C OM M I S S ION ON

STRUCTURAL

ALTERNATIVES

FOR T H E

F E DE R A L C OU RT S

OF A PPE A L S

Tentative Draft Report

O C TOB ER 19 9 8
COM MISSION ON STRUCTUR A L A LTER NATI V ES

FOR THE FEDER A L COURTS OF A PPEA L S

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20544

Tel: 202-208-5055

Fax: 202-208-5102

Website: http://app.comm.uscourts.gov

Internet address:

Appellate_Commission_Comments@ao.uscourts.gov

Internal Judicial Branch cc:Mail address:

Appellate Commission Comments

Justice Byron R. White, Chair

N. Lee Cooper, Vice Chair

Judge Gilbert S. Merritt

Judge Pamela Ann Rymer

Judge William D. Browning

Daniel J. Meador, Executive Director
NOTICE

In these pages the Commission presents a tentative draft of its report recommending to the Congress and the President “such changes in circuit boundaries

or structure as may be appropriate for the expeditious and effective disposition

of the caseload of the Federal Courts of Appeals, consistent with fundamental

concepts of fairness and due process,” as required by statute. Judges, other public

officials, private attorneys, and others have been generous in the time they have

devoted to producing materials and commentary for the Commission, which it

has carefully considered.

The Commission is issuing this draft of its report for public comment and

invites suggestions and advice from members of the bench and bar and from

other interested parties. Comments should not be repetitious of those already

submitted and should address matters not already included in submissions to the

Commission. (Submissions are available on the Commission’s website.)

Comments should be as brief as possible and submitted as soon as convenient

and in any event not later than November 6, 1998, in order that they may be

considered in the preparation of the Commission’s final report, which must, by

the terms of the statute, be submitted to the Congress and the President by

December 19, 1998.

Comments can be sent to the Commission using one of the following means:

(1) by electronic mail through the internet to the following address —

Appellate_Commission_Comments@ao.uscourts.gov; (2) by electronic mail to

the following address for those within the judicial branch using cc:Mail —

Appellate Commission Comments; or, (3) by mail or fax to the Commission on

Structural Alternatives for the Federal Courts of Appeals, Thurgood Marshall

Federal Judiciary Building, One Columbus Circle, N.E., Washington, DC 20544

(fax: 202-208-5102). For those using regular mail or fax, the Commission asks

that if feasible a copy of the comments also be submitted on a computer diskette

in a format readable by a standard word processing program. Further instructions about sending submissions by electronic mail are available on the

Commission’s website at http//app.comm.uscourts.gov.

Comments will be placed on the Commission’s website.

Byron R. White

Chair

October 7, 1998

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

iii

CONTENTS

Foreword and Summary, vii

1. The Commission: Creation, Mission, and Activities, 1

A. Background, 1

B. Commission Structure and Activities, 1

1. Creation and composition, 1

2. Activities in pursuit of statutory charge, 2

a. Hearings and other means of receiving information, 2

b. Research, 3

c. Draft report and final report, 4

C. Budget, 4

1. Sources of information and analysis, 5

2. Jurisdiction and structure, 5

3. Considerations of judicial independence and

judicial administration, 6

2. The Federal Appellate System: Past and Present, 7

A. Creating the Geographic Design of the System, 7

B. Establishing the Appellate System, 10

C. Evolution of the Supreme Court’s Discretionary Docket, 11

D. Transformation of the Courts of Appeals and their Work, 12

1. Growth in judgeships and workload, 13

2. Responses to growth in judgeships and workload, 17

a. Creating new circuits and courts of appeals, 17

b. New procedures and supporting personnel, 21

E. The Emergence of the Circuit as an Entity of Federal Judicial

Administration, 24

3. The Ninth Circuit and Its Court of Appeals, 27

A. The Circuit and Its Court of Appeals, 28

B. The Debate over Splitting the Circuit and Its Court of Appeals, 31

1. Background, 31

2. The arguments summarized, 32

a. The ability of the court of appeals to function effectively and

timely, 32

b. The ability of the court to produce a coherent body of circuit

law, 33

c. The ability of the court to perform its en banc function

effectively, 33

d. The implications of the size of the court’s geographic

jurisdiction for federalism, regionalism, and effective court

operations, 34
Contents

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

iv

e. The relationship between circuit reconfiguration and inter-circuit

conflicts, 34

f. The practicality of dividing the circuit, 35

g. The administrative efficacy of the Ninth Circuit, 35

3. Views of the court’s judges, its consumers, and knowledgeable

observers, 36

C. Criteria Informing the Debate, 37

D. A Divisional Arrangement for the Ninth Circuit

Court of Appeals, 39

1. The recommendation for a divisional arrangement, 39

a. Regional divisions for the Ninth Circuit court of appeals: their

composition and operation, 39

b. Circuit division for conflict correction, to resolve interdivisional

conflicts, 41

c. Appellate procedure and administration, 42

2. Reasons for the divisional arrangement, 42

a. Smaller decisional units will promote consistency and

predictability, 42

b. More effective en banc procedures and the Circuit Division will

ensure clearer, more consistent circuit law, 43

c. The proposed divisional structure will rationalize the

regionalizing and federalizing functions of appellate

courts, 44

3. Differences between this proposal and the previous divisional

experiment, 45

E. Realignment of the Ninth Circuit into Two or More Newly Constituted

Circuits, 46

1. Option A—Variation on the “classical split,” 46

2. Option B—“Classical split” plus realignment of Tenth Circuit to

reduce size of new Ninth, 48

3. Option C—Division of California between two circuits to reduce

size of new Ninth, 49

F. Conclusion, 50

4. Structural Options for the Courts of Appeals, 51

A. Divisional Organization of Courts of Appeals, 52

B. Two-Judge Panels, 53

C. District Court Appellate Panels (DCAP), 55

5. Appellate Jurisdiction, 57

A. Bankruptcy Appeals, 57

1. Current bankruptcy appellate structure and asserted

problems, 57

2. Effect of direct bankruptcy appeals on the courts of appeals, 58

3. Possible alternatives for handling bankruptcy appeals, 59
Contents

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

v

B. General Discretionary Review in the Courts of Appeals, 61

C. The Federal Circuit and Its Potential, 63

1. Tax appeals, 64

2. Copyright cases, 64

3. Social Security appeals, 65

6. Recapitulation and Concluding Observations, 66

Statement of Judge Merritt, Dissenting in Part on Federal Jurisdiction, Joined by

Justice White (with attachment), 68

Appendices

A. The Commission Statute, 78

B. Members of the Commission, 81

C. Proposed Statutes to Implement Commission Recommendations, 82

Figures

2-A Circuit Boundaries in 1802, 8

2-B Circuit Boundaries in 1855, 9

2-C Circuit Boundaries in 1866, 10

2-D Appeals Filed and Appeals per Circuit Judgeship, 1960-1997, 15

2-E Circuit Boundaries in 1929, 19

2-F Circuit Boundaries in 1998, 26

3-A Boundaries of Proposed Ninth Circuit Divisions, 40

3-B Boundaries of Reconfigured Circuits—Option A, 47

3-C Boundaries of Reconfigured Circuits—Option B, 48

3-D Boundaries of Reconfigured Circuits—Option C, 49

Tables

2-1 Supreme Court Review of Federal Courts of Appeals Decisions, 12

2-2 Summary of Authorized Circuit Judgeships for Selected Years,

1892-1990, 13

2-3 Authorized District and Circuit Judgeships and Filings

per Judgeship, 14

2-4 Appeal Types Filed in the Regional Courts of Appeals,

1960-1997, 15

2-5 Estimated Percentage of Appeals Filed by Unrepresented Litigants,

1950-1997, 16

2-6 Percentage of Cases Decided on the Merits in which Oral Argument

was Heard in the Regional Courts of Appeals, FY 1997, 21

2-7 Percentage of Cases Decided on the Merits that Resulted in a

Published Opinion in the Regional Courts of Appeals, FY 1997, 22

2-8 Circuit Population, Size, Composition, Number of Judgeships, 26

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

vii

Foreword and Summary

Congress created this Commission on Structural Alternatives for the Federal

Courts of Appeals in late 1997. It did so in the wake of controversy over whether

the court of appeals for the Ninth Circuit—the largest federal court of appeals—

has grown to a point that it cannot function effectively and whether, in response,

Congress should split the Ninth Circuit to create two or more smaller courts.

The statute directed the Commission to study the present circuit configuration

and the structure and alignment of the courts of appeals, with particular reference to the Ninth Circuit. It further directed it to submit by December 19,

1998, recommendations to the President and Congress on changes in circuit

boundaries or structure as may be appropriate for the expeditious and effective

disposition of the appellate caseload, consistent with fundamental concepts of

fairness and due process.

We have, as directed, given particular attention to the Ninth Circuit and its

court of appeals but have done so as part of our examination of the nationwide

system of appellate courts. The thirteen United States courts of appeals are in

practical effect courts of last resort: the Supreme Court reviews but a small fraction of their decisions. If we are to have a rule of law, those courts must function

effectively, rendering decisions promptly and consistently and through a process

that accords to every case the deliberative attention of the judges. Those courts

are operating under the pressure of caseload increases that have transformed

them into different judicial entities from what they were at mid-century. The

pressures continue, and there is little likelihood that caseloads and work burdens

on the judges will lessen in the years ahead.

Fundamental to the Commission’s analysis is the distinction between a circuit

as a territorial-administrative unit of the federal judiciary and the circuit’s court

of appeals, an adjudicative body, the highest of numerous courts in each circuit.

Our study has revealed that the administration of the Ninth Circuit is, at the

least, on a par with that of other circuits, and innovative in many respects. We

see no good reason to split the circuit solely out of concern for its size or administration.

Neither do we see a need to split the Ninth Circuit in order to solve problems

having to do with the consistency, predictability and coherence of circuit law.

These are adjudicative attributes of its court of appeals, not administrative functions of the circuit. Those who believe these are important values that are best

achieved in a decisional unit that is smaller than the number of judgeships now

authorized or needed in the future for the Ninth Circuit Court of Appeals have

argued that the circuit should be split because splitting circuits has been the way

that courts of appeals, deemed too large, have been reduced to optimal levels in

the past.

But to split the Ninth Circuit in an effort to correct these and other conditions would deprive the courts now in the Ninth Circuit of the administrative
Foreword & Summary

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

viii

advantages afforded by the present circuit configuration and deprive the West

and the Pacific seaboard of a means for maintaining uniform federal law in that

area. We conclude that such a step should not be taken unless there is no other

means of responding to perceived problems in the court of appeals and of creating an effective adjudicative structure within the existing circuit boundaries.

We believe there is an effective alternative for the Ninth Circuit Court of Appeals, that should also be made available to all courts of appeals as they grow,

through the organization of the court into divisions, thereby creating smaller

decisional units.

Therefore, we recommend that Congress enact a statute organizing the Ninth

Circuit Court of Appeals into three regionally based adjudicative divisions—the

Northern, Middle, and Southern—each division with a majority of its judges

resident in its region, and each having exclusive jurisdiction over appeals from

the judicial districts within its region (Chap. 3, sec. D). Each division would

function as a semi-autonomous decisional unit. To resolve conflicts that might

develop between regional divisions, we recommend a Circuit Division for conflict

correction, which would replace the current limited en banc system. With from

seven to eleven judges serving together on each regional division over an extended period of time, this plan would increase the consistency and coherence

of the law, maximize the likelihood of genuine collegiality, establish an effective

procedure for maintaining uniform decisional law within the circuit, and relate

the appellate forum more closely to the region it serves. The circuit would remain intact as an administrative unit, functioning as it now does.

If Congress were to reject our recommendation to restructure the court of

appeals and decide instead to split the circuit, the challenge of finding a workable

solution is daunting. We examined over a dozen proposals and found each without merit. We describe the only plans that are even arguable in Chap. 3, Sec. E,

but each is flawed and we endorse none of them.

Mindful of the Commission’s charge relating to the federal appellate system

nationwide, we have developed the concept of divisional organization not only

as a solution to the immediate Ninth Circuit situation but also as an alternative

to circuit splitting for all other courts of appeals as their size increases. Many of

the reasons offered for splitting the Ninth Circuit would counsel the immediate

or near-term splitting of several other circuits as well. Circuit splitting is not a

feasible long-range means of creating smaller appellate courts, however. We agree

with our predecessor body, the Commission on Revision of the Federal Court

Appellate System, which in 1973 concluded that no regional circuit should consist

of fewer than three states. Applying that principle, there are now eight circuits

(not counting the D.C. Circuit) that cannot be split. Yet the courts of appeals

in those circuits are likely to continue to expand.

Enactment of our recommended divisional organization of the Ninth Circuit

Court of Appeals would create a model that could be copied or adapted in later
Foreword & Summary

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

ix

years by courts of appeals in other circuits. With that in view, we also recommend

that Congress enact a statute of general applicability authorizing any court of

appeals with more than thirteen judgeships to organize itself into adjudicative

divisions. The court would have an option in this regard until its membership

exceeds seventeen judgeships, at which time it would be required to adopt a

divisional plan (Chap. 4, sec. A). We recommend a statute that would leave

much leeway to each court in designing a divisional structure, and there are

various ways that can be done. The Ninth Circuit regional plan that we describe

here is only one model.

Apart from authorizing and requiring a divisional structure in the large appellate courts, Congress can best equip those courts to cope with future, unforeseen conditions by according them a flexibility they do not now have. Rather

than impose a fixed set of structures or procedures for all courts of appeals (beyond

the divisional organization for large courts), we recommend statutes that would

give the courts of appeals and the circuit councils a flexibility, within a prescribed

framework, to shape structure and process to fit the particular needs of each

court as they emerge over time. Specifically, we recommend that Congress authorize each court of appeals to decide some types of selected cases using panels

of two rather than three judges (Chap. 4, sec. B) and authorize circuits to establish district court appellate panels (DCAP) to provide appellate review in

designated categories of cases with panels of two district judges and one circuit

judge, with discretionary review available thereafter in the court of appeals (Chap.

4, sec. C).

Collectively, these measures, if implemented, should equip the courts of appeals

with a structure and sufficient flexibility to accommodate continued caseload

growth into the indefinite future, while maintaining the quality of the appellate

process and delivering consistent decisions - assuming, of course, that the system

has the necessary number of judges and other resources.

Given its statutory charge, a majority of the Commission does not address

overall federal jurisdiction. We did, however, consider the structural implications

of some specific aspects of appellate jurisdiction. We recommend that Congress

not authorize direct court of appeals review of bankruptcy decisions, but rather

consider several specific alternatives described in Chap. 5, sec. A. We also analyze

the proposal that court of appeals jurisdiction be made generally discretionary

but make no specific recommendation (Chap. 5, sec. B), and discuss the place

of the U.S. Court of Appeals for the Federal Circuit in the federal appellate

system, indicating certain categories of cases that have been suggested for that

appellate resource, again without making any specific recommendations (Chap.

5, sec. C).

We submit this report to the President and Congress to discharge our statutory responsibility, and to provide alternative structures for the federal courts of

appeals that we believe will further the administration of justice in our country

for years to come.

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

1

Chapter 1

The Commission:

Creation, Mission, and Activities

Congress created the Commission on Structural Alternatives for the Federal Courts

of Appeals in Pub. L. No. 105-119, signed by the President on November 26,

1997. Appendix A contains the text of the statute. This is the final report that

section (a)(4) of the statute directed the Commission to submit to the President

and Congress within a year after the appointment of a quorum of Commission

members.

A. Background

Congress created the Commission in the wake of disagreement within the

Congress and the country over the desirability of splitting the Ninth Circuit into

two or more separate circuits, and if it were to be split, how best to do so. In

1973, the Commission on Revision of the Federal Court Appellate System recommended splitting both the Fifth and the Ninth Circuits.1 More recent proposals to split the Ninth Circuit have been introduced in Congress, and at the

same time, others proposed instead creation of a study commission.2 In 1997,

the Senate approved a bill that would have split the Ninth Circuit, but the House

of Representatives did not concur. The result was passage of the Act creating this

Commission.

B. Commission Structure and Activities

1. Creation and composition

On December 19, 1997, Chief Justice William H. Rehnquist appointed the

Commission’s five members pursuant to the statute’s directive that he do so

within thirty days of its enactment.3 The Chief Justice appointed as commissioners Retired Supreme Court Justice Byron R. White, Judge Gilbert S. Merritt of

the U.S. Court of Appeals for the Sixth Circuit, Judge Pamela Ann Rymer of the

U.S. Court of Appeals for the Ninth Circuit, Judge William D. Browning of the

District of Arizona, and N. Lee Cooper, Esq., a member of the Alabama bar and

past president of the American Bar Association. Brief biographies of the Commission members are in Appendix B.

1. Commission on Revision of the Federal Court Appellate System, The Geographical Boundaries of the Several Judicial Circuits: Recommendations for Change (1973).

2. See, e.g., S. Rep. 104-197 at 16–17.

3. The statute is silent on the branch of government, if any, of which the Commission is a part.
The Commission: Creation, Mission, and Activities

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

2

The statute directed the Commission to elect “a chair and vice chair.” At its

first meeting, on January 16, 1998, the Commission elected Justice White as

chair and Mr. Cooper as vice chair. The statute also authorized the Commission

to appoint an Executive Director, and the Commission at its first meeting voted

to ask Professor Daniel J. Meador to assume that post, an assignment he accepted. Pursuant to another provision in the statute, the Administrative Office

of the U.S. Courts (AO) provided the Commission “administrative services”

and the Federal Judicial Center (FJC) provided it “research services.” The only

other Commission staff consisted of one full-time secretary in the Commission

office and a research assistant at the University of Virginia Law School. In light

of the small size and limited authorized life of the Commission, it decided not

to create formal advisory groups or subgroups or to retain officially designated

reporters, as some earlier commissions have done.

The AO created an office for the Commission in the Thurgood Marshall

Federal Judiciary Building, and the AO’s Office of Public Affairs provided its

services to the Commission.

2. Activities in pursuit of statutory charge

Although the need to study the Ninth Circuit was the major impetus for the

Commission’s creation, the statute charged it with a broader task. First, Congress directed it to “study the present division of the United States into the

several judicial circuits” and “study the structure and alignment of the Federal

Courts of Appeals system, with particular reference to the Ninth Circuit.”4

Second, Congress told the Commission to “report to the President and the

Congress its recommendations for such changes in circuit boundaries or structure as may be appropriate for the expeditious and effective disposition of the

caseload of the Federal Courts of Appeals, consistent with fundamental concepts

of fairness and due process.”5

The statute directed the Commission to conduct its studies during the ten

months following its appointment and to file its report with the President and

Congress two months later.6

a. Hearings and other means of receiving information

Pursuant to its study function, the Commission, in its first month, reviewed

previous studies of the appellate system, workload information developed by the

FJC, and some other statistical data provided by the AO. At its second meeting,

4. Sec. 305(a)(1)(B)(i, ii), Pub. L. No. 105-119, 111 Stat. 2491.

5. Sec. 305(a)(1)(B)(iii), Pub. L. No. 105-119, 111 Stat. 2491. Our statutory recommendations, throughout the report, are directed to the President and the Congress, although for convenience the text may often say only “We recommend that Congress” or words to that effect.

6. Sec. 305(a)(6), Pub. L. No. 105-119, 111 Stat. 2491.
The Commission: Creation, Mission, and Activities

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

3

on February 17, the Commission scheduled and announced nationwide through

correspondence and press releases six public hearings, starting in Atlanta on March

23, and subsequently in Dallas, Chicago, New York, Seattle, and finally, on May 29,

in San Francisco. Pursuant to the statute,7 at least two commissioners were present

at each hearing. Tape recordings of the hearings were provided to Commissioners not able to be present. A total of eighty-nine witnesses testified at the six

hearings. Sixty-four of those appeared at the Seattle and San Francisco hearings.

The Commission also invited anyone not testifying to submit a written statement, and received ninety-two such statements. The AO created a website for

the Commission (http://app.comm.uscourts.gov) and placed on it verbatim transcripts of the hearings and statements of witnesses who testified or submitted

written comments in lieu of testifying. The Executive Director wrote to each

judge of the courts of appeals closest to the respective hearing sites, informing

them of the hearing and inviting their testimony. For the two hearings in the

Ninth Circuit, he likewise wrote to all chief district judges in the circuit and to

all members of Congress from states within the circuit. Justice White wrote to

each member of the Senate and House Judiciary Committees, to each Supreme

Court Justice, and to each circuit chief judge, inviting comments and suggestions regarding the Commission’s work.

Because the Commission held no public hearing in Washington, D.C., the

Chair and the Executive Director met with judges of the U.S. Court of Appeals

for the Federal Circuit and the U.S. Court of Appeals for the District of Columbia Circuit to obtain their views. For a similar purpose, the entire Commission

met with representatives from the Department of Justice and the White House

Counsel’s office. Early in its life, the Commission also convened a meeting with

a small number of law professors in order to learn more about pertinent research

and writings on the federal appellate system. At the request of the Executive

Committee of the Judicial Conference of the United States, the Commission

gave status reports on its work to the Conference through the Conference’s

Committees on Court Administration and Case Management, and on FederalState Jurisdiction.

b. Research

Upon appointment, Commissioners and the Executive Director presented the

FJC with preliminary discrete research requests, most of which could be answered by assembling information already available. At its April 9 meeting, the

Commission endorsed the outlines of a limited research agenda to gather additional information about areas of analysis the Commission identified as high

priorities for its work. Pursuant to this and later requests, FJC personnel prepared numerous special analyses of appellate workload and related information

for the Commission’s use, only a small part of which is set out in this report.

7. Sec. 305(a)(2)(E), Pub. L. No. 105-119, 111 Stat. 2491.
The Commission: Creation, Mission, and Activities

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

4

In consultation with the Commission, the FJC also prepared and administered separate surveys of circuit and district judges, both active and senior.

Completed surveys were received from 207 circuit judges (an 85% response rate)

and 726 district judges (an 81% response rate). A third survey was sent to a

national sample of more than 5800 lawyers who had handled appeals in the

federal courts in the preceding twelve months. Completed surveys were received

from 2,740 lawyers (for a response rate of 47%). The responses from all three

surveys form an important part of the Commission’s analysis.

To facilitate meaningful comparisons of the courts of appeals, the FJC also

prepared profiles of the case management procedures that each court of appeals

uses; differences in procedures can affect the comparability of statistical information about each court’s performance. Justice White wrote to the chief circuit

judges to enlist their cooperation and that of their courts and court staffs in the

development of these profiles.

The AO provided the Commission with additional statistical reports on the

work of the courts of appeals and with other information concerning the federal

judiciary.

c. Draft report and final report

The Commission determined at its April 9 meeting to prepare and disseminate

a draft report of its tentative recommendations, so as to receive public comment

before submitting its final report. On October 7, 1998, the Commission made

the draft report available on its website. Written copies were distributed to almost 1,000 interested parties, including all who testified or submitted written

statements to the Commission. The Commission invited written comments on

the tentative report, to be received by November 6, 1998. It received ______

comments.

C. Budget

The statute authorized an appropriation of $900,000 for Commission activities,8 which amount Congress appropriated in the same statute creating the Commission. At the date of this final report, the Commission estimates it will incur

total direct costs of ______ chargeable to its appropriation.

***

Before proceeding with our analysis and the development of our recommendations concerning the federal appellate system, we think it appropriate to state

several matters that have guided and influenced our deliberations.

8. Sec. 305(b), Pub. L. No. 105-119, 111 Stat. 2491.
The Commission: Creation, Mission, and Activities

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

5

1. Sources of information and analysis

We have described above and in Chapter 3 the different means by which we have

gone about our work. Throughout that work, we have benefited also from the

analyses in previous studies of the federal appellate courts specifically or the federal

judicial system generally. These include the Judicial Conference’s 1995 Long

Range Plan for the Federal Courts, and the 1990 Report of the Federal Courts

Study Committee. We are particularly in the debt of the Commission on Revision

of the Federal Court Appellate System, chaired by Senator Roman Hruska (thus

informally known as the Hruska Commission). Like this Commission, the Hruska

Commission had as a major concern the Ninth Circuit. That Commission submitted its first report, The Geographical Boundaries of the Several Judicial Circuits: Recommendations for Change, exactly twenty-five years ago. That report

provided valuable analysis and criteria that have informed our work and sharpened our perspective. However, during the quarter century since that report,

vast changes have occurred in the federal appellate system and particularly the

Ninth Circuit.

We have also given special attention to the views of judges in the Ninth Circuit

and elsewhere. In our system, judges are both producers and consumers of the

products of the courts of appeals, and they have unique insights from both

perspectives. Reports of their experiences have been an important source of

information for the Commission, as have their opinions about proposed structural alternatives for the federal appellate system. At the same time, the Commission does not regard the preferences of judges as dispositive, and has not

treated them as such in developing its recommendations.

2. Jurisdiction and structure

Structure and circuit alignment in the federal appellate system are profoundly

affected by the volume of appeals. That volume, in turn, is significantly driven

by the jurisdiction of the federal district courts. The Commission recognizes that

significant changes need to be made in the jurisdiction of the federal district

courts, but because of our statutory charge, the majority of the Commission

makes no recommendations in that regard. (On this point, however, see the

dissenting statement of Judge Merritt, joined by Justice White, following Chapter 6.) But we do note that restraint in conferring new jurisdiction on the federal

courts, particularly in areas traditionally covered by state law and served by state

courts, should not be overlooked. Maintaining an appropriate balance of federalstate jurisdiction is an important way to keep the federal caseload at a level that

enables the federal courts, including the courts of appeals, to perform their core

constitutional functions within our federal system. Nor should the possibility of

curtailing diversity of citizenship jurisdiction be overlooked, at least to the extent

that it has outlived its historic justifications.
The Commission: Creation, Mission, and Activities

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

6

3. Considerations of judicial independence and

judicial administration

There is one principle that we regard as undebatable: It is wrong to realign

circuits (or not realign them), and to restructure courts (or leave them alone)

because of particular judicial decisions or particular judges. This rule must be

faithfully honored, for the independence of the judiciary is of constitutional

dimension and requires no less.

