Legislation Authorizing the Transfer of Federal Judges from

One District to Another

C ongress m ay by statute confer new duties on officers o f the U nited States as long as 

those new duties are "g erm an e” to their existing functions, w ithout the necessity o f 

reappointm ent und er th e A ppointm ents C lause o f the C onstitution. Shoemaker v. United

States. 147 U.S. 282, 301 (1893).

C onstitutionality o f legislation authorizing the transfer o f a F ederal district ju d g e from 

one district to an o th er depends upon w h eth er the transfer is view ed as the m odification 

o f an existing position o r the filling o f an en tirely new office.

T ran sfer provision goes against a tradition o f regionalism in the selection o f district 

judges, and potentially infringes upon the P resid en t’s p o w er to appoint ju d g es to the 

D istrict o f C olum bia bench, and should be opposed on policy g rounds even if not 

clearly forbidden by the A ppointm ents Clause.

March 28, 1980

MEMORANDUM OPINION FOR TH E ASSISTANT ATTORNEY 

GENERAL, OFFICE OF LEGISLATIVE AFFAIRS

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)).

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vacancies on the bench resulting from such service (§ 302),2 and establish the District of Columbia as the “official duty station” of the judgeadministrators (§ 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 himself’ 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, confirmation by the Senate, and appointment by the President are constitutionally 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 Administration’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.

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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 temporary 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 temporarily 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 of 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,

Continued

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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 Congress’ 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 appointment to a new one, governed by Buckley. One important difference 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 situation 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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