§ 45. — Chief judges; precedence of judges.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC45]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART I--ORGANIZATION OF COURTS
CHAPTER 3--COURTS OF APPEALS
Sec. 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 circuit 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 paragraph (1) to serve as chief judge of the
circuit.
(B) Except as provided in subparagraph (C), a circuit judge acting
as chief judge under subparagraph (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 attends. Other circuit judges of the court in
regular active service shall have precedence and preside according to
the seniority of their commissions. Judges whose commissions bear the
same date shall have precedence according to seniority in age. The
circuit justice, however, shall have precedence over all the circuit
judges and shall preside at any session which he attends.
(c) If the chief judge desires to be relieved of his duties as chief
judge while retaining his active 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 performed 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, Sec. 35,
65 Stat. 723; Pub. L. 85-593, Sec. 1, Aug. 6, 1958, 72 Stat. 497; Pub.
L. 97-164, title II, Secs. 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, Sec. 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 circuit judge'' in recognition of
the great increase in administrative duties of such judge.
Subsection (b) conforms with section 4 of this title relating to
precedence of associate justices of the Supreme Court, and consolidates
the provisions of the second and third sentences of section 216 of title
28, U.S.C., 1940 ed. The designation when filed in the court of appeals
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.
Amendments
1982--Subsec. (a). Pub. L. 97-164, Sec. 201(a), designated existing
first sentence of subsec. (a) as par. (1), substituted ``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 circuit judge;
and (C) have not served previously 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 circuit'' 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 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'' for ``If all the circuit 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, Sec. 204, inserted ``of the court in
regular active service'' after ``circuit judges'' in second sentence.
Subsec. (c). Pub. L. 97-164, Sec. 201(b), amended subsec. (c)
generally, substituting ``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)'' 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 regular 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''.
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
Section 3 of Pub. L. 85-593, as amended by Pub. L. 95-486, Sec. 4,
Oct. 20, 1978, 92 Stat. 1632, provided 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
Section 203 of part A of title II of Pub. L. 97-164 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 affect 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
Section 166 of Pub. L. 97-164 provided that: ``Notwithstanding the
provisions of section 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.
Notwithstanding 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 accordance with section
45(a) of title 28, United States Code, as modified by the preceding
sentence of this section.''
Chief Judge of Court of Appeals for District of Columbia
Section 2(a) of act June 25, 1948, 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.
Section Referred to in Other Sections
This section is referred to in sections 353, 372 of this title.
