[House Report 104-697]
[From the U.S. Government Publishing Office]



104th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 2d Session                                                     104-697
_______________________________________________________________________


 
   CONTINUED PARTICIPATION OF SENIOR JUDGES IN AN IN BANC PROCEEDINGS

                                _______
                                

 July 23, 1996.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Hyde, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                         [To accompany S. 531]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
Act (S. 531) to authorize a circuit judge who has taken part in 
an in banc hearing of a case to continue to participate in that 
case after taking senior status, and for other purposes, having 
considered the same, report favorably thereon without amendment 
and recommend that the Act do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     1
Background and Need for Legislation..............................     2
Hearings.........................................................     2
Committee Consideration..........................................     2
Vote of the Committee............................................     2
Committee Oversight Findings.....................................     3
Committee on Government Reform and Oversight Findings............     3
New Budget Authority and Tax Expenditures........................     3
Congressional Budget Office Estimate.............................     3
Inflationary Impact Statement....................................     4
Section-by-Section Analysis......................................     4
Changes in Existing Law Made by the Bill as Reported.............     4

                          Purpose and Summary

    S. 531 corrects a minor flaw in the Judicial Code, 
specifically 28 U.S.C. 46(c), by clarifying that active judges 
who take senior status while an in banc case is pending may 
continue to participate in the pending in banc case.

                Background and Need for the Legislation

    S. 531 was introduced by Chairman Hatch of the Senate 
Judiciary Committee, and was cosponsored by the senior senator 
from Illinois, Paul Simon. S. 531 passed the Senate by 
unanimous consent on September 28, 1995.
    Under the current version of 28 U.S.C. Sec. 46(c), a senior 
judge may participate in an in banc court when that court is 
reviewing a decision of a three-judge panel on which the senior 
judge sat. However, if a judge is in active service when an in 
banc court takes a case, but takes senior status while the case 
is pending, the law is unclear as to whether the senior judge 
may continue to participate in the in banc case. The Fifth 
Circuit held in 1968 that the senior judge may continue to 
participate. United States v. Cocke, 399 F.2d 433, 435 n.* (5th 
Cir. 1968) (in banc). On the other hand, the Seventh Circuit 
held in 1994 that the senior judge could not continue to 
participate. United States v. Hudspeth, 42 F.3d 1013 (7th Cir. 
1994) (in banc). In Hudspeth, the Seventh Circuit recommended 
that we address this problem through legislation. 42 F.3d at 
1015.
    S. 531 will resolve this minor flaw in the statute by 
clarifying that the senior judge can continue to participate. 
It will eliminate any possibility of an in banc opinion's being 
held up because of the effect of a vote from a judge who may be 
near the time to take senior status. The Committee is informed 
that the Judicial Conference supports S. 531, and it is not 
aware of any opposition to it.

                                Hearings

    The Committee held no hearings on S. 531, because it was 
viewed as noncontroversial and received broad bipartisan 
support.

                        Committee Consideration

    On July 16, 1996, the full Committee met in open session 
and ordered favorably reported the bill S. 531, by a vote of 24 
to 0, a quorum being present.

                         Vote of the Committee

     1. The motion to report favorably S. 531 without 
amendment. The motion was agreed to by a roll call vote of 24 
to 0.

                                                                        
                                                                        
                AYES                                 NAYS               
                                                                        
Mr. Hyde                                                                
Mr. Moorhead                                                            
Mr. McCollum                                                            
Mr. Gekas                                                               
Mr. Coble                                                               
Mr. Smith of Texas                                                      
Mr. Schiff                                                              
Mr. Canady                                                              
Mr. Goodlatte                                                           
Mr. Buyer                                                               
Mr. Hoke                                                                
Mr. Bono                                                                
Mr. Heineman                                                            
Mr. Conyers                                                             
Mrs. Schroeder                                                          
Mr. Frank                                                               
Mr. Reed                                                                
Mr. Nadler                                                              
Mr. Scott                                                               
Mr. Watt                                                                
Mr. Becerra                                                             
Ms. Lofgren                                                             
Ms. Jackson Lee                                                         
Ms. Waters                                                              
                                                                        

                      Committee Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House Rule XI is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 2(l)(3)(C) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the bill, S. 531, the following estimate 
and comparison prepared by the Director of the Congressional 
Budget Office under section 403 of the Congressional Budget Act 
of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 19, 1996.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed S. 531, an act 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, as ordered reported by the House Committee on 
the Judiciary on July 16, 1996. CBO estimates that enacting S. 
531 would not result in any cost to the federal government. 
Because enactment of S. 531 would not affect direct spending or 
receipts, pay-as-you-go procedures would not apply to the bill.
    S. 531 would clarify current law to confirm that judges who 
take on senor status may continue to participate in en banc 
hearings, which are hearings where all of the judges of a 
circuit court generally participate. According the 
administrative Office of the United States Courts maintaining 
the judges who are on senior status for inclusion in such cases 
would impose no additional costs on the courts because the pay 
and support resources for these judges would not change under 
this act. Thus, CBO estimates that enacting S. 531 would result 
in no significant impact on the federal budget.
    S. 531 contains no private-sector or intergovernmental 
mandates as defined in Public Law 104-4 and would have no 
impact on the budget of state, local, or tribal governments.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susanne S. 
Mehlman.
            Sincerely,
                                              James L. Blum
                                   (For June E. O'Neill, Director.)

                     Inflationary Impact Statement

    Pursuant to clause 2(l)(4) of rule XI of the Rules of the 
House of Representatives, the Committee estimates that S. 531 
will have no significant inflationary impact on prices and 
costs in the national economy.

                      Section-by-Section Analysis

    Section 1. S. 531 consists of one section which amends 28 
U.S.C. Sec. 46(c) to clarify that a United States Circuit Judge 
who begins participation in an in banc case while in active 
service may continue to participate in the decision of the case 
if the judge takes senior status during the pendency of the 
case.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3 of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

               SECTION 46 OF TITLE 28, UNITED STATES CODE

Sec. 46. Assignment of judges; panels; hearings; quorum

    (a) * * *
          * * * * * * *
    (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 time 
when such judge was in regular active service.
          * * * * * * *