Page images
PDF
EPUB

out in the Appendix to this title, section 791 of Title 16, Conservation, section 6001 of Title 18, Crimes and Criminal Procedure, sections 1305, 1337, 1502, 1503, 1514 to 1516a, 1528, 1592, 1604, and 1641 of Title 19, section 7443 of Title 26, Internal Revenue Code, and section 906 of Title 44, Public Printing and Documents; repealing sections 405a and 2322 of Title 19; omitting former sections 1581, 1582, and 2631 to 2639 of this title; and enacting provisions set out as notes under section 251 of this title] may be cited as the 'Customs Courts Act of 1980'.”

SHORT TITLE OF 1979 AMENDMENT

For short title of Pub. L. 96-82, as the "Federal Magistrate Act of 1979", see section 1 of Pub. L. 96-82, set out as a note under section 631 of this title.

SHORT TITLE OF 1978 AMENDMENTS

For short title of Pub. L. 95-572 as the "Jury System Improvements Act of 1978", see section 1 of Pub. L. 95-572, set out as a note under section 1861 of this title.

Pub. L. 95-539, § 1, Oct. 28, 1978, 92 Stat. 2040, provided: "That this Act [enacting sections 1827 and 1828 of this title, amending sections 602 to 604 and 1920 of this title, enacting provisions set out as notes under section 602 of this title, and repealing a provision set out as a note under section 602 of this title] may be cited as the 'Court Interpreters Act'."

Pub. L. 95-408, § 1, Oct. 2, 1978, 92 Stat. 883, provided that: "This Act [amending sections 89, 93, 97, 98, 104, 112, 114, 133 of this title and enacting provisions set out as a note under section 89 of this title] may be cited as the 'Federal District Court Organization Act of 1978'."

SHORT TITLE OF 1976 AMENDMENTS

Pub. L. 94-583, § 1, Oct. 21, 1976, 90 Stat. 2891, provided: "That this Act [enacting sections 1330 and 1602 to 1611 of this title, amending sections 1332, 1391, and 1441 of this title, and enacting provisions set out as notes under section 1602 of this title] may be cited as the 'Foreign Sovereign Immunities Act of 1976'."

Pub. L. 94-554, § 1, Oct. 19, 1976, 90 Stat. 2603, provided: "That this Act [amending section 376 of this title and enacting provisions set out as notes under section 376 of this title] may be cited as the 'Judicial Survivors' Annuities Reform Act'."

SHORT TITLE OF 1970 AMENDMENT

Pub. L. 91-271, title I, § 101, June 2, 1970, 84 Stat. 274, provided that: "This title [enacting sections 256 and 257 of this title, amending sections 253 to 255, 1541, 1582, 2601, 2602, and 2631 to 2639 of this title, repealing sections 1583 and 2640 to 2642 of this title, and enacting provisions set out as notes under sections 1 and 256 of this title] may be cited as 'The Customs Courts Act of 1970'."

SHORT TITLE OF 1966 AMENDMENT

Pub. L. 89-504, title II, § 201, July 18, 1966, 80 Stat. 293, provided that: "This title [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 1966'."

SHORT TITLE OF 1964 AMENDMENT

Pub. L. 88-426, title IV, § 401, Aug. 14, 1964, 78 Stat. 433, provided that: "This title [amending sections 5, 44, 135, 173, 213, 252, 603, and 792 of this title, section 867 of Title 10, Armed Forces, section 68 of former Title 11, Bankruptcy, and section 7443 of Title 26, Internal Revenue Code, 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'."

RULES OF THE SUPREME COURT

Quorum and adjournments, see rule 4, Appendix to this title.

CROSS REFERENCES

Appointment of Supreme Court Justices, see Const., Art. 2, § 2, cl. 2.

Creation of Supreme Court, see Const., Art. 3, § 1. Justices to hold office during good behavior, see Const., Art. 3, § 1.

Oath of Justice, see section 453 of this title. Official station of Supreme Court Justices, see section 456 of this title.

§ 2. Terms of court

The Supreme Court shall hold at the seat of government a term of court commencing on the first Monday in October of each year and may hold such adjourned or special terms as may be necessary.

(June 25, 1948, ch. 646, 62 Stat. 869.)

HISTORICAL AND REVISION NOTES

Based on title 28, U.S.C., 1940 ed., § 338 (Mar. 3, 1911, ch. 231, § 230, 36 Stat. 1156; Sept. 6, 1916, ch. 448, § 1, 39 Stat. 726).

Minor changes in phraseology were made.

RULES OF THE SUPREME COURT Term, see rule 3, Appendix to this title.

CROSS REFERENCES

Courts always open, see section 452 of this title. Official station of Supreme Court Justices, see section 456 of this title.

Seat of the Government, see chapter 3 of Title 4, Flag and Seal, Seat of Government, and the States.

§ 3. Vacancy in office of Chief Justice; disability

Whenever the Chief Justice is unable to perform the duties of his office or the office is vacant, his powers and duties shall devolve upon the associate justice next in precedence who is able to act, until such disability is removed or another Chief Justice is appointed and duly qualified.