In conducting our analysis and developing our recommendations, we have

proceeded on the premise that decisions about judicial structure and circuit

alignment should be based on objective and principled considerations of sound

judicial administration. Moreover, such decisions should be made with a longrange perspective and not be motivated by short-range, temporary circumstances.

Views about the merits or correctness of specific judicial decisions or about

individual judges presently serving on a court are transient matters and are inappropriate bases for constructing long-range institutional arrangements.
The Federal Appellate System: Past & Present

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

7

Chapter 2

The Federal Appellate System: Past and Present

This chapter sketches the history and evolution of “the present division of the

United States into the several judicial circuits” and “the structure and alignment

of the Federal Court of Appeals system.”9 The number, boundaries, and functions of judicial circuits have changed over time, as have the functions and

operations of those circuits and the appellate courts in each.

A. Creating the Geographic Design of the System

The Judiciary Act of 178910 implemented the Constitutional provision that “The

judicial power of the United States shall be vested in one Supreme Court, and

in such inferior courts as the Congress shall from time to time ordain and establish.”11 It created a federal judicial district and a one-judge district court in

each of the then-eleven states, largely for admiralty, forfeitures and penalties, and

minor federal crimes and U.S. plaintiff cases. The Act arrayed the districts into

an eastern, a middle, and a southern circuit. Circuit courts sat twice each year

in each district of the respective circuits to hear diversity of citizenship cases,

major federal crimes, and larger U.S. plaintiff cases. They also had a limited

appellate function for some of the larger civil and admiralty cases in the district

courts.12

Rather than create separate judgeships for the system’s major trial courts,

Congress directed Supreme Court justices to travel around each circuit to convene circuit courts with the respective district judges. This approach saved the

money a separate corps of judges would require, exposed the justices to the state

laws and legal practices that affected the Supreme Court docket, and promoted

familiarity with the government in the country’s far reaches.

The circuits, thus, were a means of allocating the trial work of Supreme Court

justices. Each circuit was served by two of the six justices. By 1802, Congress

had realigned the three circuits into six (see Figure 2-A), each served by one

justice. Then, as states joined the Union, Congress created new circuits and

gradually enlarged the Supreme Court to provide justices for their circuit courts.

9. Act of Nov. 26, 1997, Pub. L. No. 105-119, § 305 (a)(1)(b)(i, ii), 111 Stat. 2491. The maps

and much of the analysis in this chapter are drawn from Russell Wheeler & Cynthia Harrison,

Creating the Federal Judicial System (Federal Judicial Center 2d ed. 1994), which contains additional maps chronicling the evolution of the federal appellate system. (This chapter omits many

of the specific statutory and source materials, although they may be found in Creating the Federal

Judicial System and secondary sources cited there.)

10. Act of Sept. 24, 1789, ch. 20, § 1, 1 Stat. 73.

11. U.S. Const. art. III, § 1.

12. Act of Sept. 24, 1789, ch. 20, §§ 21 & 22, 1 Stat. 83–84.
The Federal Appellate System: Past & Present

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

8

Figure 2-A

The Circuits in 1802

District of Maine

Dist. of Ky.

W.D.

Tenn

E.D.

Tenn. District of Cape Fear

District of Pamptico

District of Albemarle

6

Territories 4

Indian Lands

3

5

1

Territories

2

Between 1789 and 1866, Congress realigned the circuits thirteen times, in

each case to adjust the Supreme Court justices’ trial court assignments. The

number of circuits reached its nineteenth century high point in 1855 (see Figure

2-B), when Congress added to the nine numbered circuits a separate California

circuit for the large number of land claims stemming from the gold rush.13 As

a harbinger of future judgeship arrangements, Congress also created the position

of circuit judge for the California circuit. It did so in part because as the Court’s

docket grew, the Justices spent less time riding circuit.

President Lincoln’s 1861 state of the union message reflected an emerging

consensus when it warned that “the country has outgrown our present judicial

system.”14 The 1855 configuration shown in Figure 2-B, for example, left outside of the circuit system districts in Arkansas, Florida, Iowa, Texas, and Wisconsin. Lincoln knew that the circuit system could not accommodate the western

territories that would become states without making the Supreme Court “altogether too numerous for a judicial body of any sort.” Equally unacceptable was

leaving some states out of the circuit system.

13. Act of Mar. 2, 1855, 10 Stat. 631.

14. Message to Congress (Dec. 3, 1861), in 5 The Works of Abraham Lincoln 41–42 (R. Basler

ed., 1953).
The Federal Appellate System: Past & Present

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

9

Figure 2-B

The Circuits in 1855

D.Wis.

D. Iowa

D.Texas

N.D.

Fla.

S.D.

Fla.

W.D.

Ark.

E.D.

Ark.

Cal.

Circuit

Territories

5

5

9 6

4

7

3

8

2

1

A partial solution was in place by the end of the decade. Lincoln had proposed

fixing the Supreme Court at a “convenient number,” irrespective of the number

of circuits, and then dividing the country “into circuits of convenient size,” to

be served by the Supreme Court justices or by separate circuit judges, or both.

Although Congress created a tenth seat on the Court in 1863 to accommodate

the reconfigured tenth circuit of California and Oregon,15 it soon undid that

step, reducing the number of justices from ten to eight and then, by 1870, fixed

the number at nine, where it has been ever since.16 Also, in 1869 Congress

created nine circuit judgeships—one in each circuit—because the Supreme Court

justices could attend only a fraction of the circuit court sessions. Finally, an 1866

statute17 redrew most of the circuit boundaries (see Figure 2-C), creating new

boundaries that are largely still in existence. Since 1866, Congress has accommodated new states by adding them to existing circuits rather than creating new

circuits.

15. Act of Mar. 3, 1863, 12 Stat. 794.

16. Act of Apr. 10, 1869, 16 Stat. 44.

17. Act of July 23, 1866, 14 Stat. 209.
The Federal Appellate System: Past & Present

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

10

Figure 2-C

The Circuits in 1866

Territories

6 4

3 9

8

5

7

2

1

B. Establishing the Appellate System

Although the system’s geographic contours were largely set by 1866, it would

be more than two decades before Congress created separate intermediate appellate courts for each circuit. A near-breakdown of the judicial system brought that

design into existence.

After the Civil War, statutes promoting economic growth and enforcing the

Reconstruction Amendments fueled a vast expansion of judicial business. The

Judiciary Act of 187518 established a general federal question jurisdiction for

cases involving $500 or more and made the federal trial courts “the primary and

powerful reliances for vindicating every right given by the Constitution, the

laws, and treaties of the United States.”19

This large increase in work, almost no increase in judgeships, and a structure

designed for a different era, resulted in “the nadir of federal judicial administration.”20 By the 1880s, district judges sitting alone handled close to 90% of the

circuit court caseload and often sat on appeals from their own decisions.21

18. Act of Mar. 3, 1875, 18 Stat 470.

19. Felix Frankfurter & James Landis, The Business of the Supreme Court 64–65 (1928).

20. Paul M. Bator et al., Hart & Wechsler’s The Federal Courts and the Federal System 37

(3d ed. 1988).

21. Frankfurter & Landis, supra note 19, at 79.
The Federal Appellate System: Past & Present

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

11

Appellate review was statutorily foreclosed in many cases—almost all criminal

cases and in all civil cases involving less than $5,000.22 Even so, the Supreme

Court’s docket grew steeply. From 310 cases in 1860, the Court’s docket increased to 1,816 in 1890.23 The Court, obliged to decide almost all cases brought

to it, fell years behind. The search for a solution was compounded by conflict

between Northern and Eastern interests that wanted a strengthened federal court

system and Southern and Western interests that did not. Congress considered

numerous proposals to expand federal appellate capacity, such as an intermediate

court of appeals and an enlarged Supreme Court, sitting in divisions.

The culmination of this controversy was the Circuit Court of Appeals Act of

1891,24 fashioned by Senate Judiciary Committee chairman William Evarts of

New York. It created a new court—the circuit court of appeals—in each of the

nine circuits and shifted to these new courts much of the Supreme Court’s

appellate caseload. In doing so, it made the federal district courts the system’s

primary trial courts.25 As a result of the Act, circuit boundaries no longer allocated Supreme Court justices’ trial court duties; rather circuit boundaries defined

the territorial reach of appellate court jurisdiction.

Each court of appeals consisted of the circuit judgeship created in 1869 and

another created by the 1891 Act, with either a district judge or a Supreme Court

justice as the third judge. It provided direct Supreme Court review as of right

from the district courts in some categories of cases and from circuit courts of

appeals in others. The Act routed all other cases—notably criminal, diversity,

admiralty, revenue, and patent cases—to the courts of appeals for final disposition. The appellate court could certify questions to the Supreme Court, or the

Supreme Court could grant review by certiorari. The Act’s effect on the Supreme Court was immediate—filings dropped from 623 in 1890 to 275 in 1892.26

C. Evolution of the Supreme Court’s Discretionary

Docket

Twentieth-century changes in the appellate system have in the main been functional, not structural. One such change occurred in the first half of the century:

the Supreme Court’s transformation from a law-declaring and error-correcting

court into a court almost exclusively for law declaring. Under the Evarts Act, the

forum for direct review of trial level decisions shifted from the Supreme Court

to new circuit courts of appeals, and the 1925 “Judges’ Bill”27 significantly

22. Act of Feb. 16, 1875, 18 Stat. 315.

23. Frankfurter & Landis, supra note 19, at 101–02.

24. Act of Mar. 3, 1891, 26 Stat 826.

25. The old circuit courts were abolished, albeit not until 1911. Act of Mar. 3, 1911, § 301,

36 Stat. 1087, 1169.

26. Frankfurter & Landis, supra note 19, at 102.

27. Act of Feb. 13, 1925, 43 Stat. 936.
The Federal Appellate System: Past & Present

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

12

enhanced the Court’s discretionary jurisdiction through the writ of certiorari.

The statute thus helped the Court to serve the objectives that Chief Justice Taft

enunciated in arguing for its passage: “expounding and stabilizing principles of

law . . . , passing upon constitutional questions and other important questions

of law for the public benefit [and preserving] uniformity of decision among the

intermediate courts of appeals.”28 The culmination of this extension of discretionary jurisdiction came in 1988, when Congress removed almost all vestiges

of the Court’s obligatory jurisdiction.29

Table 2-1 shows that the Court’s plenary docket has remained relatively steady,

but courts of appeals’ merits dispositions have grown by 1,000%. The result is

a greatly reduced percentage of courts of appeals decisions reviewed by the

Supreme Court. The Court has been able to develop as a national law-declaring

court, while the courts of appeals have become the only federal error-correcting

courts, for practical purposes, the federal appellate courts of last resort.

Table 2-1

Supreme Court Review of Federal Courts of Appeals Decisions30

Percentage of Merits

Supreme Court Plenary Court of Appeals Decisions Given

Decisions in Cases Decisions on Supreme Court

Year from Courts of Appeals the Merits Plenary Review

1950 70 2,355 3.0%

1978 101 8,850 1.1%

1984 124 14,474 0.9%

1997 76 26,566 0.3%

D. Transformation of the Courts of Appeals and Their

Work

The courts of appeals of 1998 are very different bodies from what they were

100 years ago. Changes in the nature and size of their workloads required courts

to request more judges and to adapt their procedures to the changed circumstances.

28. Frankfurter & Landis, supra note 19, at 257 (quoting 1922 testimony before the House).

29. Act of June 27, 1988, Pub. L. No. 100-352, 102 Stat. 662.

30. Supreme Court plenary disposition data are drawn from the annual Supreme Court review

in the November issue of the Harvard Law Review. Those annual Supreme Court reviews do not

tell whether a case was heard below by a three-judge district court or a court of appeals. The figure

for 1997 was drawn from the Supreme Court data base at Cornell University’s Legal Information

Institute. Data on regional court of appeals merits decisions are from Administrative Office of the

U.S. Courts, Annual Report of the Director, 1950, 1978, 1984 and 1997 (Table B-1); Federal

Circuit data from Annual Report, 1984 (Table G-3b) and 1997 (Table B-8).
The Federal Appellate System: Past & Present

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

13

1. Growth in judgeships and workload

The intermediate appellate courts grew gradually during the first part of the

1900s and more rapidly since then.31 As displayed in Table 2-2, four decades

after their creation, the modal number of judgeships in the courts of appeals had

risen to four. As they grew, the courts began to sit in more than one panel of

three, convening occasionally en banc, a practice approved by the Supreme Court

and then codified in the 1940s.32 By 1950, the modal number of judgeships had

risen to six. By 1984 the modal number had risen to twelve.

Table 2-2

Summary of Authorized Circuit Judgeships for Selected Years, 1892–1990

Largest Smallest Modal Total

Year Court Court Court Judgeships

1892 3 2 2 19

1930 5 3 4 55

1950 9 3 6 75

1964 9 3 9 88

1978 26 4 11 144

1984 28 6 12 168

1990 28 6 12 179

Note: Years 1930–1978 combine the Court of Customs and Patent Appeals and Court of Claims.

The work assigned to these courts, however, has increased disproportionately

to the increase in judgeships, as shown in Table 2-3. Over the last 100 years,

filings per appellate judgeship have increased by almost a factor of six. By contrast, filings per judgeship in the district courts have not even doubled.

31. The data in this paragraph and the next one, and in Table 2-2, are from Administrative

Office of the U.S. Courts, History of Federal Judgeships, Table K (1991).

32. As more courts grew larger than three judgeships in the 1930s, some of them provided by

rule for convening en banc for some cases. The Supreme Court upheld this practice in 1941,

Textile Mills Securities Corp. v. Commissioner of IRS, 314 U.S. 272, 278 (1941), clarifying ambiguities left over from the Evarts Act, and in the 1948 revision of the Judicial Code, Congress

specifically authorized the courts of appeals to order hearings or rehearings en banc (currently

codified as 28 U.S.C. § 46(c)).
The Federal Appellate System: Past & Present

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

14

Table 2-333

Authorized District and Circuit Judgeships and Filings per Judgeship

District Courts Courts of Appeals

Filings per Filings per

Year Judgeships Filings Judgeship Judgeships Filings Judgeship

1892 64 18,388 287 19 841 44

1930 139 135,630 976 55 2,874 52

1950 212 82,805 391 75 2,678 36

1964 301 92,826 308 88 6,023 68

1978 510 173,690 341 144 18,863 131

1984 571 297,630 521 168 31,426 187

1990 645 266,325 413 168 40,877 228

1997 645 322,390 500 179 53,777 300

Note: Years 1930–1978 combine the Court of Customs and Patent Appeals and Court of Claims.

By any measure, the courts of appeals of today are handling more cases, and

more work, than their predecessor courts. With only brief respites after new

judgeship bills took effect, circuit judges have been faced with relentlessly increasing caseloads since the beginning of the upswing in appeals in the 1960s.

Although increases in judgeships have been substantial, judgeships have not

increased as rapidly as raw appellate filings. Since 1960, circuit judgeships have

grown by roughly 160%, but appeals per judgeship have grown by 450%. Figure

2-D plots the increase in total filings and filings per judgeship since 1960.

Perhaps as important as the increase in the numbers of appeals is the change

in the nature of those appeals over time. As Table 2-4 shows, appeals of all types

have increased, but the proportion of the courts’ dockets accounted for by each

type has changed. Most striking is the overall effect of the increase in appeals

associated with the growth in criminal prosecutions. There has been substantial

growth in direct criminal appeals over the past few decades, most dramatically

since November 1987, the effective date of the sentencing guidelines developed

and promulgated pursuant to the 1984 Sentencing Reform Act.34 After a slight

decline in the 1970s and early 1980s, criminal appeals rose precipitously—from

4,377 in 1981 to 10,521 in 1997. There were several apparent causes—steppedup prosecutorial efforts, the sentencing guidelines themselves, the mandatory

33. Table 2-3 is derived from Richard Posner, The Federal Courts: Challenge and Reform 391–

98 (1996) (Tables A-2 and A-3); Annual Report of the Director of the Administrative Office of

the U.S. Courts (1997) (Tables B-1 and B-8); and Administrative Office of the U.S. Courts,

History of Federal Judgeships, Table K.

34. See U.S. Sentencing Commission, Guidelines Manual 1997, Ch. 1.
The Federal Appellate System: Past & Present

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

15

minimum sentences that became increasingly common in the 1980s,35 and the

availability of appellate review of sentences even after a guilty plea.36 Along with

the increase in direct criminal appeals came the growth in civil suits by incarcerated prisoners, including motions to vacate sentence and petitions for writs of

habeas corpus (both technically considered civil actions), as well as suits alleging

civil rights violations and unconstitutional conditions of confinement. Civil suits

by prisoners made up about 8% of the docket in 1960, but more than 30% by

1997. All told, the “criminal-related” portion of the appellate docket grew from

about 24% in 1960 to about 51% in 1997.

Table 2-4

Appeal Types Filed in the Regional Courts of Appeals, 1960–1997

1960 1970 1980 1990 1997

Criminal 623 (16%) 2,660 (23%) 4,405 (19%) 9,493 (23%) 10,521 (20%)

U.S. Prisoner 179 (5%) 818 (7%) 1,007 (4%) 2,263 (6%) 5,183 (10%)

Other U.S. Civil 609 (16%) 1,349 (12%) 3,647 (16%) 4,363 (11%) 3,803 (7%)

Private Prisoner 111 (3%) 1,622 (14%) 2,675 (12%) 7,678 (19%) 11,005 (21%)

Other Priv. Civil 1,423 (36%) 3,212 (28%) 7,525 (32%) 12,812 (31%) 15,423 (29%)

Bankruptcy 132 (3%) 205 (2%) 396 (2%) 1,087 (3%) 1,158 (2%)

Administrative 737 (19%) 1,522 (13%) 2,950 (13%) 2,578 (6%) 4,412 (8%)

Orig. pro/other 85 (2%) 274 (2%) 595 (3%) 624 (2%) 814 (2%)

TOTAL FILINGS 3,899 11,662 23,200 40,898 52,319

Note: Failure of percentages to total 100 is due to rounding.

35. See the discussion in Report of the Federal Courts Study Committee, April 2, 1990, 133–34.

36. 18 U.S.C. § 3742 (1998).

0

10,000

20,000

30,000

40,000

50,000

60,000

1960 1965 1970 1975 1980 1985 1990 1995

Year Ended June 30

Appeals Filed

0

50

100

150

200

250

300

350

Appeals per Judgeship

Figure 2-D

Appeals Filed and Appeals per Circuit Judgeship, 1960–1997
The Federal Appellate System: Past & Present

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

16

During the same time, the courts of appeals began to see increasing numbers

of appeals brought by unrepresented litigants, as Table 2-5 reveals. In 1997,

fully half of the filings in the courts of appeals that were not direct criminal

appeals were appeals by unrepresented parties. Although we cannot tell how

much pro se litigation went on in the courts of appeals in earlier decades, it was

probably relatively uncommon until the growth in prisoner litigation described

above. Much of the pro se docket is still accounted for by prisoners, but it is not

uncommon for other litigants to lack legal counsel—about one-quarter to onethird of nonprisoner civil appeals from the district courts in 1997 were filed by

unrepresented litigants.

Table 2-5

Estimated Percentage of Appeals Filed by Unrepresented Litigants, 1950–1997

1950 1960 1970 1980 1990 1997

Percentage of all filings 10% 7% 21% 16% 24% 42%

Percentage of non-criminal filings 11% 9% 27% 20% 32% 50%

Note: 1950–1990 figures are the number of civil appeals by prisoners as a percentage of the national appellate caseload. Reliable information about pro se status is available only for the last few

years.

Like many prisoner cases, appeals filed by unrepresented parties who are not

incarcerated pose special challenges for the courts, but they generally do not

involve as much work for judges as fully counseled cases because they typically

are controlled by well-settled precedent or require a highly deferential standard

of review.37 In most courts, central staff attorneys prepare these cases for decision by a three-judge panel. Many such appeals, even when meritorious, do not

require extensive legal research or conference time, and often they do not yield

published opinions that take a lot of judicial time to craft. Accordingly, the number

of filings, while important, is not a sufficient measure of judicial workload, and

should not be taken alone as a sign that the courts are overwhelmed. Rather, the

nature of the work done by the courts of appeals must be considered; it is likely

that the above described changes in the nature of appeals at least partially account for the ability of the courts of appeals to cope with much larger caseloads

without a commensurate increase in judgeships.

37. The current formula used in the assessment of circuit judgeship needs discounts pro se cases

by two-thirds to reflect the generally lower judicial time requirements associated with such cases.
The Federal Appellate System: Past & Present

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

17

2. Responses to growth in judgeships and workload

a. Creating new circuits and courts of appeals

Since 1891, Congress has faced “insistent pressure for further subdivision”38 of

the circuits. It has twice split circuits so as to create smaller courts of appeals that

proponents of division said would be more effective. These actions reflected a

view that the only way to deal with a court of appeals deemed to have grown

too large was to reconfigure the circuit of which it was a part. Indeed, for the

same reason, the current debate about the Ninth Circuit has centered on the

question of whether the circuit should be split, even though in reality, it also has

to do with a court of appeals deemed to be growing too large. We offer in

Chapter 3 a new approach—restructuring the court of appeals, but retaining the

circuit. In this chapter, however, we review briefly the two circuit reconfigurations

in this century.

(1) 1929: Creation of the Tenth Circuit and its court of appeals

A 1925 American Bar Association resolution proposed re-examination of the

nine-circuit configuration, citing both that year’s “Judges’ Bill,” which expanded

the Supreme Court’s certiorari jurisdiction and regularized the jurisdiction of

the circuit courts, and the “unequal distribution of the work” of the appellate

courts.39

In February 1928, the House of Representatives took up a bill to create an

Eighth Circuit of Colorado, Kansas, Missouri, New Mexico, and Oklahoma and

a new Ninth Circuit of Iowa, Minnesota, Nebraska, North and South Dakota,

and Wyoming (renaming the current Ninth as the Tenth Circuit). Others favored a three-way split: a five-state Eighth Circuit of the upper midwest (the

Dakotas, Iowa, Minnesota and Nebraska) and two four-state circuits: a new Tenth

Circuit of the lower midwestern states of Arkansas, Kansas, Missouri and Oklahoma, and a new Eleventh Circuit of Colorado, New Mexico, Utah, and Wyoming. Another provision to make New York a single-state Second Circuit was

soon dropped in the face of opposition from judges and lawyers in that circuit,

as were other specific changes, such as placing Arkansas in the Fifth Circuit.

Little Rock lawyer George Rose protested that “Arkansas does most business

with St. Louis . . . and has almost no business with New Orleans;” furthermore,

“[i]f Arkansas is put into the fifth circuit, the judges there will have to learn

Arkansas law, and in the learning will no doubt make many mistakes.”40

38. Frankfurter & Landis, supra note 19, at 107.

39. To Change the Judicial Circuits of the United States and to Create a Tenth Judicial Circuit:

Hearing on H.R. 5690 before the Committee on the Judiciary, House of Representatives, 70th Cong.,

1st Sess., 38 (1928) (resolution of the ABA was entered into the record) [hereinafter Hearing].

40. Id. at 21.
The Federal Appellate System: Past & Present

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

18

Debate over the Eighth Circuit, however, persisted into the next Congress,

driven by the circuit’s vast geographic expanse and its perceived effect on the

court’s work. Citing tables on caseloads and the distances between the principal

cities of the Eighth Circuit, the ABA argued that an appellate court sitting over

so large a jurisdiction “can not hope to transact as much business as a stationary

court.”41 Furthermore, complained Chief Justice Taft (in the days before appellate courts sat en banc), such a large circuit creates a need for a large court: “The

six Circuit judges in the Circuit . . . make up two Supreme Courts . . . in the

8th circuit. And this prevents the uniformity of decision that is very necessary

in one Circuit having theoretically only one Circuit Court of Appeals.”42

The judges of the Eighth Circuit conceded a need for some realignment but

differed over the best way to do it. For example, Kimbrough Stone of Kansas

City, then the senior (chief) circuit judge, objected to any characterization of the

Eighth Circuit as backlogged, to which lawyers responded that the court avoided

backlog only by heavy reliance on visiting judges (“I do not remember ever

having been in that court for a long time and finding three circuit judges on the

bench”).43

Hearings in 1929 ended with near unanimous support for a new Tenth Circuit cut from the westernmost states of the existing Eighth Circuit and with the

addition of some new judgeships for those two appellate courts and others.

President Coolidge signed the bill on February 28, 1929,44 creating the boundaries shown in Figure 2-E.

(2) 1981: Creation of the Eleventh Circuit and its court of appeals

The statute that created the Eleventh Circuit in 198145 ended a long struggle,

much more intense than that involving the Eighth, over sound judicial administration, the proper size of appellate courts, the best way to divide the circuit,

and the direction of the civil rights litigation in the federal courts of the Deep

South.46

41. Id. at 40.

42. Quoted in Denise Bonn, The Geographical Division of the Eighth Circuit Court of Appeals

19-20 (1974) (unpublished manuscript on file with the Federal Judicial Center).

