§ 46 Assignment of judges; panels; hearings; quorum
§ 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.
CHIEF CIRCUIT JUDGE (FIFTH CIRCUIT): ORDER DECLARING AN EMERGENCY UNDER 28 U.S.C. § 46(B)
This court is authorized 17 judges in active service. Today the number of active judges is 14. One of the vacancies has been in existence for two and one-half years. Two nominations have been sent to the Senate for its advice
and consent and are pending. In addition, one active judge was recently injured seriously in an automobile accident and will be unavailable to perform his judicial duties for an indefinite period of time needed for his recuperation and rehabilitation. Effectively this places the court's strength at 13 active judges.
As of June 30, 1999, the court's workload is nearly at its historical record, with some 8,325 new filings and 5,430 pending actions.
During the last nine years, the court's filings have increased 65%, but the court has resisted an increase in the number of authorized judgeships, believing that efficiency and economy would thereby be promoted. The result has been an extremely heavy per judge workload even when operating with a full complement of judges. We have now reached the point where we are so far below our authorized strength that the timeliness and quality of our work will be jeopardized if we are unable to enlist the aid of visiting judges in greater numbers.
In sum, the three judicial vacancies, the injury to an active judge and the sustained high level of case filings have created a judicial emergency in the court. Until such time as the injured judge can return to his judicial duties and until the President has nominated and the Congress has advised and consented to the appointment of the number of judges in regular active service provided by law, a judicial emergency exists. This emergency prevents the routine empaneling of three-judge panels consisting of judges at least a majority of whom are judges of this court.
During the continuation of this declared emergency, the hearing and determination of cases and controversies may be conducted by panels of three judges selected without regard to the qualification in 28 U.S.C. § 46(b) that a majority of each panel be composed of judges of this court.
Signed this 28th day of September, 1999.
CAROLYN DINEEN KING
CHIEF JUDGE
Filed: Sept. 28, 1999
CHIEF CIRCUIT JUDGE (FOURTH CIRCUIT): ORDER REGARDING PERFORMANCE OF JUDICIAL DUTIES
Pursuant to the authority set forth in 28 U.S.C. § 46(c) and 28 U.S.C. § 294(c), all senior circuit judges in this circuit are hereby assigned to perform all judicial duties in any case, or in the decision of any matter, such as a motion or any other procedural or administrative matter, which has been properly assigned to them, whether in the ordinary course of business or otherwise. Any senior circuit judge who undertakes the performance of any official duties pursuant to this designation consents to participate (except upon absence from duty station or the like) in the consideration of the same until terminated, including, but not exclusively, participation in in banc consideration of the matter.
ENTERED this 31st day of March, 1993.