[Congressional Record Volume 145, Number 9 (Wednesday, January 20, 1999)]
[Senate]
[Pages S742-S744]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        FEDERAL NINTH CIRCUIT REORGANIZATION ACT OF 1999--S. 253

  Statements on the bill, S. 2616, introduced on October 9, 1998, did 
not appear in the Record. The material follows:
      By Mr. MURKOWSKI (for himself and Mr. Gorton):
  S. 253. A bill to provide for the reorganization of the Ninth Circuit 
Court of Appeals, and for other purposes.


            federal ninth circuit reorganization act of 1999

  Mr. MURKOWSKI. Mr. President, I am pleased to be joined by my 
distinguished colleague from Washington, Senator Slade Gorton, in 
introducing legislation that will go far in improving the consistency, 
predictability and coherency of case law in the Ninth Circuit U.S. 
Court of Appeals.
  Our bill, The Federal Ninth Circuit Reorganization Act of 1999, 
adopts the recommendations of a Congressionally-mandated Commission 
that studied the alignment of the U.S. Court of Appeals. Retired 
Supreme Court Justice Byron R. White, chaired the scholarly Commission.
  The Commission's Report, released last December, calls for a division 
of the Ninth Circuit into three regionally based adjudicative 
divisions--the Northern, Middle, and Southern. Each of these regional 
divisions would maintain a majority of its judges within its region. 
Each division would have exclusive jurisdiction over appeals from the 
judicial districts within its region. Further, each division would 
function as a semi-autonomous decisional unit. To resolve conflicts 
that may develop between regions, a Circuit Division for Conflict 
Correction would replace the current limited and ineffective en banc 
system. Lastly, the Circuit would remain intact as an administrative 
unit, functioning as it now does.
  It is important to note that the Commission adopted the arguments 
that I and several other Senators have put forth to justify a complete 
division of the Ninth Circuit--Circuit population, record caseloads, 
and inconsistency in judicial decisions. However, the Commission 
rejected an administrative division because it believed it would 
``deprive the courts now in the Ninth Circuit of the administrative 
advantages afforded by the present circuit configuration and deprive 
the West and the Pacific seaboard of a means for maintaining uniform 
federal law in that area.''
  While I don't necessarily reach the same conclusion as the Commission 
(that an administrative division of the Ninth Circuit is not 
warranted), I strongly agree with the Committee's conclusion that the 
restructuring of the Ninth Circuit as proposed in the Commission's 
Report will ``increase the consistency and coherence of the law, 
maximize the likelihood of genuine collegiality, establish an effective 
procedure for maintaining uniform decisional law within the circuit, 
and relate the appellate forum more closely to the region it serves.''
  Mr. President, swift Congressional action is needed. One need only 
look at the contours of the Ninth Circuit to see the need for this 
reorganization. Stretching from the Arctic Circle to the Mexican 
border, past the tropics of Hawaii and across the International 
Dateline to Guam and the Mariana Islands, by any means of measurement, 
the Ninth Circuit is the largest of all U.S. Circuit Courts of Appeal.
  The Ninth Circuit serves a population of more than 49 million people, 
well over a third more than the next largest Circuit. By 2010, the 
Census Bureau estimates that the Ninth Circuit's population will be 
more than 63 million--a 40 percent increase in just 13 years, which 
inevitably will create an even more daunting caseload.
  Because of its massive size, there often results a decrease in the 
ability of judges to keep abreast of legal developments within the 
Ninth Circuit. This

[[Page S743]]

unwieldy caseload creates an inconsistency in Constitutional 
interpretation. In fact, Ninth Circuit cases have an extraordinarily 
high reversal rate by the Supreme Court. (During the Supreme Court's 
1996-97 session, the Supreme Court overturned 95% of the Ninth Circuit 
cases heard by the Court.) This lack of Constitutional consistency 
discourages settlements and leads to unnecessary litigation.
  Ninth Circuit Judge Diramuid O'Scannlain described the problem as 
follows:

       An appellate court must function as a unified body, and it 
     must speak with a unified voice. It must maintain and shape a 
     coherent body of law * * *. As the number of opinions 
     increase, we judges risk losing the ability to keep track of 
     precedents and the ability to know what our circuit's law is. 
     In short, bigger is not better.

  The legislation that Senator Gorton and I introduce today is a 
sensible reorganization of the Ninth Circuit. The Northern Division of 
the Ninth Circuit would join Alaska, Washington, Oregon, Montana, and 
Idaho. This proposal reflects legislation I introduced in the last 
Congress which created a new Twelfth Circuit consisting of the States 
of the Northwest. Like my previous legislation, the Commission's report 
will go far in creating regional commonality and greater consistency 
and dependency in legal decisions.
  However, it is my strong suggestion that when the Senate Judiciary 
Committee conducts hearings on this legislation, certain modifications 
be closely examined:
  1. Elimination of the requirement that judges within a region are 
required to rotate to other regions of the Circuit;
  2. Adjustment of the regional alignments to include Hawaii, the 
Mariana Islands and the Territory of Guam in the Northern Region; and
  3. Shortening the period in which the Federal Judicial Center 
conducts a study of the effectiveness and efficiency of the Ninth 
Circuit divisions from eight years to three years.
  Mr. President, Congress has waited long enough to correct the 
problems of the Ninth Circuit. The 49 million residents of the Ninth 
Circuit are the persons that suffer. Many wait years before cases are 
heard and decided, prompting many to forego the entire appellate 
process. The Ninth Circuit has become a circuit where justice is not 
swift and not always served.
  Mr. President, we have known the problem of the Ninth Circuit for a 
long time. It's time to solve the problem. The Commission's 
recommendations, as reflected in our legislation, is a good first 
start. I hope we can resolve this issue this year.
  I ask unanimous consent that the text of our legislation be printed 
in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 253

       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

[[Page S744]]

     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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