(June 25, 1948, ch. 646, 62 Stat. 869.)

HISTORICAL AND REVISION NOTES

Based on title 28, U.S.C., 1940 ed., § 323 (Mar. 3, 1911, ch. 231, § 217, 36 Stat. 1152).

The sentence, "This provision shall apply to every Associate Justice who succeeds to the office of Chief Justice", was omitted as covered by last portion of revised section.

Minor changes were made in phraseology.

For seniority of commissions, see section 4 of this title.

§ 4. Precedence of associate justices

Associate justices shall have precedence according to the seniority of their commissions. Justices whose commissions bear the same date shall have precedence according to seniority in age.

(June 25, 1948, ch. 646, 62 Stat. 869.)

HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 322 (Mar. 3, 1911, ch. 231, § 216, 36 Stat. 1152).

Minor changes in phraseology were made.

§ 5. Salaries of justices

The Chief Justice and each associate justice shall each receive a salary at annual rates 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.

(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; Aug. 9, 1975, Pub. L. 94–82, title II, § 205(b)(1), 89 Stat. 422.)

HISTORICAL AND REVISION NOTES

Based on title 28, U.S.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.

REFERENCES IN TEXT

Section 225 of the Federal Salary Act of 1967, referred to in text, is section 225 of Pub. L. 90-206, Dec. 16, 1967, 81 Stat. 642, as amended, which is classified to chapter 11 (§ 351 et seq.) of Title 2, The Congress.

AMENDMENTS

1975-Pub. L. 94-82 substituted provisions setting the annual salary of the Chief Justice and each associate justice at rates determined under section 225 of the Federal Salary Act of 1967, as adjusted by section 461 of this title, for provisions granting the Chief Justice and each associate justice a salary of $40,000 and $39,500 a year, respectively.

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 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.

EFFECTIVE DATE OF 1955 AMENDMENT Amendment by act Mar. 2, 1955, effective Mar. 1, 1955, see section 5 of act Mar. 2, 1955, set out as a note under section 31 of Title 2, The Congress.

SALARY INCREASES

1982-Salaries of the Chief Justice and Associate Justices increased to $100,700 and $96,700, respectively, effective on the first day of the first pay period beginning on or after Oct. 1, 1982, by Ex. Ord. No. 12387, Oct. 8, 1982, 47 F.R. 44981, set out as a note under section 5332 of Title 5, Government Organization and Employees. Ex. Ord. No. 12387 further provided that pursuant to section 140 of Pub. L. 97-92, funds are not available to pay a salary at a rate which exceeds the rate in effect on Dec. 15, 1981, which was $96,800 for the Chief Justice and $93,000 for the Associate Justices.

Maximum rates payable after Dec. 17, 1982, increased from $96,800 and $93,000 to $100,700 and $96,700, respectively, see Pub. L. 97-377, title I, § 129(b)-(d), Dec. 21, 1982, 96 Stat. 1941, set out as a note under section 5318 of Title 5.

Limitations on use of funds for fiscal year ending Sept. 30, 1983, appropriated by any Act to pay the

salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above level V of the Executive Schedule, see section 101(e) of Pub. L. 97-276, as amended, set out as a note under section 5318 of Title 5.

1981-Salaries of the Chief Justice and Associate Justices increased to $96,800 and $93,000, respectively, effective on the first day of the first pay period beginning on or after Oct. 1, 1981, by Ex. Ord. No. 12330, Oct. 15, 1981, 46 F.R. 50921, formerly set out as a note under section 5332 of Title 5, Government Organization and Employees.

Limitations on use of funds for fiscal year ending Sept. 30, 1982, appropriated by any Act to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above level V of the Executive Schedule, see sections 101(g) and 141 of Pub. L. 97-92, set out as a note under section 5318 of Title 5.

1980-Salaries of the Chief Justice and Associate Justices increased to $92,400 and $88,700, respectively, effective on the first day of the first pay period beginning on or after Oct. 1, 1980, by Ex. Ord. No. 12248, Oct. 16, 1980, 45 F.R. 69199, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12248 further provided that pursuant to Pub. L. 96-369 funds are not available to pay a salary at a rate which exceeds the rate in effect on Sept. 30, 1980, which was $79,125 for the Chief Justice and $75,960 for the Associate Justices.

Limitations on use of funds for fiscal year ending Sept. 30, 1981, appropriated by any Act to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above level V of the Executive Schedule, see section 101(c) of Pub. L. 96-536, as amended, set out as a note under section 5318 of Title 5.

1979-Salaries of the Chief Justice and Associate Justices increased to $84,700 and $81,300, respectively, effective on the first day of the first applicable pay period beginning on or after Oct. 1, 1979, by Ex. Ord. No. 12165, Oct. 9, 1979, 44 F.R. 58671, as amended by Ex. Ord. No. 12200, Mar. 12, 1980, 45 F.R. 16443, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12165 further provided that pursuant to Pub. L. 96-86 funds appropriated for fiscal year 1980 may not be used to pay a salary at a rate which exceeds an increase of 5.5 percent over the applicable rate payable for such position or office in effect on Sept. 30, 1978, which was $79,125 for the Chief Justice and $75,960 for the Associate Justices.

