commission on

structural

alternatives

for the

federal courts

of appeals

final report

Submitted To

The President & The Congress

Pursuant To

Pub. L. No. 105-119

December 18,1998
commission on structur al alter natives

for the feder al courts of appeals

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

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
December 18, 1998

The Honorable William J. Clinton

President of the United States

Washington, D.C.

The Honorable Albert Gore, Jr.

President of the Senate

Washington, D.C.

The Honorable Newt Gingrich

Speaker of the House of Representatives

Washington, D.C.

Gentlemen:

In accordance with the provisions of section 305(a)(1)(B) and (a)(6) of Public

Law No. 105-119, the Commission on Structural Alternatives for the Federal

Courts of Appeals herewith submits the final report of its recommendations for

changes concerning structure and circuit boundaries in the federal appellate

system appropriate for expeditious and effective disposition of appellate

caseloads, consistent with fundamental concepts of fairness and due process.

Respectfully submitted,

Byron R. White

Chair

cc: William H. Rehnquist

Chief Justice of the United States
iii

appellate structure:

findings and recommendations in brief

Here in brief outline is our key structural recommendation and its basic premises. All of the Commission’s recommendations are listed in the Foreword

and Summary, and in Chapter 6.

About the Ninth Circuit

• Splitting the Ninth Circuit itself would be impractical and is unnecessary.

As an administrative entity, the circuit should be preserved without statutory change.

• The circuit’s court of appeals should continue to provide the West a single

body of federal decisional law. To improve the consistency and coherence

of that court’s decisions, however, Congress should restructure it into

smaller, regionally based divisions—adjudicative divisions—each division

to decide appeals arising within its region.

• Each regional division should have from 7 to 11 active circuit judges. A

majority should reside in the division, but some should serve for a term in

a division other than where they reside to enhance interdivisional consistency.

• Each regional division should perform an en banc function as if it were a

court of appeals. The circuit-wide en banc process should be abolished.

• A “Circuit Division,” with 13 judges from all regional divisions, serving

for limited terms in addition to their regular assignments, should resolve

conflicts between the regional divisions.

• Recourse from decisions of regional divisions, except when the Circuit

Division exercises its discretion to resolve interdivisional conflicts, and

from Circuit Division decisions, should be to the Supreme Court.

About the circuits and courts of appeals in general

• Although other courts of appeals may become large enough to require

restructuring, circuit-splitting as a means to that end will rarely be feasible without extensive and undesirable circuit reconfiguration.

• To avoid the costs and disruptions of creating new circuits, Congress should

authorize courts with more than 15 judgeships to restructure themselves

into smaller adjudicative divisions.

• The need to restructure will vary among the circuits, but as courts reach

18 to 20 judgeships, the need for restructuring becomes especially compelling, in order to maintain consistency and coherence.
v

Contents

Foreword and Summary, ix

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, 5

D. Considerations Informing Deliberations and Recommendations, 5

1. Sources of information and analysis, 5

2. Jurisdiction and structure, 6

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, 12

D. Transformation of the Courts of Appeals and Their Work, 13

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, 25

3. The Ninth Circuit and Its Court of Appeals, 29

A. The Circuit and Its Court of Appeals, 30

B. The Debate Over Splitting the Circuit and Its Court of Appeals, 33

1. Background, 33

2. The arguments summarized, 34

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

timely, 34

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

law, 34

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

effectively, 35

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

jurisdiction for federalism, regionalism, and effective court

operations, 36
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

vi

e. The relationship between circuit reconfiguration and

intercircuit conflicts, 36

f. The practicality of dividing the circuit, 37

g. The administrative efficacy of the Ninth Circuit, 37

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

observers, 37

C. Criteria Informing the Debate, 39

D. A Divisional Arrangement for the Ninth Circuit

Court of Appeals, 40

1. The recommendation for a divisional arrangement, 41

a. Regional divisions for the Ninth Circuit Court of Appeals:

their composition and operation, 41

b. Circuit Division to resolve interdivisional conflicts, 45

c. Appellate procedure and administration, 46

2. Reasons for the divisional arrangement, 47

a. Smaller decisional units will promote consistency and

predictability, 47

b. Effective regional en banc procedures and the Circuit Division

will ensure clearer, more consistent circuit law, 48

c. The proposed divisional structure will rationalize the

regionalizing and federalizing functions of appellate

courts, 49

3. Key differences between this proposal and regional calendaring

systems, 50

a. The regional calendaring experience of the 1970s, 50

b. The 1998 regional/divisional calendaring proposal in response

to the Commission’s Tentative Draft Report, 51

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

Constituted Circuits, 52

1. Option A—Variation on the “classical split,” 54

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

reduce size of new Ninth, 55

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

size of new Ninth, 56

F. Conclusion, 57

4. Structural Options for the Courts of Appeals, 59

A. Divisional Organization of Courts of Appeals, 60

B. Two-Judge Panels, 62

C. District Court Appellate Panels (DCAPs), 64

5. Appellate Jurisdiction, 67

A. Bankruptcy Appeals, 67

1. Current bankruptcy appellate structure and asserted

problems, 68

2. Effect of direct bankruptcy appeals on the courts of appeals, 69
Contents

vii

B. General Discretionary Review in the Courts of Appeals, 70

C. The Federal Circuit and Its Potential, 72

1. Tax appeals, 73

2. Social Security appeals, 74

6. Recapitulation and Concluding Observations, 75

Additional Views of Judge Merritt, Joined by Justice White, Concerning the Appropriate Jurisdiction of the Federal Courts (with attachment), 77

appendices

A. The Commission Statute, 89

B. Commission Members and Executive Director, 92

C. Proposed Statutes to Implement Commission Recommendations, 93

D. Acknowledgments, 100

figures

2-A The Circuits in 1802, 8

2-B The Circuits in 1855, 9

2-C The Circuits in 1866, 10

2-D Appeals Filed and Appeals per Circuit Judgeship, Regional Courts

of Appeals, 1960–1997, 15

2-E The Circuits in 1929, 19

2-F The Circuits in 1998, 28

3-A Boundaries of Proposed Ninth Circuit Divisions, 42

3-B Boundaries of Reconfigured Circuits—Option A, 54

3-C Boundaries of Reconfigured Circuits—Option B, 55

3-D Boundaries of Reconfigured Circuits—Option C, 56

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, 16

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,

22

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 Central Staff Attorney Positions Allocated to the Regional Courts

of Appeals, FY 1999, 24

2-9 Circuit Population, Size, Composition, Number of Judgeships, 27
ix

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 18, 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 midcentury. 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. The quality of a circuit’s decisional law is a function of its court of appeals

as an adjudicative body, and is largely unrelated to the administration of the

circuit. Some who believe that high quality decisional law is 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
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

x

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. Courts of appeals in regional circuits

of only one or two states are unlikely to be able to fulfill the federalizing function that the nation expects of its intermediate courts of appeals. 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 Cir-
Foreword & Summary

xi

cuit Court of Appeals would create a model that could be copied or adapted in

later 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 fifteen judgeships to organize itself into

adjudicative divisions (Chap. 4, sec. A). The statute that we recommend 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 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, 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 cases through

panels of two rather than three judges (Chap. 4, sec. B) and authorize circuits

to establish district court appellate panels (DCAPs) 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, the options that our recommended measures would provide to

the appellate courts—to organize themselves into adjudicative divisions, to

function selectively through two-judge panels, to establish district court appellate panels—should equip the courts of appeals with an ability, structurally and

procedurally, 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,

pending further study by the Judicial Conference. 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.
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

sections (a)(1) and (6) 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.

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

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, 104th Cong., 1st Sess., 16–17 (1995).

3. The statute is silent on the branch of government, if any, of which the Commission is a part.
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

2

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. Brief biographies of the Commission members and the Executive Director are in Appendix B.

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

Court 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,

on February 17, the Commission scheduled and announced nationwide through

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.
Chapter 1. The Commission: Creation, Mission & Activities

3

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

U.S. 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 Federal–State Jurisdiction. The Executive Director kept the staff counsel for

the House and Senate Judiciary Committees and their pertinent subcommittees advised of the Commission’s work and made himself available to them for

consultation.

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

7. Sec. 305(a)(2)(E), Pub. L. No. 105-119, 111 Stat. 2491.
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

4

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.8

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 5,600 lawyers who had handled appeals in the

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

from 3,017 lawyers (for a response rate of 54%). 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. FJC staff analyzed similarities and

differences in the courts’ procedures for the Commission.9

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 more than 1,200 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

76 comments, all of which were posted for review on the Commission’s website.

8. 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

U.S. 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 are set out in the Commission’s Working Papers, along with directions on how to obtain the

underlying data from ICPSR to verify or extend the analyses.

9. A summary of this analysis is included in the Commission’s Working Papers, as are results of

the surveys.
Chapter 1. The Commission: Creation, Mission & Activities

5

C. Budget

The statute authorized an appropriation of $900,000 for Commission activities,10 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 approximately $500,000 chargeable to its appropriation.

D. Considerations Informing Deliberations and

Recommendations

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.

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, which lead us to a different conclusion.

