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466; June 25, 1948, ch. 646, $ 23, 62 Stat. 990 [former Jurisdiction of Supreme Court, see sections 1251 et seq. section 861b of Title 28), provided that: "All Acts of of this title. Congress referring to writs of error shall be construed

RULES OF THE SUPREME COURT as amended to the extent necessary to substitute appeal

See Appendix to this title. for writ of error." WRITS OF ERROR

8 1. Number of justices; quorum. Act Jan. 31, 1928, ch. 14, § 1, 46 Stat. 54 (former section The Supreme Court of the United States shall con861a of Title 28), provided that: “The writ of error in

sist of a Chief Justice of the United States and eight cases, civil and criminal, is abolished. All relief which

associate justices, any six of whom shall constitute a heretofore (Jan. 31, 1928] could be obtained by writ of error shall hereafter be obtainable by appeal." This

quorum. (June 25, 1948, ch. 646, 62 Stat. 869.) provision was omitted from the 1948 Revised Judicial

LEGISLATIVE HISTORY Code as obsolete, and repealed by act June 25, 1948,

Reviser's Note.-Based on title 28, U. S. C., 1940 ed., ch. 646, $ 39, 62 Stat. 992.

$ 321 (Mar. 3, 1911, ch. 231, $215, 36 Stat. 1152). TITLE 28 AS CONTINUATION OF EXISTING LAW; CHANGE OF Appointment of "judges of the Supreme Court" by the NAME OF CIRCUIT COURTS OF APPEALS

President by and with the advice and consent of the Section 2 (b) of act June 25, 1948, ch. 646, 62 Stat. 985, Senate is provided by U. S. Constitution art. 2, $ 2, cl. 2. provided that: "The provisions of Title 28, Judiciary and

CROSS REFERENCES Judicial Procedure, of the United States Code, set out in

Appointment of Supreme Court Justices, see U. S. section 1 of this Act, with respect to the organization of

Const., Art. 2, $ 2, cl. 2. each of the several courts therein provided for and of the

Creation of Supreme Court, see U. S. Const., Art. 3, & 1. Administrative Office of the United States Courts, shall

Justices to hold office during good behavior, see U. S. be construed as continuations of existing law, and the

Const., Art. 3, $ 1. tenure of the judges, officers, and employees thereof and

Oath of Justice, see section 453 of this title. of the United States attorneys and marshals and their

Oficial station of Supreme Court Justices, see section deputies and assistants, in office on the effective date of

456 of this title. this Act (Sept. 1, 1948), shall not be affected by its enactment, but each of them shall continue to serve in the

RULES OF THE SUPREME COURT same capacity under the appropriate provisions of title

Quorum and adjournments, see rule 4, Appendix to this 28, as set out in section 1 of this Act, pursuant to his prior

title. appointment: Provided, however, That each circuit court of appeals shall, as in sald title 28 set out, hereafter be 82. Terms of court. known as a United States court of appeals. No loss of rights, Interruption of jurisdiction, or prejudice to mat

The Supreme Court shall hold at the seat of govters pending in any of such courts on the effective date of ernment a term of court commencing on the first this Act shall result from its enactment."

Monday in October of each year and may hold such CROSS REFERENCES

adjourned or special terms as may be necessary. Department of Justice, see chapter 5 of Title 5, Execu (June 25, 1948, ch. 646, 62 Stat. 869.) tive Departments and Government Officers and Em

LEGISLATIVE HISTORY ployees. District of Columbia, organization of courts, see Title

Reviser's Note.-Based on title 28, U. S. C., 1940 ed., 11 of District of Columbia Code, 1961 ed.

$ 338 (Mar. 3, 1911, ch. 231, $ 230, 36 Stat. 1156; Sept. 6, Tax Court of the United States, see section 7441 et seq.

1916, ch. 448, § 1, 39 Stat. 726). of Title 26, Internal Revenue Code.

