  Legislation Authorizing the Transfer of Federal Judges from
                   One District to Another

C o n g re ss m ay by sta tu te c o n fe r n ew d u ties on o fficers o f th e U n ited S tates as lo n g as
   th o se n ew d u ties are " g e rm a n e ” to th e ir existing fu n ctio n s, w ith o u t the necessity o f
   re a p p o in tm en t u n d e r th e A p p o in tm e n ts C lau se o f th e C o n stitu tio n . Shoemaker v. United
  States. 147 U.S. 282, 301 (1893).

C o n stitu tio n a lity o f legislation a u th o riz in g th e tran sfer o f a F e d e ra l d istric t ju d g e from
   o n e d istric t to a n o th e r d ep e n d s upon w h e th e r th e tran sfer is v iew ed as th e m odification
   o f an ex isting p o sition o r th e filling o f an e n tire ly n ew office.

T ra n s fe r p ro v isio n g o es against a tra d itio n o f regionalism in th e se lectio n o f district
   ju d g e s, an d p o ten tially infringes upon the P re sid e n t’s p o w e r to ap p o in t ju d g e s to the
   D istrict o f C o lu m b ia b en ch , an d sh o u ld be o p p o se d on p o licy g ro u n d s ev en if not
   c le a rly fo rb id d en by th e A p p o in tm e n ts C lause.


                                                                                            March 28, 1980

M EM ORANDUM OPINION FOR T H E ASSISTAN T ATTORNEY
      G EN ER A L, O F FIC E O F L EG ISLA TIV E A FFA IRS

   This responds to your request for our opinion on the constitutionality
of certain provisions of S. 1477* dealing with the temporary assignment
of federal judges to administrative positions within the judicial branch.
 In particular, you requested our opinion regarding the constitutionality
of a provision in § 304(a) of the bill that would permit a judge in active
service at the time he assumed the administrative position to elect, upon
vacating it, either to return to active service in his home district (or
circuit), or to “assume active service as a judge in the circuit of the
District of Columbia.” For the reasons set forth below, we believe this
provision raises novel and troublesome constitutional questions and, as a
matter of policy, is ill-advised.
   The portions of S. 1477 preceding § 304 would authorize federal
judges to serve in certain specified administrative positions within the
judiciary (§301),* authorize the President to appoint successors to fill

   • N o t e : S. 1477, a bill “To Provide for Improvements in the Structure and Administration of the
Federal Courts, and for Other Purposes," passed the Senate in October of 1979, but was not reported
out of committee in the House. Ed.
   1 The specified statutory administrative positions are: Administrative Assistant to the Chief Justice
(appointed by the Chief Justice pursuant to 28 U.S.C. § 677), Director of the Administrative Office of
the United States Courts (appointed by the Supreme Court under 28 U.S.C. § 601), and Director of the
Federal Judicial Center (appointed by a board of judges chaired by the Chief Justice, pursuant to 28
U.S.C. §§ 621(a) and 624<1)).

                                                       538
vacancies on the bench resulting from such service (§ 302),2 and estab­
lish the District of Columbia as the “official duty station” of the judge-
administrators (§ 303). There is no minimum or maximum time specified
for terms of service as a judicial administrator.
   If a judge elects to return to his home court at the end of his tour of
administrative duty, he may do so without loss of seniority. § 304(b). If
he elects the alternative “transfer” option, however, and assumes a seat
on a federal court in the District of Columbia, his status is not so clear.
It is, for example, not clear whether he would be considered to have
filled a vacancy on the District of Columbia court, or whether there
would automatically be created an additional seat on that court. It is
not stated whether a judge who decides to remain in the District of
Columbia could subsequently reclaim a seat on his home court—or
whether his initial decision not to return to that court would mean
relinquishing that option. Finally, as your Office’s memorandum points
out, the bill is unclear as to whether a district court judge could,
through the provision, “elevate him self’ to the court of appeals.3
   Stated in its simplest terms, the constitutional question raised by the
transfer provision is whether a new presidential nomination, confirma­
tion by the Senate, and appointment by the President are constitution­
ally required before a judge appointed to, for example, the Northern
District of Iowa, may take a seat as a judge on the District Court for
the District of Columbia. This question may be analyzed in terms of the
relationship between the power of Congress under Art. I, § 8, cl. 18 of
the Constitution to alter, enlarge, or restrict the functions of existing
federal officers and the requirement of the Appointments Clause, Art.
II, § 2, cl. 2, that appointments as officers of the United States be made
in the manner prescribed in that Clause.4 Such an analysis involves a