43. Hearing, supra note 39, at 32.

44. Act of Feb. 28, 1929, Pub. L. No. 71-840, 45 Stat. 1407.

45. Act of Oct. 14, 1980, Pub. L. No. 96-452, 94 Stat. 1994.

46. This account draws heavily on the standard source for the creation of the Eleventh Circuit,

Deborah Barrow & Thomas Walker, A Court Divided: The Fifth Circuit Court of Appeals and

the Politics of Judicial Reform (1988).
The Federal Appellate System: Past & Present

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

19

Figure 2-E

The Circuits in 1929

1

4

5

7 6

2

1

9 3

9

9

8

10

1

The Judicial Conference in March 1964 had recommended splitting the Fifth

Circuit in order to provide its six states with additional federal appellate judgeships without creating a court of appeals of more than nine judgeships.47 That

September, however, the Conference approved a compromise solution, creating

temporary judgeships to assist the Court, pending legislative action on the

Conference’s circuit reconfiguration proposal.48 Mississippi Senator James

Eastland, chair of the Judiciary Committee, wanted to split the Fifth Circuit

between Louisiana and Mississippi, but his House counterpart, Representative

Emanuel Celler, feared that a circuit of Alabama, Florida, Georgia, and Mississippi “might not be so sanguine” in enforcing the Supreme Court’s civil rights

decisions as would the judges from Texas and Louisiana.49 He opposed any

circuit division until the Conference undertook “a survey of the geographical

organization of the entire federal judicial system in the light of population increases and economic changes.”50

Disappointed with the inconclusiveness of seven years of appellate procedural

innovation, and frustrated with the pervasive controversy over Fifth Circuit judge47. Id. at 83.

48. Id. at 3–4, 116–17. The Conference action is reported at Report of the Proceedings of the

Judicial Conference of the United States 63 (Sept. 1964).

49. Barrow & Walker, supra note 46, at 116–17.

50. The language is the summary of the Celler proposal as reported in Report of the Proceedings of the Judicial Conference of the United States 21 (Mar. 1959).
The Federal Appellate System: Past & Present

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

20

ships and attendant circuit splitting recommendations, the Judicial Conference

recommended in 1971 the creation of the Commission on Revision of the Federal

Court Appellate System. Congress thus created the twelve-person Hruska Commission to study the circuit alignment and the appellate courts’ internal operating procedures and to submit recommendations to the President, the Congress

and the Chief Justice.51 After extensive hearings, the Hruska Commission filed

its report on circuit restructuring in December 1973,52 recommending splitting

both the Fifth and Ninth Circuits,53 but Congress declined to implement either

recommendation.

In 1978, as part of the Omnibus Judgeship Act, Congress authorized any

court of appeals with more than fifteen active judges to use divisions for some

court administration tasks and to perform its en banc functions with fewer than

all of its judges. This was a compromise that secured passage of the Act, which

increased the size of the Fifth Circuit’s Court of Appeals from fifteen to twentysix judgeships (and the Ninth Circuit’s Court of Appeals from eighteen to twentythree judgeships). However, after the newly enlarged court held its first en banc

hearing—having declined to use the limited en banc function authorized by the

Act—and as the judges attempted to stay current with the law of the circuit, all

the judges agreed that a division was necessary. They petitioned Congress to

create an Eleventh Circuit of Alabama, Florida and Georgia, and a reconfigured

Fifth Circuit of Texas, Louisiana, and Mississippi. That proposal attracted wide

support, and Congress enacted it after opposition from civil rights organizations

ebbed. President Carter signed the bill to create the Eleventh Circuit on October 15, 1980.

(3) 1982: Creation of the Federal Circuit

A significant innovation in the organization of the courts of appeals system was

introduced in 1982, when Congress created the United States Court of Appeals

for the Federal Circuit. That court’s appellate jurisdiction is not regionally de51. Act of Oct. 13, 1972, Pub. L. No. 92-489. The twelve commissioners were appointed (four

each) by the Speaker of the House, the President Pro Tem of the Senate, the President, and the

Chief Justice. The Commission was (a) “to study the present division of the United States into

the several judicial circuits and to report . . . its recommendations for change in the geographical

boundaries of the circuits as may be most appropriate for the expeditious and effective disposition

of judicial business”; and (b) “to study the structure and internal procedures of the Federal courts

of appeals system and to report . . . its recommendations for such additional changes in structure

or internal procedure as may be appropriate for the expeditious and effective disposition of the

caseload of the Federal courts of appeals, consistent with fundamental concepts of fairness and due

process.” Id. § 1(a) & (b).

52. Commission on Revision of the Federal Court Appellate System, The Geographical Boundaries of the Several Judicial Circuits: Recommendations for Change (Dec. 1973).

53. Id. at 3–4.
The Federal Appellate System: Past & Present

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

21

termined; it has jurisdiction over certain types of appeals from all district courts

and over all types of appeals from specified trial courts and administrative agencies. It is discussed later in Chapter 5.

b. New procedures and supporting personnel

The growth in the volume of appeals, in addition to necessitating more judges

on each court, has wrought two other far-reaching, and related, innovations in

the federal appellate courts in the last third of this century. One is the adoption

of differentiated decisional processes, and the other is the employment of central

staff attorneys. Both were inventions of necessity, pioneered by the courts to

keep abreast of rising caseloads, but both have proven to be—for part of the

docket—more efficient ways to deliver appellate justice regardless of docket

pressures.

Differentiated decisional processes were adopted when courts recognized that

not every appeal needs the same amount of judicial attention. Some appeals

present difficult questions, or questions of great significance to the legal order,

while other appeals present routine issues that are relatively easy to decide because the controlling law is well settled. For the latter, many courts began to find

oral argument unnecessary or unhelpful, and the time spent in producing the

traditional fully reasoned published opinion greater than judicial economy warranted. As cases of this type grew to represent a larger and larger proportion of

appellate dockets, courts developed screening or tracking procedures to review

appeals at an early stage and route them through the decisional process tailored

to their difficulty and precedential significance. Under such tracking systems,

some appeals continue to receive the traditional process—oral argument, conference by the panel, and fully reasoned opinion. Some are routed to a settlement

procedure aimed at achieving an acceptable resolution of the dispute without

expenditure of substantial judicial time. Still others are decided without oral

argument and with a short, often per curiam, memorandum disposition or brief

order, typically unpublished. The result, as Table 2-6 shows, is that in several of

the courts fewer than a third of the cases decided on the merits are argued orally;

in only three regional courts of appeals was the argument rate higher than 50%

in 1997.

Table 2-6

Percentage of Cases Decided on the Merits in Which Oral Argument Was Heard in

the Regional Courts of Appeals, FY 1997

1st 2d 3d 4th 5th 6th 7th 8th 9th 10th 11th D.C. Nat’l

All cases 61% 65% 30% 30% 35% 50% 51% 46% 39% 30% 30% 47% 40%

Cases with

counsel 74% 85% 42% 51% 47% 71% 78% 65% 54% 45% 38% 69% 56%
The Federal Appellate System: Past & Present

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

22

As the volume and nature of the appellate caseloads changed, so did the likelihood that an appellate court would publish an opinion explaining its decision,

to the point where today, most courts issue published opinions in only a small

percentage of the appeals they decide on the merits, as Table 2-7 reveals.

Table 2-7

Percentage of Cases Decided on the Merits that Resulted in a Published Opinion in

the Regional Courts of Appeals, FY 1997

1st 2d 3d 4th 5th 6th 7th 8th 9th 10th 11th D.C. Nat’l

All cases 51% 27% 16% 11% 22% 18% 48% 45% 18% 26% 14% 37% 23%

Cases with

counsel 61% 39% 22% 19% 29% 25% 71% 62% 24% 36% 17% 55% 32%

For the most part, the decline in oral argument and publication is attributable

to the influx of cases involving unrepresented litigants pursuing relatively simple

appeals, many of which present the same issues. As the tables show, the percentage of cases with counsel that receive argument or published opinion is generally

considerably higher. Because of changes in the nature of the caseload and in the

significance of publication, lower rates of oral argument or opinion publication

cannot automatically be interpreted as a sign of dysfunction in a court.54

Concurrently with the adoption of these abbreviated internal processes came

the employment of central staff attorneys to help implement the new processes.

Although judges have long had personal (“elbow”) law clerks, the use of a central

staff working for the court as a whole was genuinely new. Starting in the early

1970s with a handful of such attorneys, the courts of appeals have greatly increased their numbers.

Although central staff attorneys were originally employed primarily to help

the courts process cases filed by unrepresented prisoners, in most courts their

duties now extend to other types of cases. In most (but not all) courts, staff

attorneys perform a screening function, reviewing appeals as they become ready

for the court’s attention and routing them into either an oral argument track or

a non-argument track. In all courts, any judge on the panel responsible for deciding

the case may choose to schedule a case for argument, and the panel may unanimously determine that a case scheduled for argument does not need it. But in

many courts, well-trained staff attorneys who accurately reflect the views of their

54. Opinion publication rates declined when the federal judiciary began a deliberate effort to

reduce the cost of law practice and legal services by refraining from publishing opinions that do

not add anything new to the law or help attorneys better predict appellate outcomes. Although

court publication and citation practices vary, “unpublished” opinions are increasingly accessible by

electronic means and in some courts may be cited if no better precedent exists.
The Federal Appellate System: Past & Present

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

23

courts’ judges play a major role in determining what cases will be orally argued.

In addition to preliminarily determining whether a case will be decided with or

without argument, staff attorneys generally review the briefs and records and

prepare memoranda to assist the judges; in some courts they also recommend

dispositions and draft proposed opinions, usually in the non-argued cases.

As central staffs grew, the number of personal law clerks for circuit judges also

grew, and their functions expanded. At mid-century, each circuit judge had a

single law clerk. Today an active judge may employ three law clerks and two

secretaries or four law clerks and one secretary.

Collectively, this transformation of process and personnel in the courts of

appeals over the last three decades has given rise to concerns among judges,

lawyers, and legal scholars that the quality of appellate decision-making may have

been eroded and that there has been undue delegation of judicial work to

non-judges. As to appeals decided without oral argument, the process has become less visible and, when combined with a less than fully reasoned opinion or

cryptic judgment order, raises apprehensions as to the degree of attention those

appeals actually receive from judges themselves. The apprehensions are intensified

when the court uses staff attorneys to draft proposed dispositions, prompting

claims by some critics of an “invisible judiciary,” in addition to assertions of an

invisible process, sometimes summarized in the claim that appellate courts have

become “bureaucratized.”

The Commission has been made aware of these concerns through published

writings, testimony at its public hearings, and written submissions. We have

received suggestions that, to meet these concerns, the appellate courts hear oral

argument in larger percentages of cases, issue a greater number of reasoned

opinions, limit the number of staff attorneys they employ, and be supplied with

a sufficient number of judges to minimize the likelihood of over-reliance on staff

attorneys and law clerks. At the same time, responses to our survey of practicing

appellate lawyers nationwide do not reveal a widespread discontent with current

practices within the federal appellate courts.

We do not minimize the seriousness of these concerns and suggestions. Indeed, assertions about the decline of the appellate process were among the reasons Justice White enlisted the cooperation of chief circuit judges in the preparation of profiles of each court of appeals’ case management procedures. [At the

date of issuance of this tentative draft report, the Commission has not completed

its examination of this and other information concerning the appellate courts’

internal processes and case management practices. Our conclusions about these

matters will be set forth in the Commission’s final report.]
The Federal Appellate System: Past & Present

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

24

E. The Emergence of the Circuit as an Entity of Federal

Judicial Administration

A final piece in the evolution of “the present division of the United States into

the several judicial circuits” is the emergence of the circuit itself as an important

administrative entity of the federal judicial system.

During the nineteenth century, circuits were the mechanism for arranging the

trial court obligations of itinerant Supreme Court justices and, after 1869, of

separate circuit judges. Circuits exhibited rudimentary governance elements as

circuit justices watched over the activities of district judges,55 but the creation

of a court of appeals for each circuit strengthened their administrative functions.

Congress formalized that function in 1922, when it created the Conference of

Senior Circuit Judges, now the Judicial Conference of the United States. Supervision of the courts’ budget and personnel resided in the Department of Justice,

but during their annual gathering the circuits’ senior judges (in effect the chief

judges) reported on the state of their circuits’ appellate and district dockets and

developed suggestions for “uniformity and expedition of business.”56 The 1922

Act also modified policies on temporary inter- and intra-circuit assignments by

authorizing the senior circuit judge to assign district or appellate judges of the

circuit to temporary duty on other courts within the circuit, or to petition the

Chief Justice for an inter-circuit assignment.57

In 1939, Congress formalized circuit governance by constituting each circuit’s

appellate judges into a judicial council “[t]o the end that the work of the district

courts shall be effectively and expeditiously transacted.” The councils reviewed

district court workload statistics, and “district judges [were] promptly to carry

out the directions of the council.”58 The 1939 law also transferred responsibility

for the national administration of the federal courts, including budget management, from the Justice Department to the newly created Administrative Office

of the United States Courts, to function under the direction and supervision of

the Conference of Senior Circuit Judges. To the judicial sponsors of the 1939

legislation, however, this was “a very small part of the bill.” Its major feature:

“unifying the administration of justice in the hands of the chief judicial officers

of the courts . . . [who] shall be furnished the facts with respect to the admin55. Russell Wheeler, The Future of the Judicial Council of the Ninth Circuit—Until 1939, in

Long Range Planning for Circuit Councils 1, 11–13 (Federal Judicial Center 1992).

56. An Act for the Appointment of an Additional Circuit Judge for the Fourth Judicial Circuit,

for the Appointment of Additional District Judges for Certain Districts, Providing for an Annual

Conference of Certain Judges, and for Other Purposes, Pub. L. No. 67-298, § 2, 42 Stat. 837,

838 (1922).

57. Id. § 3 at 839.

58. An Act to Provide for the Administration of the United States Courts, and for Other

Purposes, Pub. L. No. 76-299, § 306, 53 Stat. 1223, 1224 (1939).
The Federal Appellate System: Past & Present

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

25

istration of justice in their circuits . . . in quarterly reports by the [Director of

the Administrative Office].”59 Congress also mandated an annual conference in

each circuit to include circuit and district judges and members of the bar under

rules prescribed by each court of appeals, “for the purpose of consideration of

the state of the business of the courts and advising ways and means of improving

the administration of justice within the circuit.”60

For several decades, however, the councils and circuit conferences were not

major participants in federal judicial administration. Then-Circuit Judge Warren

Burger in 1958 challenged the councils to “be managers, not just spectators, of

how the courts are run,”61 and a leading student of the federal courts referred

to them in 1970 as “rusty hinges of federal judicial administration.”62 But in the

last third of the century, Congress and the courts have expanded their mission

(“the effective and expeditious administration of justice within [the respective]

circuit[s]”63 ), broadened their membership (an equal number of circuit and district

judges, plus the chief judge of the circuit as chair), and authorized them to

appoint a circuit executive as council staff. Several circuits revamped the format

and membership of their circuit conferences to create gatherings more in line

with the statutory mission.

Congress has also regularized the tenure of both circuit and district chief

judges, to avoid very brief or very long service. Under a 1982 statute,64 a vacancy in a chief judgeship is filled by the senior active judge of the court under

the age of 65 and chief judges may serve for no more than seven years, or until

the age of 70. This change derived from a Hruska Commission call to “minimize

the impact of a chief judge who lacks administrative abilities, while allowing the

chief judges who are good administrators sufficient time to have a beneficent

effect on the functioning of their circuits.”65

Table 2-8 and Figure 2-F display current information about the boundaries,

population, size, composition, and number of judgeships within each regional

circuit.

59. Hearings on H.R. 2973 Before the House Comm. on the Judiciary, 76th Cong., 1st Sess. 20

(1939).

60. Supra note 58 at 1224-25.

61. Warren Burger, The Courts on Trial, 22 F.R.D. 71, 82 (1958).

62. Peter Fish, The Circuit Councils: Rusty Hinges of Federal Judicial Administration, 37 U.

Chi. L. Rev. 203 (1970).

63. 28 U.S.C. § 332 (d)(1).

64. Act of Oct. 1, 1982, Pub. L. No. 97-164, 96 Stat. 37.

65. Commission on Revision of the Federal Court Appellate System, Structure and Internal

Procedures: Recommendations for Change 68 (1975). Chief judge selections are made pursuant

to 28 U.S.C. §§ 45 (circuit judges) and 136 (district judges). Calculations in 1994 revealed that

the average tenure of chief judges (district and circuit) who assumed the office pursuant to the

1982 statute has been four years. R. Wheeler & G. Bermant, Federal Court Governance 19 (Federal Judicial Center 1994).
The Federal Appellate System: Past & Present

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

26

Table 2-8

Circuit Population, Size, Composition, Number of Judgeships

Population Area States &

Circuit (est. 7/1/98) (sq. mi.) Terrs. Dists. Circ. Dist. Magis. Bankr.

First 13,337,709 52,144 4 5 6 29 16 13

Second 21,996,062 61,318 3 6 13 62 44 24

Third 20,901,091 54,328 3 6 14 62 33 21

Fourth 24,829,436 152,289 5 9 15 52 42 24

Fifth 26,521,607 352,394 3 9 17 78 64 28

Sixth 30,236,545 178,714 4 9 16 62 42 38

Seventh 22,929,634 145,777 3 7 11 46 32 28

Eighth 18,498,575 478,233 7 10 11 43 42 22

Ninth 51,453,880 1,347,498 11 15 28 99 96 68

Tenth 14,073,217 554,869 6 8 12 37 42 22

Eleventh 26,459,341 162,606 3 9 12 62 55 37

D.C. 528,964 61 (D.C.) 1 12 15 3 1

TOTAL 271,766,061 3,540,231 50 + 94 167 647 511 326

Note: Population estimates obtained from U.S. Census Bureau, Estimates of the Population of

States: Annual Time Series (1997). Circuit, district, and bankruptcy judgeships are from 28 U.S.C.

§§ 44, 133, and 152. Magistrate judge positions are from “List of Authorized Magistrate Judge

Positions, FY 1999, Administrative Office of U.S. Courts” (includes both full-time and part-time

positions).

Figure 2-F

The Circuits in 1998

D.C.

Fed.

5

11

4

3

6

2

1

10

8

9

9

9

1

3

3

7

Authorized Judgeships
uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

27

Chapter 3

The Ninth Circuit and Its Court of Appeals

Our statute charges us to make recommendations about the structure of the

federal appellate system and circuit boundaries, “with particular reference to the

Ninth Circuit.” We focus on the Ninth Circuit first, for that reason and because

our views about the future structure of the federal appellate system as a whole

are informed by our study of the Ninth, the nation’s largest circuit and court of

appeals. With respect to the Ninth Circuit, we conclude that circuit realignment

is not indicated, but that restructuring of the court of appeals is.

Circuits do not decide cases; they are administrative, not adjudicative, entities

with responsibilities for governance that are broader than—and have little to do

with—the court of appeals itself. There is no persuasive evidence that the Ninth

Circuit (or any other circuit, for that matter) is not working effectively, or that

creating new circuits will improve the administration of justice in any circuit or

overall. Furthermore, splitting the circuit would impose substantial costs of administrative disruption, not to mention the monetary costs of creating a new

circuit. Accordingly, we do not recommend to Congress and the President that

they consider legislation to split the circuit.

Nevertheless, there is consensus among appellate judges throughout the

country (including about one-third of the appellate judges in the Ninth Circuit)

that a court of appeals, being a court whose members must work collegially over

time to develop a consistent and coherent body of law, functions more effectively

with fewer judges than are presently authorized for the Ninth Circuit Court of

Appeals. In our opinion, apparently shared by more than two-thirds of all federal

appellate judges, the maximum number of judges for an effective appellate court

functioning as a unitary decisional unit is somewhere between eleven and seventeen.66

Decisional units of this size have a number of advantages. Judges can monitor

the law more easily because they are responsible for monitoring fewer decisions.

Smaller units may circulate for-publication opinions among all judges for whom

the opinion speaks, thereby reducing inadvertent inconsistency and providing a

way to address substantive conflicts or disagreements before they cause confusion or generate more litigation. Such units may also more readily take cases en

banc that do create inconsistency, or that seem wrong to a majority of the judges,

thereby leading to more coherent and predictable law that provides sound guidance to lawyers and judges who are governed by it. Further, because judges who

66. In our national survey (see supra p. 4), of the 201 circuit judges who expressed an opinion

about how many judges a court of appeals can have and still function well, 72.3% reported that

the maximum number is between ten and eighteen. Still, almost 22% believe that number is higher

or that there is no natural limit on the size of an effective court.
The Ninth Circuit and Its Court of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

28

serve on decisional units of this size can sit together more frequently than is

possible on larger courts, they are better able to hold each other accountable and

to be accountable as a court. The bar, in turn, can better keep abreast of current

law declared by a small number of judges serving in fewer panel combinations.

Knowing better the judges who will decide their cases, and being confident that

aberrant decisions will be rectified, permits lawyers to assess the chances of success on appeal more realistically; ultimately, this should contribute to the more

efficient and less expensive resolution of disputes.

Since the court of appeals is distinct from the circuit, the court of appeals can

be restructured—by creating adjudicative divisions—without splitting the circuit. Accordingly, we recommend legislation to direct the Court of Appeals for

the Ninth Circuit to organize itself into regionally based adjudicative divisions

and a Circuit Division for conflict correction. In Chapter 4, we recommend

legislation to authorize other circuits to create such divisions when their number

of appellate judgeships exceeds thirteen and to direct them to do so when their

number exceeds seventeen.

A. The Circuit and Its Court of Appeals

The Ninth Judicial Circuit covers the states of Alaska, Arizona, California, Hawaii,

Idaho, Montana, Nevada, Oregon, and Washington, as well as Guam and the

Commonwealth of the Northern Mariana Islands. Its district courts have ninetynine district judgeships, sixty-eight bankruptcy judgeships, and ninety-six authorized magistrate judges (twenty-one of them part-time). Its court of appeals, the

highest court in the circuit, has twenty-eight authorized judgeships—although,

as explained below, many of these judgeships have long been vacant. Like all

circuits, it is administered generally by a chief judge and circuit judicial council

supported by a circuit executive. The administrative responsibilities performed

by the council or the chief circuit judge, directly or through the circuit staff,

include assigning judges temporarily within the circuit to other courts needing

assistance; reviewing district courts’ procedural rules and their plans for jury

selection, Criminal Justice Act appointments, and court reporters; resolving

controversies over the residence of district judges and allocation of work within

the district courts; reviewing and approving construction and renovation plans;

appointing bankruptcy appellate panels; resolving complaints of judicial disability or unfitness; and planning or coordinating such circuit-wide functions as the

circuit judicial conference.

As of October 1, 1998, twenty-two of the twenty-eight authorized judgeships

of the Ninth Circuit Court of Appeals were filled; but for most of the last four

years the court has had only eighteen active judges, and from eleven to seventeen

senior judges who participate in a substantial portion of the court’s work. In

1992, the court requested an additional ten judgeships, which were never cre-
The Ninth Circuit and Its Court of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

29

ated. In 1998, the court modified that request to three permanent and two

temporary judgeships. The court’s judges live throughout the circuit, not necessarily in the states where they resided at the time of their appointments.

Central staff attorneys at the court’s headquarters review fully briefed appeals

and “inventory” them, noting the issues raised and important features of the

case, such as whether the issues are novel or particularly difficult. They also identify

related pending cases in which the same issues are likely to be decided. This

inventory system allows the staff to route similar cases to the same panel if they

arise at the same time, or to alert panels to the fact that the same issue may

shortly be decided by a panel before which it is already pending, thus helping

to avoid inadvertent intracircuit conflict. Staff attorneys also assign the case a

weight, based on features such as novelty and complexity of issues, which allows

equitable distribution of cases among oral argument panels.

The court employs six to eight attorneys who serve as mediators; these attorneys review docketing statements filed with civil appeals to identify cases that

could benefit from the court’s appellate mediation program. The program settles

up to 600 cases each year without requiring judicial attention. The court also

employs an appellate commissioner who, among other duties, acts on vouchers

for attorneys’ compensation under the Criminal Justice Act and rules on a variety

of motions matters, such as motions for appointment or withdrawal of counsel.

The appellate commissioner also acts as a special master for the court, holding

evidentiary hearings, when necessary, and making recommendations to a panel

of judges on matters referred by the court, such as attorney disciplinary matters,

requests by criminal defendants to represent themselves on appeal, National Labor

Relations Board enforcement proceedings, and applications for fee awards in

civil appeals.

The court, like all courts of appeals, does most of its work through panels of

three judges. Panels sit regularly in San Francisco (the circuit headquarters),

Seattle, Portland, and Pasadena, twice a year in Honolulu, and once a year in

Anchorage. Each active judge serves on oral argument panels seven or eight

weeks each year, hearing approximately thirty-two to thirty-six cases in each of

those weeks. When there are not enough active and senior judges of the court

to create argument panels, the court fills out its panels with judges drawn from

district courts, primarily within the circuit, and circuit judges from outside the

Ninth Circuit.67 Among cases terminated after oral argument in the last year,

approximately 43% had a visiting judge on the panel.

Circuit judges also serve for one or two months each year on “screening”

panels that review cases preliminarily screened by court staff for decision without

oral argument, generally because the outcome is clearly controlled by well-settled

legal precedent. The three judges on each panel, supported by central staff attorneys, meet together in person and either decide the cases on the briefs or, if

67. Authorized by 28 U.S.C. §§ 291, 292.
The Ninth Circuit and Its Court of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

30

they find that a case is more complex than it appeared on initial screening, refer

it to a regularly constituted panel. Screening panels typically decide approximately 150 to 170 cases in a month, as well as any motions submitted for decision during their service.

In Fiscal Year 1997, 8,692 appeals were filed in the Ninth Circuit Court of

Appeals, and 8,515 were terminated. Of those, 1,889 were terminated on the

merits after oral argument and 2,952 without oral argument. Of the remaining

appeals terminated, 261 were consolidated with other appeals and the rest were

terminated “procedurally”—i.e., without a three-judge panel’s decision on the

merits of the case. 68 The median time from notice of appeal to final disposition

for appeals terminated on the merits was 14.4 months. The court issued opinions for publication in 849 cases.

Like all federal courts of appeals, the Ninth Circuit Court of Appeals sits en

banc, but only the Ninth Circuit uses a statutorily authorized “limited en banc”

court. Under rules adopted by the court, the limited en banc court consists of

eleven judges (the chief judge and ten others, selected essentially by lot for each

case).69 The court’s rules also provide that a judge of the court dissatisfied with

the decision of the limited en banc may call for a vote on whether the full court

should convene to reconsider the case. Since it adopted its limited en banc

procedure in 1980, such a vote has seldom been requested and the court has

never voted to rehear a case as a full court.