Minor changes in phraseology were made. Territorial courts, see Title 48, Territories and Insular

CROSS REFERENCES Possessions.

Courts always open, see section 452 of this title.

Official station of Supreme Court Justices, see section Part I.-ORGANIZATION OF COURTS 456 of this title.

Seat of the Government, see chapter 3 of Title 4, Flag Chap.

Sec. and Seal, Seat of Government, and the States. 1. Supreme Court...

RULES OF THE SUPREME COURT 3. Courts of appeals.....

Term, see rule 3, Appendix to this title. 5. District courts......... 7. Court of Claims...

83. Vacancy in office of Chief Justice; disability. 9. Court of Customs and Patent Appeal

Whenever the Chief Justice is unable to perform 11. Customs Court .....

the duties of his office or the office is vacant, his pow13. Assignment of judges to other courts...

ers and duties shall devolve upon the associate justice 15. Conferences and councils of judges.......

next in precedence who is able to act, until such 17. Resignation and retirement of judges...... disability is removed or another Chief Justice is ap19. Distribution of reports and digests......... pointed and duly qualified. (June 25, 1948, ch. 646, 21. General provisions applicable to courts and

62 Stat. 869.) judges........ -------- 451

LEGISLATIVE HISTORY

Reviser's Note.-Based on title 28, U. S. C., 1940 ed., Chapter 1.-SUPREME COURT

$ 323 (Mar. 3, 1911, ch. 231, $ 217, 36 Stat. 1152). Sec.

The sentence, “This provision shall apply to every AsNumber of justices; quorum.

sociate Justice who succeeds to the office of Chief Justice", Terms of court.

was omitted as covered by last portion of revised section. Vacancy in omce of Chief Justice; disability.

Minor changes were made in phraseology. Precedence of associate justices.

For seniority of commissions, see section 4 of this title. Salaries of justices. Records of former court of appeals.

84. Precedence of associate justices. CROSS REFERENCES

Associate justices shall have precedence according Allotment of Supreme Court Justices to circuits, see

to the seniority of their commissions. Justices section 42 of this title.

whose commissions bear the same date shall have Circult justices competent to sit as judges of the courts precedence according to seniority in age. (June 25, of appeals, see section 43 of this title.

1948, ch. 646, 62 Stat. 869.)

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Constitution, shall be kept until deposited with the National Archives of the United States in the office of the clerk of the Supreme Court, who shall furnish copies thereof to any person requiring and paying for

copies of the records and proceedings of the Supreme Court. Such copies shall have the same faith and credit as proceedings of the Supreme Court. (June 25, 1948, ch. 646, 62 Stat. 870; Oct. 25, 1951, ch. 562, § 4 (7), 65 Stat. 640.)

LEGISLATIVE HISTORY Reviser's Note. Based on title 28, U. S. C., 1940 ed., $ 329 (Mar. 3, 1911, ch. 231, § 222, 36 Stat. 1153).

In a letter dated August 8, 1944, the clerk of the Supreme Court advised that many of the early records mentioned in this section were destroyed by fire. Others are on file in the Clerk's office. Minor changes in phraseology were made.

AMENDMENTS 1951—Act Oct. 25, 1951, inserted “until deposited with the National Archives of the United States" in first sentence.

CROSS REFERENCES Management and disposition of records, see chapters 10 and 11 of Title 44, Public Printing and Documents.

LEGISLATIVE HISTORY Reviser's Note.-Based on title 28, U.S.C., 1950 ed., $ 322 (Mar. 3, 1911, ch. 231, $ 216, 36 Stat. 1152).

Minor changes in phraseology were made. 85. Salaries of justices.

The Chief Justice shall receive a salary of $40,000 a year, and each associate Justice shall receive a salary of $39,500 a year. (June 25, 1948, ch. 646, 62 Stat. 870: Mar. 2, 1955, ch. 9, § 1(a), 69 Stat. 9; Aug. 14, 1964, Pub. L. 88–426, title IV, $ 403(a), 78 Stat. 434.)

