28 U.S.C. § 137 — Division of business among district judges

Page 73 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 137 (June 25, 1948, ch. 646, 62 Stat. 897; Oct. 31, 1951, ch. 655, § 37, 65 Stat. 723; Pub. L. 85–593, § 2, Aug. 6, 1958, 72 Stat. 497; Pub. L. 97–164, title II, § 202, Apr. 2, 1982, 96 Stat. 52.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 375 and District of Columbia Code, 1940 ed., § 11–301 (Mar. 3, 1901, ch. 854, §§ 60, 61, 31 Stat. 1199; Mar. 3, 1911, ch. 231, § 260, 36 Stat. 1161; Mar. 3, 1911, ch. 231, § 289, 32 Stat. 1167; Feb. 25, 1919, ch. 29, § 6, 40 Stat. 1157; Dec. 20, 1928, ch. 41, 45 Stat. 1056; Mar. 1, 1929, ch. 419, 45 Stat. 1422; June 19, 1930, ch. 537, 46 Stat. 785; May 31, 1938, ch. 290, § 5, 52 Stat. 584). Section consolidates portions of section 375 of title 28, U.S.C., 1940 ed., and section 11–301 of the District of Columbia Code, 1940 ed. The provisions of said section 375 relating to resignation and retirement of judges, and appointment of court officers, are incorporated in sections 294, 371, and 756 of this title. Other provisions of said section 11–301 of the District of Columbia Code are incorporated in section 133 of this title. Subsection (a), providing for a ‘‘chief judge’’ is new. Such term replaces the terms ‘‘senior district judge,’’ and ‘‘Chief Justice’’ of the District Court in the Dis- trict of Columbia. It is employed in view of the great increase of administrative duties of such judge. The use of the term ‘‘chief judge’’ with respect to the District of Columbia will result in uniform nomenclature for all district courts. The district judges of that court have expressed approval of such designation. The provision in said section 11–301 of the District of Columbia Code, 1940 ed., that the ‘‘Chief Justice’’ shall be appointed by the President, by and with the advice and consent of the Senate, was omitted for the purpose of establishing a uniform method of creating the posi- tion of chief judge in all districts. The District of Co- lumbia is expressly made a judicial district by section 88 of this title. Subsection (b) is new and conforms with similar pro- visions respecting associate justices of the Supreme Court and circuit judges in sections 4 and 45 of this title. Subsection (c) is from the proviso in the second para- graph of section 375 of title 28, U.S.C., 1940 ed., which applied only in cases of appointment of court officers. Here it is made applicable to all district judges. Subsections (d) and (e) are new, and conform with section 44 of this title relating to precedence of circuit judges. The official status of the Chief Justice of the District Court for the District of Columbia holding office at the effective date of this act is preserved by section 2 of the bill to enact revised title 28. Editorial Notes AMENDMENTS 1982—Subsec. (a). Pub. L. 97–164, § 202(a), designated existing first sentence of subsec. (a) as par. (1), sub- stituted ‘‘In any district having more than one district judge, the chief judge of the district shall be the dis- trict 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 district judge; and (C) have not served pre- viously as chief judge’’ for ‘‘In each district having more than one judge the district judge in regular active service who is senior in commission and under seventy years of age shall be the chief judge of the district court’’ in par. (1) as so designated, designated existing second sentence of subsec. (a) as par. (2)(A), substituted ‘‘In any case in which no district judge meets the quali- fications of paragraph (1), the youngest district judge in regular active service who is sixty-five years of age or over and who has served as district judge for one year or more shall act as the chief judge’’ for ‘‘If all the district 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 district judge for one year’’ in par. (2)(A) as so designated, and added pars. (2)(B) and (3). Subsec. (d). Pub. L. 97–164, § 202(b), substituted ‘‘and thereafter, the chief judge of the district shall be such other district judge who is qualified to serve or act as chief judge under subsection (a)’’ for ‘‘and thereafter the district judge in active service next in precedence and willing to serve shall be designated by the Chief Justice as the chief judge of the district court’’. 1958—Subsec. (a). Pub. L. 85–593 provided that chief judges of district courts cease to serve as such upon reaching the age of seventy, that the youngest district judge act as chief judge where all district judges in reg- ular active service are seventy years or older until a judge under seventy has been appointed and qualified, and that district judge must have served one year be- fore 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 Amendment by Pub. L. 85–593 effective at expiration of one year from Aug. 6, 1958, see section 3 of Pub. L. 85–593, as amended, set out as a note under section 45 of this title. SAVINGS PROVISION Amendment by Pub. L. 97–164 not to apply or affect any person serving as chief judge on the effective date of Pub. L. 97–164 [Oct. 1, 1982], and the provisions of sub- sec. (a) of this section as in effect on the day before the effective date of part A of title II of Pub. L. 97–164 [Oct. 1, 1982] applicable to the chief judge of a district court serving on such effective date, see section 203 of Pub. L. 97–164, set out as a note under section 45 of this title. § 137. Division of business among district judges (a) IN GENERAL.