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RELATING TO COMMISSION ON REVISIO N OF FEDE RAL

COURT APP ELLATE SYSTEM

GOVERNMENT.

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BEFORE TH E

SUBCOMMITTEE ON COURTS, CIV IL LIBERTIES, 

AND THE ADMIN ISTRATION OF JUSTICE

OF TH E

COMMITTEE ON TH E JUDICIA RY 

S | HOUSE OF REPRESENTATIV ES

NINETY -TH IRD CONG RESS 

= = = = ° SECOND SESSION

-------- -11 ON

= 5 S . 3 0 5 2

TO AMEND THE ACT OF OCTOBER 13, 1972

MAY 24, 1974

Serial No. 36

Printed for the use of the Committee on the Judiciary

36-604 0

U.S. GOVERNM ENT PRINT ING OFFICE

WASHING TON : 1974
I w T A V

COMMITTEE ON THE JUDIC IARY

PE T E R W. RO DINO , J r., New Je rs ey , Ch airm an

HA RO LD D. DO NO HU E, M as sa ch us et ts 

JA CK B RO OK S, Tex as 

RO BE RT W. KAST EN M EI ER , W isc on sin 

DON ED WAR DS , C al if orn ia 

W IL LI AM L. HU NG AT E, M isso ur i 

JO HN CO NY ERS, J r., Michig an 

JO SH UA EIL BERG, Pen ns ylv an ia 

JE RO M E R. W ALD IE , C al ifor ni a 

WAL TE R FL OW ER S, Alaba m a 

JA M ES R. MANN, Sou th Car ol in a 

PA UL S. SA RB AN ES , M ar yl an d 

JO HN F. SIE BERLIN G , Ohio 

GE OR GE E. DA NI EL SO N, Cal ifor ni a 

RO BE RT F . DR IN AN , M as sa ch us et ts 

CH ARL ES B. RA NG EL , New Y ork 

BA RB AR A JO RD AN , Tex as 

RAY T HO RN TO N, A rk an sa s 

ELI ZA BET H HO LT ZM AN , New Y ork 

WA YN E OW EN S, U ta h 

ED WAR D MEZ VINS KY , Iowa

ED WAR D HU TC HI NS ON , Michig an 

RO BER T McCLORY, Illino is 

HE NR Y P. SM IT H III , New York 

CH ARL ES W. SANDMA N, J r., N ew Je rs ey 

TOM RA IL SB AC K, Il lino is 

CH ARL ES E. W IG GI NS , C al if or ni a 

DA VI D W. DEN NIS , In dia na 

HAM IL TO N FIS H , J r., New York 

W IL EY MAYNE, Io wa 

LA W RE NC E J. HOGAN, M ar yl an d 

M. CA LD W EL L BU TL ER , Virgi ni a 

W IL LIA M S. CO HE N, Maine 

TREN T LO TT , M issis sip pi 

HA RO LD V. FR O EH LIC H , W isc on sin 

CA RL OS J. MO OR HE AD , C al if or ni a 

JO SE P H J. MAR AZ ITI, New Je rs ey 

D ELB ERT L. LA TT A, Ohio

J ero me M. Zeif m an, Ge ne ra l Co un sel

Garner J . Cl in e, Ass oc ia te Ge neral Co un sel

H er be rt F u c h s, Co un se l

H er be rt E . H off m an, Co un sel

Wil liam P. Sh a tt uck, Co un sel

H. Ch ris toph er Nol de, Co un sel

Alan A. P ar ke r, Co un se l

J am es F . F alco, Co un se l

Mau ric e A. Barboza, Co un sel

F ran kl in G. P ol k, Co un sel

T ho mas E . Mooney, Co un se l

Mic hael W . Blo mmer , Co un sel

Ale xa nd er B. Coo k, Co un sel

Con st an ti ne J. Gek a s, A ss oc ia te Co un sel

Alan F. Coff ey , Co un sel

Subcommittee on Courts, Civil Liberties, and th e Administra tion of

J ustice

RO BE RT W. KAST EN M EI ER , W isco ns in, Ch airm an

GE OR GE E . DA NI EL SO N, Cal ifor ni a 

RO BE RT F. DR IN AN , M as sa ch use tts 

WA YN E OW EN S, U ta h

ED WAR D ME ZV INSK Y, Io wa

TO M RA IL SB AC K, Illino is 

HEN RY P. SM IT H III, New Y ork 

CH ARL ES W. SANDMA N, J r., Ne.v Je rs ey 

W IL LIA M S. CO HE N, Maine

H er be rt F u c hs, Co un sel

Willia m P. Dix on, Co un sel

Bruc e A. Leh m an, Co un sel

T ho ma s E. Mooney , A ss oc ia te Co un sel

(I I)
C O N T E N T S

Page Text of S. 3052________________________________________ 1

Testimony of—

Levin, Hon. A. Leo, Executive Director, Commission on the Revision

of the Federal Court Appellate System_______________________ 3

Additional information—

Prepared statem ent of A. Leo Levin___________________________ 3

Supplemental statement of A. Leo Levin______________________ 1 20

(in)

RELATING TO COMMISSION ON REVISION OF FEDERAL

COURT APPELLATE SYSTEM

FRIDAY , MAY 24, 1974

H ouse of R ep re se nt at iv es ,

S ub co mmit te e on C ou rts, C iv il L ib er ti es ,

an d t h e A dm in is tr ati on of J us ti ce

of t h e C om m it te e of t h e J ud ic ia ry ,

~Waskington^ D.C.

The subcommittee met at 11 a.m., p ursuant to notice, in room 2218, 

Rayburn House Office Building, Hon. Robert M. Kastenmeier, chairman of the subcommittee, presiding.

Present: Representatives Kastenmeier and Cohen.

Also present: Bruce A. Lehman, counsel; Herbert Fuchs, counsel: 

and Thomas E. Mooney, associate counsel.

Mr. K ast en m ei er . The subcommittee will come to order.

We will turn this morning to consideration of S. 3052, which is a 

bill to amend the act of October 13, 1972. This bill passed the Senate 

on March 26 of this year. It would extend the final date for the report 

of the Commission on Revision of the Federal Court Appellate System 

by 9 months. It would increase the appropriation of the Commission 

from $270,000 to $1 million.

The text of S. 3052 follows:

[S. 3052, 93d Cong., 2d sess.]

AN ACT T o ame nd th e A ct of October 13,19 72

Be i t enacted by the Senate and House o f Representative s o f the United States

of America in Congress assembled, T ha t th e Act of October 13,1972 (86 Stat. 807) 

is amended as follows :

(a) Section (2) of section 6 of such Act is amended by striking out “fifteen 

months” an d in serting in lieu thereof “twenty-four months”.

(b) Section 7 of such Act is amended by strik ing out “not more tha n $270,000” 

and inserting in lieu th ere of “not more than $1,000,000”.

Passed the Senate March 26,1974.

A ttes t:

F rancis R. Valeo,

Secretary.

At this time we would like to greet our distinguished colleague 

who has become a national figure in recent weeks, our friend, the 

Honorable Charles Wiggins, who will introduce our witness.

Mr. W ig gin s. Thank you very much, Mr. Chairman, and our colleague, Mr. Cohen.

Before I undertake the pleasant task of introducing Mr. Levin, I 

would like to make a few comments to the subcommittee about the 

subject matter before you at this time.

The Commission on the Revision of the Federal Court Appellate 

System is a creature of Congress and was a congressional response to 

the growing problem of caseloads within our circuits. It was clear that 

(1)
2

something had to be done, and yet, the problem was sufficiently complex th at it was felt t hat Congress should not undertake it without at 

least the advice or counsel of a panel of genuine national experts in 

this field. Accordingly, the Commission was created, and it has been 

my pleasure to serve on that Commission.

Three others of our colleagues on the Jud iciary Committee in the 

House serve on the Commission, as do four United States Senators. 

In addition, there are distinguished members of the bench: Judge 

Lumbard, of the Second Circuit, is a member of the Commission, and 

is co-chairman; Judge Roger Robb, of the Court of Appeals for the 

District of Columbia; Judge Sulmonetti, who is a State judge in the 

State of Oregon, a presiding judge of the courts of general jurisdiction in the city and county area of Portland, who is recognized as one 

of the experts in judicial administration and management in that area. 

We have distinguished members of the ba r: former Chairman Emanuel Celler is a member of the Commission; as is Mr. Kirkham from 

San Francisco, an outstanding practitioner of the foremost law firm in 

tha t city, and a former clerk for Chief Justice Hughes, back in the 

1930’s. We have outstanding members from the academic community: 

Professor Wechsler, who has written extensively on Federal jurisdiction ; and our Executive Director, whom we treat as almost a member of the Commission, Prof. Leo Levin, from the University of 

Pennsylvania, who also has written extensively on the Federal courts 

and Federal jurisdiction.

Our legislative mandate was essentially bifurcated. Phase one was 

to red raft the territorial boundaries of the circuits. That was the easier 

of the two tasks assigned, and that task is essentially complete; and 

our recommendations are now pending before the Congress.

The second phase, however, is infinitely more complex, and frankly, 

more profound in its impact on the Federal system of appellate 

justice. I t was to review the procedures under which appellate justice 

in th is country is dispensed, to the end tha t it can be more efficacious, 

more efficient, and more just. Tha t is an awesome mandate tha t we 

are proceeding under.

Experience has disclosed that it is impossible to discharge tha t 

mandate effectively within the time originally contemplated by the 

original legislation. And so we are back, Mr. Chairman, seeking an 

extension of time in which to perform our mission, and additional 

funds to carry out our task.

During my relatively brief tenure in Congress, it has been my honor 

to serve on various commissions. None, Mr. Chairman, has the potential for impacting the administration of justice as profoundly as 

does the Commission on the Revision of the Federal Court Appellate 

System. It is an enormously important Commission, one which can 

do an extremely valuable job for the Congress and for the country.

It is an honor for me to serve on it, and I am confident th at our 

work product will give your subcommittee, Mr. Chairman, enormous 

gris t for the subcommittee's mill. In the future we will be sending 

our recommendations in all probability to this subcommittee.

I am here to support the recommendations of our Commission for 

additional funding. And I would now like to introduce our executive 

director, Professor Leo Levin, from Pennsylvania, who will make a 

formal presentation on behalf of the Commission.

Thank you.
3

Mr. Kasten meier. We th an k ou r colleague f or comin g thi s morning 

an d fo r intro du cing o ur n ex t witn ess, and fo r his own comments.

I wou ld only say th at I, too, had th e ple asure of s erving on one o r 

two commissions at v ari ous times. One o f the problems we i nv ariabl y 

face, alm ost w ith ou t exc eption, is t hat we un de restimate th e resources 

th at we w ill need a nd the tim e th at we will need to complete o ur task. 

For example, th e Na tio nal Com mission on W iret ap pi ng is go ing to 

have to ask fo r an ext ention. I serve on th at Commission. It is s tra ng e 

th at alm ost, as I said, w ith ou t exception, we u nder- est im ate the m ag nitude of the task, th at is given to us w hen we serve on these commissions.

Also, we face the task of going before the Hou se, which has a 

disposition in r ece nt years to questio n th e de sir ab ility o f ei th er c re at ­

ing or susta ining ma ny commissions. W hile I certa inly an tic ipate no 

difficulty with th e subcom mittee or ou r pa re nt com mittee, I suppose 

we will need to be prep ared to fully defen d th is reques t fo r more re ­

sources, the mon ey, an d th e extension of tim e. Th is is wh at we are 

int ere ste d in t his mo rning.

I ap preciate y ou r comm ents.

Mr. Lev in.

TESTIMONY OF A. LEO LEVIN, EXEC UTIVE DIRECTOR, COMMISSION 

ON THE REVISION OF THE FEDERAL COURT APPELLATE SYSTEM

Air. Levin. I am very gr at ef ul an d ap preciat e th is op po rtun ity to 

ap pe ar before you.

We have filed a sta tem ent an d it may be he lpful, sub ject to yo ur 

pleasu re, if ins tea d of my read ing it, I hi gh lig ht some of th e pri ncip al things and re spond in wh ate ver d etail I am able to any que stio ns 

whi ch you may have.

Air. K astenmeier. W ith ou t objection, yo ur sta tem ent in its entire ty will be accepted fo r the record , and you may con tinue, 

Professor Le vin.

[Air. L evin’s prep ared sta tem ent follo ws:]

Statement of A. Leo Levin, Executive Director, Commission on Revision

of th e F ederal Court Appellate System

I very much appreciate this opportunity to appear before the Subcommittee 

on Courts, Civil Liberties, and the Administration of Justice in support of 

S. 3052, a bill to extend the final date for the report of the Commission on 

Revision of the Federal Court Appellate System by nine months and to increase 

its appropriation authorization from $270,000 to $1,000,000.

The Commission on Revision of the Federal Court Appellate System was 

established by Public Law 92-489 and assigned two major objectives, each 

with its own timetable.

In Phase I, the Commission was to study the geographical boundaries of the 

several judicial circuits and make recommendations for change. It was to complete this assignment within 180 days. The report on circuit realignment was 

filed in timely fashion on December 18.1973.

In Phase II, the Commission is to study “. . . the structure and intern al procedures of the Federal courts of appeal system . . .” and propose recommendations 

for change. Under the statute, as it now reads, this second assignment is to be 

completed and a report filed no later than September 21, 1974. The proposed legislation would extend this final filing date to June 21, 1975.

The threshold question, when one seeks additional time and additional resources, is whether the assigned task is worth the effort. The answer appears to 

be clearly in the affirmative. The importance of the Federal judiciary in our 

system of government, or of the courts of appeals within the judicial system,
4

can hardly be doubted. For some years now the Courts of Appeals have been 

beset by difficulties—“a sta te of c risis,’’ some have called it. Caseloads have bur ­

geoned. To avoid intolerable delays the courts have resorted to trunca ted procedures—widespread denial of oral argument, for example. Jud icial productivity 

has increased at tremendous rate, to the point where the distinguished chairman 

of the Subcommittee on Improvements in Jud icia l Machinery of the Senate Committee on the Judicia ry, Senator Burdick, recently raised what he term ed “the 

fundam ental question of whether the incre ase in prod uctivity by the Courts of 

Appeals has been achieved at th e expense of a reduction in the amount of m ature 

deliberation which each case is given in the adjudicating process’’. O ther knowledgeable observers have asserte d th at despite the v ast increase in the number of 

cases being processed, our system lacks adequate appellate capacity to meet the 

needs of the country today.

