II

106TH CONGRESS

1ST SESSION S. 186

To provide for the reorganization of the Ninth Circuit Court of Appeals,

and for other purposes.

IN THE SENATE OF THE UNITED STATES

JANUARY 19, 1999

Mr. MURKOWSKI (for himself and Mr. GORTON) introduced the following bill;

which was read twice and referred to the Committee on the Judiciary

A BILL

To provide for the reorganization of the Ninth Circuit Court

of Appeals, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Federal Ninth Circuit

5 Reorganization Act of 1999’’.

6 SEC. 2. DIVISIONAL ORGANIZATION OF THE COURT OF AP7 PEALS FOR THE NINTH CIRCUIT.

8 (a) REGIONAL DIVISIONS.—Effective 180 days after

9 the date of enactment of this Act, the United States Court

10 of Appeals for the Ninth Circuit shall be organized into
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1 3 regional divisions designated as the Northern Division,

2 the Middle Division, and the Southern Division, and a

3 nonregional division designated as the Circuit Division.

4 (b) REVIEW OF DECISIONS.—

5 (1) NONAPPLICATION OF SECTION 1294.—Sec6 tion 1294 of title 28, United States Code, shall not

7 apply to the Ninth Circuit Court of Appeals. The re8 view of district court decisions shall be governed as

9 provided in this subsection.

10 (2) REVIEW.—Except as provided in sections

11 1292(c), 1292(d), and 1295 of title 28, United

12 States Code, once the court is organized into divi13 sions, appeals from reviewable decisions of the dis14 trict and territorial courts located within the Ninth

15 Circuit shall be taken to the regional divisions of the

16 Ninth Circuit Court of Appeals as follows:

17 (A) Appeals from the districts of Alaska,

18 Guam, Hawaii, Idaho, Montana, the Northern

19 Mariana Islands, Oregon, Eastern Washington,

20 and Western Washington shall be taken to the

21 Northern Division.

22 (B) Appeals from the districts of Eastern

23 California, Northern California, and Nevada

24 shall be taken to the Middle Division.
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1 (C) Appeals from the districts of Arizona,

2 Central California, and Southern California

3 shall be taken to the Southern Division.

4 (D) Appeals from the Tax Court, petitions

5 to enforce the orders of administrative agencies,

6 and other proceedings within the court of ap7 peals’ jurisdiction that do not involve review of

8 district court actions shall be filed in the court

9 of appeals and assigned to the division that

10 would have jurisdiction over the matter if the

11 division were a separate court of appeals.

12 (3) ASSIGNMENT OF JUDGES.—Each regional

13 division shall include from 7 to 11 judges of the

14 court of appeals in active status. A majority of the

15 judges assigned to each division shall reside within

16 the judicial districts that are within the division’s ju17 risdiction as specified in paragraph (2). Judges in

18 senior status may be assigned to regional divisions

19 in accordance with policies adopted by the court of

20 appeals. Any judge assigned to 1 division may be as21 signed by the chief judge of the circuit for tem22 porary duty in another division as necessary to en23 able the divisions to function effectively.

24 (4) PRESIDING JUDGES.—Section 45 of title

25 28, United States Code, shall govern the designation
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1 of the presiding judge of each regional division as

2 though the division were a court of appeals, except

3 that the judge serving as chief judge of the circuit

4 may not at the same time serve as presiding judge

5 of a regional division, and that only judges resident

6 within, and assigned to, the division shall be eligible

7 to serve as presiding judge of that division.

8 (5) PANELS.—Panels of a division may sit to

9 hear and decide cases at any place within the judi10 cial districts of the division, as specified by a major11 ity of the judges of the division. The divisions shall

12 be governed by the Federal Rules of Appellate Pro13 cedure and by local rules and internal operating pro14 cedures adopted by the court of appeals. The divi15 sions may not adopt their own local rules or internal

16 operating procedures. The decisions of 1 regional di17 vision shall not be regarded as binding precedents in

18 the other regional divisions.

19 (c) CIRCUIT DIVISION.—

20 (1) IN GENERAL.—In addition to the 3 regional

21 divisions specified under subsection (a), the Ninth

22 Circuit Court of Appeals shall establish a Circuit Di23 vision composed of the chief judge of the circuit and

24 12 other circuit judges in active status, chosen by lot

25 in equal numbers from each regional division. Ex-
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1 cept for the chief judge of the circuit, who shall

2 serve ex officio, judges on the Circuit Division shall

3 serve nonrenewable, staggered terms of 3 years each.