—The business of a court hav- ing more than one judge shall be divided among the judges as provided by the rules and orders of the court. The chief judge of the district court shall be responsible for the observance of such rules and orders, and shall divide the business and assign the cases so far as such rules and orders do not otherwise prescribe. If the district judges in any district are unable to agree upon the adoption of rules or orders for that purpose the judicial council of the circuit shall make the necessary orders. (b) RANDOM ASSIGNMENT OF RATE COURT PRO- CEEDINGS.— (1) IN GENERAL.— (A) DEFINITION.—In this paragraph, the term ‘‘performing rights society’’ has the meaning given the term in section 101 of title 17. (B) DETERMINATION OF LICENSE FEE.—Ex- cept as provided in subparagraph (C), in the case of any performing rights society subject to a consent decree, any application for the determination of a license fee for the public performance of music in accordance with the applicable consent decree shall be made in the district court with jurisdiction over that consent decree and randomly assigned to a Page 74 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 137 judge of that district court according to the rules of that court for the division of busi- ness among district judges, provided that any such application shall not be assigned to— (i) a judge to whom continuing jurisdic- tion over any performing rights society for any performing rights society consent de- cree is assigned or has previously been as- signed; or (ii) a judge to whom another proceeding concerning an application for the deter- mination of a reasonable license fee is as- signed at the time of the filing of the ap- plication. (C) EXCEPTION.—Subparagraph (B) does not apply to an application to determine reason- able license fees made by individual propri- etors under section 513 of title 17. (2) RULE OF CONSTRUCTION.—Nothing in para- graph (1) shall modify the rights of any party to a consent decree or to a proceeding to de- termine reasonable license fees, to make an application for the construction of any provi- sion of the applicable consent decree. Such ap- plication shall be referred to the judge to whom continuing jurisdiction over the appli- cable consent decree is currently assigned. If any such application is made in connection with a rate proceeding, such rate proceeding shall be stayed until the final determination of the construction application. Disputes in connection with a rate proceeding about whether a licensee is similarly situated to an- other licensee shall not be subject to referral to the judge with continuing jurisdiction over the applicable consent decree. (June 25, 1948, ch. 646, 62 Stat. 897; Pub. L. 115–264, title I, § 104, Oct. 11, 2018, 132 Stat. 3726.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 27 (Mar. 3, 1911, ch. 231, § 23, 36 Stat. 1090). Section was rewritten and the practice simplified. It provided for division of business and assignment of cases by agreement of judges and, in case of inability to agree, that the senior circuit judge of the circuit should make necessary orders. The revised section is consistent with section 332 of this title, that the last paragraph of which requires the judicial council to make all necessary orders for the ef- fective and expeditious administration of the business of the courts within the circuit. Editorial Notes AMENDMENTS 2018—Pub. L. 115–264 designated existing provisions as subsec. (a), inserted heading, and added subsec. (b). Statutory Notes and Related Subsidiaries PILOT PROGRAM IN CERTAIN DISTRICT COURTS Pub. L. 111–349, Jan. 4, 2011, § 1, 124 Stat. 3674, provided that: ‘‘(a) ESTABLISHMENT.— ‘‘(1) IN GENERAL.—There is established a program, in each of the United States district courts des- ignated under subsection (b), under which— ‘‘(A) those district judges of that district court who request to hear cases under which 1 or more issues arising under any Act of Congress relating to patents or plant variety protection are required to be decided, are designated by the chief judge of the court to hear those cases; ‘‘(B) cases described in subparagraph (A) are ran- domly assigned to the judges of the district court, regardless of whether the judges are designated under subparagraph (A); ‘‘(C) a judge not designated under subparagraph (A) to whom a case is assigned under subparagraph (B) may decline to accept the case; and ‘‘(D) a case declined under subparagraph (C) is randomly reassigned to 1 of those judges of the court designated under subparagraph (A). ‘‘(2) SENIOR JUDGES.