Final Report of the Commission on Structural Alternatives for the Federal Courts of Appeals
by Ninth Circuit Chief Judge Procter Hug, Jr.
Principal Finding: No Circuit Split
The commission strongly recommended to Congress that the Ninth Circuit not be split. It found no persuasive evidence that the Ninth Circuit was not working effectively, and concluded that splitting the Ninth Circuit would entail substantial costs. The commission stressed the importance of having a single court interpret and apply federal law in the Western United States and the Pacific Rim.
Restructuring Proposal: Three Divisions
Although the commission concluded that no objective data, and no substantial subjective findings, justify a major structural change in the Ninth Circuit Court of Appeals, it proposed a restructuring that, in effect, would split the vital adjudicative functions of the court. It would create three autonomous regional adjudicative divisions, with each division having a separate en banc court, and with a 13-judge court, designated as the Circuit Division, for resolving inter-divisional conflicts.
Disadvantages of Divisional Restructuring
Non-binding precedent. Neither the panel decisions nor the en banc decisions of any division would bind the other divisions. A circuit-wide en banc hearing for any purpose other than resolving direct conflicts would be abolished. The maintenance and development of consistent circuit law would be seriously hampered.
New layer of appeal. The proposed Circuit Division would add an additional level of appeal before finality, resulting in additional expense and delay for litigants.
Eliminates circuit-wide participation. The proposal would eliminate the present participation of all appellate judges circuit-wide in resolving circuit law, and would impose practical problems in requiring a random assignment of some judges among the divisions for three-year terms.
Splits California. The likelihood of inconsistent interpretations of federal law would exist throughout the circuit and would not be adequately addressed by the proposed conflict resolution mechanism of the Circuit Division. Because California would be split into two divisions, there would be different interpretations and enforcement of the law within the state.
Strong Opposition to Restructuring
Other circuits opposed. The commission’s draft report proposed legislation that would require circuit court divisions for any circuit with more than 17 judges. The chief judges of the First, Second, Third, Fourth, Fifth, Seventh, Eighth, and D.C. Circuits responded to the commission expressing the strong opposition of their circuit courts to any such divisional restructuring. They stated that, “[T]he whole concept of intra-circuit divisions, replete with two levels of en banc review, has far more drawbacks than benefits.”
Summary Analysis (con’t.)
DOJ and bar associations opposed. The United States Department of Justice, which participates in 40 percent of the litigation in the federal courts, responded to the commission with vigorous opposition to the divisional restructuring of the Ninth Circuit or any other circuit. It stated, “[T]hat proposal would have potentially adverse repercussions for the administration of justice in the Ninth Circuit and, ultimately, across all federal courts of appeal.” Similar opposition was expressed by the Federal Bar Association, the New York City Bar Association, the Chicago Council of Lawyers, the Los Angeles County Bar Association, and many other organizations and individuals that commented.
Ninth Circuit judges opposed. The view that the serious disadvantages of the restructuring proposal outweigh any possible advantages is shared by an overwhelming majority of the judges on the Ninth Circuit Court of Appeals. The proposed restructuring would unnecessarily complicate the adjudicative process, significantly deter the rational development of circuit law, and present particular problems for the State of California, which would be divided into two divisions, with the inevitable inconsistency of precedent within the state.
Ninth Circuit Self-Examination
In light of the commission’s findings, the Ninth Circuit is re-examining many of its procedures in order to experiment with innovations that may lead to greater efficiency and effectiveness. The court has appointed a 10-member Evaluation Committee, chaired by Senior Circuit Judge David R. Thompson, with representatives from the appellate court, district courts, the bar and academia, to examine the limited en banc process, the monitoring of panel opinions, regional considerations, and disposition times, among other issues. The committee is obtaining the suggestions and advice of bench and bar groups throughout the circuit and will submit its final report in the next few months.
Conclusion: Provide Authority and Flexibility to Change
The commission has correctly concluded that the Ninth Circuit should not be split. Retaining a single circuit will preserve the administrative and adjudicative advantages of a consistent application of federal law across the Western United States.
Nor is there any subjective or objective evidence to support a restructuring of the Ninth Circuit Court of Appeals. A three-division restructuring is almost certain to lead to greater inconsistency in the law of the circuit and impose additional burdens on California by dividing it between two divisions.
The court recommends that it be given the statutory authority and flexibility to devise appropriate means and innovations to increase its efficiency and effectiveness without imposing upon it a single, rigid and untested divisional structure which will decrease, rather than increase, the consistency of circuit law.