The underlying questions are complex, but brie f reference to some of them 

may serve to explain why the Commission is of one mind in the view th at both 

more time and more money are needed if the Commission is adequately to discharge the resi>onsibility imposed upon it by the Congress. Allow me to mention 

a few.

Maintaining the national law

It is a fam ilia r phenomenon of present practice th at differences in inter preta ­

tion of the revenue laws can go unresolved for yea rs with the resu lt th at a provision in the Internal Revenue Code may mean one thin g in Oregon and somethin g else in Florida. Moreover, the problem is not limited to situatio ns where 

two circuits have taken conflicting points of view on a single issue. As form er 

Solicitor General Griswold has pointed out, so long as the possibility of creating 

a conflict exists, lawyers will engage in forum-shopping in the effort to create 

such a conflict. Repetitiv e litigation, needless in an efficient system, is encouraged. 

Often the effort is successful so th at it takes a decade for an autho rita tive inter pre tation of a new revenue stat ut e to emerge.

We rely to day on the Supreme Court to resolve such inter-c ircu it conflicts when 

they do develop, but many of the issues seem to knowledgeable observers unworthy 

of the limited judicia l resources of the highest trib una l in the land. They concern, for example, a detail of deprec iation of a truck used in constructing a new 

building, or a technical problem in valuing mutual fund shares where all concerned agree that the choice between rules is relatively insignificant, but that 

choosing a rule, and giving definitive nation-wide effect to th at choice, is indeed 

very important.

One solution that ha s been advanced by distinguished advocates is the creation 

of a National Division of the Courts of Appeals which would have final autho rity 

in such areas, subject only to Supreme Court review. At its mid-winter meeting in 

Houston earlier this year, the American Ba r Association, acting through its 

House of Delegates, voted to recommend “the creation by Congress of a national 

division of the United States Court of Appeals” and authorized its President to 

present the position of the Association to the Commission.

Last month, the Commission held two days of hearin gs on the v arious proposals 

for the creation of a National Division of th e Court of Appeals. The roster of witnesses eloquently dem onstrates the importance attach ed by the bench and bar 

to the issues discussed. Former Supreme Court Justice Arthu r J. Goldberg tes tified, as did Judge Henry J. Friendly of the Second Circuit, Chief Judg e Clement F. 

Haynsworth, Jr., of the Fourt h Circu it, Judge Floyd Gibson of the Eighth Circuit, and Judg e Shirley Hufstedler of the Ninth Circuit. The witnesses also 

included distin guished professors, attorneys, a sta te supreme court justice, the 

preside nt of the American Bar Association, and the distinguished form er solicitor 

general, Dean Erwin N. Griswold.

In prepared statements an d in responses to questions, these w itnesses offered a 

wide variety of perceptions both as to the problem s of the Courts of Appeals and 

the des irability of proposed solutions. Nor was this difference of opinion surpr ising. The underlying problems are complex. Well-intentioned reforms may spawn 

new difficulties. What all of the witnesses shared, I think, is a sense that any 

changes must be preceded by careful stud y to determine the natur e and magnitude of the problems and the advanta ges and disadvantag es of the altern ative 

proposals a lrea dy offered or yet to be developed.
5

Admin istr ative A ppe als; Patent Litiga tion

Suggestions for sub stantial change in judicia l review of appeals from ad ­

ministrative agencies have the potential of significant impact. Whatev er decision 

the Commission may ultimately arr ive at concerning their merit, they certain ly 

deserve c areful, u nhu rrie d consideration. We a re working with the Adm inistrative 

Conference of the United States and, again, the timetable which currently obtain s is f ar too constricting.

Finally, in the are a of stru cture, I should mention paten t appeals. Modest 

proposals currently before the Commission give some promise of accepta bility 

to wide segments of bench and bar and may provide some relief from present 

problems, partic ula rly th at of forum shopping. Judge Henry J. Friendly has 

described the present situ ation as one of “mad and undignified races . . . between 

a paten tee who wishes to sue for infringement in one circuit .believed to be benign 

toward patents, and a use r who wants to obtain a declaration of invalidity or 

non-infringement in one believed to be hostile to them.” We may, p erha ps, be in a 

position to recommend beneficent change.

Inte rnal procedures of the courts of appeals

Rules governing the in ternal procedures of an appellate court a re though t to be 

dull and prosaic. One would hardly expect proposals for change to evoke the 

intense, almost impassioned opposition which has in fac t followed some recent 

dep artu res from the fa miliar. But the world of intern al procedures is not limited 

to technical deta ils. Inter nal procedures encompass such dep arture s from trad ition as the decision in the Fifth Circuit, for example, to refuse to hear oral arg ument, not in a few isolated instances, but in most of the cases which come before 

it. They encompass the practice, in a very sub stantial proportion of the cases 

decided, of giving no reason for a decision, of affirming summarily without any 

indic ation even of the issues considered and determined.

Such changes are not necessarily to be deplored, but neither should we assume 

that all innovatio n inevitably represe nts progress. If it is important in a democra tic society not only th at justice be done, but th at it appea r to be done, such 

dep arture s from the fam iliar must be studied carefully. The views of attorneys 

must be sought and ev alua ted; the savings and efficiencies gained must be 

measured a nd weighed a gains t the losses.

Reference has alread y been made to a number of factors which sup por t the 

Commission’s request for additional time in which to complete its assignment. 

An additional factor bears some emphasis. The Commission considers it highly 

desirable, perhaps essential, not to finalize its recommendations until a pre ­

liminary report has been widely circulated for comment and criticism. This was 

the procedure followed by the Commission prior to its report of December, 1973.

We circ ulated a preliminary report on realig nment, inviting reactions and 

suggestions from the bench, the bar and other inte rested citizens. Hundreds of 

responses were received and figured in the deliberations of the Commission as 

it prep ared the recom mendations which were later subm itted to the President, 

the Congress, and the Chief Justice. The number of respondents and the reasoned 

quality of th e comments were gratifying.

Understa ndab ly, the Commission would like to follow the same procedure with 

respect to its report on the second phase of its assignment, but with one importa nt difference. In circulatin g its preliminary report on realig nment, the Commission allowed very little time for response, a procedure nece ssitated by the 

sta tut ory deadline on the filing of the Commission’s report. Such stringency 

with respect to the second report could not help but be counter-productive. Compared to the subtleties and complexities involved in structur e and intern al procedures, realignment app ears relatively simple. New proposals with respect to 

specialized courts, devices for resolving inte r-circuit conflicts, and broad designs for national panels require though tful consideration. There is particular 

need to consider carefully the potential effects of any proposal for change. It is 

difficult enough to assess the significance of effects which are fores een; only the 

widest possible exposure of new ideas to the scrutiny of a concerned and knowledgeable public can minimize the risks of the unforeseen.

A preliminary circ ulation of proposals being considered by the Commission 

can do much to clarify the intent of the proponents, to refine and amend the

35-504 0 - 74 - 2
6

suggested solutions, to allow the unf amilia r to become fam ilia r—in short, to 

allow the recommendations to be tested, however preliminarily, in the crucible 

of public debate.

Tra nslated into specifics, it appears clea r th at if the Commission is to file 

its final report in September, 1974, a preliminary report should be circ ulated 

next month or, at the la test, early in July. A preliminary report can be fashioned 

only a fter due delibera tion which itself must follow analysis of the results of the 

research which the Commission has und erta ken and would like to undertake. 

There simply is not sufficient time to accomplish that much within the period 

available under th e Act as it now stands. It would a ppe ar fa r preferab le to t arg et 

a preliminary report for Janu ary or possibly early February, 1975, allowing the 

opportunity for furth er hearing s this fall and for a final report by Ju ne. 1975.

The Commission has also asked for an incre ase in its appropriation autho rization to $1,000,000. At our request, the staff of the Office of Management and 

Budget reviewed the proposed budget of the Commission and found it "rea sonable, and possibly conservative, given the scope of responsibilities of th e Commission.” The full tex t of the 0MB analy sis is appended to this statem ent a nd refer ­

ence will be made to it in connection with specific items.

Preliminarily, however, it may be app ropriate to comment on the cost to 

the Commission of the first phase of its work, th at dealing with circ uit reali piment. There may have been those who thought of th at task as one involving 

no more tha n the redrawing of a relatively few lines on a map, a task accomplished both simply and cheaply. The Commission, however, found it necessary 

to hold hearings in ten citie s throughout the country. These proved exceedingly 

valuable. In one case, the hearings made clear that division of a circ uit was 

not necessary at the present time and, as a result, the Commission made no 

recommendation for change. Other hearing s amply demonstrated the need 

for revision and illumin ated the factors to be taken into account in determ ining the specifics for change.

Reference has already been made to the preliminary report. Thousands of 

copies were distrib uted ; hundreds of comments were received. This procedure and the hearings made dem ands on our modest budget, although in the view 

of the members of the Commission the expe nditures were clearly justified.

The proposed budget includ es funding for a preliminary repo rt in the second 

phase, and for an adequate number of hearings and Commission meetings, 

so essential for adequate assessment of proposals received and for the care ful 

development and m atu ration of new ideas.

A sub stantial sum, almo st $309,000, has been proposed for compensation of 

staff for the full life of the Commission—27 months. This figure has been 

characterized by the 0MB report as “reasonable, if not conservative” and the 

report goes on to suggest the desirability of providing for one or two additional staff positions for professional rese arch ers o r writers.

The second major item is for experts and consultan ts. It totals slightly over 

$240,000 and, with the alloc ation for staff, accounts for over half of the total 

proposed budget. Again, the 0MB analysis c haracteriz es the proposal as “reasonable but conservative.”

The 0MB analysis does suggest one area for possible sav ing s: a reduction in 

the number of Commission meetings and the combining of hearings and meetings to reduce travel costs. We have alread y begun to implement the la tter proposal. Moreover, we will continue, as in the past, to effectuate every possible 

economy, consistent with the faithf ul discharges of our m andate. It is not clear, 

however, how much net saving will be effected by combining meetings and he arings, partic ula rly where hearing s are not held in Washington. Wha teve r savings 

do resu lt may serve to compensate for still other are as where we have, in the 

view of 0MB, entered low estimates .

Some reduction in th e number of meetings may be possible. Precisely how many 

will be required will depend in larg e measure on the diversity and complexity 

of the recommendations for change which are developed and on the extent of 

agreement a nd disagreem ent concerning them on the pa rt bf the members of t he 

Commission. Certainly, the Commissioners have been most conscientious and 

hard-working and have shown every desire to accord the work of the Commission whatever tim e and energ y is required.
7

The Congress, in establishing the Commission on Revision of the Fed eral 

Court Appellate System, has evidenced its awareness of the need to deal though tfully and imaginative ly with the problems t ha t face the F ede ral appella te courts. 

It is our hope that the opportunity which the Congress has created will not be 

fru str ated for lack of either the time or the money necessary for the proper 

completion of the Commission’s work.

Appe nd ix es

(A) Proposed budget for full life of the Commission on Revision of the Fed ­

eral Court Appellate System (27 months).

(B) Sta tus of the app ropriation for the Commission on Revision of the Federal Court Appellate System of the United States as of March 31, 1974 (expenditures and commitm ents).

(C) Analysis of proposed budget: Letter from Walter D. Scott, Associate 

Director for Economics and Government, Office of Management and Budget, dated 

April 5, 1974.
8

Calendar No. 7 1 6

03 d Congress ) SEN ATE f Report

2d Session J 1 No. 93-742

CO M M IS SI ON ON R E V IS IO N OF T H E FE D E R A L 

A PPE L L A T E SY ST EM

March 22,1974.—O rde red to be p rinted

Mr. H ruska, f rom the Com mittee on the J ud icia ry , 

subm itted th e follow ing

R E P O R T

[To acco mpany S. 3052]

Th e Com mittee on the Ju di ci ar y, to whi ch was referre d th e bill, 

S. 3052, p roviding fo r an ext ension o f the te rm of the Com mission on 

Rev ision of the Fe de ral Cou rt Ap pe lla te Sys tem , an d fo r othe r purposes, havin g con side red the same, repo rts favo rably the reo n wi tho ut 

am endm ent and recomm ends th at the bill pass.

P urpose

Th e pur pose of the bill is to extend the final date fo r the re po rt of 

th e C ommission on Rev ision of th e Fe de ral C ou rt A pp ellat e System by 

nin e mo nths and to increase its ap pr op riation au thorization fro m 

$270,000 to $1,000,000.

B ackground

Th e Commission on Rev isio n of the Fe de ral Cou rt Ap pe lla te Sy stem , was established bv Pu blic Law 92-489 an d assign ed two major 

objectives, each w ith i ts own t imetable.

In Ph ase I. the Commission was to stu dy the geograp hic al bo undari es of the several jud icial circuits and make reco mm end atio ns for 

cha nge . Th is phase of the work was to be com pleted wi thin 180 day s. 

Th e rep ort on cir cu it rea lig nm ent was filed in tim ely fashio n on De ­

cem ber 18.1973.

In Ph ase I I, th e Commission is to study “ . . . th e stru ctur e and in te rnal procedures of the Fe de ral c ourts of appeal system . . . ” an d p repa re 

recommenda tion s for cha nge in those bro ad are as .as well. Un de r the 

ter ms of the governing stat ute th is second ass ign me nt is to be comple ted and a repo rt filed no late r th an Septe mb er 21, 1974. Th e pr oposed leg islation, S. 3052, wou ld e xte nd th is final filing date to Jun e 21, 

1975.

9 9 -0 1 0
9

Th e Comm ission is com posed of fou r m embers fro m the Senat e, Se nato rs Roman L. Hru sk a (C ha irm an ), Q uenti n N. Bu rdick , Edw ard J. 

Gurne y, a nd Jo hn L. McC lel lan ; four members fro m the House of R ep ­

resentativ es, Congressman Ja ck Brooks, W alter Flo we rs, (vice W illiam L. H ungat e) , E dw ard Hu tch ins on , and Charle s E . W iggins ; fo ur 

mem bers ap po int ed by the Pr esiden t, Ho norab le Em anuel Celler , 

Ro ger C. Cram ton , Fr an cis R. Kirk ha m, and Ju dg e Alfre d T. Sulmon etti; and four mem bers ap po int ed bv the Ch ief Ju sti ce , Ju dg e J. 