The court of appeals currently has three “administrative units,”70 each headed

by an administrative judge who serves on the Court Executive Committee, rules

on Criminal Justice Act fee requests higher than specified amounts, recommends

action on court of appeals support services and facilities within the unit, and

generally serves as a liaison between the chief judge of the court of appeals and

other judges and the bar within the unit’s geographic area.

68. Procedural terminations may be for such reasons as settlement, default, or dismissal for

jurisdictional defect. They generally account for 30–50% of a court’s total terminations, depending

on the nature of its caseload and its procedures.

69. Authorized by Pub. L. No. 95-486, 92 Stat. 1633 (1978). See also Ninth Circuit Rule 35-

3.

70. Authorized by Pub. L. No. 95-486, 92 Stat. 1633 (1978). The Southern Unit includes the

Central and Southern Districts of California. The Middle Unit includes the Northern and Eastern

Districts of California, and the Districts of Arizona, Guam, Hawaii, Nevada, and the Northern

Mariana Islands. The Northern Unit includes the rest of the circuit’s districts.
The Ninth Circuit and Its Court of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

31

B. The Debate Over Splitting the Circuit and

Its Court of Appeals

1. Background

Calls to split the Ninth and other western circuits have been heard since 1891.

In the 1930s, senators and House members from the Northwest complained of

the unwieldiness of the then-seven judge court of appeals and disgruntlement

among the bar and its clientele over the amount of travel required to litigate

appeals. Several circuit-splitting bills appeared in the early 1940s, but support for

them was undercut when the court expanded its sittings in Seattle and Portland

and adopted an en banc rule in the wake of the Supreme Court’s 1941 Textile

Mills decision.71 The Ninth Circuit judicial council endorsed a circuit split in

1954, followed by a similar endorsement by the United States Judicial Conference the same year. However, the council shortly rescinded its endorsement of

the split, and the Conference followed suit at its September 1954 session.72

In 1973, the Commission on Revision of the Federal Court Appellate System

recommended that Congress split both the Fifth Circuit and the Ninth Circuit.

Its recommendation for the Ninth would have allocated the judicial districts in

California between the two new circuits to equalize those new circuits’ caseloads.73

Congress did not enact the Hruska Commission proposals but in 1978, as part

of a compromise to secure passage of an omnibus judgeship bill expanding the

size of the Fifth Circuit to twenty-six and the Ninth to twenty-three circuit

judgeships, it authorized appellate courts with more than fifteen active judges to

use limited en banc procedures and organize themselves into administrative divisions, as described above.74 Shortly thereafter, Congress split the Fifth Circuit,75 but again declined to split the Ninth.

In 1989, eight senators introduced S. 948 to create a new Twelfth Circuit

composed of Alaska, Hawaii, Idaho, Montana, Oregon, Washington, Guam, and

the Northern Mariana Islands.76 Similar proposals were made in subsequent

Congresses. The 1990 Report of the Federal Courts Study Committee recom71. See supra note 32.

72. At its April 1954 “Special Session,” the Conference endorsed an eight-judge Ninth Circuit

and a four-judge Eleventh Circuit. Report of the Proceedings of the Judicial Conference of the

United States 232 (April 1954). At its September meeting, noting that the Ninth Circuit judicial

council had “rescinded its recommendation that the Ninth Circuit be divided,” the Conference

too rescinded its recommendation. Report of the Proceedings of the Judicial Conference of the

United States 6 (September 1954).

73. Commission on Revision of the Federal Court Appellate System, The Geographical Boundaries of the Several Judicial Circuits: Recommendations For Change (Dec. 1973).

74. Act of Oct. 20, 1978, Pub. L. No. 95-486, § 6, 92 Stat. 1629, 1633.

75. See supra pp. 18–20.

76. S. 948, 101st Cong., 1st Sess. (1989).
The Ninth Circuit and Its Court of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

32

mended against any circuit splitting without more experimentation with case

management under current arrangements and the 1995 Long Range Plan for the

Federal Courts likewise recommended against circuit realignment.77

In 1995, senators introduced S. 95678 to split the Ninth Circuit. The Judiciary Committee reported the bill out late in the year but the full Senate declined

to approve it as a rider to a bill providing federal court appropriations. Congress

adjourned without acting on a compromise measure to create a national study

commission to evaluate circuit realignment. In the first session of the 105th

Congress, the Senate approved legislation to split the circuit, while the House

favored creating a study commission. A mid-November 1997 compromise established this Commission.79

2. The arguments summarized

The debate over whether to split the Ninth Circuit involves numerous claims

and counterclaims, almost all of which are about the court of appeals. They

concern the effects of the size of the court of appeals, its geographic jurisdiction,

and the court’s place within the federal appellate system. We have given serious

consideration to all of these arguments. We summarize the major issues below

but do not dissect the arguments in detail because all of the claims and counterclaims are readily available in the literature we reviewed. Most can also be

found in the publicly accessible transcripts of our hearings and statements submitted by witnesses.

a. The ability of the court of appeals to function effectively and timely

Proponents of a split assert that a court of twenty-eight judgeships, plus senior

judges, cannot decide cases in a timely fashion; they point to workload data

showing that the Ninth Circuit ranks at or near the bottom in time from the

filing of a case in the district court to the final disposition in the court of appeals.

Split opponents respond that the court of appeals is among the fastest in the

nation in disposition time once a case is argued or submitted to a panel, and

attribute the court’s overall slowness to its unfilled judgeships and resulting

inability to assemble panels to hear cases ready for decision.

77. Report of the Federal Courts Study Committee Ch. 6 (1990); Judicial Conference of the

United States, Long Range Plan for the Federal Courts 45 (1995).

78. Ninth Circuit Court of Appeals Reorganization Act of 1995, S. 956, 104th Cong., 1st Sess.

(1995).

79. Pub. L. No. 105-119, § 305(a), 111 Stat. 2491 (1997).
The Ninth Circuit and Its Court of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

33

b. The ability of the court to produce a coherent body of circuit law

Those who favor a split assert that the multiplicity of decision makers makes it

less likely that circuit judges can stay informed of the law that other panels are

making, and that district judges, litigants, and parties seeking to conform their

conduct to circuit law encounter more serious obstacles to assessing what that

law is. The judges, they say, cannot keep up with the large volume of court of

appeals decisions. Pre-publication circulation of opinions among all judges of the

court is impossible.

They claim an increased incidence of intracircuit conflicts because an appellate

court as large as the Ninth’s precludes close, regular, and frequent contact in

joint decision making, and thus the collegiality that lets judges accommodate

differences of opinion in order to produce a coherent body of law. They point

to the over 3,000 possible combinations of three-judge panels on a twentyeight-judge court.

Those opposing a split respond that the court has developed a sophisticated

issue-tracking system that allows judges to know when other panels are deciding

like issues and an electronic opinion delivery system that allows judges to know

the current law of the circuit when they are deciding cases. They say that any

court with more than fifteen or sixteen judges produces a large number of threejudge panel combinations.

They also assert that collegiality is an elusive concept and that counting panel

combinations cannot measure the ability of judges in the late twentieth century

to work together to fashion law. They note that the circuit’s court of appeals

judges have numerous opportunities to be with one another at meetings and

symposia, and point to evidence of rancor and lack of collegiality on courts much

smaller than the Ninth.

c. The ability of the court to perform its en banc function effectively

Proponents of a circuit split say that the court convenes en banc proceedings too

infrequently, which helps explain the court of appeals’ high reversal rate in the

Supreme Court: a better en banc procedure would correct panel errors before

they reach the Supreme Court. They also argue that the relative infrequency of

en banc rehearings in the Ninth Circuit deprives judges and lawyers of sufficient

guidance as to circuit law. Furthermore, split proponents argue that convening

a different group of judges for each en banc proceeding frustrates the development of stable circuit law, and using a panel only slightly larger than a third of

the court’s full judgeship complement contravenes the very concept of an “en

banc” court.

Supporters of the court as currently structured say that its en banc process is

efficient and effective. They note that very few en banc decisions are closely
The Ninth Circuit and Its Court of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

34

divided, so it is unlikely a full-court en banc would produce different results.

They further assert that the Supreme Court takes cases from the Ninth Circuit

in numbers roughly proportional to the circuit’s share of the national appellate

caseload, and that, over time, reversal has not been appreciably higher in Ninth

Circuit cases than in others. They also say that to the extent the Supreme Court

reverses the Ninth Circuit’s Court of Appeals more than others, that is largely

because novel issues arise in the diverse regions of the West that the court serves.

d. The implications of the size of the court’s geographic jurisdiction for

federalism, regionalism, and effective court operations

Those who would realign the circuit say that its size means that citizens of the

West perceive the federal appellate judiciary as a remote institution, unfamiliar

with the problems and points of view of those citizens’ identifiable regions. Citizens

in the Northwestern states claim that judges from other regions, especially

California, decide cases involving their way of life with insufficient appreciation

of the legal problems that way of life engenders. They also claim that the circuit’s

size allows a panel of three judges to determine the law for the vast region that

makes up the circuit, without an effective en banc mechanism to act as a check

on that power. Finally, they assert that the size of the circuit creates special travel

problems for judges who live in more remote areas.

Opponents of a circuit split assert that the West is indeed one region and that

the federal law under which it operates should be determined by a single federal

appellate court. They say it is especially important that federal law governing the

transactions and litigation of Asian-Pacific and maritime businesses operating

along the western seaboard should be interpreted by a single appellate court;

only historic accident allocates the eastern seaboard and Gulf Coast to six circuits. They note furthermore that decisions to which Northwestern interests

object are not necessarily the product of judges from non-Northwestern states.

They state also that the burdens and expense of judges’ travel within the Ninth

Circuit are exaggerated, and that the court’s established and growing technological capacity, including electronic mail and videoconferencing, will substantially reduce the need for travel in coming years.

e. The relationship between circuit reconfiguration and intercircuit

conflicts

Opponents of circuit splitting say that creating another court of appeals increases

the likelihood of intercircuit conflicts and the corresponding burden on the

Supreme Court to resolve them. Furthermore, they argue that the nation must

find some way other than circuit splitting to deal with problems of large courts

of appeals, inasmuch as other courts will soon be as large as the Ninth is now.

Splitting circuits will balkanize federal law.
The Ninth Circuit and Its Court of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

35

Proponents of circuit reconfiguration say that federal laws susceptible to conflicting interpretations will yield conflicts even among few appellate courts, and

thirteen or fourteen regional circuits will not produce notably more intercircuit

conflicts than twelve. Furthermore, they argue that intercircuit conflicts have

been a less persistent and intolerable problem than asserted and note that the

Supreme Court can resolve additional conflicts, if any arise.

f. The practicality of dividing the circuit

Opponents of a circuit split say that even if the Ninth Circuit were reconfigured,

a large and growing circuit would remain, primarily because of the high volume

of appeals generated by California. They argue that it is thus better to make the

current structure work effectively than hope to solve any problems of this large

circuit by splitting it and that reconfiguring it by dividing California between

circuits would wreak the havoc of legal uncertainty within the state.

Split proponents say that a new Twelfth Circuit will be of a sufficient size to

constitute a viable circuit, and that whatever problems a new Ninth Circuit that

includes California would pose would be less troublesome than those posed by

the current Ninth. Many proponents discount as well the claims that dividing

California between two circuits is not feasible, and note that either an intercircuit

conflict resolution mechanism or the Supreme Court could resolve any conflicts

that might arise.

g. The administrative efficacy of the Ninth Circuit

Opponents of a circuit split point out that it would deprive all of the Ninth

Circuit’s courts of efficient administration and economies of scale. A large circuit, they say, can administer itself more innovatively than a smaller circuit, as

evidenced by the Ninth’s automation, training, and other programs. Furthermore, larger circuits have more flexibility in the intracircuit transfer of judges at

all levels.

Proponents of reconfiguration argue that whatever administrative benefits the

current arrangement provides could be replicated in new Ninth and Twelfth

Circuits. Furthermore, they say that administration of the current Ninth Circuit

consumes undue judge time because of the many oversight bodies needed to

ensure judicial control of such a large entity.

Finally, proponents note that a circuit split would give judges now in the

Ninth Circuit more representation on the Judicial Conference of the United

States,80 but opponents respond that Ninth Circuit judges are already well represented on the Conference’s committees, which are integral elements of the

federal judiciary’s governance system.

80. 28 U.S.C. § 331 provides each regional circuit, regardless of size, two members on the

Judicial Conference of the United States.
The Ninth Circuit and Its Court of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

36

3. Views of the court’s judges, its consumers, and

knowledgeable observers

The position of the Ninth Circuit is that it is working well, and that a great

majority of judges and lawyers in the circuit are opposed to a split.81 Of the

judges in the Ninth Circuit who expressed an opinion on our survey, 69.7% of

the circuit judges and 67.6% of the district judges do not favor realignment of

the boundaries of their circuit. The judges who do favor circuit reconfiguration

differ over what specific configuration would be best. Most of the Ninth Circuit

judges who testified or submitted statements opposed a split. Five judges on the

court of appeals, and a few from other courts, appeared or submitted statements

supporting a split, either now or, because the court will inevitably grow, in the

reasonably near future. Most of the other testimony at the public hearings and

formal submissions to us favor keeping the circuit as presently configured. This

testimony includes that of the governors of California, Nevada, Oregon, and

Washington; the attorney general of Oregon; the U.S. Department of Justice;

the American Bar Association; and most state and local bar associations. On the

other hand, other representatives of some Ninth Circuit states communicated

their preference for a split, including U.S. senators from Alaska, Montana, and

Washington, and the attorneys general of Alaska, Idaho (who also spoke for that

state’s governor), and Washington.

In addition, five members of the United States Supreme Court have written

our chair.82 Of the four who commented on the Ninth Circuit, all are of the

opinion that it is time for a change.83 In general, the Justices express concern

about the ability of judges on the Ninth Circuit Court of Appeals to keep abreast

of the court’s jurisprudence and about the risk of intracircuit conflicts in a court

with an output as large as that court’s. Justice Kennedy is further concerned that

81. See Statement of Chief Judge Procter R. Hug, Jr., at the Commission’s May 29, 1998,

public hearing (San Francisco, Ca.), available on the Commission’s website (http://app.comm.

uscourts.gov), and Report to the Commission on Structural Alternatives for the Federal Courts

of Appeals, Submitted by the United States Courts for the Ninth Circuit (May 1998) (unpublished manuscript, available on the Commission’s website), provided by Chief Judge Hug in conjunction with his testimony.

82. The following members of the Court have written specifically about the Ninth Circuit

Court of Appeals in response to the chairman’s invitation to offer suggestions to the Commission

in its work: Justice O’Connor, letter of June 23, 1998; Justice Kennedy, letter of Aug. 17, 1998;

Justice Scalia, letters of Aug. 21 and Sept. 9, 1998; and Justice Stevens, letter of Aug. 24, 1998.

Additionally, Justice Breyer, by letter of September 11, 1998, offered more systemic comments

on the federal appellate system, but said that he had “not worked in the Ninth Circuit, and . . .

shall not express a view about whether that Circuit has special problems that warrant its division.”

83. Three of the four Justices who wrote about the Ninth Circuit (Justices Kennedy, Scalia, and

Stevens) explicitly call for splitting the circuit, and one endorses circuit splitting as an option.

Justice O’Connor writes that “some division or restructuring of the Ninth Circuit seems appropriate and desirable,” but calls attention as well to “other proposals for setting up separate divisions

within CA-9.”
The Ninth Circuit and Its Court of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

37

“the Ninth Circuit does not come close to the number of en banc hearings

necessary to resolve intra-circuit conflicts, much less to address questions ‘of

exceptional importance’” (quoting Fed. R. App. P. 35(a)). Justice Scalia is similarly concerned with the inadequacy of the Ninth Circuit Court of Appeals’ en

banc process “not only to eliminate intra-circuit conflicts, but also to correct and

deter panel opinions that are pretty clearly wrong (which occasionally occur, of

course, in any Circuit)” (August 21, 1998 letter). He says the Supreme Court

could without difficulty promptly resolve additional intercircuit conflicts that a

circuit split might create, including a split that divided California. Justice Stevens

says that California lawyers’ concerns about dividing California between two

circuits “are seriously exaggerated.” Justice Kennedy also refers to the desirability of “our long tradition of appointing judges to serve a specific region. . . . The

legal communities and other constituencies in the separate states ought to have

a real interest in the judges of their respective circuits, and the judges, conversely,

ought to have historic and professional ties to the region they serve.”

C. Criteria Informing the Debate

The arguments of those who favor change and of those who oppose change have

both objective and subjective components. We have reviewed all of the available

objective data routinely used in court administration to measure the performance

and efficiency of the federal appellate courts,84 but we cannot say that the statistical criteria tip decisively in one direction or the other.85 While there are

differences among the courts of appeals, differences in judicial vacancy rates,

caseload mix, and operating procedures make it impossible to attribute them to

any single factor such as size.

Subjective criteria, such as consistency and predictability of the law, are obviously more difficult to evaluate but are widely regarded as a high priority for

the courts of appeals. In the time allotted, we could not possibly have undertaken a statistically meaningful analysis of opinions as well as unpublished dispositions, dissents, and petitions for rehearing en banc to make our own, objective

84. These include the number of appeals a court disposes of (“dispositions” or “terminations”)

relative to the number of cases filed, how many cases are orally argued and how many are decided

on the briefs, how many dispositions result in published opinions and how many in unpublished

memoranda or summary orders, the time from filing to disposition, and how often the court relies

on visiting judges from outside the circuit.

85. The statistical data that bear most directly on the arguments that have been made to us

come from information regularly reported by the courts of appeals to the Administrative Office

of the United States Courts. The Federal Judicial Center periodically converts the court-submitted

AO information into an integrated database and makes it available through the Inter-University

Consortium for Political and Social Research (ICPSR) at the University of Michigan. The FJC

analyses on which we relied will be set out in an appendix to the final report, along with directions

on how to obtain the underlying data from ICPSR to verify or extend the analyses.
The Ninth Circuit and Its Court of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

38

determination of how the Ninth Circuit Court of Appeals measures up to others.86 Our survey, however, did ask district judges and lawyers in the Ninth

Circuit and nationwide for their views and experiences. They are the primary

consumers of appellate decisions. District judges in the Ninth Circuit report

finding the law insufficiently clear to give them confidence in their decisions on

questions of law about as often as their counterparts in other circuits, but more

frequently report that difficulties stem from inconsistencies between published

and unpublished opinions. Lawyers in the Ninth Circuit report somewhat more

difficulty discerning circuit law and predicting outcomes of appeals than lawyers

elsewhere. Ninth Circuit lawyers, more often than others, reported as a “large”

or “grave” problem the difficulty of discerning circuit law due to conflicting

precedents, and the unpredictability of appellate results until the panel’s identity

is known. More Ninth Circuit lawyers reported that they “frequently” have trouble

predicting the outcome of an appeal. But when all is said and done, neither we

nor, we believe, anyone else, can reduce consistency and predictability to statistical analysis. These concepts are too subtle, the decline in quality too incremental, and the effects of size too difficult to isolate, to allow evaluation in a freezeframed moment.

In our common law system, consistency and predictability have to do with the

coherence of the law declared over time. On an appellate court, unlike a trial

court, groups of judges decide cases together. Initially this occurs through a

panel of three; what the panel decides speaks for the court as a whole, unless the

panel’s decision is reconsidered by the full court, sitting en banc. In this way,

judges working together determine the law and, for this reason, the appellate

process puts a premium on collegial deliberation, both on panels and en banc.

Collegiality in this sense does not connote friendship or agreement. Rather,

it has to do with the “intimate, continuing, open, and noncompetitive relationship” among judges that “restrains one’s pride of self and authorship [and] makes

a virtue of patience in understanding and of compromise on non-essentials.”87

Of course, this cannot be quantified or measured, and we make no attempt to

do so with respect to the Ninth Circuit Court of Appeals or any other. However,

it is our judgment that the consistent, predictable, coherent development of the

law over time is best fostered in a decisional unit that is small enough for the kind

of close, continual, collaborative decision-making that “seeks the objective of as

86. We are aware of the literature on this subject, including a study that concluded that intracircuit

conflict was not characteristic of the published opinions of the Ninth Circuit Court of Appeals in

the mid-1980s, although it did find instances of multiple precedents, pointing in different directions, in areas of the law involving fact-specific legal rules that require case-by-case interpretation.

See Arthur D. Hellman, Maintaining Consistency in the Law of the Large Circuit, in Restructuring

Justice: The Innovations of the Ninth Circuit and the Future of the Federal Courts (Arthur D.

Hellman, ed., 1990).

87. Frank Coffin, On Appeal 215 (1994).
The Ninth Circuit and Its Court of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

39

much excellence in a group’s decision as its combined talents, experience, and

energy permit.”88

D. A Divisional Arrangement for the Ninth Circuit

Court of Appeals

Having considered all of the arguments, evidence, the many helpful statements that were submitted to us, and our own experience, we recommend that

Congress and the President by statute restructure the Court of Appeals for the

Ninth Circuit into three regionally based adjudicative divisions and, in addition,

create a Circuit Division for conflict correction to resolve any conflicts that arise

from different decisions of the three regional divisions.89 Our recommendation

reflects not only our assessment of the needs of the Ninth Circuit Court of

Appeals today, but our assessment of the needs of this and other growing federal

appellate courts in the future.

1. The recommendation for a divisional arrangement

a. Regional divisions for the Ninth Circuit Court of Appeals: their

composition and operation

We propose that the Ninth Circuit Court of Appeals be organized into the three

regionally based adjudicative divisions shown below, which would hear and decide

all appeals from the district courts in the respective divisions:

Northern Division — Districts of Alaska, Idaho, Montana, Oregon,

and Eastern and Western Washington

Middle Division — Districts of Northern and Eastern California, Hawaii,

Nevada, and the Pacific islands

Southern Division — Districts of Arizona and Central and

Southern California90

The court of appeals would provide by rule for appeals from federal administrative agencies.

88. Id.

89. In Chapter 4, we recommend that Congress authorize any other court of appeals of more

than thirteen judgeships to arrange itself in divisions, and that it direct any court of appeals of more

than seventeen judgeships to do so.

90. The concentration of appeals in the southern part of the circuit makes it impossible to

divide the court’s workload equally among the three divisions, but we note that a near-equal

distribution could be achieved with this divisional arrangement if Arizona were moved from the

Ninth Circuit to the Tenth Circuit, or if Arizona were placed in the Northern Division instead of

the Southern. However, both possibilities are problematic for reasons unrelated to caseload; therefore we do not recommend either option.

We also recognize that California contributes disproportionately to the capital caseload of the
The Ninth Circuit and Its Court of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

40

Figure 3-A

Boundaries of Proposed Ninth Circuit Divisions

Middle Division,

Ninth Circuit

Arizona California

(C.D. & S.D.)

Southern Division,

Ninth Circuit

Northern Division,

Ninth Circuit Washington

Oregon

Idaho

Montana

Alaska

Hawaii

Northern

Mariana Islands

Guam

Nevada

California

 (N.D. &

 E.D.)

If Congress imposes a specific divisional structure on the Ninth Circuit’s Court

of Appeals, the judges and lawyers of the circuit should of course be heard in the

crafting of the statutory provisions. Nevertheless, we provide a draft bill to

implement our recommendations, set out in Appendix C-1. Our draft bill includes a “sunset” provision, under which the Act would terminate seven years

after its effective date. That period will allow time for initial reorganization and

sufficient experience under the plan to allow the Federal Judicial Center to conduct

a study of the effectiveness of this divisional structure and to report its findings

to the Judicial Conference, which can in turn advise Congress of the views of the

judicial branch on this important subject. The Ninth Circuit experience and the

study of that experience will also provide valuable assistance to the other courts

of appeals in designing their own divisional structures pursuant to our recommendation in Chapter 4.

circuit’s court of appeals, and so may burden the Middle and Southern Divisions more than the

Northern. Yet, again, there is no rational way to equalize the burden, whether the circuit is split,

or the court of appeals is restructured, as we recommend.
The Ninth Circuit and Its Court of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

41

Under the proposed statute, each circuit judge would be assigned to a particular regional division; each division would consist of at least seven circuit judges

in active status, with the actual number of judges to be determined according

to caseload needs. A majority of judges serving on each division would be residents of the districts over which that division has jurisdiction, but each division

would also include some judges not residing within the division, assigned randomly or by lot for specified terms of at least a year. Circuit judges in senior

status would be assigned to divisions in accordance with policies adopted by the

court of appeals.

Each division would function as a semi-autonomous decisional unit. Its judges

would decide appeals through panels and would sit en banc to perform for the

division the functions now assigned by statute to a regular court of appeals en

banc. Decisions made in one division would not bind any other division, but

they should be accorded substantial weight as the judges of the circuit endeavor

to keep circuit law consistent. We recognize that putting parts of California in

different divisions will prompt concerns about forum shopping and subjecting

Californians to possibly diverging lines of federal authority. However, in the

California state appellate court system, where the intermediate appellate system

is organized into geographical districts, the decisions of one court of appeal have

no binding precedential effect outside that court’s jurisdiction. Thus, differences

between the Middle and Southern Divisions under the system we propose would

not create a situation that does not already exist and is apparently well accommodated in state practice. Division decisions on state law issues would not, of

course, be binding on state courts. In any event, federal judges may certify

important questions on which state law is not settled to the California Supreme

Court. On federal law questions, conflicts can quickly be resolved by the Circuit

Division and certiorari from “incorrect” decisions or decisions that conflict with

other circuits can be sought in the United States Supreme Court. The spectre

of inconsistent interpretations of federal law may be unattractive, but is one that

exists throughout the federal system, and one that circuit splitting would not

ameliorate.

