[House Report 109-373]
[From the U.S. Government Publishing Office]



109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     109-373

======================================================================



 
      FEDERAL JUDGESHIP AND ADMINISTRATIVE EFFICIENCY ACT OF 2005

                                _______
                                

 February 8 , 2006.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 4093]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 4093) to provide for the appointment of additional 
Federal circuit and district judges, to improve the 
administration of justice, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment and recommends that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................    13
Background and Need for the Legislation..........................    14
Hearings.........................................................    23
Committee Consideration..........................................    23
Vote of the Committee............................................    23
Committee Oversight Findings.....................................    24
New Budget Authority and Tax Expenditures........................    24
Congressional Budget Office Cost Estimate........................    25
Performance Goals and Objectives.................................    28
Constitutional Authority Statement...............................    28
Section-by-Section Analysis and Discussion.......................    29
Changes in Existing Law Made by the Bill, as Reported............    37
Markup Transcript................................................    58
Minority Views...................................................   153

                             The Amendment

  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Federal Judgeship and Administrative 
Efficiency Act of 2005''.

SEC. 2. TABLE OF CONTENTS.

    The table of contents for this Act is as follows:

Sec. 1. Short title.
Sec. 2. Table of contents.

                TITLE I--CIRCUIT AND DISTRICT JUDGESHIPS

Sec. 101. Short title.
Sec. 102. Circuit judges for the circuit courts of appeals.
Sec. 103. District judges for the district courts.
Sec. 104. Establishment of article III court in the Virgin Islands.
Sec. 105. Effective date.

                    TITLE II--BANKRUPTCY JUDGESHIPS

Sec. 201. Short title.
Sec. 202. Authorization for additional bankruptcy judgeships.
Sec. 203. Temporary bankruptcy judgeships.
Sec. 204. Conversion of existing temporary bankruptcy judgeships.
Sec. 205. General provisions.
Sec. 206. Effective date.

                TITLE III--NINTH CIRCUIT REORGANIZATION

Sec. 301. Short title.
Sec. 302. Definitions.
Sec. 303. Number and composition of circuits.
Sec. 304. Number of circuit judges.
Sec. 305. Places of circuit court.
Sec. 306. Assignment of circuit judges.
Sec. 307. Election of assignment by senior judges.
Sec. 308. Seniority of judges.
Sec. 309. Application to cases.
Sec. 310. Temporary assignment of circuit judges among circuits.
Sec. 311. Temporary assignment of district judges among circuits.
Sec. 312. Administration.
Sec. 313. Effective date.

               TITLE IV--AUTHORIZATION OF APPROPRIATIONS

Sec. 401. Authorization of appropriations.

                TITLE I--CIRCUIT AND DISTRICT JUDGESHIPS

SEC. 101. SHORT TITLE.

    This title may be cited as the ``Federal Judgeship Act of 2005''.

SEC. 102. CIRCUIT JUDGES FOR THE CIRCUIT COURTS OF APPEALS.

    (a) In General.--The President shall appoint, by and with the 
advice and consent of the Senate--
            (1) 1 additional circuit judge for the first circuit court 
        of appeals;
            (2) 2 additional circuit judges for the second circuit 
        court of appeals;
            (3) 1 additional circuit judge for the sixth circuit court 
        of appeals; and
            (4) 5 additional circuit judges for the ninth circuit court 
        of appeals, whose official duty station shall be in California.
    (b) Temporary Judgeships.--
            (1) In general.--The President shall appoint, by and with 
        the advice and consent of the Senate--
                    (A) 1 additional circuit judge for the eighth 
                circuit court of appeals; and
                    (B) 2 additional circuit judges for the ninth 
                circuit court of appeals, whose official duty station 
                shall be in California.
            (2) Vacancies.--
                    (A) Eighth circuit.--The first vacancy in the 
                office of circuit judge in the eighth circuit court of 
                appeals, occurring 10 years or more after the 
                confirmation date of the judge named to fill the 
                circuit judgeship created in that circuit by paragraph 
                (1)(A) shall not be filled.
                    (B) Ninth circuit.--The first 2 vacancies in the 
                office of circuit judge in the ninth circuit court of 
                appeals, occurring 10 years or more after judges are 
                first confirmed to fill both temporary circuit 
                judgeships created by paragraph (1)(B) shall not be 
                filled.
    (c) Table of Judgeships.--In order that the table contained in 
section 44 of title 28, United States Code, will, with respect to each 
judicial circuit, reflect the changes in the total number of permanent 
circuit judgeships authorized under subsection (a) of this section, 
such table is amended to read as follows:

  
                                                              Number of
``Circuits
                                                                 Judges
        District of Columbia...............................       12   
        First..............................................        7   
        Second.............................................       15   
        Third..............................................       14   
        Fourth.............................................       15   
        Fifth..............................................       17   
        Sixth..............................................       17   
        Seventh............................................       11   
        Eighth.............................................       11   
        Ninth..............................................       33   
        Tenth..............................................       12   
        Eleventh...........................................       12   
        Federal............................................    12.''.  

SEC. 103. DISTRICT JUDGES FOR THE DISTRICT COURTS.

    (a) In General.--The President shall appoint, by and with the 
advice and consent of the Senate--
            (1) 1 additional district judge for the northern district 
        of Alabama;
            (2) 4 additional district judges for the district of 
        Arizona;
            (3) 3 additional district judges for the northern district 
        of California;
            (4) 4 additional district judges for the eastern district 
        of California;
            (5) 4 additional district judges for the central district 
        of California;
            (6) 1 additional district judge for the southern district 
        of California;
            (7) 1 additional district judge for the district of 
        Colorado;
            (8) 4 additional district judges for the middle district of 
        Florida;
            (9) 3 additional district judges for the southern district 
        of Florida;
            (10) 1 additional district judge for the district of Idaho;
            (11) 1 additional district judge for the northern district 
        of Illinois;
            (12) 1 additional district judge for the southern district 
        of Indiana;
            (13) 1 additional district judge for the western district 
        of Missouri;
            (14) 1 additional district judge for the district of 
        Nebraska;
            (15) 1 additional district judge for the district of 
        Nevada;
            (16) 1 additional district judge for the district of New 
        Mexico;
            (17) 3 additional district judges for the eastern district 
        of New York;
            (18) 1 additional district judge for the western district 
        of New York;
            (19) 1 additional district judge for the district of 
        Oregon;
            (20) 1 additional district judge for the district of South 
        Carolina;
            (21) 3 additional district judges for the southern district 
        of Texas;
            (22) 2 additional district judges for the eastern district 
        of Virginia; and
            (23) 1 additional district judge for the western district 
        of Washington.
    (b) Temporary Judgeships.--
            (1) In general.--The President shall appoint, by and with 
        the advice and consent of the Senate--
                    (A) 1 additional district judge for the middle 
                district of Alabama;
                    (B) 1 additional district judge for the district of 
                Arizona;
                    (C) 1 additional district judge for the northern 
                district of California;
                    (D) 1 additional district judge for the district of 
                Colorado;
                    (E) 1 additional district judge for the middle 
                district of Florida;
                    (F) 1 additional district judge for the northern 
                district of Iowa;
                    (G) 1 additional district judge for the district of 
                Minnesota;
                    (H) 1 additional district judge for the district of 
                New Jersey;
                    (I) 1 additional district judge for the district of 
                New Mexico;
                    (J) 1 additional district judge for the southern 
                district of Ohio;
                    (K) 1 additional district judge for the district of 
                Oregon; and
                    (L) 1 additional district judge for the district of 
                Utah.
            (2) Vacancies not filled.--The first vacancy in the office 
        of district judge in each of the judicial districts named in 
        paragraph (1) occurring 10 years or more after the confirmation 
        date of the judge named to fill the district judgeship created 
        in that district by paragraph (1) shall not be filled.
    (c) Existing Judgeships.--
            (1) Permanent judgeships.--The existing judgeships for the 
        district of Hawaii, the district of Kansas, and the eastern 
        district of Missouri authorized by section 203(c) of the 
        Judicial Improvements Act of 1990 (Public Law 101-650; 28 
        U.S.C. 133 note) shall, as of the effective date of this Act, 
        be authorized under section 133 of title 28, United States 
        Code, and the incumbents in those offices shall hold the office 
        under section 133 of title 28, United States Code, as amended 
        by this Act.
            (2) Extension of temporary judgeship.--Section 203(c) of 
        the Judicial Improvements Act of 1990 (Public Law 101-650; 28 
        U.S.C. 133 note) is amended in the fifth sentence (relating to 
        the northern district of Ohio) by striking ``15 years'' and 
        inserting ``20 years''.
    (d) Table of Judgeships.--In order that the table contained in 
section 133(a) of title 28, United States Code, will, with respect to 
each judicial district, reflect the changes in the total number of 
permanent district judgeships authorized under subsections (a) and (c) 
of this section, such table is amended to read as follows:

``Districts
                                                               Judges  
``Alabama:
        ``Northern ........................................      8     
        ``Middle ..........................................      3     
        ``Southern ........................................      3     
``Alaska ..................................................      3     
``Arizona .................................................     16     
``Arkansas:
        ``Eastern .........................................      5     
        ``Western .........................................      3     
``California:
        ``Northern.........................................     17     
        ``Eastern..........................................     10     
        ``Central .........................................     31     
        ``Southern ........................................     14     
``Colorado.................................................      8     
``Connecticut..............................................      8     
``Delaware.................................................      4     
``District of Columbia.....................................     15     
``Florida:
        ``Northern.........................................      4     
        ``Middle...........................................     19     
        ``Southern.........................................     20     
``Georgia:
        ``Northern.........................................     11     
        ``Middle...........................................      4     
        ``Southern ........................................      3     
``Hawaii...................................................      4     
``Idaho....................................................      3     
``Illinois:
        ``Northern.........................................     23     
        ``Central..........................................      4     
        ``Southern.........................................      4     
``Indiana:
        ``Northern.........................................      5     
        ``Southern.........................................      6     
``Iowa:
        ``Northern.........................................      2     
        ``Southern.........................................      3     
``Kansas...................................................      6     
``Kentucky:
        ``Eastern..........................................      5     
        ``Western..........................................      4     
        ``Eastern and Western..............................      1     
``Louisiana:
        ``Eastern..........................................     12     
        ``Middle...........................................      3     
        ``Western..........................................      7     
``Maine....................................................      3     
``Maryland.................................................     10     
``Massachusetts............................................     13     
``Michigan:
        ``Eastern..........................................     15     
        ``Western..........................................      4     
``Minnesota................................................      7     
``Mississippi:
        ``Northern.........................................      3     
        ``Southern.........................................      6     
``Missouri:
        ``Eastern..........................................      7     
        ``Western..........................................      6     
        ``Eastern and Western..............................      2     
``Montana..................................................      3     
``Nebraska.................................................      4     
``Nevada...................................................      8     
``New Hampshire............................................      3     
``New Jersey...............................................     17     
``New Mexico...............................................      7     
``New York:
        ``Northern.........................................      5     
        ``Southern.........................................     28     
        ``Eastern..........................................     18     
        ``Western..........................................      5     
``North Carolina:
        ``Eastern..........................................      4     
        ``Middle...........................................      4     
        ``Western..........................................      4     
``North Dakota.............................................      2     
``Ohio:
        ``Northern.........................................     11     
        ``Southern.........................................      8     
``Oklahoma:
        ``Northern.........................................      3     
        ``Eastern..........................................      1     
        ``Western..........................................      6     
        ``Northern, Eastern, and Western...................      1     
``Oregon...................................................      7     
``Pennsylvania:
        ``Eastern..........................................     22     
        ``Middle...........................................      6     
        ``Western..........................................     10     
``Puerto Rico..............................................      7     
``Rhode Island.............................................      3     
``South Carolina...........................................     11     
``South Dakota.............................................      3     
``Tennessee:
        ``Eastern..........................................      5     
        ``Middle...........................................      4     
        ``Western..........................................      5     
``Texas:
        ``Northern.........................................     12     
        ``Southern.........................................     22     
        ``Eastern..........................................      7     
        ``Western..........................................     13     
``Utah.....................................................      5     
``Vermont..................................................      2     
``Virginia:
        ``Eastern..........................................     13     
        ``Western..........................................      4     
``Washington:
        ``Eastern..........................................      4     
        ``Western..........................................      8     
``West Virginia:
        ``Northern.........................................      3     
        ``Southern.........................................      5     
``Wisconsin:
        ``Eastern..........................................      5     
        ``Western..........................................      2     
``Wyoming..................................................   3.''.    

SEC. 104. ESTABLISHMENT OF ARTICLE III COURT IN THE VIRGIN ISLANDS.

    (a) Establishment of Judicial District.--
            (1) Virgin islands.--Chapter 5 of title 28, United States 
        Code, is amended by inserting after section 126 the following 
        new section:

``Sec. 126A. Virgin Islands

    ``The Virgin Islands constitutes 1 judicial district comprising 2 
divisions.
            ``(1) The Saint Croix Division comprises the Island of 
        Saint Croix and adjacent islands and cays.
                    ``Court for the Saint Croix Division shall be held 
                at Christiansted.
            ``(2) The Saint Thomas and Saint John Division comprises 
        the Islands of Saint Thomas and Saint John and adjacent islands 
        and cays.
                    ``Court for the Saint Thomas and Saint John 
                Division shall be held at Charlotte-Amalie.''.
            (2) Technical and conforming amendment.--The table of 
        contents for chapter 5 of title 28, United States Code, is 
        amended by inserting after the item relating to section 126 the 
        following:

``126A. Virgin Islands.''.
    (b) Number of Judges.--The table contained in section 133(a) of 
title 28, United States Code, is amended by inserting after the item 
relating to Vermont the following:

``Virgin Islands............................................       2''.
    (c) Bankruptcy Judges.--The table contained in section 152(a)(2) of 
title 28, United States Code, is amended by inserting after the item 
relating to Vermont the following:

``Virgin Islands............................................       0''.
    (d) Judicial Conferences of Circuits.--Section 333 of title 28, 
United States Code, is amended in the third sentence of the first 
undesignated paragraph--
            (1) by striking ``, the District Court of the Virgin 
        Islands,''; and
            (2) by striking ``to the conferences of their respective 
        circuits'' and inserting ``to the conference of the ninth 
        circuit''.
    (e) Judges in Territories and Possessions.--Section 373 of title 
28, United States Code, is amended--
            (1) in subsection (a), by striking ``, the District Court 
        of the Northern Mariana Islands, or the District Court of the 
        Virgin Islands'' and inserting ``or the District Court of the 
        Northern Mariana Islands''; and
            (2) in subsection (e), by striking ``, the District Court 
        of the Northern Mariana Islands, or the District Court of the 
        Virgin Islands'' and inserting ``or the District Court of the 
        Northern Mariana Islands''.
    (f) Annuities for Survivors of Certain Judicial Officials of the 
United States.--Section 376(a) of title 28, United States Code, is 
amended--
            (1) in paragraph (1)(B), by striking ``, the District Court 
        of the Northern Mariana Islands, or the District Court of the 
        Virgin Islands'' and inserting ``or the District Court of the 
        Northern Mariana Islands''; and
            (2) in paragraph (2)(B), by striking ``, the District Court 
        of the Northern Mariana Islands, or the District Court of the 
        Virgin Islands'' and inserting ``or the District Court of the 
        Northern Mariana Islands''.
    (g) Authority of Attorney General.--Section 526(a)(2) of title 28, 
United States Code, is amended by striking ``and of the district court 
of the Virgin Islands''.
    (h) Courts Defined.--Section 610 of title 28, United States Code, 
is amended--
            (1) by striking ``the United States District Court for the 
        District of the Canal Zone,''; and
            (2) by striking ``the District Court of the Virgin 
        Islands,''.
    (i) United States Magistrate Judges.--Section 631(a) of title 28, 
United States Code, is amended--
            (1) in the first sentence, by striking ``the Virgin 
        Islands, Guam,'' and inserting ``Guam''; and
            (2) in the second sentence, by striking ``the Virgin 
        Islands, Guam,'' and inserting ``Guam''.
    (j) Court Reporters.--Section 753(a) of title 28, United States 
Code, is amended by striking ``, the United States District Court for 
the District of the Canal Zone, the District Court of Guam, and the 
District Court of the Virgin Islands'' and inserting ``and the District 
Court of Guam''.
    (k) Final Decisions of District Courts.--Section 1291 of title 28, 
United States Code, is amended by striking ``, the United States 
District Court for the District of the Canal Zone, the District Court 
of Guam, and the District Court of the Virgin Islands,'' and inserting 
``and the District Court of Guam,''.
    (l) Interlocutory Decisions.--Section 1292 of title 28, United 
States Code, is amended--
            (1) in subsection (a), by striking ``, the United States 
        District Court for the District of the Canal Zone, the District 
        Court of Guam, and the District Court of the Virgin Islands,'' 
        and inserting ``and the District Court of Guam,''; and
            (2) in subsection (d)(4)(A), by striking ``the District 
        Court of the Virgin Islands,''.
    (m) Jurisdiction of the United States Court of Appeals for the 
Federal Circuit.--Section 1295(a) of title 28, United States Code, is 
amended in paragraphs (1) and (2)--
            (1) by striking ``the United States District Court for the 
        District of the Canal Zone,''; and
            (2) by striking ``the District Court of the Virgin 
        Islands,''.
    (n) United States as Defendant.--Section 1346(b)(1) of title 28, 
United States Code, is amended by striking ``, together with the United 
States District Court for the District of the Canal Zone and the 
District Court of the Virgin Islands,''.
    (o) Adequate Representation of Defendants.--Section 3006A(j) of 
title 18, United States Code, is amended by striking ``the District 
Court of the Virgin Islands,''.
    (p) Savings Provisions.--
            (1) Tenure of incumbent judges.--A judge of the District 
        Court of the Virgin Islands in office on the effective date of 
        this section shall continue in office until the expiration of 
        the term for which the judge was appointed, or until the judge 
        dies, resigns, or is removed from office, whichever occurs 
        first. When a vacancy occurs on the court on or after the 
        effective date of this section, the President, in accordance 
        with section 133(a) of title 28, United States Code, shall 
        appoint, by and with the advice and consent of the Senate, a 
        district judge for the District of the Virgin Islands.
            (2) Retirement rights and benefits.--The amendments made by 
        this section shall not affect the rights under sections 373 and 
        376 of title 28, United States Code, of any judge of the 
        District Court of the Virgin Islands who retires on or before 
        the effective date of this section or who continues in office 
        after that date under paragraph (1) of this subsection. Service 
        as a judge of the District Court of the Virgin Islands 
        appointed under section 24 of the Revised Organic Act of the 
        Virgin Islands (48 U.S.C. 1614) shall be included in 
        calculating service under sections 371 and 372 of title 28, 
        United States Code, and shall not be counted for purposes of 
        section 373 of that title, if the judge is reappointed, after 
        the effective date of this section, under section 133(a) of 
        title 28, United States Code, as district judge for the 
        District of the Virgin Islands.
    (q) Amendments to Revised Organic Act of the Virgin Islands.--
            (1) Repeals.--Sections 24, 25, 26, and 27 of the Revised 
        Organic Act of the Virgin Islands (48 U.S.C. 1614, 1615, 1616 
        and 1617) are repealed.
            (2) Rights and prohibitions.--Section 3 of the Revised 
        Organic Act of the Virgin Islands (48 U.S.C. 1561) is amended 
        in the 23d undesignated paragraph--
                    (A) by inserting ``article III;'' after ``section 
                9, clauses 2 and 3;'' and
                    (B) by striking ``That all offenses against the 
                laws of the United States'' and all that follows 
                through ``section 22(b) of this Act or'' and inserting 
                ``That all offenses against the laws of the Virgin 
                Islands which are prosecuted''.
            (3) Jurisdiction.--Section 21 of the Revised Organic Act of 
        the Virgin Islands (48 U.S.C. 1611) is amended to read as 
        follows:

``SEC. 21. JURISDICTION OF THE COURTS OF THE VIRGIN ISLANDS.

    ``(a) Jurisdiction of the Courts of the Virgin Islands.--The 
judicial power of the Virgin Islands shall be vested in such trial and 
appellate courts as may have been or may hereafter be established by 
local law. The local courts of the Virgin Islands shall have 
jurisdiction over all causes of action in the Virgin Islands over which 
any court established by the Constitution and laws of the United States 
does not have exclusive jurisdiction.
    ``(b) Practice and Procedure.--The rules governing the practice and 
procedure of the courts established by local law and those prescribing 
the qualifications and duties of the judges and officers thereof, oaths 
and bonds, and the times and places of holding court shall be governed 
by local law or the rules promulgated by those courts.''.
            (4) Income tax matters.--Section 22 of the Revised Organic 
        Act of the Virgin Islands (48 U.S.C. 1612) is amended to read 
        as follows:

``SEC. 22. JURISDICTION OVER INCOME TAX MATTERS.

    ``The United States District Court for the District of the Virgin 
Islands shall have exclusive jurisdiction over all criminal and civil 
proceedings in the Virgin Islands with respect to the income tax laws 
applicable to the Virgin Islands, except the ancillary laws relating to 
the income tax enacted by the legislature of the Virgin Islands. Any 
act or failure to act with respect to the income tax laws applicable to 
the Virgin Islands which would constitute a criminal offense described 
in chapter 75 of subtitle F of the Internal Revenue Code of 1986 shall 
constitute an offense against the Government of the Virgin Islands and 
may be prosecuted in the name of the Government of the Virgin Islands 
by the appropriate officers thereof in the United States District Court 
for the District of the Virgin Islands without the request or consent 
of the United States attorney for the Virgin Islands.''.
            (5) Appellate jurisdiction.--Section 23A of the Revised 
        Organic Act of the Virgin Islands (48 U.S.C. 1613a) is 
        amended--
                    (A) by striking ``District Court of the Virgin 
                Islands'' each place it appears and inserting ``United 
                States District Court for the District of the Virgin 
                Islands''; and
                    (B) in subsection (b), by striking ``pursuant to 
                section 24(a) of this Act: Provided, That no more than 
                one of them may be a judge of a court established by 
                local law.'' and inserting ``pursuant to chapter 13 of 
                title 28, United States Code, or a recalled senior 
                judge of the former District Court of the Virgin 
                Islands. The chief judge of the United States Court of 
                Appeals for the Third Circuit may assign to the 
                appellate division a judge of a court of record of the 
                Virgin Islands, except that no more than 1 of the 
                judges sitting in the appellate division at any session 
                may be a judge of a court established by local law.''.
    (r) Additional References.--Any reference in any provision of law 
to the ``District Court of the Virgin Islands'' shall, on and after the 
effective date of this section, be deemed to be a reference to the 
United States District Court for the District of the Virgin Islands.
    (s) Effective Date.--This section and the amendments made by this 
section shall take effect at the end of the 90-day period beginning on 
the date of the enactment of this Act. Any complaint or proceeding 
pending in the District Court of the Virgin Islands on the effective 
date of this section may be pursued to final determination in the 
United States District Court for the District of the Virgin Islands, 
the United States Court of Appeals for the Third Circuit, the United 
States Court of Appeals for the Federal Circuit, and the Supreme Court 
of the United States.

SEC. 105. EFFECTIVE DATE.

    Except as provided in section 104(s), this title and the amendments 
made by this title shall take effect on the date of the enactment of 
this Act.

                    TITLE II--BANKRUPTCY JUDGESHIPS

SEC. 201. SHORT TITLE.

    This title may be cited as the ``Enhanced Bankruptcy Judgeship Act 
of 2005''.

SEC. 202. AUTHORIZATION FOR ADDITIONAL BANKRUPTCY JUDGESHIPS.

    The following judgeships shall be filled in the manner prescribed 
in section 152(a)(1) of title 28, United States Code, for the 
appointment of bankruptcy judges provided for in section 152(a)(2) of 
such title:
            (1) 1 additional bankruptcy judgeship for the eastern and 
        western districts of Arkansas.
            (2) 1 additional bankruptcy judgeship for the eastern 
        district of California.
            (3) 2 additional bankruptcy judgeships for the middle 
        district of Florida.
            (4) 2 additional bankruptcy judgeships for the northern 
        district of Georgia.
            (5) 1 additional bankruptcy judgeship for the southern 
        district of Georgia.
            (6) 1 additional bankruptcy judgeship for the eastern 
        district of Kentucky.
            (7) 1 additional bankruptcy judgeship for the district of 
        Maryland.
            (8) 3 additional bankruptcy judgeships for the eastern 
        district of Michigan.
            (9) 1 additional bankruptcy judgeship for the southern 
        district of New York.
            (10) 1 additional bankruptcy judgeship for the western 
        district of Pennsylvania.
            (11) 1 additional bankruptcy judgeship for the western 
        district of Tennessee.
            (12) 1 additional bankruptcy judgeship for the eastern 
        district of Texas.
            (13) 1 additional bankruptcy judgeship for the district of 
        Utah.

SEC. 203. TEMPORARY BANKRUPTCY JUDGESHIPS.

    (a) Authorization for Additional Temporary Bankruptcy Judgeships.--
The following judgeships shall be filled in the manner prescribed in 
section 152(a)(1) of title 28, United States Code, for the appointment 
of bankruptcy judges provided for in section 152(a)(2) of such title:
            (1) 1 additional bankruptcy judgeship for the northern 
        district of Florida.
            (2) 2 additional bankruptcy judgeships for the middle 
        district of Florida.
            (3) 1 additional bankruptcy judgeship for the northern 
        district of Indiana.
            (4) 1 additional bankruptcy judgeship for the northern 
        district of Mississippi.
            (5) 1 additional bankruptcy judgeship for the district of 
        Nevada.
            (6) 1 additional bankruptcy judgeship for the western 
        district of North Carolina.
            (7) 1 additional bankruptcy judgeship for the southern 
        district of Ohio.
    (b) Vacancies.--
            (1) Districts with single appointments.--Except as provided 
        in paragraph (2), the first vacancy occurring in the office of 
        bankruptcy judge in each of the judicial districts set forth in 
        subsection (a)--
                    (A) occurring 5 years or more after the appointment 
                date of the bankruptcy judge appointed under subsection 
                (a) to such office, and
                    (B) resulting from the death, retirement, 
                resignation, or removal of a bankruptcy judge,
        shall not be filled.
            (2) Middle district of florida.--The 1st and 2d vacancies 
        in the office of bankruptcy judge in the middle district of 
        Florida--
                    (A) occurring 5 years or more after the respective 
                1st and 2d appointment dates of the bankruptcy judges 
                appointed under subsection (a)(2), and
                    (B) resulting from the death, retirement, 
                resignation, or removal of a bankruptcy judge,
        shall not be filled.
    (c) Eligibility for Subsequent Appointments.--A judge holding 
office in any of the districts enumerated in subsection (a) shall, at 
the expiration of the term of the judge (other than by reason of 
paragraph (1)(B) or (2)(B) of subsection (b)), be eligible for 
reappointment as a bankruptcy judge in that district.

SEC. 204. CONVERSION OF EXISTING TEMPORARY BANKRUPTCY JUDGESHIPS.

    (a) Judgeships Authorized by Public Law 102-361.--The following 
temporary bankruptcy judgeships authorized by the following paragraphs 
of section 3(a) of Public Law 102-361, as amended by section 307 of 
Public Law 104-317 (28 U.S.C. 152 note), are converted to permanent 
bankruptcy judgeships under section 152(a)(2) of title 28, United 
States Code:
            (1) The temporary bankruptcy judgeship for the district of 
        Delaware authorized by paragraph (3).
            (2) The temporary bankruptcy judgeship for the southern 
        district of Illinois authorized by paragraph (4).
            (3) The temporary bankruptcy judgeship for the district of 
        Puerto Rico authorized by paragraph (7).
    (b) Judgeships Authorized by Public Law 109-8.--The following 
temporary bankruptcy judgeships authorized by the following 
subparagraphs of section 1223(b)(1) of the Bankruptcy Abuse Prevention 
and Consumer Protection Act of 2005 (Public Law 109-8), are converted 
to permanent bankruptcy judgeships under section 152(a)(2) of title 28, 
United States Code:
            (1) The 4 temporary bankruptcy judgeships for the district 
        of Delaware authorized by subparagraph (C).
            (2) The temporary bankruptcy judgeship for the southern 
        district of Georgia authorized by subparagraph (E).
            (3) One of the 3 temporary bankruptcy judgeships for the 
        district of Maryland authorized by subparagraph (F).
            (4) The temporary bankruptcy judgeship for the eastern 
        district of Michigan authorized by subparagraph (G).
            (5) The temporary bankruptcy judgeship for the district of 
        New Jersey authorized by subparagraph (I).
            (6) The temporary bankruptcy judgeship for the northern 
        district of New York authorized by subparagraph (K).
            (7) The temporary bankruptcy judgeship for the southern 
        district of New York authorized by subparagraph (L).
            (8) The temporary bankruptcy judgeship for the eastern 
        district of North Carolina authorized by subparagraph (M).
            (9) The temporary bankruptcy judgeship for the eastern 
        district of Pennsylvania authorized by subparagraph (N).
            (10) The temporary bankruptcy judgeship for the district of 
        South Carolina authorized by subparagraph (S).
            (11) The temporary bankruptcy judgeship for the western 
        district of Tennessee authorized by subparagraph (Q).

