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-CITE- 28 USC CHAPTER 3 - COURTS OF APPEALS 01/19/04 -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- -CITE- 28 USC Sec. 41 01/19/04 -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- -CITE- 28 USC Sec. 42 01/19/04 -EXPCITE- 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 01/19/04 -EXPCITE- 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- -CITE- 28 USC Sec. 44 01/19/04 -EXPCITE- 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,

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