Each division would have a presiding judge, determined from among the

active judges of the division in the same manner that the chief judge of the circuit

is determined. As now, the court of appeals (and thus the circuit) as a whole

would have a chief circuit judge, but that chief circuit judge could not simultaneously serve as the presiding judge of a division.

b. Circuit Division for conflict correction, to resolve

interdivisional conflicts

In addition to the regional divisions, our proposed statute would create a Circuit Division for conflict correction, whose sole mission would be to resolve
The Ninth Circuit and Its Court of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

42

conflicting decisions between the regional divisions. It would be composed of

the chief judge of the circuit, the presiding judge of each regional division, and

one circuit judge from each of the regional divisions, selected under rules promulgated by the court of appeals as a whole. The Circuit Division’s jurisdiction

would be discretionary and could be invoked by a party to a case after a decision

in a regional division. However, a panel decision in one division asserted to

conflict with a decision in another division could be reviewed by the Circuit

Division only after the panel decision had been reviewed by the division en banc

or a divisional en banc had been sought and denied. The Circuit Division would

not have jurisdiction to review a decision by a regional division on the ground

that it is considered to be incorrect or unsound; its only authority would be to

resolve square inter-divisional conflicts. A regional division’s decision that is

claimed to be in error but does not create a conflict between divisions would be

subject to review only by the regional division sitting en banc or by the Supreme

Court. The Circuit Division would replace the circuit-wide en banc process,

which would be abolished. This change would not create a new tier in the judiciary, as it would merely substitute the Circuit Division for the existing en banc

process.

c. Appellate procedure and administration

The regional divisions would operate under the Federal Rules of Appellate Procedure and under such local rules and internal operating procedures as the court

of appeals as a whole might adopt. The Circuit Division would function under

rules specified by the court of appeals. The regional divisions would not be

authorized to adopt their own separate local rules or internal operating procedures. As now, the court of appeals would decide whether and how to establish

any regional appellate clerks’ offices, as well as how to arrange central staff attorneys, libraries, and other resources.

2. Reasons for the divisional arrangement

Our judgment that the law-declaring function of appellate courts requires groups

of judges smaller than the present Ninth Circuit Court of Appeals leads us to

recommend a divisional arrangement that we believe will capitalize on the benefits

of smaller decisional units without sacrificing the benefits of a large circuit.

a. Smaller decisional units will promote consistency and predictability

Courts of appeals rely on their judges to monitor the decisions of all panels of

the court, to identify and correct any misapplication or misstatements of the law,

and to govern their own decision making. Over time, coherence and consistency

suffer when judges are unable to monitor the law of their entire decisional unit
The Ninth Circuit and Its Court of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

43

or correct misstatements of the court’s decisional law. The volume of opinions

produced by the Ninth Circuit’s Court of Appeals and the judges’ overall workload

combine to make it impossible for all the court’s judges to read all the court’s

published opinions when they are issued.91 This fact, along with perceptions of

greater inconsistency in the Ninth Circuit than most other circuits, confirms our

own judgment, based on experience, that large appellate units have difficulty

developing and maintaining consistent and coherent law.

We believe that judges operating in the smaller decisional units we propose—

the regional divisions—will find it easier to monitor the law in their respective

divisions and that those smaller decisional units will thus promote greater consistency.

Also, decisions should become more predictable because a divisional arrangement that creates smaller, more stable groups of reviewers will allow district

judges to know better who will be reviewing their decisions, and lawyers to know

better the judges who will be deciding their cases. The court, as seen by those

who live under it and litigate before it, would become much more of a “known

bench,” fostering judicial accountability and public confidence. Likewise, the

circuit judges will know better the district judges and lawyers within their jurisdiction.

b. More effective en banc procedures and the Circuit Division will ensure

clearer, more consistent circuit law

By several accounts, the Ninth Circuit’s limited en banc worked well in its early

years, perhaps in part because the eleven-judge panels represented a larger proportion of the court’s judges. Dissatisfaction has arisen more recently with regard to both the infrequency of the Ninth Circuit en banc rehearings, relative

to the perceived need for them, and the size and composition of the en banc

court. Responses to our survey reflect this dissatisfaction. The proportion of

circuit judges who characterize their court’s performance of several en banc

functions as “good” is about the same in the Ninth Circuit as in other circuits,

and for some functions higher, but the proportion describing it as “inadequate”

is substantially higher in the Ninth Circuit.92 Similarly, more Ninth Circuit

91. On our survey, we asked judges whether they read all or most of the published opinions

of the court of appeals as they are issued. A lower percentage of Ninth Circuit judges than judges

in other circuits reported that they read all or most of the court’s published opinions—57% of the

circuit judges and 64% of the district judges, compared to 86% of circuit judges and 78% of district

judges in other circuits.

92. Between a quarter and a third of the Ninth Circuit judges described as “inadequate” the

court’s use of the en banc process to provide guidance to trial judges and lawyers, correct “wrong”

panel decisions, resolve conflicts in the circuit’s law, and prevent intercircuit conflicts. But the

Ninth Circuit does not stand alone in this regard—similar or higher levels of dissatisfaction were

reported by judges in several other circuits, not all of them “large.”
The Ninth Circuit and Its Court of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

44

judges—both circuit and district—than judges in most other circuits report

dissatisfaction with the frequency with which the court takes cases en banc.93

The divisional arrangement we propose would create groups that can function effectively en banc, thus giving each division a way to ensure that the decisions it issues are correct and reasonably uniform. It would relieve each judge

of having to cope with the decisional output of the entire Ninth Circuit Court

of Appeals, and reduce the burden of en banc calls to a more manageable level.

In time, we believe en banc rehearings may be needed within divisions less frequently because division judges will develop more collegial relationships and be

better able to avoid issuing incorrect or inconsistent judgments.

We also believe the Circuit Division for conflict correction, its mission restricted solely to resolving inter-divisional, intra-circuit inconsistencies, can act

more effectively than the present limited en banc mechanism. Although it may

seem paradoxical to respond to concerns about the present limited en banc by

creating a conflict resolving body that is even smaller, we believe that the bulk

of the work now done by the limited en banc will be done by the divisional en

bancs, for which all the division’s active judges will convene. Indeed, we think

the divisional en bancs, collectively, may do more work than the limited en banc

does now. The Circuit Division will resolve conflicts that arise, and its composition will ensure that the views of the majority of the court’s judges will predominate in that resolution.

c. The proposed divisional structure will rationalize the regionalizing and

federalizing functions of appellate courts

By constituting divisions with both resident and nonresident judges, the divisional structure respects and heightens the regional character deemed a desirable

feature of the federal intermediate appellate system, without losing the benefits

of diversity inherent in a court drawn from a larger area.

The divisional structure draws on the circuit’s full complement of judges while

restoring a sense of connection between the court and the regions within the

circuit by assuring that a majority of the judges in each division come from the

geographic area each division serves. As a practical matter, it avoids the problem

of presidential appointment that would be encountered if all judges were to be

assigned strictly to the divisions in their geographic area. Instead, the president

will continue to appoint judges to the court of appeals, not to a particular di93. For each en banc function we identified, Ninth Circuit judges were more likely than circuit

judges nationwide to say their court went en banc less often than necessary, although for each

function there was at least one other court in which a similar or higher percentage of judges felt

likewise.
The Ninth Circuit and Its Court of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

45

vision, subject however, to the informal norms that have developed to link

geography to appellate court appointments.

Maintaining the court of appeals for the Ninth Circuit as presently aligned

respects the character of the West as a distinct region. Having a single court

interpret and apply federal law in the western United States, particularly the

federal commercial and maritime laws that govern relations with the other nations on the Pacific Rim, is a strength of the circuit that should be maintained.

The Atlantic seaboard and Gulf Coast are governed by law determined by courts

of appeals in six separate circuits, which gives rise to complaints about intercircuit

conflicts from practitioners in the maritime bar, who regularly bemoan the differences in interpretation of federal law in circuits from Maine to Texas.

Moreover, federal appellate practice in the Western states will be less fragmented under a divisional arrangement than under two or more separate circuits

because the divisional arrangement contemplates a single set of local circuit rules,

continued administrative supervision of the entire circuit by the chief judge and

judicial council, a single circuit judicial conference and a conflict correction

mechanism within the same judicial circuit.

3. Differences between this proposal and the previous

divisional experiment

Our proposal differs significantly from the regional calendaring divisions that

the Ninth Circuit tried for five months starting in September 1978. In that

experiment, the judicial council created three regional divisions, one with three

active and one senior judge, the other two with five active and two senior judges.94

Circuit records suggest that the judges thought that the regional calendaring

system decreased circuit-wide collegiality and threatened the overall coherence

of the circuit’s substantive law, encouraging forum shopping. Some also doubted

that the program substantially reduced judges’ travel time, largely because northern

and middle division judges had to travel to assist the more heavily burdened

southern division. Perhaps most important, judges accustomed to sitting with a

larger and more diverse group of judges experienced “panel fever” when they sat

most of their time with a much smaller group.

Our proposal overcomes each of these problems. First, it ensures at least some

mix of judges throughout the circuit to maintain circuit identity and collegiality.

Second, the Circuit Division can maintain uniformity in the circuit’s law. Finally,

a court of twenty-eight circuit judgeships—or more—will allow divisions to be

created that are large enough to avoid the too-close associations experienced

when the much smaller court last tried a divisional approach.

94. Today, the Ninth Circuit has twenty-eight authorized judgeships, with twenty-two active

judges and seventeen senior judges presently serving.
The Ninth Circuit and Its Court of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

46

E. Realignment of the Ninth Circuit into Two or More

Newly Constituted Circuits

As we have said, we do not believe that a realignment of the Ninth Circuit and

the creation of more appellate courts in the West is necessary in light of the

restructuring into divisions that we propose. Any realignment of circuits would

deprive the west coast of a mechanism for obtaining a consistent body of federal

appellate law, and of the practical advantages of the Ninth Circuit administrative

structure. Moreover, it is impossible to create from the current Ninth Circuit

two or more circuits that would result in both an acceptable and equitable number

of appeals per judge and courts of appeals small enough to operate with the sort

of collegiality we envision, unless the State of California were to be split between

judicial circuits—an option we believe to be undesirable. If Congress rejects our

recommendation, the challenges to finding a workable solution are daunting.

We examined over a dozen proposals for splitting the circuit and found no merit

to any of them. Of the proposals, we describe three because they are the only

alternatives that have any geographical integrity, serve to any extent both the

federalizing and regionalizing functions of federal courts, and are consistent with

the principle of state contiguity in the “lower 48” states.95

1. Option A—Variation on the “classical split”

New Ninth Circuit — Arizona, California, and Nevada

New Twelfth Circuit— Alaska, Guam, Hawaii, Idaho, Montana, Northern

Marianas, Oregon, and Washington

Option A is much like what some have called the “classical split,” except that

it includes Hawaii (and the island territories) in the new Twelfth Circuit instead

95. To examine the caseload effects of different configurations, we estimated weighted filings

by taking the three-year average of filings; cases filed by pro se litigants were discounted by twothirds, in accordance with how the Judicial Conference of the United States treats them in its

current formula for assessing circuit judgeship needs. These per-judgeship figures use the number

of authorized judgeships and do not factor in either the court’s vacancies or its senior judges. The

weighted filing estimate per judgeship for the current Ninth Circuit (226) is thus based on twentyeight judgeships. The estimates for the differently configured circuits are based on the assumption

that wherever an active judge now sits, a judgeship will continue to exist. We also used as the site

of a judgeship the state of residence of any person whose nomination was pending as of October

1, 1998 (this frequently, but not always, corresponded with the residence of the judge whose

departure from active status created the vacancy). The calculations also assume that the vacant

judgeship for which a nomination was not pending would be moved from California to Hawaii,

to implement the relatively new requirement in 28 U.S.C. § 44(c) that at least one active circuit

judge be appointed from each state of a circuit. Obviously these assumptions are fraught with

uncertainty and subject to change, particularly if Congress were to create the five new judgeships

the Ninth Circuit Court of Appeals has requested.
The Ninth Circuit and Its Court of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

47

of in the Ninth. Placing the island jurisdictions with the Northwest states would

move slightly more of the caseload to the circuit with the lighter caseload and

might alleviate any sense in these small jurisdictions that they are dwarfed by the

much more populous states of the new Ninth. But the caseload difference to

either circuit would be small and there is no strong judicial administration reason

for choosing one circuit over the other for the island jurisdictions. Either

configuration would create workload disparity between the resulting circuits.

Using the one we describe, and based on filing trends over the past three years,

we estimate per-judgeship weighted filings would increase from 226 to 257 for

the new Ninth Circuit, and drop to 169 per judgeship for the new Twelfth

Circuit.96

D.C. Circuit

Federal Circuit

New Twelfth Circuit

3

1

California

Nevada

Arizona

Washington

Oregon

Idaho

Montana

1

2

3

4

11

6 7

5

8

10

New Ninth Circuit

Alaska

Hawaii

Puerto Rico

Virgin Islands

Northern

Mariana Islands

Guam

96. If this configuration were to become effective immediately, the disparity would be worse:

active judges in the new Ninth Circuit would face 119 more weighted filings (at 331) than active

judges in the new Twelfth Circuit (at 212).

Figure 3-B

Boundaries of Reconfigured Circuits—Option A
The Ninth Circuit and Its Court of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

48

2. Option B—“Classical split” plus realignment of Tenth

Circuit to reduce size of new Ninth

New Ninth Circuit — California, Guam, Hawaii, Nevada, Northern Marianas

New Tenth Circuit — Arizona, Colorado, Kansas, New Mexico, Oklahoma,

Utah, Wyoming

New Twelfth Circuit— Alaska, Idaho, Montana, Oregon, Washington

Figure 3-C

Boundaries of Reconfigured Circuits—Option B

The distinctive feature of this option is the shift of Arizona to the Tenth

Circuit. Next to California, Arizona generates more appeals than any other state

in the present Ninth Circuit; thus moving it would significantly alleviate the

caseload pressure exerted by California in the remaining Ninth Circuit. But it

would do so by disconnecting California from Arizona. To the extent that Arizona follows California law in several areas, and has significant commercial ties

with California, this would be an undesirable result. On the other hand, others

think that Arizona has more in common with the Rocky Mountain states than

the Pacific coast states. The Tenth Circuit Court of Appeals would be able to

absorb the added caseload from Arizona while still remaining an appellate court

of manageable size. Assuming the three circuit judgeships now in Arizona were

D.C. Circuit

Federal Circuit New Ninth Circuit

Hawaii

New Twelfth Circuit

3

1

Washington

Oregon Idaho

Montana

1

2

3

4

11

6 7

5

8

New Tenth Circuit California

Nevada

Kansas

Arizona

Colorado

New

Mexico

Oklahoma

Utah

Wyoming

Alaska

Northern Mariana Islands

Guam

Puerto Rico

Virgin Islands
The Ninth Circuit and Its Court of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

49

transferred to the Tenth Circuit, the weighted filings per judgeship in the new

Tenth would change little—we estimate 177 weighted filings per judgeship,

compared to 175. But the per-judgeship weighted filings in the new Ninth Circuit Court of Appeals would still rise by approximately 50 (from 226 to an

estimated 270), while falling in the new Twelfth Circuit from 226 to 162.97

3. Option C—Division of California between two circuits to

reduce size of new Ninth

New Ninth Circuit— Districts of Arizona, Southern and Central California,

Guam, Hawaii, Nevada, Northern Marianas

New Twelfth Circuit— Districts of Alaska, Eastern and Northern California,

Idaho, Montana, Oregon, Eastern and Western

Washington

Figure 3-D

Boundaries of Reconfigured Circuits—Option C

97. Immediate reconfiguration along these lines would cause even greater disparity than under

Option A: each active judge in the new Ninth Circuit would face 210 more weighted filings (at

392 per judge) than an active judge in the new Twelfth (at 182).

D.C. Circuit

Federal Circuit

New Twelfth Circuit

3

1

Nevada

Arizona

Washington

Oregon

Idaho

Montana

1

2

3

4

11

6 7

5

8

10

New Ninth Circuit

Alaska

Hawaii

California

(C.D. & S.D.)

California

 (N.D. &

 E.D.)

Puerto Rico

Virgin Islands

Northern

Mariana Islands

Guam
The Ninth Circuit and Its Court of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

50

This is the 1973 recommendation of the Commission on Revision of the

Federal Court Appellate System. It divides California between two circuits as the

only way to equalize caseloads, given California’s dominance over any circuit

into which it is allocated as a whole. (Weighted filings per judgeship would be

about 232 in the new Ninth Circuit and about 219 in the new Twelfth Circuit.)

This is the only option that distributes caseloads equitably, but it elicits strong

objections—as it did when the Hruska Commission proposed it—because it would

divide a state between two federal circuits. As noted above, Justice Scalia has said

that the Supreme Court could deal promptly with intercircuit conflicts affecting

California and Justice Stevens has characterized the bar’s concern over such a

split as “seriously exaggerated.” However, if the present Ninth Circuit is kept

intact, the Circuit Division for conflict correction that we propose will be able

to resolve inter-divisional conflicts—including those that the Supreme Court

might be disinclined to resolve as intercircuit conflicts—faster and with less expense

to litigants than Supreme Court resolution entails.

F. Conclusion

We believe that our recommendation addresses the adjudicative concerns that

have animated calls to split the circuit while preserving the administrative structure that no one has seriously challenged. We also believe that our proposal

accords with the overarching objectives of judges who have been responsible for

administering the circuit, who with considerable force and support have pointed

out how important it is to maintain a capacity, short of review by the Supreme

Court, for a common body of federal law on issues that matter to the whole

Pacific rim and the far western part of the United States.98 The Circuit Division

to resolve conflicts will do that.

The divisional structure for the court of appeals that we recommend, with a

ready conflict correction mechanism, is a practical alternative that is workable,

will achieve the legitimate ends of those who favor splitting the circuit and those

who seek to preserve it, and affords the greatest promise for flexibility in the

future. It is not, of course, a perfect structure. We can think of none that can

be, with California—the single largest contributor to caseload—a part of the

circuit. Yet we are persuaded that it is better to have the State of California

subject to different divisions within the same circuit than to split it between

circuits.

In sum, we have concluded and we therefore recommend to the Congress

and the President that legislation retaining the circuit but restructuring the court

of appeals is the most principled and effective way to resolve the debate about

the Ninth Circuit and its court of appeals.

98. See August 29, 1998, letter from Procter Hug, Jr., Chief Judge of the Ninth Circuit; James

R. Browning, Alfred T. Goodwin, and J. Clifford Wallace, former chief judges of the circuit; and

Circuit Judge Mary M. Schroeder, scheduled to be the next chief judge of the circuit.
uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

51

Chapter 4

Structural Options for the Courts of Appeals

In this and the next chapter, we turn from the Court of Appeals for the Ninth

Circuit to the total appellate system. We offer no recommendations on the realignment of other circuits, and, more than that, propose no general realignment

of the circuit structure. The Commission has been presented with suggestions

that the circuit structure as a whole is antiquated and should be abolished, putting

in its place a nationwide court of appeals organized internally to serve federal

appellate needs as they may shift over the years. We have concluded, however,

that the system of geographical circuits has not outlived its usefulness and that

a decentralized administrative structure for the federal judiciary continues to be

an effective means of administering this vast nationwide system of courts.

Current circuit boundaries are, to be sure, the product of history more than

logic, and probably would not be the boundaries one would draw if starting

afresh. By now, though, those boundaries are firmly established in the American

legal order, and changing them would impose substantial disruptive costs.

 Some commentators offer caseload inequality as a reason to split circuits;

some argue that a circuit should be split when the number of opinions its court

of appeals issues passes an unspecified threshold; others take longer appellate

disposition times as a sign that a split is in order. As we noted in Chapter 3, all

of these have been advanced by those who would split the Ninth Circuit. But

the data we reviewed show that all can be found in substantial measure in one

or more other circuits that cannot feasibly be split. If equalizing caseload among

circuits, or among circuit judges, were the most important criterion for circuit

alignment, a sweeping reconfiguration would be in order. If the number of

published opinions or higher-than-average disposition times were the trigger,

several circuits would now be candidates for reconfiguration. But caseloads change

and shift over time, more or less unpredictably, and disparity in caseload has

never been a driving principle in circuit configuration. Should caseloads ever

become so disproportionate as to cause nationwide concern in the future, the

structural alternative for courts of appeals that we recommend here will afford

maximum flexibility for circuits to remedy disparities themselves—by requesting

new judgeships and arranging them in optimally sized divisions, at minimum

cost and disruption.

Accordingly, we believe that some changes to the structure of the courts of

appeals will help them deal with the conundrum they will face as caseloads grow.

On the one hand, if they do not obtain more judge power, they risk unacceptable backlogs of pending cases or an unacceptable decline in the quantity and

quality of judicial attention paid to the cases they decide. On the other hand,

adding too many judges to a court that must act collegially may heighten the

likelihood of incoherence in the law. Although technology offers some promise
Structural Options for the Courts of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

52

of a way out of this bind, we doubt that it will suffice to avert it altogether. We

believe that the courts of appeals need additional flexibility to structure their

operations to meet changing circumstances that cannot now be foreseen.

We therefore recommend here a flexible statutory framework to allow courts

to experiment with three innovations: the divisional concept we propose for the

Ninth Circuit Court of Appeals; the use of two-judge panels for deciding some

kinds of cases; and district court appellate panels. While these innovations have

been discussed by judges and students of the appellate process, few have been

put to actual use, none in the federal courts. Rather than recommend a single

legislative prescription or set of prescriptions for all of the courts of appeals, we

urge Congress to authorize each circuit and its appellate court to test measures

best suited to its particular circumstances—the nature and volume of appeals, the

number of its judges, and other resources.

In addition, monitoring and evaluating the use of these procedures can provide Congress, the bench, and the bar with more systematic information about

these procedures than would otherwise be available, and thus help determine if

they can enable the federal appellate system to function better over the next

decade or two without the full increase in judgeships that caseload growth would

require under current methods of operation. It is possible that these innovations

could provide each circuit with a system adequate to handle its appellate business

in the years ahead, making a split of large circuits unnecessary. Regardless of

what Congress decides with respect to the Ninth Circuit and its court of appeals,

we recommend that these measures be enacted for the better administration of

appellate justice.

Finally, we do not believe these options will obviate the need for additional

judgeships. Indeed, even the innovations proposed here will fail if there are not

enough judges for the proper administration of appellate justice.

A. Divisional Organization of Courts of Appeals

In Chapter 3, we describe a divisional plan that we believe Congress should

direct the Ninth Circuit to implement as a seven-year demonstration to serve as

a model for other courts of appeals. In this chapter, we recommend that Congress, on a permanent basis, give all appellate courts of a certain size discretion

to adopt a divisional organization and require courts above a certain size to do

so. When an appellate court reaches fourteen judges it is large enough to make

feasible such an internal design, and it is reaching the point where performing

its en banc function effectively is unreasonably difficult. Still, a divisional structure would be optional for a court of more than thirteen judgeships until it

exceeds seventeen judgeships. In our view, when an appellate court operating as

a single decisional unit reaches eighteen judgeships, the en banc process becomes too cumbersome to be feasible, and a limited en banc does not seem to

us to be a long-term solution. Thus the statute we propose would require a
Structural Options for the Courts of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

53

divisional structure once an eighteenth judgeship is created. If the court itself

does not create divisions, the statute requires the circuit judicial council to so

organize the court.

The proposed statute leaves considerable leeway to a court of appeals in designing a divisional structure. Although not specified in the statute, we contemplate that each division would have an odd number of judges, with a minimum

of seven, and preferably no more than eleven judges. If a court needs to add a

number of judges that would make the divisions too large, a new division can

be created to maintain the general scheme. Whatever the design, the point is to

have each judge of the court assigned to a specific division for a substantial

period of time and for each division to exercise exclusive jurisdiction over the

cases assigned to it. The statute would require that upon the adoption of a

divisional plan the court also create a “Circuit Division” for conflict correction,

modeled on that prescribed for the Ninth Circuit in the previous chapter, with

the sole function of resolving conflicts between or among the divisions. It would

replace the circuit-wide en banc procedure, which would be abolished once a

divisional plan is in effect, although each division would continue to take cases

en banc as necessary.

Different circuits might implement the divisional arrangement in different

ways according to their needs, and we expect that creative judicial minds would

tailor these alternatives to fit local circumstances. Some courts might opt for a

regional organization in which not only the source of appeals (primarily the

district courts) but the composition of the judicial division would be entirely tied

to geography. Other courts might adopt an arrangement whereby judges are

primarily assigned to the division in which they reside, but would sit regularly

with one or more other divisions, not only to help out with caseloads as needed

but to ensure cross-fertilization on both substantive circuit law and appellate

procedures.

The proposed statute is set out in Appendix C-2 as subsection (d) of a revised

section 46 of Title 28, United States Code.

If enacted, this statute will render unnecessary—and even confusing—the

option for a court of more than fifteen judges to perform its en banc functions

with fewer than all its judges. This “limited en banc” authorization provided in

the 1978 Omnibus Judgeship Act has been used only in the Ninth Circuit and

with mixed reactions. Accordingly, we recommend that this provision be repealed, but only if our proposal for adjudicative divisions is enacted (see Section

2 of proposed statute set out in Appendix C-2.)

B. Two-Judge Panels

Currently, the courts of appeals function primarily through three-judge panels

pursuant to 28 U.S.C. § 46(b) (“the court may authorize the hearing and determination of cases and controversies by separate panels, each consisting of three
Structural Options for the Courts of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

54

judges”). As caseloads grow, courts would benefit from the flexibility to provide

by rule for two-judge disposition of some cases. We believe that two-judge panels

may be able to help the courts conserve resources with no loss in fairness, and

we thus recommend that Congress amend Section 46(b) to authorize federal

appellate courts to use two-judge panels, and that it allow the courts to designate

by rule those case types suitable for such disposition. Subsection (b) of the

proposed revision to 28 U.S.C. Section 46 in Appendix C-2 is a statutory revision to this end.

