the court and provide for the assignment of circuit judges for

hearings and rehearings in banc.

The Supreme Court of the United States has ruled that,

notwithstanding the three-judge provision of section 212 of title

28, U.S.C., 1940 ed., a court of appeals might lawfully consist of

a greater number of judges, and that the five active circuit judges

of the third circuit might sit in banc for the determination of an

appeal. (See Textile Mills Securities Corporation v. Commissioner

of Internal Revenue, 1941, 62 S.Ct. 272, 314 U.S. 326, 86 L.Ed.

249.)

The Supreme Court in upholding the unanimous view of the five

judges as to their right to sit in banc, notwithstanding the

contrary opinion in Langs Estate v. Commissioner of Internal

Revenue, 1938, 97 F.2d 867, said in the Textile Mills case: "There

are numerous functions of the court, as a 'court of record, with

appellate jurisdiction', other than hearing and deciding appeals.

Under the Judicial Code these embrace: prescribing the form of

writs and other process and the form and style of its seal (28

U.S.C., Sec. 219); the making of rules and regulations (28 U.S.C.,

Sec. 219); the appointment of a clerk (28 U.S.C., Sec. 221) and the

approval of the appointment and removal of deputy clerks (28

U.S.C., Sec. 222); and the fixing of the 'times' when court shall

be held (28 U.S.C., Sec. 223). Furthermore, those various sections

of the Judicial Code provide that each of these functions shall be

performed by the court."

This section preserves the interpretation established by the

Textile Mills case but provides in subsection (c) that cases shall

be heard by a court of not more than three judges unless the court

has provided for hearing in banc. This provision continues the

tradition of a three-judge appellate court and makes the decision

of a division, the decision of the court, unless rehearing in banc

is ordered. It makes judges available for other assignments, and

permits a rotation of judges in such manner as to give to each a

maximum of time for the preparation of opinions.

Whether divisions should sit simultaneously at the same or

different places in the circuit is a matter for each court to

determine.

-REFTEXT-

REFERENCES IN TEXT

Section 6 of Public Law 95-486 (92 Stat. 1633), referred to in

subsec. (c), is section 6 of Pub. L. 95-486, Oct. 20, 1978, 92

Stat. 1633, which is set out as an Appeals Court Administrative

Units note under section 41 of this title.

-MISC2-

AMENDMENTS

1996 - Subsec. (c). Pub. L. 104-175, in last sentence, inserted

"(1)" after "eligible" and ", or (2) to continue to participate in

the decision of a case or controversy that was heard or reheard by

the court in banc at a time when such judge was in regular active

service" before period at end.

1982 - Subsec. (a). Pub. L. 97-164, Sec. 103(a), substituted

"panels" for "divisions".

Subsec. (b). Pub. L. 97-164, Sec. 103(b), substituted "panels"

for "divisions" wherever appearing and inserted provisions

requiring that at least a majority of the panels of each circuit be

judges of that court, unless such judges cannot sit because recused

or disqualified, or unless the chief judge of that court certifies

that there is an emergency including, but not limited to, the

unavailability of a judge of the court because of illness, and that

the United States Court of Appeals for the Federal Circuit

determine by rule a procedure for the rotation of judges from panel

to panel to ensure that all of the judges sit on a representative

cross section of the cases heard and determine by rule the number

of judges, not less than three, who constitute a panel.

Subsec. (c). Pub. L. 97-164, Secs. 103(c), 205, inserted

provision that the United States Court of Appeals for the Federal

Circuit may sit in panels of more than three judges if its rules so

provide and that, as an alternative to the requirement that a court

in banc consist of all circuit judges in regular active service,

such a court may consist of such number of judges as may be

prescribed in accordance with section 6 of Public Law 95-486 (92

Stat. 1633), except that any senior circuit judge of the circuit

shall be eligible to participate, at his election and upon

designation and assignment pursuant to section 294(c) of this title

and the rules of the circuit, as a member of an in banc court

reviewing a decision of a panel of which such judge was a member.

Subsec. (d). Pub. L. 97-164, Sec. 103(d), substituted "panel" for

"division".

1978 - Pub. L. 95-486, Sec. 5(b), substituted "panels" for

"divisions" in section catchline.

Subsec. (c). Pub. L. 95-486, Sec. 5(a), substituted "panel" for

"division" and struck out provision authorizing a retired circuit

judge to sit as a judge of the court in banc in the rehearing of a

case if he sat in the court or division in the original hearing of

such case.