Ed ward Lu mba rd, Ju dg e Roger Kobb, Be rnard G. Seg al an d Pro fe ssor Herl>ert We chsler (Vice Professor Ch arl es A lan W right).

Th e rat iona le fo r the ext ension of tim e an d increase in the level of 

expenditu re sought by the proposed leg islation is best understood in 

lig ht of the problems cu rre ntly bese tting the Co urts of A ppeals a nd the 

experience gain ed by t he Comm ission d ur ing its fir st pha se of acti vit y. 

Pro blems Faced b y the C our ts of A pp ea ls

Con gress established the C omm ission in response to a lon g-f elt need. 

Num erou s jud ges an d co urt observers hav e addressed them selv es in 

the pa st decade to the crisis w hich has been co nfronting the Co urts of 

Appea ls. Ma ny comm entators have voiced the concern th at an everinc rea sin g load of cases, if unabate d, will lead to a “breakdown ’’ of 

these courts as we n ow know them .

The s tatis tic s o f t he workload of th e C ou rts of Appeals ind ica te t h at 

du ring th e period begin ning at the turn of the la st decade, t hese courts 

have expe rien ced an increase in caseloads unpre ced ented in m agnitude. 

In fiscal ye ar 1960, a total of 3,899 appeals were filed in all eleven ci rcu its ; wi th 69 autho riz ed jud geships , th e ave rage was 57 pe r jud geship. In 1973 the filin gs had soa red to 15,629; wi th 97 authorized 

jud geships , th e a verag e per ju dg eship was 161, alm ost 161. almost th ree 

times the figu re fo r 1960. T he filin gs them selv es increased 301 perce nt 

du rin g the same p eriod, com par ed wi th an increase o f only 58 perc ent 

in district c ourt cases.

Th e floo dtid e of appellate filings has given rise to chang es in in te rnal procedures. Th e privi leg e to arg ue o rally h as been dr astic ally c ur ­

tailed . I n one ci rcu it, oral argum en t is denied in a major ity of the cases 

which come before it. Tra ditio na l pa tte rn s of opinion writing have 

also cha nged radica lly , with the briefe st no tat ion of the act ion of t he 

court m ade to suffice in lar ge nu mb ers of cases. Ma ny of th ese ch ang es 

may be des irable, wo rth y of em ula tion in th ei r prese nt form. Some 

may c ontai n the germ of good ideas whi ch need refinement if they a re 

to be retain ed. Ot he rs may be no more th an response s of the moment, designed to avoid int ole rab le backlog s, but ge ne ratin g concern 

in th ei r im ple me nta tion. W ith ou t passi ng jud gm ent on any of the m, 

suffice i t to say th at the y pre sen t que stio ns whi ch merit caref ul studyThey hav e commanded t he attention of the legal commu nity which ha s 

focused its in ter est on th e Com mission and i ts a ssig nment.

The Experi ence o f the Co mm ission

In th e course of its first phase of exis tenc e, the Com mission has 

devoted substan tia l tim e to the pro blems wi th which it mu st come to 

gr ips in its second phase. Th is was ine vitable, fo r the two assig nments are in fa ct par ts of a larg er who le: a thorou gh review of the
10

ope rations of the intermediate federal appellate courts. This inte rrelationship was appa rent from the opening of the first hearings held 

by the Commission. Changes in a structure were urged as an a lternative to the creation of new circuits; changes in internal procedures 

already effected by courts unundated with appellate filings, were 

sharply attacked and vigorously defended, all in the context of circuit realignment.

The net effect of the process has been to make the Commission 

keenly aware of the complexities of the issues with which it will be 

obliged to grapple in phase two; of the diversity of points of view 

among judges, scholars and practicing lawyers; and of the multiplicity 

of alternatives already developed and remaining to be developed in 

order to assure the continued vitality of the intermediate appellate 

courts. I n short, the very substantial commitment of time and thought 

to problems of structure and procedure during the first six months 

served to demonstrate the need for adequate time to probe deeply, 

to explore carefully and thereafter to develop fully any recommendations which the Commission may choose to make before it can 

consider its task completed and its obligations discharged.

The experience of the first six months also yielded two important 

lessons concerning procedures.

First, the Commission circulated a preliminary report on realignment, inviting comment, criticism and suggestions from the bench, the 

bar and other interested citizens. Hundreds of responses were received 

and these figured in the deliberations of the Commission as it prepared 

the recommendations which were later submitted to the President, the 

Congress and the Chief Justice. The number of responses and the reasoned quality of the comments were g ratifying . Understandably, the 

Commission would like to follow the same procedure with respect to 

its report on the second phase of its assignment, but with one important difference. In circulating its preliminary report on realignment, the Commission allowed very little time for response, a procedure necessitated by the Congressionally-imposed deadline on the 

filing of the Commission’s report. Such stringency with respect to the 

second report could not help but be counterproductive. Compared to 

the subtleties and complexities invovled in structure and internal 

procedures, realignment appears relatively simple.

New proposals with respect to specialized courts, devices for resolving inter-circuit conflicts, national panels mechanisms for assuring the 

finality of criminal convictions, both state and federal—all of these 

require thoughtful consideration.

Moreover, there is a particu lar need to consider carefully the potential effects of any proposal for change. This is difficult enough with 

respect to effects which are foreseen; only the widest possible exposure 

of new ideas to the scrutiny of a concerned and knowledgeable public 

can minimize the risks of the unforeseen. A preliminary circulation of 

proposals being considered by the Commission can do much to clarify 

the intent of the proponents, to refine and amend the suggested solutions, to allow the unfamiliar to become familiar—in short, to allow 

the recommendations to be tested, however preliminarily, in the crucible of public debate.
11

The second of the procedural lessons learned during the Commission’s first six months arose from its experience with public hearings. 

The wisdom of on-site public hearings was clearly demonstrated.

The Commission held hearings on realignm ent in 10 cities from the 

far northwest to the deep south. Literally scores of witnesses appeared. 

The transcripts of their testimony are proving valuable for a better 

understand ing of the courts and the judicial process. Additional he arings appear highly desirable, if not essential, but these must be scheduled with ample time for witnesses to prepare adequately and to 

focus sharply on the particular concerns of the Commission. In one 

sense, the hearings during the first phase served to focus on the problems facing the courts of appeals, the coming hearings must focus on 

solutions, on their relative merits and drawbacks. Once again, adequate time is essential for optimal results.

The Agenda F or P hase II

In Phase II , the Commission will address the existing and proposed 

procedures relating to the structure and procedures of the Court of 

Appeals. In drawing up its agenda for this final phase, the Commission has identified a number of specific problem areas which should 

be studied and for which solutions must be found. Briefly, included 

are such subjects a s: a more efficient mechanism fo r avoiding conflicting decisions between circuits; assuring the finality of criminal convictions; widespread denial of oral argument (in one circuit oral 

argument is denied in almost 60 percent of the cases); widespread 

decision of cases without opinions; substituting “leave to appeal” for 

the righ t to appeal; jurisdiction of patent appeals, and optimum size 

of Courts of Appeals.

There has been increasing concern about the need to create some 

new instrumentality which would maintain the national law in the 

face of conflicting holdings by different courts of appeals. It is a 

familiar phenomenon of present practice that differences in inte rpretation of the revenue law’s can continued unresolved for years, with 

the United States Supreme Court too busy w ith more urgent matters 

to turn its attention to these inter-circuit conflicts.

A distinguished former Solicitor General, among others, has suggested the creation of a National Panel of the Courts of Appeals which 

would have final authority, subject only to Supreme Court review, in 

areas such as interpretation of tax statutes. The American Bar Association, at its past midwinter meeting, adopted a resolution recommending creation of “a national division of the United States Court 

of Appeals” for the purpose of alleviating a number of these problems and authorized its President to present testimony to the Commission on Revision of the Federal Court Appellate System in support 

of this position.

Conflicts between circuits are not limited to tax cases and creation 

of a National Panel is certainly not the sole proffered solution. The 

persevering question to which the Commission must address itself i s: 

What should be done so tha t the law of the United States may be the
12

same for citizens in Maryland and Michigan, in North Carolina and 

North Dakota.

Few are as are in gr ea ter ferm en t th at the ad minist ratio n of the 

crim ina l law. Th ere is widesprea d concern with assurin g the finality 

of crim inal convictions an d red ucing the numb er of co lla ter al attacks 

which ad d su bstan tia lly to the burdens of t he fed era l cou rts. W riting 

in the December 1973 issue of the Har va rd La w Re view , Professor 

Da vid L. Sh ap iro reviews the releva nt d ata— 560 h abeas c orp us pe titio ns by sta te priso ners in 1950, m ore th an 9,000 i n 1970 a nd a fa irly 

steady 8,000 a y ear since th en—a nd observes t hat t he in crease has been 

vario usly described as a “flood,” a “ti da l wav e,” an d an “avalan che.”

Ch ief Ju dg e Clem ent F. Hay ns wor th, Jr ., of th e Fourt h Ci rcuit 

has writte n several sem inal pa pe rs, sh arply cri tic izing the present 

sit ua tio n as inadequate fro m th e perspective o f th e priso ners and ap ­

proa ch ing the int ole rab le fro m the pro spe ctive of the cou rts. Th e implica tio ns of im po rta nt pro posal s in th is field are far-reac hing fo r 

they would involve d ire ct review o f state a dju dicatio ns by a court oth er 

th an the Su pre me Co urt .

Pr ison er pe titi ons which do not seek to a tta ck a judgme nt of conviction, bu t relate ra th er to the con dition s of impri sonm ent, have also 

increased in volum e in recent yea rs. These hav e become a significant 

po rti on of fed era l judicia l business, com ma nding the concern of the 

Ch ief Ju sti ce among others. Suggest ion s for a spe cialize d c ou rt d ealing 

with all aspects of the c rim ina l law, i ncludin g con dition s o f d etention, 

emerge and raise bro ad policy questions. Th e appeal of specialized 

courts in othe r areas, such as pa tents and taxa tio n, is equ ally un de rsta ndable, bu t cogent argu men ts in opposition hav e no t been lacking. 

These are amo ng the prob lem s which the Comm ission mu st c ons ider in 

pha se two.

Prop os als fo r red ucing th e nu mber o f cases rea ching th e fed era l ap ­

pe lla te courts have an attr ac tiv e q ua lity, bu t th ey, too, req uir e th e m ost 

ca refu l stu dy so as to assure th at the fun ction of the cou rts, ass uring 

justice to litigan ts, is ne ith er ab ort ed nor im paired. Increasin g the rate 

of settleme nts at the ap pe lla te level is one sug gestion. Denying the 

right to appeal an d su bs tit ut in g appeal by leave of court , at least in 

some classes of cases, has been sug gested by the C hief J us tic e as worthy 

of stu dy. Siph on ing off a lar ge volume of appeals fro m the ord ers o f 

ad minist rativ e agencies by c reating new, quasi-jud icial bodies—f or exam ple in lab or cases—is yet an othe r possibility. The se are matters 

which the Commission cannot ign ore and yet rem ain fa ithf ul to its 

oblig ati on to the Con gress an d to the jud icial system.

Rules governi ng the intern al proced ure s of an ap pe lla te court are 

th ou gh t to be dull and pr os ai c; one would ha rd ly ex pect pro posals for 

chang e to evoke the inte nse, a lmost impassioned o ppositio n which has 

in fa ct followe d some recent de pa rtu res fro m the familiar. Bu t the 

wo rld of internal pro ced ures is not lim ited to the technical detai ls of 

mo vin g a tr ia l record from one c ourt to an oth er, to the fix ing of responsib ility fo r the tim ely pr ep ar atio n of the tran sc ript below, im po rta nt 

as thes e may be. In te rn al pro ced ure s encompass such de pa rtu res from 

trad itio n as a co urt’s decision to refuse to hear o ral a rgum en t, not in a
13

few isolated instances, but in most of the cases which come before it. 

They encompass the practice, in a substantial proportion of the cases 

decided, of giving no reason for a decision, of affirming summarily 

without any indication even of the issues considered and determined. 

As suggested earlier, such changes are not necessarily to be deplored, 

but neither should we assume that all innovation inevitably represents 

progress. If it is important in a democratic society not only that justice be done, but tha t it appears to be done, such departures from the 

familiar must be studied carefully. The views of attorneys must be 

sought and evaluated; the savings and efficiencies gained must be 

measured carefully and weighed against the losses, if any.

The use of central staff by appellate courts, similar to procedures 

which have proved successful in England, has been urged for the federal system. A t first blush, the argument may be persuasive, but the 

proposal has evoked concern among those who see the risk of delegation of judicial responsibilities to non-judicial personnel. The fears 

may be ill-founded, but again there is the need to assess and evaluate.

The internal procedures appropriate for a court of three active 

judges, the size of the First Circuit, can hardly be expected to serve 

the Fifth which, with 15 active judgeships, is the largest in the country. Judges themselves have been among the first to recognize that 

there is a limit to the number of judgeships which a court can accommodate and still function effectively and efficiently. In 1971 the J ud icial Conference of the United States endorsed the conclusion of its 

Committee on Court Administration that a court of more than 15 

would be “unworkable’’. A t the same time, the Conference took note 

of and quoted from a resolution of the judges of the Fifth Circu it 

that to increase the number of judges on that court “would diminish 

the quality of justice” and the effectiveness of the court as an institution.

This is not to suggest tha t a court of 15 is satisfactory. The Commission has heard testimony to the effect tha t 9 is the maximum number 

of judges who can work effectively and efficiently together as a single 

court. These are matters which must command the attention of the 

Commission, for if the business of the appellate courts continues to 

increase apace, the solution cannot be found in dividing and subdividing circuits without limit. A proliferation of circuits to twenty-five or 

thirty would create problems of its own, forcing burdens on the United 

States Supreme Court which that court would be ill-equipped to 

handle.

