28 U.S.C. § 45 — Chief judges; precedence of judges

Page 17 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 45 ‘‘(1) 2 additional circuit judges for the third circuit court of appeals; ‘‘(2) 4 additional circuit judges for the fourth cir- cuit 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.’’ Executive Documents 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 No. 11993, May 24, 1977, 42 F.R. 27197, which related to the United States Circuit Judge Nominating Commission, was revoked by Ex.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established the United States Circuit Judge Nominating Commission and provided for its membership, functions, etc., was revoked by Ex.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, formerly set out as a note under section 1013 of Title 5, Government Orga- nization and Employees. EX. ORD. NO. 13300. FACILITATING THE ADMINISTRATION OF JUSTICE IN THE FEDERAL COURTS Ex. Ord. No. 13300, May 9, 2003, 68 F.R. 25807, provided: By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to promote the prompt appoint- ment of judges to the Federal courts, it is hereby or- dered as follows: SECTION 1. Policy. The Federal courts play a central role in the American justice system. For the Federal courts to function effectively, judicial vacancies in those courts must be filled in a timely manner with well-qualified candidates. SEC. 2. Plan. The presidential plan announced on Oc- tober 30, 2002, calls for timely consideration of judicial nominees, with the President submitting a nomination to fill a vacancy in United States courts of appeals and district courts within 180 days after the President re- ceives notice of a vacancy or intended retirement, ab- sent extraordinary circumstances. SEC. 3. Responsibilities. The Counsel to the President shall take all appropriate steps to ensure that the President is in a position to make timely nominations for judicial vacancies consistent with this plan. All Federal departments and agencies shall assist, as re- quested and permitted by law, in the implementation of this order. SEC. 4. Reservation of Authority. Nothing in this order shall be construed to affect the authority of the Presi- dent to fill vacancies under clause 3 of section 2 of arti- cle II of the Constitution. SEC. 5. Judicial Review. This order is intended only to improve the internal management of the Federal Gov- ernment and is not intended to, and does not, create any right or benefit, substantive or procedural, enforce- able at law or in equity by a party against the United States, its departments, agencies, instrumentalities or entities, its officers or employees, or any other person. GEORGE W. BUSH. § 45. Chief judges; precedence of judges (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 cir- cuit 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 para- graph (1) to serve as chief judge of the circuit. (B) Except as provided in subparagraph (C), a circuit judge acting as chief judge under sub- paragraph (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 at- tends. Other circuit judges of the court in reg- ular active service shall have precedence and preside according to the seniority of their com- missions. Judges whose commissions bear the same date shall have precedence according to se- niority in age. The circuit justice, however, shall have precedence over all the circuit judges and shall preside at any session which he at- tends. (c) If the chief judge desires to be relieved of his duties as chief judge while retaining his ac- tive 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 per- formed 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; Pub. L. 85–593, § 1, Aug. 6, 1958, 72 Stat. 497; Pub. L. 97–164, title II, §§ 201, 204, Apr. 2, 1982, 96 Stat. 51, 53.) HISTORICAL AND REVISION NOTES Based on sections 216 and 216a of title 28, U.S.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 cir- cuit judge’’ in recognition of the great increase in ad- ministrative duties of such judge. Subsection (b) conforms with section 4 of this title relating to precedence of associate justices of the Su- Page 18 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 46 preme Court, and consolidates the provisions of the sec- ond and third sentences of section 216 of title 28, U.S.C., 1940 ed. The designation when filed in the court of ap- peals 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. Editorial Notes AMENDMENTS 1982—Subsec. (a). Pub. L. 97–164, § 201(a), designated existing first sentence of subsec. (a) as par. (1), sub- stituted ‘‘The chief judge of the circuit shall be the cir- cuit 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 pre- viously 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 cir- cuit’’ 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 quali- fications 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 cir- cuit 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, § 204, inserted ‘‘of the court in regular active service’’ after ‘‘circuit judges’’ in sec- ond sentence. Subsec. (c). Pub. L. 97–164, § 201(b), amended subsec. (c) generally, substituting ‘‘the chief judge of the cir- cuit 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 reg- ular 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’’. Statutory Notes and Related Subsidiaries 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 Pub. L. 85–593, § 3, Aug. 6, 1958, 72 Stat. 497, as amend- ed by Pub. L. 95–486, § 4, Oct. 20, 1978, 92 Stat. 1632, pro- vided 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 Pub. L. 97–164, title II, § 203, Apr. 2, 1982, 96 Stat. 53, 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 af- fect 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 Pub. L. 97–164, title I, § 166, Apr. 2, 1982, 96 Stat. 50, provided that: ‘‘Notwithstanding the provisions of sec- tion 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. Notwith- standing 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 ac- cordance with section 45(a) of title 28, United States Code, as modified by the preceding sentence of this sec- tion.’’ CHIEF JUDGE OF COURT OF APPEALS FOR DISTRICT OF COLUMBIA Act June 25, 1948, ch. 646, § 2(a), 62 Stat. 985, 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. § 46. Assignment of judges; panels; hearings; quorum (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 con- troversies by separate panels, each consisting of three judges, at least a majority of whom shall be judges of that court, unless such judges can- not 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 be- cause of illness. Such panels shall sit at the times and places and hear the cases and con- troversies 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 en- sure that all of the judges sit on a representa- tive cross section of the cases heard and, not- withstanding the first sentence of this sub- section, may determine by rule the number of judges, not less than three, who constitute a panel.