4 One-third of the judges initially selected by lot shall

5 serve terms of 1 year each, one-third shall serve

6 terms of 2 years each, and one-third shall serve

7 terms of 3 years each. Thereafter all judges shall

8 serve terms of 3 years each. If a judge on the Cir9 cuit Division is disqualified or otherwise unable to

10 serve in a particular case, the presiding judge of the

11 regional division to which that judge is assigned

12 shall randomly select a judge from the division to

13 serve in the place of the unavailable judge.

14 (2) JURISDICTION.—The Circuit Division shall

15 have jurisdiction to review, and to affirm, reverse, or

16 modify any final decision rendered in any of the

17 court’s divisions that conflicts on an issue of law

18 with a decision in another division of the court. The

19 exercise of such jurisdiction shall be within the dis20 cretion of the Circuit Division and may be invoked

21 by application for review by a party to the case, set22 ting forth succinctly the issue of law as to which

23 there is a conflict in the decisions of 2 or more divi24 sions. The Circuit Division may review the decision

25 of a panel within a division only if en banc review
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1 of the decision has been sought and denied by the

2 division.

3 (3) PROCEDURES.—The Circuit Division shall

4 consider and decide cases through procedures adopt5 ed by the court of appeals for the expeditious and

6 inexpensive conduct of the division’s business. The

7 Circuit Division shall not function through panels.

8 The Circuit Division shall decide issues of law on the

9 basis of the opinions, briefs, and records in the con10 flicting decisions under review, unless the Circuit Di11 vision determines that special circumstances make

12 additional briefing or oral argument necessary.

13 (4) EN BANC PROCEEDINGS.—Section 46 of

14 title 28, United States Code, shall apply to each re15 gional division of the Ninth Circuit Court of Appeals

16 as though the division were the court of appeals.

17 Section 46(c) of title 28, United States Code, au18 thorizing hearings or rehearings en banc, shall be

19 applicable only to the regional divisions of the court

20 and not to the court of appeals as a whole. After a

21 divisional plan is in effect, the court of appeals shall

22 not order any hearing or rehearing en banc, and the

23 authorization for a limited en banc procedure under

24 section 6 of Public Law 95–486 (92 Stat. 1633),

25 shall not apply to the Ninth Circuit. An en banc pro-
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1 ceeding ordered before the divisional plan is in effect

2 may be heard and determined in accordance with ap3 plicable rules of appellate procedure.

4 (d) CLERKS AND EMPLOYEES.—Section 711 of title

5 28, United States Code, shall apply to the Ninth Circuit

6 Court of Appeals, except the clerk of the Ninth Circuit

7 Court of Appeals may maintain an office or offices in each

8 regional division of the court to provide services of the

9 clerk’s office for that division.

10 (e) STUDY OF EFFECTIVENESS.—The Federal Judi11 cial Center shall conduct a study of the effectiveness and

12 efficiency of the divisions in the Ninth Circuit Court of

13 Appeals. No later than 3 years after the effective date of

14 this Act, the Federal Judicial Center shall submit to the

15 Judicial Conference of the United States a report summa16 rizing the activities of the divisions, including the Circuit

17 Division, and evaluating the effectiveness and efficiency

18 of the divisional structure. The Judicial Conference shall

19 submit recommendations to Congress concerning the divi20 sional structure and whether the structure should be con21 tinued with or without modification.

22 SEC. 2. ASSIGNMENT OF JUDGES; PANELS; EN BANC PRO23 CEEDINGS; DIVISIONS; QUORUM.

24 (a) IN GENERAL.—Section 46 of title 28, United

25 States Code, is amended to read as follows:
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1 ‘‘§ 46. Assignment of judges; panels; en banc proceed2 ings; divisions; quorum

3 ‘‘(a) Circuit judges shall sit on the court of appeals

4 and its panels in such order and at such times as the court

5 directs.