LEGISLATIVE HISTORY Reviser's Note. Based on title 28, U. 8. C., 1940 ed., $324 (Mar. 3, 1911, ch. 231, $ 218, 36 Stat. 1152; Dec. 13, 1926, ch. 6, § 1, 44 Stat. 919; July 31, 1946, ch. 704, $1, 60 Stat. 716).

The provision "to be paid monthly" was omitted since the time of payment of salaries is a matter of administrative convenience. (See 20 Comp. Gen. 834.) Minor changes in phraseology were made.

AMENDMENTS 1964—Pub. L. 88–426 increased the salary of the Chief Justice from $35,500 to $40,000 and that of the Associate Justices from $35,000 to $39,500.

1955-Act Mar. 2, 1955, increased the salary of the Chief Justice from $25,500 to $35,500 and the salaries of the Associate Justices from $25,000 to $35,000 a year.

EFFECTIVE DATE OF 1964 AMENDMENT Amendment of section by Pub. L. 88–426 effective on the first day of the first pay period which begins on or after July 1, 1964, except to the extent provided in section 501(C) of Pub. L. 88-426, see section 501 of Pub. L. 88–426, set out as a note under section 1113 of Title 5, Executive Departments and Government Officers and Employees.

EFFECTIVE DATE OF 1955 AMENDMENT Amendment to this section by act Mar. 2, 1955, effective Mar. 1, 1955, see note under section 31 of Title 2, The Congress.

SHORT TITLE Section 401 of Pub. L. 88–426 provided that: “This title (amending this section and sections 44, 135, 173, 213, 252, 603, and 792 of this title, section 867 of Title 10, section 68 of Title 11, and section 7443 of Title 26, and enacting provisions set out as notes under sections 603, 604 and 753 of this title] may be cited as the 'Federal Judicial Salary Act of 1964'."

INCREASE OF SALARIES Prior to June 25, 1948, salaries of justices were increased as follows:

The salary of the Chief Justice was increased from $20,500 to $25,500 a year, and the salaries of the associate justices were increased from $20,000 to $25,000 a year, by act July 31, 1946, ch. 704, § 1, 60 Stat. 716.

The salary of the Chief Justice was increased from $15,000 to $20,500 a year, and the salaries of the associate Justices were increased from $14,500 to $20,000 a year, by act Dec. 13, 1926, ch. 6, 1, 44 Stat. 919.

The salary of the Chief Justice was set at $15,000 a year and the salaries of the associate justices were set at $14,500 a year by the Judicial Code of 1911, act Mar. 3, 1911, ch. 231, § 1, 36 Stat. 1152.

CROSS REFERENCES Compensation not to be diminished during continuance in office, see U. S. Const. Art. 3, § 1.

Payment of salaries by marshal of Supreme Court, see section 672 of this title.

Retirement of Justices, see sections 871 et seq. of this title.

Traveling and subsistence expenses of Justices, payment of, see section 456 of this title.

Chapter 3.-COURTS OF APPEALS 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; divisions; hearings; quorum. 47. Disqualification of trial judge to hear appeal. 48. Terms of court.

CROSS REFERENCES Jurisdiction of courts of appeals, see sections 1291 et seq. of this title.

8 41. Number and composition of circuits.

The eleven 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, Ver

mont. Third ---------

Delaware, New Jersey, Penn

sylvania, Virgin Islands. Fourth..

Maryland, North Carolina,

South Carolina, Virginia,

West Virginia. Fifth---------------- Alabama, Canal Zone, Flor

ida, Georgia, 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.

$6. Records of former court of appeals.

The records and proceedings of the court of appeals, appointed previous to the adoption of the

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 omce 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.