The need for careful study and evaluation is a recurrent theme 

in the Commission’s consideration of an agenda for the second phase 

of its work. Each problem which is identified and each proposal for 

change is accompanied by the call for research to aid in assessing the 

situation as it exists and as i t might exist. Certainly such research is 

of the essence of the Commission’s task; the Congress was explicit 

in asking for study as a preliminary to recommendations. Nor could 

the procedure have been otherwise, whatever the statutory language. 

It is appropriate, however, to note that much of the research must, 

by the very nature of the problems facing the courts of appeals, be

3 5 -5 0 4 0 - 74 - 3
14

carefully designed and painstakingly executed. Some of the work 

can be done, and is being done, by tne staff of the Commission. Other 

assignments call for the aid of outside consultants, experts in their 

respective fields who have indicated their willingness to be of service 

to the Commission.

The Federal Judicial Center has been most cooperative in providing research support for the Commission, particularly in the 

planning of what needs to be done. The Commission has drawn freely 

on the expertise of the Center, but that expertise has served in large 

measure to underscore the need for adequate time in which to develop 

research proposals, to implement them, and to allow for thoughtful 

analysis and evaluation of the data produced. All of this is preliminary 

to the consideration of the results by the Commission, for in the final 

analysis research can do little more than refine the policy choices 

which must, in the first instance, be made by the Commission and 

thereaf ter by those to whom the Commission’s recommendations must 

be submitted, primarily the Congress.

It would be wrong, however, for the Commission to be obliged 

to act in haste, without the benefit of whatever study is in fact approp riate and feasible. Relatively little additional time—less than 

a year—can do much to assure the development of valuable material 

which can aid in meeting the problems of the federal judicial system. 

B udg et P ropo sal

Increasing the sum authorized to be appropriated for the work of the 

Commission is, of course, but a preliminary step which in itself provides the Commission with no funds. To be effective, it must be followed by an appropriation. A detailed statement of the precise 

amounts requested, by category of expenditure, would be provided 

in the usual manner in connection with a specific proposal for a 

supplemental appropriation. A preliminary proposed two-year budget 

has been prepared by the Commission and will be submitted at the 

appropriate time subject, of course, to possible modification. (See 

Appendix, infra.)

It might be appropria te at this point to give some indication of 

the broad categories for which additional funds would be utilized.

There is need to supplement the present staff of the Commission, 

which in addition to the Executive Director and his Deputy, includes 

only one junior staff attorney full time.

Mention has already been made of the hearings of the Commission 

during the first phase. Significant interest has been shown in the publication of the transcripts of these hearings because of the valuable 

material which they contain. F utu re hearings will require substantial 

expenditures. The enabling legislation provides for services both by 

the Administrative Office in the United States Courts and the Federal 

Judicial Center on a reimbursable basis. Substantial additional funds 

are needed for this purpose.

Fina lly, the opportunity for major and significant research relevant 

to the present operation o f the Courts of Appeals, and necessary for 

the evaluation of proposals for change, should not be lost for lack of
15

funding. A high proportion of any supplemental appropriation is 

likely to be allocated to this area.

The total requested, $1,000,000, would cover the full two-year life of 

the Commission and is entirely consistent with the level o f authorization for similar undertakings.

Conclusion

For the foregoing reasons, the Committee on the Judicia ry recommends prompt enactment of the subject bill.

Changes in E xisting Law

In compliance with Rule X X IX of the Senate, changes in existing 

law made by the bill are shown as follows (existing law proposed 

to be omitted is enclosed in black brackets, new m atter is printed in 

italic, existing law in which no change is proposed is shown in roman) :

P ublic Law 489, 92d Congress

2d Session

(Act of October 13, 1972 

86 Stat. 807)

AN ACT To create a Commission on Revision of the Federal Court Appellate 

System of the United States

* * * * * * *

Sec. 6. The Commission shall transmit to the President, the Congress, and the Chief Justice—

(1) its repo rt under section 1(a) of this Act within one hundred 

and eighty days of the date on which its ninth member is appo inted; 

and

(2) its rep ort under section 1 (b) of this Act within [fifte en month s] 

twenty-four months of the date on which its ninth member is appointed.

The Commission shall cease to exist ninety days afte r the date of 

the submission of its second report.

Sec. 7. There are hereby authorized to be appropriated to the Commission such sums, but [n ot more than $270,000] not more than

$1,000,000, as may be necessary to carry out the purposes of this Act. 

Authority is hereby granted for appropriated money to remain available until expended.

* * * * * * *
16

Appendix

Pro posed bu dget— 2 year s, 1973-75

Personnel Com pensation :

Com missioners:

Through December 1973_________________________________ $5, 400

Hearings (15x 4)_________________________________ _______ 6,000

Meetings (15x 8)________________________________________ 12,000

Additional time_________________________________________ 4, 000

T o ta l_______________________________________________ 27,400

Staff:

Through December 1973_________________________________ 43, 400

Exec utive Directo r ($36,000), Deputy Executiv e Director

($24,000), 2 staff attorn eys ($42,000)___________________ 153,000

Administrative sec reta ry ($11,700), 2 secretaries ($16,100), Additional part-tim e staff ($3,300)________________________ 46,500

(Vacancies plus cost-of-living increases viewed as cancelling 

out) ________________________________________________ 24,000

Total _____________________________________________ 266, 900

Experts and Consultan ts:

Through December 1973_________________________________ 6, 300

General ass istants (including Sheeh an) ____________________ 15,000

Pro jects—high prior ity __________________________________ 130, 000

Additional projects---------------------------------------,____________ 45, 000

Total _______________________________________________ 196,300

Personnel Benefits: (G overnment’s contributions for retirem ent, life 

insurance, hea lth insurance, and FICA ta xe s) ________________ 24,100

Tra ve l:

Through December 1973__________________________________ 11, 100

Meetings (15x1,600)_____________________________________ 24,000

Hearin gs (15x1,600)_____________________________________ 24,000

Staff (conferences with consultants)______________________ 4,000

Committee meetings_____________________________________ 6, 000

Total _______________________________________________ 69,100

Rent and Com munications:

Telephone, through December 1973__________________________ 4,900

Postage, through December 1973____________________________ 6,100

Copying equipment, through December 1973___________________ 6, 700

Total __________________________________________________ 17, 700
17

Appendix—Continued 

Proposed ~budget—2 yea rs, 1978-75

Print ing and Re pro duction:

Through December 1973 (tra ns cr ip ts)________________________ 4,800

Tr anscrip ts _______________________________________________ 6,600

Print ing tra ns cripts________________________________________ 105, 000

Printin g rep orts________________________________ ____________ 4, 000

Printin g of studies_________________________________________ 22,000

Total __________________________________________________ 142,400

Oth er Services :

AO & F JC R eimburseable Serv ice s:

Through December 1973_________________________________ 5,900

AO ----------------------------------------------------------------------------- 18,000

FJC _________________________________________________ 45, 000

Additional support services___________________________________ 41,000

Total _________________________________________________ 109, 900

Supplies and M aterials:

Through December 1973____________________________________ 500

Stationery, et ceter a_______________________________________ 3,000

Total __________________________________________________ 3, 500

Eq uip me nt:

Through December 1973____________________________________ 4, 500

Total __________________________________________________ 861,800

Less appro priation------------------------------------------------------------—235, 000

Grand to ta l------------------------------------------------------------------------- 626, SIX)

Prop osed budget fo r f ull life o f the Comm ission on Re vis ion of the F ede ral Cour t

Ap pella te Sy stem (27 mon ths)

Personnel com pensation:

Commissioners:

Through December 19731________________________________ $5, 400

He arings (20 X 7 )________________________________________ 14,000

Meetin gs (21 X 7 )________________________________________ 14,700

Commission time_______________________________________ 4, 000

Total _______________________________________________ 38, 100

Sta ff:

Through December 1973__________________________________ 43, 400

Executive Director______________________________________ 62, 000

Deputy Executive Dire ctor ($24,500)___ __________' ________ 42,875

Staff attorney after July 1, 1974 ($20,000)_______________ 25, 000

Staff atto rney until July 1, 1974 (12 ,500)________________ 6, 250 Staff atto rney after July 1, 1974 ($16,000)_____________ 20,000

Administrative secreta ry ($12.573)________________________ 22,000

2 se cretaries ($16,500)___________________________________ 28,875

Additional part-tim e staff________________________________ 58, 307

To tal __________________________________________________ 308, 707

1

 These entr ies repr esen t actual expenditures as reported to the Commission by AO.
18

Personnel Compensation—Continued 

Staff—Continued

(Vacancy rate and cost of living plus merit increases viewed as 

canceling each other o ut.)

Exp erts and c on sulta nts:

Through December 1973_____________________________ 6, 300

General assistance (including Sheehan)_______________ 18,750

Projects—high priority_______________________________ 162, 5<X)

Additional projects__________________________________ 56, 250

Tota l _______________________________________________ 243,800

Personnel benefits______________________________________ 30, 125

Tra ve l:

Through December 1973_____________________________________ 11, 1(H)

Meeting (21 X 1,600)_______________________________________ 33, 600

Hea ring s (20 X 1,600)_______________________________________ 32, 000

Staff (conferences with consultants)__________________________ 5,000

Committee meetings________________________________________ 7, 500

Total ___________________________________________________ 89,200

Ren t and com mun ications:

Telephone, through December 1973____________________________ $4, 900

Postage through December 1973_______________________________ 6,100

Copying equipment, through December 1973____________________ 8, 000

T o ta l___________________________________________________ 19,000

Print ing and rep rod uction :

Through December 1973 (tran sc ript s)_________________________ 4, 800

Tra nsc ripts _______________________________________________ 10,000

Print ing re port s___________________________________________ 24, 000

Pri nti ng of studies_________________________________________ 22, 000

T o ta l___________________________________________________ 60, 800

Other s erv ices:

AO and FJ C reimbursable services thro ugh December 1973________ 5, 900

A O ______________________________________________________ 24,000

F J C _____________________________________________________ 67,000

T o ta l___________________________________________________ 96,000

Supplies and m ater ials:

Through December 1973______________________________________ 500

Stationery, et cetera________________________________________ 6, 000

6,500

Eq uip ment: Through December 1973______________________________ 5, 500

Grand to ta l_____________________________________________ 997, 732

Less ap prop ria tio n_______________________________________ 255, 000

Total re ques te d_______________________________________ 742, 732
1 9

S T A T U S O F T H E A P P R O P RI A TI O N F O R T H E C O M M I S SI O N O N R E VI SI O N O F T H E F E D E R A L C O U R T A P P E L L A T E S Y S T E M

O F T H E U N I T E D S T A T E S A S O F M A R. 3 1, 1 9 7 4

A m o u nt

a v ail a bl e P ai d U n p ai d

U n o bli g at e d

u n r e s er v e d

T ot al R e s er v e b al a n c e

P er s o n n el c o m p e n s ati o n:

C o m mi s si o n er s..............................

St a ff................................ ........................

E x p e rt s a n d c o n s ult a n t s _ _ _ _ _ _ _ _ _

$ 2 0, 0 0 0

1 3 7, 0 0 0

8, 0 0 0

$ 8 , 5 5 0 . . .

6 8 , 3 0 2 . . .

2, 4 9 3 . . .

.................. $ 8 , 5 5 0 ..

6 8 , 3 0 2

.................. 2, 4 9 3 ..

$ 8 4, 8 1 0

$ 1 1, 4 5 0

- 1 6 , 1 1 2

5, 5 0 7

T ot al................................................... 1 6 5, 0 0 0 $ 7 9, 3 4 5 . . . 7 9, 3 4 5 8 4, 8 1 0 8 4 5

P er s o n n el b e n efit s _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 1 4, 0 0 0 5, 9 6 9 . . . 5, 9 6 9 6, 7 4 9 1, 2 8 2

Tr a n s p ort a ti o n of t hi n g s.............................. 3 3 5 $ 7 5 4 1 0 .. - 4 1 0

3 6 , 0 0 0 1 3, 6 3 3 2, 4 6 0 1 6, 0 9 3 . 1 9, 9 0 7

R e nt, c o m m u ni c ati o n s, a n d utili ti e s:

T el e p h o n e _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 3, 6 0 0 1, 0 1 6 * 8 5 1, 1 0 1 >’ 7 6 5 1, 7 3 4

P o st a g e _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 1, 0 0 0 8 7 2 8 7 2 . 1 2 8

R e nt al of c o p y e q ui p m e n t _ _ _ _ _ _ _ _ 2, 4 0 0 1, 4 0 6 > 1 7 5 1, 5 8 1 ' » 1, 7 8 2 - 9 6 3

Pri nti n g a n d r e pr o d u c ti o n........................ 1 2, 0 0 0 6, 8 5 4 1 3 3 6, 9 8 7 . 5, 0 1 3

Ot h er s e r vi c e s _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 1 8, 0 0 0 6, 3 5 0 2, 2 1 5 8, 5 6 5 2, 1 2 5 7, 3 1 0

S u p pli e s a n d m a t eri al s.............................. 1, 0 0 0 2 5 4 5 1 8 7 7 2 . 2 2 8

E q ui p m e n t.................................................... 2, 0 0 0 1, 9 0 2 6 6 1, 9 6 8 . 3 2

T ot al _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 2 5 5, 0 0 0 1 1 7, 0 6 4 6, 5 9 9 1 2 3, 6 6 3 9 6, 2 3 1 3 5 , 1 0 6

 E sti m at e.

 R e s er v e e st a bli s h e d f o r t el e p h o n e s er vi c e t hr o u g h t h e lif e of t h e c o m mi s si o n.

’ R e s er v e e st a bli s h e d f or r e nt al of X er o x c o pi e r t hr o u g h t h e lif e of t h e c o m mi s si o n.

x e c u ti v e Of fi c e o f t h e Pr e si d e n t

f fi c e o f Ma n a g e m e n t a n d Bu d g e t

W as hi n gt o n, D. C., A pril 1 5, 1 97 4

Dr. A. e o Le vi n

Exec u tive Direct or, C o m missi on o n Revisi o n of t he Fe der al C o urt A p pell ate

Syste m, W as hi n gt o n, D. C.

e a r D . Le vi n : At y o u r re q u est O M B staff has re vie w e d t he pr o p ose d 

b u d g et f or t he C o m missi o n o n Re visi o n of t he Fe d eral C o urt A p pellate S yste m. Beca use t he C o m missi o n is u n d er t he j uris dicti o n of t he J u dici al Bra n c h, 

we are o nl y offeri n g o ur o bse r vati o ns f or y o ur use as y o u dee m a p p r o priat e. 