1963 - Subsec. (c). Pub. L. 88-176 inserted "regular" before

"active service" wherever appearing, and provided that a retired

circuit judge shall be competent to sit as a judge of the court in

banc, in a rehearing if he sat in at the original hearing.

EFFECTIVE DATE OF 1982 AMENDMENT

Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section

402 of Pub. L. 97-164, set out as a note under section 171 of this

title.

-End-

-CITE-

28 USC Sec. 47 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART I - ORGANIZATION OF COURTS

CHAPTER 3 - COURTS OF APPEALS

-HEAD-

Sec. 47. Disqualification of trial judge to hear appeal

-STATUTE-

No judge shall hear or determine an appeal from the decision of a

case or issue tried by him.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 872.)

-MISC1-

HISTORICAL AND REVISION NOTES

Based on title 28, U.S.C., 1940 ed., Sec. 216, and District of

Columbia Code, 1940 ed., Sec. 11-205 (Feb. 9, 1893, ch. 74, Sec. 6,

27 Stat. 435; July 30, 1894, ch. 172, Sec. 2, 28 Stat. 161; Mar. 3,

1901, ch. 854, Sec. 225, 31 Stat. 1225; Mar. 3, 1911, ch. 231, Sec.

120, 36 Stat. 1132).

The provision in section 11-205 of the District of Columbia Code,

1940 ed., that a justice of the district court while on the bench

of the Court of Appeals in the District of Columbia shall not sit

in review of judgment, order, or decree rendered by him below, was

consolidated with a similar provision of section 216 of title 28,

U.S.C., 1940 ed. The consolidation simplifies the language without

change of substance.

References in said section 11-205 to the power to prescribe

rules, requisites of record on appeal, forms of bills of exception,

and procedure on appeal, were omitted as covered by Rules 73, 75,

76, of the Federal Rules of Civil Procedure and by Rule 51 of the

Federal Rules of Criminal Procedure.

Said section 11-205 contained a provision that on a divided

opinion by the Court of Appeals for the District of Columbia the

decision of the lower court should stand affirmed. This was omitted

as unnecessary as merely expressing a well-established rule of law.

Other provisions of said section 11-205 are incorporated in

section 48 of this title.

The provision of section 216 of title 28, U.S.C., 1940 ed., with

respect to the competency of justices and judges to sit, was

omitted as covered by section 43 of this title.

Specific reference in said section 216 to the Chief Justice of

the United States was likewise omitted inasmuch as he sits as a

circuit justice.

The provision of said section 216 with respect to assignment of

district judges was omitted as covered by section 291 et seq. of

this title.

Provision of said section 216 relating to presiding judge was

omitted as covered by section 44 of this title.

-End-

-CITE-

28 USC Sec. 48 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART I - ORGANIZATION OF COURTS

CHAPTER 3 - COURTS OF APPEALS

-HEAD-

Sec. 48. Terms of court

-STATUTE-

(a) The courts of appeals shall hold regular sessions at the

places listed below, and at such other places within the respective

circuit as each court may designate by rule.

Circuits Places

--------------------------------------------------------------------

District of Columbia Washington.

First Boston.

Second New York.

Third Philadelphia.

Fourth Richmond, Asheville.

Fifth New Orleans, Fort Worth, Jackson.

Sixth Cincinnati.

Seventh Chicago.

Eighth St. Louis, Kansas City, Omaha, St. Paul.

Ninth San Francisco, Los Angeles, Portland,

Seattle.

Tenth Denver, Wichita, Oklahoma City.

Eleventh Atlanta, Jacksonville, Montgomery.

Federal District of Columbia, and in any other

place listed above as the court by rule

directs.

--------------------------------------------------------------------

(b) Each court of appeals may hold special sessions at any place

within its circuit as the nature of the business may require, and

upon such notice as the court orders. The court may transact any

business at a special session which it might transact at a regular

session.

(c) Any court of appeals may pretermit any regular session of

court at any place for insufficient business or other good cause.

(d) The times and places of the sessions of the Court of Appeals

for the Federal Circuit shall be prescribed with a view to securing

reasonable opportunity to citizens to appear before the court with

as little inconvenience and expense to citizens as is practicable.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 872; Oct. 31, 1951, ch. 655, Sec.