Applicability to funds appropriated by any Act for fiscal year ending Sept. 30, 1980, of limitation of section 304 of Pub. L. 95-391 on use of funds to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above Level V of the Executive Schedule, see section 101 of Pub. L. 96-86, set out as a note under section 5318 of Title 5. 1978-Salaries of the Chief Justice and Associate Justices increased to $79,100 and $76,000, respectively, effective on the first day of the first pay period beginning on or after Oct. 1, 1978, by Ex. Ord. No. 12087, Oct. 7, 1978, 43 F.R. 46823, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12087, further provided that pursuant to the Legislative Branch Appropriation Act, 1979 [Pub. L. 95-391, title III § 304, Sept. 30, 1978, 92 Stat. 788, set out as a note under section 5318 of Title 51, funds are not available to pay a salary at a rate which exceeds the rate in effect on Sept. 30, 1978, which was $75,000 for the Chief Justice and $72,000 for the Associate Justices.

1977-Salaries of the Chief Justice and Associate Justices increased respectively to $75,000 and $72,000 per annum, upon recommendation of the President of the United States, see note set out under section 358 of Title 2, The Congress.

1976-Salaries of the Chief Justice and Associate Justices increased to $68,800 and $66,000, respectively. effective on the first day of the first pay period begin

[merged small][ocr errors][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][ocr errors][ocr errors][merged small][merged small][ocr errors][merged small][merged small][merged small][ocr errors][ocr errors]

ning on or after Oct. 1, 1976, by Ex. Order No. 11941, Oct. 1, 1976, 41 F.R. 43889, formerly set out as a note under section 5332 of Title 5, Government Organization and Employees. Ex. Ord. No. 11941, further provided that pursuant to the Legislative Branch Appropriation Act, 1977, funds are not available to pay a salary at a rate which exceeds the rate in effect on Sept. 30, 1976, which was $65,600 for the Chief Justice and $63,000 for the Associate Justices.

1975-Salaries of the Chief Justice and Associate Justices increased to $65,600 and $63,000, respectively, effective on the first day of the first pay period beginning on or after Oct. 1, 1975, by Ex. Order No. 11883, Oct. 6, 1975, 40 F.R. 47091, formerly set out as a note under section 5332 of Title 5.

1969 Salaries of the Chief Justice and Associate Justices increased respectively from $40,000 and $39,500 to $62,500 and $60,000 per annum, commencing February 14, 1969, upon recommendation of the President of the United States, see note set out under section 358 of Title 2, The Congress.

1946-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.

1926-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.

1911-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 Const. Art. 3, § 1.

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

Retirement of Justices, see section 371 et seq. of this

title.

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

§ 6. Records of former court of appeals

The records and proceedings of the court of appeals, appointed previous to the adoption of the 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 them, in the manner provided by law for giving 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.)

HISTORICAL AND REVISION NOTES

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 sections 2101 et seq., 2301 et seq., 2501 et seq., 2701 et seq., 2901

[blocks in formation]

1983-Pub. L. 97-409, § 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, § 602(b), Oct. 26, 1978, 92 Stat. 1874, added item 49.

Pub. L. 95-486, § 5(c), Oct. 20, 1978, 92 Stat. 1633, substituted "panels" for "divisions" in item 46.

[blocks in formation]

Pub. L. 96-452, § 2, 94 Stat. 1994; Apr. 2, 1982, Pub. L. 97-164, title I, § 101, 96 Stat. 25.)

HISTORICAL AND REVISION NOTES

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, § 35, 31 Stat. 85; Mar. 3, 1911, ch. 231, § 116, 36 Stat. 1131; Jan. 28, 1915, ch. 22, §§ 1, 2, 38 Stat. 803; Mar. 2, 1917, ch. 145, § 42, 39 Stat. 966; Feb. 13, 1925, ch. 229, §§ 1, 13, 43 Stat. 936, 942; Jan. 31, 1928, ch. 14, § 1, 45 Stat. 54; Feb. 28, 1929, ch. 363, § 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 § 238(a), but repealed by act Feb. 13, 1925, ch. 229, § 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 the number of judiIcial circuits from twelve to thirteen through the addition of the Federal circuit composed of all Federal judicial districts. 1980-Pub. L. 96-452 substituted "twelve" for "eleven" in text preceding the table, substituted "District of the Canal Zone" for "Alabama, Canal Zone, Florida, Georgia" in item relating to the fifth circuit, and added new item relating to the eleventh circuit.

1951-Act Oct. 31, 1951, inserted a reference to Guam in that part relating to composition of the 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 sections 41, 44, and 48 of this title, and enacting provisions set out as notes under this section] shall take effect on October 1, 1981."

NORTHERN MARIANA ISLANDS

Pub. L. 95-157, § 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.

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

[ocr errors][ocr errors][merged small]

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, § 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." 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 gov. ernmental 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. 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 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.

CROSS REFERENCES

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

§ 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.)

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 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.

§ 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.)

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 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.

« PreviousContinue »