SEC. 205. GENERAL PROVISIONS.

    (a) Table of Judgeships.--In order that the table contained in 
section 152(a)(2) of title 28, United States Code, will, with respect 
to each judicial district, reflect the changes in the total number of 
bankruptcy judgeships authorized under sections 202 and 204, such table 
is amended to read as follows:

``Districts
                                                               Judges  
``Alabama:
        ``Northern ........................................      5     
        ``Middle ..........................................      2     
        ``Southern ........................................      2     
``Alaska ..................................................      2     
``Arizona .................................................      7     
``Arkansas:
        ``Eastern and Western .............................      4     
``California:
        ``Northern.........................................      9     
        ``Eastern..........................................      7     
        ``Central .........................................     21     
        ``Southern ........................................      4     
``Colorado.................................................      5     
``Connecticut..............................................      3     
``Delaware.................................................      6     
``District of Columbia.....................................      1     
``Florida:
        ``Northern.........................................      1     
        ``Middle...........................................     10     
        ``Southern.........................................      5     
``Georgia:
        ``Northern.........................................     10     
        ``Middle...........................................      3     
        ``Southern ........................................      4     
``Hawaii...................................................      1     
``Idaho....................................................      2     
``Illinois:
        ``Northern.........................................     10     
        ``Central..........................................      3     
        ``Southern.........................................      2     
``Indiana:
        ``Northern.........................................      3     
        ``Southern.........................................      4     
``Iowa:
        ``Northern.........................................      2     
        ``Southern.........................................      2     
``Kansas...................................................      4     
``Kentucky:
        ``Eastern..........................................      3     
        ``Western..........................................      3     
``Louisiana:
        ``Eastern..........................................      2     
        ``Middle...........................................      1     
        ``Western..........................................      3     
``Maine....................................................      2     
``Maryland.................................................      6     
``Massachusetts............................................      5     
``Michigan:
        ``Eastern..........................................      8     
        ``Western..........................................      3     
``Minnesota................................................      4     
``Mississippi:
        ``Northern.........................................      1     
        ``Southern.........................................      2     
``Missouri:
        ``Eastern..........................................      3     
        ``Western..........................................      3     
``Montana..................................................      1     
``Nebraska.................................................      2     
``Nevada...................................................      3     
``New Hampshire............................................      1     
``New Jersey...............................................      9     
``New Mexico...............................................      2     
``New York:
        ``Northern.........................................      3     
        ``Southern.........................................     11     
        ``Eastern..........................................      6     
        ``Western..........................................      3     
``North Carolina:
        ``Eastern..........................................      3     
        ``Middle...........................................      2     
        ``Western..........................................      2     
``North Dakota.............................................      1     
``Ohio:
        ``Northern.........................................      8     
        ``Southern.........................................      7     
``Oklahoma:
        ``Northern.........................................      2     
        ``Eastern..........................................      1     
        ``Western..........................................      3     
``Oregon...................................................      5     
``Pennsylvania:
        ``Eastern..........................................      6     
        ``Middle...........................................      2     
        ``Western..........................................      5     
``Puerto Rico..............................................      3     
``Rhode Island.............................................      1     
``South Carolina...........................................      3     
``South Dakota.............................................      2     
``Tennessee:
        ``Eastern..........................................      3     
        ``Middle...........................................      3     
        ``Western..........................................      6     
``Texas:
        ``Northern.........................................      6     
        ``Eastern..........................................      3     
        ``Southern.........................................      6     
        ``Western..........................................      4     
``Utah.....................................................      4     
``Vermont..................................................      1     
``Virgin Islands...........................................      0     
``Virginia:
        ``Eastern..........................................      5     
        ``Western..........................................      3     
``Washington:
        ``Eastern..........................................      2     
        ``Western..........................................      5     
``West Virginia:
        ``Northern.........................................      1     
        ``Southern.........................................      1     
``Wisconsin:
        ``Eastern..........................................      4     
        ``Western..........................................      2     
``Wyoming..................................................   1.''.    
    (b) Sense of Congress.--It is the sense of the Congress that 
bankruptcy judges in the eastern district of California should conduct 
bankruptcy proceedings on a daily basis in Bakersfield, California.

SEC. 206. EFFECTIVE DATE.

    This title and the amendments made by this title shall take effect 
on the date of the enactment of this Act.

                TITLE III--NINTH CIRCUIT REORGANIZATION

SEC. 301. SHORT TITLE.

    This title may be cited as the ``Judicial Administration and 
Improvements Act of 2005''.

SEC. 302. DEFINITIONS.

    In this title:
            (1) Former ninth circuit.--The term ``former ninth 
        circuit'' means the ninth judicial circuit of the United States 
        as in existence on the day before the effective date of this 
        title.
            (2) New ninth circuit.--The term ``new ninth circuit'' 
        means the ninth judicial circuit of the United States 
        established by the amendment made by section 303(2)(A).
            (3) Twelfth circuit.--The term ``twelfth circuit'' means 
        the twelfth judicial circuit of the United States established 
        by the amendment made by section 303(2)(B).

SEC. 303. NUMBER AND COMPOSITION OF CIRCUITS.

    Section 41 of title 28, United States Code, is amended--
            (1) in the matter preceding the table, by striking 
        ``thirteen'' and inserting ``fourteen''; and
            (2) in the table--
                    (A) by striking the item relating to the ninth 
                circuit and inserting the following:

    ``Ninth
                                        California, Guam, Hawaii, 
                                                Northern Mariana 
                                                Islands.'';
    and
                    (B) by inserting after the item relating to the 
                eleventh circuit the following:

    ``Twelfth
                                        Alaska, Arizona, Idaho, 
                                                Montana, Nevada, 
                                                Oregon, Washington.''.

SEC. 304. NUMBER OF CIRCUIT JUDGES.

    The table contained in section 44(a) of title 28, United States 
Code, as amended by section 102(c) of this Act, is further amended--
            (1) by striking the item relating to the ninth circuit and 
        inserting the following:

``Ninth.....................................................      19'';
    and
            (2) by inserting after the item relating to the eleventh 
        circuit the following:

``Twelfth...................................................      14''.

SEC. 305. PLACES OF CIRCUIT COURT.

    The table contained in section 48(a) of title 28, United States 
Code, is amended--
            (1) by striking the item relating to the ninth circuit and 
        inserting the following:

    ``Ninth
                                        Honolulu, Pasadena, San 
                                                Francisco.'';
    and
            (2) by inserting after the item relating to the eleventh 
        circuit the following:

    ``Twelfth
                                        Las Vegas, Missoula, Phoenix, 
                                                Portland, Seattle.''.

SEC. 306. ASSIGNMENT OF CIRCUIT JUDGES.

    Each circuit judge of the former ninth circuit who is in regular 
active service and whose official duty station on the day before the 
effective date of this title--
            (1) is in California, Guam, Hawaii, or the Northern Mariana 
        Islands shall be a circuit judge of the new ninth circuit as of 
        such effective date; and
            (2) is in Alaska, Arizona, Idaho, Montana, Nevada, Oregon, 
        or Washington shall be a circuit judge of the twelfth circuit 
        as of such effective date.

SEC. 307. ELECTION OF ASSIGNMENT BY SENIOR JUDGES.

    Each judge who is a senior circuit judge of the former ninth 
circuit on the day before the effective date of this title may elect to 
be assigned to the new ninth circuit or the twelfth circuit as of such 
effective date and shall notify the Director of the Administrative 
Office of the United States Courts of such election.

SEC. 308. SENIORITY OF JUDGES.

    The seniority of each judge--
            (1) who is assigned under section 306, or
            (2) who elects to be assigned under section 307,
shall run from the date of commission of such judge as a judge of the 
former ninth circuit.

SEC. 309. APPLICATION TO CASES.

    The following apply to any case in which, on the day before the 
effective date of this title, an appeal or other proceeding has been 
filed with the former ninth circuit:
            (1) Except as provided in paragraph (3), if the matter has 
        been submitted for decision, further proceedings with respect 
        to the matter shall be had in the same manner and with the same 
        effect as if this title had not been enacted.
            (2) If the matter has not been submitted for decision, the 
        appeal or proceeding, together with the original papers, 
        printed records, and record entries duly certified, shall, by 
        appropriate orders, be transferred to the court to which the 
        matter would have been submitted had this title been in full 
        force and effect at the time such appeal was taken or other 
        proceeding commenced, and further proceedings with respect to 
        the case shall be had in the same manner and with the same 
        effect as if the appeal or other proceeding had been filed in 
        such court.
            (3) If a petition for rehearing en banc is pending on or 
        after the effective date of this title, the petition shall be 
        considered by the court of appeals to which it would have been 
        submitted had this title been in full force and effect at the 
        time that the appeal or other proceeding was filed with the 
        court of appeals.

SEC. 310. TEMPORARY ASSIGNMENT OF CIRCUIT JUDGES AMONG CIRCUITS.

    Section 291 of title 28, United States Code, is amended by adding 
at the end the following:
    ``(c) The chief judge of the Ninth Circuit may, in the public 
interest and upon request by the chief judge of the Twelfth Circuit, 
designate and assign temporarily any circuit judge of the Ninth Circuit 
to act as circuit judge in the Twelfth Circuit.
    ``(d) The chief judge of the Twelfth Circuit may, in the public 
interest and upon request by the chief judge of the Ninth Circuit, 
designate and assign temporarily any circuit judge of the Twelfth 
Circuit to act as circuit judge in the Ninth Circuit.''.

SEC. 311. TEMPORARY ASSIGNMENT OF DISTRICT JUDGES AMONG CIRCUITS.

    Section 292 of title 28, United States Code, is amended by adding 
at the end the following:
    ``(f) The chief judge of the United States Court of Appeals for the 
Ninth Circuit may, in the public interest--
            ``(1) upon request by the chief judge of the Twelfth 
        Circuit, designate and assign 1 or more district judges within 
        the Ninth Circuit to sit upon the Court of Appeals of the 
        Twelfth Circuit, or a division thereof, whenever the business 
        of that court so requires; and
            ``(2) designate and assign temporarily any district judge 
        within the Ninth Circuit to hold a district court in any 
        district within the Twelfth Circuit.
    ``(g) The chief judge of the United States Court of Appeals for the 
Twelfth Circuit may in the public interest--
            ``(1) upon request by the chief judge of the Ninth Circuit, 
        designate and assign 1 or more district judges within the 
        Twelfth Circuit to sit upon the Court of Appeals of the Ninth 
        Circuit, or a division thereof, whenever the business of that 
        court so requires; and
            ``(2) designate and assign temporarily any district judge 
        within the Twelfth Circuit to hold a district court in any 
        district within the Ninth Circuit.
    ``(h) Any designations or assignments under subsection (f) or (g) 
shall be in conformity with the rules or orders of the court of appeals 
of, or the district within, as applicable, the circuit to which the 
judge is designated or assigned.''.

SEC. 312. ADMINISTRATION.

    The court of appeals for the ninth circuit as constituted on the 
day before the effective date of this title may take such 
administrative action as may be required to carry out this title and 
the amendments made by this title. Such court shall cease to exist for 
administrative purposes 2 years after the date of the enactment of this 
Act.

SEC. 313. EFFECTIVE DATE.

    This title and the amendments made by this title shall take effect 
no later than December 31, 2006.

               TITLE IV--AUTHORIZATION OF APPROPRIATIONS

SEC. 401. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated for each of fiscal years 
2006 through 2009 such sums as are necessary to carry out this Act, 
including such sums as may be necessary to provide appropriate space 
and facilities for the judicial positions created by this Act. Funds 
appropriated pursuant to this section in any fiscal year shall remain 
available until expended.

                          Purpose and Summary

    The purpose of Title I of H.R. 4093, ``Circuit and District 
Judgeships,'' is to authorize the President to appoint, by and 
with the advice and consent of the Senate, additional circuit 
and district court judges. These authorizations were developed 
in coordination with the U.S. Judicial Conference and 
substantially based on their recommendations. The circuit and 
district judgeship requirements have been updated from the 
108th Congress and are considered meritorious. Congress last 
enacted an omnibus judgeship bill in 1990.
    Title II of H.R. 4093 entitled, ``Bankruptcy Judgeships,'' 
authorizes the appointment of additional bankruptcy judges, 
subject to the provisions of 28 U.S.C. Sec. 152. The request 
for additional bankruptcy judgeships was developed in 
coordination with the U.S. Judicial Conference and is 
substantially based on their recommendations.
    Title III of H.R. 4093 entitled, the ``Ninth Circuit 
Reorganization,'' realigns the existing Ninth Circuit Court of 
Appeals into two circuits: a newly-created Twelfth Circuit that 
is comprised of judicial districts in Alaska, Arizona, Idaho, 
Montana, Nevada, Oregon, and Washington; and a streamlined new 
Ninth Circuit, which includes all judicial districts in 
California, Hawaii, the Northern Mariana Islands, and Guam.
    Congress has considered proposals to realign the Ninth 
Circuit for more than 60 years. The Ninth is by far the largest 
of the thirteen courts of appeals. The size of the Ninth--as 
measured by the geography of the Circuit, the number of persons 
it serves, and the volume of cases before it--prevents 
litigants from receiving timely legal redress. With 28 
authorized judgeships, the Ninth is substantially larger than 
any other circuit court. The U.S. Judicial Conference has 
requested that Congress authorize five new permanent circuit 
judgeships and two additional temporary circuit judgeships for 
the Ninth.
    The Committee believes the addition of new judgeships 
without needed structural reform will exacerbate the unstable 
development of case law, delays in the adjudication and 
disposition of cases, and the perpetuation of conditions that 
have led the Ninth Circuit to be widely recognized as having 
both an extraordinary number of decisions that the U.S. Supreme 
Court must hear on appeal as well as a high rate of reversals. 
The Committee also notes that the Ninth Circuit is notorious 
for having an excessive number of cases summarily or 
unanimously reversed by the U.S. Supreme Court. The Committee 
concurs with the recommendations of two independent 
commissions, the former Chief Justice of the United States, 
William Rehnquist, and four Associate Justices of the U.S. 
Supreme Court that the Ninth should be reorganized. The 
Committee believes the only viable long-term solution is a 
structural realignment.
    Title IV contains language that was requested by the 
Administrative Office of the Courts, which authorizes such 
appropriations as are necessary to implement the provisions of 
H.R. 4093.

                Background and Need for the Legislation

          CONSTITUTIONAL AUTHORITY TO ORGANIZE INFERIOR COURTS

    Art. I, Sec. 8, cl. 9 of the U.S. Constitution grants to 
the Congress of the United States the sole authority and 
responsibility ``[t]o constitute Tribunals inferior to the 
Supreme Court.''
    Art. III, Sec. 1, reiterates Congress' unique role in 
providing for the organization and effective functioning of the 
``judicial Power of the United States'' by declaring that such 
power ``shall be vested . . . in such inferior Courts as the 
Congress may from time to time ordain and establish.'' Pursuant 
to its Constitutional authority, Congress has enacted numerous 
laws to organize and provide for the creation, composition, and 
from time to time, the reorganization of inferior courts. These 
laws are designed to ensure that the ``judicial Power of the 
United States'' is administered efficiently and effectively and 
that its operations protect the rights of the American people. 
The principal statutes that regulate and organize the Courts of 
Appeals are codified with great specificity in title 28 of the 
United States Code. In 28 U.S.C. Sec. 40, the Congress has 
prescribed, inter alia, the creation and composition of circuit 
courts of appeals, the number and composition of circuits, the 
number of judges authorized to be appointed to each circuit, 
and the places where the courts of appeals shall hold regular 
sessions.

   THE CREATION OF NEW JUDGESHIPS FOR THE REALIGNED NINTH AND OTHER 
 CIRCUITS WILL GREATLY ENHANCE THE OPERATIONS OF THE FEDERAL JUDICIARY

    The House Committee on the Judiciary received the 
submission of the Judicial Conference of the United States, 
which requested Congress to authorize additional Art. III 
judgeships. The request of the Conference was based upon a 
biennial review of the judgeship needs of all U.S. Courts of 
Appeals and U.S. District Courts that was completed in March 
2005. The Committee concurs that the creation of 12 new 
judgeships in five courts of appeals and 56 new judgeships in 
29 district courts will enhance the ability of the Federal 
court system to administer civil and criminal justice matters 
appropriately. Additionally, the Committee supports the 
creation of 17 new permanent bankruptcy judgeships and eight 
new temporary bankruptcy judgeships.

              THE CREATION OF THE COURT OF APPEALS SYSTEM 
                         AND THE NINTH CIRCUIT

    In 1891, Congress created the regional court of appeals 
system and the Ninth Circuit by enacting the Evarts Act. 
Describing the Act's significance, Associate Justice O'Connor 
has written, ``[t]he establishment of a court of appeals and 
the expansion of the discretionary power of the Supreme Court 
to grant or deny review in many cases meant that from 1891 on 
the great majority of Federal court appellate decision-making 
would be made at the level of the circuit court of appeals. 
That effect is still felt today as the Supreme Court on which I 
sit accepts for review less than 2 percent of the petitions 
filed. The great bulk of Federal case law is developed and made 
in the courts of appeals.''
    With the great bulk of Federal case law emanating from 
regional courts of appeals and a recognition that, as a 
practical matter, courts of appeals are the courts of last 
resort for the overwhelming majority of litigants, the 
Committee takes seriously its obligation to ensure that the 
regional courts of appeals system functions appropriately and 
effectively.
    Historically, Congress has exercised this obligation in a 
number of ways to include, from time to time, adding 
territories and states to existing circuits and periodically 
re-aligning circuits to improve the administration of judicial 
functions. Two recent examples include the realignment by 
Congress of the Eighth Circuit by creating the Tenth Circuit in 
1929, and similarly, the creation of the Eleventh Circuit from 
the Fifth in 1981.
    When the Ninth Circuit was established, the American West 
was characterized by a vast geography that was sparsely 
populated. The continental contours of the circuit have been 
unchanged since 1912 when Arizona was added to the Ninth. 
According to census figures from 1910, the combined population 
of the states that comprise the Ninth today constituted less 
than 6 percent of the total U.S. population. In stark contrast, 
today the circuit encompasses more than 58 million people, 
nearly 20 percent of the total U.S. population. This figure 
exceeds by 27 million the number of people in the next most 
populous Circuit, the Sixth, and by 37 million the average 
population of the other circuits.
    There is no foreseeable end to the phenomenal population 
growth in the region. Three of the five fastest-growing 
American cities with populations that exceed 1,000,000 and 
seven of the ten fastest-growing cities with populations that 
exceed 100,000 lie within the Ninth's confines.
    The Ninth's enormity dominates over the other regional 
circuits. The Ninth is 25 times larger than the smallest of the 
circuits, the First. The Committee believes that a regional 
court of appeals system that places one in five Americans and 
40 percent of the Nation's geographic area in a single regional 
circuit with the ten remaining regional courts of appeals 
dividing 60 percent of the Nation's land mass is unwieldy and 
inefficient.

               THE NINTH CIRCUIT: STRUCTURE AND CONCERNS

    The U.S. Courts of Appeals for the Ninth Circuit is 
comprised of nine states and includes the districts of Alaska, 
Arizona, Central California, Eastern California, Northern 
California, Southern California, Hawaii, Idaho, Montana, 
Nevada, Oregon, Eastern Washington, Western Washington, Guam, 
and Northern Mariana Islands. The Committee notes that the 
average number of states in the other circuits is 4.25 and that 
the Ninth's composition is more than twice as large.
    Twenty-four of its 28 authorized judgeships are filled and 
there are 23 senior judges assigned to the circuit. Currently, 
the Ninth Circuit has 47 serving judges, four vacancies, and a 
request for seven additional judgeships, for a total of 58. 
This figure approaches twice the number of total serving judges 
in the next largest circuit, the Sixth, with 29 serving judges 
and a request for one additional judgeship for a total of 30. 
The Committee notes the average total number of judges among 
all other circuits is 20 and that the Ninth's requirements 
approach three times that figure.
    During the year ending June 30, 2005, 15,685 appeals were 
filed in the Ninth. This number represents three times the 
average of other circuits and approximately one-quarter of all 
appeals heard by U.S. Courts of Appeals. The Committee notes 
that the median time for disposing of an appeal from filing is 
approximately 40 percent longer in the Ninth than the average 
of the other Courts of Appeals. This delay increases both the 
expenses incurred by parties and the uncertainty associated 
with the ultimate resolution of the case. The lives of the 
individuals involved are seriously and negatively impacted when 
the Federal court system fails to dispense justice in a swift, 
unbiased, and equitable manner. The Committee is convinced that 
it can no longer be maintained, and that the enormity of the 
Ninth Circuit presents unique administrative challenges that 
are responsible for the persistent inability of the Ninth to 
meet the legitimate needs and expectations of its citizens.
    The Committee is concerned that these delays may imperil 
the spirit of fundamental guarantees that are provided by the 
U.S. Constitution. Specifically, the Committee is concerned 
that the Sixth Amendment guarantee to an accused of a 
``speedy--trial'' in all criminal prosecutions and the Equal 
Protection clause's requirement that all American citizens 
receive equal treatment under the law in every Federal court 
are unduly placed in jeopardy by the size, scope, and failure 
of the Ninth to eliminate needless delays and materially reduce 
its backlog.
    The Committee notes that the Ninth's backlog of total 
appeals pending recently stood at 13,417 cases. This number 
exceeded by almost three times the number of total appeals 
pending in the circuit with the second-highest total, the 
Fifth. Further, the Committee notes that the Ninth's 56.1 
percent increase in appeals filed in the 4 years that ended 
September 30, 2004 far outpaced the rate of increase in any 
other district.
    The following chart summarizes the workload of the Ninth 
relative to the other circuits.




    The Ninth Circuit is the preferred venue for the filing of 
administrative appeals. A large increase in immigration appeals 
accounts for an inordinate percentage, approximately half, of 
the Ninth's workload. The Committee is presently engaged in a 
major restructuring of our Nation's immigration laws. Ensuring 
that sensible and uniform immigration policies are enacted and 
applied equitably throughout the Nation is a major component. 
Nevertheless, the Committee notes it is the Ninth's broad and 
well-earned reputation for the lenient enforcement of our 
current immigration laws that has directly contributed to this 
increased caseload--a condition that some seek to assert as a 
justification for Congress suspending necessary action to 
restructure the circuit.
    Like other circuits, the Ninth is administered generally by 
a chief judge and circuit judicial council supported by a 
circuit executive. A clerk's office handles the administration 
of the court of appeals. The Ninth has adopted unique practices 
to facilitate the processing of the voluminous number of cases 
that it must handle. Among these practices is the extensive use 
of staff attorneys and the exclusive reliance on ``limited'' en 
banc panels.
    While the court employs six to eight attorneys who serve as 
mediators, the court conducts most of its work through the use 
of three-judge panels. Each active judge serves on oral 
argument panels seven or 8 weeks each year, hearing 
approximately 32 to 36 cases in each of those weeks. When there 
are not enough active and senior judges to create argument 
panels, the court fills out panels with district court judges.
    Judges have frequently commented on the importance of 
``collegiality'' when sitting on a three-judge panel. Frequent 
interaction among judges can enhance understanding of one 
another's reasoning and decrease the possibility of 
misinformation and misunderstandings. There are more than 3,000 
possible combinations of panels in the Ninth. This incredible 
number prevents individual judges from becoming better 
acquainted with the personalities and jurisprudence of their 
colleagues.
    The Ninth has been criticized for permitting its 
jurisprudence to be developed by three-judge panels with the 
outcome of particular cases riding subjectively on the makeup 
of a given panel rather than objectively on general principles 
of circuit law. This erodes confidence in the law-declaring 
role, one of a circuit's two primary functions (the other being 
to correct errors on appeal).
    Circuit judges also serve for one or 2 months each year on 
screening panels that review cases that were preliminarily 
screened by court staff. The Committee is informed that it is 
customary for circuit judges to rely heavily on the 
recommendations of staff attorneys and that the time spent by a 
judge on a pre-screened matter may be measured in mere minutes. 
Such a cursory review may lead to an erosion of confidence in 
the public perception of the judiciary.
    Like other circuits, the Ninth may sit en banc to maintain 
the uniformity of its decisions and to decide cases involving 
questions of exceptional importance. The Ninth differs from 
other circuits, however, in that it is the only Circuit to ever 
use a ``limited'' en banc court consisting of the Chief Judge 
and, pursuant to a recently approved local Circuit rule, 14 
others (until this year, the procedure was limited to 11 judges 
total). The effect of the Ninth's long-standing practice was 
that a majority of six judges (now eight) can establish 
circuit-wide precedent for one-fifth of the Nation's population 
and on behalf of a court authorized 28 judges in full-time 
active service. The Committee notes the Ninth adopted this 
local rule change only 7 years after the Commission on 
Structural Alternatives for the Federal Courts of Appeals, also 
known as the White Commission, issued its final report that 
called upon the circuit to abolish its en banc practice. 
Further, the Committee notes that it was a desire to ensure 
that a full en banc hearing was available to appellants that 
motivated the judges of the former Fifth Circuit to unanimously 
support the realignment that resulted in the creation of the 
Eleventh Circuit.
    The Ninth's rules do permit a judge dissatisfied with the 
decision of a ``limited'' en banc court to call for a vote on 
whether the full court should convene to reconsider the case. 
However, the Committee notes the court has never voted in favor 
of a ``full-court'' rehearing. The Committee considers the 
Ninth's exclusive and extensive reliance on ``limited'' en banc 
hearings to be a direct function of the size, geography, and 
extraordinary number of judgeships of the court.
    The Committee notes that commentators have observed that 
full en banc hearings can be extraordinarily useful in serving 
a court's development of coherent, consistent, and predictable 
case law, in promoting familiarity and collegiality among 
colleagues, and in eliminating intra-circuit conflicts. The 
Committee notes the fact that the Ninth's ``limited'' en banc 
practice has resulted in denying appellants the opportunity to 
have all circuit judges in regular active service participate 
in an en banc hearing. The Committee recognizes that the 
Ninth's practice is more convenient for the Chief Judge and the 
limited number of judges selected to participate but the 
Committee, nevertheless, urges the Ninth Circuit to reconsider 
this practice and to instead adopt the normal en banc process 
utilized in all other circuits. The goals of an appellate court 
must include the provision of well-reasoned, predictable, 
timely, and uniform decisions. Towards this end, the Committee 
notes another benefit of a re-aligned Ninth will be to 
facilitate the practice of pre-circulating opinions, a practice 
common to the Supreme Court and the other circuit Courts of 
Appeals. This could prevent intra-circuit conflicts and foster 
greater awareness of the body of law created by a circuit.