—Senior judges of a district court may be designated under paragraph (1)(A) if at least 1 judge of the court in regular active service is also so designated. ‘‘(3) RIGHT TO TRANSFER CASES PRESERVED.—This section shall not be construed to limit the ability of a judge to request the reassignment of or otherwise transfer a case to which the judge is assigned under this section, in accordance with otherwise applicable rules of the court. ‘‘(b) DESIGNATION.— ‘‘(1) IN GENERAL.—Not later than 6 months after the date of the enactment of this Act [Jan. 4, 2011], the Director of the Administrative Office of the United States Courts shall designate not less than 6 United States district courts, in at least 3 different judicial circuits, in which the program established under sub- section (a) will be carried out. ‘‘(2) CRITERIA FOR DESIGNATIONS.— ‘‘(A) IN GENERAL.—The Director shall make des- ignations under paragraph (1) from— ‘‘(i) the 15 district courts in which the largest number of patent and plant variety protection cases were filed in the most recent calendar year that has ended; or ‘‘(ii) the district courts that have adopted, or certified to the Director the intention to adopt, local rules for patent and plant variety protection cases. ‘‘(B) SELECTION OF COURTS.—From amongst the district courts that satisfy the criteria for designa- tion under this subsection, the Director shall se- lect— ‘‘(i) 3 district courts that each have at least 10 district judges authorized to be appointed by the President, whether under section 133(a) of title 28, United States Code, or on a temporary basis under any other provision of law, and at least 3 judges of the court have made the request under subsection (a)(1)(A); and ‘‘(ii) 3 district courts that each have fewer than 10 district judges authorized to be appointed by the President, whether under section 133(a) of title 28, United States Code, or on a temporary basis under any other provision of law, and at least 2 judges of the court have made the request under subsection (a)(1)(A). ‘‘(c) DURATION.—The program established under sub- section (a) shall terminate 10 years after the end of the 6-month period described in subsection (b). ‘‘(d) APPLICABILITY.—The program established under subsection (a) shall apply in a district court designated under subsection (b) only to cases commenced on or after the date of such designation. ‘‘(e) REPORTS TO CONGRESS.— ‘‘(1) IN GENERAL.—At the times specified in para- graph (2), the Director of the Administrative Office of the United States Courts, in consultation with the chief judge of each of the district courts designated under subsection (b) and the Director of the Federal Judicial Center, shall submit to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate a report on the pilot program established under subsection (a). The report shall include— ‘‘(A) an analysis of the extent to which the pro- gram has succeeded in developing expertise in pat- Page 75 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 140 ent and plant variety protection cases among the district judges of the district courts so designated; ‘‘(B) an analysis of the extent to which the pro- gram has improved the efficiency of the courts in- volved by reason of such expertise; ‘‘(C) with respect to patent cases handled by the judges designated pursuant to subsection (a)(1)(A) and judges not so designated, a comparison between the 2 groups of judges with respect to— ‘‘(i) the rate of reversal by the Court of Appeals for the Federal Circuit, of such cases on the issues of claim construction and substantive pat- ent law; and ‘‘(ii) the period of time elapsed from the date on which a case is filed to the date on which trial be- gins or summary judgment is entered; ‘‘(D) a discussion of any evidence indicating that litigants select certain of the judicial districts des- ignated under subsection (b) in an attempt to en- sure a given outcome; and ‘‘(E) an analysis of whether the pilot program should be extended to other district courts, or should be made permanent and apply to all district courts. ‘‘(2) TIMETABLE FOR REPORTS.—The times referred to in paragraph (1) are— ‘‘(A) not later than the date that is 5 years and 3 months after the end of the 6-month period de- scribed in subsection (b); and ‘‘(B) not later than 5 years after the date de- scribed in subparagraph (A). ‘‘(3) PERIODIC REPORTS.—The Director of the Admin- istrative Office of the United States Courts, in con- sultation with the chief judge of each of the district courts designated under subsection (b) and the Direc- tor of the Federal Judicial Center, shall keep the committees referred to in paragraph (1) informed, on a periodic basis while the pilot program is in effect, with respect to the matters referred to in subpara- graphs (A) through (E) of paragraph (1).’’ § 138. Terms abolished The district court shall not hold formal terms. (June 25, 1948, ch. 646, 62 Stat. 897; Pub. L. 88–139, § 1, Oct. 16, 1963, 77 Stat. 248.) HISTORICAL AND REVISION NOTES This section was substituted for a number of special provisions fixing stated times for holding terms of court in the several districts, in order to vest in the courts wider discretion and promote greater efficiency in the administration of the business of such courts. Editorial Notes AMENDMENTS 1963—Pub. L. 88–139 substituted ‘‘The district court shall not hold formal terms’’ for ‘‘The times for holding regular terms of court at the places fixed by this chap- ter shall be determined by rule of the district court’’ in text, and ‘‘Terms abolished’’ for ‘‘Times for holding regular terms’’ in section catchline. § 139. Times for holding regular sessions The times for commencing regular sessions of the district court for transacting judicial busi- ness at the places fixed by this chapter shall be determined by the rules or orders of the court. Such rules or orders may provide that at one or more of such places the court shall be in contin- uous session for such purposes on all business days throughout the year. At other places a ses- sion of the court shall continue for such pur- poses until terminated by order of final adjourn- ment or by commencement of the next regular session at the same place. (June 25, 1948, ch. 646, 62 Stat. 897; Pub. L. 88–139, § 1, Oct. 16, 1963, 77 Stat. 248.) HISTORICAL AND REVISION NOTES The purpose of this section is to remove all doubt as to whether the mere beginning of a new term at one place ends a prior term begun at another place. As re- vised, it conforms to a uniform course of judicial deci- sions. See U.S. v. Perlstein, 39 F.Supp. 965, 968 (D.C.N.J. 1941), and cases cited. Editorial Notes AMENDMENTS 1963—Pub. L. 88–139 substituted provisions requiring the times for commencing regular sessions of the dis- trict court to be determined by the rules or orders of the court, authorizing such rules or orders to provide that at one or more of the places fixed by this chapter, the court shall be in continuous session on all business days throughout the year, and that at other places, a session continues until terminated by order of final ad- journment or by commencement of the next regular session at the same place, for provisions that a term continues until terminated by order of final adjourn- ment or by commencement of the next term at the same place, in the text, and ‘‘Times for holding regular sessions’’ for ‘‘Term continued until terminated’’ in section catchline. § 140. Adjournment (a) Any district court may, by order made any- where within its district, adjourn or, with the consent of the judicial council of the circuit, pretermit any regular session of court for insuf- ficient business or other good cause. (b) If the judge of a district court is unable to attend and unable to make an order of adjourn- ment, the clerk may adjourn the court to the next regular session or to any earlier day which he may determine. (June 25, 1948, ch. 646, 62 Stat. 897; Pub. L. 88–139, § 1, Oct. 16, 1963, 77 Stat. 248.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., §§ 16, 146, 182 (Mar. 3, 1911, ch. 231, §§ 12, 73, 101, 36 Stat. 1088, 1108, 1122; June 12, 1916, ch. 143, 39 Stat. 225; Feb. 20, 1917, ch. 102, 39 Stat. 927; June 13, 1918, ch. 98, 40 Stat. 604; Feb. 26, 1919, ch. 54, 40 Stat. 1184; May 29, 1924, ch. 209, 43 Stat. 243; June 5, 1924, ch. 259, 43 Stat. 387; Jan. 10, 1925, chs. 68, 69, 43 Stat. 730, 731; Feb. 16, 1925, ch. 233, § 1, 43 Stat. 945; May 7, 1926, ch. 255, 44 Stat. 408; Apr. 21, 1928, ch. 395, 45 Stat. 440; Mar. 2, 1929, ch. 539, 45 Stat. 1518; June 28, 1930, ch. 714, 46 Stat. 829; May 13, 1936, ch. 386, 49 Stat. 1271; Aug. 12, 1937, ch. 595, 50 Stat. 625). Section consolidates section 16 with the third sen- tence of section 146, and the final proviso in the third paragraph of section 182, all of title 28, U.S.C., 1940 ed. Said section 16 of title 28 provided for adjournment by the marshal, or clerk, on written order of the judge, in case of inability of the district judge to attend at the commencement of any regular, adjourned or special term, or any time during such term. Said sections 146 and 182 thereof, related to the district courts of Colo- rado and Oklahoma, only, and contained special provi- sions for adjournment. Subsection (b) omits the re- quirement of written order where the judge is unable to make such order. The revised section broadens these provisions, and vests discretionary power in the court, by order made anywhere within the district, to adjourn any term of court ‘‘for insufficient business or other good cause.’’ To establish uniformity, the special provisions relating to Colorado and Oklahoma were omitted. Other provisions of said sections 146 and 182 of title 28, U.S.C., 1940 ed., are incorporated in sections 85 and 116 of this title.