# § 44. Appointment, tenure, residence and salary of circuit judges
**(a)** The President shall appoint, by and with the advice and consent of the Senate, circuit judges for the several circuits as follows:
| Circuits | Number ofJudges |
| --- | --- |
| District of Columbia | 11 |
| First | 6 |
| Second | 13 |
| Third | 14 |
| Fourth | 15 |
| Fifth | 17 |
| Sixth | 16 |
| Seventh | 11 |
| Eighth | 11 |
| Ninth | 29 |
| Tenth | 12 |
| Eleventh | 12 |
| Federal | 12. |
**(b)** Circuit judges shall hold office during good behavior.
**1** Except in the District of Columbia, each circuit judge shall be a resident of the circuit for which appointed at the time of his appointment and thereafter while in active service. While in active service, each circuit judge of the Federal judicial circuit appointed after the effective date of the Federal Courts Improvement Act of 1982, and the chief judge of the Federal judicial circuit, whenever appointed, shall reside within fifty miles of the District of Columbia. In each circuit (other than the Federal judicial circuit) there shall be at least one circuit judge in regular active service appointed from the residents of each state [^1] in that circuit.
So in original. Probably should be capitalized.
**(d)** Each circuit judge shall receive a salary at an annual rate determined under section 225 of the Federal Salary Act of 1967 (2 U.S.C. 351–361), as adjusted by section 461 of this title.
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**Source Credit**: (June 25, 1948, ch. 646, 62 Stat. 871; Aug. 3, 1949, ch. 387, § 1, 63 Stat. 493; Feb. 10, 1954, ch. 6, § 1, 68 Stat. 8; Mar. 2, 1955, ch. 9, § 1(b), 69 Stat. 10; Pub. L. 87–36, § 1(b), May 19, 1961, 75 Stat. 80; Pub. L. 88–426, title IV, § 403(b), Aug. 14, 1964, 78 Stat. 434; Pub. L. 89–372, § 1(b), Mar. 18, 1966, 80 Stat. 75; Pub. L. 90–347, § 3, June 18, 1968, 82 Stat. 184; Pub. L. 94–82, title II, § 205(b)(2), Aug. 9, 1975, 89 Stat. 422; Pub. L. 95–486, § 3(b), Oct. 20, 1978, 92 Stat. 1632; Pub. L. 96–452, § 3, Oct. 14, 1980, 94 Stat. 1994; Pub. L. 97–164, title I, § 102, Apr. 2, 1982, 96 Stat. 25; Pub. L. 98–353, title II, § 201(b), July 10, 1984, 98 Stat. 346; Pub. L. 101–650, title II, § 202(b), Dec. 1, 1990, 104 Stat. 5099; Pub. L. 102–198, § 10(c), Dec. 9, 1991, 105 Stat. 1626; Pub. L. 105–119, title III, § 307, Nov. 26, 1997, 111 Stat. 2493; Pub. L. 110–177, title V, § 509(a), Jan. 7, 2008, 121 Stat. 2543.)
### Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., § 213, and sections 11–201, 11–202, District of Columbia Code, 1940 ed. (, ; , §§ 221, 222, ; , ; , ; , ; , ; , ; , ; , ; , §§ 1, 2, ; , ; , ; , ; , ; , ; , ; , ; , §§ 1, 3, , 585; , ; , ; , ; , ).
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 , 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 , 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 , § 4, and R.S. § 608, enacted . 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, , , 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 , 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 , D.C. 1944, 56 F.Supp. 972, holding that residence requirement of , U.S.C., 1940 ed., did not apply to district judges in the District of Columbia. (See Reviser’s Note under .)
The provision in section 213 of the title 28, U.S.C., 1940 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 .
Last sentence, providing that nothing in , U.S.C., 1940 ed., should prevent a circuit judge from holding district court as provided by law, was omitted as unnecessary. (See authorizing assignments to district courts.)
Subsection (b) was added in conformity with the U.S. Constitution, art. 3.
Changes were made in phraseology.
### References in Text
The effective date of the Federal Courts Improvement Act of 1982, referred to in subsec. (c), is the effective date of , . See Effective Date of 1982 Amendment note set out under .
Section 225 of the Federal Salary Act of 1967, referred to in subsec. (d), is , , , which is classified to chapter 11 (§ 351 et seq.) of Title 2, The Congress.