             EXTRAORDINARY HISTORY OF CONGRESSIONAL REVIEW 
                             OF REALIGNMENT

    Even before the passage of the Evarts Act, Congress was 
informed that the enormous size of the proposed Ninth Circuit 
would create inefficiencies, delays, and administrative 
burdens. In 1890, Frank M. Stone, a San Francisco attorney, 
wrote to Senator George F. Edmunds asking the Senate to give 
further thought to the massive geographical jurisdiction of the 
proposed Ninth. Presciently, he wrote that such a large circuit 
``would be more than any one such court of appeals--could 
possibly attend to without the business running behind, and the 
calendar becoming clogged.''
    Forewarned, Congress nevertheless created the Ninth largely 
along the continental boundaries that exist today. In 1937, 
Ninth Circuit Judge William Denman testified before the Senate 
on the need to add two additional judges to the court in order 
to process the number of appeals and clear the court's backlog. 
He stated, ``[w]e need these two judges now,'' but acknowledged 
to Congress that, ``you will have to divide the circuit and 
have still more judges'' later, adding, ``it is inevitable that 
the northern part of the circuit will eventually be separated 
from the southern part.''
    David C. Frederick, the author of Rugged Justice, a history 
of the Ninth's first half century, describes the situation in 
familiar terms, ``the Ninth Circuit's geographical size 
suggested two competing options: one, to increase the number of 
judges on the court; the other, to divide the circuit, as 
Congress had done with the Eighth. . . . The predominant issue 
. . . was whether administrative need justified division. 
Denman did not think so. In 1937, when the threat of division 
was low, he estimated the number of appeals . . . [to not be] 
significant enough to warrant a split.''
    By 1941, Senator Bone and Representative Magnuson from 
Washington introduced legislation in each chamber to divide the 
circuit into two, creating a new Eleventh Circuit that would 
have contained Alaska, Idaho, Montana, Oregon, and Washington. 
A furious debate was ignited but Congress chose not to act 
after the Ninth Circuit adopted a new operating rule and issued 
a well-timed announcement that they would increase sittings in 
Seattle and Portland. Despite his earlier pronouncements about 
the inevitability of a split, Judge Denman orchestrated the 
opposition among California-based Ninth Circuit judges and 
successfully defeated the proposal.
    The next serious attempt to deal with streamlining the 
Ninth Circuit came in 1973 when Congress created the so-called 
``Hruska'' Commission to study circuit realignment and the 
appellate courts' internal operating procedures. The Hruska 
Commission filed a report in 1973 that recommended a split of 
both the Fifth and the Ninth Circuits but Congress did not act 
for 7 years. In 1978, it passed an omnibus judgeship bill that 
authorized the use of divisions for certain administrative 
tasks as well as limited en banc functions, along with new 
judgeships for the Fifth and Ninth. Judges from the Fifth, 
however, chose to preserve the rights of appellants to seek a 
full court en banc review and determined it was better to 
realign than to insist on a continued expansion of the size of 
the court.
    In 1989, Senator Slade Gorton of Washington and seven other 
Senators introduced legislation to create a new Twelfth Circuit 
composed of Alaska, Hawaii, Idaho, Montana, Oregon, Washington, 
Guam, and the Northern Mariana Islands. Similar proposals were 
made in succeeding Congresses.
    Responding to ongoing interest in the subject, the 105th 
Congress created the Commission on Structural Alternatives for 
the Federal Courts of Appeals. The statute directed the 
Commission to study the present circuit configuration and the 
structure and alignment of the courts of appeals, with 
particular reference to the Ninth.
    In its report issued on December 18, 1988, the Commission 
proposed that the Ninth be organized into three regionally-
based adjudicative divisions which would hear and decide all 
appeals from the district courts. The Committee's Subcommittee 
on Courts and Intellectual Property conducted a hearing on the 
Commission's report during the 106th Congress. Witnesses and 
other interested parties roundly criticized the findings 
because they maintained an implementation of intra-circuit 
divisions would lead to the abandonment of circuit-wide stare 
decisis and ultimately to the creation of more intra-circuit 
conflicts.
    Notably, five Justices of the U.S. Supreme Court, including 
then Chief Justice Rehnquist, wrote the chair of the White 
Commission to offer their suggestions. According to the final 
report, ``[o]f the four who commented on the Ninth Circuit, all 
were of the opinion that it is time for a change. In general, 
the Justices expressed concern about the ability of judges . . 
. to keep abreast of the court's jurisprudence and about the 
risks of intra-circuit conflicts in a court with an output as 
large as that court's. Some expressed concern about the 
adequacy of the Ninth Circuit's en banc process to resolve 
intra-circuit conflicts.'' Chief Justice Rehnquist wrote 
favorably of the Commission's ``division'' proposal but added 
that he ``share[d] many of the concerns expressed by my 
colleagues [Justices O'Connor, Kennedy, Scalia, and Stevens] on 
the Court who previously corresponded with the Commission and 
advocated that some change in the structure of the Court of 
Appeals for the Ninth Circuit is needed.''
    In addition to the two independent commissions that have 
studied and provided to Congress their recommendations, which 
were to re-organize the Ninth Circuit structurally to improve 
the circuit's ability to render quality decisions and to 
quickly and efficiently dispose of cases, the Committee has 
identified no fewer than 23 hearings that have been conducted 
in Congress since 1983 and at least 16 bills that have been 
introduced since the 1973.
    The Committee finds no basis for any assertion that there 
has been inadequate process devoted to this serious public 
policy matter by Congress nor can the Committee support any 
implication that the voluminous record, which has been 
developed over decades ought to be disregarded so the existing 
Ninth Circuit may enjoy another 2 years of unchecked growth.
    Delays in adjudicating cases may be more understandable to 
litigants if the quality of final decisions were enhanced. 
Unfortunately, there is ample evidence that something is 
systemically amiss with Ninth Circuit decision-making. The 
Committee notes it is statistically incorrect to equate the 
reversal rate of the Ninth, which typically has a high number 
of cases granted certiorari by the Supreme Court, with that of 
a smaller circuit, such as the Eleventh, which may average only 
one or two cases before the Court in a given term.
    Two other phenomena are of more serious concern than the 
rate of reversals: the large number of Ninth Circuit cases that 
the Supreme Court feels consistently obliged to grant 
discretionary review; and the extraordinary number of summary 
reversals and unanimous reversals of Ninth decisions. 
Illustrative of this is the fact that during one recent 5-year 
term, the Supreme Court heard nearly twice as many cases from 
the Ninth as the next ``nearest'' circuit, the Sixth.
    The Committee notes that the new Twelfth Circuit will have 
the ability to adopt the precedents that currently exist in the 
present Ninth and expects little confusion as to what the 
controlling precedents will be in the new circuit.
    The Committee notes that there may be confusion about the 
resources that are currently authorized to the states that 
would be in the new Ninth Circuit and those that will be made 
available under H.R. 4093. According to the Administrative 
Office of the Courts, the jurisdictions that will be in the new 
Ninth account for 72 percent of the caseload and are currently 
authorized 15 active service judgeships or 54 percent of 
judicial resources in the existing Ninth. When fully 
implemented, the new Ninth will have 22 such judgeships and its 
relative share of judicial resources will rise to 63 percent. 
To accommodate the caseload demands in California, H.R. 4093 
directs 100 percent of the seven new judgeships to that state. 
Again, it is worth noting that California will receive seven 
new judgeships under H.R. 4093. This number exceeds the number 
of new judgeships allotted to the rest of the Nation.
    The Committee is committed to securing all reasonable and 
necessary appropriations to fully implement H.R. 4093. Towards 
that end, the Committee included in the reported measure the 
appropriations language requested by the Administrative Office 
of the Courts. The Committee also prepared for the realignment 
and new judgeships in its submission to the Budget Committee.
    The Committee understands there to be a number of vacant 
and underutilized court facilities that may be used to assist 
in the operations of the new Twelfth Circuit. The Committee 
strongly encourages the efficient use of such facilities. While 
the Committee is always conscious of the necessity to maximize 
budget savings, the Committee considers increasing the quality 
of the Federal court system and improving the public's access 
to justice to be benefits that are of equal or more importance.
    The Committee notes that some may have concern that the new 
Ninth will still have a large caseload. Discussing a different 
realignment, Professor Arthur Hellman testified before the 
Subcommittee on Courts, the Internet and Intellectual Property 
in the 108th Congress that he believed that if a realignment 
was otherwise acceptable that, ``the fact that the new Ninth 
Circuit would still be a very large circuit is not I think a 
reason for not doing it.''
    The Committee notes that H.R. 4093 provides authority to 
the Chief Judges of the realigned circuits to temporarily 
assign, upon request, and consistent with the public interest, 
a judge or judges to the other circuit.
    The creation of more judgeships in the absence of necessary 
reform will not improve the administration of justice in the 
United States. Circuit Courts of Appeals must be organized in a 
manner to promote administrative efficiencies and with an eye 
towards distributing judgeships to achieve structural coherence 
within each circuit. The realigned Ninth and Twelfth Circuits 
will result in greater proximity and access by litigants, 
increased productivity, reduced travel expenses for judges and 
the public, enhanced collegiality among judges, and more 
consistency and coherence in the development of circuit-wide 
case law.
    The Committee notes the current Ninth Circuit far surpasses 
the size of the pre-1980 Fifth Circuit that Congress re-aligned 
into the present Fifth and Eleventh Circuits. In fact, the 
Ninth's 2004 population of 58.3 million equals more than 96 
percent of the 60.6 million people that reside in the present 
Fifth and Eleventh Circuits combined.
    The Committee considers the question before Congress to be 
not whether the Ninth Circuit provides an adequate or minimally 
acceptable level of judicial process but whether justice may be 
better served by re-aligning the circuit into two or more 
circuits. There are limits to how large a circuit court ought 
to grow. The Committee is convinced the only feasible long-term 
solution is for the Ninth to be re-structured rather than to 
grow inexorably.
    Finally, the Committee notes again that it is the province 
of the Congress to provide for the organization of the inferior 
courts. Recognizing this, the Judicial Conference Committee on 
Court Administration and Case Management recommended in 
September 2005 that the ``Conference not take a position either 
endorsing or opposing legislation providing for the division of 
the Ninth Circuit. The committee added, [t]hese--decisions are 
rightly the province of the legislative and executive 
branches.''

                                Hearings

    The Committee on the Judiciary held no hearings on H.R. 
4093.

                        Committee Consideration

    On October 27, 2005, the Committee met in open session and 
ordered favorably reported the bill H.R. 4093 with an amendment 
to the House by a recorded vote of 22 to 12, a quorum being 
present.

                         Vote of the Committee

    In compliance with clause 3(b) of Rule XIII of the Rules of 
the House of Representatives, the Committee sets forth the 
following rollcall votes that occurred during the Committee's 
consideration of H.R. 4093:
    1. The Committee voted 14 ayes to 21 nays not to adopt an 
amendment offered by Rep. Berman that would have struck Title 
III from H.R. 4093.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................                              X
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Chabot......................................................                              X
Mr. Lungren.....................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................
Mr. Inglis......................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................                              X
Mr. Flake.......................................................                              X
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Feeney......................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Conyers.....................................................              X
Mr. Berman......................................................              X
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................              X
Mr. Meehan......................................................              X
Mr. Delahunt....................................................              X
Mr. Wexler......................................................
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Mr. Van Hollen..................................................              X
Ms. Wasserman Schultz...........................................              X
Mr. Sensenbrenner, Chairman.....................................
                                                                 -----------------------------------------------
    Total.......................................................             14              21
----------------------------------------------------------------------------------------------------------------

    2. Final Passage. The motion to report the bill, H.R. 4093, 
favorably as amended to the House was agreed to by a rollcall 
vote of 22 yeas to 12 nays.

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................              X
Mr. Coble.......................................................              X
Mr. Smith (Texas)...............................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Chabot......................................................              X
Mr. Lungren.....................................................              X
Mr. Jenkins.....................................................              X
Mr. Cannon......................................................              X
Mr. Bachus......................................................              X
Mr. Inglis......................................................              X
Mr. Hostettler..................................................              X
Mr. Green.......................................................              X
Mr. Keller......................................................              X
Mr. Issa........................................................              X
Mr. Flake.......................................................              X
Mr. Pence.......................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Feeney......................................................              X
Mr. Franks......................................................              X
Mr. Gohmert.....................................................              X
Mr. Conyers.....................................................                              X
Mr. Berman......................................................                              X
Mr. Boucher.....................................................
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................                              X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Weiner......................................................                              X
Mr. Schiff......................................................                              X
Ms. Sanchez.....................................................                              X
Mr. Van Hollen..................................................                              X
Ms. Wasserman Schultz...........................................                              X
Mr. Sensenbrenner, Chairman.....................................
                                                                 -----------------------------------------------
    Total.......................................................             22              12
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of Rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of Rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of Rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to H.R. 4093, the following estimate and comparison 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, November 21, 2005.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 4093, the 
``Federal Judgeship and Administrative Efficiency Act of 
2005.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Gregory 
Waring, who can be reached at 226-2860.
            Sincerely,
                                       Douglas Holtz-Eakin.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 4093--Federal Judgeship and Administrative Efficiency Act of 2005.

                                SUMMARY

    H.R. 4093 would authorize 93 new permanent and temporary 
Federal judgeships and would extend the authority for specific 
judgeships in various circuit, district, and bankruptcy courts. 
CBO estimates that the mandatory pay and benefits for those 
positions would increase direct spending by $72 million over 
the next five years and $157 million over the 2006-2015 period.
    In addition, CBO estimates that implementing the bill would 
cost about $400 million over the 2006-2010 period, primarily to 
pay for support of the additional judgeships authorized in the 
bill and to create a new, Twelfth Judicial Circuit. That 
estimate does not include the cost of a headquarters facility 
for the new Twelfth Judicial Circuit. Options for the new 
headquarters facility include constructing a new building or 
renovating an existing building. We estimate such costs could 
range from about $20 million to over $80 million over the 2006-
2010 period, subject to appropriations of the necessary 
amounts.
    The legislation contains no intergovernmental mandates as 
defined in the Unfunded Mandates Reform Act (UMRA) and would 
impose no cost on State, local, or tribal governments.

                            MAJOR PROVISIONS

    H.R. 4093 would:

         Authorize nine permanent and three temporary 
        circuit judgeships;

         Authorize 44 permanent and 12 temporary 
        district judgeships;

         Convert or extend four temporary district 
        judgeships that are expiring;

         Convert the district court in the Virgin 
        Islands to an article III court;

         Authorize 17 permanent and eight temporary 
        bankruptcy judgeships;

         Convert several temporary bankruptcy 
        judgeships to permanent status;

         Modify the jurisdiction of the current Ninth 
        Judicial Circuit to include California, Guam, Hawaii, 
        and Northern Mariana Islands; and

         Create a Twelfth Judicial Circuit to have 
        jurisdiction over the States of Alaska, Arizona, Idaho, 
        Montana, Nevada, Oregon, and Washington.

                ESTIMATED COST TO THE FEDERAL GOVERNMENT

    The estimated budgetary impact of the legislation is shown 
in the following table. The effects of this legislation fall 
within budget function 750 (administration of justice).

                           BASIS OF ESTIMATE

    For this estimate CBO assumes the legislation will be 
enacted in December 2005, and that the necessary amounts to 
implement the bill will be appropriated for each year.
Spending Subject to Appropriation
    The 93 judgeships authorized in the legislation would, 
require administrative support, and office space. Based on 
information from the Administrative Office of the United States 
Courts (AOUSC), CBO expects that discretionary expenditures for 
support costs associated with each judge would amount to 
$560,000 a year (in 2006 dollars). In addition, each judge 
would need equipment and furniture. CBO estimates that the 
administrative expenses of the additional judgeships in the 
legislation would cost $9 million in fiscal year 2006 and 
nearly $270 million over the 2006-2010 period.

                 By Fiscal Year, in Millions of Dollars
------------------------------------------------------------------------
                                        2006   2007   2008   2009   2019
------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION\1\
Judiciary Support Costs
  Estimated Authorization Level           17     70     60     62     63
  Estimated Outlays                        9     72     61     62     63

U.S. Marshals Service Support
  Estimated Authorization Level           21     22     22     23     24
  Estimated Outlays                       10     30     22     23     23

Support for New Twelfth Judicial
 Circuit
  Estimated Authorization Level           13      4      4      4      4
  Estimated Outlays                        6     10      4      4      4

Total Discretionary Changes
  Estimated Authorization Level           51     96     86     89     91
  Estimated Outlays                       25    112     87     89     91
CHANGES IN DIRECT SPENDING
Additional Judgeships
  Estimated Budget Authority               4     17     17     17     17
  Estimated Outlays                        4     17     17     17     17
------------------------------------------------------------------------
Note: Components may not sum to totals because of rounding.
1. Excludes costs of either renovating existing office space or
  constructing new space for the headquarters of the New Twelfth
  Judicial Circuit.

    The additional District judgeships in the bill would also 
require staffing from the U.S. Marshals Service for court 
security and prisoner transportation. Based on information from 
the U.S. Marshals Service, CBO estimates that under the 
legislation the agency would provide 180 deputy marshals, 45 
support staff, and an additional security inspector. CBO 
estimates the additional personnel would cost $10 million in 
fiscal year 2006 and about $110 million over the 2006-2010 
period.
    The legislation would redistribute the States under the 
jurisdiction of the Ninth Judicial Circuit among a modified 
Ninth Circuit and a new Twelfth Circuit. Based on information 
from the AOUSC, the discretionary expenditures associated with 
the new Twelfth Circuit would include severance pay for current 
staff unable to relocate, relocation expenses for some current 
staff and equipment, and additional staff and equipment that 
are necessary for responsibilities of each Judicial Circuit. 
CBO estimates that such additional staff and support for the 
new Twelfth Circuit would cost $6 million in fiscal year 2006 
and $28 million over the 2006-2010 period.
    CBO cannot estimate the cost of new office space for the 
new Twelfth Judicial Circuit, because the legislation does not 
specify where the new court would be located. According to the 
AOUSC, two possible locations would involve renovating and 
using an existing facility in Seattle, Washington, or 
constructing a new facility in Phoenix, Arizona. Depending on 
the location of the headquarters, and subject to appropriation 
of the necessary amounts, CBO estimates that the costs could 
range from about $20 million to over $80 million over the 2006-
2010 period.
Direct Spending
    By adding additional judgeships and extending certain 
judgeships, CBO estimates that enacting H.R. 4093 would 
increase direct spending by $4 million in 2006, and $17 million 
a year over the 2007-2015 period. Spending would total $157 
million over the 2006-2015 period.
    The legislation would authorize 12 new circuit judgeships, 
56 new district judgeships, and 25 new Bankruptcy judgeships. 
Those figures include both permanent and temporary judgeships. 
Based on information from AOUSC about the cost of benefits for 
judges, and using the current law salaries of judges, CBO 
estimates that the mandatory costs of those judgeships would be 
$72 million over the 2006-2010 period and $157 million over the 
2006-2015 period. That estimate does not include any cost for a 
provision that would convert 17 bankruptcy judgeships from 
temporary to permanent status. The Bankruptcy Abuse Prevention 
and Consumer Protection Act of 2005 (Public Law 109-8) created 
those temporary judgeships with a term through 2015, thus 
converting them to permanent status would not affect Federal 
costs over the next 10 years.

              INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT

    This legislation contains no intergovernmental or private-
sector mandates as defined in UMRA and would not affect the 
budgets of State, local, or tribal governments.

                         PREVIOUS CBO ESTIMATE

    On October 28, 2005, CBO transmitted a cost estimate for 
the Reconciliation Recommendations of the House Committee on 
the Judiciary, as approved by the committee on October 27, 
2005. Our cost estimates are identical with respect to the 
provisions that pertain to judgeships, the Twelfth Judicial 
Circuit, and the support of judges.

                         ESTIMATE PREPARED BY:

Federal Costs: Gregory Waring (226-2860)
Impact on State, Local, and Tribal Governments: Melissa Merrell 
    (225-3220)
Impact on the Private Sector: Paige Piper/Bach (226-2940)

                         ESTIMATE APPROVED BY:

Peter H. Fontaine
Deputy Assistant Director for Budget Analysis

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
Rule XIII of the Rules of the House of Representatives, H.R. 
4093 will authorize additional circuit, district, and 
bankruptcy judgeships and realign the current Ninth Circuit 
Court of Appeals by creating a new Ninth Circuit and a new 
Twelfth Circuit.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in art. I, Sec. 8 of the Constitution.

               Section-by-Section Analysis and Discussion

    The following discussion describes the bill as reported by 
the Committee.
Sec. 1. Short title.
    Section 1 sets forth the short title of the bill as the 
``Federal Judgeship and Administrative Efficiency Act of 
2005.''
Sec. 2. Table of Contents
    Section 2 sets forth the table of contents.

                TITLE I--CIRCUIT AND DISTRICT JUDGESHIPS

Sec. 101. Short title.
    Section 101 sets forth the short title of Title I as the 
``Federal Judgeship Act of 2005.''
Sec. 102. Circuit judges for the circuit courts of appeals.
    Section 102 provides for the creation of nine permanent 
judgeships and three temporary judgeships for the United States 
Courts of Appeals. The creation of these judgeships reflects 
the recommendations of the Judicial Conference of the United 
States, which conducts a biennial review of the judgeship needs 
of all U.S. Courts of Appeals to determine if any of the courts 
require additional judges to appropriately administer civil and 
criminal justice in the Federal court system. This title 
reflects the recommendations presented to the Congress in March 
2005.
    Subsection 102(a) creates nine additional permanent 
judgeships for the U.S. Courts of Appeals. The allocation of 
these positions is as follows: one for the First Circuit Court 
of Appeals; two for the Second Circuit Court of Appeals; one 
for the Sixth Circuit Court of Appeals; and five for the Ninth 
Circuit Court of Appeals.
    Subsection 102(b) creates three additional temporary 
judgeships for the U.S. Courts of Appeals. The allocation of 
these positions is as follows: one for the Eighth Circuit Court 
of Appeals; and two for the Ninth Circuit Court of Appeals.
    Such additional judgeships are ``temporary'' in that, 
beginning 10 years after the temporary judgeship or judgeships 
on a given court of appeals are initially filled, a number of 
vacancies occurring on the court, equal to the number of 
positions authorized under this subsection, will not be filled 
so that the court will fall back to the number of authorized 
judgeships specified for that circuit in 28 U.S.C. Sec. 44.
    Subsection 102(c) amends the table contained in 28 U.S.C. 
Sec. 44(a) to reflect the additional permanent appellate 
judgeships created by section 102(a).
Sec. 103. District judges for the district courts.
    Section 103 provides for the creation of forty-four 
permanent judgeships and twelve (12) temporary judgeships for 
the United States District Courts. The creation of these 
judgeships reflects the recommendations of the Judicial 
Conference of the United States, which conducts a biennial 
review of the judgeship needs of all United States District 
Courts to determine if any of the courts require additional 
judges to appropriately administer civil and criminal justice 
in the Federal court system. This title reflects the 
recommendations presented to the Congress in March 2005.
    Subsection 103(a) creates 44 additional permanent 
judgeships for the U.S. District Courts. The allocation of 
these positions is as follows: one for the Northern District of 
Alabama; four for the District of Arizona; four for the Central 
District of California; four for the Eastern District of 
California; three for the Northern District of California; one 
for the Southern District of California; one for the District 
of Colorado; four for the Middle District of Florida; three for 
the Southern District of Florida; one for the District of 
Idaho; one for the Northern District of Illinois; one for the 
Southern District of Indiana; one for the Western District of 
Missouri; one for the District of Nebraska; one for the 
District of Nevada; one for the District of New Mexico; three 
for the Eastern District of New York; one for the Western 
District of New York; one for the District of Oregon; one for 
the District of South Carolina; three for the Southern District 
of Texas; two for the Eastern District of Virginia; and one for 
the Western District of Washington.
    Subsection 103(b) creates 12 additional temporary 
judgeships for the U.S. District Courts. The allocation is as 
follows: one for the Middle District of Alabama; one for the 
District of Arizona; one for the Northern District of 
California; one for the District of Colorado; one for the 
Middle District of Florida; one for the Northern District of 
Iowa; one for the District of Minnesota; one for the District 
of New Jersey; one for the District of New Mexico; one for the 
Southern District of Ohio; one for the District of Oregon; and 
one for the District of Utah.
    Such additional judgeships are ``temporary'' in that, 
beginning 10 years after the temporary judgeship or judgeships 
on a given district court are initially filled, a number of 
vacancies occurring on the court, equal to the number of 
positions authorized under this subsection, will not be filled 
so that the court will fall back to the number of authorized 
judgeships specified for that district in 28 U.S.C. Sec. 133.
    Subsection 103(c)(1) converts to permanent status the 
following three temporary judgeships created by Pub. L. No. 
101-650, the Judicial Improvements Act of 1990: one in the 
District of Hawaii; one in the District of Kansas; and one in 
the Eastern District of Missouri.
    Subsection 103(c)(2) extends the existing judgeship for the 
Northern District of Ohio authorized by Pub. Law No. 101-650. 
The first vacancy in the office of district judge in this 
district occurring 20 years or more after the confirmation date 
of the judge named to fill the temporary judgeship created by 
Section 203(c) of Public Law 101-650 shall not be filled.
    Subsection 103(d) amends the table contained in 28 U.S.C. 
Sec. 133 to reflect the additional permanent district 
judgeships created by sections 103(a) and 103(c)(1).
Sec. 104. Establishment of article III court in the Virgin Islands.
    Section 104 establishes an Art. III court in the United 
States Virgin Islands, in place of the current territorial 
court.
    Subsection 104(a) adds 28 U.S.C. Sec. 126A to include the 
Virgin Islands among the United States judicial districts.
    Subsection 104(b) amends 28 U.S.C. Sec. 133(a), which 
authorizes the number of judges in each district. The number of 
judges is maintained at its current level of two in the Virgin 
Islands.
    Subsection 104(c) amends 28 U.S.C. Sec. 152(a) to make 
clear that bankruptcy judges for the Virgin Islands will be 
appointed in the same manner as bankruptcy judges in other 
United States district courts. At this time, the bankruptcy 
caseload is not sufficient to justify creating bankruptcy 
judgeships in the Virgin Islands. The district court can handle 
the caseload with its other judicial resources.
    Subsection 104(d) amends 28 U.S.C. Sec. 333 by eliminating 
the references to judges of the territorial District Court of 
the Virgin Islands with respect to attendance at circuit 
judicial conferences. These references are unnecessary since 
the new Art. III court will be a ``district court'' as defined 
in 28 U.S.C. Sec. 451.
    Subsection 104(e) amends 28 U.S.C. Sec. 373 by deleting 
references to the territorial District Court of the Virgin 
Islands in the provisions governing the territorial judges' 
retirement system. Judges of the new Art. III court will be 
included in the Art. III judges' retirement system provided in 
sections 371 and 372 of title 28.
    Subsection 104(f) amends section 28 U.S.C. Sec. 376, 
concerning annuities for judges' survivors, by deleting the 
references to judges of the territorial District Court of the 
Virgin Islands. Judges of the new Art. III court will be 
covered by section 376 by virtue of their positions as ``judges 
of the United States'' as defined in 28 U.S.C. Sec. 451.
    Subsection 104(g) amends section 28 U.S.C. Sec. 526(a)(2) 
by eliminating the reference to the territorial District Court 
of the Virgin Islands in the context of the investigating 
authority of the Attorney General. This reference is 
unnecessary since the new Art. III court will be covered by 
that provision as a ``court of the United States'' as defined 
in 28 U.S.C. Sec. 451.
    Subsection 104(h) amends the definition of ``courts'' in 28 
U.S.C. Sec. 610 to delete the reference to the territorial 
District Court of the Virgin Islands since the new Art. III 
court will be a ``district court'' as defined in 28 U.S.C. 
Sec. 451. An obsolete reference to the Canal Zone is also 
deleted.
    Subsection 104(i) amends 28 U.S.C. Sec. 631(a), authorizing 
appointment of United States magistrate judges by the 
territorial District Court of the Virgin Islands, since the new 
Art. III court will be a ``district court'' as defined in 28 
U.S.C. Sec. 451.
    Subsection 104(j) amends 28 U.S.C. Sec. 753(a), regarding 
court reporters, to delete the reference to the territorial 
District Court of the Virgin Islands since the new Art. III 
court will be a ``district court'' as defined in 28 U.S.C. 
Sec. 451. An obsolete reference to the Canal Zone is also 
deleted.
    Subsection 104(k) amends 28 U.S.C. Sec. 1291, regarding 
final decisions of district courts, to delete the reference to 
the territorial District Court of the Virgin Islands since the 
new Art. III court will be a ``district court'' as defined in 
28 U.S.C. Sec. 451. An obsolete reference to the Canal Zone is 
also deleted.
    Subsection 104(l) amends subsections (a) and (d)(4) of 28 
U.S.C. Sec. 1292, regarding interlocutory decisions, by 
deleting the references to the territorial District Court of 
the Virgin Islands since the new Art. III court will be a 
``district court'' as defined in 28 U.S.C. Sec. 451. An 
obsolete reference to the Canal Zone is also deleted from 
section 1292(a).
    Subsection 104(m) amends 28 U.S.C. Sec. 1295(a), regarding 
the jurisdiction of the United States Court of Appeals for the 
Federal Circuit, by deleting the reference to the territorial 
District Court of the Virgin Islands since the new Art. III 
court will be a ``district court'' as defined in 28 U.S.C. 
Sec. 451. Obsolete references to the Canal Zone are also 
deleted.
    Subsection 104(n) amends 28 U.S.C. Sec. 1346(b), regarding 
the United States as defendant, by deleting the reference to 
the territorial District Court of the Virgin Islands since the 
new Art. III court will be a ``district court'' as defined in 
28 U.S.C. Sec. 451. An obsolete reference to the Canal Zone is 
also deleted.
    Subsection 104(o) amends 18 U.S.C. Sec. 3006A(j), the 
Criminal Justice Act, to delete the reference to the 
territorial District Court of the Virgin Islands since the new 
Art. III court will be a ``district court of the United States 
created by chapter 5 of title 28,'' within the meaning of 
section 3006A(j).
    Subsection 104(p) ensures that the amendments made by this 
section do not affect the tenure in office of an incumbent 
judge of the District Court of the Virgin Islands, and do not 
affect the rights under the territorial judges' retirement 
system (28 U.S.C. Sec. 373) and the Judicial Survivors' 
Annuities System (28 U.S.C. Sec. 376) of any former judge who 
has retired, or will retire, before the effective date of this 
section. It also guarantees that judges who have accrued 
service under the territorial judges' retirement system will 
receive credit for the time served under the Art. III judges' 
retirement systems (28 U.S.C. Sec. Sec. 371, 372) if they are 
reappointed as Art. III judges of their courts.
    Subsection 104(q) makes conforming amendments to the 
judicial provisions of the Revised Organic Act of the Virgin 
Islands in order to reflect the creation of an Art. III court 
and the abolishment of the territorial District Court for the 
Virgin Islands. The territorial court's existing appellate 
jurisdiction over local court decisions is transferred to the 
Art. III court until a local appellate court is established by 
the Virgin Islands legislature. This legislation also retains 
the existing jurisdiction of the United States Court of Appeals 
for the Third Circuit over final decisions of the highest local 
court for fifteen years following establishment of a local 
appellate court.
    Subsection 104(r) provides that any existing reference to 
the ``District Court of the Virgin Islands'' will be deemed to 
refer to the new Art. III court.
    Subsection 104(s) provides that the amendments made by 
section 104 of this Act will take effect 90 days after the date 
of enactment of this Act and that cases pending on the 
effective date may be pursued to final determination in the 
Art. III court.
Sec. 105. Effective date.
    The section provides that the provisions of Title I, with 
the exception of section 104, will take effect on the date of 
enactment of the Act.