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.

10. Sec. 305(b), Pub. L. No. 105-119, 111 Stat. 2491.
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

6

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. 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 federal–state 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. On these points, see the additional views

of Judge Merritt, joined by Justice White, following Chapter 6. Chief Justice

Rehnquist, in commenting on the Commission’s Tentative Draft Report, noted

not only his agreement with our statement on the need for significant changes

in the jurisdiction of the federal courts, but his agreement as well with the

separate statement of Judge Merritt and Justice White that changes in diversity

jurisdiction are needed, in particular the elimination of in-state plaintiffs’ diversity jurisdiction.

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 currently serving on a court are transient matters and

are inappropriate bases for constructing long-range institutional arrangements.
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.”11 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 178912 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 may from time to time ordain and establish.”13 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.14

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.

11. Pub. L. No. 105-119, § 305 (a)(1)(B)(i, ii), 111 Stat. 2491. The maps and much of the analysis in sections A and B of 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.)

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

13. U.S. Const. art. III, § 1.

14. Act of Sept. 24, 1789, ch. 20, §§ 21 & 22, 1 Stat. 83–84.
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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

4

Indian Lands

3

5

1

2

Territories

Territories

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.15

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.”16 The 1855 configuration shown in Figure 2-B, for example, left outside of the circuit system districts in Arkansas, Florida, Georgia, 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.

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

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

ed., 1953).
Chapter 2. The Federal Appellate System: Past & Present

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.

5

5

9 6

4

7

3

8

2

Territories Cal.

Circuit

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,17 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.18 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 statute19 redrew most of the circuit boundaries (see Figure 2-C), creating 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.

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

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

19. Act of July 23, 1866, 14 Stat. 209.
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Figure 2-C

The Circuits in 1866

6 4

3

8

5

7

2

1

Territories

9

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 187520 authorized a general federal

question jurisdiction for cases involving $500 or more, thereby making 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.”21

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 ad20. Act of Mar. 3, 1875, 18 Stat. 470.

21. Felix Frankfurter & James Landis, The Business of the Supreme Court 64–65 (1928).
Chapter 2. The Federal Appellate System: Past & Present

11

ministration.”22 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.23 Appellate review was statutorily foreclosed in many cases—almost all

criminal cases and in all civil cases involving less than $5,000.24 Even so, the

Supreme Court’s docket grew steeply. From 310 cases in 1860, the Court’s docket

increased to 1,816 in 1890.25 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 1891,26 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.27 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 1892.28

22. Paul M. Bator et al., Hart & Wechsler’s The Federal Courts and the Federal System 37 (3d

ed. 1988).

23. Frankfurter & Landis, supra note 21, at 79.

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

25. Frankfurter & Landis, supra note 21, at 101–02.

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

27. The old circuit courts were abolished, albeit not until 1911. Act of Mar. 3, 1911, § 301, 36

Stat. 1087, 1169.

28. Frankfurter & Landis, supra note 21, at 102.
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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”29 significantly

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

The 1925 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.”30 The culmination of this extension

of discretionary jurisdiction came in 1988, when Congress removed almost all

vestiges of the Court’s obligatory jurisdiction.31

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 Decisions32

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%

29. Act of Feb. 13, 1925, 43 Stat. 936.

30. Frankfurter & Landis, supra note 21, at 257 (quoting 1922 testimony before the House).

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

32. 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 database at Cornell University’s Legal Information Institute. Data on regional courts 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).
Chapter 2. The Federal Appellate System: Past & Present

13

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.

1. Growth in judgeships and workload

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

1900s and more rapidly since then.33 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.34 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;

1984 and 1990 include the Court of Appeals for the Federal Circuit.

33. 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, rev. 1998).

34. 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 Secs. 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)).
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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.

Table 2-3 35

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 3,532 64

1950 212 92,342 436 75 5,443 73

1964 301 98,663 328 88 6,736 77

1978 510 174,753 343 144 19,657 137

1984 571 298,330 523 168 32,616 194

1990 645 266,783 414 179 42,364 237

1997 646 314,527 487 179 53,688 300

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

appellate filings and judgeships for 1984–1997 include the Court of Appeals for the Federal Circuit.

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.

35. Table 2-3 is derived from Annual Report of the Attorney General of the United States (1930);

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, using pertinent

tables for the relevant years; and Administrative Office of the U.S. Courts, History of Federal Judgeships, Table K (1991, rev. 1998).
Chapter 2. The Federal Appellate System: Past & Present

15

Figure 2-D

Appeals Filed and Appeals per Circuit Judgeship, Regional Courts of

Appeals, 1960–1997

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

Appeals per Judgeship

Appeals Filed

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.36 After a slight

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

4,377 in 1981 to 10,740 in 1997. There were several apparent causes—steppedup prosecutorial efforts, the sentencing guidelines themselves, the mandatory

minimum sentences that became increasingly common in the 1980s,37 and the

availability of appellate review of sentences even after a guilty plea.38 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 53% in 1997.

36. See U.S. Sentencing Commission, Guidelines Manual 1997, Ch. 1.

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

38. 18 U.S.C. § 3742 (1998).
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

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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%) 10,740 (21%)

U.S. Prisoner 179 (5%) 818 (7%) 1,007 (4%) 2,263 (6%) 4,901 (9%)

Other U.S. Civil 609 (16%) 1,349 (12%) 3,647 (16%) 4,363 (11%) 3,809 (7%)

Private Prisoner 111 (3%) 1,622 (14%) 2,675 (12%) 7,678 (19%) 11,287 (22%)

Other Priv. Civil 1,423 (36%) 3,212 (28%) 7,525 (32%) 12,812 (31%) 15,429 (30%)

Bankruptcy 132 (3%) 205 (2%) 396 (2%) 1,087 (3%) 1,164 (2%)

Administrative 737 (19%) 1,522 (13%) 2,950 (13%) 2,578 (6%) 4,131 (8%)

Other 85 (2%) 274 (2%) 595 (3%) 624 (2%) 810 (2%)

TOTAL FILINGS 3,899 11,662 23,200 40,898 52,271

Note: Figures are for years ending June 30. Because of rounding, percentages may not total 100. The

figures are derived from Annual Report of the Director of the Administrative Office of the U.S.

Courts for the decennial years 1960–1990 (Table B-1) and from an unpublished Table B-1 for the

year ending June 30, 1997 (on file with the Commission).

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, so

only the figures for the year ending Sept. 30, 1997, reflect a direct count of pro se cases.

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
Chapter 2. The Federal Appellate System: Past & Present

17

standard of review.39 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.

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”40 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, the primary

concern is about a court of appeals thought 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.41

39. 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.

40. Frankfurter & Landis, supra note 21, at 107.

41. 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].
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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.”42

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.”43 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.”44

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”).45

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.

42. Id. at 21.

43. Id. at 40.

44. 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).

45. Hearing, supra note 41, at 32.
Chapter 2. The Federal Appellate System: Past & Present

19

President Coolidge signed the bill on February 28, 1929,46 creating the boundaries shown in Figure 2-E.

Figure 2-E

The Circuits in 1929

1

4

5

7 6

2

1

9 3

9

9

8

10

1

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

The statute that created the Eleventh Circuit in 198147 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.48

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

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

48. This account draws heavily on the standard source for the history of 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).
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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.49 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.50 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.51 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.”52

Disappointed with the inconclusiveness of seven years of appellate procedural innovation, and frustrated with the pervasive controversy over Fifth Circuit judgeships 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 sixteen-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.53 After extensive hearings, the Hruska

Commission filed its report on circuit restructuring in December 1973,54 recommending splitting both the Fifth and Ninth Circuits,55 but Congress declined to implement either recommendation.

49. Id. at 83.

50. 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).

51. Barrow & Walker, supra note 48, at 116–17.

52. 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).

53. Act of Oct. 13, 1972, Pub. L. No. 92-489. The sixteen 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 appeal

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 appeal, consistent with fundamental concepts of fairness and due process.” Id.

§ 1(a) & (b).

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

55. Id. at 3–4.
Chapter 2. The Federal Appellate System: Past & Present

21

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.56 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

twenty-six judgeships (and the Ninth Circuit’s Court of Appeals from eighteen

to twenty-three judgeships). However, after the newly enlarged Fifth Circuit

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.

(The court also briefly employed the administrative division option that the

1978 statute provided.) The judges 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 U.S. Court of Appeals for the

Federal Circuit. That court’s appellate jurisdiction is not regionally determined;

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 de56. Pub. L. No. 95-486, 92 Stat. 1633 (1978).
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

22

cide 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%

Note: Figures are derived from the Federal Judicial Center’s Integrated Database. See supra note 8.

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%

Note: Figures are derived from the Federal Judicial Center’s Integrated Database. See supra note 8.
Chapter 2. The Federal Appellate System: Past & Present

23

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.57

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. 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.

The number of central staff attorney “work units” allocated to each court of

appeals, for the fiscal year beginning October 1, 1998, is shown in Table 2-8.

The number of work units allocated is based primarily on raw filings, so courts

with higher caseloads are entitled to more staff attorneys. However, the allocations do not precisely reflect the number of staff attorneys actually employed,

because courts have considerable flexibility in how they use the funds allocated

for this purpose.

