Principal Recommendations of the
Commission on Structural Alternatives for the Federal Courts of Appeals
On December 18, 1998, the five-member Commission on Structural Alternatives for the Federal Courts of Appeals issued its final report and recommendations after considering the 76 comments on its October 7 draft report. What follows are the principal recommendations from the report.
•Splitting the Ninth Circuit is impractical and unnecessary. Realignment into two or more circuits would deprive the courts of the administrative advantages of its configuration and would deprive the West and the Pacific seaboard of a means to maintain uniform federal law in the area.
•To improve consistency and coherence of the court’s decisions, Congress should restructure the adjudicative function of the court of appeals into three smaller, regionally-based divisions:
• Each division (Northern, Middle, Southern) would have from 7-11 active circuit judges, with the majority residing in the division and the others rotating in from other divisions for set terms.
• Each regional division would hear cases in panels of three, subject to en banc review by all of the judges in the division.
• Each regional division would function as a semi-autonomous decisional unit; decisions rendered by one division would not be binding on any other division, but would be binding upon all trial courts in that division.
• A special Circuit Division for conflict correction would have the limited purpose of resolving conflicting decisions between regional divisions (this would add a new layer of appellate review)–the circuit-wide limited en banc process would be eliminated.
•Congress should authorize any court of appeals with more than 15 judgeships to restructure themselves into smaller adjudicative divisions to avoid the costs and disruptions of circuit splitting.
•None of the proposals for splitting the Ninth Circuit would result in an acceptable or equitable number of appeals per judge or courts small enough to operate with the sort of collegiality envisioned by the Commission.
•Two additional flexible options were suggested for use by the entire federal appellate system to conserve appellate resources and accommodate caseload growth: the use of two-judge panels (rather than the traditional three-judge panels) in more routine kinds of cases, and the use of district court appellate panels (composed of two district judges and one circuit judge) in certain categories of cases.
•Specific suggestions for the handling of bankruptcy appeals (advised awaiting outcome of Federal Judicial Center study), for the idea of discretionary appeals (disfavored), and for the increased use of the Federal Circuit (to handle all tax appeals and all social security appeals) were also included in the report.