## Editorial Notes
### Amendments
2008—Subsec. (a). , substituted “29” for “28” in item relating to Ninth Circuit.
, substituted “11” for “12” in item relating to District of Columbia Circuit.
1997—Subsec. (c). inserted at end “In each circuit (other than the Federal judicial circuit) there shall be at least one circuit judge in regular active service appointed from the residents of each state in that circuit.”
1991—Subsec. (c). substituted “the Federal Courts Improvement Act of 1982” for “this Act”.
1990—Subsec. (a). altered number of permanent circuit judgeships in named circuits as follows:
| Circuits | Former | New |
| --- | --- | --- |
| Third | 12 | 14 |
| Fourth | 11 | 15 |
| Fifth | 16 | 17 |
| Sixth | 15 | 16 |
| Eighth | 10 | 11 |
| Tenth | 10 | 12 |
1984—Subsec. (a). altered number of permanent circuit judgeships in named circuits as follows:
| Circuits | Former | New |
| --- | --- | --- |
| District of Columbia | 11 | 12 |
| First | 4 | 6 |
| Second | 11 | 13 |
| Third | 10 | 12 |
| Fourth | 10 | 11 |
| Fifth | 14 | 16 |
| Sixth | 11 | 15 |
| Seventh | 9 | 11 |
| Eighth | 9 | 10 |
| Ninth | 23 | 28 |
| Tenth | 8 | 10 |
| Eleventh | 12 | 12 |
| Federal | 12 | 12 |
1982—Subsec. (a). , inserted item relating to Federal circuit with 12 judges.
Subsec. (c). , inserted provision relating to requirement that judges of Federal judicial circuit reside within fifty miles of the District of Columbia.
1980—Subsec. (a). substituted “14” for “26” in item relating to Fifth Circuit, and added item relating to Eleventh Circuit.
1978—Subsec. (a). altered number of permanent circuit judgeships in the named circuits as follows:
| Circuits | Former | New |
| --- | --- | --- |
| District of Columbia | 9 | 11 |
| First | 3 | 4 |
| Second | 9 | 11 |
| Third | 9 | 10 |
| Fourth | 7 | 10 |
| Fifth | 15 | 26 |
| Sixth | 9 | 11 |
| Seventh | 8 | 9 |
| Eighth | 8 | 9 |
| Ninth | 13 | 23 |
| Tenth | 7 | 8 |
1975—Subsec. (d). substituted provision that each circuit judge shall receive a salary at an annual rate determined under section 225 of the Federal Salary Act of 1967, as adjusted by , for provision that each circuit judge shall receive a salary of $33,000 a year.
1968—Subsec. (a). increased the number of circuit judges in the enumerated circuits as follows: Third Circuit, eight to nine; Fifth Circuit, nine to fifteen; Sixth Circuit, eight to nine; Ninth Circuit, nine to thirteen, and Tenth Circuit, six to seven.
1966—Subsec. (a). increased the number of circuit judges in the enumerated circuits as follows: Fourth Circuit, five to seven; Sixth Circuit, six to eight; Seventh Circuit, seven to eight; Eighth Circuit, seven to eight.
1964—Subsec. (d). increased the salary of the circuit judges from $25,500 to $33,000.
1961—Subsec. (a). increased the number of circuit judges in the enumerated circuits, as follows: Second Circuit, six to nine; Third Circuit, seven to eight; Fourth Circuit, three to five; Fifth Circuit, seven to nine; Seventh Circuit, six to seven; and Tenth Circuit, five to six.
1955—Subsec. (d). Act , increased the salary of circuit judges from “$17,500” a year to “$25,500”.
1954—Subsec. (a). Act , increased the number of circuit judges in the Fifth Circuit from six to seven, and in the Ninth Circuit from seven to nine.
1949—Subsec. (a). Act , increased the number of circuit judges for the District of Columbia from six to nine, for the Third Circuit from six to seven, for the Seventh Circuit from five to six, and for the Tenth Circuit from four to five.
## Statutory Notes and Related Subsidiaries
### Effective Date of 2008 Amendment
> “The amendments made by subsection (a)(2) [amending this section] shall take effect on
>
> .”