57. 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.
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

24

Table 2-8

Central Staff Attorney Positions Allocated to the Regional Courts of Appeals,

FY 199958

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

Work units 9 26 22 29 46 23 15 19 48 17 32 13

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.59

After reviewing these profiles and survey results, we conclude that, in general,

the courts have successfully accommodated their increased caseloads by stream58. Information supplied by the Administrative Office of the U.S. Courts. The Court of Appeals for the Federal Circuit, which receives its own appropriation, separate from that of the other

courts of appeals, generally employs a central staff of four staff attorneys and four technical advisors.

59. These profiles will be published separately by the Federal Judicial Center in 1999.
Chapter 2. The Federal Appellate System: Past & Present

25

lining their processes and developing efficient methods of appellate case management. We believe, however, that most courts have streamlined their procedures as much as they can without unacceptably compromising their essential

functions.60 The use of nonjudicial staff, nonargument decision-making procedures, summary orders or unelaborated dispositions, and other procedural

accommodations to caseload volume have made the courts more efficient, but

at some cost to the appearance of legitimacy of the appellate process, and at

some risk to the quality of appellate justice. Some courts have adopted these

procedures in an effort to avoid requesting new judgeships, because their judges

believe the deleterious effects of expanding the appellate bench outweigh its

benefits. Courts can absorb caseload growth without large judgeship increases

when that growth occurs largely in the types of cases that take little judicial

time to resolve. There is no guarantee—and history does not support the assumption—that caseload growth will be restricted to these areas. We suggest in

this report structural alternatives to address the effects of growth, when growth

becomes necessary, that will avoid circuit reconfiguration while maintaining

appellate decisional units of acceptable size and enable the courts to continue

to render decisions in a fair, timely, and reasoned manner.

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,61 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.”62 The 1922 Act also modified policies on temporary inter- and intra60. More than half of the 188 circuit judges who responded to a 1992 FJC survey agreed strongly

or moderately with this view (see Planning for the Future: Results of a 1992 Federal Judicial Center

Survey of United States Judges at 17).

61. 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).

62. An Act for the Appointment of an Additional Circuit Judge for the Fourth Judicial Circuit,
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

26

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, and to petition the Chief Justice for an inter-circuit assignment.63

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.”64 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 U.S. 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 administration of

justice in their circuits . . . in quarterly reports by the [Director of the Administrative Office].”65 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.”66

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,”67 and a leading student of the federal courts referred

to them in 1970 as “rusty hinges of federal judicial administration.”68 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]”69 ), broadened their membership (an equal number of circuit and

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

councils to appoint a circuit executive as council staff. Several circuits revamped

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).

63. Id. § 3 at 839.

64. 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).

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

(1939).

66. Supra note 64 at 1224–25.

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

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

Rev. 203 (1970).

69. 28 U.S.C. § 332 (d)(1).
Chapter 2. The Federal Appellate System: Past & Present

27

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,70 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.”71

Table 2-9 and Figure 2-F display current information about the boundaries,

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

circuit.

Table 2-9

Circuit Population, Size, Composition, Number of Judgeships

Authorized 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 61 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 + 94 167 646 511 326

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).

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

71. 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. Russell Wheeler & Gordon Bermant, Federal Court Governance 19

(Federal Judicial Center 1994).
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

28

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
29

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 currently 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 single decisional unit is somewhere between

eleven and seventeen.72

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,

72. In our national survey (see supra Ch. 1, p. 4), of the 205 circuit judges who expressed an

opinion about how many judges a court of appeals can have and still function well, 74% 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.
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

30

because judges who 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 fifteen.

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 circuitwide functions as the circuit judicial conference.

As of December 9, 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 created. 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.
Chapter 3. The Ninth Circuit & Its Court of Appeals

31

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, 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.73 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 wellsettled 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 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.

73. Authorized by 28 U.S.C. §§ 291, 292 (1994).
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

32

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, 422 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.74 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.75

Like all federal courts of appeals, the Ninth Circuit Court of Appeals sits en

banc to secure or maintain the uniformity of its decisions and to decide cases

involving questions of exceptional importance.76 However, 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).77 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,”78 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.

74. 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.

75. Sources for the court’s 1997 workload are Tables B-1, B-4, and S-3 of the 1997 Annual

Report of the Director of the Administrative Office of the U.S. Courts.

76. Fed. R. App. P. 35 (a). See also Ninth Circuit Rule 35-1. Under the court’s rule, a conflict

between a panel opinion and an existing opinion by another court of appeals may also be an appropriate ground for en banc rehearing, if the opinion substantially affects a rule of national application in which there is an overriding need for national uniformity. Recent amendments to the Federal Rules of Appellate Procedure similarly recognize intercircuit conflict as one appropriate ground

for en banc rehearing.

77. Authorized by Pub. L. No. 95-486, 92 Stat. 1633 (1978). See also Ninth Circuit Rule 35-3.

78. 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. (As noted above, the Court of

Appeals for the old Fifth Circuit used administrative divisions also, before that circuit was split; see

supra, Ch. 2, p. 21.)
Chapter 3. The Ninth Circuit & Its Court of Appeals

33

B. The Debate Over Splitting the Circuit and Its Court of

Appeals

1. Background

Calls to split the Ninth and other 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.79 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.80

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.81 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 twentythree 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.82 Shortly thereafter, Congress split

the Fifth Circuit,83 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.84 Similar proposals were made in subsequent

Congresses. The 1990 Report of the Federal Courts Study Committee recommended against any circuit splitting without more experimentation with case

79. See supra note 34.

80. 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).

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

82. Act of Oct. 20, 1978, Pub. L. No. 95-486, § 6, 92 Stat. 1629, 1633. See supra p. 32.

83. See supra Ch. 2 pp. 19–21.

84. S. 948, 101st Cong., 1st Sess. (1989).
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

34

management under current arrangements, and the 1995 Long Range Plan for

the Federal Courts likewise recommended against circuit realignment.85

In 1995, senators introduced S. 95686 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.87

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 and others.

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.

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 renders

it less likely that circuit judges can stay informed of the law that other panels

85. 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).

86. Ninth Circuit Court of Appeals Reorganization Act of 1995, S. 956, 104th Cong., 1st Sess.

(1995).

87. Pub. L. No. 105-119, § 305(a), 111 Stat. 2491 (1997).
Chapter 3. The Ninth Circuit & Its Court of Appeals

35

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

three-judge 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

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 rates have not been appreciably higher in

Ninth Circuit cases than in others. They also say that to the extent the Supreme
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

36

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.

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.
Chapter 3. The Ninth Circuit & Its Court of Appeals

37

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,88 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.

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.89 Of the

88. 28 U.S.C. § 331 provides each regional circuit, regardless of size, two members on the Judicial Conference of the United States.

89. See Statement of Chief Judge Procter R. Hug, Jr., at the Commission’s May 29, 1998, public
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

38

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. Seven 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 in the formal submissions to us, including comments on the

Commission’s tentative draft report, favor keeping the circuit as currently

configured. These statements include those of elected federal and state officials

in several Ninth Circuit states; the U.S. Department of Justice; the American

Bar Association; and state and local bar associations. Other elected officials in

Ninth Circuit states communicated their preference for a split of the circuit.

Five members of the U.S. Supreme Court wrote our chair before the Tentative Draft Report was released.90 Of the four who commented on the Ninth

Circuit, all were of the opinion that it is time for a change. In general, the Justices expressed 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. Some

expressed concern about the adequacy of the Ninth Circuit’s en banc process

to resolve intracircuit conflicts. We believe that our divisional proposal addresses

the Justices’ concerns.

Additionally, Chief Justice Rehnquist has commented on our Tentative Draft

Report, “in particular support of the proposal to organize the Court of Appeals

for the Ninth Circuit into three regionally based adjudicative divisions.” The

Chief Justice noted that he “share[d] many of the concerns expressed by my

colleagues on the Court who previously corresponded with the Commission

and advocated that some change in the structure of the Court of Appeals for

the Ninth Circuit is needed.” The Chief Justice went on to say that he thought

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.

90. The following members of the Court wrote 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.”
Chapter 3. The Ninth Circuit & Its Court of Appeals

39

the Commission’s divisional proposal was “better than merely a compromise

between those who have advocated a split of the circuit and those who argue

for the status quo. It appears to me to address head-on most of the significant

concerns raised about that court and would do so with minimal to no disruption in the circuit’s administrative structure.”91

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,92 but we cannot say

that the statistical criteria tip decisively in one direction or the other. 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 determination of how the Ninth Circuit Court of Appeals measures

up to others.93 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 re91. Letter from the Chief Justice to Justice White, October 22, 1998, available on the Commission’s

website (http://app.comm.uscourts.gov).

92. 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.