                    TITLE II--BANKRUPTCY JUDGESHIPS

Sec. 201. Short title.
    Section 201 sets forth the short title of Title II as the 
``Enhanced Bankruptcy Judgeship Act of 2005.''
Sec. 202. Authorization for additional bankruptcy judgeships.
    Section 202 would authorize the creation of sixteen 
additional permanent bankruptcy judgeships in 12 judicial 
districts. This section reflects the recommendations of the 
Judicial Conference of the United States, which has the duty 
under 28 U.S.C. Sec. 152(b)(2) to make recommendations to 
Congress regarding the authorization of additional bankruptcy 
judgeships. The most recent Conference recommendation for 47 
additional bankruptcy judgeships was transmitted to Congress in 
February 2005.
    Section 1223 of Pub. L. No. 109-8, enacted in April 2005, 
authorized only 28 additional bankruptcy judgeships based upon 
a superceded Conference recommendation, leaving authorization 
of 24 of the additional judgeships recommended in 2005 pending. 
The 16 permanent judgeships that this section would authorize 
are justified by those districts' workload, and continue to be 
necessary for the districts involved to manage their caseloads. 
The allocation of these new judgeships is as follows: three for 
the eastern district of Michigan; two for the middle district 
of Florida; two for the northern district of Georgia; one for 
the southern district of New York; one for the western district 
of Pennsylvania; one for the district of Maryland; one for the 
eastern district of Texas; one for the eastern district of 
Kentucky; one for the western district of Tennessee; one for 
the eastern district of Arkansas; one for the western districts 
of Arkansas; one for the district of Utah, and one for the 
southern district of Georgia.
    The Judicial Conference's 2005 recommendation comprised a 
combination of temporary and permanent judgeships based upon 
each district's caseload and circumstances. For two districts, 
the Conference recommended a combination of judgeships. The 
Conference recommended that the middle district of Florida and 
the district of Maryland receive two permanent and two 
temporary judgeships each. Although the district of Maryland 
received three temporary judgeships under section 1223 of Pub. 
L. No. 109-8, the additional permanent judgeship that would be 
authorized by section 2 of this bill is recommended by the 
Judicial Conference of the United States, and continues to be 
necessary for the administration of the bankruptcy system in 
the district of Maryland. Combined with the conversion of one 
temporary judgeship in the district of Maryland pursuant to 
section 4 of this bill, the district of Maryland would be 
authorized 2 permanent and 2 temporary additional bankruptcy 
judgeships, as recommended by the Conference in 2005.
Sec. 203. Temporary bankruptcy judgeships.
    Section 203 would authorize the creation of eight 
additional temporary bankruptcy judgeships in seven judicial 
districts, as follows: two for the middle district of Florida; 
one for the western district of North Carolina; one for the 
northern district of Mississippi; one for the southern district 
of Ohio; one for the northern district of Indiana; one for the 
district of Nevada; and one for the northern district of 
Florida.
    These additional temporary bankruptcy judgeships were not 
enacted as part of section 1223 of Pub. L. No. 109-8 because 
that section of the recently enacted bankruptcy act was based 
upon a superceded Judicial Conference recommendation, and did 
not reflect the Judicial Conference's most recent 
recommendation. These additional judgeships are necessary for 
the administration of the bankruptcy system in the enumerated 
districts.
Sec. 204. Conversion of existing temporary bankruptcy judgeships.
    Subsection 204(a) of this bill would convert the existing 
temporary bankruptcy judgeships in the district of Delaware, 
the district of Puerto Rico, and the southern district of 
Illinois (authorized by Pub. L. No. 102-361, as amended by Pub. 
L. No. 104-317, title III, Sec. 307 (28 U.S.C. Sec. 152 note)) 
to permanent bankruptcy judgeships under 28 U.S.C. 
Sec. 152(a)(2). Conversion of these three temporary bankruptcy 
judgeships was recommended to Congress by the Judicial 
Conference in February 2005. Section 1223 of Pub. L. No. 109-8 
only extends the date after which the next vacancy in the 
district of Puerto Rico and the district of Delaware would not 
be filled. The Judicial Conference's evaluation of these 
districts resulted in the 2005 recommendation that conversion 
of these three temporary judgeships, not mere extension of the 
lapse date, is necessary for these districts to have adequate 
judicial resources both at present and in the future.
    Subsection 204(b) of this bill would convert the existing 
temporary bankruptcy judgeships authorized by section 1223 of 
Pub. L. No. 109-8 to permanent bankruptcy judgeships under 28 
U.S.C. Sec. 152(a)(2), in the following districts: the northern 
district of New York, the southern district of New York, the 
eastern district of Pennsylvania, the district of Delaware, the 
district of New Jersey, the district of Maryland, the eastern 
district of North Carolina, the eastern district of Michigan, 
the western district of Tennessee, and the southern district of 
Georgia.
    In its February 2005 recommendation to Congress, the 
Judicial Conference of the United States specifically 
recommended that these judgeships be created as permanent based 
upon these districts' case filings, workloads, and unique 
circumstances. However, section 1223 of Pub. L. No. 109-8 
created these judgeships as only temporary. This means that at 
any point in time 5 years from the date each of these new 
judgeships is filled, each of these districts will permanently 
lose the new judgeship(s) and will be reduced to the judgeship 
resource levels that have existed since at least 1999. Based on 
the workload and case filings of the districts that are the 
subject of this section of the bill, the Conference 
specifically recommended that these additional judgeships be 
authorized as permanent to continuously provide these districts 
with the necessary judicial resources now and in the future. 
Therefore, this section would convert these judgeships to 
permanent to effect that goal.
Sec. 205. General provisions.
    Section 205(a) would make technical amendments to 28 U.S.C. 
Sec. 152(a)(2), to reflect the additional permanent bankruptcy 
judgeships created by this bill, by both new authorization and 
conversion of temporary judgeships. Section 205(b) provides 
that it is the sense of the Congress that bankruptcy judges in 
the eastern district of California should conduct bankruptcy 
proceedings on a daily basis in Bakersfield, California.
Sec. 206. Effective date.
    Section 206 provides that Title II and the amendments to 
current law contained therein will take effect on the date of 
the enactment of this Act.

                TITLE III--NINTH CIRCUIT REORGANIZATION

Sec. 301. Short title.
    Section 301 sets forth the short title for Title III as the 
``Judicial Administration and Improvements Act of 2005.''
Sec. 302. Definitions.
    Section 302 sets forth the definitions for Title III. For 
the purposes of this title, the term ``Former Ninth Circuit'' 
means the ninth judicial circuit of the United States as it 
exists on the day before the effective date of this title. The 
term ``New Ninth Circuit'' means the ninth judicial circuit as 
established in section 303(2)(A) of this bill, which includes 
California, Guam, Hawaii, and the Northern Mariana Islands. The 
term ``Twelfth Circuit'' means the twelfth judicial circuit as 
established in section 303(2)(B) of the bill, which includes 
Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and 
Washington.
Sec. 303. Number and composition of circuits.
    Section 303 amends the table contained in 28 U.S.C. Sec. 41 
to provide for one additional circuit court of appeals and 
reallocates the jurisdiction of the current Ninth Circuit Court 
of Appeals between the New Ninth Circuit and the newly formed 
Twelfth Circuit Court of Appeals. The Ninth Circuit Court of 
Appeals would consist of California, Guam, Hawaii, and the 
Northern Mariana Islands. The Twelfth Circuit Court of Appeals 
would consist of Alaska, Arizona, Idaho, Montana, Nevada, 
Oregon, and Washington.
Sec. 304. Number of circuit judges.
    Section 304 amends the table contained in 28 U.S.C. 
Sec. 44(a) to reflect the number of circuit court judges for 
the Ninth and Twelfth Circuit Court of Appeals. The New Ninth 
Circuit would have 19 circuit court judges; the Twelfth Circuit 
would have 14 circuit court judges.
Sec. 305. Places of circuit court.
    Section 305 amends 28 U.S.C. Sec. 48(a) to set forth the 
places where the New Ninth Circuit and the Twelfth Circuit will 
hold regular sessions. The New Ninth Circuit will hold regular 
sessions in Honolulu, Hawaii; Pasadena, California; and San 
Francisco, California. The Twelfth Circuit will hold regular 
sessions in Las Vegas, Nevada; Missoula, Montana; Phoenix, 
Arizona; Portland, Oregon; and Seattle, Washington.
Sec. 306. Assignment of circuit judges.
    Section 306 provides that the circuit judges that are in 
regular active service and whose official duty station on the 
day before the effective date of this title in California, 
Guam, Hawaii, or the Northern Mariana Islands will become 
circuit judges of the New Ninth Circuit. Section 306 also 
provides that the circuit judges that are in regular active 
service and whose official duty station on the day before the 
effective date of this title in Alaska, Arizona, Idaho, 
Montana, Nevada, Oregon, or Washington will become circuit 
judges of the Twelfth Circuit.
Sec. 307. Election of assignment by senior judges.
    Section 307 provides that senior judges of the Former Ninth 
Circuit can elect to be assigned to either the New Ninth 
Circuit or the Twelfth Circuit.
Sec. 308. Seniority of judges.
    Section 308 provides that the seniority of the judges of 
the New Ninth Circuit and the Twelfth Circuit shall run from 
the date of commission of the judge in the Former Ninth 
Circuit.
Sec. 309. Application to cases.
    Section 309 provides for the disposition of cases of the 
Former Ninth Circuit after realignment. Cases submitted for 
decision prior to the effective date of this title will proceed 
as if the title had not been enacted, with the exception that a 
petition for a rehearing en banc that is pending on or after 
the effective date of this title will be heard by the circuit 
court of appeal that would have had jurisdiction if this title 
had been in effect at the time of filing the appeal. For cases 
that have not been submitted for decision prior to the 
effective date of this title, the appeal or proceeding, 
together with the original papers, records, and record entries, 
will be transferred to the circuit court of appeal that would 
have had jurisdiction if this title had been in effect at the 
time of the appeal.
Sec. 310. Temporary assignment of circuit judges among circuits.
    Section 310 amends 28 U.S.C. Sec. 291 to allow the Chief 
Judge of either the New Ninth Circuit or the Twelfth Circuit to 
designate and temporarily assign any circuit court judge to the 
other circuit of the Former Ninth Circuit if the chief judge of 
the other circuit requests such assistance and it serves the 
public interest.
Sec. 311. Temporary assignment of district judges among circuits.
    Section 311 amends 28 U.S.C. Sec. 292 to allow the Chief 
Judge of the New Ninth Circuit to designate and assign any 
district court judge to sit on the Twelfth Circuit, or a 
division thereof, if the Chief Judge of the Twelfth Circuit 
requests such assistance and it serves the public interest. The 
section allows the Chief Judge of the New Ninth Circuit to 
designate and temporarily assign a district court judge to hold 
a district court in any district of the Twelfth Circuit if it 
serves the public interest. Section 311 gives identical powers 
to the Chief Judge of the Twelfth Circuit. Section 311 further 
provides that any such designations or assignments shall be 
made in accordance with the rules of the court of appeals or 
district court to which the judge has been designated or 
assigned.
Sec. 312. Administration.
    Section 312 provides that the Former Ninth Circuit can take 
such administrative action as is required to carry out this 
title and amendments thereto. Section 312 provides further that 
the Former Ninth Circuit shall cease to exist for 
administrative purposes 2 years after the date of enactment of 
this Act.
Sec. 313. Effective date.
    Section 313 provides that Title III shall take effect no 
later than December 31, 2006.

               TITLE IV--AUTHORIZATION OF APPROPRIATIONS

Sec. 401. Authorization of appropriations.
    Section 401 authorizes such funds as may be necessary to 
carry out this Act for FY 2006-2009, including such sums as may 
be necessary to provide appropriate space and facilities for 
the judicial positions created by this Act.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

          SECTION 203 OF THE JUDICIAL IMPROVEMENTS ACT OF 1990

SEC. 203. DISTRICT JUDGES FOR THE DISTRICT COURTS.

  (a)  * * *

           *       *       *       *       *       *       *

  (c) Temporary Judgeships.--The President shall appoint, by 
and with the advice and consent of the Senate--
          (1)  * * *

           *       *       *       *       *       *       *

Except with respect to the western district of Michigan, the 
eastern district of Pennsylvania, and the northern district of 
Ohio, the first vacancy in the office of district judge in each 
of the judicial districts named in this subsection, occurring 
10 years or more after the confirmation date of the judge named 
to fill the temporary judgeship created by this subsection, 
shall not be filled. The first vacancy in the office of 
district judge in the western district of Michigan, occurring 
after December 1, 1995, shall not be filled. The first vacancy 
in the office of district judge in the eastern district of 
Pennsylvania, occurring 5 years or more after the confirmation 
date of the judge named to fill the temporary judgeship created 
for such district under this subsection, shall not be filled. 
The first vacancy in the office of district judge in the 
northern district of Ohio occurring [15 years] 20 years or more 
after the confirmation date of the judge named to fill the 
temporary judgeship created under this subsection shall not be 
filled. For districts named in this subsection for which 
multiple judgeships are created by this Act, the last of those 
judgeships filled shall be the judgeships created under this 
section.
                              ----------                              


TITLE 28, UNITED STATES CODE

           *       *       *       *       *       *       *


PART I--ORGANIZATION OF COURTS

           *       *       *       *       *       *       *


CHAPTER 3--COURTS OF APPEALS

           *       *       *       *       *       *       *


Sec. 41. Number and composition of circuits

    The [thirteen] fourteen judicial circuits of the United 
States are constituted as follows:

    Circuits            Composition

  District of ColumbDistrict of Columbia................................
  First.............Maine, Massachusetts, New Hampshire, Puerto Rico, ..
                    Rhode Island.
  Second............Connecticut, New York, Vermont......................
  Third.............Delaware, New Jersey, Pennsylvania, Virgin Islands..
  Fourth............Maryland, North Carolina, South Carolina, Virginia, 
                    West Virginia.
  Fifth.............District of the Canal Zone, Louisiana, Mississippi, 
                    Texas.
  Sixth.............Kentucky, Michigan, Ohio, Tennessee.................
  Seventh...........Illinois, Indiana, Wisconsin........................
  Eighth............Arkansas, Iowa, Minnesota, Missouri, Nebraska, North 
                    Dakota, South Dakota.
  [Ninth............Alaska, Arizona, California, Idaho, Montana, Nevada, 
                    Oregon, Washington, Guam, Hawaii.]
  Ninth.............California, Guam, Hawaii, Northern Mariana Islands..
  Tenth.............Colorado, Kansas, New Mexico, Oklahoma, Utah, ......
                    Wyoming.
  Eleventh..........Alabama, Florida, Georgia...........................
  Twelfth...........Alaska, Arizona, Idaho, Montana, Nevada, Oregon, ...
                    Washington.
  Federal...........All Federal judicial districts....................

           *       *       *       *       *       *       *


Sec. 44. Appointment, tenure, residence and salary of circuit judges

    (a) The President shall appoint, by and with the advice and 
consent of the Senate, circuit judges for the several circuits 
as follows:

[Circuits                                                      Number of
                                                                  Judges

    District of Columbia......................................        12

    First.....................................................         6

    Second....................................................        13

    Third.....................................................        14

    Fourth....................................................        15

    Fifth.....................................................        17

    Sixth.....................................................        16

    Seventh...................................................        11

    Eighth....................................................        11

    Ninth.....................................................        28

    Tenth.....................................................        12

    Eleventh..................................................        12

    Federal...................................................       12]


Circuits                                                       Number of
                                                                  Judges

    District of Columbia......................................        12

    First.....................................................         7

    Second....................................................        15

    Third.....................................................        14

    Fourth....................................................        15

    Fifth.....................................................        17

    Sixth.....................................................        17

    Seventh...................................................        11

    Eighth....................................................        11

    Ninth.....................................................        19

    Tenth.....................................................        12

    Eleventh..................................................        12

    Twelfth...................................................        14

    Federal...................................................       12.


        

           *       *       *       *       *       *       *
Sec. 48. Terms of court

    (a) The courts of appeals shall hold regular sessions at 
the places listed below, and at such other places within the 
respective circuit as each court may designate by rule.
    Circuits            Places
  District of ColumbWashington..........................................
  First.............Boston..............................................
  Second............New York............................................
  Third.............Philadelphia........................................
  Fourth............Richmond, Asheville.................................
  Fifth.............New Orleans, Fort Worth, Jackson....................
  Sixth.............Cincinnati..........................................
  Seventh...........Chicago.............................................
  Eighth............St. Louis, Kansas City, Omaha, St. Paul.............
  [Ninth............San Francisco, Los Angeles, Portland, Seattle.].....
  Ninth.............Honolulu, Pasadena, San Francisco...................
  Tenth.............Denver, Wichita, Oklahoma City......................
  Eleventh..........Atlanta, Jacksonville, Montgomery...................
  Twelfth...........Las Vegas, Missoula, Phoenix, Portland, Seattle.....
  Federal...........District of Columbia, and in any other place listed 
                    above as the court by rule directs.

                    

           *       *       *       *       *       *       *
                       CHAPTER 5--DISTRICT COURTS

Sec.  81.  Alabama.

           *       *       *       *       *       *       *

126A. Virgin Islands.

           *       *       *       *       *       *       *


Sec. 126A. Virgin Islands

    The Virgin Islands constitutes 1 judicial district 
comprising 2 divisions.
          (1) The Saint Croix Division comprises the Island of 
        Saint Croix and adjacent islands and cays.
                  Court for the Saint Croix Division shall be 
                held at Christiansted.
          (2) The Saint Thomas and Saint John Division 
        comprises the islands of Saint Thomas and Saint John 
        and adjacent islands and cays.
                  Court for the Saint Thomas and Saint John 
                Division shall be held at Charlotte-Amalie.

           *       *       *       *       *       *       *


Sec. 133. Appointment and number of district judges

    (a) The President shall appoint, by and with the advice and 
consent of the Senate, district judges for the several judicial 
districts, as follows:

[Districts
                                                                  Judges
Alabama:
    Northern..................................................         7
    Middle....................................................         3
    Southern..................................................         3
Alaska........................................................         3
Arizona.......................................................        12
Arkansas:
    Eastern...................................................         5
    Western...................................................         3
California:
    Northern..................................................        14
    Eastern...................................................         6
    Central...................................................        27
    Southern..................................................        13
Colorado......................................................         7
Connecticut...................................................         8
Delaware......................................................         4
District of Columbia..........................................        15
Florida:
    Northern..................................................         4
    Middle....................................................        15
    Southern..................................................        17
Georgia:
    Northern..................................................        11
    Middle....................................................         4
    Southern..................................................         3
Hawaii........................................................         3
Idaho.........................................................         2
Illinois:
    Northern..................................................        22
    Central...................................................         4
    Southern..................................................         4
Indiana:
    Northern..................................................         5
    Southern..................................................         5
Iowa:
    Northern..................................................         2
    Southern..................................................         3
    Kansas....................................................         5
Kentucky:
    Eastern...................................................         5
    Western...................................................         4
    Eastern and Western.......................................         1
Lousiana:
    Eastern...................................................        12
    Middle....................................................         3
    Western...................................................         7
Maine.........................................................         3
Maryland......................................................        10
Massachusetts.................................................        13
Michigan:
    Eastern...................................................        15
    Western...................................................         4
Minnesota.....................................................         7
Mississippi:
    Northern..................................................         3
    Southern..................................................         6
Missouri:
    Eastern...................................................         6
    Western...................................................         5
    Eastern and Western.......................................         2
Montana.......................................................         3
Nebraska......................................................         3
Nevada........................................................         7
New Hampshire.................................................         3
New Jersey....................................................        17
New Nexico....................................................         6
New York:
    Northern..................................................         5
    Southern..................................................        28
    Eastern...................................................        15
    Western...................................................         4
North Carolina:
    Eastern...................................................         4
    Middle....................................................         4
    Western...................................................         4
North Dakota..................................................         2
Ohio:
    Northern..................................................        11
    Southern..................................................         8
Oklahoma:
    Northern..................................................         3
    Southern..................................................         1
    Western...................................................         6
    Northern, Eastern, and Western............................         1
Oregon........................................................         6
Pennsylvania:
    Eastern...................................................        22
    Middle....................................................         6
    Western...................................................        10
Puerto Rico...................................................         7
Rhode Island..................................................         3
South Carolina................................................        10
South Dakota..................................................         3
Tennessee:
    Eastern...................................................         5
    Middle....................................................         4
    Western...................................................         5
Texas:
    Northern..................................................        12
    Southern..................................................        19
    Eastern...................................................         7
    Western...................................................        13
Utah..........................................................         5
Vermont.......................................................         2
Virginia:
    Eastern...................................................        11
    Western...................................................         4
Washington:
    Eastern...................................................         4
    Western...................................................         7
West Virginia:
    Northern..................................................         3
    Southern..................................................         5
Wisconsin:
    Eastern...................................................         5
    Western...................................................         2
Wyoming.......................................................       3.]

Districts
                                                                  Judges
Alabama:
    Northern..................................................         8
    Middle....................................................         3
    Southern..................................................         3
Alaska........................................................         3
Arizona.......................................................        16
Arkansas:
    Eastern...................................................         5
    Western...................................................         3
California:
    Northern..................................................        17
    Eastern...................................................        10
    Central...................................................        31
    Southern..................................................        14
Colorado......................................................         8
Connecticut...................................................         8
Delaware......................................................         4
District of Columbia..........................................        15
Florida:
    Northern..................................................         4
    Middle....................................................        19
    Southern..................................................        20
Georgia:
    Northern..................................................        11
    Middle....................................................         4
    Southern..................................................         3
Hawaii........................................................         4
Idaho.........................................................         3
Illinois:
    Northern..................................................        23
    Central...................................................         4
    Southern..................................................         4
Indiana:
    Northern..................................................         5
    Southern..................................................         6
Iowa:
    Northern..................................................         2
    Southern..................................................         3
Kansas........................................................         6
Kentucky:
    Eastern...................................................         5
    Western...................................................         4
    Eastern and Western.......................................         1
Louisiana:
    Eastern...................................................        12
    Middle....................................................         3
    Western...................................................         7
Maine.........................................................         3
Maryland......................................................        10
Massachusetts.................................................        13
Michigan:
    Eastern...................................................        15
    Western...................................................         4
Minnesota.....................................................         7
Mississippi:
    Northern..................................................         3
    Southern..................................................         6
Missouri:
    Eastern...................................................         7
    Western...................................................         6
    Eastern and Western.......................................         2
Montana.......................................................         3
Nebraska......................................................         4
Nevada........................................................         8
New Hampshire.................................................         3
New Jersey....................................................        17
New Mexico....................................................         7
New York:
    Northern..................................................         5
    Southern..................................................        28
    Eastern...................................................        18
    Western...................................................         5
North Carolina:
    Eastern...................................................         4
    Middle....................................................         4
    Western...................................................         4
North Dakota..................................................         2
Ohio:
    Northern..................................................        11
    Southern..................................................         8
Oklahoma:
    Northern..................................................         3
    Eastern...................................................         1
    Western...................................................         6
    Northern, Eastern, and Western............................         1
Oregon........................................................         7
Pennsylvania:
    Eastern...................................................        22
    Middle....................................................         6
    Western...................................................        10
Puerto Rico...................................................         7
Rhode Island..................................................         3
South Carolina................................................        11
South Dakota..................................................         3
Tennessee:
    Eastern...................................................         5
    Middle....................................................         4
    Western...................................................         5
Texas:
    Northern..................................................        12
    Southern..................................................        22
    Eastern...................................................         7
    Western...................................................        13
Utah..........................................................         5
Vermont.......................................................         2
Virgin Islands................................................         2
Virginia:
    Eastern...................................................        13
    Western...................................................         4
Washington:
    Eastern...................................................         4
    Western...................................................         8
West Virginia:
    Northern..................................................         3
    Southern..................................................         5
Wisconsin:
    Eastern...................................................         5
    Western...................................................         2
3.ing.......................................................