, , , provided that:
### Effective Date of 1990 Amendment
> “This title [amending this section and
>
> and enacting provisions set out as notes under this section and sections 133 and 331 of this title] shall take effect on the date of the enactment of this title [
>
> ].”
, , , provided that:
### Effective Date of 1982 Amendment
Amendment by effective , see , set out as a note under .
### Effective Date of 1980 Amendment
Amendment by effective , see , set out as a note under .
### Effective Date of 1964 Amendment
Amendment by effective on first day of first pay period which begins on or after , except to extent provided in , see .
### Effective Date of 1955 Amendment
Amendment by act , effective , see section 5 of act , set out as a note under , The Congress.
### Nomination to Federal Judgeship on Nondiscriminatory Basis
> “It is the sense of the Congress that the President, in selecting individuals for nomination to the Federal judgeships created by this Act [see Short Title of 1984 Amendment note set out under
>
> ], shall give due consideration to qualified individuals without regard to race, color, sex, religion, or national origin.”
, , , provided that:
### Continued Service of Judges
, , , provided that judges of United States Court of Claims and of United States Court of Customs and Patent Appeals in regular active service on , would continue in office as judges of United States Court of Appeals for the Federal Circuit and senior judges of United States Court of Claims and of United States Court of Customs and Patent Appeals on , would continue in office as senior judges of United States Court of Appeals for the Federal Circuit.
### Congressional Statement Regarding Appointment of Judges
> **“(1)** takes notice of the fact that the quality of the Federal judiciary is determined by the competence and experience of its judges; and
>
> **“(2)** suggests that the President, in nominating individuals to judgeships on the United States Court of Appeals for the Federal Circuit and the United States Claims Court [now United States Court of Federal Claims], select from a broad range of qualified individuals.”
, , , provided that:
### Salary Increases
For adjustment of salaries of circuit judges under this section, see the executive order detailing the adjustment of certain rates of pay set out as a note under , Government Organization and Employees.
For prior year salary increases per the recommendation of the President, see Prior Salary Recommendations notes under , The Congress.
For miscellaneous provisions dealing with adjustments of pay and limitations on use of funds to pay salaries in prior years, see notes under , Government Organization and Employees.
Salaries of circuit judges increased from $12,500 to $17,500 a year by , .
Salaries of circuit judges increased from $8,500 to $12,500 a year by , .
Salaries of circuit judges increased from $7,000 to $8,500 a year by , .
Salaries of circuit court judges set at $7,000 a year by the Judicial Code of 1911, , .
### Additional Judges
Since 1925, the appointment of additional judges was authorized by the following acts:
Second circuit. , .
Third circuit. , ; , ; , ; , , repealed by , .
Fifth circuit. , ; , ; , .
Sixth circuit. , ; , .
Seventh circuit. , ; , .
Eighth circuit. , ; , .
Ninth circuit. , ; , ; , (removing limitation on filling of vacancy); , .
Tenth circuit. , .
District of Columbia Court of Appeals. , ; , ; , .
, , 1347 provided that “There shall be in the sixth, seventh, and tenth circuits, respectively, four circuit judges; and in the second and eighth circuits, respectively, five circuit judges; and, in each of the other circuits three circuit judges, to be appointed by the President, by and with the advice and consent of the Senate.”
Another part of , , which amended subsec. (a) of this section, provided for the appointment by the President, by and with the advice and consent of the Senate, of the additional judges for the Fifth and Ninth Circuits, provided for in such amendment.
> “The President shall appoint, by and with the advice and consent of the Senate, three additional circuit judges for the second circuit, one additional circuit judge for the third circuit, two additional circuit judges for the fourth circuit, two additional circuit judges for the fifth circuit, one additional circuit judge for the seventh circuit, and one additional circuit judge for the tenth circuit.”
, , , provided that:
> “The President shall appoint, by and with the advice and consent of the Senate, two additional circuit judges for the fourth circuit, two additional circuit judges for the sixth circuit, one additional circuit judge for the seventh circuit, and one additional circuit judge for the eighth circuit.”
, , , provided that:
> “The President shall appoint, by and with the advice and consent of the Senate, four additional circuit judges for the fifth circuit.”
, , , as amended by , , , provided that:
The second sentence of which provided that the first four vacancies occurring in the office of circuit judge in the fifth circuit shall not be filled was deleted by , which also made those judgeships permanent and further provided that the present incumbents of such judgeships shall henceforth hold their offices under this section.