Three-judge panels in federal appellate courts are a legacy of the three-judge

appellate courts created by the 1891 Evarts Act. Three-judge panels are similarly

pervasive in the states. As far as we are aware, only the Appellate Division of the

New Jersey Superior Court, a statewide intermediate appellate court, uses twojudge panels; it has done so for twenty years99 and in recent years two-judge

panels have decided a majority of appeals in that court.

Some kinds of federal appeals may be suitable for disposition by two judges

and others clearly are not. The New Jersey Rule of Court on this point is instructive. It says that three-judge panels should be convened to decide “a question

of public importance, of special difficulty, of precedential value, or for such other

special reason as the presiding judge shall determine.”100 These are among the

types of cases that most federal appellate courts schedule for oral argument and

dispose of through published opinions, and they should remain the staple of the

federal three-judge panel.

Still, in most courts of appeals today, judges supervise or participate in a staffsupported screening process that identifies those cases in which the outcome is

clearly controlled by well-settled precedent. We expect that two-judge panels

would decide cases primarily of this type, which are now decided by most courts

without oral argument and with relatively brief opinions. If the two judges disagree or are in doubt, they can enlist a third judge to participate in the decision,

or refer the case to a regular three-judge panel for hearing.

Two-judge panels could reduce overall judicial resource needs but not necessarily by one-third. Most cases that now need and receive oral argument will

continue to need it, and these are the cases that consume the greatest share of

judicial resources. Moreover, whenever there is a written opinion, the judge with

primary responsibility for the opinion will spend more time on the case than will

the other member or members of the panel. Thus, the judicial time that a twojudge panel will save will likely be the time a third judge now spends reading the

briefs and conferring with the other panel judges; generally that will be less than

one-third of the total judicial time that would ordinarily be spent on the case.

Given effective screening and recognizing that a large proportion of cases can

only be decided one way, one might argue that a single appellate judge might

99. N.J. Ct. R. 2:13-2. Two-judge panels were authorized in September 1978.

100. Id.
Structural Options for the Courts of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

55

suffice to decide some appeals. However, at least until more information is available on the operation of two-judge panels, we believe a minimum of two judicial

minds should be brought to bear on alleged prejudicial errors made by a trial

judge.

Because of the strong tradition of using three-judge panels and the concerns

that departing from it may engender, we recommend that the Federal Judicial

Center monitor the types of cases disposed of by two-judge panels and the type

of procedural treatment they receive, and assess the effects of this change on the

productivity of courts of appeals that adopt it. The Center should report to the

Judicial Conference yearly, for at least the first three years that a court uses twojudge panels, information to allow the Conference to consider whether to recommend modifying or eliminating the authority for two-judge panels.

C. District Court Appellate Panels (DCAP)

We also recommend that Congress authorize the courts to experiment with shifting

a portion of the reviewing task to the trial court level, an idea discussed for at

least half a century by students of the appellate process as a way to expand appellate

capacity without incurring the costs associated with appellate court growth.

Specifically, we propose that Congress add a new section 145 to Title 28 of the

United States Code to authorize judicial councils to create district court appellate panels within the circuit and provide by rule for the assignment of certain

categories of cases to those panels. Appendix C-3 contains the proposed section

145.

In circuits that elect to use the authority conferred by this statute, the judicial

council would create a “district court appellate panel service” and assign to it

district and circuit judges of the circuit, the number of such judges to be determined by the council. The council would provide by rule for convening threejudge panels comprising two district judges and one circuit judge designated by

the chief circuit judge. The judicial council would specify the categories of cases

over which the DCAPs would have appellate jurisdiction. The clerk of the court

of appeals would serve as clerk for the district court appellate panel service.

Further review of decisions by a district court appellate panel would be in the

court of appeals, but only by leave of that court.

A likely prospect for DCAP jurisdiction is diversity of citizenship cases, because they typically present only state law questions on which a federal decision

can have no precedential effect. Another good prospect would be sentence appeals, as they present issues with which trial judges have wide experience. Other

good candidates for DCAP review are cases that generally require the reviewer

to apply well settled legal rules to varying fact patterns.

Trial judges already perform important reviewing functions in the federal

appellate system. Federal district judges often sit temporarily with the courts of

appeals, and in their own work regularly review trial proceedings when they rule
Structural Options for the Courts of Appeals

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

56

on post-trial motions. In recent times, bankruptcy appellate panels, which use

trial-level judges, have proven successful. In all of these contexts, trial judges are

often more familiar than circuit judges with the trial process; that perspective

allows them to be particularly adept at performing the error correction function.

Litigants might therefore find in the district court appellate panel more assurance that their cases are getting the personal attention of Article III judges

concerned primarily with correcting prejudicial errors in the trial proceeding.

Because these panels could convene in cities throughout the circuit, not simply

where the court of appeals hears arguments, they could provide litigants and

lawyers with a more readily accessible reviewing forum.

To avoid concerns about district judges reviewing the work of their colleagues,

district judges would not review judgments from the courts to which they had

been appointed. In some circuits, it may be necessary to import district judges

to staff these panels, and the proposed statute authorizes intercircuit assignments

for this purpose.

Although extensive use of district court appellate panels could reduce the

need for additional circuit judgeships, it would also, at least in some circuits,

require additional district judgeships. The proper number could be determined

only through experience, and we have not tried to project the additional need.

In any case, additional district judgeships would add flexibility to the judicial

system, as they could be deployed for trial or appellate work as the demands of

the docket require.

We do not express an ultimate judgment as to the value of district court

appellate panels. Much remains to be learned through use and experimentation.

We assert only that these panels hold sufficient promise of strengthening the

administration of appellate justice as dockets grow that the circuit judicial councils should be given the authority to experiment with them.101The statute in

Appendix C-3 leaves wide room for each circuit to select the cases to be routed

to these panels and to determine other procedural details. As with the other

proposals offered here, we recommend a program of monitoring and reporting

by the Federal Judicial Center so that the Judicial Conference may determine

whether to recommend that the authority be continued, modified, or eliminated.

101. We are aware of some district and circuit judge opposition to the concept of district court

appellate review, as reported in comments directly to us and in a 1992 survey of federal judges

(see Planning for the Future: Results of a 1992 Federal Judicial Center Survey of United States

Judges at 5 and 27, reporting that about 65% of both circuit and district judges were strongly or

moderately opposed to “a district court ‘appellate division’ for error correction, with discretionary

review in the court of appeals”). We stress, however, that we see our specific proposal, which was

not available to earlier commentators, as an experiment to be developed at the discretion of the

judges involved, who will surely assess, among other things, whether enough district judges are

available to make any such experiment feasible.
uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

57

Chapter 5

Appellate Jurisdiction

As explained in Chapter 1, a majority of the Commission makes no recommendations on what matters should come into the federal courts. However, in this

section we offer our recommendations on where and how appellate review of

some of those matters might be best structured.

A. Bankruptcy Appeals

We reviewed legislation pending during our study period, and the recommendation of the National Bankruptcy Review Commission (NBRC) that would

provide for appeal of decisions by bankruptcy judges in core matters (and in

those noncore matters where the parties had consented to entry of the final

order by a bankruptcy judge) directly to the regional courts of appeals, rather

than to the district courts or bankruptcy appellate panels. We strongly recommend that Congress not implement this recommendation without modification,

because it would exacerbate problems in the courts of appeals and destroy the

apparently successful innovation of bankruptcy appellate panels. Nevertheless,

the underlying problems that have prompted the proposals for change may need

resolution. We have not made a full study of the bankruptcy appellate system,

nor did the NBRC because of the broad scope of its mission and many demands

on its time and attention. Accordingly, we urge that before Congress mandates

any revision of the bankruptcy appellate system, it carefully consider alternatives

to the NBRC recommendation.

For the present, we offer our assessment of the situation and proposals for

alternative arrangements that will avoid the severe impact on some courts of

appeals that inhere in the direct review proposal.

1. Current bankruptcy appellate structure and asserted

problems

District courts are the primary appellate forum for many bankruptcy cases and

proceedings. Several circuits, and with particular success the Ninth Circuit, have

used their statutory authority to conduct some appellate review by a bankruptcy

appellate panel (or BAP). A bankruptcy appellate panel comprises several bankruptcy judges, most of whom continue to serve as active bankruptcy judges at

the trial level but also spend some of their time deciding appeals arising from

bankruptcy courts in districts other than their own.

The structure of the bankruptcy appellate system is asserted to cause two

general classes of problems. First, by its nature the system produces relatively

little binding precedent, and this is said to result in uncertainty, unpredictability,
Appellate Jurisdiction

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

58

and nonuniformity. Second, the multiple appellate levels of the system take too

long and cost too much for many litigants.

Although the true extent of uncertainty and unpredictability attributable to

the dearth of binding precedent is unknown, commentators have documented

specific issues that remain unresolved because they have not been authoritatively

decided.102 Even more than in other areas of the law, many parties in bankruptcy

are not in a position to litigate an issue through what may be as many as four

levels before final resolution. Although cost is a significant problem to the parties, apparently one of its main detrimental effects on the system is that cases

drop out before the appellate issues can be definitively resolved.103

The NBRC recommended the elimination of the first layer of appeal to a

district court or BAP.104 In 1998, comprehensive bankruptcy reform legislation

was introduced in the House of Representatives that would, among other things,

implement some aspects of the NBRC recommendation on bankruptcy appeals.

Such legislation would eliminate appellate review in bankruptcy matters by the

BAPs and district courts.

We agree with the NBRC’s assessment that the current bankruptcy appellate

structure is less than ideal and understand that it may be causing substantial

problems for litigants and their lawyers, but we disagree with the NBRC’s proposed solution. We recommend that Congress consider several alternatives, but

first we explain why we urge a route different from the NBRC recommendation.

2. Effect of direct bankruptcy appeals on the courts of

appeals

Notwithstanding the obvious advantages to routing bankruptcy appeals directly

to the courts of appeals (e.g., simplification, more binding precedent, and relief

for district courts), direct review also has serious drawbacks. The most significant

is the increased workload it would bring to the courts of appeals. If recent

bankruptcy appeal trends were to continue, direct review might increase appellate caseloads more than 6% (i.e., more than 3,200 new appeals per year). In six

102. See Paul M. Baisier & David G. Epstein, Resolving Still Unresolved Issues of Bankruptcy

Law: A Fence or an Ambulance?, 69 Am. Bankr. L.J. 525, 526-27 n.9 (1995), for examples of

issues that are litigated repeatedly.

103. However, bankruptcy appeals that actually get filed in the courts of appeals do not appear

to drop out by settlement or other procedural termination at any higher rates than other civil

appeals. See Judith McKenna, Elizabeth C. Wiggins & Patricia Lombard, Statistical Information

Regarding Bankruptcy Appeals, in Educational Program for the Seventy-first Annual Meeting of

the National Conference of Bankruptcy Judges (Oct. 16–19, 1997), 6-17, 6-23 (on file with the

Commission).

104. Recognizing that many orders in bankruptcy cases are determinative of substantive rights

but are not technically “final,” the NBRC also recommended an interlocutory appeal provision

(Recommendation 3.1.4). The NBRC was created by the Bankruptcy Reform Act of 1994.
Appellate Jurisdiction

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

59

courts, this would add more than 50 appeals per panel each year. In three courts,

including the Ninth Circuit Court of Appeals, the increase would be approximately 100 new appeals per panel.

Direct review has other disadvantages as well. A speedy resolution is often

essential in bankruptcy appeals, but in some overburdened courts of appeals,

bankruptcy appeals may not be decided soon enough to realize the proponents’

efficiency hopes. And cost savings for litigants are not assured. Most appeals will

be heard outside the district in which they arose because most courts of appeals

hold court in only one or two places. Thus, parties who would have stopped at

one appeal in any event will incur more expense and inconvenience than they

would in the current system.

Finally, direct review would sacrifice bankruptcy judge expertise that has proven

valuable in circuits with BAPs. Circuit judges, on average, have less specialized

knowledge about bankruptcy than do bankruptcy judges, particularly those selected to serve on BAPs.

Given these concerns, the Commission recommends that Congress seriously

consider three options. All are based on the generally high level of performance

demonstrated by the Ninth Circuit BAP and anticipated in the circuits that have

more recently instituted BAPs. A 1989 Federal Judicial Center study105 found

that a large majority of attorneys had high regard for the BAP and supported its

continuation. Ninth Circuit data show that parties consent to BAP review in

about 60% of bankruptcy appeals, and that the rate of further appeal from BAP

decisions in bankruptcy appeals is about half the rate of appeal from district court

decisions.106

3. Possible alternatives for handling bankruptcy appeals

One approach would provide direct appeal as of right to the court of appeals but

allow the court to use a BAP to provide it with a report and recommendation

in each appeal from a judgment, order, or decree entered by a bankruptcy judge.

Unless a party objected or the court disagreed with the BAP’s recommended

disposition, the report and recommendation would be adopted as the court of

appeals’ decision. Given the low frequency of appeals from BAP decisions, at

least in the Ninth Circuit, this option could help the courts of appeals handle

their workload if the NBRC’s recommendation regarding direct appeals were

adopted.

105. Gordon Bermant & Judy B. Sloan, Bankruptcy Appellate Panels: The Ninth Circuit’s

Experience, 21 Ariz. St. L.J. 181 (1989).

106. Letter from Chief Judge Procter Hug, Jr., to the Hon. Wm. Terrell Hodges, Chair of the

Executive Committee of the Judicial Conference of the U.S. (March 27, 1998); see also memorandum to the Ninth Circuit Judicial Council from its Committee on Bankruptcy Appeals (Feb.

27, 1998).
Appellate Jurisdiction

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

60

A second approach would allow litigants to choose either the court of appeals

or the BAP, with further review of BAP decisions only in the discretion of the

court of appeals. This could avoid a very large increase in the workload of some

courts of appeals and provide faster resolution of issues by judges especially knowledgeable about bankruptcy. In many circuits it could save parties time and money

because the BAP would decide appeals more quickly than the courts of appeals.

It would also meet the NBRC’s major objectives of eliminating the cost and

delay inherent in two levels of appeal as of right and ensuring bankruptcy appeals

are heard by tribunals having typical attributes of an appellate court. Experience

indicates that the greatest workload relief for the courts of appeals would be

achieved if parties were required to “opt out” of the BAP system rather than

“opt in.”107 Accordingly, we recommend that, should Congress choose this option,

it include such a requirement.

Appendix C-4a contains statutory language that would direct appeals from all

final judgments, orders, and decrees in bankruptcy cases and proceedings to the

regional courts of appeals. It further provides that each circuit judicial council

may establish a BAP to do one or both of the following: (1) with the implied

consent of the parties, issue binding appellate decisions subject to further review

at the discretion of the court of appeals; or (2) issue a report and recommendation subject to de novo review by the court of appeals. (The statutory language

also deals with interlocutory appeals.)

Third, Congress could substitute BAP review for district court appellate review of bankruptcy judge decisions in core bankruptcy proceedings and in noncore

bankruptcy proceedings where the parties had consented to final judgment by

a bankruptcy judge. (District courts would still provide de novo review of bankruptcy court findings of fact and conclusions of law in noncore matters where

parties had not consented to final judgment by the bankruptcy judge.) The BAPs’

decisions would bind bankruptcy judges but not district judges. The regional

courts of appeals would have jurisdiction of appeals from BAP decisions and

from decisions by the district courts exercising their original bankruptcy jurisdiction. Although this approach might establish circuit precedent more quickly

than under the current system, and would add (or retain) three-judge panel

deliberation, it would also require litigants to clear another non-Article III hurdle

before obtaining review by an Article III court. That could create constitutional

challenges to the bankruptcy appellate system; we offer no opinion on whether

such challenges would succeed but note that uncertainty would prevail until the

matter was settled. This alternative could also defeat the goals of increased con107. That is, consent to BAP jurisdiction would be implied by a party’s failure to request direct

review by the court of appeals. In its initial incarnation, the Ninth Circuit BAP process required

affirmative, express consent from the litigants. The BAP received few appeals. When the circuit

amended the procedure to route bankruptcy appeals to the BAP unless parties opted out of BAP

review, the BAP caseload increased tenfold. Bermant & Sloan, supra note 105, at 198.
Appellate Jurisdiction

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

61

venience and decreased expense of bankruptcy appeals. Moreover, small circuits,

particularly those dominated by a single judicial district, may not have sufficient

judge power outside that district to carry the BAP workload. Appendix C-4b

contains statutory language that could implement this approach.

B. General Discretionary Review in the Courts of

Appeals

The traditional view of 28 U.S.C. § 1291, which confers jurisdiction on the

courts of appeals to review final decisions of the district courts, is that it accords

litigants a right to an appeal and, correspondingly, imposes an obligation on the

court to consider a properly presented case and decide it on its merits. This

obligatory review was sharply distinguished from the concept of discretionary

review, under which an appellate court has a choice as to whether it would consider

the case on its merits. Up until three decades ago this right to appeal was assumed to include an opportunity to file briefs, to present oral argument to the

court, and to receive from the court a written opinion explaining the decision.

That conception of an appeal, however, has undergone modification as the

appellate courts have adopted screening and tracking procedures through which

a large proportion of appeals are decided by the court without oral argument

and by judgment orders or unelaborated opinions.

This development has blurred the distinction between obligatory and discretionary review. Under either type of jurisdiction, litigants file papers with the

court containing arguments, facts, and legal authority, and the court considers

those papers. If the case comes as an appeal, theoretically as a matter of right,

and the court has adopted screening procedures, the case will receive threshold

scrutiny and be routed either through a summary procedure for decision without oral argument (usually resulting in a brief, unpublished disposition or order), or it will be scheduled for argument (usually resulting in a full opinion that

explains the facts and applicable law). If the case comes as a petition for discretionary review, the court will likewise examine the papers and either deny review

or grant review, in which case it will accord the appeal a more elaborate process,

usually including oral argument and a reasoned opinion. In other words, whether

the court’s jurisdiction is labeled obligatory or discretionary, litigants obtain a

judicial examination of their contentions either through an abbreviated process

or what is considered the traditional appellate process.

There are, however, two types of discretionary review, and the foregoing description of a blurring of the distinction is accurate as to only one of the two

types. One type is exemplified by the certiorari jurisdiction in the U.S. Supreme

Court, found also in many state supreme courts. Under that arrangement, the

court is given an unrestrained choice to refuse to entertain the case or to take

it up on its merits. The choice to deny review can be made without regard to
Appellate Jurisdiction

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

62

the merits, and a denial of review does not imply any view as to whether the

lower court judgment is correct or incorrect. A denial can be made on a variety

of grounds having nothing to do with the merits of the case—e.g., that the

question is presented on a record that is too murky, that the court wishes to let

the issue percolate further in the lower courts, or that as a matter of timing the

court prefers to defer facing the issue. In that type of discretionary review, there

is a sharp distinction with appeals of right, as the latter require the court to deal

with the merits, however truncated its process may be.

It is in the other type of discretionary review that the distinction with appeals

of right virtually disappears. That type is found in the appellate courts of Virginia

and West Virginia and in the U.S. Court of Appeals for the Armed Forces. It can

also be seen in the English Court of Appeal, Criminal Division. Under that

arrangement, a party files with the appellate court a petition or application for

leave to appeal. The court’s authority to grant or deny leave is said to be discretionary. However, a decision to deny leave involves an examination of the merits

in a way that a certiorari jurisdiction does not. While the formulation of the

standard for denying leave varies, it is essentially that the case presents no issue

of arguable merit or no showing of probable error in the trial court proceedings.

In those courts, a denial of leave is in functional effect like a decision in a federal

court of appeals to send a case through to decision without oral argument and

dispose of it without a full opinion. The similarity is especially marked if the

court issues only a one-line affirmance.

A recognition of this reality has prompted some judges to suggest that the

jurisdiction of the federal courts of appeals be made expressly discretionary. They

argue, among other considerations, that this would be more honest, that it would

reflect what is actually going on.

The force of this argument for a discretionary review system in the federal

courts varies with the type of discretion that is envisioned. If what is being advocated is the certiorari type discretion found in the Supreme Court, its adoption would mean that a court of appeals could deny review for any reason and

without a serious look at the merits. For example, denials could be made on the

ground that the court’s docket is overloaded or that the issues presented are of

little importance to the law. We believe that this type of appellate jurisdiction

runs too counter to the now prevalent view that a losing litigant in the trial court

should have one opportunity for an appellate court to examine assertions that

the trial court has committed prejudicial error, and therefore we do not recommend it.

If, however, what is intended by the suggested change is the other type of

discretionary review, what might be called for short the Virginia type, the case

is closer. If that is what is intended, the statute authorizing it should include

express wording requiring the court to grant leave to appeal “if the case presents

any issue of arguable merit.” Under this approach, review might be made dis-
Appellate Jurisdiction

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

63

cretionary with respect to types of cases that are generally fact intensive and

controlled by existing precedent, but occasionally present a question of statutory

interpretation that has not been definitively resolved. We are not persuaded,

however, that a shift to an express discretionary jurisdiction for all appeals generally is a good idea.

C. The Federal Circuit and Its Potential

Although this report is focused on the regional courts of appeals and regional

circuit alignment, we note that the most significant and innovative structural

alteration in the federal intermediate appellate tier since its establishment was the

creation by Congress in 1982 of the U.S. Court of Appeals for the Federal

Circuit. The Federal Circuit has no geographical boundaries, except that of the

United States as a whole. Its jurisdiction is defined in two distinctive ways: (1)

It has exclusive appellate jurisdiction over the decisions of certain lower courts

and administrative bodies, including the Court of Federal Claims, the Court of

International Trade, the Court of Veterans Appeals, and the Merit Systems

Protection Board. (2) It has exclusive appellate jurisdiction over the decisions of

all the district courts in cases of particular subject matters. The major category

consists of suits for patent infringement; in any action of that type brought in

a district court anywhere in the country, the appeal will go to the Federal Circuit

instead of to the court of appeals in whose regional circuit the district court is

located. Otherwise, the Federal Circuit Court of Appeals is organized like all of

the other federal appellate courts. It has a legislatively authorized number of

circuit judgeships (twelve), a clerk of court, and supporting personnel. However,

in addition to a relatively small group of central staff attorneys, it alone among

the appellate courts employs, pursuant to statutory authorization, a small staff

of technical advisors, mainly to assist the judges with the complex questions

often involved in patent cases.

In creating this new court, Congress recognized that it was not only acting

to meet existing conditions and needs but that it was also providing the federal

appellate system with a resource it had not previously had—a court that could

be vested with exclusive appellate jurisdiction over other categories of cases litigated in the district courts as to which in the years to come there would be a

perceived need for centralized, nationwide review. Before the establishment of

this court, Congress, when faced with such a need, had been forced to enact

special arrangements, as it did, for example, in creating the Court of Customs

and Patent Appeals and the Temporary Emergency Court of Appeals (TECA).

Such measures are no longer necessary. Indeed, twice since 1982 Congress has

taken advantage of this appellate resource: by abolishing TECA and transferring

its authority to the Federal Circuit, and by giving the Federal Circuit exclusive

jurisdiction to review decisions of the Court of Veterans Appeals. In its 1995
Appellate Jurisdiction

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

64

Long Range Plan, the Judicial Conference recommended that the appellate

function should be performed “primarily in a generalist court of appeals established in each regional circuit; and a Court of Appeals for the Federal Circuit

with nationwide jurisdiction in certain subject-matter areas.”108

We make no specific recommendations as to additional categories of cases that

might usefully be placed within the Federal Circuit’s jurisdiction. However, we

list below three types of cases that have been frequently discussed as potential

candidates for the Federal Circuit’s jurisdiction, including the key reasons advanced for centralized review. We transmit these to Congress, without recommendation, for its use as it examines the needs of the federal appellate system in

the future.

1. Tax appeals

For more than half a century, lawyers, judges, and legal scholars have urged that

appeals in civil cases arising under the Internal Revenue Code be concentrated

in one court of nationwide scope. Presently, appeals in those cases are taken to

the regional courts of appeals from the 94 district courts, as well as from the

single Tax Court (a review structure referred to as the “inverted pyramid”). The

concern voiced is that having appeals in such cases spread across twelve appellate

courts works inequities, in that citizens in different parts of the country are

sometimes subject to different tax liabilities, and that planning is made difficult

because the meaning of the tax law is often left unsettled for years, as the Supreme Court decides very few tax cases. In 1979, the Senate Judiciary Committee held extensive hearings on a bill to create a Court of Tax Appeals and received substantial support for the proposal. In 1990, the Federal Courts Study

Committee recommended the centralizing of civil tax appeals and proposed that

such review be placed in an Article III division of the Tax Court. As said above,

the existence of the Federal Circuit, as part of the federal intermediate appellate

system, makes unnecessary the creation of special courts of that sort. If Congress

decides to centralize tax appeals, the Federal Circuit provides a readily available

forum for that purpose, one that already adjudicates appeals in tax cases coming

to it from the Court of Federal Claims, and whose docket would be capable of

absorbing appeals from the Tax Court or the district courts or both.

2. Copyright cases

Patents and copyrights are linked in Art. I, Sec. 8 of the Constitution, which

gives Congress authority “to promote the progress of science and the useful arts

by securing to inventors and authors for limited times the exclusive right to their

108. Long Range Plan for the Federal Courts 43 (1995).
Appellate Jurisdiction

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

65

respective writings and inventions.” Pursuant to that authority, Congress has

enacted statutes governing both patents and copyrights, and the desirability of

national uniformity in the law governing both has often been stressed. A specially felt need to introduce a higher degree of uniformity in the patent field was

a major motivation for the creation of the Federal Circuit, at the time that legislation was enacted in 1981. Since then, technological developments have wrought

far-reaching changes in both patents and copyrights. Computers, electronic data

processing, storage, and communication in the information age have brought

them together in ways that were unknown seventeen years ago. Today patents

are issued for computer software programs that often are also the subject of

copyrights. For this reason, some have suggested that it would be sensible to

have patent and copyright claims ultimately adjudicated in the same court.