           *       *       *       *       *       *       *


CHAPTER 6--BANKRUPTCY JUDGES

           *       *       *       *       *       *       *


Sec. 152. Appointment of bankruptcy judges

    (a)(1) * * *
    (2) The bankruptcy judges appointed pursuant to this 
section shall be appointed for the several judicial districts 
as follows:

[Districts
                                                                  Judges
Alabama:
    Northern..................................................         5
    Middle....................................................         2
    Southern..................................................         2
Alaska........................................................         2
Arizona.......................................................         7
Arkansas:
    Eastern and Western.......................................         3
California:
    Northern..................................................         9
    Eastern...................................................         6
    Central...................................................        21
    Southern..................................................         4
Colorado......................................................         5
Connecticut...................................................         3
Delaware......................................................         1
District of Columbia..........................................         1
Florida:
    Northern..................................................         1
    Middle....................................................         8
    Southern..................................................         5
Georgia:
    Northern..................................................         8
    Middle....................................................         3
    Southern..................................................         2
Hawaii........................................................         1
Idaho.........................................................         2
Illinois:
    Northern..................................................        10
    Central...................................................         3
    Southern..................................................         1
Indiana:
    Northern..................................................         3
    Southern..................................................         4
Iowa:
    Northern..................................................         2
    Southern..................................................         2
Kansas........................................................         4
Kentucky:
    Eastern...................................................         2
    Western...................................................         3
Louisiana:
    Eastern...................................................         2
    Middle....................................................         1
    Western...................................................         3
Maine.........................................................         2
Maryland......................................................         4
Massachusetts.................................................         5
Michigan:
    Eastern...................................................         4
    Western...................................................         3
Minnesota.....................................................         4
Mississippi:
    Northern..................................................         1
    Southern..................................................         2
Missouri:
    Eastern...................................................         3
    Western...................................................         3
Montana.......................................................         1
Nebraska......................................................         2
Nevada........................................................         3
New Hampshire.................................................         1
New Jersey....................................................         8
New Mexico....................................................         2
New York:
    Northern..................................................         2
    Southern..................................................         9
    Eastern...................................................         6
    Western...................................................         3
North Carolina:
    Eastern...................................................         2
    Middle....................................................         2
    Western...................................................         2
North Dakota..................................................         1
Ohio:
    Northern..................................................         8
    Southern..................................................         7
Oklahoma:
    Northern..................................................         2
    Eastern...................................................         1
    Western...................................................         3
Oregon........................................................         5
Pennsylvania:
    Eastern...................................................         5
    Middle....................................................         2
    Western...................................................         4
Puerto Rico...................................................         2
Rhode Island..................................................         1
South Carolina................................................         2
South Dakota..................................................         2
Tennessee:
    Eastern...................................................         3
    Middle....................................................         3
    Western...................................................         4
Texas:
    Northern..................................................         6
    Eastern...................................................         2
    Southern..................................................         6
    Western...................................................         4
Utah..........................................................         3
Vermont.......................................................         1
Virginia:
    Eastern...................................................         5
    Western...................................................         3
Washington:
    Eastern...................................................         2
    Western...................................................         5
West Virginia:
    Northern..................................................         1
    Southern..................................................         1
Wisconsin:
    Eastern...................................................         4
    Western...................................................         2
Wyoming.......................................................        1]

Districts
                                                                  Judges
Alabama:
    Northern..................................................         5
    Middle....................................................         2
    Southern..................................................         2
Alaska........................................................         2
Arizona.......................................................         7
Arkansas:
    Eastern and Western.......................................         4
California:
    Northern..................................................         9
    Eastern...................................................         7
    Central...................................................        21
    Southern..................................................         4
Colorado......................................................         5
Connecticut...................................................         3
Delaware......................................................         6
District of Columbia..........................................         1
Florida:
    Northern..................................................         1
    Middle....................................................        10
    Southern..................................................         5
Georgia:
    Northern..................................................        10
    Middle....................................................         3
    Southern..................................................         4
Hawaii........................................................         1
Idaho.........................................................         2
Illinois:
    Northern..................................................        10
    Central...................................................         3
    Southern..................................................         2
Indiana:
    Northern..................................................         3
    Southern..................................................         4
Iowa:
    Northern..................................................         2
    Southern..................................................         2
Kansas........................................................         4
Kentucky:
    Eastern...................................................         3
    Western...................................................         3
Louisiana:
    Eastern...................................................         2
    Middle....................................................         1
    Western...................................................         3
Maine.........................................................         2
Maryland......................................................         6
Massachusetts.................................................         5
Michigan:
    Eastern...................................................         8
    Western...................................................         3
Minnesota.....................................................         4
Mississippi:
    Northern..................................................         1
    Southern..................................................         2
Missouri:
    Eastern...................................................         3
    Western...................................................         3
Montana.......................................................         1
Nebraska......................................................         2
Nevada........................................................         3
New Hampshire.................................................         1
New Jersey....................................................         9
New Mexico....................................................         2
New York:
    Northern..................................................         3
    Southern..................................................        11
    Eastern...................................................         6
    Western...................................................         3
North Carolina:
    Eastern...................................................         3
    Middle....................................................         2
    Western...................................................         2
North Dakota..................................................         1
Ohio:
    Northern..................................................         8
    Southern..................................................         7
Oklahoma:
    Northern..................................................         2
    Eastern...................................................         1
    Western...................................................         3
Oregon........................................................         5
Pennsylvania:
    Eastern...................................................         6
    Middle....................................................         2
    Western...................................................         5
Puerto Rico...................................................         3
Rhode Island..................................................         1
South Carolina................................................         3
South Dakota..................................................         2
Tennessee:
    Eastern...................................................         3
    Middle....................................................         3
    Western...................................................         6
Texas:
    Northern..................................................         6
    Eastern...................................................         6
    Southern..................................................         3
    Western...................................................         4
Utah..........................................................         4
Vermont.......................................................         1
Virgin Islands................................................         0
Virginia:
    Eastern...................................................         5
    Western...................................................         3
Washington:
    Eastern...................................................         2
    Western...................................................         5
West Virginia:
    Northern..................................................         1
    Southern..................................................         1
Wisconsin:
    Eastern...................................................         4
    Western...................................................         2
1.ing.......................................................

           *       *       *       *       *       *       *


CHAPTER 13--ASSIGNMENT OF JUDGES TO OTHER COURTS

           *       *       *       *       *       *       *


Sec. 291. Circuit judges

    (a) * * *

           *       *       *       *       *       *       *

    (c) The chief judge of the Ninth Circuit may, in the public 
interest and upon request by the chief judge of the Twelfth 
Circuit, designate and assign temporarily any circuit judge of 
the Ninth Circuit to act as circuit judge in the Twelfth 
Circuit.
    (d) The chief judge of the Twelfth Circuit may, in the 
public interest and upon request by the chief judge of the 
Ninth Circuit, designate and assign temporarily any circuit 
judge of the Twelfth Circuit to act as circuit judge in the 
Ninth Circuit.

Sec. 292. District judges

    (a) * * *

           *       *       *       *       *       *       *

    (f) The chief judge of the United States Court of Appeals 
for the Ninth Circuit may, in the public interest--
          (1) upon request by the chief judge of the Twelfth 
        Circuit, designate and assign 1 or more district judges 
        within the Ninth Circuit to sit upon the Court of 
        Appeals of the Twelfth Circuit, or a division thereof, 
        whenever the business of that court so requires; and
          (2) designate and assign temporarily any district 
        judge within the Ninth Circuit to hold a district court 
        in any district within the Twelfth Circuit.
    (g) The chief judge of the United States Court of Appeals 
for the Twelfth Circuit may in the public interest--
          (1) upon request by the chief judge of the Ninth 
        Circuit, designate and assign 1 or more district judges 
        within the Twelfth Circuit to sit upon the Court of 
        Appeals of the Ninth Circuit, or a division thereof, 
        whenever the business of that court so requires; and
          (2) designate and assign temporarily any district 
        judge within the Twelfth Circuit to hold a district 
        court in any district within the Ninth Circuit.
    (h) Any designations or assignments under subsection (f) or 
(g) shall be in conformity with the rules or orders of the 
court of appeals of, or the district within, as applicable, the 
circuit to which the judge is designated or assigned.

           *       *       *       *       *       *       *


CHAPTER 15--CONFERENCES AND COUNCILS OF JUDGES

           *       *       *       *       *       *       *


Sec. 333. Judicial conferences of circuits

    The chief judge of each circuit may summon biennially, and 
may summon annually, the circuit, district, and bankruptcy 
judges of the circuit, in active service, to a conference at a 
time and place that he designates, for the purpose of 
considering the business of the courts and advising means of 
improving the administration of justice within such circuit. He 
may preside at such conference, which shall be known as the 
Judicial Conference of the circuit. The judges of the District 
Court of Guam[, the District Court of the Virgin Islands,] and 
the District Court of the Northern Mariana Islands may also be 
summoned biennially, and may be summoned annually, [to the 
conferences of their respective circuits] to the conference of 
the ninth circuit.
    Every judge summoned may attend, and unless excused by the 
chief judge, shall remain throughout the conference.
    The court of appeals for each circuit shall provide by its 
rules for representation and active participation at such 
conference by members of the bar of such circuit.

           *       *       *       *       *       *       *


CHAPTER 17--RESIGNATION AND RETIREMENT OF JUSTICES AND JUDGES

           *       *       *       *       *       *       *


Sec. 373. Judges in territories and possessions

    (a) Any judge of the District Court of Guam[, the District 
Court of the Northern Mariana Islands, or the District Court of 
the Virgin Islands] or the District Court of the Northern 
Mariana Islands who retires from office after attaining the age 
and meeting the service requirements whether continuous or 
otherwise, of subsection (b) shall, during the remainder of his 
lifetime, receive an annuity equal to the salary he is 
receiving at the time he retires.

           *       *       *       *       *       *       *

    (e) Any judge of the District Court of Guam[, the District 
Court of the Northern Mariana Islands, or the District Court of 
the Virgin Islandsd] the District Court of the Northern Mariana 
Islands who is removed by the President of the United States 
upon the sole ground of mental or physical disability, or who 
is not reappointed (as judge of such court), shall be entitled, 
upon attaining the age of sixty-five years or upon 
relinquishing office if he is then beyond the age of sixty-five 
years, (1) if his judicial service, continuous or otherwise, 
aggregates fifteen years or more, to receive during the 
remainder of his life an annuity equal to the salary he 
received when he left office, or (2) if his judicial service, 
continuous or otherwise, aggregated less than fifteen years but 
not less than ten years, to receive during the remainder of his 
life an annuity equal to that proportion of such salary which 
the aggregate number of his years of his judicial service bears 
to fifteen.

           *       *       *       *       *       *       *


Sec. 376. Annuities for survivors of certain judicial officials of the 
                    United States

    (a) For the purposes of this section--
    (1) ``judicial official'' means:
    (A) * * *
    (B) a judge of the District Court of Guam[, the District 
Court of the Northern Mariana Islands, or the District Court of 
the Virgin Islands] or the District Court of the Northern 
Mariana Islands;

           *       *       *       *       *       *       *

    (2) ``retirement salary'' means:
    (A) * * *
    (B) in the case of a judge of the District Court of Guam[, 
the District Court of the Northern Mariana Islands, or the 
District Court of the Virgin Islands] or the District Court of 
the Northern Mariana Islands, (i) an annuity paid under 
subsection (a) of section 373 of this title or (ii) 
compensation paid under paragraph (4) of subsection (c) of 
section 373 of this title;

           *       *       *       *       *       *       *


PART II--DEPARTMENT OF JUSTICE

           *       *       *       *       *       *       *


CHAPTER 31--THE ATTORNEY GENERAL

           *       *       *       *       *       *       *


Sec. 526. Authority of Attorney General to investigate United States 
                    attorneys, marshals, trustees, clerks of court, and 
                    others

    (a) The Attorney General may investigate the official acts, 
records, and accounts of--
          (1) * * *
          (2) at the request and on behalf of the Director of 
        the Administrative Office of the United States Courts, 
        the clerks of the United States courts [and of the 
        district court of the Virgin Islands], probation 
        officers, United States magistrate judges, and court 
        reporters;

           *       *       *       *       *       *       *


PART III--COURT OFFICERS AND EMPLOYEES

           *       *       *       *       *       *       *


CHAPTER 41--ADMINISTRATIVE OFFICE OF UNITED STATES COURTS

           *       *       *       *       *       *       *


Sec. 610. Courts defined

    As used in this chapter the word ``courts'' includes the 
courts of appeals and district courts of the United States, 
[the United States District Court for the District of the Canal 
Zone,] the District Court of Guam, [the District Court of the 
Virgin Islands,] the United States Court of Federal Claims, and 
the Court of International Trade.

           *       *       *       *       *       *       *


CHAPTER 43--UNITED STATES MAGISTRATE JUDGES

           *       *       *       *       *       *       *


Sec. 631. Appointment and tenure

    (a) The judges of each United States district court and the 
district courts of [the Virgin Islands, Guam,] Guam and the 
Northern Mariana Islands shall appoint United States magistrate 
judges in such numbers and to serve at such locations within 
the judicial districts as the Judicial Conference may determine 
under this chapter. In the case of a magistrate judge appointed 
by the district court of [the Virgin Islands, Guam,] Guam or 
the Northern Mariana Islands, this chapter shall apply as 
though the court appointing such a magistrate judge were a 
United States district court. Where there is more than one 
judge of a district court, the appointment, whether an original 
appointment or a reappointment, shall be by the concurrence of 
a majority of all the judges of such district court, and when 
there is no such concurrence, then by the chief judge. Where 
the conference deems it desirable, a magistrate judge may be 
designated to serve in one or more districts adjoining the 
district for which he is appointed. Such a designation shall be 
made by the concurrence of a majority of the judges of each of 
the district courts involved and shall specify the duties to be 
performed by the magistrate judge in the adjoining district or 
districts.

           *       *       *       *       *       *       *


CHAPTER 49--DISTRICT COURTS

           *       *       *       *       *       *       *


Sec. 753. Reporters

    (a) Each district court of the United States[, the United 
States District Court for the District of the Canal Zone, the 
District Court of Guam, and the District Court of the Virgin 
Islands,] and the District Court of Guam, shall appoint one or 
more court reporters.

           *       *       *       *       *       *       *


PART IV--JURISDICTION AND VENUE

           *       *       *       *       *       *       *


CHAPTER 83--COURTS OF APPEALS

           *       *       *       *       *       *       *


Sec. 1291. Final decisions of district courts

    The courts of appeals (other than the United States Court 
of Appeals for the Federal Circuit) shall have jurisdiction of 
appeals from all final decisions of the district courts of the 
United States[, the United States District Court for the 
District of the Canal Zone, the District Court of Guam, and the 
District Court of the Virgin Islands,] and the District Court 
of Guam, except where a direct review may be had in the Supreme 
Court. The jurisdiction of the United States Court of Appeals 
for the Federal Circuit shall be limited to the jurisdiction 
described in sections 1292(c) and (d) and 1295 of this title.

Sec. 1292. Interlocutory decisions

    (a) Except as provided in subsections (c) and (d) of this 
section, the courts of appeals shall have jurisdiction of 
appeals from:
          (1) Interlocutory orders of the district courts of 
        the United States[, the United States District Court 
        for the District of the Canal Zone, the District Court 
        of Guam, and the District Court of the Virgin Islands,] 
        and the District Court of Guam, or of the judges 
        thereof, granting, continuing, modifying, refusing or 
        dissolving injunctions, or refusing to dissolve or 
        modify injunctions, except where a direct review may be 
        had in the Supreme Court;

           *       *       *       *       *       *       *

    (d)(1) * * *

           *       *       *       *       *       *       *

    (4)(A) The United States Court of Appeals for the Federal 
Circuit shall have exclusive jurisdiction of an appeal from an 
interlocutory order of a district court of the United States, 
the District Court of Guam, [the District Court of the Virgin 
Islands,] or the District Court for the Northern Mariana 
Islands, granting or denying, in whole or in part, a motion to 
transfer an action to the United States Court of Federal Claims 
under section 1631 of this title.

           *       *       *       *       *       *       *


Sec. 1295. Jurisdiction of the United States Court of Appeals for the 
                    Federal Circuit

    (a) The United States Court of Appeals for the Federal 
Circuit shall have exclusive jurisdiction--
          (1) of an appeal from a final decision of a district 
        court of the United States, [the United States District 
        Court for the District of the Canal Zone,] the District 
        Court of Guam, [the District Court of the Virgin 
        Islands,] or the District Court for the Northern 
        Mariana Islands, if the jurisdiction of that court was 
        based, in whole or in part, on section 1338 of this 
        title, except that a case involving a claim arising 
        under any Act of Congress relating to copyrights, 
        exclusive rights in mask works, or trademarks and no 
        other claims under section 1338(a) shall be governed by 
        sections 1291, 1292, and 1294 of this title;
          (2) of an appeal from a final decision of a district 
        court of the United States, [the United States District 
        Court for the District of the Canal Zone,] the District 
        Court of Guam, [the District Court of the Virgin 
        Islands,] or the District Court for the Northern 
        Mariana Islands, if the jurisdiction of that court was 
        based, in whole or in part, on section 1346 of this 
        title, except that jurisdiction of an appeal in a case 
        brought in a district court under section 1346(a)(1), 
        1346(b), 1346(e), or 1346(f) of this title or under 
        section 1346(a)(2) when the claim is founded upon an 
        Act of Congress or a regulation of an executive 
        department providing for internal revenue shall be 
        governed by sections 1291, 1292, and 1294 of this 
        title;

           *       *       *       *       *       *       *


CHAPTER 85--DISTRICT COURTS; JURISDICTION

           *       *       *       *       *       *       *


Sec. 1346. United States as defendant

    (a) * * *
    (b)(1) Subject to the provisions of chapter 171 of this 
title, the district courts[, together with the United States 
District Court for the District of the Canal Zone and the 
District Court of the Virgin Islands,] shall have exclusive 
jurisdiction of civil actions on claims against the United 
States, for money damages, accruing on and after January 1, 
1945, for injury or loss of property, or personal injury or 
death caused by the negligent or wrongful act or omission of 
any employee of the Government while acting within the scope of 
his office or employment, under circumstances where the United 
States, if a private person, would be liable to the claimant in 
accordance with the law of the place where the act or omission 
occurred.

           *       *       *       *       *       *       *

                              ----------                              


             SECTION 3006A OF TITLE 18, UNITED STATES CODE

Sec. 3006A. Adequate representation of defendants

    (a)  * * *

           *       *       *       *       *       *       *

    (j) Districts Included.--As used in this section, the term 
``district court'' means each district court of the United 
States created by chapter 5 of title 28, [the District Court of 
the Virgin Islands,] the District Court for the Northern 
Mariana Islands, and the District Court of Guam.

           *       *       *       *       *       *       *

                              ----------                              


REVISED ORGANIC ACT OF THE VIRGIN ISLANDS

           *       *       *       *       *       *       *


                             BILL OF RIGHTS

    Sec. 3. No law shall be enacted in the Virgin Islands which 
shall deprive any person of life, liberty, or property without 
due process of law or deny to any person therein equal 
protection of the laws.
    In all criminal prosecutions the accused shall enjoy the 
right to be represented by counsel for his defense, to be 
informed of the nature and cause of the accusation, to have a 
copy thereof, to have a speedy and public trial, to be 
confronted with the witnesses against him, and to have 
compulsory process for obtaining witnesses in his favor.

           *       *       *       *       *       *       *

    The following provisions of and amendments to the 
Constitution of the United States are hereby extended to the 
Virgin Islands to the extent that they have not been previously 
extended to that territory and shall have the same force and 
effect there as in the United States or in any State of the 
United States: article I, section 9, clauses 2 and 3; article 
III; article IV, section 1 and section 2, clause 1; article VI, 
clause 3; the first to ninth amendments inclusive; the 
thirteenth amendment; the second sentence of section 1 of the 
fourteenth amendment; and the fifteenth the nineteenth 
amendments: Provided, [That all offenses against the law of the 
United States and the laws of the Virgin Islands which are 
prosecuted in the district court pursuant to sections 22 (a) 
and (c) of this Act may be held by indictment by grand jury or 
by information, and that all offenses against the laws of the 
Virgin Islands which are prosecuted in the district court 
pursuant to section 22(b) of this Act or] That all offenses 
against the laws of the Virgin Islands which are prosecuted in 
the courts established by local law shall continue to be 
prosecuted by information, except such as may be required by 
local law to be prosecuted by indictment by grand jury.

           *       *       *       *       *       *       *

    [Sec. 21. The judicial power of the Virgin Islands shall be 
vested in a court of record designated the ``District Court of 
the Virgin Islands'' established by Congress, and in such 
appellate court and lower local courts as may have been or may 
hereafter be established by local law.
    [(b) The legislature of the Virgin Islands may vest in the 
courts of the Virgin Islands established by local law 
jurisdiction over all causes in the Virgin islands over which 
any court established by the Constitution and laws of the 
United States does not have exclusive jurisdiction. Such 
jurisdiction shall be subject to the concurrent jurisdiction 
conferred on the District Court of the Virgin Islands by 
section 22 (a) and (c) of this Act.
    [(c) The rules governing the practice and procedure of the 
courts established by local law and those prescribing the 
qualifications and duties of the judges and officers thereof, 
oaths and bonds, and the times and places of holding court 
shall be governed by local law or the rules promulgated by 
those courts.
    [Sec. 22. (a) The District Court of the Virgin Islands 
shall have the jurisdiction of a District Court of the United 
States, including, but not limited to, the diversity 
jurisdiction provided for in section 1332 of title 28, United 
States Code, and that of a bankruptcy court of the United 
States. The District Court of the Virgin Islands shall have 
exclusive jurisdiction over all criminal and civil proceedings 
in the Virgin Islands with respect to the income tax laws 
applicable to the Virgin Islands, regardless of the degree of 
the offense or of the amount involved, except the ancillary 
laws relating to the income tax enacted by the legislature of 
the Virgin Islands. Any act or failure to act with respect to 
the income tax laws applicable to the Virgin Islands which 
would constitute a criminal offense described in chapter 75 of 
subtitle F of the Internal Revenue Code of 1954 shall 
constitute an offense against the government of the Virgin 
Islands and may be prosecuted in the name of the government of 
the Virgin Islands by the appropriate officers thereof in the 
District Court of the Virgin Islands without the request or the 
consent of the United States attorney for the Virgin Islands, 
notwithstanding the provisions of section 27 of this Act.
    [(b) In addition to the jurisdiction described in 
subsection (a) the District Court of the Virgin Islands shall 
have general original jurisdiction in all causes in the Virgin 
Islands the jurisdiction over which is not then vested by local 
law in the local courts of the Virgin Islands: Provided, That 
the jurisdiction of the District Court of the Virgin Islands 
under this subsection shall not extend to civil actions wherein 
the matter in controversy does not exceed the sum or value of 
$500, exclusive of interest and costs; to criminal cases 
wherein the maximum punishment which may be imposed does not 
exceed a fine of $100, or imprisonment for six months, or both; 
and to violations of local police and executive regulations. 
The courts established by local law shall have jurisdiction 
over the civil actions, criminal cases, and violations set 
forth in the preceding proviso. In causes brought in the 
district court solely on the basis of this subsection, the 
district court shall be considered a court established by local 
law for the purposes of determining the availability of 
indictment by grand jury or trial by jury.
    [(c) The District Court of the Virgin Islands shall have 
concurrent jurisdiction with the courts of the Virgin Islands 
established by local law over those offenses against the 
criminal laws of the Virgin Islands, whether felonies or 
misdemeanors or both, which are of the same or similar 
character or part of, or based on, the same act or transaction 
or two or more acts or transactions connected together or 
constituting part of a common scheme or plan, if such act or 
transaction or acts or transactions also constitutes or 
constitute an offense or offenses against one or more of the 
statutes over which the District Court of the Virgin Islands 
has jurisdiction pursuant to subsections (a) and (b) of this 
section.]

SEC. 21. JURISDICTION OF THE COURTS OF THE VIRGIN ISLANDS.

    (a) Jurisdiction of the Courts of the Virgin Islands.--The 
judicial power of the Virgin Islands shall be vested in such 
trial and appellate courts as may have been or may hereafter be 
established by local law. The local courts of the Virgin 
Islands shall have jurisdiction over all causes of action in 
the Virgin Islands over which any court established by the 
Constitution and laws of the United States does not have 
exclusive jurisdiction.
    (b) Practice and Procedure.--The rules governing the 
practice and procedure of the courts established by local law 
and those prescribing the qualifications and duties of the 
judges and officers thereof, oaths and bonds, and the times and 
places of holding court shall be governed by local law or the 
rules promulgated by those courts.

SEC. 22. JURISDICTION OVER INCOME TAX MATTERS.

    The United States District Court for the District of the 
Virgin Islands shall have exclusive jurisdiction over all 
criminal and civil proceedings in the Virgin Islands with 
respect to the income tax laws applicable to the Virgin 
Islands, except the ancillary laws relating to the income tax 
enacted by the legislature of the Virgin Islands. Any act or 
failure to act with respect to the income tax laws applicable 
to the Virgin Islands which would constitute a criminal offense 
described in chapter 75 of subtitle F of the Internal Revenue 
Code of 1986 shall constitute an offense against the Government 
of the Virgin Islands and may be prosecuted in the name of the 
Government of the Virgin Islands by the appropriate officers 
thereof in the United States District Court for the District of 
the Virgin Islands without the request or consent of the United 
States attorney for the Virgin Islands.

           *       *       *       *       *       *       *

    Sec. 23A. (a) Prior to the establishment of the appellate 
court authorized by section 21(a) of this Act, the [District 
Court of the Virgin Islands] United States District Court for 
the District of the Virgin Islands shall have such appellate 
jurisdiction over the courts of the Virgin Islands established 
by local law to the extent now or hereafter prescribed by local 
law: Provided, That the legislature may not preclude the review 
of any judgment or order which involves the Constitution, 
treaties, or laws of the United States, including this Act, or 
any authority exercised thereunder by an officer or agency of 
the Government of the United States, or the conformity of any 
law enacted by the legislature of the Virgin Islands or of any 
order or regulation issued or action taken by the executive 
branch of the government of the Virgin Islands with the 
Constitution, treaties, or laws of the United States, including 
this Act, or any authority exercised thereunder by an officer 
or agency of the United States.
    (b) Appeals to the [District Court of the Virgin Islands] 
United States District Court for the District of the Virgin 
Islands shall be heard and determined by an appellate division 
of the court consisting of three judges, of whom two shall 
constitute a quorum. The chief judge of the district court 
shall be presiding judge of the appellate division and shall 
preside therein unless disqualified or otherwise unable to act. 
The other judges who are to sit in the appellate division at 
any session shall be designated by the presiding judge from 
among the judges who are serving on, or are assigned to, the 
district court from time to time [pursuant to section 24(a) of 
this Act: Provided, That no more than one of them may be a 
judge of a court established by local law.] pursuant to chapter 
13 of title 28, United States Code, or a recalled senior judge 
of the former District Court of the Virgin Islands. The chief 
judge of the United States Court of Appeals for the Third 
Circuit may assign to the appellate division a judge of a court 
of record of the Virgin Islands, except that no more than 1 of 
the judges sitting in the appellate division at any session may 
be a judge of a court established by local law. The concurrence 
of two judges shall be necessary to any decision by the 
appellate division of the district court on the merits of an 
appeal, but the presiding judge alone may make any appropriate 
orders with respect to an appeal prior to the hearing and 
determination thereof on the merits and may dismiss an appeal 
for want of jurisdiction or failure to take or prosecute it in 
accordance with the applicable law or rules of procedures. 
Appeals pending in the district court on the effective date of 
this Act shall be heard and determined by a single judge.