> “That the President shall appoint, by and with the advice and consent of the Senate, one additional circuit judge for the third circuit, two additional circuit judges for the fifth circuit, one additional circuit judge for the sixth circuit, four additional circuit judges for the ninth circuit, and one additional circuit judge for the tenth circuit.”
, , , provided:
> “The President shall appoint, by and with the advice and consent of the Senate, one additional circuit judgeship for the first circuit, two additional circuit judgeships for the second circuit, one additional circuit judgeship for the third circuit, three additional circuit judgeships for the fourth circuit, eleven additional circuit judgeships for the fifth circuit, two additional circuit judgeships for the sixth circuit, one additional circuit judgeship for the seventh circuit, one additional circuit judgeship for the eighth circuit, ten additional circuit judgeships for the ninth circuit, one additional circuit judgeship for the tenth circuit, and two additional circuit judgeships for the District of Columbia.”
, , , provided that:
> **“(1)** Subject to the provisions of paragraph (2), the President shall appoint, by and with the advice and consent of the Senate, two additional circuit judges for the first circuit court of appeals, two additional circuit judges for the second circuit court of appeals, two additional circuit judges for the third circuit court of appeals, one additional circuit judge for the fourth circuit court of appeals, two additional circuit judges for the fifth circuit court of appeals, four additional circuit judges for the sixth circuit court of appeals, two additional circuit judges for the seventh circuit court of appeals, one additional circuit judge for the eighth circuit court of appeals, five additional circuit judges for the ninth circuit court of appeals, two additional circuit judges for the tenth circuit court of appeals, and one additional circuit judge for the District of Columbia circuit court of appeals.
>
> **“(2)** The President shall appoint, by and with the advice and consent of the Senate, no more than 11 of such judges prior to January 21, 1985.”
, , , provided that:
> **“(1)** 2 additional circuit judges for the third circuit court of appeals;
>
> **“(2)** 4 additional circuit judges for the fourth circuit court of appeals;
>
> **“(3)** 1 additional circuit judge for the fifth circuit court of appeals;
>
> **“(4)** 1 additional circuit judge for the sixth circuit court of appeals;
>
> **“(5)** 1 additional circuit judge for the eighth circuit court of appeals; and
>
> **“(6)** 2 additional circuit judges for the tenth circuit court of appeals.”
, , , provided that:
## Executive Documents
### Executive Order No. 11972
Ex. Ord. No. 11972, , 42 F.R. 9659, as amended by Ex. Ord. No. 11993, , 42 F.R. 27197, which related to the United States Circuit Judge Nominating Commission, was revoked by Ex. Ord. No. 12059, , 43 F.R. 20949, formerly set out below.
### Executive Order No. 12059
Ex. Ord. No. 12059, , 43 F.R. 20949, as amended by Ex. Ord. No. 12097, , 43 F.R. 52455, which established the United States Circuit Judge Nominating Commission and provided for its membership, functions, etc., was revoked by Ex. Ord. No. 12305, , 46 F.R. 25421, formerly set out as a note under , Government Organization and Employees.
### Ex. Ord. No. 13300. Facilitating the Administration of Justice in the Federal Courts
Ex. Ord. No. 13300, , 68 F.R. 25807, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to promote the prompt appointment of judges to the Federal courts, it is hereby ordered as follows:
1. . The Federal courts play a central role in the American justice system. For the Federal courts to function effectively, judicial vacancies in those courts must be filled in a timely manner with well-qualified candidates.
. 2. . The presidential plan announced on , calls for timely consideration of judicial nominees, with the President submitting a nomination to fill a vacancy in United States courts of appeals and district courts within 180 days after the President receives notice of a vacancy or intended retirement, absent extraordinary circumstances.
. 3. . The Counsel to the President shall take all appropriate steps to ensure that the President is in a position to make timely nominations for judicial vacancies consistent with this plan. All Federal departments and agencies shall assist, as requested and permitted by law, in the implementation of this order.
. 4. . Nothing in this order shall be construed to affect the authority of the President to fill vacancies under clause 3 of section 2 of article II of the Constitution.
. 5. . This order is intended only to improve the internal management of the Federal Government and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by a party against the United States, its departments, agencies, instrumentalities or entities, its officers or employees, or any other person.