3. Social Security appeals

The suggestion has often been made that judicial review of Social Security cases,

after final administrative action in the agency, be placed in an Article I court,

thereby relieving the district courts of this administrative review task. Although

the Commission has reviewed proposals to that effect, we make no recommendation in that regard, other than to say that they deserve the serious consideration of Congress. If Congress should at some point create an Article I court for

this purpose, Congress may want to consider placing exclusive appellate jurisdiction over that court in the Federal Circuit. The Federal Circuit is already vested

with such jurisdiction over decisions of the Court of Veterans Appeals, an Article

I court to which all appeals are taken from adverse administrative action by the

Veterans Administration. Social Security claims and veterans claims have much

in common, and it would be sensible and efficient to place appellate review over

all of them in one forum. If this were done, the standard of review for the

veterans appeals would seem appropriate for Social Security cases, namely, a limitation of appellate review to questions of statutory and constitutional interpretation.
uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

66

Chapter 6

Recapitulation and Concluding Observations

After examining the structure and circuit alignment of the entire federal appellate system, with particular reference to the Ninth Circuit, the Commission has

developed, and here recommends to the Congress and the President, a set of

statutory proposals that we believe will provide the structure and flexibility that

the federal appellate system needs to administer justice in the future. We urge

as well that the Judicial Conference of the United States and all federal judges

consider the merits of the proposals.

These proposals, if enacted, would:

• organize the Ninth Circuit Court of Appeals into regional adjudicative divisions, with a Circuit Division to maintain uniform circuit law (Chap. 3,

sec. D; Appendix C-1);

• authorize any court of appeals with more than thirteen judgeships, at its

option, to organize itself into divisions, and require any court of appeals

with more than seventeen judgeships to do so (Chap. 4, sec. A; Appendix

C-2);

• authorize the courts of appeals to decide selected cases with two-judge

panels (Chap. 4, sec. B; Appendix C-2);

• authorize the judicial council of any circuit to establish district court appellate panels to provide first level review for designated categories of cases

that involve error correction, with discretionary review in the court of appeals

(Chap. 4, sec. C; Appendix C-3).

In developing these proposals, the Commission has drawn upon the contributions of many judges, lawyers, and legal scholars who have devoted much

thought over the years to the problems of the federal judiciary. We believe these

proposals are constructive, forward-looking innovations; yet they do not work

radical change. They build on the existing circuit structure and alignment. They

are evolutionary, not revolutionary. Regardless of what Congress decides to do

with respect to the Ninth Circuit, the importance of the other recommendations

would not be diminished; they should be enacted in any event for the better

administration of appellate justice.

In addition to these specific statutory recommendations, we commend to the

consideration of Congress suggestions regarding bankruptcy appeals, discretionary appellate jurisdiction in general, and other potential uses of the Court of

Appeals for the Federal Circuit.

To assist Congress further, the Commission has prepared, and included in the

Appendices to this report, drafts of bills to implement its recommendations. By
Recapitulation & Concluding Observations

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

67

providing the actual text of the recommended statutory measures, we hope to

facilitate the introduction of bills to carry out these proposals.

Although our recommendations go well beyond the Ninth Circuit, that circuit and its court of appeals are obviously at the heart of this report, both by the

terms of the statute and because of the history that brought this Commission

into existence. Our recommendation for a divisional organization of the Ninth

Circuit’s Court of Appeals is a major recommendation, not only because of the

change it would work in that court but also because, if successful there, the

experience would benefit every other court of appeals that grows large enough

to call into question its ability to function as a single decisional unit. If the

divisional arrangement we offer proves successful, it will preserve not only the

Ninth Circuit for the foreseeable future, but the entire structure of the regional

federal appellate system composed of a relatively small number of geographical

circuits and the non-regional Federal Circuit. We therefore urge Congress to

enact our divisional proposal and thus enable the Ninth Circuit and its court of

appeals to continue to serve as a laboratory for innovation.

No set of measures can, of course, be good for all time, but we believe that

the proposals recommended in this report will, if enacted, provide the nation

with a federal appellate structure that, with adequate funding, should operate

well into the indefinite future. The recommendations in this report reflect our

best effort to adapt the appellate system to current realities with the least cost

and the greatest benefit to litigants, the bar, the judiciary, and of course the

citizens of the country. The benefits of these proposals are not without some

costs, at least to established ways of doing business, but we believe the benefits

outweigh the costs.

With the submission of this final report to the Congress and the President,

the Commission considers that it has discharged its ultimate statutory responsibility to recommend “such changes in circuit boundaries or structure as may

be appropriate for the expeditious and effective disposition of the caseload of the

Federal Courts of Appeals, consistent with fundamental concepts of fairness and

due process.”
uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

68

Statement of Judge Merritt, Joined by Justice White,

Dissenting in Part from Chapter 1’s Section Entitled

“Jurisdiction and Structure” (p. 5)

A few weeks ago I suggested to the Commission that we present to Congress

a plan that would reduce the caseload presented by the diversity cases. The plan

was laid over to be passed upon on September 15, which was the date set for

making as much progress as possible in order to get a proposed report to be

presented to the public. The September vote on the diversity jurisdiction plan

was three to two against the plan. The controlling reason given by the majority,

as I understand it, was that a plan suggesting changes in federal jurisdiction

exceeds our statutory power plain and simple.

The relevant language of the statute creating this Commission is this: We are

to make “recommendations for such changes in circuit boundaries or structure

as may be appropriate for the expeditious and effective disposition of the caseload

of the Federal Courts of Appeals.” My plan easily passes muster under this statutory language. It recommends restructuring diversity jurisdiction by Congress

and is aimed at reducing circuit court caseload substantially. The majority interprets its mandate to cover federal jurisdiction only if the issue is joined with

“structure.” But diversity jurisdiction is plainly structural. Furthermore, the Report

also indicates that it is not acceptable to address district court jurisdiction because the Commissioners did not choose to review the caseloads of both circuit

courts and district courts. Yet, the Commission proposes to have district court

panels act as appellate panels—a proposal affecting both structure and caseload.

In light of this proposal, I press my plan.

The growing caseload of the federal courts is our most significant problem.

It drives the needs to create judgeships, which in turn drives the need the create

courts. No substantial progress can be made in curtailing the growth in the size

of the federal judiciary and its large staff unless Congress makes changes in

jurisdiction. Thus, caseload and jurisdiction directly relate to and impact the

structure of the appellate courts. The debate which gave rise to the creation of

this Commission was fueled in part by caseload problems facing the Ninth Circuit Court of Appeals. Congress seeks our recommendations for changes in

structure that may be appropriate for the effective disposition of the caseload of

the federal courts of appeals. We devote an entire chapter in our report to the

history of caseload and judgeships in the circuits and courts of appeals. Yet, the

majority of our Commission construes our mandate from Congress so narrowly

that they preclude consideration of factors that impact caseload most—i.e., the

jurisdiction of the federal courts—and thereby deprive Congress and the President of the benefit of recommendations that not only will treat the symptoms

of the caseload problem but would also provide a cure to the problem.
Dissenting Statement

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

69

For these reasons, we respectfully dissent from the Commission majority’s

decision not to make recommendations about overall federal jurisdiction, and we

present a plan to modify substantially diversity jurisdiction. If such a change were

made, it would give breathing room to courts of appeals now being overwhelmed

with cases and it might well obviate the need to make substantial changes in the

federal courts of appeals for several decades. Following our discussion of this

plan, we conclude with some additional observations on the jurisdiction of the

federal courts.

I. Proposal to Reduce Diversity Jurisdiction

Although diversity jurisdiction has been under attack since the Founding of the

nation, it has survived because there has always been an understanding that federal

courts are needed to counteract the local influence that sometimes prejudices the

state courts in cases involving out-of-state parties. Consequently, past proposals

to abolish or severely restrict diversity jurisdiction have consistently failed.

Senator Kenneth McKellar proposed a new solution in 1945 that would have

eliminated original diversity jurisdiction and allowed defendants to remove cases

to federal court when they could show proof of local influence or prejudice. This

would have made diversity jurisdiction consistent with its original purpose while

providing enormous relief to the federal dockets by removing those run-of-themill state-law cases that have no legitimate claim to a federal forum. Judge William Denman of the Ninth Circuit Court of Appeals testified on behalf of federal

judges in favor of Senator McKellar’s proposal to replace general original diversity jurisdiction with special removal jurisdiction in cases involving local prejudice. In his testimony to the Senate Judiciary Committee, Judge Denman noted

the vast changes that have unified the country since the Founding and pointed

out the fallacy in assuming that state courts are always inferior. Judge Denman

asked, “Are the States of the union sufficiently civilized to provide courts in

which even justice is done, in controversies involving nothing but State laws,

between citizens of one State and those of the other State?” After observing how

two world wars had unified the country and how judges from around the world

had begun visiting the United States to study our judicial system, he answered

with an unqualified “yes.”109

Recently, Judge Jon Newman of the Second Circuit Court of Appeals revived

interest in Senator McKellar’s idea with his suggestion to make certain classes of

federal jurisdiction discretionary: “Permitting federal judges to exercise discretion as to whether particular cases . . . may proceed in federal court would reallocate substantial numbers of federal court cases to state courts while preserv109. Hearing Before the Senate Judiciary Committee on S. 466, 79th Cong., 1st Sess. (Oct.

8, 1945).
Dissenting Statement

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

70

ing the opportunity for federal judges to decide those cases that especially merit

federal court consideration.” Judge Newman’s plan would eliminate original

jurisdiction based on diversity of citizenship but would allow removal to federal

court in certain cases, depending on “such factors as the multi-state nature of

the dispute or a reasonably perceived risk of local prejudice.”110

As the Federal Courts Study Committee recently observed, “no other class

of cases has a weaker claim on federal judicial resources” and “no other step will

do anywhere nearly as much to reduce federal caseload pressures and contain the

growth of the federal judiciary.”111 Some statistics will illustrate this point. Last

year, the district courts heard 55,278 state law cases that came into federal court

simply because the parties were from different states.112 In the same year, 1,767,

or almost 40%, of the 4,557 civil jury trials were diversity cases.113 Moreover, the

courts of appeals heard 3,776 diversity appeals last year.114 Between 1995 and

1997, diversity cases in the courts of appeals constituted 21% of all orally argued

civil cases and 17% of all published opinions in civil cases.115 Diversity cases are

of “above-average difficulty” in terms of the workload of the federal courts.116

Oftentimes, these cases present complex questions of federal procedure and state

law, they involve difficult and complicated facts, and they consume a disproportionate share of federal judicial time.117

We therefore encourage Congress to adopt a system of diversity jurisdiction

with special removal in cases involving local prejudice or complex multistate

subject matter, similar to that suggested by Senator McKellar and Judge Newman.

This proposal would eliminate federal jurisdiction over diversity cases where statecourt adjudication would be equally fair and effective, but it would preserve

jurisdiction when the parties can show a concrete need for a federal forum. Such

a concrete need may arise because of (1) the existence of local influence that

threatens prejudice to an out-of-state litigant, or (2) the complex nature of

interstate litigation, such as mass tort cases arising from airline crashes or the

nationwide consumer litigation prompted by asbestos.

110. Jon O. Newman, Restructuring Federal Jurisdiction: Proposals to Preserve the Federal Judicial System, 56 U. Chi. L. Rev. 761, 771–72 (1989).

111. Report of the Federal Courts Study Committee 39 (April 2, 1990). See also Richard A.

Posner, The Federal Courts: Challenge and Reform 210–12 (compiling statistics showing that

abolishing diversity jurisdiction would substantially decrease the workload of the federal courts).

112. Judicial Business of the United States Courts: 1997 Report of the Director of the Administrative Office of the U.S. Courts, Table C-2. This figure represents 20% of the 269,132 civil cases

on the district court dockets last year.

113. Id. at Table C-4.

114. Id. at Table B-7. This figure represents 10% of the 35,414 civil appeals last year.

115. Compiled by Judith McKenna of the Federal Judicial Center from caseload statistics reported

by the courts of appeals.

116. Posner, supra note 111, at 210–12.

117. See generally Thomas D. Rowe, Jr., Abolishing Diversity Jurisdiction: Positive Side Effects

and Potential for Further Reforms, 92 Harv. L. Rev. 963 (1979).
Dissenting Statement

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

71

In practical terms, our proposal would operate similarly to the current removal procedure and the existing procedures for multidistrict litigation. Initially,

all cases between citizens of different states arising under state law would have

to be filed in state court. To avail themselves of the new discretionary diversity

jurisdiction, the parties would have to petition for permission to remove their

case to federal court. Removal would be permitted in two types of cases. First,

an out-of-state plaintiff or defendant could remove a case in which local influence or prejudice would prevent a fair and impartial adjudication in the state

courts by petitioning the district court for the federal district encompassing the

state forum. In-state plaintiffs and in-state defendants would not be allowed to

petition for this type of removal. There simply is no basis—nor has there ever

been—for these types of cases being tried in federal courts. Second, those parties

in litigation involving numerous parties or multiple claims could remove a case

whose interstate complexity requires resolution by a federal court by petitioning

the existing multidistrict litigation panel. Federal jurisdiction in these complex

multistate cases is warranted because there is no current compact among the

states to allow coordinated or consolidated proceedings in cases pending in several

states.118 Orders allowing or denying removal on either basis would be subject

to limited mandamus review in the courts of appeals.

Specifically, this proposal would require several changes to the U.S. Code,

which we have included in the attachment. First, 28 U.S.C. § 1332, the statute

creating original jurisdiction in the federal courts according to the domicile of

the parties, would be amended to eliminate jurisdiction over cases between citizens of different states.

Second, the removal statute, 28 U.S.C. § 1441, would include two new

subsections corresponding to the two types of diversity cases which can be removed to federal court. The new section 1441(c) would allow removal when an

out-of-state party in a diversity case involving more than $75,000 could show

“with reasonable certainty that local influence would prejudice that party, making a federal forum decidedly preferable to the State court or any other State

courts to which that party may transfer the case under State law.”119 The new

118. The American Law Institute’s complex litigation project proposed just such a compact to

promote the efficient resolution of these cases. See American Law Institute, Complex Litigation

Project 165–216 (Final Draft, May 5, 1993; published 1994).

119. We do not include any more specific factors to constitute local influence because it is our

opinion that the common law will best define the parameters of this removal provision. It is worth

noting that in 1888, Congress adopted a removal statute using language on local prejudice similar

to the standard proposed here. Until 1948, that statute supplemented the diversity statute by

allowing an out-of-state defendant to remove “at any time before trial” in the state court “when

it shall be made to appear to said circuit court that from local prejudice or local influence he will

not be able to obtain justice in such state court, or in any other court to which the said defendant

may, under the laws of the state have the right, on account of such prejudice or local influence

to remove said cause.” Review by mandamus was allowed, and the statute was fleshed out in
Dissenting Statement

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

72

section 1441(d) would allow removal of complex interstate diversity cases involving more than $75,000 if the multidistrict litigation panel created by 28

U.S.C. § 1407 grants permission to the parties.

Third, 28 U.S.C. § 1446, the statute governing the procedures for removal,

would include a new subsection describing the special removal procedures for

cases involving local prejudice. This new section 1446(c) would require an outof-state party to file a petition with the relevant district court “signed pursuant

to Rule 11 of the Federal Rules of Civil Procedure and stating with particularity

how it is reasonably certain that local influence would prejudice that party” in

the state courts. This section also sets a sixty-day limit for the district court to

“determine whether removal is appropriate under the particular circumstances

presented in the petition” and specifies that the decision “permitting or denying

removal” is reviewable only through an extraordinary writ (mandamus) pursuant

to 28 U.S.C. § 1651.

Finally, the multidistrict litigation statute, 28 U.S.C. § 1407, would be amended

to allow the removal and transfer of “civil actions involving one or more common questions of fact” currently “pending in state courts between parties who

qualify for jurisdiction” under the revised section 1441(d). The new section

1407(b) would require parties in these cases to petition the multidistrict litigation panel for removal by showing that “removal to federal court is necessary for

the convenience of parties and witnesses and will promote the just and efficient

conduct of such actions.” If the multidistrict litigation panel decides removal is

not appropriate, this subsection requires the panel to remand the case “to the

State court in which it was pending”; if the panel determines removal is appropriate, “the case will be removed to the appropriate district court and may be

transferred to any district for coordinated or consolidated pretrial proceedings.”

Once the pretrial proceedings conclude, the panel would remand the case “to

the federal district court to which the case was originally removed.” The current

statute already provides for mandamus review of the panel’s decisions.

To make our proposal politically feasible, we have focused our advice on the

one area of federal jurisdiction that is sure to prove the maximum caseload relief

for the federal courts with minimum impact on those citizens who have a legitimate claim to a federal forum. The legislation described here should be more

successful than the numerous proposals to reform diversity jurisdiction in the

past because this proposal eliminates the run-of-the-mill state-law cases unnecessarily burdening the federal courts, without sacrificing federal adjudication for

those who truly need it. We therefore encourage the Congress and the President

to provide the federal courts needed relief by adopting this proposal and seeing

that it becomes law.

several early mandamus appeals. See, e.g., In re Pennsylvania Co., 137 U.S. 451 (1890); City of

Detroit v. Detroit City Ry., 54 F. 1 (C.C.E.D. Mich. 1893) (opinion by William Howard Taft);

Schwenk & Co. v. Strange, 59 F. 209 (C.C.A. 8 1893).
Dissenting Statement

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

73

II. Appropriate Federal–State Allocation of Judicial

Business

Federal courts are courts of limited jurisdiction whose mission is primarily to

adjudicate cases and controversies having to do with matters of national interest

that state courts—which are courts of general jurisdiction that handle over 90%

of all litigation in this country—are unable or unsuited to handle effectively.

Congress should periodically look at federal jurisdiction to see if there are cases,

such as diversity cases, that can be returned to the state courts for adjudication.

Moreover, the nature and extent of federal jurisdiction is for Congress to decide,

but we believe that no legislation extending federal jurisdiction into areas that

traditionally fall within the scope of state regulation or prosecution should be

enacted without full and informed consideration of the appropriate balance of

jurisdiction between state and federal courts, as well as the effect that proposed

legislation will have on the ability of the federal courts, including the courts of

appeals, to carry out their core functions.

The core functions of the federal courts are:

• enforcing individual rights and liberties provided by the federal constitution, including habeas corpus petitions of state prisoners;

• enforcing the institutional separation of powers provided by the federal

constitution;

• adjudicating disputes involving the interests of the federal government;

• determining claims involving foreign governments;

• resolving disputes between states;

• interpreting and applying federal treaties and statutes, especially in areas

where it appears essential to have a federal forum available (for example, in

civil rights, bankruptcy, and patent matters);

• developing federal common law where indicated (for example, in connection with the antitrust laws and statutes such as ERISA); and

• deciding appeals from rulings by federal administrative agencies.

By the same token, as most crimes are prosecuted under state law in state

courts, the core function of the federal courts lies in providing a forum for

prosecution of

• offenses against the United States itself;

• multistate or international criminal activity that is difficult or impossible for

a single state or its courts to handle effectively;

• crimes that involve a matter of overriding federal interest, such as a violation of civil rights by state actors;

• widespread corruption at the state or local level; and

• crimes of such magnitude or complexity that federal resources are required.
Dissenting Statement

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

74

Laws such as the current diversity statutes that extend federal jurisdiction

beyond these core functions have two significant adverse effects: First, they

adversely affect the allocation of responsibility between the state and federal systems that is fundamental to the structure of the overall system of justice in our

country. Second, they imperil fulfillment of the federal system’s core function by

increasing the demand on the limited resources of the federal courts and diluting

their ability to focus on matters that are paramount to the national interest.

For these reasons we recommend that the Congress carefully weigh the risks

of structural imbalance and adverse impact on the capacity of the federal courts

of appeals to perform their core functions before creating new rights or remedies

that lie within the scope of state regulation or prosecution and beyond the traditional scope of federal jurisdiction. Decisions about whether to confer new

responsibilities on the federal system that have traditionally been handled by the

states should be informed by data about the capacity of the state and federal

systems, their respective areas of historic expertise, the primary mission of each,

and the cost and benefit of reallocating resources. Legislation assigning new

responsibilities to the federal courts should not be enacted unless the states do

not and will not take responsibility for the area of perceived need, state programs

are inadequate, no alternatives are available, and a federal interest is substantially

implicated. Factors that should be considered include:

• whether the proposed legislation would assign work to the federal system

that is within its core functions;

• whether states are inadequately addressing the perceived need;

• whether federal financial or other assistance to state justice systems would

cure any current inadequacy in the states’ ability to address these needs;120

• the capacity of the federal courts to take on new business without additional resources or restructuring;

• the extent to which proposed legislation is likely to affect the caseload, and

in turn, the capacity of the federal courts to perform their core functions

and to fulfill their mandate for the “just, speedy and inexpensive determination” of actions;

• the cost of delay to litigants; and

• whether the perceived needs are or could be served as well or better (more

efficiently and economically) by alternatives to federal jurisdiction (such as

alternative dispute resolution, or administrative proceedings).

120. The congressionally established State Justice Institute is a conduit through which federal

funding could be directed to state courts to enable them to handle matters that might otherwise

be routed to the federal courts.
Dissenting Statement

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

75

Attachment to Statement of Judge Merritt

Proposed Statute to Reduce Diversity Jurisdiction in the Federal Courts

Sec. 1. (a) Section 1332 of Title 28, United States Code, is amended by striking

part of the title as follows:

“Diversity of Citizenship”

and substituting in its place the word

“Alienage”

(b) Section 1332 of Title 28, United States Code, is further amended by striking

subsection (a)(1), which provides:

“(1) citizens of different states”

and renumbering subparts (a)(2), (a)(3) and (a)(4) as follows:

Subparts “(2)”, “(3)” and “(4)” will become “(1)”, “(2)” and “(3)” respectively.

(c) Section 1332 of Title 28, United States Code, is further amended by inserting into subsection (d), after the term “section” and before the comma, the

following words:

“and in section 1441 of this title”

Sec. 2. (a) Section 1441 of Title 28, United States Code, is amended by striking

the beginning of the phrase in sentence two of subsection (b) as follows:

“Any other such action”

and substituting in its place the following:

“Any civil action of which the district courts have original jurisdiction pursuant

to section 1332 of this title”

(b) Section 1441 of Title 28, United States Code, is further amended by redesignating subsections (c), (d) and (e) and adding new subsections (c) and (d) as

follows:

Previous subsections “(c)”, “(d)” and “(e)” will become “(e)”, “(f)” and “(g)”

respectively

And new subsections (c) and (d) will be added as follows:

“(c) Any suit of a civil nature brought in any State court between a citizen of

the forum state and a citizen of a different State may be removed by the outof-state party to the district court of the United States for the district and division embracing the place where the state action is pending, at any time before

the trial or final judgment, if the matter in controversy exceeds the sum or value

of $75,000, exclusive of interests or costs, and if the out-of-state party shows

with reasonable certainty that local influence would prejudice that party, making a federal forum decidedly preferable to the State court or any other State

courts to which that party may transfer the case under State law.”

“(d) Any party in a suit of a civil nature brought in any State court between

citizens of different states in which the matter in controversy exceeds the sum or

value of $75,000, exclusive of interest or costs, may petition the multidistrict

litigation panel for removal and transfer of an action pursuant to section 1407(b)
Dissenting Statement

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

76

of this title. If the panel accepts the action for multidistrict litigation, the panel

shall order the case removed to the district court for the district embracing the

place where the state action is pending and the case shall then proceed as provided in section 1407 of this title.”

Sec. 3. (a) Section 1446 of Title 28, United States Code, is amended by adding

the following phrase at the beginning of subsections (a) and (b):

“Except as provided in subsection (c),”

(b) Section 1446 of Title 28, United States Code, is further amended by relettering

subsections (c), (d), (e) and (f) and adding new subsection (c) as follows:

Previous subsections “(c)”, “(d)”, “(e)” and “(f)” will become “(d)”, “(e)”, “(f)”

and “(g)” respectively.

And new subsection (c) will be added as follows:

“(c) An out-of-state party desiring to remove any civil action from a State

court pursuant to section 1441(c) of this title shall, before the trial or final

judgment in the State court, file in the district court for the district and division

embracing the place where such action is pending a petition for removal signed

pursuant to Rule 11 of the Federal Rules of Civil Procedure and stating with

particularity how it is reasonably certain that local influence would prejudice

that party, making a federal forum decidedly preferable to the State court or any

other State courts to which that party may transfer the case under State law. The

district court shall, within 60 days after the petition is filed, determine whether

removal is appropriate under the particular circumstances presented in the petition. An order permitting or denying removal under section 1441(c) of this title

is not reviewable except by extraordinary writ pursuant to section 1651 of this

title.”

(c) Section 1446 of Title 28, United States Code, is further amended by inserting into the newly designated subsection (e), previously designated as subsection

(d), after the term “removal” and before the term “of,” the following phrase:

“or petition for removal”

(d) Section 1446 of Title 28, United States Code, is further amended by striking

a portion of the phrase in newly designated subsection (e), previously designated

as subsection (d), as follows:

“defendant or defendants”

and substituting in its place the phrase

“removing party”

Sec. 4. Section 1407 of Title 28, United States Code, is amended by relettering

subsections (b), (c), (d), (e), (f), (g) and (h) and adding new subsections (b),

(e) and (f) as follows:

Previous subsections “(b)”,“(c)” , “(d)”, “(e)”, “(f)”, “(g)” and “(h)” will

become “(c)”, “(d)”, “(g)”, “(h)”, “(i)” , “(j)”, and “(k)” respectively

And new subsections (b) and (e) will be added as follows:

“(b) When civil actions involving one or more common questions of fact are

pending in state courts between parties who qualify for federal jurisdiction pur-
Dissenting Statement

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

77

suant to section 1441(d) of this title, such actions may be removed to the district court of the United States for the district and division embracing the place

where such action is pending. Such removal shall be ordered by the judicial

panel on multidistrict litigation authorized by this section upon its determination that removal to federal court is necessary for the convenience of parties and

witnesses and will promote the just and efficient conduct of such actions. If the

panel concludes removal is not appropriate under this subsection, the panel

shall deny the petition. If the panel concludes removal is appropriate under this

subsection, the panel shall order the case removed to the appropriate district

court, and the case may be transferred to any district for coordinated or consolidated pretrial proceedings. Each action so transferred shall be remanded by

the panel at or before the conclusion of such pretrial proceedings to the federal

district court to which the case was originally removed unless it shall have been

previously terminated: Provided, however, That the panel may separate any claim,

cross-claim, counter-claim, or third-party claim and remand any of such claims

before the remainder of the action is remanded.”

