28 U.S.C. § 44

Historical and Revision Notes

Feb. 9, 1893, ch. 74, § 1 27 Stat. 434 Mar. 3, 1901, ch. 854 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 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 52 Stat. 584 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 Based on title 28, U.S.C., 1940 ed., § 213, and sections 11–201, 11–202, District of Columbia Code, 1940 ed. (, ; , §§ 221, 222, ; , ; , ; , ; , ; , ; , ; , ; , §§ 1, 2, ; , ; , ; , ; , ; , ; , ; , ; , §§ 1, 3, , 585; , ; , ; , ; , ).

section 41 of this titleThis 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 , 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.”

February 9, 1893September 24, 1789June 22, 1874Act , established a court of appeals for the District of Columbia to consist of one chief justice and two associate justices whose jurisdiction was almost entirely to review the judgments of the Supreme Court of the District of Columbia, the name of which was changed in 1936 to the District Court of the United States for the District of Columbia. Circuit courts were established by the first Judiciary Act of , § 4, and R.S. § 608, enacted . R.S. § 605 provided that the words “circuit justice” and “justice of a circuit” should designate the justice of the Supreme Court of the United States allotted to any circuit; that “judge” when applied to any circuit included such justice.

Act June 26, 1944, ch. 277, § 202 58 Stat. 358 The Judiciary Appropriation Act, 1945, , , 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.”

section 213 of title 28Provisions in section 11–202 of the District of Columbia Code, 1940 ed., and , 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).

U.S. ex rel. Laughlin v. Eichersection 1 of title 28section 134 of this titleThe exception in subsection (c) extends to circuit judges in the District of Columbia the effect of the recent decision in , D.C. 1944, 56 F.Supp. 972, holding that residence requirement of , U.S.C., 1940 ed., did not apply to district judges in the District of Columbia. (See Reviser’s Note under .)

section 43 of this titleThe 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 213 of title 28section 291 of this titleLast sentence, providing that nothing in , U.S.C., 1940 ed., should prevent a circuit judge from holding district court as provided by law, was omitted as unnecessary. (See 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

Pub. L. 97–164Oct. 1, 1982section 171 of this titleThe effective date of the Federal Courts Improvement Act of 1982, referred to in subsec. (c), is the effective date of , . See Effective Date of 1982 Amendment note set out under .

section 225 of Pub. L. 90–206Dec. 16, 196781 Stat. 642 Section 225 of the Federal Salary Act of 1967, referred to in subsec. (d), is , , , which is classified to chapter 11 (§ 351 et seq.) of Title 2, The Congress.

Editorial Notes

Amendments

Pub. L. 110–177, § 509(a)(2)2008—Subsec. (a). , 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.

Pub. L. 105–1191997—Subsec. (c). 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.”

Pub. L. 102–1981991—Subsec. (c). substituted “the Federal Courts Improvement Act of 1982” for “this Act”.

Pub. L. 101–6501990—Subsec. (a). altered number of permanent circuit judgeships in named circuits as follows:

Pub. L. 98–3531984—Subsec. (a). altered number of permanent circuit judgeships in named circuits as follows:

Pub. L. 97–164, § 102(a)1982—Subsec. (a). , inserted item relating to Federal circuit with 12 judges.

Pub. L. 97–164, § 102(b)Subsec. (c). , inserted provision relating to requirement that judges of Federal judicial circuit reside within fifty miles of the District of Columbia.

Pub. L. 96–4521980—Subsec. (a). substituted “14” for “26” in item relating to Fifth Circuit, and added item relating to Eleventh Circuit.

Pub. L. 95–4861978—Subsec. (a). altered number of permanent circuit judgeships in the named circuits as follows:

Pub. L. 94–82section 461 of this title1975—Subsec. (d). 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 , for provision that each circuit judge shall receive a salary of $33,000 a year.

Pub. L. 90–3471968—Subsec. (a). 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.

Pub. L. 89–3721966—Subsec. (a). 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.

Pub. L. 88–4261964—Subsec. (d). increased the salary of the circuit judges from $25,500 to $33,000.

Pub. L. 87–361961—Subsec. (a). 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.

Mar. 2, 19551955—Subsec. (d). Act , increased the salary of circuit judges from “$17,500” a year to “$25,500”.

Feb. 10, 19541954—Subsec. (a). Act , increased the number of circuit judges in the Fifth Circuit from six to seven, and in the Ninth Circuit from seven to nine.

Aug. 3, 19491949—Subsec. (a). Act , increased the number of circuit judges for the District of Columbia from six to nine, for the Third Circuit from six to seven, for the Seventh Circuit from five to six, and for the Tenth Circuit from four to five.

Statutory Notes and Related Subsidiaries

Effective Date of 2008 Amendment

Pub. L. 110–177, title V, § 509(b)Jan. 7, 2008121 Stat. 2543

Effective Date of 1990 Amendment

Pub. L. 101–650, title II, § 206Dec. 1, 1990104 Stat. 5104

Effective Date of 1982 Amendment

Pub. L. 97–164Oct. 1, 1982section 402 of Pub. L. 97–164section 171 of this titleAmendment by effective , see , set out as a note under .

Effective Date of 1980 Amendment

Pub. L. 96–452Oct. 1, 1981section 12 of Pub. L. 96–452section 41 of this titleAmendment by effective , see , set out as a note under .

Effective Date of 1964 Amendment

Pub. L. 88–426July 1, 1964section 501(c) of Pub. L. 88–426section 501 of Pub. L. 88–426Amendment by effective on first day of first pay period which begins on or after , except to extent provided in , see .

