Title 28 — Judiciary and Judicial Procedure
Part I · Chapter 3 — Courts of Appeals
§ 46. Assignment of judges; panels; hearings; quorum
Statutory text
Circuit judges shall sit on the court and its panels in such order and at such times as the court directs.
In each circuit the court may authorize the hearing and determination of cases and controversies by separate panels, each consisting of three judges, at least a majority of whom shall be judges of that court, unless such judges cannot 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 because of illness. Such panels shall sit at the times and places and hear the cases and controversies 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 ensure that all of the judges sit on a representative cross section of the cases heard and, notwithstanding the first sentence of this subsection, may determine by rule the number of judges, not less than three, who constitute a panel.
Cases and controversies shall be heard and determined by a court or panel of not more than three judges (except that the United States Court of Appeals for the Federal Circuit may sit in panels of more than three judges if its rules so provide), unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in regular active service. A court in banc shall consist of all circuit judges in regular active service, or such number of judges as may be prescribed in accordance with section 6 of Public Law 95–486 (92 Stat. 1633), except that any senior circuit judge of the circuit shall be eligible (1) to participate, at his election and upon designation and assignment pursuant to section 294(c) of this title and the rules of the circuit, as a member of an in banc court reviewing a decision of a panel of which such judge was a member, or (2) to continue to participate in the decision of a case or controversy that was heard or reheard by the court in banc at a time when such judge was in regular active service.
A majority of the number of judges authorized to constitute a court or panel thereof, as provided in paragraph (c), shall constitute a quorum.
Legislative history
Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.
Title 28, United States Code, section —
Pub. L. 80–646 · 62 Stat. 869
Enacted · 28 U.S.C. § 46
June 25, 1948, ch. 646, 62 Stat. 871
Source evidence
Code source credit
June 25, 1948, ch. 646, 62 Stat. 871Pub. L. 88–176 § 1(b) · 77 Stat. 331
Inserted · 28 U.S.C. § 46(c)
Pub. L. 88–176 inserted “regular” before “active service” wherever appearing, and provided that a retired circuit judge shall be competent to sit as a judge of the court in banc, in a rehearing if he sat in at the original hearing
Source evidence
Code amendment note
Subsec. (c). Pub. L. 88–176 inserted “regular” before “active service” wherever appearing, and provided that a retired circuit judge shall be competent to sit as a judge of the court in banc, in a rehearing if he sat in at the original hearing.Pub. L. 95–486 § 5(b) · 92 Stat. 1629
Substituted · 28 U.S.C. § 46
Pub. L. 95–486, § 5(b), substituted “panels” for “divisions” in section catchline
Source evidence
Code amendment note
Pub. L. 95–486, § 5(b), substituted “panels” for “divisions” in section catchline.Enacted provision · exact public law section
(b) The heading of section 46 of title 28 of the United States Code is amended by striking out “divisions” and inserting “panels” in lieu thereof.Pub. L. 95–486 § 5(a) · 92 Stat. 1629
Substituted · 28 U.S.C. § 46(c)
Pub. L. 95–486, § 5(a), substituted “panel” for “division”
Struck · 28 U.S.C. § 46(c)
Pub. L. 95–486, § 5(a), struck out provision authorizing a retired circuit judge to sit as a judge of the court in banc in the rehearing of a case if he sat in the court or division in the original hearing of such case
Source evidence
Code amendment note
Subsec. (c). Pub. L. 95–486, § 5(a), substituted “panel” for “division” and struck out provision authorizing a retired circuit judge to sit as a judge of the court in banc in the rehearing of a case if he sat in the court or division in the original hearing of such case.Enacted provision · exact public law section
(a) Section 46(c) of title 28 of the United States Code is amended— (1) in the first sentence, by striking out “division” and inserting “panel” in lieu thereof; and (2) by striking out the third sentence.Federal Courts Improvement Act of 1982
Pub. L. 97–164 § 103(a) · 96 Stat. 25
Substituted · 28 U.S.C. § 46(a)
Pub. L. 97–164, § 103(a), substituted “panels” for “divisions”
Source evidence
Code amendment note
