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106TH CONGRESS

1ST SESSION S. 253

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 Idaho, Montana, Oregon, Eastern Washington,

19 and Western Washington shall be taken to the

20 Northern Division.

21 (B) Appeals from the districts of Eastern

22 California, Northern California, Guam, Hawaii,

23 Nevada, and the Northern Mariana Islands

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), except that

18 judges may be assigned to serve for specified, stag19 gered terms of 3 years or more, in a division in

20 which they do not reside. Such judges shall be as21 signed at random, by means determined by the

22 court, in such numbers as necessary to enable the

23 divisions to function effectively. Judges in senior sta24 tus may be assigned to regional divisions in accord25 ance with policies adopted by the court of appeals.
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1 Any judge assigned to 1 division may be assigned by

2 the chief judge of the circuit for temporary duty in

3 another division as necessary to enable the divisions

4 to function effectively.

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

6 28, United States Code, shall govern the designation

7 of the presiding judge of each regional division as

8 though the division were a court of appeals, except

9 that the judge serving as chief judge of the circuit

10 may not at the same time serve as presiding judge

11 of a regional division, and that only judges resident

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

13 to serve as presiding judge of that division.

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

15 hear and decide cases at any place within the judi16 cial districts of the division, as specified by a major17 ity of the judges of the division. The divisions shall

18 be governed by the Federal Rules of Appellate Pro19 cedure and by local rules and internal operating pro20 cedures adopted by the court of appeals. The divi21 sions may not adopt their own local rules or internal

22 operating procedures. The decisions of 1 regional di23 vision shall not be regarded as binding precedents in

24 the other regional divisions.

25 (c) CIRCUIT DIVISION.—
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1 (1) IN GENERAL.—In addition to the 3 regional

2 divisions specified under subsection (a), the Ninth

3 Circuit Court of Appeals shall establish a Circuit Di4 vision composed of the chief judge of the circuit and

5 12 other circuit judges in active status, chosen by lot

6 in equal numbers from each regional division. Ex7 cept for the chief judge of the circuit, who shall

8 serve ex officio, judges on the Circuit Division shall

9 serve nonrenewable, staggered terms of 3 years each.

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

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

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

13 terms of 3 years each. Thereafter all judges shall

14 serve terms of 3 years each. If a judge on the Cir15 cuit Division is disqualified or otherwise unable to

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

17 regional division to which that judge is assigned

18 shall randomly select a judge from the division to

19 serve in the place of the unavailable judge.

20 (2) JURISDICTION.—The Circuit Division shall

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

22 modify any final decision rendered in any of the

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

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

25 exercise of such jurisdiction shall be within the dis-
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1 cretion of the Circuit Division and may be invoked

2 by application for review by a party to the case, set3 ting forth succinctly the issue of law as to which

4 there is a conflict in the decisions of 2 or more divi5 sions. The Circuit Division may review the decision

6 of a panel within a division only if en banc review

7 of the decision has been sought and denied by the

8 division.

9 (3) PROCEDURES.—The Circuit Division shall

10 consider and decide cases through procedures adopt11 ed by the court of appeals for the expeditious and

12 inexpensive conduct of the division’s business. The

13 Circuit Division shall not function through panels.

14 The Circuit Division shall decide issues of law on the

15 basis of the opinions, briefs, and records in the con16 flicting decisions under review, unless the Circuit Di17 vision determines that special circumstances make

18 additional briefing or oral argument necessary.

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

20 title 28, United States Code, shall apply to each re21 gional division of the Ninth Circuit Court of Appeals

22 as though the division were the court of appeals.

23 Section 46(c) of title 28, United States Code, au24 thorizing hearings or rehearings en banc, shall be

25 applicable only to the regional divisions of the court
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1 and not to the court of appeals as a whole. After a

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

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

4 authorization for a limited en banc procedure under

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

6 shall not apply to the Ninth Circuit. An en banc pro7 ceeding ordered before the divisional plan is in effect

8 may be heard and determined in accordance with ap9 plicable rules of appellate procedure.

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

11 28, United States Code, shall apply to the Ninth Circuit

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

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

14 regional division of the court to provide services of the

15 clerk’s office for that division.

16 (e) STUDY OF EFFECTIVENESS.—The Federal Judi17 cial Center shall conduct a study of the effectiveness and

18 efficiency of the divisions in the Ninth Circuit Court of

19 Appeals. No later than 8 years after the effective date of

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

21 Judicial Conference of the United States a report summa22 rizing the activities of the divisions, including the Circuit

23 Division, and evaluating the effectiveness and efficiency

24 of the divisional structure. The Judicial Conference shall

25 submit recommendations to Congress concerning the divi-
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1 sional structure and whether the structure should be con2 tinued with or without modification.

3 SEC. 2. ASSIGNMENT OF JUDGES; PANELS; EN BANC PRO4 CEEDINGS; DIVISIONS; QUORUM.

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

6 States Code, is amended to read as follows:

7 ‘‘§ 46. Assignment of judges; panels; en banc proceed8 ings; divisions; quorum

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

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

11 directs.

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

13 court of appeals or any regional division thereof shall con14 sider and decide cases and controversies through panels

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

16 court, unless such judges cannot sit because recused or

17 disqualified, or unless the chief judge of that court cer18 tifies that there is an emergency including, but not limited

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

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

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

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

23 shall sit at times and places and hear the cases and con24 troversies assigned as the court directs. The United States

25 Court of Appeals for the Federal Circuit shall determine
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1 by rule a procedure for the rotation of judges from panel2 to-panel to ensure that all of the judges sit on a represent3 ative cross section of the cases heard and, notwithstanding

4 the first sentence of this subsection, may determine by

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

6 a panel.