6 ‘‘(b) Unless otherwise provided by rule of court, a

7 court of appeals or any regional division thereof shall con8 sider and decide cases and controversies through panels

9 of 3 judges, at least 2 of whom shall be judges of the

10 court, unless such judges cannot sit because recused or

11 disqualified, or unless the chief judge of that court cer12 tifies that there is an emergency including, but not limited

13 to, the unavailability of a judge of the court because of

14 illness. A court may provide by rule for the disposition

15 of appeals through panels consisting of 2 judges, both of

16 whom shall be judges of the court. Panels of the court

17 shall sit at times and places and hear the cases and con18 troversies assigned as the court directs. The United States

19 Court of Appeals for the Federal Circuit shall determine

20 by rule a procedure for the rotation of judges from panel21 to-panel to ensure that all of the judges sit on a represent22 ative cross section of the cases heard and, notwithstanding

23 the first sentence of this subsection, may determine by

24 rule the number of judges, not less than 2, who constitute

25 a panel.
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1 ‘‘(c) Notwithstanding subsection (b), a majority of

2 the judges of a court of appeals not organized into divi3 sions as provided in subsection (d) who are in regular ac4 tive service may order a hearing or rehearing before the

5 court en banc. A court en banc shall consist of all circuit

6 judges in regular active service, except that any senior cir7 cuit judge of the circuit shall be eligible to participate,

8 at that judge’s election and upon designation and assign9 ment pursuant to section 294(c) and the rules of the cir10 cuit, as a member of an en banc court reviewing a decision

11 of a panel of which such judge was a member.

12 ‘‘(d)(1) A court of appeals having more than 15 au13 thorized judgeships may organize itself into 2 or more ad14 judicative divisions, with each judge of the court assigned

15 to a specific division, either for a specified term of years

16 or indefinitely. The court’s docket shall be allocated

17 among the divisions in accordance with a plan adopted by

18 the court, and each division shall have exclusive appellate

19 jurisdiction over the appeals assigned to it. The presiding

20 judge of each division shall be determined from among the

21 judges of the division in active status as though the divi22 sion were the court of appeals, except the chief judge of

23 the circuit shall not serve at the same time as the presid24 ing judge of a division.
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1 ‘‘(2) When organizing itself into divisions, a court of

2 appeals shall establish a circuit division, consisting of the

3 chief judge and additional circuit judges in active status,

4 selected in accordance with rules adopted by the court, so

5 as to make an odd number of judges but not more than

6 13.

7 ‘‘(3) The circuit division shall have jurisdiction to re8 view, and to affirm, reverse, or modify any final decision

9 rendered in any of the court’s divisions that conflicts on

10 an issue of law with a decision in another division of the

11 court. The exercise of such jurisdiction shall be within the

12 discretion of the circuit division and may be invoked by

13 application for review by a party to the case, setting forth

14 succinctly the issue of law as to which there is a conflict

15 in the decisions of 2 or more divisions. The circuit division

16 may review the decision of a panel within a division only

17 if en banc review of the decision has been sought and de18 nied by the division.

19 ‘‘(4) The circuit division shall consider and decide

20 cases through procedures adopted by the court of appeals

21 for the expeditious and inexpensive conduct of the circuit

22 division’s business. The circuit division shall not function

23 through panels. The circuit division shall decide issues of

24 law on the basis of the opinions, briefs, and records in

25 the conflicting decisions under review, unless the division
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1 determines that special circumstances make additional

2 briefing or oral argument necessary.

3 ‘‘(e) This section shall apply to each division of a

4 court that is organized into divisions as though the divi5 sion were the court of appeals. Subsection (c), authorizing

6 hearings or rehearings en banc, shall be applicable only

7 to the divisions of the court and not to the court of appeals

8 as a whole, and the authorization for a limited en banc

9 procedure under section 6 of Public Law 95–486 (92 Stat.

10 1633), shall not apply in that court. After a divisional plan

11 is in effect, the court of appeals shall not order any hear12 ing or rehearing en banc, but an en banc proceeding al13 ready ordered may be heard and determined in accordance

14 with applicable rules of appellate procedure.

15 ‘‘(f) A majority of the number of judges authorized

16 to constitute a court, a division, or a panel thereof shall

17 constitute a quorum.’’.

18 (b) TECHNICAL AND CONFORMING AMENDMENT.—

19 The table of sections for chapter 3 of title 28, United

20 States Code, is amended by amending the item relating

21 to section 46 to read as follows:

‘‘46. Assignment of judges; panels; en banc proceedings; divisions; quorum.’’.

