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SECTION 2 SECTION REVISED

Based on title 28, U. S. C., 1940 ed., $ 211, and section 864 of title

48, U. S. C., 1940 ed., Territories and Insular Possessions (Apr. 12,

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1900, ch. 191, $ 35, 31 Stat. 85; Mar. 3, 1911, ch. 231, 8 116, 36 Stat. 1131; Jan. 28, 1915, ch. 22,88 1, 2, 38 Stat. 803; Mar. 2, 1917, ch. 145, $ 42, 39 Stat. 966; Feb. 13, 1925, ch. 229, § § 1, 13, 43 Stat. 936, 942; Jan. 31, 1928, ch. 14, § 1, 45 Stat. 54; Feb. 28, 1929, ch. 363, § 1, 45 Stat. 1346; May 17, 1932, ch. 190, 47 Stat. 158).

Form of section was simplified.

The District of Columbia was added as a separate circuit. This is in accord with the decision of the Supreme Court of the United States which held the Court of Appeals for the District of Columbia to be a circuit court of appeals within the Transfer Act of Sept. 14, 1922, ch. 305, 42 Stat. 837, incorporated in the Judicial Code as § 238 (a), but repealed by Act Feb. 13, 1925, ch. 229, § 13, 43 Stat. 942. (See Swift and Co. v. U.S., 1928, 48 S. Ct. 311, 276 U. S. 311, 72 L. Ed. 587.)

In recognizing the District of Columbia as a separate circuit, the Supreme Court recently used this language: ** the eleven circuits forming the single federal judicature

Comm'r. v. Bedford's Estate, 65 S. Ct. 1157, at page 1160, 325 U. S. 283, 89 L. Ed. 611.

See section 17 of title 28, U. S. C., 1940 ed., providing, “For the purposes of sections 17-23 of this title, the District of Columbia shall be deemed to be a judicial circuit

*", and Act Dec. 23, 1944, ch. 724, 58 Stat. 925, which amended section 215 of title 28, U.S. C., 1940 ed., incorporated in section 42 of this title. Such amendment provided that for the purposes of said section 215 “the District of Columbia shall be deemed to be a judicial circuit.”

Many other Acts of Congress have recognized the District of Columbia as a separate circuit. (See the following Acts: Aug. 24, 1937, ch. 754, 50 Stat. 751; Feb. 11, 1938, ch. 25, 52 Stat. 28; Aug. 5, 1939, ch. 433, 53 Stat. 1204; Aug. 7, 1939, ch. 501, 53 Stat. 1223; Dec. 29, 1942, ch. 835, 56 Stat. 1094; May 11, 1944, ch. 192, 58 Stat. 218; Dec. 23, 1944, ch.724, 58 Stat. 925.)

See also the following Acts recognizing the Court of Appeals for the District of Columbia as a circuit court of appeals: Aug. 15, 1921, ch. 64, 42 Stat. 162; July 5, 1935, ch. 372, 49 Stat. 454: Aug. 24, 1937, ch. 754, 50 Stat. 751; Apr. 6, 1942, ch. 210, 56 Stat. 198; May 9, 1942, ch. 295, 56 Stat. 271. See also Rule 81 (d) Federal Rules of Civil Procedure.

In the following cases the Supreme Court of the United States has recognized the status of the Court of Appeals of the District of Columbia as a permanent establishment within the federal judicial system: O'Donoghue v. United States, 1933, 53 S. Ct. 740, 289 U. S. 516, 77 L. Ed. 1356; Federal Trade Commission v. Klesner, 1927, 47 S. Ct. 557, 274 U. S. 145, 71

L. Ed. 972; Clairborne-Annapolis Ferry v. United States, 1932, 52 S. Ct. 440, 285 U.S. 382, 76 L. Ed. 808; United States v. California Canneries, 1929, 49 S. Ct. 123, 279 U. S. 553, 73 L. Ed. 838.

Alaska, Canal Zone, and Virgin Islands were added to the 9th, 5th, and 3rd Circuits, respectively, to conform to section 1295 of this title.

Some of the provisions of section 864 of title 48, U. S. C., 1940 ed., have been retained in said title. For those which were incorporated in other sections of this revised title, see Distribution Table.

SECTION 42-SECTION REVISED

Based on title 28, U. S. C., 1940 ed., $ 215 (Mar. 3, 1911, ch. 231, $ 119, 36 Stat. 1131; Dec. 23, 1944, ch.724, 58 Stat. 925).

The authority of the Chief Justice in vacation to assign a circuit justice to more than one circuit was extended by omitting the phrase

whenever by reason of death or resignation, no Justice is allotted to a circuit."

The provision in section 215 of title 28, U. S. C., 1940 ed., that, for the purposes of said section, the “District of Columbia shall, be deemed to be a judicial circuit,” was omitted, since the District of Columbia is made a judicial circuit by section 41 of this title.

The last paragraph was added to make clear the intent of Congress that the powers of the Court to assign the justices among the several circuits should be completely flexible.

Changes were made in phraseology.

SECTION 43-SECTION REVISED

Based on title 28, U. S. C., 1940 ed., § 212 (Mar. 3, 1911, ch. 231, $ 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.

SECTION 44-SECTION REVISED

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, SS 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, S6, 42 Stat. 840; Mar. 3, 1925, ch. 437, 43 Stat. 1116; Dec. 13, 1926, ch. 6. § 1, 41 Stat. 919; Feb. 28, 1929, ch. 363, § 2, 45 Stat. 1347; Mar. 1, 1929, ch. 413, SS 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. 423, § 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, 81.3, 52 Stat. 581, 585; May 24, 1940, ch. 209, $ 1,54 Stat. 219; Dec. 14, 1942, ch. 731, 56 Stat. 1050; Dec. 7, 1944, ch. 521, S 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 February 9, 1893, 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 September 24, 1789, $ 4, and R. S. $ 608, enacted June 22,1874. 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.

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., 1910 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.

60852-47--2

SECTION 45-SECTION REVISED

Based on sections 216 and 216a of title 28, U. S. C., 1940 ed. (Mar. 3, 1911, ch. 231, § 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.

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SECTION 46_SECTION REVISED

Based in part on title 28, U. S. C., 1940 ed., $ 212 (Mar. 3, 1911, ch. 231, $ 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., $ 219); the making of rules and regulations (28 U. S. C., $ 219); the appointment of a clerk (28 U. S. C., $ 221) and the approval of the appointment and removal of deputy clerks (28 U. S. C., § 222); and the fixing of the 'times' when court shall be held (28 U.S.C., $ 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

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