[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 186 Introduced in Senate (IS)]







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.

    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, Guam, 
                Hawaii, Idaho, Montana, the Northern Mariana Islands, 
                Oregon, Eastern Washington, and Western Washington 
                shall be taken to the Northern Division.
                    (B) Appeals from the districts of Eastern 
                California, Northern California, and Nevada 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). 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 3 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 3 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 3 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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