PUERTO RICO The name of the island of "Porto Rico" was changed to "Puerto Rico" by act May 17, 1932, ch. 190, 47 Stat. 158.

TENTH JUDICIAL CIRCUIT Act Feb. 28, 1929, ch. 363, § 1, 45 Stat. 1346, divided the eighth judicial circuit and created the tenth judicial cir. cult. Prior to such division the eighth judicial circuit included, in addition, the States now constituting the tenth judicial circuit.

CROSS REFERENCES Circuits in which decisions are reviewable, see section 1294 of this title.

Circuits

Composition Tenth------

----. Colorado, Kansas, New

Mexico, Oklahoma, Utah,

Wyoming. (June 25, 1948, ch. 646, 62 Stat. 870; Oct. 31, 1951, ch. 655, $ 34, 65 Stat. 723.)

LEGISLATIVE HISTORY Reviser's Note.-Based on title 28, U. S. C. 1940 ed., $ 211, and section 864 of title 48, U.S. C., 1940 ed., Territories and Insular Possessions (Apr. 12, 1900, ch. 191, $ 36, 31 Stat. 85;. Mar. 3, 1911, ch. 281, $ 116, 36 Stat. 1181; Jan. 28, 1916, ch. 22, $$ 1, 2, 38 Stat. 803; Mar. 2, 1917, ch. 145, $ 42, 89 Stat. 968; Feb. 13, 1926, ch. 229, $81, 13, 43 Stat. 936, 942; Jan. 31, 1928, ch. 14, $ 1, 45 Stat. 54; Feb. 28, 1929, ch. 363, § 1, 45 Stat. 1846; May 17, 1932, ch, 190, 47 Stat. 158).

Form of section was simplified.

The District of Columbia was added as a separate circult. 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 $ 238 (a), but repealed by act Feb. 13, 1925, ch. 229, $ 13, 48 Stat. 942. (See Swift and Co. V. U. S., 1928, 48 8. Ct. 811, 276 U. 8. 811, 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, 66 8. Ct. 1157, at page 1160, 325 U. 8. 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. 926, which amended section 216 of title 28, U. S. C., 1940 ed., incorporated in section 42 of this title. Such amend. ment provided that for the purposes of sald section 216 "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, 68 Stat. 926.)

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. 761; Apr. 6, 1942, ch. 210, 68 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 8. 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, 78 L. Ed. 838.

Alaska, Canal Zone, and Virgin Islands were added to the 9th, 6th, and 3rd Circuits, respectively, to conform to section 1294 of this title.

Some of the provisions of section 864 of title 48, U. 8. 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 1951—Act Oct. 31, 1951, inserted a reference to Guam in that part relating to composition of the Ninth judicial circuit.

CONTINUATION OF ORGANIZATION OF COURT Section 2 (b) of act June 25, 1948, ch. 646, 62 Stat. 869, 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

8 42. Allotment of Supreme Court justices to circuits.

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

LEGISLATIVE HISTORY Reviser's Note.-Based on title 28, U. S. C., 1940 ed., $ 215 (Mar. 3, 1911, ch. 231, $ 119, 36 Stat. 1131; Dec. 28, 1944, ch. 724, 58 Stat. 926).

The authority of the Chief Justice in vacation to assign & 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. 8. 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. 8 43. Creation and composition of courts.

(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. June 25, 1948, ch. 646, 62 Stat. 870; Nov. 13, 1963, Pub. L. 88–176, § 1(a), 77 Stat. 331.)

LEGISLATIVE HISTORY Reviser's Note.-Based on title 28, U. S. C., 1940 ed., $ 212 (Mar. 3, 1911, ch. 231, § 117, 36 Stat. 1181).

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 iserted "regular" preceding "active service."

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
entall any loss of rights, interruption of jurisdictions, or
prejudice to matters pending in any such courts on Sept.
1, 1948.

Cross REFERENCES
Assignment of circuit judges and judges of Court of
Claims to other circuits or courts, see sections 291 et seq.
of this title.

