28 U.S.C. § 43

Creation and composition of courts

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(a) There shall be in each circuit a court of appeals, which shall be a court of record, known as the United States Court of Appeals for the circuit.(b) Each court of appeals shall consist of the circuit judges of the circuit in regular active service. The circuit justice and justices or judges designated or assigned shall be competent to sit as judges of the court.(June 25, 1948, ch. 646, 62 Stat. 870; Pub. L. 88–176, § 1(a), Nov. 13, 1963, 77 Stat. 331.)Historical and Revision Notes

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.

Editorial NotesAmendments

1963—Subsec. (b). Pub. L. 88–176 inserted “regular” before “active service”.

Statutory Notes and Related SubsidiariesChange of Name of Court

Act June 25, 1948, ch. 646, § 2(b), 62 Stat. 985, provided in part that each circuit court of appeals should, after Sept. 1, 1948, be known as a United States Court of Appeals, but that the enactment of act June 25, 1948 should in no way entail any loss of rights, interruption of jurisdiction, or prejudice to matters pending in any such courts on Sept. 1, 1948.

Notes of Decisions

Cited in 26 cases (3 in the last 5 years), 1928–2026 · leading case: Patricia Hart v. Larry G. Massanari, Acting Comm'r of Soc. Sec. Admin., 266 F.3d 1155 (9th Cir. 2001).

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Patricia Hart v. Larry G. Massanari, Acting Comm'r of Soc. Sec. Admin., 266 F.3d 1155 (9th Cir. 2001). “, 28 U.S.C. § 43 (creating a court of appeals for each circuit); 28 U.”

David L. Henderson v. James B. Peake, 22 Vet. App. 217 (Vet. App. 2008). · cites it 2× “First, just as Congress created appellate courts in each circuit as "a court of record, known as the United States Court of Appeals for the circuit" under Article III of the Constitution, 28 U.S.C. § 43 (a), this Court was established under Article I as "a court of record to be…”

Chandler v. Jud. Council of the Tenth Circuit, 398 U.S. 74 (1970). · cites it 2× “[11] It should be noted that virtually all of the additional powers that have been conferred on the Councils by provisions of the Judicial Code other than § 332, see infra, define the Council's tasks in terms commonly used as standards for judicial determination.”

United States v. Am.-Foreign S.S. Corp., 363 U.S. 685 (1960). · cites it 2× “28 U. S. C. § 43 (b). Other provisions of the Code spell out in detail the system under which designations and assignments of retired judges are to be made.”

Carroll v. United States, 354 U.S. 394 (1957). “28 U. S. C. §§43 , 132, 451; 62 Stat. 991 , as amended, 63 Stat.”

Isbrandtsen-Moller Co. v. United States, 300 U.S. 139 (1937). “§§ 43 , 44, 45, and 47, whereby the venue of a suit brought to set aside an order *141 of the Interstate Commerce Commission is the judicial district in which the petitioner has its principal office.) The complainant named and attempted to serve as defendants, in addition to the…”

Minnesota Transp. Reg. Bd. v. United States of Am. & the Interstate Com. Comm'n, 966 F.2d 335 (8th Cir. 1992). “He filed the opinion in his capacity as Circuit Justice pursuant to 28 U.S.C. § 43 (b). 11 . In Regular Common Carrier Conference v.”

Anchor Coal Co. v. United States, 25 F.2d 462 (S.D.W. Va 1928). “28, § 43 (28 USCA § 43). Skinner & Eddy Corp. v. U.”

United States v. Ross R. Barnett & Paul B. Johnson, Jr, 330 F.2d 369 (5th Cir. 1963). “(g) Jurisdiction of courts of appeal is now dealt with in 28 U.S.C.A. §§43 and 1291 et seq. This Court, in my opinion, exhausted its jurisdiction when it reversed the decision of the District Court and remanded the case of James II.”

Marvel Schillie, Adm'x of the Est. of Marion Schillie, Deceased v. Atchison, Topeka & Santa Fe Ry. Co., a Corp., 222 F.2d 810 (8th Cir. 1955). “In determining the propriety of the exclusion of evidence, Rule 43(a) of the Federal Rules of Civil Procedure, 28 U.S. C.A. § 43(a), will be applied. Thereunder “ * * * All evidence shall be admitted which is admissible under the statutes of the United States, or under the rules…”

Baisden v. West, 11 Vet. App. 215 (Vet. App. 1998). “, 28 U.S.C. § 43 (the thirteen federal judicial circuits) and § 171 (the United States Court of Federal Claims)), the Court of Veterans Appeals is a court of record.”

Arnold v. E. Air Lines, Inc., 712 F.2d 899 (4th Cir. 1983). “88-176, § 1 (a) *909 (codified at 28 U.S.C. § 43 (b)). The Act then amended 28 U.”

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— 28 U.S.C. § 43(a) — 1 case

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