“(e) Proceedings for the removal of an action under subsection (b) may be initiated by petition filed with the panel by a party in any action in which removal

under this section may be appropriate. A copy of such petition shall be filed in

the State court in which the moving party’s action is pending, and the State

court shall proceed no further unless and until the panel denies the petition for

removal. Proceedings for the transfer of an action under subsection (b) may be

initiated by motion filed with the panel by a party in any action in which transfer

for coordinated or consolidated pretrial proceedings under this section may be

appropriate. A copy of such motion shall be filed in the federal district court to

which the case was originally removed.”

And the letter “(f)”, designating a new subsection, will be inserted at the beginning of the text, before the term “The”, in the second full paragraph contained

in previously designated subsection (c).
uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

78

A PPENDICE S TO COMMISSION R EPORT

A PPE N DI X A

T HE C OM M IS SION STAT UTE

Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998

(Pub. L. No. 105-119. approved Nov. 26, 1997)

Section 305

(a) COMMISSION ON STRUCTURAL ALTERNATIVES FOR THE FEDERAL COURTS OF APPEALS-

 (1) ESTABLISHMENT AND FUNCTIONS OF COMMISSION-

(A) ESTABLISHMENT- There is established a Commission on Structural Alternatives for the Federal Courts of Appeals (hereinafter referred to as the ‘Commission’).

 (B) FUNCTIONS- The functions of the Commission shall be to—

(i) study the present division of the United States into the several

judicial circuits;

(ii) study the structure and alignment of the Federal Court of Appeals system, with particular reference to the Ninth Circuit; and

(iii) report to the President and the Congress its recommendations

for such changes in circuit boundaries or structure as may be

appropriate for the expeditious and effective disposition of the

caseload of the Federal Courts of Appeals, consistent with fundamental concepts of fairness and due process.

(2) MEMBERSHIP-

(A) COMPOSITION- The Commission shall be composed of five members who shall be appointed by the Chief Justice of the United States.

(B) APPOINTMENT- The members of the Commission shall be appointed

within 30 days after the date of enactment of this Act.

(C) VACANCY- Any vacancy in the Commission shall be filled in the

same manner as the original appointment.

(D) CHAIR- The Commission shall elect a chair and vice chair from among

its members.

(E) QUORUM- Three members of the Commission shall constitute a

quorum, but two may conduct hearings.

(3) COMPENSATION-

 (A) IN GENERAL- Members of the Commission who are officers, or
Appendices

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

79

full-time employees, of the United States shall receive no additional

compensation for their services, but shall be reimbursed for travel,

subsistence, and other necessary expenses incurred in the performance

of duties vested in the Commission, but not in excess of the maximum amounts authorized under section 456 of title 28, United States

Code.

(B) Members of the Commission from private life shall receive $200 for

each day (including travel time) during which the member is engaged in the actual performance of studies, but not in excess of the

maximum amounts authorized under section 456 of title 28, United

States Code.

(4) PERSONNEL-

(A) EXECUTIVE DIRECTOR- The Commission may appoint an Executive Director who shall receive compensation at a rate not exceeding the rate prescribed for level V of the Executive Schedule under

section 5316 of title 5, United States Code.

(B) STAFF- The Executive Director, with the approval of the Commission, may appoint and fix the compensation of such additional personnel as the Executive Director determines necessary, without regard to the provisions of title 5, United States Code, governing

appointments in the competitive service or the provisions of chapter

51 and subchapter III of chapter 53 of such title relating to

classification and General Schedule pay rates. Compensation under

this paragraph shall not exceed the annual maximum rate of basic pay

for a position above GS-15 of the General Schedule under section

5108 of title 5, United States Code.

C) EXPERTS AND CONSULTANTS- The Executive Director may

procure personal services of experts and consultants as authorized by

section 3109 of title 5, United States Code, at rates not to exceed

the highest level payable under the General Schedule pay rates under

section 5332 of title 5, United States Code.

(D) SERVICES- The Administrative Office of the United States Courts

shall provide administrative services, including financial and budgeting services, to the Commission on a reimbursable basis. The Federal

Judicial Center shall provide necessary research services to the Commission on a reimbursable basis.

(5) INFORMATION- The Commission is authorized to request from any

department, agency, or independent instrumentality of the Government

any information and assistance the Commission determines necessary to

carry out its functions under this section. Each such department, agency,

and independent instrumentality is authorized to provide such informa-
Appendices

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

80

tion and assistance to the extent permitted by law when requested by the

chair of the Commission.

(6) REPORT- The Commission shall conduct the studies required in this

section during the 10-month period beginning on the date on which a

quorum of the Commission has been appointed. Not later than 2 months

following the completion of such 10-month period, the Commission

shall submit its report to the President and the Congress. The Commission shall terminate 90 days after the date of the submission of its report.

(b) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be

appropriated to the Commission such sums, not to exceed $900,000, as may

be necessary to carry out the purposes of this section. Such sums as are

appropriated shall remain available until expended.
uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

81

A PPE N DI X B

M E M BE R S OF T H E COM M IS SION

Byron R. White (chair) is Associate Justice of the Supreme Court, Retired. Justice

White was appointed to the Supreme Court by President Kennedy in 1962. He

retired on June 28, 1993. Prior to his appointment to the Court, he was Deputy

Attorney General of the United States (1961–1962) and in private practice in

Denver, Colorado. Justice White served as a law clerk to Chief Justice Vinson

from 1946 to 1947.

N. Lee Cooper (vice-chair) has practiced law in Birmingham, Alabama, since 1966.

He served from 1996 to 1997 as the President of the American Bar Association

and held numerous other positions in the Association, including chair of the

Section of Litigation. He is a director of the American Bar Endowment and a

Fellow of the American Bar Foundation.

Gilbert S. Merritt is a judge of the U.S. Court of Appeals for the Sixth Circuit.

He was appointed to the court in 1977 and served as chief judge, and thus as

a member of the Judicial Conference of the United States, from 1989 until

1997. He chaired the Executive Committee of the Conference from 1994 until

1997. Before his appointment to the court, he was in private practice in Nashville, Tennessee, and was U.S. Attorney for the Middle District of Tennessee

from 1966 to 1969.

Pamela Ann Rymer is a judge of the U.S. Court of Appeals for the Ninth Circuit.

She was appointed to the court in 1989, having served as a U.S. district judge

for the Central District of California since 1983. She has served on several committees of the Judicial Conference of the United States and of the Ninth Circuit,

and is a member of Stanford University’s Board of Trustees.

William D. Browning is a senior U.S. district judge for the District of Arizona.

He was appointed in 1984 and took senior status in 1998. Judge Browning was

chief judge of the District of Arizona from 1990 to 1994 and was a member of

the Judicial Conference of the United States and the Judicial Council of the

Ninth Circuit. Before his appointment to the court, he was in private practice

in Tucson, Arizona, and served as president of the State Bar of Arizona.
uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

82

A PPE N DI X C

P ROP O S E D S TAT UTE S TO I MPLE ME NT C OM M I S S ION

RECOM MENDAT IONS

This appendix contains:

1. Statute for Divisional Organization of the Court of Appeals for the Ninth

Circuit (as proposed in Chapter 3)

2. Statute to enact a new 28 U.S.C. § 46 to provide for divisional organization of large courts of appeals and for two-judge panels; to provide for

repeal of authorization for limited en banc proceedings, and other purposes (as proposed in Chapter 4)

3. Statute Authorizing District Court Appellate Panels (as proposed in Chapter 4)

4a. Statute for Direct Appeal of Bankruptcy Decisions to the Courts of Appeals with Assistance from Bankruptcy Appellate Panels (as described in

Chapter 5)

4b. Statute for Appeal to BAP with Subsequent Appeal to Regional Court of

Appeals (as described in Chapter 5)

1. Statute for Divisional Organization of the Court of Appeals for the

Ninth Circuit (as proposed in Chapter 3)

Sec. 1. Six months after the date of enactment of this Act, the United States

Court of Appeals for the Ninth Circuit shall be organized into three regional

divisions designated as the Northern Division, the Middle Division, and the

Southern Division, and a non-regional division designated as the Circuit Division.

Sec. 2. The provisions of section 1294 of title 28, United States Code, shall

not apply to the Ninth Circuit Court of Appeals during the effective period of

this Act. Instead, review of district court decisions shall be governed as provided

herein.

a. Except as provided in sections 1292(c), 1292(d), and 1295 of title 28,

United States Code, appeals from reviewable decisions of the district and

territorial courts located within the Ninth Circuit shall be taken to the

regional divisions of the Ninth Circuit Court of Appeals as follows:

(1) appeals from the districts of Alaska, Idaho, Montana, Oregon, Eastern

Washington and Western Washington shall be taken to the Northern

Division;

(2) appeals from the districts of Eastern California, Northern California,

Guam, Hawaii, Nevada, and Northern Mariana Islands shall be taken

to the Middle Division;
Appendices

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

83

(3) appeals from the districts of Arizona, Central California, and Southern

California shall be taken to the Southern Division; and

(4) appeals from decisions of federal administrative agencies shall be taken

to the regional division specified in the rules of the court of appeals.

b. Each regional division shall include from seven to eleven judges of the

court of appeals in active status. A majority of the judges assigned to each

division shall reside within the judicial districts that are within the division’s

jurisdiction as specified above; provided, however, that judges may be

assigned to serve, for specified terms of one year or more, in a division in

which they do not reside. Such judges shall be assigned at random, by

means determined by the court, in such numbers as necessary to enable

the divisions to function effectively. The decisions of one regional division

shall not be regarded as binding precedents in the other regional divisions.

c. The provisions of section 45 of title 28, United States Code, shall govern

the designation of the presiding judge of each regional division as though

the division were a court of appeals; provided, however, that the judge

serving as chief judge of the circuit may not at the same time serve as

presiding judge of a division.

d. Panels of a division may sit to hear and decide cases at any place within

the judicial districts of the division, as specified by a majority of the judges

of the division. A judge assigned to one division may be assigned by the

chief judge of the circuit for temporary duty in another division. The

divisions shall be governed by the Federal Rules of Appellate Procedure

and by local rules and internal operating procedures adopted by the court

of appeals. The divisions may not adopt their own local rules or internal

operating procedures.

Sec. 3. In addition to the three regional divisions specified above, the Ninth

Circuit Court of Appeals shall organize, within six months after the date of

enactment of this Act, a Circuit Division composed of the chief judge of the

circuit, the presiding judge of each regional division, and one other circuit judge

in active status from each of the regional divisions, selected in accordance with

rules prescribed by the court of appeals for nonrenewable terms of three years

each.

a. The Circuit Division shall have jurisdiction to review, and to affirm, reverse, or modify, final decisions rendered in any of the court’s divisions.

The exercise of such jurisdiction shall be within the discretion of the Circuit

Division and may be invoked by application for review by a party to the

case, only on the ground that there is a conflict on a question of law

between a decision of one division and a decision of another. The Circuit

Division may review the decision of a panel within a division only if en

banc review of the decision has been sought and denied by the division.
Appendices

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

84

b. The provisions of section 46 of title 28, United States Code, shall apply

to each regional division of the Ninth Circuit Court of Appeals as though

the division were the court of appeals. The provisions of subsection 46(c),

authorizing hearings or rehearings en banc, shall be applicable only to the

regional divisions of the court and not to the court of appeals as a whole.

The Circuit Division shall consider and decide cases en banc.

Sec. 4. The provisions of section 332 of title 28, United States Code, governing circuit judicial councils, shall apply to the Ninth Circuit during the effective

period of this Act; provided, however, that the Judicial Council of the Ninth

Circuit shall include, but is not limited to, the chief judge of the circuit, the

presiding judge of each regional division of the court of appeals, and at least one

district judge from each regional division.

Sec. 5. The provisions of section 711 of title 28, United States Code, shall

apply to the Ninth Circuit Court of Appeals during the effective period of this

Act; provided, however, that the clerk of the Ninth Circuit Court of Appeals may

maintain an office or offices in each regional division of the court to provide

services of the clerk’s office for that division.

Sec. 6. The Federal Judicial Center shall conduct a study of the effectiveness

and efficiency of the divisions in the Ninth Circuit Court of Appeals, and, within

eight years after the effective date of this Act, submit to the Judicial Conference

of the United States a report summarizing the activities of the divisions, including the Circuit Division, and evaluating the effectiveness and efficiency of the

divisional structure.

Sec. 7. This Act shall terminate seven years after the date of enactment of this

Act.

2. Statute to enact a new 28 U.S.C. § 46 to provide for divisional organization of large courts of appeals and for two-judge panels; to

provide for repeal of authorization for limited en banc proceedings,

and other purposes (as proposed in Chapter 4)

Sec. 1. Section 46 of Title 28, United States Code, is hereby repealed and

replaced by the following:

Sec. 46. Assignment of judges; panels; en banc proceedings; divisions;

quorum

(a) Circuit judges shall sit on the court of appeals and its panels in such order

and at such times as the court directs.

(b) Unless otherwise provided by rule of court, a court of appeals or any
Appendices

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

85

regional division thereof shall consider and decide cases and controversies through

panels of three judges, at least two of whom shall be judges of the court, unless

such judges cannot sit because recused or disqualified, or unless the chief judge

of that court certifies that there is an emergency including, but not limited to,

the unavailability of a judge of the court because of illness. A court may provide

by rule for the disposition of appeals through panels consisting of two judges,

both of whom shall be judges of the court. Panels of the court shall sit at the

times and places and hear the cases and controversies assigned as the court directs. The United States Court of Appeals for the Federal Circuit shall determine

by rule a procedure for the rotation of judges from panel to panel to ensure that

all of the judges sit on a representative cross section of the cases heard and,

notwithstanding the first sentence of this subsection, may determine by rule the

number of judges, not less than two, who constitute a panel.

(c) Notwithstanding the provisions of subsection (b), a majority of the judges

of a court of appeals not organized into divisions as provided in subsection (d)

who are in regular active service may order a hearing or rehearing before the

court en banc. A court en banc shall consist of all circuit judges in regular active

service, except that any senior circuit judge of the circuit shall be eligible to

participate, at that judge’s election and upon designation and assignment pursuant to section 294(c) of this title and the rules of the circuit, as a member of

an en banc court reviewing a decision of a panel of which such judge was a

member.

(d) A court of appeals having more than thirteen authorized judgeships may

organize itself into two or more divisions, with each judge of the court assigned

to a specific division, either for a specified term of years or indefinitely. The

court’s docket shall be allocated among the divisions in accordance with a plan

adopted by the court, and each division shall have exclusive appellate jurisdiction

over the appeals assigned to it. A court of appeals having more than seventeen

authorized judgeships shall organize itself into divisions, in accordance with the

provisions of this subsection. If such court does not so organize itself within two

years after the eighteenth judgeship is created, the judicial council of the circuit

shall enter an order organizing the court into divisions, consistent with the provisions of this subsection. The presiding judge of each division shall be selected

from among the judges of the division in active status as though the division

were the court of appeals; provided, however, that the chief judge of the circuit

shall not serve at the same time as the presiding judge of a division.

When organizing itself into divisions, a court of appeals shall establish a Circuit Division, consisting of the chief judge, the presiding judge of each division,

and additional circuit judges in active status, selected in accordance with rules

adopted by the court, so as to make an odd number of judges but not more than

nine. The Circuit Division shall have jurisdiction in its discretion solely to resolve

conflicting holdings between the court’s divisions; it shall function under rules
Appendices

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

86

adopted by the court. After the establishment of a divisional plan of organization, a court of appeals shall not consider and decide cases en banc, but each

division shall employ the en banc procedure as though it were the court of

appeals.

(e) A majority of the number of judges authorized to constitute a court or

panel thereof shall constitute a quorum.

Sec. 2. The provision of section 6 of Pub. L. 95-486, 92 Stat. 1633 (Oct. 20,

1978), authorizing courts of appeals with more than 15 active judges to perform

its en banc function by such number of members of its en banc court as may be

prescribed by rule of the court of appeals, is hereby repealed.

Sec. 3. After the divisional plan is in operation, the court of appeals shall grant

no new petitions for hearing or rehearing en banc. However, petitions already

granted may be heard in accordance with Federal Rule of Appellate Procedure

35.

Sec. 4. The Federal Judicial Center shall monitor the implementation of section 46 for eight years following the date of enactment of this Act and report

to the Judicial Conference such information as it believes relevant or that the

Conference requests to enable the Conference to assess the effectiveness and

efficiency of this section.

3. Statute Authorizing District Court Appellate Panels (as proposed in

Chapter 4)

Sec. 1. Title 28 of the United States Code is hereby amended by inserting

the following new section:

145. District Court Appellate Panels

(a) The judicial council of each circuit may establish a district court appellate

panel service composed of district judges and circuit judges of the circuit, in

either active or senior status, who are assigned by the judicial council to hear and

determine appeals in accordance with subsection (b). Judges assigned to the

district court appellate panel service may continue to perform other judicial duties.

(b) An appeal heard under this section shall be heard by a panel composed of

two district judges and one circuit judge assigned to the district court appellate

panel service, as designated by the chief judge of the circuit. The circuit judge

shall preside. A district judge serving on an appellate panel shall not participate

in the review of decisions of the district court to which the judge has been

appointed. The clerk of the court of appeals shall serve as the clerk of the district
Appendices

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

87

court appellate panels. A district court appellate panel may sit at any place within

the circuit, pursuant to rules promulgated by the judicial council, to hear and

decide cases, for the convenience of parties and counsel.

(c) In establishing a district court appellate panel service, the judicial council

shall specify the categories or types of cases over which district court appellate

panels shall have appellate jurisdiction. In such cases specified by the judicial

council as appropriate for assignment to district court appellate panels, and

notwithstanding the provisions of sections 1291 and 1292 of this title, the appellate

panel shall have exclusive jurisdiction over district court decisions and may exercise all of the authority otherwise vested in the court of appeals under sections

1291, 1292, 1651, and 2106 of this title. A district court appellate panel may

transfer a case within its jurisdiction to the court of appeals if the panel determines that disposition of the case involves a question of law that should be

determined by the court of appeals; the court of appeals shall thereupon assume

jurisdiction over the case for all purposes.

(d) Final decisions of district court appellate panels may be reviewed by the

court of appeals, in its discretion. A party seeking review shall file a petition for

leave to appeal in the court of appeals, which that court may grant or deny in

its discretion. The jurisdiction of the court of appeals shall be exercised to maintain

consistency and uniformity in the law throughout the circuit and to settle important questions of law.

(e) Procedures governing review in district court appellate panels and the

discretionary review of such panels in the court of appeals shall be in accordance

with rules promulgated by the court of appeals.

(f) After a judicial council of a circuit makes an order establishing a district

court appellate panel service, the chief judge of the circuit may request the Chief

Justice of the United States to assign one or more district judges from another

circuit to serve on a District Court Appellate Panel, if the chief judge determines

there is a need for such judges; the Chief Justice may thereupon designate and

assign such judges for this purpose.

Sec. 2. The Federal Judicial Center shall monitor the implementation of section 145 for eight years following the date of enactment of this Act and report

to the Judicial Conference such information as it believes relevant or that the

Conference requests to enable the Conference to assess the effectiveness and

efficiency of this section.
Appendices

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

88

4a. Statute for Direct Appeal of Bankruptcy Decisions to the Courts of

Appeals with Assistance from Bankruptcy Appellate Panels (as described

in Chapter 5)

Note: Existing 28 U.S.C. § 158, which provides for appeal of bankruptcy court decisions

to the district court or BAP, would be repealed, and a new 28 U.S.C. § 1293 would be

added.

Title 28, United States Code, is hereby amended by inserting the following new

section:

§ 1293. Bankruptcy Appeals

(a) The courts of appeals (other than the United States Court of Appeals for

the Federal Circuit) shall have jurisdiction over appeals from the following:

(1) Final judgments, orders, and decrees entered by bankruptcy judges

and district courts in cases under title 11, in proceedings arising under

title 11, and in proceedings arising in or related to a case under title

11.

(2) Interlocutory orders and decrees entered by bankruptcy judges and

district courts granting, continuing, modifying, refusing or dissolving

injunctions, or refusing to dissolve injunctions in cases under title 11,

in proceedings arising under title 11, and in proceedings arising in or

related to a case under title 11, other than proceedings regarding the

automatic stay of section 362 of title 11.

(3) Interlocutory orders and decrees of bankruptcy judges and district

courts entered under section 1104(a) or 1121(d) of title 11, or the

refusal to enter an order under such section.

(4) An interlocutory order or decree of a bankruptcy judge or district

court entered in a case under title 11, in a proceeding arising under

title 11, or in a proceeding arising in or related to a case under title

11, if the court of appeals that would have jurisdiction over an appeal

of a final order entered in such case or such proceeding permits, in its

discretion, appeal to be taken from such interlocutory order or decree.

(b) (1) The judicial council of a circuit may establish a bankruptcy appellate

panel composed of bankruptcy judges in the circuit who are appointed by the

judicial council to exercise the powers described in paragraphs (2)(A) and/or (3)

of this subsection.

(2)(A) If the judicial council so orders, a bankruptcy appellate panel shall

exercise the jurisdiction to review judgments, orders, and decrees of

bankruptcy judges described in subsection (a) of this section, unless

(i) the appellant elects at the time of the filing of appeal; or
Appendices

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

89

(ii) any other party elects, not later than 30 days after service of

the notice of the appeal;

to have such jurisdiction exercised by the court of appeals.

(B) The court of appeals may in its discretion review a decision of a

bankruptcy appellate panel made under this paragraph (2) upon the

motion of any party, upon the recommendation of the bankruptcy appellate panel, or on its own initiative.

(3) If the court of appeals so orders, a bankruptcy appellate panel shall hear

and make a report and recommendation in cases within the jurisdiction to review judgments, orders, and decrees of bankruptcy judges

described in subsection (a) of this section. A panel of the court of

appeals shall review the report and recommendation de novo and

determine the appeal.

(4) An appeal to be heard by a bankruptcy appellate panel under this subsection (b) shall be heard by three members of the bankruptcy appellate panel, provided that a member of such panel may not hear an

appeal originating in the district for which such member is appointed

or designated under section 152 of this title.

(5) If authorized by the Judicial Conference of the United States, the judicial

councils of two or more circuits may establish a joint bankruptcy

appellate panel.

4b. Statute for Appeal to BAP with Subsequent Appeal to Regional Court

of Appeals (as described in Chapter 5)

Note: Existing 28 U.S.C. § 158, which provides for appeal of bankruptcy judge decisions

to the district court or BAP, would be repealed, and a new 28 U.S.C. § 1293 would be

added.

Title 28, United States Code, is hereby amended by inserting the following new

section:

§ 1293. Bankruptcy Appeals

(a) The judicial council of each circuit shall establish a bankruptcy appellate

panel composed of bankruptcy judges in the circuit who are appointed by the

judicial council to exercise the powers described in subsection (b). If authorized
Appendices

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

90

by the Judicial Conference of the United States, the judicial councils of two or

more circuits may establish a joint bankruptcy appellate panel. An appeal to be

heard by a bankruptcy appellate panel shall be heard by three members of the

bankruptcy appellate panel, provided that a member of such panel may not hear

an appeal originating in the district for which such member is appointed or

designated under section 152 of this title.

(b) The bankruptcy appellate panel shall have jurisdiction of appeals from the

following:

(1) Final judgments, orders, and decrees entered by bankruptcy judges in

cases under title 11, in proceedings arising under title 11, and in

proceedings arising in or related to a case under title 11.

(2) Interlocutory orders and decrees entered by bankruptcy judges granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve injunctions in cases under title 11, in proceedings

arising under title 11, and in proceedings arising in or related to a case

under title 11, other than proceedings regarding the automatic stay of

section 362 of title 11.

(3) Interlocutory orders and decrees of bankruptcy judges entered under

section 1104(a) or 1121(d) of title 11, or the refusal to enter an order

under such section.

(4) An interlocutory order or decree of a bankruptcy judge entered in a

case under title 11, in a proceeding arising under title 11, or in a

proceeding arising in or related to a case under title 11, if the bankruptcy appellate panel that would have jurisdiction of an appeal of a

final order entered in such case or such proceeding permits, in its

discretion, appeal to be taken from such interlocutory order or decree.

(c) The courts of appeals (other than the United States Court of Appeals for

the Federal Circuit) shall have jurisdiction of appeals from the following:

(1) Final judgments, orders, and decrees entered by district courts or BAPs

in cases under title 11, in proceedings arising under title 11, and in

proceedings arising in or related to a case under title 11.

(2) Interlocutory orders and decrees entered by district courts or BAPs

granting, continuing, modifying, refusing or dissolving injunctions, or

refusing to dissolve injunctions in cases under title 11, in proceedings

arising under title 11, and in proceedings arising in or related to a case

under title 11, other than proceedings regarding the automatic stay of

section 362 of title 11.

(3) Interlocutory orders and decrees of district courts or BAPs entered

under section 1104(a) or 1121(d) of title 11, or the refusal to enter

an order under such section.

(4) An interlocutory order or decree of a district court or BAP entered in
Appendices

uCommission on Structural Alternatives for the Federal Courts of Appeals: Draft Report for Comment u

91

a case under title 11, in a proceeding arising under title 11, or in a

proceeding arising in or related to a case under title 11, if the court

of appeals that would have jurisdiction over an appeal of a final order

entered in such case or such proceeding permits, in its discretion, an

appeal to be taken from such interlocutory order or decree.