Subsec. (a). Pub. L. 97–164, § 103(a), substituted “panels” for “divisions”.Enacted provision · exact public law section
(a) Section 46(a) of title 28, United States Code, is amended by striking out “divisions” and inserting in lieu thereof “panels”.Effective date note
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.Federal Courts Improvement Act of 1982
Pub. L. 97–164 § 103(b) · 96 Stat. 25
Substituted · 28 U.S.C. § 46(b)
Pub. L. 97–164, § 103(b), substituted “panels” for “divisions” wherever appearing
Inserted · 28 U.S.C. § 46(b)
Pub. L. 97–164, § 103(b), inserted provisions requiring that at least a majority of the panels of each circuit be judges of that court, unless such judges cannot 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 because of illness, and that the United States Court of Appeals for the Federal Circuit determine by rule a procedure for the rotation of judges from panel to panel to ensure that all of the judges sit on a representative cross section of the cases heard and determine by rule the number of judges, not less than three, who constitute a panel
Source evidence
Code amendment note
Subsec. (b). Pub. L. 97–164, § 103(b), substituted “panels” for “divisions” wherever appearing and inserted provisions requiring that at least a majority of the panels of each circuit be judges of that court, unless such judges cannot 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 because of illness, and that the United States Court of Appeals for the Federal Circuit determine by rule a procedure for the rotation of judges from panel to panel to ensure that all of the judges sit on a representative cross section of the cases heard and determine by rule the number of judges, not less than three, who constitute a panel.Enacted provision · exact public law section
(b) Section 46(b) of title 28, United States Code, is amended— (1) by striking out “divisions” each place it appears and inserting in lieu thereof “panels”; (2) by inserting immediately before the period at the end of the first sentence the following: “, at least a majority of whom shall be judges of that court, unless such judges cannot 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 because of illness”; and (3) by adding at the end thereof the following new sentence: “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 ensure that all of the judges sit on a representative cross section of the cases heard and, notwithstanding the first sentence of this subsection, may determine by rule the number of judges, not less than three, who constitute a panel.”.Effective date note
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.Federal Courts Improvement Act of 1982
Pub. L. 97–164 title I § 103 · 96 Stat. 25
Inserted · 28 U.S.C. § 46(c)
Pub. L. 97–164, §§ 103(c), 205, inserted provision that the United States Court of Appeals for the Federal Circuit may sit in panels of more than three judges if its rules so provide and that, as an alternative to the requirement that a court in banc consist of all circuit judges in regular active service, such a court may consist of such number of judges as may be prescribed in accordance with section 6 of Public Law 95–486 (92 Stat. 1633), except that any senior circuit judge of the circuit shall be eligible to participate, at his election and upon designation and assignment pursuant to section 294(c) of this title and the rules of the circuit, as a member of an in banc court reviewing a decision of a panel of which such judge was a member
Source evidence
Code amendment note
Subsec. (c). Pub. L. 97–164, §§ 103(c), 205, inserted provision that the United States Court of Appeals for the Federal Circuit may sit in panels of more than three judges if its rules so provide and that, as an alternative to the requirement that a court in banc consist of all circuit judges in regular active service, such a court may consist of such number of judges as may be prescribed in accordance with section 6 of Public Law 95–486 (92 Stat. 1633), except that any senior circuit judge of the circuit shall be eligible to participate, at his election and upon designation and assignment pursuant to section 294(c) of this title and the rules of the circuit, as a member of an in banc court reviewing a decision of a panel of which such judge was a member.Enacted provision · exact public law section