36, 65 Stat. 723; Pub. L. 96-452, Sec. 4, Oct. 14, 1980, 94 Stat.

1994; Pub. L. 97-164, title I, Sec. 104, Apr. 2, 1982, 96 Stat. 26;

Pub. L. 102-572, title V, Sec. 501, Oct. 29, 1992, 106 Stat. 4512.)

-MISC1-

HISTORICAL AND REVISION NOTES

Based on title 28, U.S.C., 1940 ed., Sec. 223 and Sec. 11-205

District of Columbia Code, 1940 ed. (Feb. 9, 1893, ch. 74, Sec. 6,

27 Stat. 435; July 30, 1894, ch. 172, Sec. 2, 28 Stat. 161; Mar. 3,

1901, ch. 854, Sec. 225, 31 Stat. 1225; Mar. 3, 1911, ch. 231, Sec.

126, 36 Stat. 1132; July 17, 1916, ch. 246, 39 Stat. 385; Jan. 8,

1925, ch. 57, 43 Stat. 729; July 3, 1926, ch. 735, 44 Stat. 809;

Feb. 28, 1929, ch. 363, Sec. 3, 45 Stat. 1347; May 17, 1932, ch.

190, 47 Stat. 158).

This section consolidates section 223 of title 28, U.S.C., 1940

ed., with part of section 11-205 of the District of Columbia Code.

Reference to San Juan as a place for holding court in the First

Circuit was omitted. The revised section will permit the holding of

terms at San Juan when the public interest requires.

The phrase "and at such other places within the respective

circuits as may be designated by rule of court" was added to enable

each court of appeals to hold such additional regular terms as

changing circumstances might require.

The provisions of such section 223, for furnishing suitable rooms

and accommodation at Oakland City, were omitted as obsolete since

the erection of a new Federal building there.

The provisions as to fixed times for holding court in the Fifth

Circuit was omitted as inconsistent with the practice in the other

circuits. Words "San Francisco, Los Angeles, Portland, Seattle"

were substituted for "San Francisco and two other places designated

by the court" to conform with the practice in the Ninth Circuit.

Changes were made in phraseology.

SENATE REVISION AMENDMENT

By Senate amendment, Jacksonville (Fla.) was added as a place for

holding a regular session of the Court of Appeals for the Fifth

Circuit. See 80th Congress Senate Report No. 1559.

AMENDMENTS

1992 - Subsec. (c). Pub. L. 102-572 struck out ", with the

consent of the Judicial Conference of the United States," after

"pretermit".

1982 - Subsec. (a). Pub. L. 97-164, Sec. 104(a), (b), designated

introductory provisions and table of circuits as subsec. (a) and

substituted provisions directing the courts of appeals to hold

regular sessions at the places listed in the table and at such

other places within the circuits as each court might designate by

rule, for provisions which directed that terms or sessions of

courts of appeals be held annually at the places listed in the

table and at such other places as the courts might designate by

rule and authorized each court of appeals to hold special terms at

any place within its circuit, and added to the table an item for

the Federal circuit, with sessions to be held in the District of

Columbia and in any other place listed elsewhere in the table as

the Federal circuit court might by rule direct.

Subsec. (b). Pub. L. 97-164, Sec. 104(c), added subsec. (b).

Subsec. (c). Pub. L. 97-164, Sec. 104(c), designated existing

provisions following table of circuits as subsec. (c) and

substituted "regular session" for "regular term or session".

Subsec. (d). Pub. L. 97-164, Sec. 104(c), added subsec. (d).

1980 - Pub. L. 96-452 substituted "New Orleans, Fort Worth,

Jackson" for "New Orleans, Atlanta, Fort Worth, Jacksonville,

Montgomery" in item relating to fifth circuit, and added item

relating to eleventh circuit.

1951 - Act Oct. 31, 1951, inserted last par.

EFFECTIVE DATE OF 1992 AMENDMENT

Amendment by Pub. L. 102-572 effective Jan. 1, 1993, see section

1101(a) of Pub. L. 102-572, set out as a note under section 905 of

Title 2, The Congress.

EFFECTIVE DATE OF 1982 AMENDMENT

Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section

402 of Pub. L. 97-164, set out as a note under section 171 of this

title.

EFFECTIVE DATE OF 1980 AMENDMENT

Amendment by Pub. L. 96-452 effective Oct. 1, 1981, see section

12 of Pub. L. 96-452, set out as a note under section 41 of this

title.