   2 When a successor is appointed, any vacancy resulting from the death, resignation or retirement of
the judge temporarily assigned will not be filled; and, if the judge resumes active service in his home
district, the first vacancy created on that court shall not be filled. This scheme parallels that provided
under present law for situations in which a sitting judge is certified as disabled and an additional judge
is appointed to carry on the business of the court. See 28 U.S.C. § 372(b).
   3 The complete failure to spell out these important operational factors in the bill has not to date
been cured in its legislative history. Indeed, there is no indication that the transfer provision was even
noticed, much less discussed, by anyone during the bill's consideration in the Senate. The Administra­
tion’s court improvements bill contained no provisions dealing with administrative service by active
judges. According to an article in The Washington Post on December 22, 1979, credit for developing
the particular provision dealing with transfer to the District of Columbia courts is claimed by the
Director of the Federal Judicial Center. Its* ostensible purpose was to encourage sitting judges to
accept the administrative posts and relocate to Washington.
   4 The clause is:
         [The President] shall have Power, by and with the Advice and Consent of the Senate,
         to make Treaties, provided two thirds of the Senators present concur; and he shall
         nominate, and by and with the Advice and Consent of the Senate, shall appoint
         Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all
         other Officers of the United States, whose Appointments are not herein otherwise
         provided for, and which shall be established by Law; but the Congress may by Law
         vest the Appointment of such inferior Officers, as they think proper, in the President
         alone, in the Courts of Law, or in the Heads of Departments.

                                                  539
reconciliation of the Supreme Court’s decisions in Shoemaker v. United
States, 147 U.S. 282, 301 (1893), and Buckley v. Valeo, 424 U.S. 1, 118-
36 (1976).
   Shoemaker stated the principle that Congress may, by statute, confer
new duties on officers of the United States at least where the new
duties are “germane” to their existing functions, without the necessity
of reappointment under the Appointments Clause. Buckley held that
Congress may not itself appoint officers of the United States. The
propriety of the proposed transfer provision depends, therefore, on
whether the shift from one district to another involves the modification
of an existing position or the filling of an entirely new office.5
   There are reasonable arguments to support either conclusion, and
precedent does not suggest that one is necessarily the correct view. On
the one hand, a judge’s commission includes the name of the district or
circuit in which he is intended to serve, and his appointment and
confirmation are predicated on the expectation that he will in fact be
serving in that district or circuit.6 On the other hand, service as a judge
on one federal court is surely “germane” to judicial service on another,
and raises none of the type of separation of powers problems that
apparently structured the Court’s opinion in Shoemaker. 7 Under current
law, the Chief Justice of the United States may assign any district judge
to temporary service in another circuit, either on a district court or on
the court of appeals. 28 U.S.C. § 292(d). However, during such tempo­
rary service, judges retain the titles appurtenant to their permanent
appointments, and are generally memorialized in published opinions as
“sitting by designation” on the court to which they have been tempo­
rarily assigned.8

