28 U.S.C. § 42 — Allotment of Supreme Court justices to cir-

Page 13 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 43 ADMINISTRATIVE ACTION BY FIFTH CIRCUIT COURT OF APPEALS; TERMINATION OF COURT Pub. L. 96–452, § 11, Oct. 14, 1980, 94 Stat. 1996, provided that: ‘‘The court of appeals for the fifth circuit as con- stituted 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 sec- tions 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, § 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 pre- scribed 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, § 1(a), Nov. 8, 1977, 91 Stat. 1265, pro- vided 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 Appel- late System which Commission was to study the geo- graphical division of the judicial circuits and the struc- ture and internal procedures of the appellate court sys- tem and to report to the President, Congress, and the Chief Justice its recommendations for changes in the geographical boundaries of the circuits to expedite dis- position of judicial business and for changes in the ap- pellate 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 sub- mitted June 20, 1975. CONTINUATION OF ORGANIZATION OF COURT Act June 25, 1948, ch. 646, § 2(b), 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 orga- nization 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 there- of 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. § 42. Allotment of Supreme Court justices to cir- cuits 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 allot- ments in vacation. A justice may be assigned to more than one circuit, and two or more justices may be as- signed to the same circuit. (June 25, 1948, ch. 646, 62 Stat. 870.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 215 (Mar. 3, 1911, ch. 231, § 119, 36 Stat. 1131; Dec. 23, 1944, ch. 724, 58 Stat. 925). The authority of the Chief Justice in vacation to as- sign a circuit justice to more than one circuit was ex- tended by omitting the phrase ‘‘whenever by reason of death or resignation, no Justice is allotted to a cir- cuit.’’ 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 in- tent of Congress that the powers of the Court to assign the justices among the several circuits should be com- pletely flexible. Changes were made in phraseology. § 43. Creation and composition of courts (a) There shall be in each circuit a court of ap- peals, which shall be a court of record, known as the United States Court of Appeals for the cir- cuit. (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 com- petent to sit as judges of the court. (June 25, 1948, ch. 646, 62 Stat. 870; Pub. L. 88–176, § 1(a), Nov. 13, 1963, 77 Stat. 331.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 212 (Mar. 3, 1911, ch. 231, § 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 jus- tices 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 ju- risdiction 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. Editorial Notes AMENDMENTS 1963—Subsec. (b). Pub. L. 88–176 inserted ‘‘regular’’ be- fore ‘‘active service’’. Statutory Notes and Related Subsidiaries CHANGE OF NAME OF COURT Act June 25, 1948, ch. 646, § 2(b), 62 Stat. 985, provided in part that each circuit court of appeals should, after Sept. 1, 1948, be known as a United States Court of Ap- peals, 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.