United States Code (Last Updated: May 24, 2014) |
Title 28. JUDICIARY AND JUDICIAL PROCEDURE |
Part I. ORGANIZATION OF COURTS |
Chapter 3. COURTS OF APPEALS |
§ 44. Appointment, tenure, residence and salary of circuit judges
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(a) The President shall appoint, by and with the advice and consent of the Senate, circuit judges for the several circuits as follows: Circuits
Number of
Judges
District of Columbia
11
First
6
Second
13
Third
14
Fourth
15
Fifth
17
Sixth
16
Seventh
11
Eighth
11
Ninth
29
Tenth
12
Eleventh
12
Federal
12.
(b) Circuit judges shall hold office during good behavior. (c) Except in the District of Columbia, each circuit judge shall be a resident of the circuit for which appointed at the time of his appointment and thereafter while in active service. While in active service, each circuit judge of the Federal judicial circuit appointed after the effective date of the Federal Courts Improvement Act of 1982, and the chief judge of the Federal judicial circuit, whenever appointed, shall reside within fifty miles of the District of Columbia. In each circuit (other than the Federal judicial circuit) there shall be at least one circuit judge in regular active service appointed from the residents of each state in that circuit. (d) Each circuit judge shall receive a salary at an annual rate 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.
Historical And Revision
Based on title 28, U.S.C., 1940 ed., § 213, and sections 11–201, 11–202, District of Columbia Code, 1940 ed. (Feb. 9, 1893, ch. 74, § 1, 27 Stat. 434; Mar. 3, 1901, ch. 854, §§ 221, 222, 31 Stat. 1224; Mar. 3, 1911, ch. 231, § 118, 36 Stat. 1131; Jan. 13, 1912, ch. 9, 37 Stat. 52; Feb. 25, 1919, ch. 29, § 2, 40 Stat. 1156; Sept. 14, 1922, ch. 306, § 6, 42 Stat. 840; Mar. 3, 1925, ch. 437, 43 Stat. 1116; Dec. 13, 1926, ch. 6, § 1, 44 Stat. 919; Feb. 28, 1929, ch. 363, § 2, 45 Stat. 1347; Mar. 1, 1929, ch. 413, §§ 1, 2, 45 Stat. 1414; June 10, 1930, ch. 437, 46 Stat. 538; June 10, 1930, ch. 438, 46 Stat. 538; June 19, 1930, ch. 538, 46 Stat. 785; June 16, 1933, ch. 102, 48 Stat. 310; Aug. 2, 1935, ch. 425, § 1, 49 Stat. 508; June 24, 1936, ch. 735, § 1, 49 Stat. 1903; Apr. 14, 1937, ch. 80, 50 Stat. 64; May 31, 1938, ch. 290, §§ 1, 3, 52 Stat. 584, 585; May 24, 1940, ch. 209, § 1, 54 Stat. 219; Dec. 14, 1942, ch. 731, 56 Stat. 1050; Dec. 7, 1944, ch. 521, § 1, 58 Stat. 796; July 31, 1946, ch. 704, § 1, 60 Stat. 716).
This section includes the members of the United States Court of Appeals for the District of Columbia and designates them as “judges” rather than as “justices”, thus harmonizing it with the provisions of section 41 of this title, which specifically designates the District of Columbia as a judicial circuit of the United States. In doing so it consolidates sections 11–201, 11–202 of the District of Columbia Code, 1940 ed., which provided for one “chief justice” and five associate “justices.”
Act
The Judiciary Appropriation Act, 1945, Act June 26, 1944, ch. 277, § 202, 58 Stat. 358, provided that as used in that Act, “the term ‘circuit court of appeals’ includes the United States Court of Appeals for the District of Columbia; the term ‘senior circuit judge’ includes the Chief Justice of the United States Court of Appeals for the District of Columbia; and the term ‘circuit judge’ includes associate justice of the United States Court of Appeals for the District of Columbia; and the term ‘judge’ includes justice.”
Provisions in section 11–202 of the District of Columbia Code, 1940 ed., and section 213 of title 28, U.S.C., 1940 ed., for payment of salaries in monthly installments were omitted, since time of payment is a matter of administrative convenience (20 Comp. Gen. 834).
The exception in subsection (c) extends to circuit judges in the District of Columbia the effect of the recent decision in U.S. ex rel. Laughlin v. Eicher, D.C. 1944, 56 F.Supp. 972, holding that residence requirement of section 1 of title 28, U.S.C., 1940 ed., did not apply to district judges in the District of Columbia. (See Reviser’s Note under section 134 of this title.)
The provision in section 213 of the title 28, U.S.C., 1940 ed., that “it shall be the duty of each circuit judge in each circuit to sit as one of the judges of the circuit court of appeals in that circuit from time to time according to law,” was omitted as unnecessary since the duty to serve is implied by the creation and composition of the court in section 43 of this title.
Last sentence, providing that nothing in section 213 of title 28, U.S.C., 1940 ed., should prevent a circuit judge from holding district court as provided by law, was omitted as unnecessary. (See section 291 of this title authorizing assignments to district courts.)