Authority to create courts inferior to Supreme Court, see U. 8. Const., Art. 3, $ 1.

Three

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8 44. Appointment, tenure, residence and salary of

circuit judges. (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

Nine
First-----
Second

Nine
Third-

Eight Fourth.

Five Fifth.-----

Nine Sixth.

Six Seventh..

Seven Eighth.

Seven Ninth.---------------------------

Nine Tenth_

------ Six (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.

(d) Each circuit judge shall receive a salary of $33,000 a year. (June 25, 1948, ch. 646, 62 Stat. 871; Aug. 3, 1949, ch. 387, § 1, 63 Stat. 493; Feb. 10, 1954, ch. 6, § 1, 68 Stat. 8; Mar. 2, 1955, ch. 9, § 1 (b), 69 Stat. 10; May 19, 1961, Pub. L. 87-36, $ 1(b), 75 Stat. 80; Aug. 14, 1964, Pub. L. 88 426, title IV, $ 403(b), 78 Stat. 434.)

LEGISLATIVE HISTORY Reviser's Note.-Based on title 28, U. 8. C., 1940 ed., $ 213, and sections 11–201, 11-202, District of Columbia Code, 1940 ed. (Feb. 9, 1893, ch. 74, $ 1,27 stat. 434; Mar. 3, 1901, ch. 854, $$ 221, 222, 81 Stat. 1224; Mar. 3, 1911, ch. 231,

118, 36 Stat. 1131; Jan. 13, 1912, ch. 9, 37 Stat. 52; Feb. 25, 1919, ch. 29, 82, 40 Stat. 1156; Sept. 14, 1922, ch. 306, 16, 42 Stat. 840; Mar. 3, 1925, ch. 437, 43 Stat. 1116; Dec. 13, 1926, ch. 6, § 1, 44 Stat. 919; Feb. 28, 1929, ch. 363, $ 2, 45 Stat. 1347; Mar. 1, 1929, ch. 413, $$ 1, 2, 45 Stat. 1414; June 10, 1930, ch. 437, 46 Stat. 588; June 10, 1930, ch. 438, 46 Stat. 538; June 19, 1930, ch. 638, 46 Stat. 785; June 16, 1933, ch. 102, 48 Stat. 310; Aug. 2, 1935, ch. 425, § 1, 49 Stat. 508; June 24, 1936, ch. 735, $ 1, 49 Stat. 1903; Apr. 14, 1937, ch. 80, 50 Stat. 64; May 31, 1938, ch. 290, $$1, 3, 62 Stat.

584, 585; May 24, 1940, ch. 209, $1, 54 Stat. 219; Dec. 14, 1942, ch. 731, 56 Stat. 1050; Dec. 7, 1944, ch. 521, § 1, 58 Stat. 796; July 31, 1946, ch. 704, § 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 circult 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, $ 4, and R. S. $ 608, enacted June 22, 1874. R. 8. $ 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" wher. applied to any circuit included such justice.

The Judiciary Appropriation Act, 1945, Act June 26, 1944, ch. 277, $ 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 Columbla 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. Elcher, D. C. 1944, 56 F. Supp. 972, holding that residence requirement of section 1 of title 28, U. 8. O., 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. 8.
Constitution, art. 3.
Changes were made in phraseology.

AMENDMENTS
1964—Subsec. (d). Pub. L. 88-426 Increased the salary
of the circult 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 Circult, 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 circult judges from "817,500" a year to "$25,500".

1954—Subsec. (a). Act Feb. 10, 1954, increased the number of circuit judges in the Fifth Circult 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.

Judges to hold office during good behavior, see U. 8. Const., Art. 3, § 1.

Oath of judge, see section 453 of this title.

Official station of circuit judges, see section 456 of this title.

Payment of salaries by United States marshal, see section 550 of this title.

Retirement of judges, see sections 371 et seq. of this title.