SURVEY OF JUDICIAL BUSINESS IN ALASKA

Section 23(a) of Pub. L. 86-70, June 25, 1959, 73 Stat. 147,

provided that: "The Judicial Conference of the United States, with

the assistance of the Administrative Office of the United States

Courts, shall conduct a study, including a field survey, of the

Federal judicial business arising in the State of Alaska with a

view toward directing the United States Court of Appeals for the

Ninth Circuit to hold such terms of court in Anchorage or such

other Alaskan cities as may be necessary for the prompt and

efficient administration of justice."

-End-

-CITE-

28 USC Sec. 49 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART I - ORGANIZATION OF COURTS

CHAPTER 3 - COURTS OF APPEALS

-HEAD-

Sec. 49. Assignment of judges to division to appoint independent

counsels

-STATUTE-

(a) Beginning with the two-year period commencing on the date of

the enactment of this section, three judges or justices shall be

assigned for each successive two-year period to a division of the

United States Court of Appeals for the District of Columbia to be

the division of the court for the purpose of appointing independent

counsels. The Clerk of the United States Court of Appeals for the

District of Columbia Circuit shall serve as the clerk of such

division of the court and shall provide such services as are needed

by such division of the court.

(b) Except as provided under subsection (f) of this section,

assignment to such division of the court shall not be a bar to

other judicial assignments during the term of such division.

(c) In assigning judges or justices to sit on such division of

the court, priority shall be given to senior circuit judges and

retired justices.

(d) The Chief Justice of the United States shall designate and

assign three circuit court judges or justices, one of whom shall be

a judge of the United States Court of Appeals for the District of

Columbia, to such division of the court. Not more than one judge or

justice or senior or retired judge or justice may be named to such

division from a particular court.

(e) Any vacancy in such division of the court shall be filled

only for the remainder of the two-year period in which such vacancy

occurs and in the same manner as initial assignments to such

division were made.

(f) Except as otherwise provided in chapter 40 of this title, no

member of such division of the court who participated in a function

conferred on the division under chapter 40 of this title involving

an independent counsel shall be eligible to participate in any

judicial proceeding concerning a matter which involves such

independent counsel while such independent counsel is serving in

that office or which involves the exercise of such independent

counsel's official duties, regardless of whether such independent

counsel is still serving in that office.

-SOURCE-

(Added Pub. L. 95-521, title VI, Sec. 602(a), Oct. 26, 1978, 92

Stat. 1873; amended Pub. L. 97-409, Sec. 2(b)(1), Jan. 3, 1983, 96

Stat. 2039; Pub. L. 99-554, title I, Sec. 144(g)(3), Oct. 27, 1986,

100 Stat. 3097; Pub. L. 100-191, Secs. 4, 5(a), Dec. 15, 1987, 101

Stat. 1307.)

-REFTEXT-

REFERENCES IN TEXT

The date of enactment of this section, referred to in subsec.

(a), is Oct. 26, 1978.

-MISC1-

AMENDMENTS

1987 - Subsec. (a). Pub. L. 100-191, Sec. 4, inserted at end:

"The Clerk of the United States Court of Appeals for the District

of Columbia Circuit shall serve as the clerk of such division of

the court and shall provide such services as are needed by such

division of the court."

Subsec. (f). Pub. L. 100-191, Sec. 5(a), substituted "involving

an independent counsel" for "involving a independent counsel".

1986 - Subsec. (f). Pub. L. 99-554 substituted "chapter 40" for

"chapter 39" in two places.

1983 - Pub. L. 97-409, Sec. 2(b)(1)(B), substituted "independent

counsels" for "special prosecutors" in section catchline.

Subsec. (a). Pub. L. 97-409, Sec. 2(b)(1)(B), substituted

"independent counsels" for "special prosecutors".

Subsec. (f). Pub. L. 97-409, Sec. 2(b)(1)(A), (C), substituted

"independent counsel" for "special prosecutor" wherever appearing

and "independent counsel's" for "special prosecutor's".

EFFECTIVE DATE OF 1986 AMENDMENT

Amendment by Pub. L. 99-554 effective 30 days after Oct. 27,

1986, see section 302(a) of Pub. L. 99-554, set out as a note under

section 581 of this title.

EFFECTIVE DATE

Section effective Oct. 26, 1978, see section 604 of Pub. L.

95-521, set out as a note under section 591 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 593, 595 of this title.

-End-