Subsection (b) was added in conformity with the U.S. Constitution, art. 3.
Changes were made in phraseology.
References In Text
The effective date of the Federal Courts Improvement Act of 1982, referred to in subsec. (c), is the effective date of Pub. L. 97–164,
Section 225 of the Federal Salary Act of 1967, referred to in subsec. (d), is section 225 of Pub. L. 90–206,
Amendments
2008—Subsec. (a). Pub. L. 110–177, § 509(a)(2), substituted “29” for “28” in item relating to Ninth Circuit.
Pub. L. 110–177, § 509(a)(1), substituted “11” for “12” in item relating to District of Columbia Circuit.
1997—Subsec. (c). Pub. L. 105–119 inserted at end “In each circuit (other than the Federal judicial circuit) there shall be at least one circuit judge in regular active service appointed from the residents of each state in that circuit.”
1991—Subsec. (c). Pub. L. 102–198 substituted “the Federal Courts Improvement Act of 1982” for “this Act”.
1990—Subsec. (a). Pub. L. 101–650 altered number of permanent circuit judgeships in named circuits as follows:
Circuits | Former | New |
---|---|---|
Third | 12 | 14 |
Fourth | 11 | 15 |
Fifth | 16 | 17 |
Sixth | 15 | 16 |
Eighth | 10 | 11 |
Tenth | 10 | 12 |
1984—Subsec. (a). Pub. L. 98–353 altered number of permanent circuit judgeships in named circuits as follows:
Circuits | Former | New |
---|---|---|
District of Columbia | 11 | 12 |
First | 4 | 6 |
Second | 11 | 13 |
Third | 10 | 12 |
Fourth | 10 | 11 |
Fifth | 14 | 16 |
Sixth | 11 | 15 |
Seventh | 9 | 11 |
Eighth | 9 | 10 |
Ninth | 23 | 28 |
Tenth | 8 | 10 |
Eleventh | 12 | 12 |
Federal | 12 | 12 |
1982—Subsec. (a). Pub. L. 97–164, § 102(a), inserted item relating to Federal circuit with 12 judges.
Subsec. (c). Pub. L. 97–164, § 102(b), inserted provision relating to requirement that judges of Federal judicial circuit reside within fifty miles of the District of Columbia.
1980—Subsec. (a). Pub. L. 96–452 substituted “14” for “26” in item relating to Fifth Circuit, and added item relating to Eleventh Circuit.
1978—Subsec. (a). Pub. L. 95–486 altered number of permanent circuit judgeships in the named circuits as follows:
Circuits | Former | New |
---|---|---|
District of Columbia | 9 | 11 |
First | 3 | 4 |
Second | 9 | 11 |
Third | 9 | 10 |
Fourth | 7 | 10 |
Fifth | 15 | 26 |
Sixth | 9 | 11 |
Seventh | 8 | 9 |
Eighth | 8 | 9 |
Ninth | 13 | 23 |
Tenth | 7 | 8 |
1975—Subsec. (d). Pub. L. 94–82 substituted provision that each circuit judge shall receive a salary at an annual rate determined under section 225 of the Federal Salary Act of 1967, as adjusted by section 461 of this title, for provision that each circuit judge shall receive a salary of $33,000 a year.
1968—Subsec. (a). Pub. L. 90–347 increased the number of circuit judges in the enumerated circuits as follows: Third Circuit, eight to nine; Fifth Circuit, nine to fifteen; Sixth Circuit, eight to nine; Ninth Circuit, nine to thirteen, and Tenth Circuit, six to seven.
1966—Subsec. (a). Pub. L. 89–372 increased the number of circuit judges in the enumerated circuits as follows: Fourth Circuit, five to seven; Sixth Circuit, six to eight; Seventh Circuit, seven to eight; Eighth Circuit, seven to eight.
1964—Subsec. (d). Pub. L. 88–426 increased the salary of the circuit judges from $25,500 to $33,000.
1961—Subsec. (a). Pub. L. 87–36 increased the number of circuit judges in the enumerated circuits, as follows: Second Circuit, six to nine; Third Circuit, seven to eight; Fourth Circuit, three to five; Fifth Circuit, seven to nine; Seventh Circuit, six to seven; and Tenth Circuit, five to six.
1955—Subsec. (d). Act
1954—Subsec. (a). Act
1949—Subsec. (a). Act
Effective Date Of Amendment
Pub. L. 110–177, title V, § 509(b),
Pub. L. 101–650, title II, § 206,
Amendment by Pub. L. 97–164 effective
Amendment by Pub. L. 96–452 effective
Amendment by Pub. L. 88–426 effective on first day of first pay period which begins on or after
Amendment by act
Miscellaneous
Pub. L. 98–353, title II, § 211,
Pub. L. 97–164, title I, § 165,
Pub. L. 97–164, title I, § 168,
For adjustment of salaries of circuit judges under this section, see the executive order detailing the adjustment of certain rates of pay set out as a note under section 5332 of Title 5, Government Organization and Employees.