EFFECTIVE DATE OF 1964 AMENDMENT Amendment of section by Pub. L. 88-426 effective on the first day of the first pay period which begins on or after July 1, 1964, except to the extent provided in section 501(c) of Pub. L. 88-426, see section 501 of Pub. L. 88–426, set out as a note under section 1113 of Title 5, Executive Departments and Government Officers and Employees.

EFFECTIVE DATE OF 1955 AMENDMENT Amendment to this section by act Mar. 2, 1955, effective Mar. 1, 1955, see note under section 31 of Title 2, The Congress.

INCREASE OF SALARIES Prior to June 25, 1948, salaries of circuit Judges were increased as follows:

The salaries of the circuit judges were increased from $12,500 to $17,500 a year by act July 31, 1946, ch. 704, § 1, 60 Stat. 716.

The salaries of the circuit judges were increased from $8,500 to $12,500 a year by act Dec. 13, 1926, ch. 6, § 1, 44 Stat. 919.

The salaries of the circuit judges were increased from 87,000 to $8,500 a year by act Feb. 25, 1919, ch. 29, $1, 40 Stat. 1156.

Salaries of circuit court judges had been set at $7,000 a year by the Judicial Code of 1911, act Mar. 3, 1911, ch. 231, $ 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, $ 1, 52 Stat. 584.

Third circuit. Act Aug. 3, 1949, ch 387, § 1, 83 Stat. 493; act Dec. 7, 1944, ch. 521, § 1, 58 Stat. 796; act June 10, 1930, ch. 438, 46 Stat. 538.

Act June 24, 1936, ch. 735, § 1, 49 Stat. 1903, repealed by act May 31, 1938, ch 290, 83, 52 Stat. 685.

Fifth circult. Act Dec. 14, 1942, ch. 731, 56 Stat. 1050; act May 31, 1938, ch. 290, $ 1, 52 Stat. 584; act June 10, 1930, ch. 437, 46 Stat. 598.

Sixth circuit. Act May 24, 1940, ch. 209, $1, 54 Stat. 219; act May 31, 1938, ch. 290, § 1, 52 Stat. 584.

Seventh circuit. Act Aug. 3, 1949, ch. 387, § 1, 63 Stat. 493; act May 31, 1938, ch. 290, $ 1,52 Stat. 684.

Eighth circuit. Act May 24, 1940, ch. 209, 61, 64 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, $ 1, 49 Stat. 508; act June 16, 1933, ch. 102, 48 Stat. 310 (removing limitation on Alling of vacancy); act Mar. 1, 1929, ch. 413, 45 Stat. 1414.

Tenth circuit. Act Aug. 3, 1949, ch. 387, $ 1, 83 Stat. 493.

District of Columbia Court of Appeals. Act Aug. 3, 1949, ch. 387, § 1, 63 Stat. 493; act May 31, 1938, ch. 290 $ 2, 52 Stat. 584; act June 19, 1930, ch. 538, 46 Stat. 785.

Act Feb. 28, 1929, ch. 363, § 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."

CROSS REFERENCES Assignment of circuit judges to other circuits or courts, see sections 291 et seq. of this title.

Compensation not to be diminished during continuance in omce, see U.S. Const., Art. 3, $ 1.

8 45. Chief judges; precedence of judges.

(a) 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. 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.

(b) The chief judge shall have precedence and preside at any session of the court which he attends. Other circuit judges 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 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.

(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. (June 25, 1948, ch. 646, 62 Stat. 871; Oct. 31, 1951, ch. 655, $ 35, 65 Stat. 723; Aug. 6, 1958, Pub. L. 85-593, § 1, 72 Stat. 497.)

LEGISLATIVE HISTORY Reviser's Note.-Based on sections 216 and 216a of title 28, U. $. C., 1940 ed. (Mar. 3, 1911, ch. 231, $ 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 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 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

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