22 (c) MONITORING IMPLEMENTATION.—The Federal

23 Judicial Center shall monitor the implementation of sec24 tion 46 of title 28, United States Code (as amended by

25 this section) for 3 years following the date of enactment
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1 of this Act and report to the Judicial Conference such in2 formation as the Center determines relevant or that the

3 Conference requests to enable the Judicial Conference to

4 assess the effectiveness and efficiency of this section.

5 SEC. 3. DISTRICT COURT APPELLATE PANELS.

6 (a) IN GENERAL.—Chapter 5 of title 28, United

7 States Code, is amended by adding after section 144 the

8 following:

9 ‘‘§ 145. District Court Appellate Panels

10 ‘‘(a) The judicial council of each circuit may establish

11 a district court appellate panel service composed of district

12 judges of the circuit, in either active or senior status, who

13 are assigned by the judicial council to hear and determine

14 appeals in accordance with subsection (b). Judges as15 signed to the district court appellate panel service may

16 continue to perform other judicial duties.

17 ‘‘(b) An appeal heard under this section shall be

18 heard by a panel composed of 2 district judges assigned

19 to the district court appellate panel service, and 1 circuit

20 judge as designated by the chief judge of the circuit. The

21 circuit judge shall preside. A district judge serving on an

22 appellate panel shall not participate in the review of deci23 sions of the district court to which the judge has been ap24 pointed. The clerk of the court of appeals shall serve as

25 the clerk of the district court appellate panels. A district
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1 court appellate panel may sit at any place within the cir2 cuit, pursuant to rules promulgated by the judicial council,

3 to hear and decide cases, for the convenience of parties

4 and counsel.

5 ‘‘(c) In establishing a district court appellate panel

6 service, the judicial council shall specify the categories or

7 types of cases over which district court appellate panels

8 shall have appellate jurisdiction. In such cases specified

9 by the judicial council as appropriate for assignment to

10 district court appellate panels, and notwithstanding sec11 tions 1291 and 1292, the appellate panel shall have exclu12 sive jurisdiction over district court decisions and may exer13 cise all of the authority otherwise vested in the court of

14 appeals under sections 1291, 1292, 1651, and 2106. A

15 district court appellate panel may transfer a case within

16 its jurisdiction to the court of appeals if the panel deter17 mines that disposition of the case involves a question of

18 law that should be determined by the court of appeals.

19 The court of appeals shall thereupon assume jurisdiction

20 over the case for all purposes.

21 ‘‘(d) Final decisions of district court appellate panels

22 may be reviewed by the court of appeals, in its discretion.

23 A party seeking review shall file a petition for leave to

24 appeal in the court of appeals, which that court may grant

25 or deny in its discretion. If a court of appeals is organized
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1 into adjudicative divisions, review of a district court appel2 late panel decision shall be in the division to which an ap3 peal would have been taken from the district court had

4 there been no district court appellate panel.

5 ‘‘(e) Procedures governing review in district court ap6 pellate panels and the discretionary review of such panels

7 in the court of appeals shall be in accordance with rules

8 promulgated by the court of appeals.

9 ‘‘(f) After a judicial council of a circuit makes an

10 order establishing a district court appellate panel service,

11 the chief judge of the circuit may request the Chief Justice

12 of the United States to assign 1 or more district judges

13 from another circuit to serve on a district court appellate

14 panel, if the chief judge determines there is a need for

15 such judges. The Chief Justice may thereupon designate

16 and assign such judges for this purpose.’’.

17 (b) TECHNICAL AND CONFORMING AMENDMENT.—

18 The table of sections for chapter 5 of title 28, United

19 States Code, is amended by adding after the item relating

20 to section 144 the following:

‘‘145. District court appellate panels.’’.

21 (c) MONITORING IMPLEMENTATION.—The Federal

22 Judicial Center shall monitor the implementation of sec23 tion 145 of title 28, United States Code (as added by this

24 section) for 3 years following the date of enactment of this

25 Act and report to the Judicial Conference such informa-
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1 tion as the Center determines relevant or that the Con2 ference requests to enable the Conference to assess the

3 effectiveness and efficiency of this section.

Æ