For prior year salary increases per the recommendation of the President, see Prior Salary Recommendations notes under section 358 of Title 2, The Congress.
For miscellaneous provisions dealing with adjustments of pay and limitations on use of funds to pay salaries in prior years, see notes under section 5318 of Title 5, Government Organization and Employees.
Salaries of circuit judges increased from $12,500 to $17,500 a year by act July 31, 1946, ch. 704, § 1, 60 Stat. 716.
Salaries of circuit judges increased from $8,500 to $12,500 a year by act Dec. 13, 1926, ch. 6, § 1, 44 Stat. 919.
Salaries of circuit judges increased from $7,000 to $8,500 a year by act Feb. 25, 1919, ch. 29, § 1, 40 Stat. 1156.
Salaries of circuit court judges set at $7,000 a year by the Judicial Code of 1911, act Mar. 3, 1911, ch. 231, § 1, 36 Stat. 1131.
Since 1925, the appointment of additional judges was authorized by the following acts:
Second circuit. Act May 31, 1938, ch. 290, § 1, 52 Stat. 584.
Third circuit. Act Aug. 3, 1949, ch. 387, § 1, 63 Stat. 493; act Dec. 7, 1944, ch. 521, § 1, 58 Stat. 796; act June 10, 1930, ch. 438, 46 Stat. 538; act June 24, 1936, ch. 735, § 1, 49 Stat. 1903, repealed by act May 31, 1938, ch. 290, § 3, 52 Stat. 585.
Fifth circuit. Act Dec. 14, 1942, ch. 731, 56 Stat. 1050; act May 31, 1938, ch. 290, § 1, 52 Stat. 584; act June 10, 1930, ch. 437, 46 Stat. 538.
Sixth circuit. Act May 24, 1940, ch. 209, § 1, 54 Stat. 219; act May 31, 1938, ch. 290, § 1, 52 Stat. 584.
Seventh circuit. Act Aug. 3, 1949, ch. 387, § 1, 63 Stat. 493; act May 31, 1938, ch. 290, § 1, 52 Stat. 584.
Eighth circuit. Act May 24, 1940, ch. 209, § 1, 54 Stat. 219; act Mar. 3, 1925, ch. 436, 43 Stat. 1116.
Ninth circuit. Act Apr. 14, 1937, ch. 80, 50 Stat. 64; act Aug. 2, 1935, ch. 425, § 1, 49 Stat. 508; act June 16, 1933, ch. 102, 48 Stat. 310 (removing limitation on filling of vacancy); act Mar. 1, 1929, ch. 413, 45 Stat. 1414.
Tenth circuit. Act Aug. 3, 1949, ch. 387, § 1, 63 Stat. 493.
District of Columbia Court of Appeals. Act Aug. 3, 1949, ch. 387, § 1, 63 Stat. 493; act May 31, 1938, ch. 290, § 2, 52 Stat. 584; act June 19, 1930, ch. 538, 46 Stat. 785.
Act Feb. 28, 1929, ch. 363, § 2, 45 Stat. 1346, 1347 provided that “There shall be in the sixth, seventh, and tenth circuits, respectively, four circuit judges; and in the second and eighth circuits, respectively, five circuit judges; and, in each of the other circuits three circuit judges, to be appointed by the President, by and with the advice and consent of the Senate.”
Another part of act Feb. 10, 1954, ch. 6, § 1, 68 Stat. 8, which amended subsec. (a) of this section, provided for the appointment by the President, by and with the advice and consent of the Senate, of the additional judges for the Fifth and Ninth Circuits, provided for in such amendment.
Pub. L. 87–36, § 1(a),
Pub. L. 89–372, § 1(a),
Pub. L. 89–372, § 1(c),
Pub. L. 90–347, § 1,
Pub. L. 95–486, § 3(a),
Pub. L. 98–353, title II, § 201(a),
Pub. L. 101–650, title II, § 202(a),
Executive Order
Ex. Ord. No. 11972,
Ex. Ord. No. 12059,
Ex. Ord. No. 13300,
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to promote the prompt appointment of judges to the Federal courts, it is hereby ordered as follows:
Section 1. Policy. The Federal courts play a central role in the American justice system. For the Federal courts to function effectively, judicial vacancies in those courts must be filled in a timely manner with well-qualified candidates.
Sec. 2. Plan. The presidential plan announced on
Sec. 3. Responsibilities. The Counsel to the President shall take all appropriate steps to ensure that the President is in a position to make timely nominations for judicial vacancies consistent with this plan. All Federal departments and agencies shall assist, as requested and permitted by law, in the implementation of this order.
Sec. 4. Reservation of Authority. Nothing in this order shall be construed to affect the authority of the President to fill vacancies under clause 3 of section 2 of article II of the Constitution.
Sec. 5. Judicial Review. This order is intended only to improve the internal management of the Federal Government and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by a party against the United States, its departments, agencies, instrumentalities or entities, its officers or employees, or any other person.