We ha v e a p plie d t he sa me ge neral crite ria t o t h e C o m missi o n t h at we w o ul d 

t o ot h er te m p orar y st u d y c o m missi o ns of a si milar nat ure. T he pr o p osal, i n o ur 

j u d g me nt, is reas o n a ble, a n d p ossi bl y c o nser vati ve, gi ve n t he sc o pe of res p o nsi bilitie s of t he C o m missi o n.

T he pr o p ose d b u d g et y o u ha v e o utli n e d re pres e nt s a 2 7- m o nt h o perati n g pr ogra m t o car r y y o u t hr o u g h Se pte m ber 1 97 5, c o nti n g e nt u p o n e xte n si o n of y o ur 

a ut h orizati o n. We u n d ersta n d t he Se nat e has acte d fa v o ra bl y o n a pr o p ose d 

e xte n si o n t o per mit y o u a d diti o nal ti me t o d o a m ore c o m pre he nsi ve j o b d uri n g 

t he sec o n d p hase of t h e C o m missi o n’s life. T he e xte nsi o n w o ul d als o i ncr ease t he 

a p p r o priati o n a ut h o riz ati o n fr o m $ 2 70, 0 00 t o $ 1, 00 0, 00 0. Y o ur t ot al pr o p ose d 

b u d get of $ 9 97, 7 32 w o ul d p ut y o u wit hi n t hi s $ 1, 0 00, 0 00 a ut h orizati o n le vel.

Y o ur pr o p ose d staf f c o m ple me nt of se ve n p ositi o ns is reas o na ble, if n ot c o nser v ati ve, f or t he w or k t o be d o ne i n P has e II. Y o u mi g ht wa nt t o c o nsi der, 

h o we ver, t he a d diti o n of o ne or t w o pr of essi o nal rese arc hers or write rs w h o 

c o ul d be usef ul i n gat he ri n g i nf or mati o n, de vel o pi n g a nal yses a n d dr afti n g 

t h e fi nal re p ort of t he C o m missi o n. W hile m ost of t he C o m missi o n’s w or k fr o m 

t hi s p oi nt o n is ver y le gal a n d tec h nical i n nat ur e, s o me of it will i n v ol ve 

pr oc e d ur al or ma na g erial q uesti o ns w her e t he vie ws of a pers o n wit h ma na geme nt a n d or g a niz ati o n e x p erti se mi g ht be be neficial t o t he C o m missi o n. A c o ns ulta nt c o ul d ser ve t hi s p ur p os e, alt h o u g h a staf f me m ber w o ul d ha ve a m ore 

i n v ol ve d r ole i n y o ur w or k.

Y o ur pr o p ose d e x p e n dit ur e of $ 2 43, 8 00 f or c o n s ulta nts a n d e x p erts als o a ppea rs reas o na ble b ut c o nser vati v e. W here it is neces sar y t o gat he r a lar ge 

a m o u nt of i nf o r mati o n a n d distill it f o r use b y a staff or c o m missi o n, it is ofte n 

desi ra ble t o c o ntract si g nifica nt p arts of t he w or k. B ut w hile c o ns ulta nts c a n d o 

m uc h of t hi s w or k o n t h eir o w n, car ef ul s u per visi o n of t h eir acti vities is req uir e d t o a ss u re t h at w hat y o u wa nt t he m t o d o i s w hat t he y are a ct u all y d oi n g. 

T his, i n t ur n, will i n v ol ve y o u r staff’s ti me. Y o u w o ul d fi n d it usef ul, we t hi n k, 

t o care f ull y o utli ne t he pr o p ose d w or k f or c o n s ulta nts bef or e t he y st art, t o 

esta blis h g ui deli nes f or t he m, a n d t he n t o m o nit or t h eir acti vities w hile t he y 

are c o n d ucti n g t h eir w or k.
20

Your budget proposal provides for 20 hearings and 21 commission meetings 

between the time you receive your reautliorization and additional app ropriations and the expiration of the Commission. While it may be necessary from a 

sub stan tive viewpoint to hold this larg e number of meetings, partic ularly to 

gain the benefit of public input from the hearings, we have observed from our 

experience with other commissions th at it is very difficult to hold this many 

meetings in such a sho rt time fram e. For one thing, considerable staff work 

is involved, both before and af te r meetings, in orde r to gain maximum benefit 

from them. While we und erstand th at partici pation by members of the Commission has been very good in the past, we fe ar th at so extensive a schedule may 

necessarily limit involvement because of other demands on the Commissioners. 

For these reasons, we would sugg est you limit the number of meetings you 

hold to a very few—perhaps combining commission meetings with hearin gs. 

This would alter your proposed budget levels for both compensation of commission members and travel.

The adm inistrative service item s in your proposal are in line with those of 

sim ilar commissions. Your estimate of printing costs may be low based on our 

previous experience, although this depends on how extensive the commission 

reports are to be.

On the whole, the proposed budget level appears reasonable and consistent 

with the expe nditures for temporary study commissions of a similar nature 

th at we have worked with in the past. The observations we have made reflect 

our previous experience and are offered only for your consideratio n. We are 

pleased to note that the Commission’s work in the past has been thoroughly 

and professionally done and has been presented within the legislatively established timeframe. We app reciate the task you have before you and are 

ready to offer any additional a ssis tance you may desire.

Sincerely,

Walter D. Scott,

Associate Director for

Economics and Government.

Mr. L evin. Tha nk you very m uch.

I t hi nk we st ar t off no tin g the fact t hat we were giv en 180 days to 

file ou r first repo rt, 'and we filed it in a tim ely fa sh io n; we met th at 

dea dlin e. Th e Commission did so, even thou gh it published a pre liminary repo rt, whi ch was ve ry widely cir culat ed, conce rning which 

there were l ite rally h un dred s of comm ents received. An d we m ana ged 

th at all wi thin the 180 da ys ; and th en we faced up pr om ptly to th e 

second phase of the work.

As we enter ed into th e second phase of the work, it became cle ar 

th at we could file some report, wi thin the addit ion al 6 mo nth s given 

us, even if we were t o publish a preli minary repo rt befo re th at . How ­

ever, i t a lso became cl ear th at , g iven t he kin d of problems that we have 

unc overed, some o f which had n ot rea lly been obviou s before, and given 

th e value of certa in of the pro ced ure s whi ch we h ad followe d—hea ring s in dif fer ent places and some c are ful, indepth stu dy —th at , incremental ly, the add ed tim e wou ld be very worthwhile.

Her e are some of t he problems t h at we are de ali ng with, if I may 

tou ch on them briefly. Fir st th ere is the question of maintaining the 

na tio na l law. Are there unresolved inter-c irc uit conflicts, so th at a 

ta xp ay er in Orego n is tre ated dif fer ently th an a taxp ay er in No rth 

Ca rolina. We heard su bstan tia l testim ony to the effect th at there is 

such a prob lem. Is th e pro blem such t hat the re o ug ht to be some o ther 

bod y besides the IT.S. Suprem e Co urt to in te rp re t Fe de ral sta tut es, 

inclu ding tax sta tut es, and to do so with rel ati ve speed?

In ma ny cases, we h ave been told it r eal ly is of no gr ea t mo ment to 

any one wh eth er you decide an issue one way or a noth er ; Co ngress c an 

amend th e sta tu te a nd these may be “sm all” issues. Yet tens of th ou ­

san ds of people need t o know t he a nsw er. I t is a lit tle b it like d riv ing
21

on the highway. It is not so important which side you say to drive on, 

but everybody on the road ought to have the same answer and ough t 

to have it promptly.

We are exploring the question of first, the unresolved actual intercircuit conflicts. We are also exploring the extent to which there are 

statutes that would benefit from a rapid determination of questions of 

an authoritativ e interpretation, on the national level. That is one of 

the problems th at we have been dealing with. We have had extensive 

hearings on the subject for it is related to the question of creating a 

national division of the U.S. Court of Appeals. The ABA has proposed such a tribunal at its last mid-winter meeting.

We heard a g reat deal of testimony from prestigious people for and 

against; and from others who are in the middle, saying that there are 

certain things th at may be desirable, certain other things that may not 

be desirable.

AD MINIS TRATIVE APP EAL S

The Administrative Conference of the United States has expressed 

a real willingness to work with us to do research in order to see whether 

jundicial review of administrative decision is at the optimum level 

righ t now ; or whether there are ways we can expedite th e process— 

and expedite not for the sake of speed in adjudication alone—but in a 

manner which would achieve a fair and proper ultimate result. Because after all, this is not only the mandate of the statute, but this is 

our interest.

PA TE NT LITIGA TIO N AND FOR UM S HO PP IN G

This is an area th at deeply concerns us. We heard a lot of testimony, 

received a lot of letters on alternatives to the present system. I cannot 

say what the Commission will recommend, but certainly these are 

areas that we ought to explore in some depth and with some care.

A word on th e internal procedures of the Court of Appeals. In one 

circuit today there are close to 60 percent of th e cases in which there 

is no oral argument allowed—this in the U.S. Court of Appeals. Other 

circuits also are increasing th e number of cases tha t go that way, tha t 

is cases in which no oral argument is allowed.

We have heard in an open hearing from a court of appeals judge 

who indicates tha t he will vote on a case without having heard oral 

argument, without himself having read the brief, without having 

attended a conference, simply because of the great pressure of business, even though he works all day on Sundays. He works from another judge’s memos, and he says he checks the points of the lawyers 

to see whether the memo has covered them. These are things we think 

we ought to be concerned with, not necessarily with the idea tha t we 

have to arrange for a greater flow of cases before these same judges, but 

asking whether the Federal courts are really doing the kind of job 

tha t we want them to do, in view of the importance of the Federal 

judiciary today to the country, really—and at times this might sound 

cliched and hackneyed, but I really believe it and believe it deeply.

Perhaps, Mr. Chairman, if I may, I will turn to the funding ; and 

here, maybe, making a preliminary observation and thereaf ter respond as best I can to all types of questions about the details.

Originally there were those who may have felt that all we had to 

do was take a circuit realignment from a number of proposals that had
22

alr eady been prepared . Indeed, th ere were pr ep ared proposals. We 

stu die d maybe 40 pr into uts th at ha d been pr ep ar ed b y com puter. We 

found, inc ide nta l, some thing th at was alm ost am using on one such 

printout. Th e c om puter h ad been tol d there was no objection to dividing a State , and came up wi th a solution th at wou ld have ha d Oklahoma in three different circui ts. An d the Com mission felt th at althou gh th at might be ap pr op riat e fo r some State s, it was rea lly not 

necessary in the case of Oklahoma.

But th e Commission felt th at th e best way to go about th is was 

to go and hold heari ngs, which we d id : fo ur on th e west co as t; fo ur 

in the fifth circuit; he arings in New Yor k; he arings in Wash ing ton . 

And we lea rne d a treme ndous am ount fro m this. We thou gh t it was 

no t e nough jus t to pick a plan a nd th en send i t to C ong ress as a re com ­

mendatio n. We pub lish ed a preli minary rep ort and cir culated th ou ­

san ds of copies in ad ditio n to those th at were publishe d in the Fe dera l r ep or ter syste m, a nd received valuab le advice.

For the mom ent, now, we have a numb er of research pro jec ts we 

wou ld like to complete . Some of the m relate to pract ice s within the 

court s of ap pea l; some of th em relate to i nte rcirc uit conflicts; some of 

the m relate to opinion wr iting , to denia l of oral arg um ent. Th ere are 

some difficult questions about weigh ted caseloads. We spe ak of a 

“case,” bu t an NR LB ap pe al jus t tu rn in g on the fac ts may be very , 

very different th an an ad minist rativ e law appeal in the are a of environme nta l qu ality and in ambience problems, issues of th is sort.

We want very much to get away from easy g enera lizations con cerning th e existence of intercirc uit conflicts, and , instea d, to have someone, with a numb er of ass istants, stu dy literally every sing le cir cuit 

pe tition fo r 2 years, at least those on the pa id dock et. Was there an 

intercirc uit conflict or not? If so, was it resolved ? We a re also talk in g 

to the consum ers— the litiga nt s are th e ultim ate co nsum ers, b ut at least 

we wa nt to talk to the law yers who have been rep resenting them — 

an d ask: I s there rea lly a pro ble m in your p rac tice because of the fa il ­

ure to resolve i ntercircuit conflicts, and sim ila r th ings tha t are broadly 

alle ged ? Doing all of these thing s, this research, rea lly costs some 

money.

We asked the Office of M anagem ent and Bu dget to review o ur b udget 

as subm itte d with the request fo r inc rea sing the au tho riz ati on for 

ap prop riation, for the full 27 m onths of the Commission, to $1 million . 

The ir response is the last app en dix in mv statem ent . An d t ha t response, 

I mu st say, worrie d me, because it ind icates th at we may have asked 

fo r too little. T he OMB l et te r is couched in very lovely l anguage—a nd 

I quote from the first par ag ra ph : “The pro posal, in ou r judgme nt, is 

reasonable and possibly con servative.” Th en the y went over one item 

af te r anoth er and said , in effect, this is probably conservative, or this 

is in line with othe r commissions, but it may be conservative . T he b ulk 

of the lette r consists of sug gestions for e xpendit ure o ver and above the 

$1 million request for au tho riz ati on.

Th is lette r is b efore you. It is attach ed to the statem ent .

I thi nk th at we can and we will and we must live wi thin wha t we have 

asked for , if t he Congress deems it ap pr op riate to autho rize and t he re ­

af te r to ap pr op riate the balanc e—this is fo r the full 27 mon ths.

Bu t I did want to call vo ur attentio n to th is conclusion of OM B. I 

thou gh t, in ad dit ion , sub ject to yo ur pleasure, to break down each of
23

the item s; because the m ajor items really relate to the staff fo r the fu ll 

27 months—about $350,000 w ith the person nel be nefits; and to research 

consultants and contr act s—researc h was about $240,000. They are both 

pro bably conservative, as i ndica ted in the 0M B ap praisal.

We have been pinc hing pennies, and I th in k bei ng a pu blic commission, we have to continue to do th at .