93. 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).
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

40

port 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 freeze-framed 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.”94

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 much excellence in a group’s decision as its combined talents, experience,

and energy permit.”95

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. Our recommendation

reflects not only our assessment of the needs of the Ninth Circuit Court of

94. Frank Coffin, On Appeal 215 (1994).

95. Id.
Chapter 3. The Ninth Circuit & Its Court of Appeals

41

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, Guam,

Hawaii, Nevada, and the Northern Mariana Islands

Southern Division — Districts of Arizona and Central and Southern

California96

Matters arising from sources other than the district courts (e.g., tax court decisions, review and enforcement of administrative agency matters that bypass

the district courts) should be taken to the court of appeals and assigned to the

division that would have jurisdiction over the matter if the division were a

separate court of appeals. The circuit’s current Bankruptcy Appellate Panel

Service should remain in place, unaffected by the divisional structure.97 Appeals from a decision of a bankruptcy appellate panel would be taken to the

division to which the appeal would be taken in the absence of a bankruptcy

appellate panel.

96. 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

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.

97. In some instances, the bankruptcy appellate panel (BAP) may have to take account of conflicting divisional decisions in bankruptcy matters. We expect those instances will be rare and resolvable by the Circuit Division, but in any event the benefits of a circuit-wide BAP far exceed the

drawbacks of this occasional hardship, and we do not believe a division-based BAP would be practical under current rules precluding a bankruptcy appellate panel from including a judge from the

district from which the appeal arises. In the divisional structure we foresee, this would seriously

impede, if not destroy, the effectiveness of the BAP system in the Ninth Circuit.
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

42

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

Nevada California

 (N.D. & E.D.)

Northern

Mariana Islands

Guam

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-1.98 Our

98. Although the draft bill we provide would implement the specific three-division structure

we propose here, this is not the only plausible arrangement. One advantage of the divisional approach is that it allows different or additional divisions to be created as necessary, if the number of

appellate judgeships grows, without requiring a disruptive circuit split. For example, an alternative

to the three particular regional divisions we propose might take account of the patterns of population and caseload growth in the circuit by creating four divisions immediately. One possible fourdivision arrangement would organize the circuit into one division with the Northwest states and the

Pacific islands, one with the Eastern and Northern Districts of California, one with the Central
Chapter 3. The Ninth Circuit & Its Court of Appeals

43

draft bill includes a provision under which the Federal Judicial Center would

study the effectiveness of the divisional structure and 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.

Under the proposed statute, each active 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 three years. Circuit

judges in senior status would be assigned to divisions in accordance with policies adopted by the court of appeals. 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.

Each regional 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. Upon the creation of divisions, present Ninth Circuit precedent would continue to be the governing law throughout the circuit. Existing

Ninth Circuit precedents, and divisional decisions, could be overruled within

a division only by the divisional en banc process. 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 and others to possibly diverging lines of federal authority. However, we believe that our

proposal will not create notably more federal forum shopping than occurs now,

District of California alone, and one with Arizona, Nevada, and the Southern District of California.

A variation on this organization would place the Central and Southern Districts of California in the

same division, leaving Arizona and Nevada in their own division. At present, the number and distribution of judges on the court make these arrangements impractical, if not unworkable. Given those

conditions, we do not propose these alternatives, but note that if Congress provides the judgeships

the court has requested, a request the Judicial Conference has endorsed, the four-division alternatives have some attributes (e.g., geographical integrity and a reasonable distribution of caseloads)

that would make them more attractive alternatives to accommodate future growth.
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

44

and that our Circuit Division proposal provides a more expeditious way to

resolve conflicts that forum shopping may produce. Current venue provisions

are such that even today, litigants in California are often free to choose among

federal districts in the state, such as the Northern or Central District. They may

base their forum choices on multiple factors, such as their assessments of likelihood of success before the trial judges in the districts, or their beliefs about

local juries. We assume they would continue to do so if those two districts were

put in different appellate divisions.

Once a regional division has spoken on a matter of law, the trial courts over

which it has jurisdiction will be bound by that decision, regardless of decisions

issued in other divisions. But the Circuit Division we propose should ensure

that conflicts on issues for which circuit-wide (or state-wide) uniformity is

important will not survive long.99 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 be resolved by the Circuit Division more readily and efficiently than is possible under the current en banc

process, and certiorari from “incorrect” decisions or decisions that conflict with

other circuits can be sought in the U.S. Supreme Court. The specter of inconsistent interpretations of federal law may be unattractive, but it is one that exists

throughout the federal system, and one that circuit splitting would not ameliorate. Moreover, in the California state appellate courts, where the intermediate

appellate system is organized into geographical districts, the decisions of one

court of appeal are not binding on the court of appeal of another district. Thus,

differences between the Middle and Southern Divisions under the system we

propose would not create a situation that does not already exist in state practice.

Some have suggested that all California appeals should be decided in the

same division. Given population and caseload trends, the number of judges

needed simply to handle California appeals could in the relatively near future

exceed the number we have already concluded is the upper limit for a decisional

unit.100 Therefore, we do not recommend such an arrangement. However, that

point has not yet been reached, and if putting parts of California in different

divisions is perceived to be too great a problem, another possible divisional

arrangement would be to make California a single division (Middle Division),

99. The court of appeals will develop the rules and practices by which the Circuit Division will

operate. But we envision that its function will be focused on maintaining uniformity on issues of

law that matter to the entire circuit or to a state (such as California) that is in more than one division. For example, it would be highly undesirable if the Northern and Southern Divisions established different rules on an admiralty issue. On the other hand, it would not appear to matter whether

all divisions had the same rule of law with respect to the factors to be considered in granting an

adjustment for abuse of trust under the Sentencing Guidelines.

100. Approximately 4,000 of the court’s annual filings arise from California. Annual filings

from California alone exceed annual filings in many other regional courts of appeals.
Chapter 3. The Ninth Circuit & Its Court of Appeals

45

with Arizona and Nevada in another division (Western Division), and the remaining states and territories comprising a third (Northern) division. While

this configuration has the disadvantage of creating divisions with disproportionate caseloads,101 it has the advantage of avoiding a single state’s being served

by separate divisions and retains other desirable aspects of the regional division

scheme.

b. Circuit Division 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

conflicting decisions between the regional divisions. It would be composed of

thirteen judges, including the chief judge of the circuit and twelve active circuit

judges selected by lot in equal numbers from each of the regional divisions.102

Assignment to the Circuit Division would be in addition to a judge’s regular

work in the regional division to which he or she is assigned. Once the Circuit

Division is fully established, service on it would be for a term of three years,

with judges’ terms staggered to provide for continuity of membership, along

with gradual rotation.

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 interdivisional 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-wide

en banc process would be abolished, and it follows that the authorization for

courts with more than fifteen active judges to convene limited en banc panels

would no longer apply in the Ninth Circuit.103

101. The California, or Middle, Division would retain about 60% of the circuit’s appellate

caseload, with the Northern Division carrying about 26% of it and the Western Division only about

14%.

102. While we believe that seven would be an adequate number for the task of determining

circuit law when issues resolved by decisions in different divisions are in conflict, we have heard

suggestions that seven is too small a number to speak for the circuit even given the limited nature of

the Circuit Division’s assignment. Thirteen is a viable option. Seven is a less cumbersome panel, and

has advantages of greater efficiency and lower cost. Yet thirteen may be seen as better able to “break

a tie” between divisions authoritatively.

103. That is, the provision of Sec. 6 of Pub. L. 95-486, 92 Stat. 1633 (1978), allowing the court to

perform its en banc functions with a number of judges specified by the court of appeals (rather than

all active judges) would no longer apply in the Ninth Circuit.
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

46

The work of the Circuit Division should occur as quickly as possible after

the regional division’s decision is final, and be concluded as quickly as feasible

in order to expedite finality and minimize expense to parties. The court of appeals

should adopt rules to expedite the Circuit Division’s conflict resolution process.

For example, those rules could provide that if a party alleges that a panel’s

resolution of an issue conflicts with a decision in another division, that party

should be required to make that assertion first within the division. If the division does not order a rehearing en banc, the division should immediately transmit the petition to the Circuit Division with appropriate notice of the issue on

which conflict is alleged, along with the necessary papers (e.g., the briefs and

record in the case, together with a copy of the allegedly conflicting opinions).

The Circuit Division should treat the party’s conflict allegation as an application for review, analogous to a petition for certiorari in the Supreme Court, and

determine whether additional briefing or argument will be necessary. The Circuit Division should determine whether to accept the conflict for resolution

and, if so, decide the issue of law based on the materials transmitted, unless it

orders additional steps. Where a party whose case has been reheard en banc

within a division asserts that the en banc decision conflicts with another division’s

decision on the same issue, the party may file an application for review of the

issue in the Circuit Division. In either case, the Circuit Division will simply

resolve the issue in conflict, and return the case to the regional division for such

other proceedings as are necessary.

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.104 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. Although the court should be free

to organize these resources as it sees fit, we see no reason that organizing the

court into adjudicative units would require its central administrative staff to be

dispersed any more than has been required for its organization into administrative units. Indeed, the court’s central staff and its case-inventory process can

play a critical role in maintaining the consistency of circuit law. We believe the

court’s administration is fully capable of making any adaptations necessary to

104. Depending on the specific statute enacted, some changes in the Federal Rules of Appellate

Procedure will probably be necessary. Enactment of our proposal, for example, as embodied in the

statute in Appendix C-1, would obviously require changes to Rule 35, concerning en banc hearings,

to recognize the different statutory provisions governing the Ninth Circuit Court of Appeals. We

believe such changes are best left to the rule-making process.
Chapter 3. The Ninth Circuit & Its Court of Appeals

47

allow the central staff to continue to serve its current functions for all the divisions.

