§ 46. — Assignment of judges; panels; hearings; quorum.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC46]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART I--ORGANIZATION OF COURTS
CHAPTER 3--COURTS OF APPEALS
Sec. 46. Assignment of judges; panels; hearings; quorum
(a) Circuit judges shall sit on the court and its panels in such
order and at such times as the court directs.
(b) 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.
(c) 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.
(d) A majority of the number of judges authorized to constitute a
court or panel thereof, as provided in paragraph (c), shall constitute a
quorum.
(June 25, 1948, ch. 646, 62 Stat. 871; Pub. L. 88-176, Sec. 1(b), Nov.
13, 1963, 77 Stat. 331; Pub. L. 95-486, Sec. 5(a), (b), Oct. 20, 1978,
92 Stat. 1633; Pub. L. 97-164, title I, Sec. 103, title II, Sec. 205,
Apr. 2, 1982, 96 Stat. 25, 53; Pub. L. 104-175, Sec. 1, Aug. 6, 1996,
110 Stat. 1556.)
Historical and Revision Notes
Based in part on title 28, U.S.C., 1940 ed., Sec. 212 (Mar. 3, 1911,
ch. 231, Sec. 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., Sec. 219); the making of rules and regulations
(28 U.S.C., Sec. 219); the appointment of a clerk (28 U.S.C., Sec. 221)
and the approval of the appointment and removal of deputy clerks (28
U.S.C., Sec. 222); and the fixing of the `times' when court shall be
held (28 U.S.C., Sec. 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.
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, Oct. 20, 1978, 92 Stat.
1633, which is set out as an Appeals Court Administrative Units note
under section 41 of this title.
Amendments
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, Sec. 103(a), substituted
``panels'' for ``divisions''.
Subsec. (b). Pub. L. 97-164, Sec. 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, Secs. 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, Sec. 103(d), substituted ``panel'' for
``division''.
1978--Pub. L. 95-486, Sec. 5(b), substituted ``panels'' for
``divisions'' in section catchline.
Subsec. (c). Pub. L. 95-486, Sec. 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.
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.
