28 U.S.C. § 46 — Assignment of judges; panels; hearings; quorum

submitted 78 years ago by ch. 646 to r/title-28-JUDICIARY-AND-JUDICIAL-PROCEDURE · 411 words · no verdicts yet

in plain englishAI-generated · not legal advice

This law explains how federal courts of appeals assign judges to hear cases. Courts usually sit in three-judge panels, but can hold a larger "en banc" rehearing before all active judges. A majority of a panel or the full court is needed to make a decision.

(a) Circuit judges sit on the court and its panels whenever, and in whatever order, the court directs. (b) Each circuit's court of appeals can let separate three-judge panels hear and decide cases. At least a majority of each panel must be judges of that circuit court — unless those judges can't sit because they're recused or disqualified, or the chief judge declares an emergency, such as a judge being unavailable due to illness. Panels sit at whatever times and places, and hear whatever cases, the court assigns. The Court of Appeals for the Federal Circuit must set, by rule, a procedure for rotating judges between panels, so that every judge hears a representative mix of cases. That court can also decide, by rule, how many judges make up a panel — but never fewer than three. (c) Normally, no more than three judges hear and decide a case or controversy, except that the Court of Appeals for the Federal Circuit may sit in panels of more than three judges if its own rules allow it. A larger, full-court "en banc" hearing or rehearing happens only if a majority of the circuit's active judges order one. An en banc court is made up of all judges in regular active service — or a different number, if one is set under a specific law (Public Law 95–486, section 6). But a senior judge of the circuit can still take part in an en banc case in two situations: (1) if the judge chooses to, is properly designated and assigned, and is reviewing a panel decision the judge was originally part of; or (2) if the judge is continuing to decide a case that was already heard or reheard en banc while the judge was still in regular active service. (d) A "quorum" — the minimum number needed to act — is a majority of however many judges are authorized to make up the court or panel under (c).

the actual law source: uscode.house.gov ↗public domain

(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.

Source credit: (June 25, 1948, ch. 646, 62 Stat. 871; Pub. L. 88–176, § 1(b), Nov. 13, 1963, 77 Stat. 331; Pub. L. 95–486, § 5(a), (b), Oct. 20, 1978, 92 Stat. 1633; Pub. L. 97–164, title I, § 103, title II, § 205, Apr. 2, 1982, 96 Stat. 25, 53; Pub. L. 104–175, § 1, Aug. 6, 1996, 110 Stat. 1556.)

history & why it existsrecord from the source credit

1948Enacted · Act of June 25, 1948, ch. 646 · 62 Stat. 871
1963Amended · Pub. L. 88-176 · 77 Stat. 331
1978Amended · Pub. L. 95-486 · 92 Stat. 1633
1982Amended · Pub. L. 97-164 · 96 Stat. 25, 53
1996Amended · Pub. L. 104-175 · 110 Stat. 1556

A history note hasn’t been published yet. The record shows enactment by ch. 646 on 1948-06-25.

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