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 so that their own decisions are consistent with earlier decisions of the

court and so that the court can identify and correct any misapplication or

misstatements of the law. Over time, coherence and consistency suffer when

judges are unable to monitor the law of their entire decisional unit 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.105

The inability of judges to monitor all the decisions the entire court of appeals renders, along with perceptions of greater inconsistency in the Ninth Circuit

than in 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.

One reason judges in larger decisional units have difficulty maintaining

consistent law is that as the size of the unit increases, the opportunities the

court’s judges have to sit together decrease. In a court of twenty-eight judges,

given a typical sitting schedule such as that used in the Ninth Circuit Court of

Appeals, it would be rare for a judge to sit with every other judge of the court

more than once or twice in a three-year period.106 It is true that the court has

been operating with far fewer than twenty-eight judges for much of the last

105. 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.

106. In practice, constraints on the assignment schedules of the court’s judges have meant that

some judges do not sit with every other judge even once in a three-year period. The Commission is
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

48

several years, but the effect is the same, because senior and visiting judges must

be used to fill out the panels to keep up with the heavy docket. Thus, even

though the court has effectively been a court of only about eighteen active judges,

the opportunities for interaction have been less frequent than on a court whose

caseload only warrants eighteen judgeships.

Decisions should also 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. Effective regional 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 the other circuits as a whole, and for some functions higher, but the proportion describing

it as “inadequate” is substantially higher in the Ninth Circuit.107 Similarly, more

Ninth Circuit judges—both circuit and district—than judges in most other

circuits report dissatisfaction with the frequency with which the court takes

cases en banc.108

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

aware that there are other opportunities for interaction, such as en banc proceedings, court symposia, and committee work, but some of these are not case-deciding functions and most do not provide the kind of interaction necessary to promote consistency and predictability of the law.

107. 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.”

108. 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.
Chapter 3. The Ninth Circuit & Its Court of Appeals

49

Court of Appeals and reduce the burden of en banc calls to a more manageable

level. We believe that the bulk of the work now done by the limited en banc will

be done by the divisional en bancs, using the full complement of the division’s

eligible judges. In the last ten years, less than 10% of the cases reheard by the

court en banc were reheard because the three-judge panel decision created or

revealed an intracircuit conflict. Indeed, we think the divisional en bancs, collectively, may do more work than the limited en banc does now, because they

will be less cumbersome to convene. However, in time, 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.

Our proposed divisional scheme concentrates in the divisions the en banc

functions of rectifying incorrect panel decisions and deciding questions of

exceptional importance, because the entire body of judges for whom an en banc

opinion speaks should have a voice in that opinion. With an effective divisional

en banc process, there should be a higher degree of uniformity within regional

divisions than now exists within the Ninth Circuit Court of Appeals as a whole.

Additionally, with clearer statements of the law within regional divisions, conflicts that may develop between divisions will be more sharply highlighted. The

Circuit Division, using judges from throughout the circuit but with its mission

restricted solely to resolving interdivisional, intracircuit inconsistencies, can act

effectively to choose between articulated conflicting points of view and quickly

settle the law of the circuit.

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 circuit judges to the Ninth Circuit, not to a

particular division, 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 currently 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
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

50

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 conflictcorrection mechanism within the same judicial circuit.

3. Key differences between this proposal and regional calendaring

systems

Our proposal differs fundamentally from the regional calendaring divisions that

the Ninth Circuit tried for five months starting in September 1978, and from

the proposal made by Chief Judge Hug, on behalf of a majority of the court’s

judges, in response to our Tentative Draft Report.

a. The regional calendaring experience of the 1970s

In the 1978–1979 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.109

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.

109. Today, the Ninth Circuit has twenty-eight authorized judgeships, with twenty-two active

judges and seventeen senior judges.
Chapter 3. The Ninth Circuit & Its Court of Appeals

51

b. The 1998 regional/divisional calendaring proposal in response to the

Commission’s Tentative Draft Report

In response to our request for comments, Chief Judge Hug wrote for a majority

of the Court of Appeals for the Ninth Circuit, suggesting modifications of our

proposed divisional organization that in his view would accomplish the principal objectives of our recommendation.110 Chief Judge Hug would establish

three divisions, composed solely of judges resident in the division. Those divisions would have no distinct adjudicative role. Their function would be to

channel the calendaring process: appeals from district courts in each regional

division would be heard by panels comprising two judges of the division and

one judge from outside the division. The judges of the regional divisions would

not sit en banc, as we propose. The decisions of the panels would be binding

circuit-wide, unless overruled by a limited en banc court of the circuit, which

Chief Judge Hug would retain to rehear any case, not just cases involving conflicts. The limited en banc could be expanded to thirteen or fifteen judges representative of the divisions.

We have carefully considered the Chief Judge’s response and analysis, but we

do not agree that his modifications are consistent with our proposed divisional

structure. Indeed, they are antithetical to it. The heart of the divisional structure that we recommend is a regionally based, adjudicative unit that is small

enough, stable enough, and autonomous enough to function effectively as an

appellate decisional body responsible for the law applicable in the region. This

cannot be accomplished through divisions with regional calendaring and a

circuit-wide en banc, as the Chief Judge suggests.

Giving each panel decision stare decisis effect unless it is overruled by a

circuit-wide en banc court would leave the court of appeals essentially unchanged

as an adjudicative body, and would defeat the purpose of the divisional structure that we recommend. District judges and lawyers, as well as all circuit judges,

would still have to keep abreast of all panel decisions throughout the circuit. All

circuit judges would still be required to make or respond to en banc calls to

rehear issues of exceptional importance arising anywhere in the circuit—a task

our proposed divisional structure deliberately eliminates because we believe

that a smaller decisional unit can more effectively maintain the coherence and

correctness of the law of that unit. Under our proposed structure a circuit-wide

en banc process, or en banc court, is not necessary to maintain desirable circuit-wide uniformity; instead, a small, stable, but still representative subset of

the court’s judges (the Circuit Division) focused on conflict resolution can ensure

it. Further, under our proposed structure, issues of exceptional importance will

be determined by all the judges for whom the decision speaks. This is not possible

110. Chief Judge Hug submitted a five-page letter dated October 27, 1998, to which he attached

a twelve-page “Analysis of the Commission Report.” Both are available on the Commission’s website

(http://app.comm.uscourts.gov).
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

52

with a limited en banc—even if expanded as Chief Judge Hug suggests—but

can only be accomplished by a system of adjudicative divisions, each of which

truly convenes en banc. 111

Chief Judge Hug’s suggestion about panel composition would give both too

much and too little weight to the value of regional connection. It gives it too

much weight by requiring that every panel in the circuit have a majority of

judges from the region that generates the appeal, implying that only judges

from the region can get the law right. We do not agree with that implication.

Moreover, the proposal could dilute the salutary goals of random assignment

of judges and cases to panels, which we do not believe should be changed. The

suggested modification to our proposal gives too little weight to the value of

regional connection by having a regionally composed panel’s decision subject to

circuit-wide rehearing en banc. That arrangement does not further either the

regionalizing or federalizing functions that our recommended structure seeks

to reconcile. Both these functions, we believe, are better served by a randomly

drawn panel within a regionally based, but circuit-balanced, division—each

division having a majority of its judges resident within its region.

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.

It has been suggested to us that California is large enough, in population

and caseload, to warrant its own federal circuit. Several other circuits are similarly dominated by a single state and could only be divided by a realignment

that would leave that state in a circuit of its own. Circuit realignment to produce circuits smaller than three states is undesirable. We conclude this because

111. Some, including the Department of Justice, have suggested that it would be helpful for the

Ninth Circuit’s court of appeals to take more matters en banc and that it might facilitate that process if the vote of less than a majority of active judges were required. We express no opinion on this,

but we do note that there is no way to ensure that the active judges on any court will vote to rehear

any particular matter en banc. This suggestion, like expanding the number of judges on any particular limited en banc court, is not structural and would not accomplish the objectives our divisional structure is intended to achieve.
Chapter 3. The Ninth Circuit & Its Court of Appeals

53

we believe three is the minimum necessary for units of the intermediate tier of

a federal system to serve an appropriate federalizing function.112 Appellate courts

serve this function better when they comprise judges from several states. This

not only ensures a broader, more national perspective essential to a federal court

system, but enlists the continuing interest of several congressional delegations

and spreads among a larger number of senators the informal but ingrained

influence over the appointment of the court’s judges. Concentrating such influence in one or two senators over a court with appellate caseloads as large as

those generated, for example, by California, New York, or Texas, would not be,

in our view, wise policy. 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 in 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.113

112. The Courts of Appeals for the District of Columbia and Federal Circuits, with their unique

caseload distributions (e.g., the concentration of administrative agency cases in the D.C. Circuit

and the restricted, nonregional jurisdiction of the Federal Circuit), each with judges drawn from

throughout the country, are exceptions to this principle.