Effective Date of 1955 Amendment

Mar. 2, 1955Mar. 1, 1955Mar. 2, 1955section 4501 of Title 2Amendment by act , effective , see section 5 of act , set out as a note under , The Congress.

Nomination to Federal Judgeship on Nondiscriminatory Basis

Pub. L. 98–353, title II, § 211July 10, 198498 Stat. 351

Continued Service of Judges

Pub. L. 97–164, title I, § 165Apr. 2, 198296 Stat. 50 Oct. 1, 1982Oct. 1, 1982, , , provided that judges of United States Court of Claims and of United States Court of Customs and Patent Appeals in regular active service on , would continue in office as judges of United States Court of Appeals for the Federal Circuit and senior judges of United States Court of Claims and of United States Court of Customs and Patent Appeals on , would continue in office as senior judges of United States Court of Appeals for the Federal Circuit.

Congressional Statement Regarding Appointment of Judges

Pub. L. 97–164, title I, § 168Apr. 2, 198296 Stat. 51

Salary Increases

section 5332 of Title 5For 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 , Government Organization and Employees.

section 358 of Title 2For prior year salary increases per the recommendation of the President, see Prior Salary Recommendations notes under , The Congress.

section 5318 of Title 5For miscellaneous provisions dealing with adjustments of pay and limitations on use of funds to pay salaries in prior years, see notes under , Government Organization and Employees.

act July 31, 1946, ch. 704, § 1 60 Stat. 716 Salaries of circuit judges increased from $12,500 to $17,500 a year by , .

act Dec. 13, 1926, ch. 6, § 1 44 Stat. 919 Salaries of circuit judges increased from $8,500 to $12,500 a year by , .

act Feb. 25, 1919, ch. 29, § 1 40 Stat. 1156 Salaries of circuit judges increased from $7,000 to $8,500 a year by , .

act Mar. 3, 1911, ch. 231, § 1 36 Stat. 1131 Salaries of circuit court judges set at $7,000 a year by the Judicial Code of 1911, , .

Additional Judges

Since 1925, the appointment of additional judges was authorized by the following acts:

Act May 31, 1938, ch. 290, § 1 52 Stat. 584 Second 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 act May 31, 1938, ch. 290, § 3 52 Stat. 585 Third circuit. , ; , ; , ; , , repealed by , .

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 Fifth circuit. , ; , ; , .

Act May 24, 1940, ch. 209, § 1 54 Stat. 219 act May 31, 1938, ch. 290, § 1 52 Stat. 584 Sixth circuit. , ; , .

Act Aug. 3, 1949, ch. 387, § 1 63 Stat. 493 act May 31, 1938, ch. 290, § 1 52 Stat. 584 Seventh circuit. , ; , .

Act May 24, 1940, ch. 209, § 1 54 Stat. 219 act Mar. 3, 1925, ch. 436 43 Stat. 1116 Eighth 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 act Mar. 1, 1929, ch. 413 45 Stat. 1414 Ninth circuit. , ; , ; , (removing limitation on filling of vacancy); , .

Act Aug. 3, 1949, ch. 387, § 1 63 Stat. 493 Tenth circuit. , .

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 District of Columbia Court of Appeals. , ; , ; , .

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.”

act Feb. 10, 1954, ch. 6, § 1 68 Stat. 8 Another part of , , 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)May 19, 196175 Stat. 80

Pub. L. 89–372, § 1(a)Mar. 18, 196680 Stat. 75

Pub. L. 89–372, § 1(c)Mar. 18, 196680 Stat. 75 Pub. L. 90–347, § 2June 18, 196882 Stat. 183

Pub. L. 90–347, § 1June 18, 196882 Stat. 184

Pub. L. 95–486, § 3(a)Oct. 20, 197892 Stat. 1632

Pub. L. 98–353, title II, § 201(a)July 10, 198498 Stat. 346

Pub. L. 101–650, title II, § 202(a)Dec. 1, 1990104 Stat. 5098

Executive Documents

Executive Order No. 11972

Feb. 14, 1977May 24, 1977May 11, 1978Ex. Ord. No. 11972, , 42 F.R. 9659, as amended by Ex. Ord. No. 11993, , 42 F.R. 27197, which related to the United States Circuit Judge Nominating Commission, was revoked by Ex. Ord. No. 12059, , 43 F.R. 20949, formerly set out below.

Executive Order No. 12059

May 11, 1978Nov. 8, 1978May 5, 1981section 1013 of Title 5Ex. Ord. No. 12059, , 43 F.R. 20949, as amended by Ex. Ord. No. 12097, , 43 F.R. 52455, which established the United States Circuit Judge Nominating Commission and provided for its membership, functions, etc., was revoked by Ex. Ord. No. 12305, , 46 F.R. 25421, formerly set out as a note under , Government Organization and Employees.

Ex. Ord. No. 13300. Facilitating the Administration of Justice in the Federal Courts

May 9, 2003Ex. Ord. No. 13300, , 68 F.R. 25807, provided:

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:

SectionPolicy 1. . 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.

SecPlanOctober 30, 2002. 2. . The presidential plan announced on , calls for timely consideration of judicial nominees, with the President submitting a nomination to fill a vacancy in United States courts of appeals and district courts within 180 days after the President receives notice of a vacancy or intended retirement, absent extraordinary circumstances.

SecResponsibilities. 3. . 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.

SecReservation of Authority. 4. . 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.

SecJudicial Review. 5. . 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.