§ 43. — Creation and composition of courts.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC43]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART I--ORGANIZATION OF COURTS
CHAPTER 3--COURTS OF APPEALS
Sec. 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; Pub. L. 88-176, Sec. 1(a), Nov.
13, 1963, 77 Stat. 331.)
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., Sec. 212 (Mar. 3, 1911, ch.
231, Sec. 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.
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.
Amendments
1963--Subsec. (b). Pub. L. 88-176 inserted ``regular'' before
``active service''.
Change of Name of Court
Section 2(b) of act June 25, 1948, provided in part that each
circuit court of appeals should, after Sept. 1, 1948, be known as a
United States Court of Appeals, 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.