   5 The question whether Congress may permit a district judge, through the proposed transfer
provision, to elevate himself to the appellate level seems to us to present no separate constitutional
issues. Article HI recognizes only two types of federal courts, the Supreme Court and “such inferior
Courts as the Congress may from time to time ordain and establish." The offices of district judge and
circuit judge are therefore not constitutionally distinct. Indeed, in the early years of our history, there
were no judges separately appointed to the circuit courts, and district judges regularly sat as judges on
those courts along with Justices of the Supreme Court. It was not until 1869 that Congress authorized
the appointment of circuit judges. Act of April 10, 1869, 16 Stat. 44. See Hart & Wechsler, The
Federal Courts and the Federal System 38 (1973). If there is no constitutional bar to Congress*
transferring district judges from district to district, we think there would be no constitutional bar to
their being shifted from district to appellate court service.
   0 There is nothing in the Constitution that would preclude Congress from deciding to make all
district and/or circuit judgeships interchangeable, so that an appointment would be generally valid for
any post in the inferior federal courts to which an individual might from time to time be assigned.
There have in the past been cases in which Congress has authorized the appointment of a judge to
serve in more than one district, or to serve as a “ roving’* judge among several districts. See. e.g.. Act
of July 24, 1946, 60 Stat. 654. There have been cases in which a judge appointed to serve in one
district was subsequently shifted by congressional act to a newly created district in the same state,
without being reappointed and reconfirmed. In no case, however, has a judge been appointed to one
court and subsequently been permitted to shift permanently to another previously existing court.
   7 In commenting on the Shoemaker case, in which officers o f the United States Army were
designated by Congress to serve as Park Commissioners, Corwin describes the limits of Congress'
power to increase or change the duties of an existing office in terms of the principle of separation of
powers. Corwin, The President, Office and Powers, 1787-1957 at 75 (1957).
   8 A similar provision dealing with the temporary assignment of judges of the Court of Claims or the
Court of Customs and Patent Appeals to judicial duties in either a district court or a court of appeals,
                                              C ontinued


                                                  540
    While we cannot conclude with assurance on the question of the
transfer provision’s constitutionality, we think that two considerations
warrant the Administration’s opposition to its inclusion in the court
improvements bill. First, the transfer option is unique in the history of
congressional regulation of the inferior federal courts, and would go
against a tradition of regionalism in the selection of district judges that,
if not constitutionally required, has about it an aura of constitutional
respectability that should be disturbed only for compelling reasons.
Second, the inroads that the transfer provision could theoretically make
on the President’s power to appoint judges to the District of Columbia
bench make its adoption unwise as a matter of policy, even if not
clearly forbidden under the Appointments Clause.
    This conclusion is consistent with our recent advice on the
reallocation of personnel in connection with the proposed merger of the
Court of Claims and the Court of Customs and Patent Appeals. We
advised that there appeared to be no constitutional objection to Con­
gress’ redesignating judges presently serving on one or the other of the
two courts as judges of a merged court, and to carrying over trial
judges of the Court of Claims as judges of a new United States Claims
Court. We rested our opinion on our understanding that the functions
of judges on the new court were sufficiently like those in the positions
being abolished to view the legislative redesignation as a modification
of an existing position under Shoemaker, rather than a legislative ap­
pointment to a new one, governed by Buckley. One important differ­
ence between the merger situation and the transfer proposal at issue
here is that the former involves the end of one institution and the
continuance of its major functions in another. It is reasonable, and
important in terms of efficiency and institutional continuity, to provide
in this context for the relocation of experienced and capable judicial
personnel, and for their continuing to perform the functions of the
office to which they were originally appointed. In addition, unlike the
transfer provision, it could be said that the judges’ functions on the
merged court were within the contemplation of those who were in the
 first place responsible for their appointment and confirmation.
    Although we have no reason to believe that the dire predictions of
 “court-packing” that have been made in connection with the transfer
proposal 9 would ever be realized, we can more easily imagine a situa­
tion in which the President’s prerogative to fill vacancies occurring on
the District of Columbia bench would be seriously compromised by it.
This would be particularly true if transferring judges were considered

28 U.S.C. § 293(a), was upheld against a constitutional challenge in Glidden Co. v. Zdanok, 370 U.S.
530 (1962). Glidden involved primarily questions under Article HI, and there is no discussion in the
Court's opinion of the Appointments Clause.

  9 See, e.g.. Bill Would Let Chief Justice Fill U.S. Bench Here, The Washington Post, December 22,
1979, p. 1.

                                               541
to have filled a vacancy on the District of Columbia court. Quite
independently of any constitutional doubts we may have regarding the
proposal, then, we believe it has little to commend it as a matter of
policy.
                                       L a r r y L . S im m s
                               Deputy Assistant Attorney General
                                   Office o f Legal Counsel




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