[Congressional Record Volume 145, Number 103 (Tuesday, July 20, 1999)]
[Senate]
[Pages S8884-S8885]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. FEINSTEIN (for herself, Mr. Reid, Mrs. Boxer, Mr. Bryan, 
        and Mrs. Murray):
  S. 1403. A bill to amend chapter 3 of title 28, United States Code, 
to modify en banc procedures for the Ninth Circuit Court of Appeals, 
and for other purposes; to the Committee on the Judiciary.


     ninth circuit court of appeals en banc procedures act of 1999

  Mrs. FEINSTEIN. Mr. President. I am pleased to introduce the ``Ninth 
Circuit Court of Appeals En Banc Procedures Act of 1999.''

  As the largest circuit in the country, the Ninth Circuit faces unique 
difficulties. While this size has certain advantages, including 
creating a uniform body of federal law along the Pacific Coast of the 
United States, it also creates organizational and procedural challenges 
which must be addressed for the court to do its job effectively. The 
bill I am introducing today requires organizational and procedural 
reforms which will help the court to meet these challenges.
  The United States Department of Justice, which is the most frequent 
litigant before the Ninth Circuit--participating in 40% of its cases--
has specifically identified reform of the en banc review process as 
critical to resolving the existing problems on the Ninth Circuit.
  ``From our perspective as litigants, the Ninth Circuit's shortcoming 
is traceable not principally to its large number of judges or 
geographical size, but rather to its failure effectively to address 
erroneous panel decisions in important cases . . . .''
  The ``Ninth Circuit Court of Appeals En Banc Procedure Act'' will 
institute three major changes to Ninth Circuit court procedures: (1) it 
reduces the number of judges required to call for an en banc hearing; 
(2) it increases the size of en banc panels from 11 to a majority of 
the Circuit; and (3) it requires the establishment of a system of 
regional calendaring.
  First, this legislation would grant the Ninth Circuit a dispensation 
to lower the statutory requirement that a majority of the Circuit's 
active-service judges must vote affirmatively to rehear a case en banc. 
Instead, 40 percent

[[Page S8885]]

of the judges sitting on the Ninth Circuit would be sufficient to 
request an en banc hearing.
  In recent years, too many en banc requests at the Ninth Circuit have 
been disregarded by the Court. In 1996, the Ninth Circuit voted on 25 
en banc requests by its judges, but only agreed to 12 en banc hearings. 
In 1997, the Ninth Circuit considered 39 en banc requests, but only 
held 19 hearings. In 1998, the Ninth Circuit entertained 45 en banc 
requests, but the Circuit only agreed to hold 16 en banc panels.
  The Supreme Court, our nation's highest and most venerated court, 
requires less than a majority of its members to consider a case. It is 
simply common sense that the Ninth Circuit should not have a higher 
burden for hearing a case en banc than the Supreme Court uses to grant 
certiorari.
  Lowering the bar to en banc hearings will enable the Ninth Circuit to 
resolve a greater percentage of conflicts before they reach the Supreme 
Court.
  A second provision of this legislation will increase the size of 
Ninth Circuit en banc panels from the current 11 judges to a majority 
of the Ninth Circuit. Except for the Ninth, the Fifth, and the Sixth 
circuits, all en banc panels sit as an entire court. Eleven judges 
selected from a 28 judge circuit are insufficient to give litigants or 
the general public confidence that an en banc decision reflects the 
views of the entire circuit. By increasing the size of the panels, the 
Ninth Circuit will have more judges to raise, identify, and resolve 
potential conflicts in controversial cases.
  Critics have also objected to the Ninth Circuit because of its 
geographical expanse, as it ranges from Hawaii to Alaska to Arizona. It 
is charged that judges unfamiliar with the history of a particular 
region often sit on panels that decide regional issues.
  The Federal courts are a national court, with a responsibility to 
apply a single, coherent Federal law across the states. The states of 
the Ninth Circuit have benefitted from this harmonizing influence. For 
example, the Ninth Circuit has created a consistent body of maritime 
law on the West Coast.
  At the same time, to address both the appearance of regional bias and 
any actual regional bias that does exist, this bill would require the 
Ninth Circuit to have geographical representation on its panels.
  The Ninth Circuit presently has three administrative units--a 
Northern, a Southern, and a Central unit. Under this legislation, at 
least one judge from the particular geographic unit would be assigned 
to cases arising in that unit. Thus, if an appeal was filed in Alaska, 
a judge from the Northern region would sit on the case. Similarly, if 
an appeal was filed in San Francisco, a Central region judge would sit 
on the case.
  To the degree that the Ninth Circuit has stepped outside the 
mainstream of jurisprudence, this legislation enacts reforms that will 
help corral stray decisions. I look forward to working with my fellow 
Senate and House colleagues in enacting this reform.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1403

       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 ``Ninth Circuit Court of 
     Appeals En Banc Procedures Act of 1999''.

     SEC. 2. NINTH CIRCUIT EN BANC PROCEDURES.

       (a) In General.--Section 46 of title 28, United States 
     Code, is amended--
       (1) in subsection (d)--
       (A) by striking ``paragraph (c)'' and inserting 
     ``subsection (c) or (d)''; and
       (B) by redesignating subsection (d) as subsection (e); and
       (2) by inserting after subsection (c) the following:
       ``(d)(1) Notwithstanding the first sentence of subsection 
     (c), 40 percent or more of the circuit judges of the Ninth 
     Circuit Court of Appeals who are in regular active service 
     may order a hearing or rehearing before the court en banc for 
     such circuit.
       ``(2) Notwithstanding the second sentence of subsection (c) 
     or section 6 of the Act entitled ``An Act to provide for the 
     appointment of additional district and circuit judges, and 
     for other purposes'', approved October 20, 1978 (28 U.S.C. 41 
     note; Public Law 95-486; 92 Stat. 1633) a majority of the 
     circuit judges of the Ninth Circuit Court of Appeals who are 
     in regular active service shall be required to sit on a court 
     en banc for such circuit.
       ``(3) The Ninth Circuit Court of Appeals shall be organized 
     in no less than 3 administrative units based on geographic 
     regions. Each panel of the Ninth Circuit Court of Appeals 
     shall be assigned to an administrative unit. In any case or 
     controversy heard by any panel of an administrative unit of 
     the Ninth Circuit Court of Appeals, at least 1 judge of that 
     administrative unit shall be assigned to that panel.''.
       (b) Technical and Conforming Amendment.--Section 6 of the 
     Act entitled ``An Act to provide for the appointment of 
     additional district and circuit judges, and for other 
     purposes'', approved October 20, 1978 (28 U.S.C. 41 note; 
     Public Law 95-486; 92 Stat. 1933) is amended by striking 
     ``Any court of appeals'' and inserting ``Subject to section 
     46(d)(2) of title 28, United States Code, any court of 
     appeals''.

     SEC. 3. EFFECTIVE DATE.

       The amendments made by this Act shall take effect 60 days 
     after the date of enactment of this Act.
                                 ______