Sec. 103. panels of judges; number of judges for hearings (a) Section 46(a) of title 28, United States Code, is amended by striking out “divisions” and inserting in lieu thereof “panels”. (b) Section 46(b) of title 28, United States Code, is amended— (1) by striking out “divisions” each place it appears and inserting in lieu thereof “panels”; (2) by inserting immediately before the period at the end of the first sentence the following: “, at least a majority of whom shall be judges of that court, unless such judges cannot 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 because of illness”; and (3) by adding at the end thereof the following new sentence: “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 ensure that all of the judges sit on a representative cross section of the cases heard and, notwithstanding the first sentence of this subsection, may determine by rule the number of judges, not less than three, who constitute a panel.”. (c) The first sentence of section 46(c) of title 28, United States Code, is amended by inserting immediately after “three judges” the following: “(except that the United States Court of Appeals for the Federal Circuit may sit in panels of more than three judges if its rules so provide)”. (d) Section 46(d) of title 28, United States Code, is amended by striking out “division” and inserting in lieu thereof “panel”.Effective date note
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.Federal Courts Improvement Act of 1982
Pub. L. 97–164 § 103(d) · 96 Stat. 25
Substituted · 28 U.S.C. § 46(d)
Pub. L. 97–164, § 103(d), substituted “panel” for “division”
Source evidence
Code amendment note
Subsec. (d). Pub. L. 97–164, § 103(d), substituted “panel” for “division”.Enacted provision · exact public law section
(d) Section 46(d) of title 28, United States Code, is amended by striking out “division” and inserting in lieu thereof “panel”.Effective date note
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.Pub. L. 104–175 § 1 · 110 Stat. 1556
Inserted · 28 U.S.C. § 46(c)
Pub. L. 104–175, in last sentence, inserted “(1)” after “eligible” and “, or (2) to continue to participate in the decision of a case or controversy that was heard or reheard by the court in banc at a time when such judge was in regular active service” before period at end
Source evidence
Code amendment note
Subsec. (c). Pub. L. 104–175, in last sentence, inserted “(1)” after “eligible” and “, or (2) to continue to participate in the decision of a case or controversy that was heard or reheard by the court in banc at a time when such judge was in regular active service” before period at end.Enacted provision · exact public law section
SECTION 1. AMENDMENT. The last sentence of section 46(c) of title 28, United States Code, is amended by inserting “(1)” after “eligible” and by inserting before the period at the end of the sentence “, or (2) to continue to participate in the decision of a case or controversy that was heard or reheard by the court in banc at a time when such judge was in regular active service”.
9 of 11 references resolved to an enrolled provision · 2 partial
Notes
Historical and Revision Notes
Based in part on title 28, U.S.C., 1940 ed., § 212 (Mar. 3, 1911, ch. 231, § 117, 36 Stat. 1131).
Subsections (a)–(c) authorize the establishment of divisions of the court and provide for the assignment of circuit judges for hearings and rehearings in banc.
The Supreme Court of the United States has ruled that, notwithstanding the three-judge provision of section 212 of title 28, U.S.C., 1940 ed., a court of appeals might lawfully consist of a greater number of judges, and that the five active circuit judges of the third circuit might sit in banc for the determination of an appeal. (See Textile Mills Securities Corporation v. Commissioner of Internal Revenue, 1941, 62 S.Ct. 272, 314 U.S. 326, 86 L.Ed. 249.)
The Supreme Court in upholding the unanimous view of the five judges as to their right to sit in banc, notwithstanding the contrary opinion in Langs Estate v. Commissioner of Internal Revenue, 1938, 97 F.2d 867, said in the Textile Mills case: “There are numerous functions of the court, as a ‘court of record, with appellate jurisdiction’, other than hearing and deciding appeals. Under the Judicial Code these embrace: prescribing the form of writs and other process and the form and style of its seal (28 U.S.C., § 219); the making of rules and regulations (28 U.S.C., § 219); the appointment of a clerk (28 U.S.C., § 221) and the approval of the appointment and removal of deputy clerks (28 U.S.C., § 222); and the fixing of the ‘times’ when court shall be held (28 U.S.C., § 223). Furthermore, those various sections of the Judicial Code provide that each of these functions shall be performed by the court.”