I would be gla d to respond to any detai led questions, but I would 

say the re is only one a rea where th ey tho ug ht that we c ould c u t: I n the 

numb er of heari ng s and meetings—to combine the m to save some 

travel. We have been do ing th at . I am no t sure wh eth er we can cu t 

down on the to ta l; it depen ds on the com ple xity of the recom mendation s, because th e C omm ission has been very dedic ate d, ve ry ha rd working. An d if you sit thro ug h a me eting fo r abo ut 4 o r 5 hou rs an d tr y 

to thrash out a problem the fee ling is o ften th at it needs a no ther meet ­

ing af te r you hav e worked th roug h othe r aspe cts of th e problems, 

prep ared an othe r dra ft . We certa inly would not wa nt to say th at we 

cannot call an othe r meetin g; we are sorry , we can not afford it. To 

illus tra te the tight bu dg et on which we have been liv ing , let me say 

th at I ha ve alr eady h ad one co mmissioner who offered to come t o h ea rings at his own expense th is fro m the west coast to the east coast. I 

said we migh t hav e a tig ht bu dg et but not th at bad.

So, gen tlem en, it would be my pleasu re to go into fu rther detai l if 

th is is a pp ro pr iate, or to respon d to yo ur question s as you pr efer, and 

go righ t throug h the full budget and the full prog ram , subject to yo ur 

pleasure.

Mr. Kastenmeier. Th an k you.

We have some gene ral questio ns.

In 1972, the Commission was established and $50,000 was th ou gh t 

adequa te fo r at least the firs t phase of yo ur inv est iga tion, the repo rt 

on the rea lin em ent of the judic ial cir cuits. Bu t in fac t, th at was not 

enough, was it, by a long shot.

Mr. Levin. May T respon d ?

One of the Con gressm en who was involved with it long before I 

came on the scene told me th at the y ha d the idea th at there are pla ns 

wa iting in the Fe de ral Ju dicial Ce nter; th at the Fe deral Ju dicial 

Ce nte r simp ly said th at they would n ot go throu gh a policy de term ination ; th at you needed the Commission to pick one of the existing 

altern ati ves. As I trie d to describe, the Com mission did not feel th at 

way about it. We have had no reg rets at all about t he pro ced ure s and 

the he arings cost money and the time involved cost money, the pu blication cost money. Th e heari ngs a re very rich . W e received a n um ber 

of lib ra ry reque sts fo r th em.

Mr. Kastenmeier. W as it con tem pla ted originally withi n the st at utory ma ndate th at you would have thes e he arings throug ho ut the 

country ?

Mr. Levin. The statute only said th at the quo rum for he arings is 

three. It did n ot spe ak b eyond that. An d we are ha ving cu rre ntly most 

of ou r h earin gs in Wash ing ton .

On the othe r hand, the seventh cir cu it was af te r us so vig oro usl y 

th at we will be going out the re 2 d ays in Ju ne . Ba rt of the fee lin g is 

on geo gra phica l realinem ent , tha t the people in the area affected o ught 

to be able to speak witho ut the bu rden of com ing from the ninth 

cir cu it, for example, to Wash ing ton .
24

Pa rt of it, too, is tha t we have learned so much from people who 

could come to a relatively local hearing, both on procedures and attitudes, for example, on delays in the ninth circuit. The problems are 

incredible.

Mr. Kastenmeier. I was under the impression that the first part of 

your mission, geographic realinement of the judicial circuits, was more 

or less completed.

Mr. Levin. It is complete. The final report is filed. I mentioned this 

only because we used up a good proportion, not an excessive proportion, of the funds allocated for that.

What I am really saying is, I think the original figure, in the 

$255,000 range wa9 fixed in p art on the notion tha t we would spend 

almost nothing of th at on circuit realinement. But, with the hearings, 

with the travel, with the preliminary proposals, we had to spend a 

good proportion of that—not excessive in terms of the original 18 

months. T hat is why I referred to it, sir.

Mr. Kastenmeier. Your request envisions over $300,000 for staff 

and $240,000 for experts and consultants. I suppose originally it was 

thought tha t this work could be performed by other entities, such as 

the Administrative Conference or the Judicial Conference itself, which 

does so much in terms of caseloads. And you mentioned the Federal 

Judicial Center.

Are these other resources not adequate for the purposes of your work, 

that you should require so much staff and other expert consultants?

Mr. Levin. I am truly grateful for the question, because the response 

falls into tw’o categories. First, the statute provided tha t the Federal 

Judicial Center and the Administrative Office of the United States 

should service us on a reimbursable basis. Pa rt of this money—those 

three little words, “on a reimbursable basis”—part of the funds in 

here—indeed, almost $100,000—is for reimbursement and they are not 

charging us a full rate. The AO, the Administrative Office, is reimbursed for administrative services. I am not sure, but I believe that they 

have not really been charging us the full amount they say th at we are 

costing them. You mention the Federal Judicial Center. I t is very clear 

that we have consultations with them, we have tapped th eir resources. 

But it is reimbursable and there will be a lot of money on that.

Some of the research is done throug h them. They are interested in 

it. Our policy has been wherever research has been done, we utilize it. 

Some of it is outdated; some of it needs to be updat ed; some of it has 

data which is not published. We latch on, frankly, to other projects— 

I feel almost like a parasite—to find a scholar who is studying opinions 

and just pay a little increment for particular data we need.

The short answer is all these other resources are exceedingly valuable. Withou t it, the figure would have to be very much higher. Some 

of it is on a reimbursable basis; other research requires additional 

work, which we would then have to pay for. And all of the projects 

which I have listed, posit work beyond what is available to us.

Our first step is always to talk to the people and to utilize what 

there is, including the committees of the Judicial Conference of the 

United States.

Mr. Kastenmeir. Presently you are authorized $270,000. Presently you have appropriated to you $255,000.

Of that $255,000? how much already has been expended?
25

Mr. Levin. This was actually expended as of April 30, 1974. Actually paid out is $123,241. Unpaid is another $10,000. We have actually 

spent $135,000 in rough figures, with another $100,000 obligated. But 

there are a number of obligations in the research area which go beyond 

that. W hat I filed, Mr. Chairman, is the latest monthly report as AO 

has given it to us for March 31,1974, and I was now reading from the 

report 1 month later.

I think we really did our circuit realignment for under $100,000, 

probably about $90,000. The AO repo rt tentatively comes out $83,800, 

but it had some postponed payments.

Mr. K astenmeier. The date of your creation was October 13, 1972, 

is that correct ?

Mr. Levin. Mr. Chairman, if I may suggest, this was the effective 

date of the statute.

Mr. K astenmeier. You were created to commence on what date?

Mr. Levin. The statute provided tha t our timetable, our clock begins 

to run at the time the ninth member is appointed. This occurred on 

June 21,1973.

Mr. Kastenmeier. Therefore, your present life is u ntil September 

21, 1974?

Mr. Levin. Yes, th at is when the report would have to be filed— 

with the provision that we then have thereafter another 90 days to 

subside, to pass out gracefully. So our report, if we did not change the 

timetable and without additional funding, we would have to file a 

preliminary report almost in a matter of weeks. If we had to, we would 

meet the obligation. But everybody on the Commission felt that, incrementally, there jus t was not any comparison to what the value could 

be with an extension.

Mr. Kastenmeier. What is proposed, then, is th at you are authorized to continue and file your final report on June 21, 1975, with 90 

additional days thereafter?

Mr. Levin. That is exactly right.

Mr. Kastenmeier. Which is more or less 12 months plus 90 days.

Mr. Levin. From now.

Mr. Kastenmeier. From now.

You have been in existence slightly less than a year. You have prospectively, if your request is agreed to, slightly more than a year to go. 

You have presently spent about $125,000, more or less, and you propose tha t you be authorized to spend $875,000 more or less more in just 

over 1 year of your proposed existence.

I take it that you are gearing up in terms of stuff consultants, contracts, and all that?

Mr. Levin. Exactly. I have a roster here. We desperately need 

someone else on the staff. P art of the happy difficulty is, the interest 

in the country has been such tha t the volume of correspondence th at 

goes through, the requests for things, the responses to our inquiries 

has just been huge. Our chief secretary has been around a lot of offices, 

and has said this volume is sort of unheard of.

This has put a great burden on the staff, which is just unde rmanned—totally. We propose an increase of one additional professional. And as I say, OMB said tha t is really too little. But we can 

live with that.
26

On to the lis t of consultants, some of whom one way or anoth er 

we have to do this work. There is almost $250,000 worth of research 

which we would like to sen d o ut immediately . W ith ou t it, o ur re po rt is 

meaningless. That is where the e xtra comes, the ex tra staff th at is involved, and pa rticul ar ly t he research ma ter ial pro vid ed for here.

Mr. Kastenmeier. I f you were to follo w the 0M B sug gestion th at 

the 20 heari ngs and 21 Commission meetin gs could be cu t back, I 

assum e th at you would be able to save some of the money you are 

req uesting ?

Mr. Levin. If we were to follo w all th ei r suggestions our total 

expenditu re would be hig he r th an wha t we propose.

Mr. K astenmeier. W hy is th at ?

Mr. Levin. T he reason is, the y told us in th e th ir d pa ra gr ap h on 

the first pag e th at we rea lly ou gh t to incr ease the staff to include a 

research person and a person to wr ite matters up. An d if we were 

to pu t somebody like t hat on, it w ould be more th an we a re sav ing on 

all th at they prop ose. Th en the y go ahe ad and on the next pag e, say 

th at co nsultants and e xp ert s also app eal's reasonable, but conservative. 

An d the y sug ges t fu rt her th at th is req uires money and may require 

more staff to supervis e th e co nsu ltan ts.

T hat is tru e. Th e staff, than k God, is wo rking fa r more th an the 

normal staff. I t is exciting wo rk; 10 o’clock, 11 o’clock at nigh t, 

th at is the way it ou gh t to be. And there is an othe r aspect th at the y, 

OMB, think we have provide d too lit tle for, the pr intin g, ultim ate 

pub lication a nd costs of pu blication of the hearin gs and so on. It would 

be a lit tle con serv ativ e. If we follo wed wh at the y suggested, the net 

wou ld be more th an w ha t we proposed.

Th e risk, th e only place where I pla yed it a littl e more carefully 

th an the barest minim um, was in the hearings and meetings. On the 

other h and, ou r experie nce ha s been unu sua l. Sinc e D ecem ber we ha ve 

alr eady ha d 5 day s of he arings and mee ting s and will have ha d 7 

withi n 2 o r 3 more weeks. We are only talk in g of 41 days. We have 

ha d 7 already .

H alf of our Commission are Members of Congress who can not 

alw ays give a fu ll day. Y ou can have a ha lf a d ay meeting. The attend ­

ance is not as good, however , w hen you hav e 2 days o f heari ngs with 

a h al f a d ay m eet ing included . If th e Commission is p ressed t o go and 

hav e heari ng s some where else, in anoth er city, which is sometimes 

che aper, you cannot call th e whole Commission ou t t here because you 

will lose money ra th er th an save by com bin ing th e he arings and a 

meeting.

It is not a Commission th at says, “W ha t the heck .” Ev ery one of 

them is dedicated. Every one is ded icated, rea llv tremendo usly. We 

may have to use this fu ll 41 days. As I say, 7 w ill hav e been used up 

alread y. I t depend s en tir ely on wh eth er we achieve a rapi d consensus 

or wh eth er we keep wo rking thro ug h details .

Mr. K astenmeier. A t t hi s po int , I would like to say, n otwith sta nd ­

ing the good wor k and the need for th e work th at yo ur Comm ission 

has undertaken, and with ou t any reflection on you or any member o f 

the C ommission, the fact is in the House, p ar tic ul ar ly , we have a g reat 

deal of difficulty with comm issions in terms of inc rea sin g th eir fun ding 

authorization a nd ex ten ding their life.

Th is subcom mittee on two occasions ha nd led th e Ad minist rativ e 

Con ferenc e i n its ea rly years, an d ha d a g re at deal of difficulty.
27

A commission such as the Administrative Conference performs work 

that is somewhat technical, and as a consequence it is easy for a Member to vote against it to save some money. Likewise, I thin k the work 

of your Commission, however excellent i t may be, is not commonly 

appreciated among Members of Congress.

The result is we may have difficulty with a House very concerned 

with saving money. I express this apprehension to you so tha t Mr. 

Wiggins and others will know the urgency of actively supporting 

this legislation. We will ask for help elsewhere as well.

What I am saying is, through difficult experience I have learned 

tha t casual commissions, commissions that are not notorious, and yours 

is not notorious, have a tendency to get lost in the congressional bureaucracy, especially when the Commission does not have a constituency large enough to appreciate its work. So let me ask you this question in that context:

If it were felt tha t $1 million were too great an amount to invest 

in your work, is there any lesser figure tha t you could submit th at you 

could live with?

Mr. Levin. Mr. Chairman, let me say tha t we will live with whatever 

the Congress determines tha t we have to live with. We will not overspend. We will not violate the law. Perhaps I should tell you how this 

million-dollar figure came about. I was asked—this is just by way 

of confession of my inadequacy—I was originally asked to prepare 

an additional budget, and I prepared a small one and I brought this 

to members of the Commission who were in Congress—as a matter 

of fact on the House side—and they said, this is not enough. I f you 

run short here, you are in trouble.

We had a conference with OMB. Their notion was, you have not 

asked for enough. In short, my whole approach to this budgeting has 

been one of really sticking with the rock bottom. I have been subjected 

to the experience of reviewing budgets for I have sat in budget reviews,

as an administrative officer at the university, w ith millions of dollars 

going through; and I am well aware of the phenomenon where you 

ask for too much, then you try to get i t bargained down. I guess I developed such an abhorrence of that type of thing, I sa id: Level with 

me. We must have this, this is optional and so on.

All I can respond to you is, this really represents the lowest we feel 

is tenable for doing the job within the period. Less than that , we either 

have to cut research—research that ought to be done, because some of 

the reports that have come out to the country have just been based on 

impressions. People said we could not do this research; we do not have 

the opportunity. We should do the necessary research.

We think it would serve will to cut out meetings of the Commission. 

If it turns out we needed them it would be pretty bad. I will only say 

this, because I think this is true of all the members of the Commission: 

if the luck of the draw works out tha t a fter getting the money we do 

not have to spend every last cent, it would be our greatest pleasure to 

turn back whatever is not absolutely needed. This we can pledge you. 