           *       *       *       *       *       *       *

    [Sec. 24. (a) The President shall, by and with the advice 
and consent of the Senate, appoint two judges for the District 
Court of the Virgin Islands, who shall hold office for terms of 
ten years and until their successors are chosen and qualified, 
unless sooner removed by the President for cause. The judge of 
the district court who is senior in continuous service and who 
otherwise qualifies under section 136(a) of title 28, United 
States Code, shall be the chief judge of the court. The salary 
of a judge of the district court shall be at the rate 
prescribed for judges of the United States district courts. 
Whenever it is made to appear that such an assignment is 
necessary for the proper dispatch of the business of the 
district court, the chief judge of the Third Judicial Circuit 
of the United States may assign a judge of a court of record of 
the Virgin Islands established by local law, or a circuit or 
district judge of the Third Judicial Circuit, or a recalled 
senior judge of the District Court of the Virgin Islands, or 
the Chief Justice of the United States may assign any other 
United States circuit or district judge with the consent of the 
judge so assigned and of the chief judge of his circuit, to 
serve temporarily as a judge of the District Court of the 
Virgin Islands. The compensation of the judges of the district 
court and the administrative expenses of the court shall be 
paid from appropriations made for the judiciary of the United 
States.
    [(b) Where appropriate, the provisions of part II of title 
18 and of title 28, United States Code, and, notwithstanding 
the provisions of rule 7(a) and of rule 54(a) of the Federal 
Rules of Criminal Procedure relating to the requirement of 
indictment and to the prosecution of criminal offenses in the 
Virgin Islands by information, respectively, the rules of 
practice heretofore or hereafter promulgated and made effective 
by the Congress or the Supreme Court of the United States 
pursuant to titles 11, 18 and 28, United States Code, shall 
apply to the district court and appeals therefrom: Provided, 
That the terms `Attorney for the government' and `United States 
attorney' as used in the Federal Rules of Criminal Procedure, 
shall, when applicable to causes arising under the income tax 
laws applicable to the Virgin Islands, mean the Attorney 
General of the Virgin Islands or such other person or persons 
as may be authorized by the laws of the Virgin Islands to act 
therein: Provided further, That in the district court all 
criminal prosecutions under the laws of the United States, 
under local law under section 22(c) of this Act, and under the 
income tax laws applicable to the Virgin Islands may be had by 
indictment by grand jury or by information: Provided further, 
That an offense which has been investigated by or presented to 
a grand jury may be prosecuted by information only by leave of 
court or with the consent of the defendant. All criminal 
prosecutions arising under local law which are tried in the 
district court pursuant to section 22(b) of this Act shall 
continue to be had by information, except such as may be 
required by the local law to be prosecuted by indictment by 
grand jury.
    [(c) The Attorney General shall appoint a United States 
marshal for the Virgin Islands, to whose office the provisions 
of chapter 33 of title 28, United States Code, shall apply.
    [Sec. 25. The Virgin Islands consists of two judicial 
divisions; the Division of Saint Croix, comprising the island 
of Saint Croix and adjacent islands and cays, and the Division 
of Saint Thomas and Saint John, comprising the islands of Saint 
Thomas and Saint John and adjacent islands and cays.
    [Sec. 26. All criminal cases originating in the district 
court shall be tried by jury upon demand by the defendant or by 
the Government. If no jury is demanded the case shall be tried 
by the judge of the district court without a jury, except that 
the judge may, on his own motion, order a jury for the trial of 
any criminal action. The legislature may provide for trial in 
misdemeanor cases by a jury of six qualified persons.
    [Sec. 27. The President shall, by and with the advice and 
consent of the Senate, appoint a United States attorney for the 
Virgin Islands to whose office the provisions of chapter 35 of 
title 28, United States Code, shall apply. Except as otherwise 
provided by law it shall be the duty of the United States 
attorney to prosecute all offenses against the United States 
and to conduct all legal proceedings, civil and criminal, to 
which the Government of the United States is a party in the 
district court and in the courts established by local law. He 
shall also prosecute in the district court in the name of the 
government of the Virgin Islands all offenses against the laws 
of the Virgin Islands which are cognizable by that court 
unless, at his request or with his consent, the prosecution of 
any such case is conducted by the attorney general of the 
Virgin Islands. The United States attorney may, when requested 
by the Governor or the attorney general of the Virgin Islands, 
conduct any other legal proceedings to which the government of 
the Virgin Islands is a party in the district court or the 
courts established by local law.]

           *       *       *       *       *       *       *


                           Markup Transcript



                            BUSINESS MEETING

                       THURSDAY, OCTOBER 27, 2005

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:06 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable Howard 
Coble (acting Chair of the Committee) presiding.
    Mr. Coble. I note the presence of a working quorum and we 
will come to order.
    Before we start, I want to advise Members of the Committee 
that the Chairman's sister-in-law died as a result of an 
accident last night, and he will not be able to be here today. 
But we will proceed accordingly. I have been pressed into duty 
here, so we will do the best we can today, folks.
    Pursuant to notice, I call up the bill H.R. 4093, the 
``Federal Judgeship and Administrative Efficiency Act of 2005'' 
for purposes of markup and move its favorable consideration to 
the House. Without objection, the bill will be considered as 
read and open for amendment at any point. The Chair recognizes 
himself to explain the bill.
    [The bill, H.R. 4093, follows:]
      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


    Mr. Coble. I will be reading Chairman Sensenbrenner's 
statement.
    Art. I, Sec. 8 of the United States Constitution gives 
Congress the sole obligation and authority to constitute 
tribunals inferior to the Supreme Court. The exercise of this 
responsibility requires that Congress from time to time make 
adjustments in both the number of authorized judges and the 
structure of our Federal judiciary. The bill before us, the 
Federal Judgeship and Administrative Efficiency Act of 2005, 
was written with these duties in mind.
    This legislation represents the best opportunity for 
Congress to enact a comprehensive judgeship bill since the 
passage of the Federal Judgeship Act of 1990. It authorizes 68 
new judgeships, 12 at the circuit level and 56 at the district 
levels. In addition, the bill contains authority to create 25 
permanent or temporary bankruptcy judges.
    These new judgeships are both necessary and overdue and 
substantially reflect the recommendations of the U.S. Judicial 
Conference. New judgeships will better equip America's Federal 
court system to properly address rising caseloads and 
increasingly onerous administrative burdens that undermine 
public confidence in our Federal courts and threaten the 
timely, fair, and dispassionate administration of justice that 
our Constitution envisions.
    However, the bill does much more than simply authorizes new 
judgeships. H.R. 4093 makes changes in the structure of the 
court of appeals system that are required to modernize, 
streamline, and improve the administration of justice for 
nearly 1 in 5 Americans. The bill accomplishes this by 
realigning the Ninth Circuit Court of Appeals. The Ninth has 
become so large in geographic size, workload, and number of 
active and senior judges that it can no longer effectively 
discharge its constitutional responsibilities on behalf of the 
American people.
    Consider the following: The Ninth has 47 serving judges, a 
figure that is almost twice the number of total judges in the 
next-largest circuit. The Ninth is responsible for adjudicating 
legal disputes that involve 56 million people, or roughly \1/5\ 
of our Nation's total population. This is 25 million more than 
the next-largest circuit. The Ninth engulfs nearly 40 percent 
of the geographic area of the United States. The Ninth had the 
greatest number of appeals filed in 2004 and the highest 
percentage increase in appeals filed over the past 4 years. 
Among the circuits, the Ninth is the unrivaled leaders in the 
greatest number of total appeals still pending, and ranks a 
close second in largest median time to disposition. At 13,417, 
the number of total appeals pending in the Ninth Circuit 
exceeds by almost 3 times the number of total appeals pending 
in the Fifth Circuit, the next-highest total.
    From the Sixth Amendment guarantee to an accused of a 
speedy and public trial in all criminal prosecutions to the 
Equal Protection Clause's requirement that promises all 
American citizens equal treatment under the law in every 
Federal court, the size, scope, and workload of the Ninth 
Circuit create unique administrative burdens that imperil the 
spirit of these fundamental guarantees.
    H.R. 4093 remedies the Ninth Circuit's structural and 
administrative defects by realigning it in the more streamlined 
circuits. The bill creates a new Ninth that will feature 
California, Guam, Hawaii, and the Northern Mariana Islands, and 
a new Twelfth that includes Alaska, Arizona, Idaho, Montana, 
Nevada, Oregon and Washington. In addition, the base text of 
H.R. 4093 will authorize the President to appoint five new 
permanent judges and two new temporary judges to the realigned 
Ninth Circuit, all of whom will establish resident chambers in 
California.
    The additions are consistent with requests made by the 
Judicial Conference and intended to ensure the new Ninth has 
resources to match its future caseload requirements. The 
contours of the Ninth were largely fixed nearly a century ago, 
in 1912, when Arizona was added to the contiguous States that 
had originally formed the Ninth Circuit. We can all agree, I 
think, that much has changed over the last century. It is 
imperative for Congress to adapt the structure of the Federal 
courts to respond to changing demands, rather than to insist 
that the circuits remain unalterably fixed by acts of a past 
Congress that could not have foreseen the dynamism and 
contemporary conditions that exist in the modern American West.
    Congress has the constitutional obligation to ensure the 
structure and organization of our Federal circuit courts, 
promote citizen access to justice, maximize the ability of 
individual judges to fairly and quickly adjudicate issues 
before them, and encourage the development of intra-circuit 
conference among judges. The legitimacy and efficiency of the 
Federal court system and the quality of justice it dispenses to 
America's citizens rests upon these principles.
    H.R. 4093 takes an important step to advance these crucial 
goals, and I urge my colleagues to report this final 
legislation.
    Now, before I recognize my friends from Michigan and/or 
California, under the Budget Act of 1974, the House and Senate 
are required to adopt at least one budget resolution each year. 
The Judiciary Committee's obligation to the reconciliation 
process is to reduce direct spending by at least $65 million in 
fiscal year 2006 and $285 million on fiscal years 2006 through 
2010.
    The Committee exceeded these obligations when we reported 
H.R. 3648, which raised the fees for L visas. In the spirit of 
fiscal conservatism and in response to the unforeseen budgetary 
impact of the recent hurricanes, the Committee will include 
H.R. 4093 in our budget submission. In doing this, we will 
offset the cost of the creation of the new judgeships with the 
surplus that we created by raising the fees on L visas. As a 
result, the Committee will exceed its budgetary obligations and 
finance implementation of this bill.
    Mr. Berman. Would the gentleman yield?
    Mr. Coble. I will indeed.
    Mr. Berman. Will the offsets that are supposedly in this 
bill deduct the $11 to $12 million in initial startup costs and 
the ongoing $13 to $14 million in duplicating operational costs 
from creating a new circuit?
    Mr. Coble. I'm told, Mr. Berman, that it totally reflects 
all CBO estimates.
    Mr. Berman. Including the $11 million initial startup costs 
and the $13 million----
    Mr. Coble. All the CBO estimates, I'm told.
    Mr. Berman. Do the CBO estimates include the $11 million 
initial startup costs and the $13 million?
    Mr. Coble. I am told through the parliamentarian, Howard, 
that is correct. It does include that.
    Mr. Berman. It does--it includes those figures?
    Mr. Coble. CBO will--prepared costs, all anticipated costs.
    Mr. Berman. Well, if the CBO hasn't prepared the costs----
    Mr. Watt. Can we get this discussion on the record rather 
than off?
    Mr. Berman. Yes. If this is about CBO cost estimates which 
are not yet prepared, how can we say this bill is--all the 
costs are offset that are created by the additional judgeships 
plus the split of the circuit plus the ongoing duplicate of 
costs created by creating a new circuit as well as, of course, 
the costs for courthouses in the Eleventh and Fifth circuits as 
a result of damages done by Katrina?
    Mr. Coble. Mr. Berman, we will have the final score before 
it's submitted tomorrow.
    Mr. Berman. So we're guessing that these new fees will 
match these costs.
    Mr. Coble. I'm told, Howard, they're firm estimates by CBO. 
They will be finalized, I guess, later today, before the 
submission tomorrow.
    Mr. Berman. Mr. Chairman, if you would yield further, could 
I just ask is there something in writing where we could review 
the firm costs the CBO has estimated?
    Mr. Coble. We don't have it now, Mr. Berman, but I am told 
that we will have it by the afternoon.
    Mr. Berman. Well, then, Mr. Chair, if you would yield 
further, as somebody pointed out, I don't know how we can 
represent that offsets are covered when we don't have the 
estimate of the costs.
    Mr. Coble. Well, I am told, Mr. Berman, CBO does not have 
the authority to do it until--when?--until we report the bill 
from the Committee.
    Mr. Berman. And then the only thing I would say is then we 
should not assert the costs are completely offset if we don't 
have the CBO estimate of costs.
    Mr. Coble. I wanted to recognize either the gentleman from 
Michigan or the gentleman from California for an opening 
statement.
    Mr. Conyers. I seek recognition, Mr. Chairman. And I bid a 
good morning to the Judiciary Committee.
    We're now in our third decade of a discussion about whether 
we should split the Ninth Circuit Court of Appeals. The issue 
from one point of view before us is whether the Ninth Circuit 
is competently performing its duties as it is structured. And 
with the facts that I have on hand, the answer is clearly yes.
    Now, the measure before us purports to divide the Ninth 
Circuit because the court is too large and, as a result, 
experiences an unmanageable caseload and that inconsistent 
decisions and high reversal rates occur as a result. Now, 
refusing to speculate on other reasons as to why there's a 
strong interest in dividing the court, I focus on why the Ninth 
Circuit is able to efficiently and effectively carry out its 
responsibilities.
    Number one, there's no basis for an argument that the Ninth 
Circuit should be split in order to relieve it of its heavy 
caseload, as 80 percent of the cases come from California. 
Reducing the composition of the Ninth Circuit to California and 
three less hectic jurisdictions--Guam, Hawaii, and Northern 
Mariana Islands--would not significantly decrease the amount of 
work that the court handles.
    Secondly, I want to respond in the beginning of this 
discussion to the argument that the Ninth Circuit in its 
current form produces inconsistent decisions. Advancements in 
technology have had a profound effect on our courts and new 
resources, like an issue-tracking system which allows judges to 
remain up to date with decisions by other panels on similar 
issues.
    Furthermore, maintaining the Ninth Circuit in its existing 
form promises efficiency and uniformity, as the States that 
currently make up the circuit share significant legal 
interests. In particular, the States share interests in land, 
water rights, as well as Native American issues.
    While the circuit has seen an increase in the number of 
immigration cases it hears, this Committee is largely 
responsible for that result. The Patriot Act, the Real ID Act 
both made several major changes in immigration law that we're 
familiar with, that have led and will continue to lead to 
litigation to resolve the novel questions of law that are now 
being presented. As many of the issues have been answered, 
we've seen a decrease in such cases in the Ninth Circuit.
    And finally, I'd like to address the theory that the Ninth 
Circuit experiences a higher reversal rate than other appellate 
courts. The Ninth Circuit's reversal rate is 8.2 percent, while 
other circuits combined have a reversal rate of 10.0 percent. 
In essence, the Ninth Circuit's more in line with the Supreme 
Court than other circuits.
    The sole basis for dividing the Ninth Circuit should be if 
it is unable to perform its duties. This, to me, is clearly not 
the case, and splitting the Ninth Circuit will not improve 
judicial efficiency. Actually, such a split appears as if it 
will do a little more than unnecessarily burden taxpayers, as 
significant financial costs will come with the restructuring of 
the Ninth Circuit and creating a new Twelfth Circuit.
    I note that there is minimal support from affected groups 
for this initiative. Neither the Judicial Conference nor the 
Ninth Circuit support this initiative. The Washington State Bar 
Association and the American Civil Liberties, among others, 
have explicitly opposed this idea.
    I thank you for listening carefully to my remarks, Mr. 
Chairman.
    Mr. Coble. You're indeed welcome, Mr. Conyers.
    Ladies and gentlemen, just for the record so we'll know 
where we're going today, the Chairman insisted that we pass 
these three bills out today. So if we're unable to do that, we 
will have to return tomorrow. So make your plans accordingly.
    Furthermore, we have one of our bills on the House floor 
today. The Lawsuit Abuse Reduction Act I think will be called 
up about 2:30--2:00 or 2:30. And of course, as we always do, we 
will suspend our----
    Mr. Scott. Tomorrow or today?
    Mr. Coble. Today. And we will suspend Committee activity 
while that bill is on the floor. So I urge all of you to be 
aware of that and let's try to get it done today if we can.
    Without objection, all opening statements from the Members 
will be made a part of the record. I will now recognize Members 
for amendment.
    The chair recognizes the gentleman from California, Mr. 
Issa, for the purpose of offering an amendment in the nature of 
a substitute.
    Mr. Issa. Thank you, Mr. Chairman. I have an amendment at 
the desk.
    Mr. Coble. The clerk will read.
    The Clerk. Amendment in the nature of a substitute to H.R. 
4093, offered by Mr. Issa. Strike all after the enacting clause 
and insert the following:
    Mr. Coble. Without objection, it will be considered as 
read.
    [The amendment in the nature of a substitute follows:]
      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


    Mr. Issa. Thank you, Mr. Chairman.
    My amendment primarily does two things. It allows the seven 
judges that are to be appointed to the Ninth Circuit to be 
appointed immediately rather than a year from now. Secondly, it 
mandates that the Ninth Circuit be split no later than December 
31, 2006. The amendment also makes a technical correction for a 
typographical error on page 30, changing the number 20 to line 
19, as it should be.
    So, Chairman, California desperately needs Federal judges. 
This change allows us to get the judges we need immediately. 
Our caseload is not only significant, but, as the chair is well 
aware, when judges are first elevated, they have a learning 
curve or a time necessary to be able to build their caseload. 
This is particularly significant with the other changes that 
are anticipated in the Ninth Circuit.
    This change is long overdue. I certainly have been an 
advocate for expanding the number of judges on the Ninth 
Circuit. In a perfect world, Mr. Conyers's point about the 
nature of immigration cases that clog the Ninth Circuit would 
be dealt with now, but I would hope that the Ranking Member 
would appreciate that he said it here, that this was a 
challenge, there is an adjustment, and when we bring a later 
bill to consolidate all of the cases on immigration to a single 
court, that he would look favorably on unifying that particular 
part of the law in order to have one standard nationwide.
    In the interim, though, these are sorely needed, and I 
would hope that this amendment would be taken as it is offered, 
as something absolutely necessary if California, with or 
without the splitting of the Ninth Circuit, is to continue to 
be able to keep its caseload, as the Ranking Member said, 
consistent with constitutional requirements for a speedy trial.
    Thank you. I yield back.
    Mr. Coble. I thank the gentleman. Are there any second-
degree amendments to the Issa amendment in the nature of a 
substitute?
    The gentleman from California.
    Mr. Berman. Is the Issa substitute amendment before us at 
this time?
    Mr. Coble. Yes, sir.
    Mr. Berman. Could I ask----
    Mr. Coble. For what purpose does the gentleman seek 
recognition? Strike the last word?
    Mr. Berman. Strike the last word.
    Mr. Coble. The gentleman from California is recognized for 
5 minutes.
    Mr. Berman. I thank the gentleman. I would like to just ask 
the maker of the amendment a couple of questions to see how 
he's dealt with some of the----
    Well, let me withdraw my seeking recognition to ask a 
parliamentary inquiry point first, if I might, Mr. Chairman.
    Mr. Coble. Without objection.
    Mr. Berman. Is a motion to amendment the Issa substitute in 
order at this time?
    Mr. Coble. Yes.
    Mr. Berman. And will speaking on the bill prejudice my 
ability to then make that motion? I guess I should offer my 
amendment now.
    I have an amendment, along with Ms. Lofgren, Ms. Waters, 
Mr. Schiff, Ms. Sanchez at the desk.
    Mr. Coble. The clerk will read.
    The Clerk. Amendment to the amendment in the nature of a 
substitute to H.R. 4093, offered by Mr. Berman, Ms. Waters, Mr. 
Schiff, Ms. Lofgren, and Ms. Sanchez, to strike title III.
    [The amendment offered by Mr. Berman follows:]
    