7 ‘‘(c) Notwithstanding subsection (b), a majority of

8 the judges of a court of appeals not organized into divi9 sions as provided in subsection (d) who are in regular ac10 tive service may order a hearing or rehearing before the

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

12 judges in regular active service, except that any senior cir13 cuit judge of the circuit shall be eligible to participate,

14 at that judge’s election and upon designation and assign15 ment pursuant to section 294(c) and the rules of the cir16 cuit, as a member of an en banc court reviewing a decision

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

18 ‘‘(d)(1) A court of appeals having more than 15 au19 thorized judgeships may organize itself into 2 or more ad20 judicative divisions, with each judge of the court assigned

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

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

23 among the divisions in accordance with a plan adopted by

24 the court, and each division shall have exclusive appellate

25 jurisdiction over the appeals assigned to it. The presiding
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1 judge of each division shall be determined from among the

2 judges of the division in active status as though the divi3 sion were the court of appeals, except the chief judge of

4 the circuit shall not serve at the same time as the presid5 ing judge of a division.

6 ‘‘(2) When organizing itself into divisions, a court of

7 appeals shall establish a circuit division, consisting of the

8 chief judge and additional circuit judges in active status,

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

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

11 13.

12 ‘‘(3) The circuit division shall have jurisdiction to re13 view, and to affirm, reverse, or modify any final decision

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

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

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

17 discretion of the circuit division and may be invoked by

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

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

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

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

22 if en banc review of the decision has been sought and de23 nied by the division.

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

25 cases through procedures adopted by the court of appeals
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1 for the expeditious and inexpensive conduct of the circuit

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

3 through panels. The circuit division shall decide issues of

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

5 the conflicting decisions under review, unless the division

6 determines that special circumstances make additional

7 briefing or oral argument necessary.

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

9 court that is organized into divisions as though the divi10 sion were the court of appeals. Subsection (c), authorizing

11 hearings or rehearings en banc, shall be applicable only

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

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

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

15 1633), shall not apply in that court. After a divisional plan

16 is in effect, the court of appeals shall not order any hear17 ing or rehearing en banc, but an en banc proceeding al18 ready ordered may be heard and determined in accordance

19 with applicable rules of appellate procedure.

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

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

22 constitute a quorum.’’.

23 (b) TECHNICAL AND CONFORMING AMENDMENT.—

24 The table of sections for chapter 3 of title 28, United
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1 States Code, is amended by amending the item relating

2 to section 46 to read as follows:

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

3 (c) MONITORING IMPLEMENTATION.—The Federal

4 Judicial Center shall monitor the implementation of sec5 tion 46 of title 28, United States Code (as amended by

6 this section) for 8 years following the date of enactment

7 of this Act and report to the Judicial Conference such in8 formation as the Center determines relevant or that the

9 Conference requests to enable the Judicial Conference to

10 assess the effectiveness and efficiency of this section.

11 SEC. 3. DISTRICT COURT APPELLATE PANELS.

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

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

14 following:

15 ‘‘§ 145. District Court Appellate Panels

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

17 a district court appellate panel service composed of district

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

19 are assigned by the judicial council to hear and determine

20 appeals in accordance with subsection (b). Judges as21 signed to the district court appellate panel service may

22 continue to perform other judicial duties.

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

24 heard by a panel composed of 2 district judges assigned

25 to the district court appellate panel service, and 1 circuit
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1 judge as designated by the chief judge of the circuit. The

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

3 appellate panel shall not participate in the review of deci4 sions of the district court to which the judge has been ap5 pointed. The clerk of the court of appeals shall serve as

6 the clerk of the district court appellate panels. A district

7 court appellate panel may sit at any place within the cir8 cuit, pursuant to rules promulgated by the judicial council,

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

10 and counsel.

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

12 service, the judicial council shall specify the categories or

13 types of cases over which district court appellate panels

14 shall have appellate jurisdiction. In such cases specified

15 by the judicial council as appropriate for assignment to

16 district court appellate panels, and notwithstanding sec17 tions 1291 and 1292, the appellate panel shall have exclu18 sive jurisdiction over district court decisions and may exer19 cise all of the authority otherwise vested in the court of

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

21 district court appellate panel may transfer a case within

22 its jurisdiction to the court of appeals if the panel deter23 mines that disposition of the case involves a question of

24 law that should be determined by the court of appeals.
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1 The court of appeals shall thereupon assume jurisdiction

2 over the case for all purposes.

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

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

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

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

7 or deny in its discretion. If a court of appeals is organized

8 into adjudicative divisions, review of a district court appel9 late panel decision shall be in the division to which an ap10 peal would have been taken from the district court had

11 there been no district court appellate panel.

12 ‘‘(e) Procedures governing review in district court ap13 pellate panels and the discretionary review of such panels

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

15 promulgated by the court of appeals.

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

17 order establishing a district court appellate panel service,

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

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

20 from another circuit to serve on a district court appellate

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

22 such judges. The Chief Justice may thereupon designate

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

24 (b) TECHNICAL AND CONFORMING AMENDMENT.—

25 The table of sections for chapter 5 of title 28, United
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1 States Code, is amended by adding after the item relating

2 to section 144 the following:

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

3 (c) MONITORING IMPLEMENTATION.—The Federal

4 Judicial Center shall monitor the implementation of sec5 tion 145 of title 28, United States Code (as added by this

6 section) for 8 years following the date of enactment of this

7 Act and report to the Judicial Conference such informa8 tion as the Center determines relevant or that the Con9 ference requests to enable the Conference to assess the

10 effectiveness and efficiency of this section.

Æ