113. 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.
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

54

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

New Ninth Circuit — Arizona, California, and Nevada

New Twelfth Circuit —Alaska, Guam, Hawaii, Idaho, Montana, Northern

Mariana Islands, 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

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

1

2

3

4

11

7 6

New

Twelfth

Circuit

5

8

10

New

Ninth

Circuit

3

1

Figure 3-B

Boundaries of Reconfigured Circuits—Option A

Cal.

Nev.

Ariz.

N.M.I.

Guam

Haw.

Ore.

Ida.

Mont.

Wash.

V.I. P.R.

D.C. Cir.

Fed. Cir.

Alas.

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.114

114. 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).
Chapter 3. The Ninth Circuit & Its Court of Appeals

55

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

to reduce size of new Ninth

New Ninth Circuit — California, Guam, Hawaii, Nevada, Northern

Mariana Islands

New Tenth Circuit — Arizona, Colorado, Kansas, New Mexico, Oklahoma,

Utah, Wyoming

New Twelfth Circuit —Alaska, Idaho, Montana, Oregon, Washington

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

1

2

3

4

11

7 6

5

8

Kansas

Oklahoma

New

Ninth

Circuit

Haw.

New

Twelfth

Circuit Wash.

Ore. Ida.

Mont.

Cal.

Nev.

Ariz.

Colo.

N.M.

Utah

Wyo.

Alas.

Okla.

New Tenth Circuit

Kan.

N.M.I.

Guam

3

1

D.C. Cir.

Fed. Cir.

V.I.

P.R.

Figure 3-C

Boundaries of Reconfigured Circuits—Option B

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 with 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
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

56

manageable size. Assuming the three circuit judgeships now in Arizona were

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 162.115

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

Mariana Islands

New Twelfth Circuit —Districts of Alaska, Eastern and Northern California,

Idaho, Montana, Oregon, Eastern and Western

Washington

115. 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

Nevada

Arizona

Wash.

Ore. Ida.

Mont.

1

2

3

4

11

6 7

5

8

10

New

Ninth

Circuit

Alas.

California

(C.D. & S.D.)

Cal.

(N.D.

 &

 E.D.)

Figure 3-D

Boundaries of Reconfigured Circuits—Option C

Haw.

N.M.I.

Guam 3

1

V.I.

P.R.
Chapter 3. The Ninth Circuit & Its Court of Appeals

57

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. 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 that we propose will be able to resolve interdivisional 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.116 The Circuit

Division 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 into divisions is the most principled and effective way to resolve the

debate about the Ninth Circuit and its court of appeals.

116. See August 29, 1998, letter to Justice White 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.
59

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, more or less unpredictably, and equalizing caseloads 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. Furthermore, as explained below, our divisional arrangement

avoids circuit splits that would create one- or two-state circuits, which we believe would hinder or preclude the ability of the regional courts of appeals to

exercise their federalizing function.

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
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

60

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 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—not

require—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

As we discussed in Chapter 2, the traditional way to deal with a court of appeals

deemed to have grown too large to function effectively was to split the court’s

circuit and thus the court itself. Congress did that in 1929 when it split the

Eighth Circuit to create the Tenth Circuit, and in 1980 when it split the Fifth

Circuit to create the Eleventh Circuit. As we discussed in Chapter 3, splitting

the Ninth Circuit to deal with the problems facing its court of appeals is not

practical or desirable. For reasons explained below, we do not believe circuit-
Chapter 4. Structural Options for the Courts of Appeals

61

splitting will be a feasible structural option if and when other courts of appeals

grow too large to operate as a single decisional unit.

Although other courts are not free from problems, we do not believe any of

them need restructuring. At the moment, no other court of appeals approaches

the Ninth Circuit’s in terms of judgeships. However, it is possible that the press

of increased litigation will lead to increases in judgeships in at least some of the

courts of appeals and, if so, those courts may also be candidates for some type

of restructuring.

If and when that day comes, circuit-splitting as a structural alternative will

be even less feasible in most circuits than it is in the Ninth. That is so because,

as stated in Chapter 3, regional circuits should consist of at least three states,

both to fulfill the federalizing role expected of regional appellate courts and to

enlist the interests of several Congressional delegations in the well-being of the

circuit and appointments to its court of appeals. Nevertheless, leaving aside the

Ninth and District of Columbia Circuits, only two of the other ten regional

circuits include six or more states. Five have three states, two have four, and one

has five.117

In other words, applying our three-states-per-circuit rule, five of the circuits

by definition cannot be split and three others can be split only by creating at

least one circuit of fewer than three states. Furthermore, circuit splitting is costly

and disruptive, entailing as it does the creation of a separate administrative

apparatus for any new circuit.

For these reasons, we recommend that Congress, on a permanent basis, give

all appellate courts above fifteen judgeships discretion to adopt a divisional

organization. When an appellate court exceeds fifteen judgeships it is large

enough to make feasible such an internal design, and it is reaching the point

where performing its en banc function effectively becomes increasingly difficult.

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. We

believe that any large court of appeals (that is, a court with eighteen or more

judges, and certainly one with more than twenty) should be organized into

adjudicative divisions. However, just as courts with more than fifteen judges

now have the authority to perform their en banc functions through a limited

en banc (although only the Ninth Circuit’s court has chosen to do so), we believe

that all courts of appeals with more than fifteen judgeships should have the

authority to perform their adjudicative work in divisions.

The proposed statute leaves considerable leeway to a court of appeals in

designing a divisional structure. Although not specified in the statute, we con117. See Table 2-9. The Second, Third, Fifth, Seventh, and Eleventh Circuits have three states.

The First and Sixth have four states. The Fourth has five states. The Tenth has six states and the

Eighth has seven states.
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

62

template that each division would have an odd number of judges, with a minimum of seven, and preferably no more than eleven. 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. The

circuit-wide en banc procedure 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.

The proposed statute is set out in Appendix C-2 as subsection (d) of a revised section 46 of Title 28, United States Code.

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 judges”). As caseloads grow, courts would benefit from the flexibility to

provide by rule for two-judge disposition of some cases. We believe that twojudge 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. § 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,
Chapter 4. Structural Options for the Courts of Appeals

63

uses two-judge panels; it has done so for twenty years,118 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.”119 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

staff-supported 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 two-judge 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 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

118. N.J. Ct. R. 2:13-2. Two-judge panels were authorized in September 1978.

119. Id.
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

64

uses two-judge 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 (DCAPs)

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, but not require, 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

district judges of the circuit to it. The judicial council would determine the

number of such judges and whether both active and senior judges would be so

assigned.120 The council would provide by rule for convening three-judge panels comprising two district judges and one circuit judge designated by the chief

circuit judge. The circuit judge would preside over the panel. 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. Further review of decisions by a district court

appellate panel would be in the court of appeals, but only by leave of that court.

If a party filed a petition in the court of appeals for leave to appeal a DCAP

decision, the case would be subject to review in the Supreme Court under 28

U.S.C. § 1254, like any other case in the court of appeals.

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 sentencing 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 and typically involve little or no lawmaking. While the judicial council would define

DCAP jurisdiction by categories and types of cases of that sort (rather than

prescribe criteria for a case-by-case determination), an appeal of any type may,

on occasion, involve a significant legal issue. For that reason, the proposed statute

authorizes the DCAP to transfer to the court of appeals any case that presents

120. We note in this regard that circuits establishing bankruptcy appellate panel services have

taken different approaches to the membership of these panels and the procedures they use. Similar

variation, at least during the developmental stages, could provide useful information about how

best to organize district court appellate panels.
Chapter 4. Structural Options for the Courts of Appeals

65

such an issue. If the DCAP does so, the court of appeals should be required to

decide the case.

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 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.

Our recommendation should not be read to imply that district judges are

now less busy than circuit judges, or that there is excess judge power in the

district courts. Rather, the recommendation assumes that caseloads—and therefore judicial resource needs—will continue to grow, and speaks only to where

that growth should occur. Extensive use of district court appellate panels could

reduce the need for additional circuit judgeships, but it would also, at least in

some circuits, require additional district judgeships. The proper number can 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.121 The statute

in Appendix C-3 leaves wide room for each circuit to select the cases to be

121. We are aware of some district and circuit judge opposition to the concept of district court

appellate review, as reported in comments submitted 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 avail-
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

66

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 Congress continue, modify, or eliminate the authority.

able 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.
67

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

The Commission reviewed pending legislation 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 also considered various other alternatives

for handling bankruptcy appeals.

Late in our study period, the Judicial Conference Committee on the Administration of the Bankruptcy System decided to conduct, with the assistance of

the Federal Judicial Center, a study of the existing bankruptcy structure and

possible alternative structures. This study is consistent with Recommendation

21 of the Long Range Plan for the Federal Courts122 and 1998 Judicial Conference action.123

The Commission strongly recommends that Congress forgo action regarding bankruptcy appeals until the Judicial Conference has completed its study.