    
    Mr. Coble. The gentleman from California is recognized for 
5 minutes.
    Mr. Berman. Thank you, Mr. Chairman. I have a lot I'd like 
to say and I may ask the Committee's indulgence to give me some 
time.
    But I'd like initially just to establish with the maker of 
his amendment--your amendment in the nature of a substitute 
creates the new judges for the two new circuits in title I of 
the bill, rather than in title III. I see in the bill a 
reference to five additional judges for the Ninth Circuit Court 
of Appeal. That's permanent judges, and then two temporary. For 
the new Twelfth Circuit Court of Appeal
    does the gentleman propose any additional judgeships?
    Mr. Issa. We retain all the other judgeships that were 
originally in the bill. The Twelfth Circuit, I believe, does 
not get additional judgeships, but there are----
    Mr. Berman. Well, by definition, there's nothing in the 
original bill that deals with the Twelfth Circuit because those 
judgeships were created in title III.
    Mr. Issa. That's correct.
    Mr. Berman. So there are no new judgeships created in the 
Twelfth Circuit.
    Mr. Coble. In title I.
    Mr. Berman. Are they in title III?
    Mr. Issa. Yes.
    Mr. Berman. Where?
    Mr. Issa. All the judgeships are in title I. There are no 
new judgeships. All the 14 judgeships for the Twelfth Circuit 
will come from the previous Ninth Circuit.
    Mr. Berman. And are there 14 judges with an official duty 
station in the----
    Mr. Issa. In those States, yes.
    Mr. Berman. There are?
    Mr. Issa. Yes. Including, I believe, two that are 
authorized and not filled, but are in the process of being 
filled. There are four vacancies in the existing Ninth Circuit.
    Mr. Berman. There are. That I know, yes. All right.
    All right, then, Mr. Chairman, I'll speak in favor of my 
amendment.
    Mr. Coble. The gentleman is recognized.
    Mr. Berman. To strike title III, which is the split of the 
Ninth Circuit into the Ninth and Twelfth circuits.
    This bill, and even the amendment in the nature of a 
substitute, starts off on the right track. We do have to 
provide, and I think there's a general consensus that we need 
to provide, additional Federal judgeships so that courts have 
the resources they need in order to function efficiently. But 
it is in title III of both the substitute and the original bill 
that I have my very strong objection.
    Presumably the Ninth Circuit is divided into two separate 
circuits to decrease efficiencies that are related to the Ninth 
Circuit's size, its geography, its number of judges, and its 
limited en banc procedure. With respect to splitting the Ninth 
Circuit, the Chairman stated--and by that I mean Chairman 
Sensenbrenner--``It is no longer a question of if, but when.'' 
I would reply, if it ain't broke, don't fix it.
    I'd first like to make some objections to the process. This 
particular new alignment that is being proposed in the bill and 
in the substitute has never been heard in either the full 
Committee or the Subcommittee. No hearing has been held on this 
particular alignment. What that means is the proponents of 
change have not had to make their case and--of this particular 
change have not had to make their case and, perhaps even more 
importantly, the judges of the Ninth Circuit have not had a 
chance to indicate their concerns about this particular 
proposed split.
    Mr. Issa. Would the gentleman yield?
    Mr. Berman. I'd be happy to.
    Mr. Issa. The Ninth Circuit has been at least to many 
Members' offices, including mine, to go over the details of 
this plan. And we did meet with them this week. I apologize if 
they didn't get to your office.
    Mr. Berman. By and large we have a process, a hearing 
process where people present testimony, the Members in 
Committee get to ask questions. Such a hearing was never heard 
on this particular alignment. Moreover, the Subcommittee markup 
was cancelled and it was pulled to full Committee. I think, 
particularly in the context of relationships with a co-equal 
branch of Government, it is wrong not to have given both those 
people who propose this split and the people who are very 
strongly opposed to the split a chance to make their case 
directly in a formal Subcommittee hearing.
    I understand where we've had a hearing on a bill in the 
previous year and then the next year we skip that hearing 
because the arguments are fresh in our mind. This is a very 
different split than was taken up last year in Committee and on 
the floor of the House.
    Mr. Issa. Would the gentleman yield?
    Mr. Berman. I'd be happy to.
    Mr. Issa. Is there a split of any combination that you 
would approve of, or is--you know, there's been 22 different 
hearings on this.
    Mr. Berman. There are splits on which I would not use the 
argument that no hearing had been held.
    Mr. Issa. I understand the gentleman.
    Mr. Berman. And that's my point, that I think, out of 
fairness, the judges of the Ninth Circuit, the bar associations 
representing attorneys in this area, should have had an 
opportunity to comment on this particular alignment.
    But let's move on.
    The reasons to oppose this split, I think, are very clear. 
I mentioned earlier the startup costs of about $11.6 million, 
and every year annually, apart from the expenses of additional 
judges, there are $13.8 million in duplicated operating costs 
just for setting up the separate administrative processes for a 
new circuit.
    A large, large majority of the Ninth Circuit judges oppose 
this split and have consistently voted against it. Only three 
of the non-senior judges now on the Ninth Circuit, and many 
more of those judges who are from other parts of the circuit 
than California, oppose--a majority of those from other parts 
of the circuit other than California also oppose the split of 
the Ninth Circuit.
    The Judicial Conference says that it is wrong to link a 
splitting of the Ninth Circuit to a national judgeship bill. 
And I'll tell you why. One reason, one very practical reason 
why, it's just what I said on the floor of the House last year. 
You'll go and you'll have your fun splitting the Ninth Circuit, 
no one will ever raise an issue about judicial philosophy or 
ideology being the motivating cause for proposing this split. 
They'll use statistics which can be manipulated. I have my own 
to come back at you with. But in the end of the day, you're 
doing a one-house bill.
    So once again, the House, this Committee and the House will 
be able to say they got a split of the Ninth Circuit. And when 
it dies in the Senate, it dies with the additional judgeships 
and the rest of the country and the area of the Ninth Circuit 
will lose district judgeships which are desperately needed, new 
circuit judgeships which are desperately need.
    Mr. Issa. If the gentleman would yield.
    Mr. Berman. I ask unanimous consent for 5 additional 
minutes, if I may, and then----
    Mr. Coble. Without objection.
    Mr. Berman. Thank you.
    Mr. Issa. Would the gentleman yield?
    Mr. Berman. I will.
    Mr. Issa. Thank you. Just a small technical correction. The 
conference, actually, is neutral on this. They have not opposed 
it.
    Mr. Berman. No, their position is that it is wrong for the 
Ninth Circuit split to be linked to the national judgeship 
bill. That's all I said.
    Mr. Issa.--opposing the merits of the proposal to divide 
the Ninth Circuit.
    Mr. Berman. If the gentleman would--I was quite specific. 
They oppose the strategy of last year and this year of linking 
the entire national judgeship bill--and they're very clear on 
that.
    Mr. Issa. One other small correction.
    Mr. Berman. If I may reclaim my time.
    Mr. Issa. Of course.
    Mr. Berman. Governor Schwarzenegger strongly opposes the 
split. The Governors of Washington and Arizona oppose this 
split. The American Bar Association opposes the split. The 
Federal Bar Association opposes this split. The State Bar 
Association from the States of Montana, Washington, Hawaii, and 
Arizona all opposed the split. The judges on the Ninth Circuit 
and the lawyers who practice in the Ninth Circuit oppose this 
split. And as you know, the California Bar, of course, opposes 
the split, as do the county bar associations of all the major 
regions of California, Orange County, San Diego, San Francisco, 
and Los Angeles.
    Splitting the circuit is a complex process that risks 
seriously disrupting the administration of justice. I'd ask the 
gentleman on my time, in the new Twelfth Circuit, what 
precedent applies?
    Mr. Issa. If I can answer. The--as the gentleman knows, 
it's Congress's exclusive jurisdiction to name the lesser 
courts, including the Ninth and the Twelfth. It is not the----
    Mr. Berman. I'll let you on your time make your points, but 
if you--I offered to yield to you to answer my question. What 
precedent will the new Twelfth Circuit apply when the first 
case comes in front of a district court in the Twelfth Circuit?
    Mr. Issa. They will apply the existing Supreme Court and 
the Ninth Circuit existing----
    Mr. Berman. Where in the bill does it say that they will 
apply the Ninth Circuit precedent?
    Mr. Issa. We have previously--with all due respect to the 
gentleman, we have previously split, for example, the Fifth 
Circuit, and that precedent is already set.
    Mr. Berman. No, that's not right. The Fifth Circuit and the 
Eleventh--the Congress failed to speak on the issue of what 
precedent would apply. And in the end of the day, in the new 
Eleventh Circuit many years after it was split, the Eleventh 
Circuit decided that the Fifth Circuit precedents should apply. 
And then all the scholarly articles that came out afterwards 
said, What a mistake it was for Congress not to designate what 
the precedent----
    Mr. Issa. And I certainly would look forward to working 
with the gentleman to make that----
    Mr. Berman. Another deficiency in this bill is the failure 
to specify what precedent applies. This means district judges--
no one in either the Ninth or Twelfth circuit is bound by a 
Fifth or Eleventh Circuit decision. The Supreme Court has not 
spoken on this issue. You're laying in motion here a process 
that could take years to resolve, what precedent applies. 
Different district courts will make different decisions, 
appeals will be made just on this issue, and several years will 
pass in a state of confusion and a lack of clarity by the 
failure of the bill to do this.
    Now, let's get to some of the specific statistical 
arguments, if I might.
    Proponents of the split note that the Ninth Circuit is 
almost twice as many judges as the next-largest Federal 
circuit; serves the largest population by almost the same 
factor; and deals with the largest number of appeals. They cite 
these numbers to support the contention that the Ninth Circuit 
is overburdened and is simply too huge to operate efficiently.
    In the first instance, out of over 15,000 appeals filed in 
the Ninth Circuit, over 10,000 of them are in California alone. 
What you have done in this split is you have provided 10,000--
twice as many appeals filed in California as in all the other 
parts of the Ninth Circuit combined. But you've apportioned the 
judgeships, where you've given less than 60 percent of the 
judges for the Ninth Circuit, which have over 72 percent of the 
cases. So even in your effort to split the Ninth Circuit, you 
haven't realistically dealt with the caseload apportionment.
    The statistics--any circuit which includes all of 
California will have by far--should have the largest number of 
judges, will have the largest number of appeals, and serves by 
far the largest population. Statistics show that the Ninth 
Circuit handled about 207 appeals per circuit judge from 
October 2001 through September 2001. It sounds like a lot, but 
it was less than the Fourth Circuit, the Fifth Circuit, the 
Seventh Circuit, and the Eleventh Circuit, with the Fifth 
Circuit handling almost twice as many appeals per judge. The 
Ninth Circuit is actually in the middle of the pack with regard 
to the number of appeals handled annually.
    Mr. Coble. Mr. Berman, again your time has expired.
    Mr. Berman. Well, I will--I'll use perhaps other people 
yielding and let someone else----
    Mr. Gohmert. Mr. Chairman.
    Mr. Coble. For what purpose does the gentleman from Texas 
seek recognition?
    Mr. Gohmert. Move to strike the last word.
    Mr. Coble. The gentleman is recognized for 5 minutes.
    Mr. Gohmert. Mr. Chairman, I'll be briefer than that. Just 
to address the issue of what precedents would the Twelfth 
Circuit follow, my understanding is that it would, in the 
tradition of the Ninth Circuit, blow off most precedent and do 
what it felt like was appropriate. I say that somewhat 
facetiously, since the Ninth Circuit has a great deal of 
trouble following any precedent, including its own. But for 
that reason, I don't see the Twelfth Circuit's--who they follow 
or whom they follow as precedent as being a major issue because 
the Ninth Circuit doesn't have its history of doing that.
    And I do yield back.
    Mr. Coble. The gentleman yields back.
    Mr. Issa. Will the gentleman yield?
    Mr. Coble. The gentleman has yielded back. The gentleman 
from Wisconsin.
    Mr. Green. Mr. Chairman, move to strike the last word.
    Mr. Coble. Gentleman is recognized for 5 minutes.
    Mr. Green. Mr. Chairman, I yield my time to the 
congressman----
    Mr. Issa. I thank the gentleman.
    You know, Mr. Berman made some excellent points and I look 
forward to working with him on any technical corrections that 
he would propose. But I do want to make a couple of points. One 
is, the States that would comprise the new Ninth Circuit 
account for 72 percent of the caseloads filed through June 30, 
2005, and presently have 15 authorized judgeships equalling 54 
percent of the active judgeships. Under H.R. 4093, the new 
Ninth will increase their authorized judgeships to 22, 
accounting for 63 percent of the judgeships between the 
circuits. In fact, once these new judges, which we moved to 
have placed immediately, are in place, we will actually be 
lowering, not raising, the caseload. And as I said in my 
opening remarks--and I hope the gentleman will work with me on 
this--if we are able to take the burden of the incredibly 
voluminous growing caseload of--and clear the docket from these 
cases that involve strictly immigration and centralize that in 
a court, we will further refine the ability of the Ninth 
Circuit to work on its primary caseload.
    Just one quick more, since I am on borrowed time. I think 
it is really important that we here, on a bipartisan basis, 
recognize that Congress has an absolute requirement to look at 
the efficiencies, inefficiencies, fairness and working 
relationship of lower courts. It's something the House has an 
absolute responsibility to do. And in looking at Mr. Conyers's 
opening remarks about the Ninth Circuit not being broken, I 
would only ask if we were to be the equivalent--do the 
equivalent of not breaking up the Ninth Circuit, should we in 
fact collapse all the other circuits into just three to four 
circuits?
    The fact is that the entire Louisiana Purchase would be 
roughly equal to the Ninth Circuit as it presently is. Would 
the gentleman from Michigan recognize that if all the way down 
to Louisiana were part of a single circuit, that that would be 
roughly equivalent? We have such a large portion of the 
population in the Ninth Circuit at this time that basically we 
would be taking the other circuits and collapsing into four if 
we thought bigger was better.
    There has been an argument in the past on splitting 
differently--and Mr. Berman was very good to point out that 
this is a different split. But Mr. Berman was very accurate in 
pointing out previously that splitting California into two 
parts or more would create the possibility of two separate 
interpretations of State law within the same State. And that, 
obviously, would be a mistake.
    Are we going to be large in California? Absolutely. One of 
the statistics that I'll never get out of my mind is if just 
L.A. County were its own circuit, it would be the fifth-largest 
circuit.
    Mr. Schiff. Would the gentleman from Wisconsin yield?
    Mr. Green. I yield back.
    Mr. Coble. For what purpose does the gentleman from 
California seek recognition?
    Mr. Schiff. I move to strike the last word.
    Mr. Coble. The gentleman is recognized for 5 minutes.
    Mr. Schiff. Mr. Chairman, Members, I also speak in 
opposition to this motion both to append the split of the Ninth 
Circuit to the financing and new judgeships, which the Judicial 
Conference has opposed, and for good reason, but also this 
extraordinary process that we are using to split the Ninth 
Circuit and this belabored argument that somehow what we are 
really concerned about is the efficiency of the Ninth Circuit.
    This is now the second, third, or fourth form of the Ninth 
Circuit split. I think last year it was going to be split into 
three circuit; this year it's two. The composition of the two 
is different than it was 6 months ago. And in fact, when you 
look at what the new caseload of the new Ninth Circuit would 
be, it is higher per judge than lower under this proposal and 
it's certainly not equitable with the other new circuit that 
would be split off from it.
    And in hearing the arguments on the floor on this last year 
and in hearing the conversations among Members on it, it was 
plain this was all about ideology, that people disagreed with 
the ideology, and that's no surprise in this Committee room. 
People disagreed with decisions coming out of the Ninth 
Circuit. But that is not a reason to split a circuit. And the 
White Commission that was established to study when you split a 
circuit and when you don't was unanimous in the conclusion it 
should not be based on ideology.
    And it warms my heart to hear all this concern over the 
workload of the Ninth Circuit judges and all this great 
sympathy for those poor Ninth Circuit judges, but this is not 
what the Ninth Circuit judges are asking for, it's not what the 
litigants are asking for, it's not what the Republican 
governors in the region are asking for. And it doesn't appear 
to be based on any of the facts that have been produced by the 
court.
    The caseload of this new Ninth Circuit would be 536 cases 
per judge, as compared to 317 cases per judge for the proposed 
Twelfth Circuit. This would leave judges in the Ninth Circuit 
with 219 more cases per judge. That doesn't seem to be a well-
thought-out distribution of judicial resources.
    What's more, this idea has been circulating for 30 years, 
that the Ninth Circuit is simply too big and too inefficient. 
And frankly, I think that there may come a time where it is 
appropriate to split the Ninth Circuit. And I'm not irrevocably 
and for all time opposed to that. But I would like to make sure 
that we're doing it for a rational reason, that it's based on 
the efficiency of the courts, that we have input from the 
courts--none of which we've really had here because the reality 
is this is about ideology not about efficiency.
    Judge Kozinski, a Reagan appointee, testified before the 
Subcommittee in 2003, which may have been the last time we 
heard on this issue, ``Dividing a circuit should not take place 
to make the lives of the judges or lawyers easier or cozier or 
to reduce travel burdens. It should only take place when there 
is demonstrated proof that a circuit is not operating 
effectively and there is a consensus among the bench and bar 
and public that it serves that division is the appropriate 
remedy.''
    Mr. Issa. Would the gentleman yield?
    Mr. Schiff. There is--you know, the gentleman has had far 
more time than I'm going to get on this. If I have time, I'll 
be happy to yield at the conclusion of my remarks.
    There is none of the consensus that Judge Kozinski 
mentioned. There is none of the demonstrated proof that the 
circuit is not operating effectively. There is only 
demonstrated evidence of a dislike in this Congress, perhaps 
this Committee, for the jurisprudence of the circuit. But that 
is the last reason why you should split a circuit. Indeed, the 
division is strongly opposed by a bipartisan coalition of 
judges, experts, and officials because it would eliminate some 
of the advantages of the size of the circuit. Moreover, there 
are enormous startup costs that would be associated with this 
split, anywhere up to about $100 million, depending on where 
the new headquarters are located. The judges themselves have 
voted 30-9 against division of the circuit. Our Governor in 
California opposes division of the circuit--not that I'm always 
in agreement with our Governor, but I am on this one.
    Mr. Issa. And we will note that this time.
    Mr. Schiff. But in sum, the point I want to emphasize is if 
we're going to really, seriously contemplate a split--and 
again, I would be open to the idea--let's contemplate it in the 
right way. Let's have a hearing where we have the experts 
testify before the Committee, where we look at the analyses, 
where we get the direct input from the Judicial Conference and 
from the Ninth Circuit judges and litigants, and then let's 
make a rational determination. Let's not start with the 
conclusion and try to justify it.
    Mr. Issa. If the gentleman would yield?
    Mr. Schiff. I would yield to my colleague.
    Mr. Issa. I appreciate the gentleman's remarks. Certainly 
the 22 hearings that have been held should be at least a 
partial answer to your question. I would like to note that the 
White Commission, although it didn't support breaking up the 
circuit, it also recommended that the Ninth Circuit reorganize 
into three adjacent divisions, which it hasn't done. So to not 
take part and then want the other is----
    Mr. Coble. The gentleman's time has expired.
    Mr. Schiff. May I have an additional 30 seconds?
    Mr. Coble. Thirty seconds, without objection.
    Mr. Schiff. I would just say, yes, there have been hearings 
on this in the distant past. But if you listen to the testimony 
from the hearings, it doesn't support the split. And that's the 
point. We haven't had testimony supporting this split, and 
certainly not the far weight of that testimony.
    And I thank the Chairman.
    Mr. Coble. The gentleman's time has expired.
    Mr. Nadler. Mr. Chairman?
    Mr. Coble. For what purpose does the gentleman from New 
York seek recognition?
    Mr. Nadler. Mr. Chairman, I move to strike the requisite 
words.
    Mr. Coble. The gentleman is recognized for 5 minutes.
    Mr. Nadler. Thank you, Mr. Chairman.
    I disapprove of this bill. I hope it is not enacted. I 
yield the balance of my time to the distinguished gentleman 
from California.
    Mr. Berman. I thank the gentleman for yielding, and thank 
you, Mr. Chairman.
    I'd like to make a couple of reactions to points that my 
friend from California, Mr. Issa, made. Putting in the context 
some comments the gentleman from Texas, Judge Gohmert, made 
earlier, because, as he always does, he got to the heart of 
what the concern is, the unstated concern of many on the other 
side of the aisle.
    Mr. Issa. I might note he's not a Ninth Circuit covered 
person.
    Mr. Berman. He's a wise person. And it was about what he 
viewed as erratic decision-making and the substance of those 
decisions. Because I think that's what underlies all this. And 
I only point out the gentleman from Arizona, Mr. Renzi, made 
the same point on the floor after the sponsor of the bill, Mr. 
Simpson, had argued this doesn't have anything to do with 
judicial philosophy or disagreements with decisions, it's all 
about judicial efficiency. Then the gentleman from Arizona, Mr. 
Renzi, took the floor and reminded us what it really is about. 
My favorite is the press release from my good friend from 
Alaska, Don Young, who favors the split. And he says, This is 
good for the State of Alaska because we will no longer be 
governed by adverse court decisions made for San Francisco and 
that way of life.
    So my argument to my colleague from California is, at least 
if he had--on the other side of the aisle, if you have 
something against that way of life----
    Mr. Issa. I would suggest----
    Mr. Coble. Wait till he has yielded.
    Mr. Berman. If you have something against that way of life, 
the new Ninth Circuit, without the leavening purposes of the 
judge from Alaska and the judge from Montana, you'll find that 
way of life more and more in the new split. That may be a 
reason for others to want to support this, but I want to watch 
the people from California who so disagree with the philosophy 
of the Ninth Circuit, watch those decisions after this.
    Now, the gentleman from California, Mr. Issa, he touched on 
one important issue, that on its face superficially looks like 
could deal with the efficiency. There has been a drastic rise 
in appeals, for one reason and one reason only, and that's 
called immigration cases. And why did that happen? Because 
Attorney General Ashcroft decided, I'm going to address the 
backlog of immigration appeals at the Bureau of Immigration 
Appeals. And how is he going to address them? He's going to 
streamline them. And so he cut the number of judges in the BIA 
in half in order to reduce the backlog. The caseload so 
massively expanded that what you got were thousands of 
decisions were simply affirmances of initial decisions, without 
opinion.
    Now, when a party gets an appeal judge inside the 
Department that says the lower--the bureaucrat's decision is 
affirmed without explanation, they and their lawyer think we'd 
better get this to the courts because we don't think that was 
the right decision. They don't explain their decision. One 
simple process would take care of the only judicial efficiency 
argument that seems legitimate in the context of justifying the 
split, and that is creating a meaningful immigration appeals 
court inside the Department, which will massively reduce the 
number of cases going to the Ninth Circuit--and, by the way, it 
won't just be California, it will be Arizona and the other 
border States as well. That one change is so much more 
important.
    And this was a unilateral decision not done with the 
consent of Congress that had the impact, the consequences that 
were unforeseen. This Administration has a propensity for 
consequences that are unforeseen, but this one caused this 
massive increase in appeals to the Ninth Circuit.
    So I would suggest focusing on that rather than the split 
would be a more sensible way to approach this.
    Mr. Coble. The question occurs on Mr. Berman's second 
amendment.
    All in favor say aye?
    Opposed, no?
    It appears the nays have it.
    Mr. Berman. Mr. Chairman, on that I ask for a rollcall.
    Mr. Coble. A rollcall having been requested on the Berman, 
Waters, Schiff, Lofgren and Sanchez amendment to the Issa 
amendment in the nature of a substitute. Those in favor, when 
their names are called, will answer aye. Those opposed, no. The 
clerk will call the roll.
    The Clerk. Mr. Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no. Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no. Mr. Hyde?
    The Clerk. Mr. Hyde, no. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Lungren?
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no. Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Inglis?
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no. Mr. Flake?
    Mr. Flake. No.
    The Clerk. Mr. Flake, no. Mr. Pence?
    Mr. Pence. No.
    The Clerk. Mr. Pence, no. Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no. Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no. Mr. Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no. Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no. Mr. Gohmert?
    [No response.]
    The Clerk. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Berman?
    Mr. Berman. Aye.
    The Clerk. Mr. Berman, aye. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    [No response.]
    The Clerk. Mr. Watt?
    [No response.]
    The Clerk. Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    Mr. Delahunt. Aye.
    The Clerk. Mr. Delahunt, aye. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
    [No response.]
    The Clerk. Mr. Chairman?
    Mr. Coble. I've already voted no.
    The clerk will report.
    Are there others in the room wishing--the gentlelady from 
Florida?
    Ms. Wasserman Schultz. Aye.
    The Clerk. Ms. Wasserman Schultz, aye.
    Mr. Coble. The gentleman from North Carolina, Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye.
    Mr. Coble. The gentleman from Massachusetts, Mr. Meehan?
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye.
    Mr. Coble. The gentleman from Virginia, Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye.
    Mr. Coble. The gentleman from Texas, Mr. Gohmert?
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no.
    Mr. Coble. Are there others who wish to vote or change 
their vote? The clerk will report.
    The Clerk. Mr. Chairman, there are 14 ayes and 21 noes.
    Mr. Coble. And the second-degree amendment fails.
    Are there further second-degree amendments to the Issa 
amendment in the nature of a substitute?
    Mr. Berman. Mr. Chairman?
    Mr. Coble. The gentleman from California, Mr. Berman.
    Mr. Berman. Move to strike the last word.
    Mr. Coble. The gentleman is recognized for 5 minutes.
    Mr. Berman. I thank the gentleman. And this time I won't 
take the full 5 minutes. But I do want to make a couple of more 
points about this issue of the Ninth Circuit and cases 
overturned.
    One of the arguments cited in favor of this split is the 
misperception that the Supreme Court reverses the Ninth Circuit 
an inordinate amount of time. But the Supreme Court only 
accepts about 80 cases per year. The Ninth Circuit disposed of 
more than 12,000 cases last year. This is not an appropriate 
grounds for restructuring a circuit. In addition, according to 
the conservative Center for Individual Freedom, the October 
2002 term the Supreme Court reversed 75 percent of the Ninth 
Circuit cases it took. That seems like a large percentage, 
until you learn that the Supreme Court reversed 100 percent of 
the Fourth, Fifth, Eighth, and Tenth circuit decisions it took. 
The Supreme Court reversed about the same percentage as 
California in the Sixth and Second circuits.
    The Supreme Court has actually reversed the Ninth Circuit 
less frequently than four other circuit and in about the same 
percentage of the cases as three other courts and the district 
courts as a whole. So this notion of Ninth Circuit decisions 
being reversed disproportionately doesn't hold water.
    Caseloads on time to resolve cases: Ninth Circuit is in the 
middle of the pack. Many other circuits take much longer to 
decide these cases. For submitted cases it takes 1 month 
nationally compared with 10 days for the Ninth Circuit. The 
Sixth Circuit has the longest time to case disposition among 
the circuits. If delays in case disposition or efficiency were 
the keystone for splitting the circuits, we'd start with the 
Sixth.
    To me--I'll just conclude by saying again, dealing with the 
problem of these immigration cases and having the vast majority 
of them resolved by a meaningful process inside the Bureau of 
Immigration Appeals will do the most important thing to reduce 
caseload in the Ninth Circuit, and providing the judgeships--
four vacancies now; we're providing new judgeships for a court 
with four vacancies. Providing those vacancies and the new 
judgeships will eliminate all issues of inefficiency. That's 
the most positive thing you can do. By including the split of 
the Ninth Circuit in the bill, you end up killing the creation 
of new judgeships, because the Senate isn't going to pass it.
    Mr. Coble. The gentleman's time has expired.
    Mr. Lungren. Mr. Chairman?
    Mr. Coble. The gentleman from California, Mr. Lungren, for 
what purpose do you seek recognition?
    Mr. Lungren. Strike the last word.
    Mr. Coble. The gentleman is recognized for 5 minutes.
    Mr. Lungren. I appreciate the statistics the gentleman from 
California has given us. My problem is I dealt with the Ninth 
Circuit for 8 years as an attorney general having more business 
before the Ninth Circuit than any other office in the country. 
And I can recall when they reversed 19 out of 21 times, 21 out 
of 22 times before the U.S. Supreme Court, most of those cases 
involving my office representing the State of California. So I 
don't know whether you're going to present to me that other 
circuits do a worse job. It is tough to figure out how they do 
a worse job. We have one judge on the Ninth Circuit who is 
singularly the most reversed judge in the United States.
    But the point is, look. I had Ninth Circuit judges come to 
me and say let's not break this up, we can handle it. As a 
matter of fact, we're going to change our mini en banc from 11 
members to 15 members. That's the mini en banc. The whole en 
banc is 28 members. So now you have this unwieldy operation 
there just in terms of size.
    The uncertainty that the gentleman suggests if we break it 
into two circuits is interesting, because we have that 
uncertainty now. I mean, it's a roll of the dice what three-
judge panel you get, and then what mini en banc you're going to 
get, and then the possibility you might get a full en banc. 
Nobody else does that. Nobody else faces that in the entire 
United States. And if the arguments we keep hearing, that this 
is an example of judicial efficiency, we ought to just take all 
of the circuits in the United States and put them into huge 
circuit. Instead of a 15-panel mini en banc, we can have a 35-
panel mini en banc using the same arguments that we're hearing 
from the judges of the Ninth Circuit.
    And I know the arguments that we're not talking about here, 
about the philosophy and the ideology and the tipping point and 
all that sort of thing. I'm cognizant of that. That gives me 
pause, I might say. But in terms of efficiency and someone who 
actually worked with them for 8 years, I cannot understand why 
we say that it's more efficient to have this unwieldy operation 
than it would be to at least have a more confined operation 
that you would have under the break here.
    The other dynamic is the gentleman from California keeps 
talking about the Senate. Let's talk about the House. Unless we 
have a break of the Ninth Circuit, we're not going to get a 
bill that has more judges. I mean, that's been the experience 
here.
    Mr. Coble. The gentleman's time has expired.
    Without objection, the staff is directed to make technical 
and conforming changes.
    Mr. Berman No, we have to have a vote on the bill.
    Mr. Coble. Oh, okay, yeah.
    The question occurs on the motion to report the bill, H.R. 
4093, favorably----
    Mr. Berman. Have we adopted the substitute?
    Mr. Coble. Pardon?
    Mr. Berman. Have we adopted the substitute?
    Mr. Coble. The question occurs on the amendment in the 
nature of a substitute--thank you, Howard--offered by the 
gentleman from California, Mr. Issa.
    All in favor say aye?
    Opposed, nay?
    It appears the ayes have it. The ayes have it. And the 
staff--without objection, the staff is directed to make 
technical and conforming changes. All Members will be given 2 
days----
    Mr. Berman. Now we have to pass the bill.
    Mr. Coble. Pardon?
    Mr. Berman. Mr. Chairman, we haven't voted on the bill yet.
    Mr. Coble. The question occurs on the motion to report the 
bill, H.R. 4903, favorably.
    All in favor, say aye?
    Opposed, nay?
    It appears the ayes have it.
    Mr. Berman. Mr. Chairman, on that I ask for a recorded 
vote.
    Mr. Coble. rollcall has been requested. When your name is 
called, please--all those in favor will vote aye; those 
opposed, nay. The clerk will call the roll.
    The Clerk. Mr. Hyde?
    Mr. Hyde. Aye.
    The Clerk. Mr. Hyde, aye. Mr. Smith?
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye. Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte?
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye. Mr. Chabot?
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye. Mr. Lungren?
    Mr. Lungren. Aye.
    The Clerk. Mr. Lungren, aye. Mr. Jenkins?
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye. Mr. Cannon?
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Inglis?
    Mr. Inglis. Aye.
    The Clerk. Mr. Inglis, aye. Mr. Hostettler?
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye. Mr. Green?
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye. Mr. Keller?
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye. Mr. Issa?
    Mr. Issa. Aye.
    The Clerk. Mr. Issa, aye. Mr. Flake?
    Mr. Flake. Aye.
    The Clerk. Mr. Flake, aye. Mr. Pence?
    Mr. Pence. Aye.
    The Clerk. Mr. Pence, aye. Mr. Forbes?
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes, aye. Mr. King?
    Mr. King. Aye.
    The Clerk. Mr. King, aye. Mr. Feeney?
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney, aye. Mr. Franks?
    Mr. Franks. Aye.
    The Clerk. Mr. Franks, aye. Mr. Gohmert?
    Mr. Gohmert. Aye.
    The Clerk. Mr. Gohmert, aye. Mr. Conyers?
    Mr. Conyers. No.
    The Clerk. Mr. Conyers, no. Mr. Berman?
    Mr. Berman. No.
    The Clerk. Mr. Berman, no. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. No.
    The Clerk. Mr. Nadler, no. Mr. Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott, no. Mr. Watt?
    Mr. Watt. No.
    The Clerk. Mr. Watt, no. Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    Ms. Waters. No.
    The Clerk. Ms. Waters, no. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    Mr. Weiner. No.
    The Clerk. Mr. Weiner, no. Mr. Schiff?
    Mr. Schiff. No.
    The Clerk. Mr. Schiff, no. Ms. Sanchez?
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez, no. Mr. Van Hollen?
    Mr. Van Hollen. No.
    The Clerk. Mr. Van Hollen, no. Ms. Wasserman Schultz?
    Ms. Wasserman Schultz. No.
    The Clerk. Ms. Wasserman Schultz, no. Mr. Chairman?
    Mr. Coble. Aye.
    The Clerk. Mr. Chairman, aye.
    Mr. Coble. Are there others in the room--the gentleman from 
Alabama?
    Mr. Bachus. Aye.
    The Clerk. Mr. Bachus, aye.
    Mr. Coble. Other Members who wish to vote or change their 
vote? The gentleman from California?
    Mr. Gallegly. Mr. Chairman, with the passage of the Issa 
amendment, I cautiously vote aye.
    The Clerk. Mr. Gallegly, aye.
    Mr. Coble. The gentlelady from California?
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren, no.
    Mr. Coble. Are there others who wish to vote or change 
their vote? If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 22 ayes and 12 noes.
    Mr. Coble. And the amendment in the nature of a substitute 
is approved.
    Without objection, the bill will be reported favorably to 
the House in the form of a single amendment in the nature of a 
substitute incorporating no amendments.
    Without objection, the staff is directed to make any 
technical and conforming changes. All Members will be given 2 
days, as provided by House rules, in which to submit 
additional, dissenting, supplemental, or minority views.
    For the benefit of the Members of the Committee, we will 
break for lunch on or about 12:30 for about 30 minutes. And 
keep in mind, we will suspend when our bill is on the House 
floor.
    [Intervening business.]
    That concludes the markup. I thank everyone for their 
participation. Without objection, the markup is adjourned.
    [Whereupon, at 6:22 p.m., the Committee was adjourned.]
                             Minority Views

    While we support the additional judgeships provided for in 
titles I and II of H.R. 4093, we oppose title III of the bill. 
Title III [hereinafter ``the Ninth Circuit split''] of the bill 
contains provisions that would split the Ninth Circuit federal 
court of appeals into a ``new'' Ninth Circuit composed of 
California, Hawaii, Guam and the Northern Mariana Islands; and 
a newly created Twelfth Circuit composed of Alaska, Arizona, 
Idaho, Montana, Nevada, Oregon, and Washington.
    The bill's proponents would have us believe that this bill 
is about addressing inadequacies in the administration of 
justice relating to the Ninth Circuit's size, delays in the 
case docket, consistency of the opinions and the reversal rate 
by the United States Supreme Court of Ninth Circuit 
decisions.\1\ Indeed, the discussion should be about the 
efficiency and effectiveness of the Ninth Circuit, but, in 
actuality, it is not. Many proponents of the bill are motivated 
by political considerations \2\ and have not even addressed the 
substantive issues related to this particular split in a 
hearing.\3\
---------------------------------------------------------------------------
    \1\ Press Release, Sensenbrenner Introduces Legislation Providing 
For Additional Federal Judgeships and a Realignment of the Ninth 
Circuit Court of Appeals, U.S. House of Representatives Committee on 
the Judiciary, October 20, 2005 (hereafter ``Sensenbrenner Press 
Release'').
    \2\ Press Release, Ensign Introduces Bill to Split Ninth Circuit 
Court, Thursday, June 23, 2005, also available at http://
ensign.senate.gov/media/pressapp/record.cfm?id=239479&& (last visited 
November 1, 2005). These kinds of motivations are completely contrary 
to what the late Justice Byron White of the Supreme Court, clearly 
stated in the White Commission's report:

      ``There is one principle that we regard as undebatable: It 
      is wrong to realign circuits (or not realign them) and to 
      restructure courts (or leave them alone) because of 
      particular judicial decisions or particular judges. This 
      rule must be faithfully honored, for the independence of 
      the judiciary is of constitutional dimension and requires 
---------------------------------------------------------------------------
      no less.''

The Commission on Structural Alternatives for the Federal Courts of 
Appeals, Final Report (1998), submitted to the President & the Congress 
pursuant to Pub. L. No. 105-119, also available at http://
www.library.unt.edu/gpo/csafca/final/appstruc.pdf (last visited 
November 1, 2005) (hereafter ``The White Commission Report'').
---------------------------------------------------------------------------
    \3\ Even Judge Andrew Kleinfeld, a proponent of the Ninth Circuit 
split, admitted in testimony before the Senate Committee on the 
Judiciary, Subcommittee on Administration Oversight and the Court, that 
``In my view, the better division is a three-way split and not the two-
way split currently on the table.'' An amendment was offered at the 
Full Committee mark-up by Representative Berman to strike Title III 
that was defeated by a vote of 22-12.
---------------------------------------------------------------------------
    The reality is that the Ninth Circuit split portion of the 
bill would accomplish little other than increasing delays in 
the docket, exacerbate consistency problems without guidance on 
proper precedent and expend huge start-up costs to split the 
Ninth Circuit.\4\ As stated by Ms. Roxie Bacon, the past 
president of the Arizona State Bar,
---------------------------------------------------------------------------
    \4\ Statement of Judge Sidney R. Thomas, before Senate Judiciary 
Committee Subcommittee on Administrative Oversight and the Court, 
October 26, 2005 (Circuit Judge, Ninth Circuit)(hereafter `Statement of 
Judge Thomas''). He stated:

      ``Division of the Ninth Circuit at this time would have a 
      devastating effect on our Court. It would increase delay in 
      case processing substantially and would decrease access to 
      justice. It would create unnecessary and expensive 
      duplication of core functions, while substantially reducing 
---------------------------------------------------------------------------
      vital services.''

