[Congressional Record Volume 142, Number 113 (Monday, July 29, 1996)]
[House]
[Pages H8608-H8609]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  AUTHORIZING CIRCUIT JUDGE WHO HAS TAKEN PART IN EN BANC HEARING TO 
           CONTINUE TO PARTICIPATE AFTER TAKING SENIOR STATUS

  Mr. MOORHEAD. Mr. Speaker, I move to suspend the rules and pass the 
Senate bill (S. 531) to authorize a circuit judge who has taken part in 
an en banc hearing of a case to continue to participate in that case 
after taking senior status, and for other purposes.
  The Clerk read as follows:

                                 S. 531

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. AMENDMENT.

       The last sentence of section 46(c) of title 28, United 
     States Code, is amended by inserting ``(1)'' after 
     ``eligible'' and by inserting the period at the end of the 
     sentence ``, or (2) to continue to participate in the 
     decision of a case or controversy that was heard or reheard 
     by the court en banc at a time when such judge was in regular 
     active service''.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
California [Mr. Moorhead] and the gentleman from Virginia [Mr. Scott] 
each will control 20 minutes.
  The Chair recognizes the gentleman from California [Mr. Moorhead].
  Mr. MOORHEAD. Mr. Speaker, I yield myself such time as I may consume.
  (Mr. MOORHEAD asked and was given permission to revise and extend his 
remarks.)
  Mr. MOORHEAD. Mr. Speaker, I rise in support of S. 531. This act 
amends section 46(c) of title 28, to authorize a circuit judge who has 
taken part in an en banc hearing of a case to continue to participate 
in that case after taking senior status. There is an inadvertent 
problem in the law as it exist today. While section 46(c) allows a 
senior circuit judge who was a member of a panel whose decision is 
being reviewed en banc to sit on the en banc court, it has been 
interpreted to require a circuit judge in regular active service who 
has heard argument in an en banc case to case participating in that 
case upon taking senior status. This problem leads to uncertainty in 
deciding who will be eligible to vote on the final disposition of an 
appeal and may create the perception that a judge is delaying the 
release of an en banc opinion until a member of the en banc court takes 
senior status.
  This is an unintended result and a basic drafting problem in the 
statute. The judicial council of the seventh circuit, the most recent 
court to construe

[[Page H8609]]

the statute, recommends the change contained in S. 531, and I urge a 
favorable vote.
  Mr. Speaker, I reserve the balance of my time.
  Mr. SCOTT. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, as the gentleman from California has indicated, many 
cases that come before the circuit court involved a 3-judge pane. Those 
decisions will frequently include a senior or retired judge as a member 
of the panel. If the case goes to the full circuit court, the senior 
judge that took part in that decision can continue considering that 
case in the full court.

                              {time}  1415

  The circuits have split as to what happened when a judge changes from 
regular status to senior status during the trial and the circuits are 
split. This bill just merely says that, if he takes senior status while 
the case is still pending, he can continue to consider the case. This 
bill has unanimous support from the Committee on the Judiciary, and I 
urge support of the bill.
  Mr. Speaker, I yield back the balance of my time.
  Mr. MOORHEAD. Mr. Speaker, I have no further requests for time, and I 
yield back the balance of my time.
  The SPEAKER pro tempore (Mr. Calvert). The question is on the motion 
offered by the gentleman from California [Mr. Moorhead] that the House 
suspend the rules and pass the Senate bill, S. 531.
  The question was taken; and (two-thirds having voted in favor 
thereof) the rules were suspended and the Senate bill was passed.
  A motion to reconsider was laid on the table.


                             general leave

  Mr. MOORHEAD. Mr. Speaker, I ask unanimous consent that all Members 
may have 5 legislative days within which to revise and extend their 
remarks on S. 531, the bill just passed.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from California?
  There was no objection.

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