The Judicial Conference will have the opportunity to consider the situation

from the viewpoint of all affected parties, in more depth than either the NBRC

or this Commission, given the broad mandates and tight time constraints of

both commissions. Moreover, we are concerned that implementing the NBRC

recommendation could exacerbate problems in the courts of appeals and destroy the arguably successful innovation of bankruptcy appellate panels.

For the present, we offer our assessment of the situation and the effect of

direct bankruptcy appeals on the courts of appeals.

122. Recommendation 21 provides that “[t]he existing mechanism for review of dispositive

orders of bankruptcy judges should be studied to determine what appellate structure will ensure

prompt, inexpensive resolution of bankruptcy cases and foster coherent, consistent development of

bankruptcy precedents.” Judicial Conference of the United States, Long Range Plan for the Federal

Courts 47 (1995).

123. At its September 1998 session, the Judicial Conference supported the simplification of

appellate review of dispositive orders of bankruptcy judges; urged that no change in the current

appellate system be considered until the judiciary has an opportunity to study further the existing

process and possible alternative structures and to submit a report to Congress; and pending completion of the study, opposed the appeal as of right from dispositive orders of bankruptcy judges directly to the courts of appeals. Preliminary Report of the Actions Taken by the Judicial Conference

of the United States, in session, September 15, 1998.
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

68

1. Current bankruptcy appellate structure and asserted problems

District courts are the primary appellate forums 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 (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 cause uncertainty, unpredictability,

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.124 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.125

The NBRC recommended the elimination of the first layer of appeal to a

district court or BAP.126 In 1998, the House of Representatives passed comprehensive bankruptcy reform legislation that would, among other things, implement this recommendation by providing for direct appeal to the courts of

appeals. 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 think the effect of

124. 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), and Daniel J. Bussel, Power,

Authority, and Precedent in Interpreting the Bankruptcy Code, 41 UCLA L. Rev. 1063, 1075–78 (1994),

for examples of issues that are litigated repeatedly.

125. 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 et al., 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).

126. 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).
Chapter 5. Appellate Jurisdiction

69

direct appeals on the courts of appeals and the feasibility of other options should

be studied in more depth before the current system is changed.127

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 may have serious drawbacks. The most

significant is the increased workload it could bring to the courts of appeals.

Estimates for FY 1997 suggest that a system of direct appellate review would

have brought the courts of appeals increased filings of about 6.5% (i.e., about

3,400 new appeals in one year), a number that would have been even higher in

earlier years.128 These effects vary by circuit. For example, the percentage increase in FY 1997 would have ranged from 0.9% in the District of Columbia

Circuit to 14.5% in the First Circuit. Moreover, between one-quarter and onethird of the increased filings would have been concentrated in the Ninth Circuit, which would probably have experienced an increase of 10.5%.129

Before concluding that direct appeal to the courts of appeals is the best

structure for bankruptcy appellate review, a more comprehensive study of the

costs and benefits is in order and has already been requested by the Judicial

Conference. The Commission considered assessments of the effects of direct

review, and concluded that the Judicial Conference is in the best position to

examine in more detail the conflicting anecdotal and empirical evidence bearing on the question. The Judicial Conference will also be in a better position to

consider the advantages and disadvantages of direct review for the entire system,130 and, if direct review is the best alternative, consider what conditions are

127. At the request of the Commission, the FJC analyzed several options for bankruptcy appeals other than direct appeal to the courts of appeals. Descriptions of those options are included in

the Commission’s Working Papers.

128. Estimates using figures from fiscal years 1989–1996 range from 6.3% to 9.6%.

129. These estimates assume that every bankruptcy appeal filed in the district courts and BAPs

would be filed in the courts of appeals. Using these estimates represents the worst-case scenario

since some matters currently appealed to the district court or BAP would not be appealed to the

generally more expensive and less convenient court of appeals. Moreover, the development of binding precedent over time might diminish the number of appeals.

130. Direct review may have disadvantages beyond the burden it would place on the courts of

appeals. A speedy resolution is often essential in bankruptcy appeals, but 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 may incur more expense and inconvenience than they would in the

current system. We are aware of the serious methodological difficulties involved in comparing appeal disposition times in the alternative appeal routes (district courts, BAPs, and courts of appeals),

but we believe additional study could help resolve the conflicting claims we have seen regarding the

speed of different appellate structures.
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

70

necessary to make it workable, particularly in the circuits most affected, or to

mitigate the effects on already overburdened courts of appeals. On the present

record, we cannot say how serious the asserted problems are, whether the anticipated caseload increases will be offset by other decreases, or which alternative structure is preferable, but believe that more complete information can

provide Congress with a better basis for making that decision.131

Accordingly, we urge Congress to refrain from changing the bankruptcy

appellate system until the Judicial Conference has an adequate opportunity to

study it and propose any necessary improvements.

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 dis131. Among other things, the Judicial Conference and Congress would benefit from better

estimates of the number and likely complexity of bankruptcy appeals, including estimates of how

many of them, if taken to the courts of appeals, would be decided on the merits and how many

would drop out before decision by a three-judge panel. In this regard, it is not clear whether the

likeliest pattern would be the merit termination rates seen in the courts of appeals, in the BAPs, or

in the district courts (for which we have considerably less reliable data on which to base this assessment). To assess the impact of direct appeal, we would also have to estimate the extent to which

appeals terminated without a final decision on the merits would nonetheless require substantial

judicial time, as might be expected given the well-known difficulty of defining finality for appeal

purposes in bankruptcy cases. (Cases dismissed for lack of appellate jurisdiction are not counted as

“merits” terminations, yet they require judicial attention and may even involve oral argument.)
Chapter 5. Appellate Jurisdiction

71

position 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

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 things, 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
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

72

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

discretionary 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; and (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.
Chapter 5. Appellate Jurisdiction

73

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 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.”132

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 two 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. Currently, appeals in those cases are taken to

the regional courts of appeals from the ninety-four 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

132. Judicial Conference of the United States, Long Range Plan for the Federal Courts 43 (1995).
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

74

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. 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 veterans’ appeals would seem appropriate for Social Security cases, namely,

a limitation of appellate review to questions of statutory and constitutional

interpretation.
75

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 fifteen judgeships, at its

option, to organize itself into adjudicative divisions (Chap. 4, sec. A; Appendix C-2);

• authorize the courts of appeals to decide some cases with two-judge panels (Chap. 4, sec. B; Appendix C-2); and

• authorize the judicial council of any circuit to establish district court appellate panels to provide first level review for designated categories of cases

that primarily 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 providing the actual text of the recommended statutory measures, we

hope to facilitate the introduction of bills to carry out these proposals.
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

76

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 our 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.”
77

Additional Views of Judge Merritt,

Joined by Justice White,

Concerning the Appropriate Jurisdiction

of the Federal Courts

In our report we are unanimous in our view that “the Commission recognizes

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

courts....” It would be well for the House and the Senate Judiciary Committees,

or the appropriate subcommittees thereof, to consider the question of federal

court jurisdiction in depth. One of the subjects worth considering in hearings

on the subject is the advisability of modifying diversity of citizenship jurisdiction. Although the majority of the Commission believes that consideration of

district court jurisdiction is outside the Commission’s statutory mandate, I disagree. The relevant language of the statute charges the Commission with making “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 appellate caseloads 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

courts of appeals 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 that proposal, I press my plan.

The growing caseload of the federal courts is our most significant problem.

It drives the need to create judgeships, which in turn drives the need to 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
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

78

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.

For these reasons, we write separately to 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.133

I. Proposal to Reduce Diversity Jurisdiction

Although diversity of citizenship 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-the-mill 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.”134

133. We note that in his October 22 letter commenting on the Commission’s Tentative Draft

Report, the Chief Justice expressed his agreement not only with the Commission’s view that significant changes are needed in federal court jurisdiction generally, but also with this separate statement’s

conclusion that changes in diversity jurisdiction are needed, particularly the elimination of in-state

plaintiffs’ diversity jurisdiction.

134. Hearing Before the Senate Judiciary Committee on S. 466, 79th Cong., 1st Sess. (Oct. 8,

1945).
Additional Views of Judge Merritt, Joined by Justice White

79

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 preserving 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.”135

As the Federal Courts Study Committee 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.”136 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.137 In the same year, 1,767,

or almost 40%, of the 4,557 civil jury trials were diversity cases.138 Moreover,

the courts of appeals heard 3,776 diversity appeals last year.139 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.140 Diversity

cases are of “above-average difficulty” in terms of the workload of the federal

courts.141 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.142

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

state-court adjudication would be equally fair and effective, but it would pre135. Jon O. Newman, Restructuring Federal Jurisdiction: Proposals to Preserve the Federal Judicial System, 56 U. Chi. L. Rev. 761, 771–72 (1989).

136. Report of the Federal Courts Study Committee 39 (April 2, 1990). See also Richard A.

Posner, The Federal Courts: Challenge and Reform 210–12 (1996) (compiling statistics showing

that abolishing diversity jurisdiction would substantially decrease the workload of the federal courts).

137. 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.