We have absolutely been rigorous up to now, even when we thought 

we had more than enough for the particular period, exceedingly 

rigorous, and we will continue tha t way.

It will be viewed as kind of an achievement, to get our report 

out, whatever deadline is set, and then tu rn back and say, we do not 

need all th is money. That would be the greatest achievement.
28

Mr. K astenmeier. Mr. Cohen.

Mr. Cohen. Th an k you, Mr. Ch air ma n. I hav e very lit tle to add, 

othe r th an to express the sam e so rt of appre hension , assum ing th at 

Ch airm an K ast enme ier is in fa ct prop het ic. I guess the qu estion I had 

was, whe re could wye p oin t, on the House floor, to item s t h at might be 

cu t back w ith the least amo unt of harm ?

Mr. Levin. I a m wo rried abou t where. I th in k we would just have 

to cu t dow n on some of t he research, althou gh again , it has been on 

a penny-pinchin g thing, the na tio na l law’ an d t he an titr ust a nd so on.

Mr. Cohen. Fo r exam ple, lo oking at yo ur bu dget, w ha t a re pro jec ts, 

high pr iority , $162,000 ?

Mr. Levin. L et me go righ t down them . Th e stu dy of circuit pe titions I referred to , we hope to br in g it in at $10,000. An opinion survey 

in three circuits on the need fo r oral argu men t a nd u npublished op inions. Th is would lie of mem bers of the ba r who actua lly arg ue before 

the co urt as to how they react to the pra ctic es of e ith er d enial of ora l 

argu men t or havin g an unpublished opinion, whi ch is a pra ctice 

savin g a lo t of time and so on—$35,000.

In five sep ara te are as to ask wheth er intercirc uit conflicts hav e affected lawyers in th ei r pract ice inc lud ing forum-sh oppin g—p ate nt, 

tax , an titrus t, securities, lab or, law’. We th in k we can br in g each of 

them in at $7,000, $35,000. A s tud y of the admi nistr ative law’ are a------

Mr. Cohen. M ay I in te rrup t for a mom ent? Is for um sho pping in 

the court of appeal s a p reva len t p rac tice ?

Mr. Levin. In an appeal fro m an admi nistr ative ord er that w ill go d irec tly to the court of app eals, you may get forum shoppin g, or you 

may get forum shop pin g in th e di strict court, because of a difference 

either in th e law or a tti tu de by the co urt of appe als.

Mr. Cohen. Tha t bring s me to a second question. If I could rea d 

fro m the legislative history :

While the conferees recognize tha t the study of changes in the structure of 

internal procedures in the courts of appeals must necessarily take into consideration the types of cases which enter the judicial system a t the district court level/ 

the conferees intend by use of such language to limit the commission’s recommendations to improvements in structure and internal procedures of the appellate 

process, rath er than authorize study and recommendations with respect to basic 

jurisdictional, civil or criminal, of the district court.

I could see an argu men t develop ing th at bv the scope of the cou rt 

of ap pe als i nquir y, you in essence are g ettin g back to th e distric t court 

level.

Mr. Levin. Mr. Cohen, at th e las t heari ng s of t he Commission th is 

week, I quo ted th at identic al section, which I have been quoti ng in 

lette rs I hav e s ent all over. Indeed, it was Jo hn Fra nk who appeare d 

as a witness here earlier today, who appeare d in Los Angeles, who asked 

fo r an op po rtu nity to ta lk to th e questio n of re ta inin g div ers ity ju risdiction. We s aid, this is for bid den te rrito ry . We are s taying o ut of it.

Th e only th in g at all th at may raise a que stio n, because we hav e 

been very rig orous on th at —no t stu dy ing di strict court juris dic tio n— 

we do no t wa nt to stu dy it, we do not wa nt to get involved in it—is 

where yo u have some thing by way of the unresolved intercirc uit conflicts— possibly in th e pa ten t area, fo r example, which may affect 

where a litiga nt chooses to st art his litiga tio n. It wou ld still be in a 

U.S . di strict court, in any eve nt, you see. Our sole concern would be 

unresolved i ntercircuit conflicts.
29

Because then there would be the question, for example, if the CCPA 

could have a beneficent influence if its jurisdiction is expanded. Beyond 

tha t we just do not touch the district courts.

I am grateful for the opportunity to make this clear, because we 

have been very sensitive to it. I must say that Chairman Celler has been 

very alert wherever a dictum came out from witnesses to point out this 

particular passage.

Mr. Cohen. If we could go back to the projects of high priority.

Mr. Levin. In addition to that, for example, we are thinking of 

maybe $25,000 for a study of the administrative law area, some of 

which could be very good. If we could get all of tha t on the budget of 

the Administrative Conference it would be our great desire to do so.

A study of the extent to which there ought to be the possibility of 

moving from the highest court of a State over to an intermediate Fed ­

eral appellate court—it has been suggested in the criminal area and 

may have applications in other areas.

A study of a court of appeals to see the dynamics of the court with 

respect to why there are long delays. Tf we could do that, we would 

love to do tha t for $15,000.

A study of weighted caseloads—what does it mean to a court of 

appeals to have one type of case rather than another—so we can understand the data on filings better. The volume of filings do not show the 

work the judges do, and with luck we could do tha t somewhere between 

$15,000 and $25,000, latching onto funds of the Federal Judicial Center, tha t wanted to do it very modestly on their own. But we would 

extend it from one circuit to three because we need to know more 

than just data on a single circuit.

What I think I tabulated here is over a little, over $200,000. I am not 

directly dealing from this list.

Mr. Kastenmeier. I f the gentleman will yield.

Are you adding just a little over $200,000 for projects of high 

priority?

Mr. Levin. Our notions have changed a little bit on this. I originally 

did this very conservatively, even this projection is very conservative. 

I will not bother you with $2,000 amounts, or $1,000.

Mr. Cohen. We ought to have a little more explanation, I think, 

of the detail of these projects in order to justify them. We would appre ­

ciate your furn ishing us with it.

Mr. Levin. If you would like a submission, it will be my great 

pleasure.

Mr. Kastenmeier. I t is an excellent idea. We not only would like it, 

I think it may be essential to justify some of the items you have here.

[The information referred to follows:]

Supplemental Statement of A. Leo Levin, Executive Director, Commission

on Revision of the Federal Court Appellate System

I very much appreciate the opportunity to subm it thi s supplemental statem ent 

in support of S. 3052, a bill to extend the date for the filing of the final report 

of the Commission on Revision of the Federal Cou rt Appellate System and to 

increase its appropriation authorization.

At the hearing on this bill, the distin guished Chairman of the Subcommittee, 

Congressman Kastenmeier, and Congressman Cohen suggested th at it would be 

helpful if we would provide furth er detail concerning (a) the number of he arings and meetings scheduled in the proposed budge t; and (b) the Commission's plans for research. This supplemental statem ent is filed in response to th at 

request.
30

Research constitutes so large a proportion of the tota l budget, and is so clearly 

dependent on approval of an incre ase in authorization for appropriation , that 

we particularly apprecia te the opportunity to provide added information on th is 

subject. The number of meetings and hearings was the one item questioned by 

the Office of Management and Budget which, at our request, reviewed the Commission’s budget proposal (see le tte r from Wa lter D. Scott, Associate Director for 

Economics and Government, 0MB, to A. Leo Levin, dated April 15, 1974, copy 

filed with original statement of A. Leo Levin). It should be observed, however, 

that all other suggestions by OMB would result in a net increase in the total 

budget and in the requested auth orization, well beyond the sum provided in S. 

3052.

HE AR ING S AND MEETINGS

On an annual basis the Commission has projected fewe r hearings during the 

second phase of its work tha n it held during the first phase. The Commission 

completed its repo rt on c ircuit realignment in timely fashion within 180 days of 

the appointment of i ts nin th member. During th at period the Commission held 

eleven days of hearings, two in Washington, D.C., and nine in various other 

pa rts of the country. If the Commission were to continue to hold eleven days 

of hearing s during each six months of the eighteen months projected for the 

development of its final report, the tota l number of hearings during this phase 

of its operation would total thi rty -th ree days rather tha n the twenty days 

which are provided in the proposed budget. The proposed schedule thus represents a reduction of more tha n one-third.

We hope to achieve thi s reduction, without sacrifice of the exceedingly 

valuable input which the first-phase hearings provided, by effective use of 

altern ative mechanisms for lear ning the views of lawyers, judges and other 

inte rested citizens with ideas and information to contribute. The Commission 

is making every effort to develop its record by way of subm itted stateme nts 

in lieu of personal appearances, including detailed correspondence with representa tive members of various segments of the profession. Perhap s it may 

prove possible to reduce still furth er the number of hearings provided for in 

the budget. On the other hand, it should be noted th at compared with the problems of circ uit realignment, the problems rela ting to the structure and the 

inte rnal operating procedures of the Federal courts of appeal system are far 

more complex. A significant national debate has already developed with respect 

to certain proposals which are presently before the Commission, and it may 

well be necessary to provide for hearings, not only during th at period of time 

in which the Commission prepares a preliminary report, but, in addition, during 

the period between the publication of a preliminary repo rt and the adoption 

of the Commission’s final report. To lose the valuable input which the app earances of witnesses can provide, with the exchange of views and the questioning by members of the Commission, might seriously limit the ability of the 

Commission to evaluate proposals which are before it and to refine its own 

proposals so that they are of maximum utility to the Congress, the Presiden t 

and the Chief Justice when they a re finally submitted.

A similar analysis proves helpful in evaluating the budg etary provision for 

twenty-one meetings. Prior to the filing of its preliminary report, the Commission met on seven sep arate days, including two informal meetings for organizational purposes prior to the official creation of the Commission. A t the same 

rate , the Commission would meet on twenty-one days during the second phase 

of its work, precisely what is provided for in the budget. (The Congress has provided for the Commission to continue in being for ninety days after the submission of its report. The above projectio n does make provision for meetings 

during this period to deal with policy decisions relevant to the term ination of 

the Commission’s life.) It must be emphasized again, however, th at the problems 

involved in the second phase of the work are fa r more complex tha n those involved in circuit realignment. No recomm endations for change in the structure 

of the Federal appellate courts should be made without full exploration of all 

foreseeable ramifications. Similarly, for the Commission to make any recommendations for change with respect to intern al procedures is a delicate matter, 

even if such changes were to call for action by the Jud icia l Conference of the 

United S tate s rath er tha n by the Congress.

For a proposed budget to fail to provide adequate opportunity for the Commission to develop, to discuss, to consider and to reconsider proposals in these area s 

would be highly unfortu nate. It is difficult, for example, to predict with confidence the number of meetings, or the hours of meeting time, which may be required to formulate, refine and ultimately to accept or reject a proposal for a
31

new Federal appellate court, such as a National Division of the United Sta tes 

Court of Appeals, urged upon us by the American Bar Association. Viewed in 

this perspective, and considering the number of proposals, larg e and small, already before the Commission (some of which are mentioned below), perhap s 

it would have been pru dent for the Commission to have provided for more meetings th an have been projected.

We believe, however, that we can live with in the proposal as submitted. In 

this regard, it is worth emphasizing that one half of the commissioners are members of the Congress. They are rarely free to take a full day, much less to spend 

two or three consecutive days, away from their offices and from the floor. A meeting has its maximum utility, and maximum participation, if it is scheduled to extend for a period of no more tha n six consecutive hours, including recess time. 

The Commission has alread y acted to combine meetings and hearing s in order 

to achieve a reduction of cost, but the results have not been ideal, for in evita bly 

it becomes very difficult for busy commissioners to partic ipa te adeq uate ly in 

both phases.

It may be helpful to develop more fully the nature of the agenda which is 

contemplated for the meetings of the Commission. Following reports from our 

research consultan ts, there must he opportunity for discussion of data and conclusions. Par ticularly, there should be opportunity for the Commissioners to 

explore with the experts implicatio ns with respect to recomm endations for 

change. Subjects likely to require protracted discussion include the denial or 

limitation of oral argu men t; reduction in the number of full-dress opinions being 

w ritten ; the use of such altern atives a s judgment orders, per curiams and memorandum opinions which are mailed to the parties, but which are not published 

and which may not be cited as precedent; the use of central staff, analogous to 

the prevailing prac tice in some stat e appellate co ur ts; development of a program 

for the appointment of commissioners at the appellate level, analogous to the 

use of magistrates in the District Co urts; assessment of the likely impact on 

future case loads of proposals in the are a of habeas c orpu s; changes in the procedure for judicia l review of adm inistrativ e age ncies; the use of two-judge panels 

as is done by the Court of Appeals for the District of Columbia with respe ct to 

motions, to mention hut a few. None of these may require quite the time and 

thought needed by the proposals for a new Court, discussed earlier, but each is 

complex and difficult and, potentially , of great significance to the adm inistra tion 

of justice in the fede ral system. The list of topics is suggestive rather tha n 

exhaustive, as will be seen from the roster of proposed research projects below. 

Moreover, each involves a policy decision, requ iring delib eration and actio n by 

the Commission itself.

The Commission hopes to continue the practice of care fully reviewing a dr aft 

of its proposed preliminary report, with the opportunity furth er to review a 

revised preliminary repo rt before publication.

On the basis of past experience and the widespread intere st already in evidence, 

the Commission may expect literally hundred s of comments and suggestions 

following publication of its preliminary report. This will certainly be tru e if the 

Commission chooses to include alte rna tive recommendations in the preliminary 

report. The responses will be studied and evaluate d, and a final report drafted , 

revised and approved, following the procedure set forth above with respe ct to the 

preliminary report. In short, to accomplish this much i t may be possible to reduce 

the number of days of meetings, but it does not appea r prude nt to budget for less 

than the twenty-one days provided in the proposal as submitted.