This section preserves the interpretation established by the Textile Mills case but provides in subsection (c) that cases shall be heard by a court of not more than three judges unless the court has provided for hearing in banc. This provision continues the tradition of a three-judge appellate court and makes the decision of a division, the decision of the court, unless rehearing in banc is ordered. It makes judges available for other assignments, and permits a rotation of judges in such manner as to give to each a maximum of time for the preparation of opinions.
Whether divisions should sit simultaneously at the same or different places in the circuit is a matter for each court to determine.
Editorial Notes
References in Text
Section 6 of Public Law 95–486 (92 Stat. 1633), referred to in subsec. (c), is section 6 of Pub. L. 95–486, , 92 Stat. 1633, which is set out as an Appeals Court Administrative Units note under section 41 of this title.
Amendments1963–1996 · 4 rounds
1996
Subsec. (c). Pub. L. 104–175, in last sentence, inserted “(1)” after “eligible” and “, or (2) to continue to participate in the decision of a case or controversy that was heard or reheard by the court in banc at a time when such judge was in regular active service” before period at end.
1982
Subsec. (a). Pub. L. 97–164, § 103(a), substituted “panels” for “divisions”.
Subsec. (b). Pub. L. 97–164, § 103(b), substituted “panels” for “divisions” wherever appearing and inserted provisions requiring that at least a majority of the panels of each circuit be judges of that court, unless such judges cannot 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 because of illness, and that the United States Court of Appeals for the Federal Circuit determine by rule a procedure for the rotation of judges from panel to panel to ensure that all of the judges sit on a representative cross section of the cases heard and determine by rule the number of judges, not less than three, who constitute a panel.
Subsec. (c). Pub. L. 97–164, §§ 103(c), 205, inserted provision that the United States Court of Appeals for the Federal Circuit may sit in panels of more than three judges if its rules so provide and that, as an alternative to the requirement that a court in banc consist of all circuit judges in regular active service, such a court may consist of such number of judges as may be prescribed in accordance with section 6 of Public Law 95–486 (92 Stat. 1633), except that any senior circuit judge of the circuit shall be eligible to participate, at his election and upon designation and assignment pursuant to section 294(c) of this title and the rules of the circuit, as a member of an in banc court reviewing a decision of a panel of which such judge was a member.
Subsec. (d). Pub. L. 97–164, § 103(d), substituted “panel” for “division”.
1978
Pub. L. 95–486, § 5(b), substituted “panels” for “divisions” in section catchline.
Subsec. (c). Pub. L. 95–486, § 5(a), substituted “panel” for “division” and struck out provision authorizing a retired circuit judge to sit as a judge of the court in banc in the rehearing of a case if he sat in the court or division in the original hearing of such case.
1963
Subsec. (c). Pub. L. 88–176 inserted “regular” before “active service” wherever appearing, and provided that a retired circuit judge shall be competent to sit as a judge of the court in banc, in a rehearing if he sat in at the original hearing.
Statutory Notes and Related Subsidiaries
Effective Date of 1982 Amendment
Amendment by Pub. L. 97–164 effective , see section 402 of Pub. L. 97–164, set out as a note under section 171 of this title.
Credits
1948–1996 · 5 acts
- 1948June 25, 1948, ch. 646, 62 Stat. 871
- 1963Pub. L. 88–176, § 1(b), , 77 Stat. 331
- 1978Pub. L. 95–486, § 5(a), (b), , 92 Stat. 1633
- 1982Pub. L. 97–164, title I, § 103, title II, § 205, , 96 Stat. 25, 53
- 1996Pub. L. 104–175, § 1, , 110 Stat. 1556.
Show as published
(June 25, 1948, ch. 646, 62 Stat. 871; Pub. L. 88–176, § 1(b), , 77 Stat. 331; Pub. L. 95–486, § 5(a), (b), , 92 Stat. 1633; Pub. L. 97–164, title I, § 103, title II, § 205, , 96 Stat. 25, 53; Pub. L. 104–175, § 1, , 110 Stat. 1556.)