138. Id. at Table C-4.

139. Id. at Table B-7. This figure represents 10% of the 35,414 civil appeals last year.

140. Compiled by Judith McKenna of the Federal Judicial Center from caseload statistics reported by the courts of appeals.

141. Posner, supra note 136, at 210–12.

142. See generally Thomas D. Rowe, Jr., Abolishing Diversity Jurisdiction: Positive Side Effects and

Potential for Further Reforms, 92 Harv. L. Rev. 963 (1979).
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

80

serve 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.

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.143 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.”144 The new section

143. 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).

144. 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
Additional Views of Judge Merritt, Joined by Justice White

81

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 deny the petition; 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 provide 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

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 several early mandamus cases. 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).
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

82

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.

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;
Additional Views of Judge Merritt, Joined by Justice White

83

• 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.

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;145

• 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 func145. 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.
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

84

tions 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).
Additional Views of Judge Merritt, Joined by Justice White

85

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 out-of-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
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

86

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) 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:
Additional Views of Judge Merritt, Joined by Justice White

87

“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 pursuant to section 1441(d) of this title, any such action 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.”
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

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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).
89

appendix a

the commission statute

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.
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

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(3) COMPENSATION-

(A) IN GENERAL- Members of the Commission who are officers, or

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 nec-
Appendix A

91

essary to carry out its functions under this section. Each such department, agency, and independent instrumentality is authorized to provide such information 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.
92

appendix b

commission members and executive director

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 to

1997. He chaired the Executive Committee of the Conference from 1994 to

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 to the court 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.

u

daniel j. meador (Executive Director) is James Monroe Professor of Law

Emeritus at the University of Virginia and is author of numerous books and

articles on appellate courts. He served as Assistant Attorney General, Office for

Improvements in the Administration of Justice, U.S. Department of Justice, from

1977 to 1979. He has been a member of the Advisory Council on Appellate

Justice, the Board of Directors of the State Justice Institute, and the ABA Standing Committee on Federal Judicial Improvements, which he chaired from 1987

to 1990.
93

appendix c

proposed statutes to implement commission

recommendations

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, and other purposes (as

proposed in Chapter 4)

3. Statute authorizing District Court Appellate Panels (as proposed in Chapter

4)

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, once the court is organized into divisions, 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;

(3) appeals from the districts of Arizona, Central California, and Southern California shall be taken to the Southern Division; and

(4) appeals from the Tax Court, petitions to enforce the orders of administrative agencies, and other proceedings within the court of

appeals’ jurisdiction that do not involve review of district court ac-
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

94

tions shall be filed in the court of appeals and assigned to the division that would have jurisdiction over the matter if the division were

a separate 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, staggered terms of three years 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. Judges in

senior status may be assigned to regional divisions in accordance with

policies adopted by the court of appeals. Any judge assigned to one division may be assigned by the chief judge of the circuit for temporary duty

in another division as necessary to enable the divisions to function effectively.

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 regional division, and that only judges resident

within, and assigned to, the division shall be eligible to serve as presiding judge of that 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. 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. The decisions of

one regional division shall not be regarded as binding precedents in the

other regional divisions.

Sec. 3.

a. In addition to the three regional divisions specified above, the Ninth

Circuit Court of Appeals shall establish a Circuit Division composed of

the chief judge of the circuit and twelve other circuit judges in active

status, chosen by lot in equal numbers from each regional division. Except for the chief judge of the circuit, who shall serve ex officio, judges

on the Circuit Division shall serve nonrenewable, staggered terms of three

years each. One-third of the judges initially selected by lot shall serve

terms of one year each, one-third shall serve terms of two years each,

and one-third shall serve terms of three years each; thereafter all judges

shall serve terms of three years each. In the event a judge on the Circuit
Appendix C

95

Division is disqualified or otherwise unable to serve in a particular case,

the presiding judge of the regional division to which that judge is assigned shall randomly select a judge from the division to serve in the

place of the unavailable judge.

b. The Circuit Division shall have jurisdiction to review, and to affirm, reverse, or modify any final decision rendered in any of the court’s divisions that conflicts on an issue of law with a decision in another division

of the court. 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, setting forth succinctly the issue of law as to

which there is a conflict in the decisions of two or more divisions. 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.

c. The Circuit Division shall consider and decide cases through procedures

adopted by the court of appeals for the expeditious and inexpensive conduct of the Division’s business; the Division shall not function through

panels. The Division shall decide issues of law on the basis of the opinions, briefs, and records in the conflicting decisions under review, unless

the Division determines that special circumstances make additional briefing or oral argument necessary.

d. 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. After a divisional plan is in effect, the court of appeals shall not

order any hearing or rehearing en banc, and the authorization for a limited en banc procedure contained in Sec. 6 of Pub. L. 95-486, 92 Stat.

1633 (Oct. 20, 1978), shall not apply to the Ninth Circuit. However, an

en banc proceeding ordered before the divisional plan is in effect may be

heard and determined in accordance with applicable rules of appellate

procedure.

Sec. 4. 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. 5. 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, includ-
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

96

ing the Circuit Division, and evaluating the effectiveness and efficiency of the

divisional structure. The Judicial Conference shall thereupon submit recommendations to the Congress concerning the divisional structure and whether it

should be continued with or without modification.

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, 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

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.
Appendix C

97

(d)

(1) A court of appeals having more than fifteen authorized judgeships may

organize itself into two or more adjudicative 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. The presiding judge of each division shall be determined 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.

(2) When organizing itself into divisions, a court of appeals shall establish a

Circuit Division, consisting of the chief judge 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 thirteen.

(3) The Circuit Division shall have jurisdiction to review, and to affirm, reverse, or modify any final decision rendered in any of the court’s divisions that conflicts on an issue of law with a decision in another division

of the court. 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, setting forth succinctly the issue of law as to

which there is a conflict in the decisions of two or more divisions. 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.

(4) The Circuit Division shall consider and decide cases through procedures

adopted by the court of appeals for the expeditious and inexpensive conduct of the Division’s business; the Division shall not function through

panels. The Division shall decide issues of law on the basis of the opinions, briefs, and records in the conflicting decisions under review, unless

the Division determines that special circumstances make additional briefing or oral argument necessary.

(5) The provisions of section 46 of title 28, United States Code, shall apply to

each division of a court that is organized into divisions 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 divisions of the court and not to the court of appeals as a whole, and

the authorization for a limited en banc procedure contained in Sec. 6 of

Pub. L. 95-486, 92 Stat. 1633 (Oct. 20, 1978), shall not apply in that court.

After a divisional plan is in effect, the court of appeals shall not order
Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

98

any hearing or rehearing en banc, but an en banc proceeding already

ordered may be heard and determined in accordance with applicable

rules of appellate procedure.

(e) A majority of the number of judges authorized to constitute a court, a

division, or a panel thereof shall constitute a quorum.

Sec. 2. 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, 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 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 assigned to the district court appellate panel service, and one

circuit judge 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

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 ap-
Appendix C

99

pellate 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. If a court of appeals is organized into adjudicative divisions, review

of a district court appellate panel decision shall be in the division to which an

appeal would have been taken from the district court had there been no district

court appellate panel.

(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.
100

appendix d

acknowledgments

The Commission is pleased to acknowledge the assistance of many persons who

contributed to its work.

The Commission statute directed the Federal Judicial Center to provide

“necessary research services.” Judith McKenna, Senior Research Associate at the

Center, and Russell Wheeler, Deputy Director of the Center, provided major

research support for the Commission and editorial assistance in the development of the report. Their substantial contributions were essential to the

Commission’s work.

Other members of the Center staff, including Carol Krafka, Carol Witcher,

Elizabeth Wiggins, and Laural Hooper, assisted in administering the surveys,

analyzing bankruptcy structural issues, and compiling descriptions of the courts’

appellate case management practices. David Marshall put both the draft report

and this final report into their published forms. Mary Clark, the Center’s 1998–

1999 Judicial Fellow, also contributed to the report’s drafting.

The statute also directed the Administrative Office of the U.S. Courts to

provide the Commission “administrative services, including financial and budgeting services.” Chiefly responsible to that end was John Hehman, Chief of the

Administrative Office’s Appellate Court and Circuit Administration Division,

assisted by Gary Bowden, Deputy Division Chief, and Eileen Karam, Management Analyst. David Sellers of the Office of Public Affairs handled press relations for the Commission and was assisted by Craig Collinson, who created and

maintained the Commission’s Internet site.

Phyllis Roderer served as secretary to the Commission and the Executive

Director, and Amy Godlewski Boyea worked as a student research assistant.

Significant contributions to the Commission’s deliberations were made by

James Duff, Administrative Assistant to the Chief Justice. The Commission also

benefited from papers that it commissioned from Professors John Oakley and

Kent Sinclair, and from the contributions of the law professors who participated in the small research symposium the Commission held early in its life,

namely, Thomas Baker, Paul Carrington, Arthur Hellman, John Oakley, Lauren

Robel, and Carl Tobias.

The Commission’s public hearings were an important part of its work, and

all persons who testified in those hearings are listed in the Commission’s Working Papers, being published separately, along with a list of all persons who

submitted written statements.