II. Research P roposals

A. ADEQUACY OF THE PRESENT APPELLATE STRUCTURE OF THE FEDERAL JUDICLAL

SYSTEM ; UNRESOLVED INTER-CIRCUIT CONFLICTS

A m ajor contention of proponents of change in the exis ting federal courts of 

appeal system is th at there are serio us problems of unresolved inte r-circuit 

con flicts; an d that the system lacks capacity to resolve questions of natio nal law, 

partic ularly involving sta tutory interp retation, resulting among other things 

in undesira ble forum-shopping. This assertion is the foundation-stone on which 

the American Bar Association proposal for a National Division of the United 

States Court of Appeals is based. Prestigious studen ts of the Fed eral Jud icial 

system have argued th at such deficiency does in fac texist. Equally prestigious 

witnesses, however, have disputed the contention. At times it has almost seemed 

th at there exists a plethora of solutions without anyone’s havin g sub stantiated 

the existence of a problem. True , we have been cited examples of tax sta tut es 

which have not been definitively interp reted for long periods, with resulta nt 

inequality in th e trea tment of taxpayers, but more is needed to define th existence
32

of a problem which would warrant str uctural change in our judicial system. 

What problems do in fact exist, of what orde r of magnitude, of what significance, 

with what im pact?

The following research proposals are designed to provide the necessary data 

for conclusions on the basis of which th e Commission can make recommendations.

1. Study of all petitions for cer tiorar i and jurisdictional stateme nts in

in the Supreme Court for a 2-year period to iden tifyy assertions of 

period to identify assertions of conflict; to determine how many are 

va lid ; and to analyze those conflicts which a re verified---------------- $12, 500

2. Analysis of alleged unresolved interc ircuit conflicts brou ght to our

attention; history an d significance of each--------------------------------- 8, 000

3. Survey of the bar concerning unresolved interc ircuit conflicts and

unresolved questions of national law, by field of inte rest. (In each 

case Government attor ney s and members of the academic profession, 

as well as all segments of the practicing bar, will be surveyed) :

(a) Labor law_____________________________________________ 5,000

(b) An titrus t law __________________________________________ 3,500

(c) T ax __________________________________________________ 6, 500

(<Z) Securities regulation _____________________________________ 4,500

(e) P ate n ts _______________________________________________ 6,000

(N.B. The pate nt a rea is of p art icu lar intere st because of proposals 

for centralizing all paten t appeals in the Court of Customs and 

Paten t Appeals.)

Subtotal ________________________________________________ 46,000

B. OTHER RESEARCH RESTRUCTURAL CHANGE

4. Sta te court appeals and petitions to U.S. Supreme Cou rt: Statistical

study of recent trends a nd analys is of their implications for alt ernative routes________________________________________________ 10, (MX)

5. Study of workload of new court under various proposals received by

the Commission____________________________________________ 1, 400

Subtotal ________________________________________________ 11,400

C. ORAL ARGUMENT AND OPINION PRACTICES

A recent time-tsudy of the thi rd circuit shows th at the writing and 

editing of opinions consumes close to one-half of judge’s case-related 

time. Understandably a number of circuits have developed practices 

designed to effect major savings in this area . The second circuit, e.g., 

decides a substan tial number of its cases from the bench with out opinion. 

The a rea is of centra l im portance in evaluating intern al procedures.

6. A 3-circuit survey of att itu des of lawyers practicing in the courts of

appeal (through the F ede ral Jud icial Ce nter)__________________ 35, 000

7. Nature and volume of opinions in habeas corpus litigation (added data

and analysis in connection with a study independently 

commissioned) ____________________________________________ 1,500

8. Length of opinions as a function of number of opinions; impact of

provisions that unpublished opinions not lie cited as precedent_____ 26, 000

Subtotal ------------------------------------------------------------------------- 62,500

D. ADMINISTRAT IVE APPEALS

9. The Commission is working closely with the Adm inistrative Conference of th e United States to examine m ethods for improving judicial 

review of ad ministrative decisions. Immigration cases, NLRB cases, 

environmental law’ litigation, are all significant components of the 

large volume of such cases now before the U.S. Courts of Appeals.

Review’ of adm inistrative law cases which come to the Courts of 

Appeals from the District courts must also be considered. The 

Adm inistrative Conference is expected to bear a significant share 

of total cost. Our estimate of the Commission’s share of total 

c o s t---------------------------------------------------------------------------------- 55,000
33

E. STATISCAL A NA LYSIS AND PROJECTIONS

10. Weighted case loads—It is immediately obvious to everyone concerned with the work load of the courts of appeals that some cases 

take far more time than others. A petition to enforce an order of 

the NLRB may take almost no judge-time wha tever; a complicated 

appeal in an envronmental law case may require, literally, 100 

times as many hours. Yet, we have virtually no tools for dealing 

with these differences.

The Federal Judicial Center has tentatively projected a study of 

“weighted case loads’’ in the District of Columbia circuit. It is 

not however, a “typical” cir cu it; on the contrary, its “mix” of 

cases is quite atypical. To extend the study to two other circuits

would require__________________________________________ 20, 000

11. Rates of appeal—It has been asserted tha t the rate of appeal has

been rising rapidly in the Federal courts, but the assertion has

been denied. A careful study of this complex question is needed— 4, 000

Su bto tal____________________________________________ 24, 000

F. COSTS TO LITIGANTS

12. A study of place of argument, legal fees, use of records as it relates

to the costs to litigants would be highly desirable--------------------- 14, 000

G. OTHERS PROPOSALS

13. Use of 2-judge panels, analogous to prsent practices in the District 

of Columbia circuit for disposition of motions. This is a proposal 

which is vigorously pressed, having been made by the American 

Bar Foundation Study Group n 1968. Evaluation of the proposal 

and of present practices requires, among other things, a careful 

review of dissents in the courts of appeal, considered on a national

bas is _________________________________________________ 5, OOP

14. Availability of records and briefs filed in the various courts of

appeals; a national depository (the problem has been put on our

agenda by Commission action)____________________________ 2,000

Su bto tal____________________________________________ 7, 000

H. STUDY IN DEPTH OF A COURT OF APPEAL8

There are obvious advantages to a thorough study of 1 or 2 courts of 

appeals as operating institutions. The interplay of different rules and 

procedures can only be revealed by studying 1 court as an entity. How 

can a court eliminate delays which in some circuits, at least, are the 

source of serious complaints? Ideally, 2 courts should be studied, but 

this might easily cost $50,000 to $60,000. We would like to project a

modest $25,000 for 1 court of appeals___________________________ 25,000

T o ta l________________________________________________ 244,900

CONCLUSION

The OMB review of the Commission’s budget proposal, referred to above, 

characterized our proposed expenditure for consultants and experts as “reasonable but conservative.” A careful review of our research plans convinces us that 

the OMB characterization is fully justified ; that a larger sum might well have 

been appropriate, but tha t the requested authorization can be made to assure 

an adequate research foundation on the basis of which the Commission will be 

enabled to discharge the obligations imposed upon it by the Congress.

Mr. Levin. Would you prefer it on any items other than research? 

I would be pleased to give it. I thin k all the others are clear. For 

example, personnel compensation of Commissioners is governed by 

statute. The staff proposal lists each position, and we are told it is 

very modest. OMB said, you should increase it.
34

On the experts and consultants, I would be very pleased to submit 

further data on any other subject you like.

Mr. Kastenmeier. The plan for 21 meetings and 20 hearings must 

have been arrived at after some thought, particularly since it has been 

questioned by the 0MB. It might be well to have a statement o f jus tification for the number of meetings and hearings.

Mr. Levin. I would be delighted to do that.

Mr. Coiien. The difficulty is, when you look at the original budget, 

the House bill appropriated $50,000, the Senate bill appropriated 

$370,000. At conference they arrived at $270,000. Now, what you have 

is a Commission which has completed h alf of its work and now needs 

three times more the amount of money.

Mr. Levin. If I may suggest, sir, the $50,000 was for only circuit 

realinement. Th at was a notion th at the plan was there already, No. 1. 

And the subsequent one, the $300,000 sum, was for a total life of 

18 months, 15 plus 3. What is being suggested now is a 9-month 

addition. I spoke to the person who prepared the original budget. It 

really did not s tart off with what do you need to do, Decause nobody 

was on board. I was not on board. The Commission was just starting. 

So, instead of asking, what do you need to do, they said, could we come 

up with some figure and prepare it.

Mr. Coiien. Even with an extension, you have added only half 

again as much time as the original life of the Commission, yet at twice 

the cost. That is what is going to be difficult for us to justify.

Mr. Levin. I will try very hard to get every detail down. I t would 

be my pleasure to respond to you or staff there if there are any questions 

about the subsequent submission.

Mr. Cohen. That is all I have, Mr. Chairman.

Mr. Kastenmeir. I just wanted to ask, a part from your request for 

money, is the Commission considering the three-judge court or the 

proposal for a mini-Supreme Court ?

Mr. Levin. On the three-judge court, we have done very little on it 

because of the tremendous history. I would not be surprised if no 

change develops in the interim, that we will make a recommendation on 

it. We heard from ACLU, for example, at our last hearings. We just 

asked them, what is your position on the three-judge court. And it was 

Mr. Wulf who was testifying on another matter. He responded, he 

said, even though the legal defense fund has come out against it, our 

position is we will speak neither for it nor against. Tha t is one of 

the few times he said the ACLU has disagreed with the position of 

Mr. Anthony G. Amsterdam. It would not surprise me that we have 

enough already in the record in various places and from conferences 

tha t we may speak of a three-judge court if the Commission deems it 

appropriate. Certainly, I would expect us to expedite the notion of 

direct appeals to the U.S. Supreme Court in antitrust cases, 

if nothing has happened in Congress until then. WTith respect to the 

ICC three-judge courts on which the Administrative Conference has 

spoken: Following the chairman's suggestion, things tha t they were 

finished working with, we do not replow; we take what they have and 

we consider it briefly. And on the ICC arrangement for direct appeal 

to the U.S. Supreme Court, I would expect us to speak to tha t if 

nothing has happened legislatively before that.
35

On the mi nic ourt, ou r b asic approa ch is, I th in k we are no t foc using 

on the pro posal as such. W e h ave a numb er o f sugg estion s fo r wha t are 

best ter me d a na tio na l div isio n of the U.S. Cou rt of Ap peals. 

It is very diffe ren t th an the minic ourt, alt ho ug h it ha s often been 

con fuse d with it. It is very, very dif fer ent, an d it comes in diffe ren t 

packages.

We will addre ss ourselves and we will w’ork very ha rd ad dressin g 

ourselves to the questio n wh eth er ad ditio na l ap pe lla te capacity is 

needed wi thin the system and un de r the Supre me Co urt, an d how it 

may relate to th e Supre me Co urt. A t ou r Apr il 1 and 2 he arings we 

he ard from Ju sti ce A rt hur Go ldb erg , who was good enough to come 

down and testify, fro m Erv in Gr isw old , fro m Ju dg e Sh irl ey Hu fstedle r, th e presiden t o f the AB A, J ud ge G ibson of the eigh th c irc uit , 

Cle ment Hay ns wo rth , ch ief jud ge o f th e fo ur th circui t. Pau l Fr eu nd 

came down in opposition because, in a gentle kin d way, he saw things 

in th at pro posal fro m his va nta ge po int th at he fou nd questio nab le. 

I do not nam e all the witnesses. We had a few from the ta x section 

of the A BA —th e dean o f the U nive rsi ty of Pennsylv ania Law School. 

They sp oke to a va rie ty of thin gs.

We hav e ha d any numb er of ind ivi du al conferences. I would be 

surpris ed i f we did not ad dre ss o urselves to the notion of an add ition al 

immedia te ap pe lla te c ou rt and how it can avoid th e fo ur th tie r, wh at 

its im pact wou ld be on the Un ite d States Supre me Co urt, an d so on. 

I do no t a nticipate a recommenda tion fo r a mini-Supre me C ou rt. God 

knows how th e a pp ell ati on s ge t fixed.

Th ere is a gr ea t s ensitivi ty on the pa rt of ma ny of t he Commis sioners —I need no t nam e the m. You know some of yo ur colleagu es, you 

know7

 some o f the othe r people from the pa st—to make sure t h at wha t 

w’e d o is n ot j us t sim ply to see papers passed, bu t t o see t hat justice is 

done.

Mr. Kastenmeier. T hi s is the la st question I have.

Are you conside ring in ad dit ion to caseloads any juris diction, in 

ter ms of Fe de ral ap pe lla te system, the cost of lit igation, the cost of 

pu rsui ng matters thro ug h appeal fo r a litigan t ?

Mr. Levin. We h ave h it it tang en tia lly a numb er of tim es. We were 

dee ply involved in circuit rea linem ent an d ha d occasion to con sider 

cost fac tors dictate d b y g eogra phica l fac tor s. In add ition to pay ing the 

cost of th e law ye r’s plane ticket, th e client may hav e to pav fo r the 

law ye r’s time w’hile he is ridi ng on th e plane. We have hit it in connection with den ial of ora l arg um en t, we hav e hit it in connection 

with othe r devices. We have not so fa r att em pted t o addre ss ourselves 

dir ectly t o cost a s such. But i t is v ery m uch invo lved in the im pa ct on 

th e litiga nt on a nu mber of these othe r thi ngs. We a re very concerne d 

wi th th at . I t comes up directl y in connection, let us say, wi th pu ttin g 

all p aten t a ppeals in one c ou rt— pan els of the co urt certainly ma y have 

to trav el aro un d th e country . Other wise, it is un fa ir to th e litigan t. 

T hat is th e way so fa r th at th at ha s been com ing up.

Mr. K astenmeier. I agree. I th in k t hat it is tan ge ntial to y ou r w’ork. 

B ut obviously, th e cost of seeking justice in th e Fe de ral ap pe lla te 

co urt system is a fa ct or in determining w hethe r ju stice is had or denied .
36

Mr. Levin. The Commission has been sensitive to that. There is another cost in terms of Government that comes up. One important official in the Department of Justice tells me in civil litigation in the 

ninth circuit that invariably they have to file a supplemental brief, 

because the delay is such that from the time they have submitted their 

brief until the time you present your argument, the law is changed. 

This is a cost.

Mr. Kastenmeier. Professor Levin, both Congressman Cohen and 

myself and members of the committee who could not be here today 

thank you very much for your presentation. The Commission has a 

rath er difficult task. We will be appreciative of the additional materials th at you will be furnishing us.

Until the time when th is subcommittee will meet in markup session 

on this and other bills, th e committee stands adjourned.

[Whereupon, at 12:05 p.m., the subcommittee was adjourned, subject to the call of the Chair.]

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