28 U.S.C. § 46
HISTORICAL AND REVISION NOTES 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 by a court of not more than three judges unless the court has provided for hearing in banc. This provision continues the tradition of a three-judge appellate court and makes the decision of a division, the decision of the court, unless rehearing in banc is ordered. It makes judges available for other assignments, and permits a rotation of judges in such manner as to give to each a maximum of time for the preparation of opinions. Whether divisions should sit simultaneously at the same or different places in the circuit is a matter for each court to determine.
REFERENCES IN TEXT Section 6 of Public Law 95-486 (92 Stat. 1633), referred to in subsec. (c), is section 6 of Pub. L. 95-486, Oct. 20, 1978, 92 Stat. 1633, which is set out as an Appeals Court Administrative Units note under sectionof this title.
AMENDMENTS1996-Subsec. (c). Pub. L. 104-175 in last sentence, inserted "(1)" after "eligible" and ", 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" before period at end. 1982-Subsec. (a). Pub. L. 97-164, §103(a), substituted "panels" for "divisions".Subsec. (b). Pub. L. 97-164, §103(b), substituted "panels" for "divisions" wherever appearing and inserted provisions requiring that at least a majority of the panels of each circuit 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, and that the United States Court of Appeals for the Federal Circuit 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 determine by rule the number of judges, not less than three, who constitute a panel. Subsec. (c). Pub. L. 97-164, §§103(c), 205, inserted provision 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 and that, as an alternative to the requirement that a court in banc consist of all circuit judges in regular active service, such a court may consist of 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 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.Subsec. (d). Pub. L. 97-164, §103(d), substituted "panel" for "division". 1978- Pub. L. 95-486, §5(b), substituted "panels" for "divisions" in section catchline. Subsec. (c). Pub. L. 95-486, §5(a), substituted "panel" for "division" and struck out provision authorizing a retired circuit judge to sit as a judge of the court in banc in the rehearing of a case if he sat in the court or division in the original hearing of such case. 1963-Subsec. (c). Pub. L. 88-176 inserted "regular" before "active service" wherever appearing, and provided that a retired circuit judge shall be competent to sit as a judge of the court in banc, in a rehearing if he sat in at the original hearing.
EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164 set out as a note under section 171 of this title.