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.
Be it enacted by the Senate and House of Representatives of the United States of
America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Federal Ninth Circuit Reorganization Act of 1999'.
SEC. 2. DIVISIONAL ORGANIZATION OF THE COURT OF
APPEALS FOR THE NINTH CIRCUIT.
(a) REGIONAL DIVISIONS- Effective 180 days after the date of enactment of this
Act, the United States Court of Appeals for the Ninth Circuit shall be organized into 3
regional divisions designated as the Northern Division, the Middle Division, and the
Southern Division, and a nonregional division designated as the Circuit Division.
(b) REVIEW OF DECISIONS-
(1) NONAPPLICATION OF SECTION 1294- Section 1294 of title 28,
United States Code, shall not apply to the Ninth Circuit Court of Appeals. The
review of district court decisions shall be governed as provided in this subsection.
(2) REVIEW- 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:
(A) Appeals from the districts of Alaska, Idaho, Montana, Oregon,
Eastern Washington, and Western Washington shall be taken to the
Northern Division.
(B) Appeals from the districts of Eastern California, Northern California,
Guam, Hawaii, Nevada, and the Northern Mariana Islands shall be taken
to the Middle Division.
(C) Appeals from the districts of Arizona, Central California, and Southern
California shall be taken to the Southern Division.
(D) 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 actions 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.
(3) ASSIGNMENT OF JUDGES- Each regional division shall include from 7 to
11 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 in paragraph (2), except that judges may be
assigned to serve for specified, staggered terms of 3 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
1 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.
(4) PRESIDING JUDGES- 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, except 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.
(5) PANELS- 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 1 regional division shall not be regarded
as binding precedents in the other regional divisions.
(c) CIRCUIT DIVISION-
(1) IN GENERAL- In addition to the 3 regional divisions specified under
subsection (a), the Ninth Circuit Court of Appeals shall establish a Circuit Division
composed of the chief judge of the circuit and 12 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 3 years each. One-third of the
judges initially selected by lot shall serve terms of 1 year each, one-third shall
serve terms of 2 years each, and one-third shall serve terms of 3 years each.
Thereafter all judges shall serve terms of 3 years each. If a judge on the Circuit
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.
(2) JURISDICTION- 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 2 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.
(3) PROCEDURES- 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 Circuit Division shall not
function through panels. The Circuit Division shall decide issues of law on the
basis of the opinions, briefs, and records in the conflicting decisions under review,
unless the Circuit Division determines that special circumstances make additional
briefing or oral argument necessary.
(4) EN BANC PROCEEDINGS- 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. Section 46(c) of title 28, United
States Code, 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 under
section 6 of Public Law 95-486 (92 Stat. 1633), shall not apply to the Ninth
Circuit. 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.
(d) CLERKS AND EMPLOYEES- Section 711 of title 28, United States Code, shall
apply to the Ninth Circuit Court of Appeals, except 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.
(e) STUDY OF EFFECTIVENESS- The Federal Judicial Center shall conduct a study
of the effectiveness and efficiency of the divisions in the Ninth Circuit Court of Appeals.
No later than 8 years after the effective date of this Act, the Federal Judicial Center shall
submit to the Judicial Conference of the United States a report summarizing the activities
of the divisions, including the Circuit Division, and evaluating the effectiveness and
efficiency of the divisional structure. The Judicial Conference shall submit
recommendations to Congress concerning the divisional structure and whether the
structure should be continued with or without modification.
SEC. 2. ASSIGNMENT OF JUDGES; PANELS; EN BANC
PROCEEDINGS; DIVISIONS; QUORUM.
(a) IN GENERAL- Section 46 of title 28, United States Code, is amended to read as
follows:
`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 3
judges, at least 2 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 2 judges, both of whom shall be judges of the court. Panels of the
court shall sit at 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 2, who constitute a panel.
`(c) Notwithstanding 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) and the rules of the circuit, as a member of an en
banc court reviewing a decision of a panel of which such judge was a member.
`(d)(1) A court of appeals having more than 15 authorized judgeships may organize itself
into 2 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, except 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 13.
`(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 2 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 circuit division's
business. The circuit division shall not function through panels. The circuit 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.
`(e) This section shall apply to each division of a court that is organized into divisions as
though the division were the court of appeals. Subsection (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 under
section 6 of Public Law 95-486 (92 Stat. 1633), shall not apply in that court. After a
divisional plan is in effect, the court of appeals shall not order 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.
`(f) A majority of the number of judges authorized to constitute a court, a division, or a
panel thereof shall constitute a quorum.'.
(b) TECHNICAL AND CONFORMING AMENDMENT- The table of sections for
chapter 3 of title 28, United States Code, is amended by amending the item relating to
section 46 to read as follows:
`46. Assignment of judges; panels; en banc proceedings; divisions; quorum.'.
(c) MONITORING IMPLEMENTATION- The Federal Judicial Center shall monitor
the implementation of section 46 of title 28, United States Code (as amended by this
section) for 8 years following the date of enactment of this Act and report to the Judicial
Conference such information as the Center determines relevant or that the Conference
requests to enable the Judicial Conference to assess the effectiveness and efficiency of
this section.
SEC. 3. DISTRICT COURT APPELLATE PANELS.
(a) IN GENERAL- Chapter 5 of title 28, United States Code, is amended by adding
after section 144 the following:
`Sec. 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 2 district
judges assigned to the district court appellate panel service, and 1 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 sections 1291 and
1292, the appellate panel shall have exclusive jurisdiction over district court decisions
and may exercise all of the authority otherwise vested in the court of appeals under
sections 1291, 1292, 1651, and 2106. 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 1 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.'.
(b) TECHNICAL AND CONFORMING AMENDMENT- The table of sections for
chapter 5 of title 28, United States Code, is amended by adding after the item relating to
section 144 the following:
`145. District court appellate panels.'.
(c) MONITORING IMPLEMENTATION- The Federal Judicial Center shall monitor
the implementation of section 145 of title 28, United States Code (as added by this
section) for 8 years following the date of enactment of this Act and report to the Judicial
Conference such information as the Center determines relevant or that the Conference
requests to enable the Conference to assess the effectiveness and efficiency of this
section.
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