        ``No matter how you slice it, the result is less than 
        the whole. Breaking up the Court does not save money; 
        it eats it up. It does not foster efficiency but 
        rewards duplications. And it is not necessary in order 
        to cope with an oversized workload or bench, because 
        neither is oversized. Most important, it retards the 
        administration and delivery of justice, the serious and 
        majestic purpose of our courts.'' \5\
---------------------------------------------------------------------------
    \5\ Roxie Bacon, Retain the Ninth Circuit: An Efficient and 
Excellent Bench, 42 ARIZ. ATT'Y 35 (September 2005).

    In addition, the Ninth Circuit split would not solve the 
supposed problem of a high reversal rate at the Supreme Court 
because the bill does not address the actual possible reasons 
for this claimed high reversal rate, which is not supported by 
the statistics.\6\ Because Supreme Court reversals affect only 
a miniscule number of cases, it cannot serve as a meaningful 
point of evaluation of judicial administration and is not 
particularly instructive about the structural division of a 
circuit court.\7\
---------------------------------------------------------------------------
    \6\ ``The Ninth Circuit's rate of reversal by the U.S. Supreme 
Court is not relevant to how the court functions or is administered. 
Because the Supreme Court grants certiorari in so few cases 
(approximately 80 per year), a circuit reversal rate statistic is not a 
meaningful indicator of the quality of jurisprudence. In any event, the 
reversal rate of the Ninth Circuit for the last six years has been 
roughly equivalent to the national average. Although in 1996 the Court 
did have a reversal rate higher than the national average, that has not 
been the case since.'' Arguments for Retaining the Present Structure of 
the Ninth Circuit, available at http://www.earthjustice.org/policy/
judicial/pdf/oppose--circuit--split.pdf. See also, infra 33, and 
accompanying text.
    \7\ Statement of Judge Thomas, supra note 4, at pp. 18-19.
---------------------------------------------------------------------------
    The bill would only cause greater problems because the 
split proposed would not equitably divide the case load, but 
instead isolate California, in which the highest case load will 
still exist, into the new Ninth Circuit, which will have 
proportionately less judgeships to deal with its current case 
load.\8\
---------------------------------------------------------------------------
    \8\ Statement of Judge Thomas, supra note 4, at p. 14; Bacon, supra 
note 5, at p 44. Specifically, he states:

      ``The current proposals (a three-way split or a two-way 
      split) yield fewer judges to carry the disproportionately 
      heavy caseload in the remaining Ninth Circuit. Fox example, 
      if the Ninth is split in two (S. 1296; H.R. 212), there 
      would be 24 permanent judges and two temporary ones in the 
      new Ninth, which would include California, Hawaii, Guam and 
      the Northern Marianas. This new Ninth would have 74 percent 
      of the judges, but 82 percent of the caseload, whereas the 
      new Twelfth, with 14 judges and comprised of Alaska, 
      Arizona, Idaho, Montana, Nevada, Oregon and Washington, 
      would have only 18 percent of the caseload but 26 percent 
      of the judges.'')
    For this reason, the Ninth Circuit split is opposed by: (1) 
Judges--the large majority of the Ninth Circuit judges, 
including three Bush appointees, The Honorable Judge Bea, The 
Honorable Clifton and the Honorable Callahan; \9\ (2) 
government officials--Gov. Arnold Schwarzenegger of California, 
former Governors Gray Davis and Pete Wilson, the former 
Governor of Washington, Gary Locke; \10\ and (3) many legal 
groups--the American Bar Association and the overwhelming 
majority of state, local and federal bar associations.\11\
---------------------------------------------------------------------------
    \9\ See Letter to Senator Sessions on October 21, 2005 (hereafter 
``Letter to Sessions'').
    \10\ Jeff Chomey, All-Stars Enlisted to Stop 9th Circuit Split, The 
Recorder (April 20 2004), also available at http://www.law.com/jsp/
article.jsp?id=1082131844221# (last visited November 1, 2005).
    \11\ Id.; see also Statement of Judge Alex Kozinski, before Senate 
Judiciary Committee Subcommittee on Administrative Oversight and the 
Court, pp. 3-4, October 26, 2005 (Circuit Judge, Ninth 
Circuit)(hereafter ``Statement of Judge Kozinski'').
---------------------------------------------------------------------------
    We oppose the current Ninth Circuit split as set out in 
title III because it is not supported by any evidence of need, 
it is opposed by all who should support it, and it does not 
address any of the alleged ``needs'' it is supposed to address. 
If evidence supported the allegations of lack of efficiency and 
efficacy in the Ninth Circuit; if it was backed by all who 
should support it; and if the proposed solutions and changes to 
the Ninth Circuit were feasible, we may have reached a 
different conclusion. The current evidence, however, 
necessitates the conclusion set out in these views: the Ninth 
Circuit should not be split.

 A. THERE IS LITTLE SUPPORT TO SPLIT THE NINTH CIRCUIT AND PROPONENTS 
 HAVE NOT DEMONSTRATED THE ADVISIBILITY OF SPLITTING THE CIRCUIT INTO 
                         TWO DISTINCT CIRCUITS.

    Legislation that splits a circuit should be supported by in 
depth analysis and studies, yet the most current and relevant 
congressional study and report that has looked into the matter 
of splitting the Ninth Circuit concluded that that splitting 
the Ninth Circuit was impractical and unnecessary.\12\ It 
pointed out that 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.\13\ In fact, 
it determined that realignment into two (2) 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.\14\ It concluded, instead, that 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, and it 
recommended a method for doing so.\15\
---------------------------------------------------------------------------
    \12\ The White Commission Report, supra note 2, at p. iii (taken 
from the ``Appellate Structure: Findings & Recommendations In Brief'' 
of the White Commission Report). Specifically, it stated:

      ``Splitting the Ninth Circuit itself would be impractical 
      and is unnecessary. As an administrative entity, the 
      circuit should be preserved without statutory change.''
---------------------------------------------------------------------------
    \13\  Id., at p. 52 (``Moreover, it is impossible to create from 
the current Ninth Circuit two or more circuits that would result in 
both an acceptable and equitable number of appeals per judge and courts 
of appeals small enough to operate with the sort of collegiality we 
envision, unless the State of California were to be split between 
judicial circuits--an option we believe to be undesirable.'')
    \14\ Id., at p. 8-9.
    \15\ The White Commission Report proposed that the Ninth be 
organized into three regionally-based adjudicative divisions which 
would hear and decide all appeals from the district courts in the 
respective divisions as follows:

     GNorthern Division--istricts of Alaska, Idaho, Montana, 
---------------------------------------------------------------------------
Oregon, and Eastern and Western Washington.

     GMiddle Division--Districts of Northern and Eastern 
California, Guam, Hawaii, Nevada, and Northern Mariana Islands.

     GSouthern Division--Districts of Arizona and Central and 
Southern California.

Each regional division should have from seven to 11 active circuit 
judges. A majority should reside in the division, but some should serve 
for a term in a division other than where they reside to enhance inter-
divisional consistency. See White Commission Report, supra note 2, at 
pp. 40-50.
    And though many of the proponents of the Ninth Circuit 
split cite to the Fifth Circuit split, history shows a marked 
difference between the current huge opposition to the Ninth 
Circuit split, and the nearly unanimous support that was behind 
the split of the Fifth Circuit.\16\ This evidence strongly 
counsels against a Ninth Circuit split. In splitting the Fifth 
Circuit, Congress acted only when the judges and the lawyers of 
the region, speaking with a voice that was nearly unanimous, 
agreed that the split was necessary.\17\ Though a bill was 
introduced a short two months after a commission had thoroughly 
investigated a potential split of the Fifth Circuit, 
legislation was not enacted until several years thereafter.\18\ 
One of the main reasons it took so long to enact Fifth Circuit 
split legislation was that the proposed division was strongly 
opposed by some members of the court, as well as by some 
lawyers' groups.\19\ It was not until professional opinion 
supported, and a unanimously signed petition to Congress from 
the Circuit Council (of the old Fifth Circuit) showing nearly 
complete support, that any legislation was passed to split the 
Fifth Circuit.\20\ The Fifth Circuit was split only after the 
following critical statements were registered as supporting the 
split: statements (1) from the bar associations of each of the 
six states affected, (2) from the magistrates of the Fifth 
Circuit, (3) from the district judges of the Fifth Circuit, (4) 
from the bankruptcy judges of the Fifth Circuit, (4) from the 
Federal Bar Association, and (5) from the Justice 
Department.\21\
---------------------------------------------------------------------------
    \16\ Arthur D. Hellman, Dividing the Ninth Circuit: An Idea Whose 
Time Has Not Yet Come, 57 Mont. L. Rev. 261, 268-272 (1996).
    \17\ Id. at 269 (citing Deborah J. Barrow & Thomas G. Walker, A 
Court Divided: The Fifth Circuit Court of Appeals and the Politics of 
Judicial Reform (1988), and Arthur D. Hellman, Deciding Who Decides: 
Understanding the Realities of Judicial Reform, 15 Law & Soc. Inquiry 
343 (1990)).
    \18\ Hellman, supra note 16, at 269.
    \19\ Id.
    \20\ Id.
    \21\ Id. (citing Arthur J. Stanley & Irma S. Russell, The Political 
and Administrative History of the United States Court of Appeals for 
the Tenth Circuit, 60 Denver L.J. 119, 127 (1983)).
---------------------------------------------------------------------------
    Similarly, this same unanimity of professional opinion also 
characterized the one previous division of a circuit that took 
place in 1929, when Congress carved out the Tenth Circuit from 
the old Eighth.\22\ By the time hearings were held on the old 
Eight Circuit division proposal, all of the judges of the 
existing Eighth Circuit and bar associations of the eight 
affected states had expressed their approval.\23\
---------------------------------------------------------------------------
    \22\ Id. at 269-70.
    \23\ Id.
---------------------------------------------------------------------------
    This unanimity of professional opinion is noticeably 
lacking on the Ninth Circuit split. Legislation that greatly 
impacts the judiciary should have the support of the judiciary, 
and at a minimum, the support of the judges it will affect, and 
the attorneys who litigate in those courts.\24\ Title III has 
no such support. The large majority of the Ninth Circuit judges 
oppose the split.
---------------------------------------------------------------------------
    \24\ Statement of Judge Kozinski, supra note 11, at p. 1. He 
stated:

      ``Dividing a circuit should only take place when: (1) there 
      is demonstrated proof that a circuit is not operating 
      effectively; and (2) there is a consensus among the bench 
      and bar and public that it serves that division is the 
      appropriate remedy. Neither of those conditions exists 
---------------------------------------------------------------------------
      today.''

        ``Advocates of circuit division have, of course, every 
        right to put forth their ideas, whether in the form of 
        legislation or otherwise. But their efforts exact a 
        cost--the `distractions' and `guerilla warfare' that 
        Judge O'Scannlain referred to. Perhaps at some time in 
        the future the judges and lawyers of the Ninth Circuit 
        will agree that the court of appeals is simply too 
        large to operate effectively. They will then do what 
        the judges and lawyers of the Fifth Circuit did two 
        decades ago: they will abandon their opposition to 
        division and ask Congress to act. Until that time, 
        those who care about the Ninth Circuit Court of Appeals 
        can serve it best by freeing the judges from the 
        `distractions' generated by legislative battles. This 
        will allow the judges to `get back to judging'--and 
        also to continue their impressive record of 
        experimentation and innovation in the mechanisms and 
        structures appellate justice.'' \25\
---------------------------------------------------------------------------
    \25\ Arthur D. Hellman, Getting it Right: Panel Error and En Banc 
Process in Ninth Circuit Court of Appeals, 34 U.C. Davis L. Rev. 425 
(2000-2001).

    Furthermore, the state bar associations for the states of 
Arizona, California, Hawaii, Montana, Nevada, and Washington, 
as well as the bars of many of the county and city bar 
associations in California, such as Orange County, San Diego, 
San Francisco and Los Angeles, all oppose the split of the 
Ninth Circuit.\26\
---------------------------------------------------------------------------
    \26\ See Bacon, supra note 5, at p. 46.
---------------------------------------------------------------------------
    Without the support, indeed the opposition, of the affected 
judges, state government officials and the leading legal groups 
in almost every one of the individual states currently included 
in the Ninth Circuit, it is an anathema that Congress would 
even contemplate splitting the Ninth Circuit in this way at 
this time.

       B. THE NINTH CIRCUIT IS CURRENTLY EFFICIENT AND EFFECTIVE.

1. The Actual Size of the Ninth Circuit is Irrelevant
    The size of the Ninth Circuit has not changed in almost a 
hundred years. According to Judge Thomas, the proposed Ninth 
Circuit split has no geographic rationality:

        ``The `stringbean circuit' proposal (Alaska, 
        Washington, Oregon, Idaho, Montana, Nevada, and 
        Arizona) lacks geographic coherence. Central 
        administration in either Phoenix or Seattle would 
        prejudice the attorneys not located in those regions. 
        It would also mean that many attorneys would have a 
        greater distance to travel to the circuit 
        headquarters.'' \27\
---------------------------------------------------------------------------
    \27\ Statement of Judge Thomas, supra note 4, at p. 32.

    According to Judge Thomas, a Ninth Circuit split will 
disrupt Ninth Circuit jurisprudence.\28\ He says this will 
occur, not only because of the development of federal law, but 
because most of the states which form the Ninth circuit have 
strong jurisprudential ties to California.\29\
---------------------------------------------------------------------------
    \28\ Id.
    \29\ Id. According to Judge Thomas:

      ``California adopted the Field Code in 1850, followed by 
      Oregon and Washington in 1854; Nevada in 1861; and Arizona, 
      Idaho and Montana in 1864. In addition, all the other Ninth 
      Circuit states have adopted significant aspects of 
      California law, and rely on California judicial 
      construction.''
    Furthermore, to ensure ``coherence'' in opinions the Ninth 
Circuit has developed a sophisticated issue-tracking system 
that enables all judges to remain current with decisions by 
other panels on like issues. This system will address and 
improve the consistency and coherence of the Ninth Circuit's 
decisions. Therefore, proponents' claim that the size of the 
Ninth Circuit may cause inconsistency in law because it 
prevents the sort of collegiality among judges that leads to 
consistent legal opinions, has been addressed. Moreover, with 
the advent of all other kinds of new communication 
technologies, the impact of size and distance on the Ninth 
Circuit's efficiency has been mitigated.
    Proponents of the Ninth Circuit split also forget that out 
of the over 15,000 appeals filed in the Ninth Circuit--over 
10,000 of them are in California alone.\30\ Therefore, any 
circuit that includes all of California will still have the 
largest number of judges, appeals and serve the largest 
population. Furthermore, the specific split described in title 
III, where California is coupled with Hawaii, Guam, and the 
Northern Mariana Islands does not resolve many of the issues 
that have been raised as the reason for splitting the Ninth 
Circuit due to its size for example, the cost of travel for the 
judges or litigants,\31\ or the number of necessary judges. In 
addition, while the Ninth Circuit covers the Western states, 
there is a benefit to maintaining its current geographical 
boundaries, since many states economies are enmeshed with the 
California market and would benefit from similar law.\32\
---------------------------------------------------------------------------
    \30\ The source of the statistic has been derived from the Annual 
Reports of the Director of the Administrative Office, U.S. Courts, 
Tables B, B1, 4 and 5. See also http://www.uscourts.gov/judbus2004/
contents.html.
    \31\ In Sensenbrenner's Press Release, which introduced H.R. 4093, 
part of his reasoning for splitting the Ninth Circuit is ``[a] court 
that is too far removed from those whose disputes it is responsible for 
adjudicating imposes severe costs on those who must appear before it.'' 
See supra note 1.
    \32\ Bacon, supra note 5, at p. 36. In arguing that a Ninth Circuit 
split which divides California and Arizona would be detrimental to 
Arizona she states:

      ``[D]elivering justice has been pushed aside by the 
      pettiest politics. What the breakup would do is . . . 
      separate Arizona from its closest economic neighbor, 
      California, creating highly prejudicial barriers to the 
---------------------------------------------------------------------------
      growth of Arizona's industries and commerce.''

This is also echoed by Joseph Russoniello, Senior Counsel to the law 
firm Cooley Godward LLP, in San Francisco, California, who testified at 
the Senate Judiciary Committee testimony on October 26, 2005, stating 
that,

      ``. . . over the years I have seen more commonality of 
      interest among the states of the Ninth Circuit then 
      division. Each has a natural beauty that it tries to 
      preserve and balance with economic interests. Tourism is a 
      growth industry common to all.''

Statement of Joseph Russonieollo, before Senate Judiciary Committee 
Subcommittee on Administrative Oversight and the Court, October 26, 
2005.
    Another unfounded complaint made by the proponents of title 
III is that due to the Ninth Circuit's size, the three (3) 
judge panels rarely involve the same three (3) judges. It is 
argued by proponents of a split that the number of possible 
permutations of panels leads to inconsistent opinions. However, 
it can also be said that the shifting nature of panels 
contributes to the objectivity of decision-making, and makes it 
difficult for any one bias or philosophy to predominate.
    In addition, the Ninth Circuit has already remedied the 
issue of the limited use of the en banc function by the Ninth 
Circuit, which supporters of the split claim results in a high 
reversal rate in the Supreme Court and frustrates the 
development of more stable circuit law. Recently, Chief Judge 
Mary M. Schroeder announced a rule amendment that has been 
adopted that increases the size of en banc courts convened by 
the Ninth Circuit to resolve important issues of law within the 
circuit. The amendment will increase the size of en banc courts 
from 11 to 15 judges, constituting a majority of the court's 28 
authorized judges.\33\
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    \33\ Press Release, United States Courts for the Ninth Circuit, 
October 1, 2005.
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2. The Ninth Circuit is Effective at Docket Management
        ``Some of us took to the Bench with trepidation that 
        the size of the Circuit and volume of cases would 
        result in inefficiencies; that the number of judges 
        would result in lack of collegiality. . . . Regardless 
        of our views before joining the Ninth Circuit, all of 
        have been impressed with the efficiency with which the 
        court dispatches its business and our procedures for 
        maintaining a uniform federal jurisprudence in our 
        Circuit. . . . It is all too easy to look at the Ninth 
        Circuit's size and case load from the outside and 
        summarily conclude changes are needed. But take it from 
        some recent arrivals who are on the inside its 
        administrative efficiency is second to none.\34\
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    \34\ See Letter to Sessions, supra note 9. Note that the three (3) 
judges signing the letter were all recent appointees to the Ninth 
Circuit by President Bush.

    Proponents claim that the Ninth Circuit has the greatest 
number of appeals filed in 2004 and the highest percentage 
increase in appeals filed over the past four years.\35\ 
However, this is largely as a result of the monumental increase 
in the number of immigration case filings. Currently, 45% of 
the appeals handled by the Ninth Circuit are new immigration 
case filings.\36\ In part, this problem was created when then 
Attorney General Ashcroft decided to streamline the backlog of 
immigration cases at the Board of Immigration Appeals.\37\ As a 
result the number of immigration cases coming to the Ninth 
Circuit has increased by the thousands in a very short period 
of time. Even so, the Ninth Circuit has been able to dispose of 
a large majority of these cases either before briefing due to 
jurisdictional defects, or through procedural efficiencies due 
the court's issue identification system and submission 
program.\38\
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    \35\ See Statement of Chief Judge Mary M. Schroeder, before Senate 
Judiciary Committee Subcommittee on Administrative Oversight and the 
Court, p. 2, October 26, 2005 (Chief Circuit Judge, Ninth Circuit). See 
also Statement of Judge Thomas, supra note 4, at pp. 2-3, wherein Judge 
Thomas stated:

      ``The Circuit would be current in its workload, except for 
      an unusual and unanticipated circumstance: the 
      unprecedented growth in immigration administrative 
      petitions for review during the last several years. . . . 
      The present caseload challenge is the enormous increase in 
      immigration petitions for review.''
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    \36\ Statistics show that the District Court filings have remained 
the same. The source of the statistic has been derived from the AO 
Appeals Statistical Tables B and B3-B, and the Annual Reports of the 
Director of the Administrative Office, U.S. Courts, Tables B, B1, 4 and 
5. See also http://www.uscourts.gov/judbus2004/contents.html.
    \37\ Statement of Judge Thomas, supra note 4, at p. 3. According to 
Judge Thomas,

      ``The increase in immigration caseload stemmed from a 
      decision of the Attorney General to eliminate the backlog 
      of 56,000 cases that existed in the Board of Immigration 
      Appeals. That decision resulted in the resolution of tens 
      of thousands of cases by the BIA in a matter of months. 
      Over half of the petitions for judicial review from those 
      cases were venued in the Ninth Circuit.''
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    \38\ Statement of Judge Thomas, supra note 4, at pp. 3-4.
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    Furthermore, statistics show that the Ninth circuit is 
actually in the middle of the pack with regard to the number of 
appeals handled annually. The Ninth Circuit handled about 207 
appeals per circuit judge from October 2000 through September 
2001. Though this may sound like a lot, it was still less then 
the Fourth, Fifth, Seventh, and Eleventh Circuits; with the 
Fifth Circuit handling almost twice as many appeals per judge. 
Furthermore, though supporters of the Ninth Circuit split point 
out that the Ninth Circuit ranks at or near the bottom in time 
from filing a case in the district court to the final appellate 
disposition, they fail to raise the fact that the Ninth Circuit 
is among the fastest circuits once a case is argued or 
submitted to a panel. It takes the Ninth Circuit 1.4 months to 
file a decision following argument, as opposed to the national 
average of 2.1 months. For submitted cases, it takes 1 month 
nationally, as compared with ten (10) days it takes the Ninth 
Circuit to dispose of the case. It is actually the Sixth 
Circuit that has the longest time to case disposition among the 
circuits. Therefore, if delays in case disposition, or 
``efficiency,'' were the keystone for splitting circuits, the 
proponents of title III should start with the Sixth Circuit. 
Plus, any complaints about delay are in actuality an indication 
of unfulfilled judgeships, and the need for the additional 
judgeships that are contained in titles I and II of the current 
bill, and supported by the minority.
3. The Ninth Circuit's Reversal Rate is Consistent with Other Circuits'
    Compared to other circuits, the present Ninth Circuit 
reversal rates are not appreciably higher than other circuits, 
which sometimes have higher reversal rates, yet are not the 
target of a bill to split their circuit. In fact, in 2005, 
statistics show that in the eyes of litigants, who appealed a 
total of 1,007 cases, and the Supreme Court, the Ninth Circuit 
got it ``right'' 98.5% of the time.\39\
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    \39\ Bacon, supra note 5, at p. 36. Ms. Bacon made the following 
statement:

      ``In 2005, the Ninth Circuit took in 15,392 cases. In 1,007 
      of those cases, 6.5 percent, the losing side sought Supreme 
      Court review. A total of 94.5 percent of those who lost 
      their appeal chose not to ask the high court to reverse. Of 
      those who did seek review, the Supreme Court granted it in 
      19 cases, or 1.9 percent. Because it only takes four votes 
      to accept review, the Supreme Court's review rate is itself 
      a statement of agreement with the vast majority of the 
      Ninth Circuit's work. Finally, the Supreme Court reversed 
      the Ninth in 16 cases, or \1/10\ of 1 percent of the 
      Ninth's annual caseload. And even if you focus solely on 
      the 1,007 cases in which review was sought, the `reversal' 
      rate is about 1.5 percent, meaning that even in the eyes of 
      litigants and the Supreme Court, the Ninth Circuit got it 
      `right' 98.5 percent of the time.''
    Proponents of the split ignore the fact that their 
legislation will have no effect on the fact that the reversal 
rates have much to do with the kinds of industries and 
resulting legal questions that are unique to the Ninth Circuit 
region.
    In addition, according to the conservative Center for 
Individual Freedom, in the October 2002 Term, the Supreme Court 
reversed only 75% of the Ninth Circuit cases it took. When 
compared to other circuits, this is not a large percentage: the 
Supreme Court reversed 100% of the Fourth, Fifth, Eighth and 
Tenth Circuit decisions it took. Furthermore, the Supreme Court 
actually reversed 71% of the Sixth Circuit decisions, and 67% 
of the Second and Seventh and District Court decisions. Thus 
the Supreme Court actually reversed the Ninth Circuit less 
frequently than four (4) other circuits on a percentage basis, 
and in about the same percentage of the cases as three (3) 
other circuits, and the District Courts as a whole.

 C. THE NINTH CIRCUIT SPLIT IS COSTLY, BURDENSOME AND WILL ONLY CREATE 
                         AMBIGUITY IN THE LAW.

    As defenders of the current Ninth Circuit, we believe that 
a split will still produce at least one circuit (that which 
includes California) which will generate an enormous workload. 
Splitting the circuit will require further layoffs of 
experienced staff so that the new circuits can hire 
inexperienced replacements at different locales. Two circuits, 
with their duplicate headquarters, clerk's offices, procurement 
divisions and other administrative functions, will force judges 
to spend much more time feeding the administrative beast rather 
than deciding cases. Litigants will have to wait even longer 
for their cases to be resolved.
    In addition, the cost of splitting the Ninth Circuit is 
exorbitant.\40\ Construction of new courthouses will be 
required, leaving present buildings underused. This financial 
outlay would be further exacerbated by the fact that the 
Judicial Conference of the United States just requested 
$65,596,000 to remedy the federal courts situation caused by 
Hurricanes Katrina, which has resulted in the closing of the 
U.S. Courthouse buildings in New Orleans as well as the federal 
court houses in Hattiesburg and Gulfport, Mississippi.\41\
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    \40\ Cost estimates have been put together by the Administrative 
Office of the Courts, in cooperation with the General Services 
Administration, and by the Congressional Budget Office. Both estimates 
show that the Ninth Circuit split costs would be exorbitant. 
Administrative Office of the Courts, Ninth Circuit Legislation Costs 
Estimate (October 24, 2005)(hereafter ``AO's Cost Estimates Report''); 
Administrative Office of the Courts, Incremental Costs Associated with 
HR 4093 (October 24, 2005)(hereafter ``AO's Incremental Costs 
Report'').
    \41\ Letter to The President from the Judicial Conference of the 
United States, by Leonidas Ralph Mecham, Secretary, dated September 16, 
2005. Affected operations include the Fifth Circuit Court of Appeals as 
well as the district and bankruptcy courts, and probation, pretrial 
services and federal public defender offices in the districts of 
Louisiana Eastern and Mississippi Southern. As a result, it was 
necessary for the judiciary to move court operations and relocate court 
employees to locations outside of the affected areas including: 
Houston, Texas; Baton Rouge, Houma and Lafayette, Louisiana; and 
Hattiesburg and Jackson, Mississippi.
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    At present, the cost estimates developed by the 
Administrative Office of the United States Courts (``AO'') for 
implementation of H.R. 4093 calculate the anticipated start up 
costs (which do not include recurring, annual, duplicated 
costs) in the double-digit millions of dollars range.\42\ These 
costs estimates were developed with input from the General 
Services Administration (``GSA'') and court staff in the Ninth 
circuit.
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    \42\ Both reports calculate the estimated costs with headquarters 
in either Phoenix, Arizona, or Seattle, Washington; and with new 
judgeships and without new judgeships. See AO's Cost Estimates Report 
and AO's Incremental Costs Report, supra note 4. All of the following 
figures are based on the submission of the Administrative Office of the 
Courts estimation of costs, or the Congressional Budget Office cost 
estimate. Congressional Budget Office Cost Estimate, Reconciliation 
Recommendations of the House Committee on the Judiciary (October 28, 
2005)(as approved by the House Committee on the Judiciary on October 
27, 2005)(hereafter ``CBO's Cost Estimate Report'').
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    As proposed by the Majority, to implement the split of the 
Ninth Circuit by creation of a new Twelfth circuit 
headquartered in Phoenix, Arizona, without new judgeships, the 
total estimated start up costs will be $94,698,936. This $94 
million figure does not even begin to take into account the 
duplicated costs that will also be an annual consequence of the 
unnecessary creation of a new Twelfth Circuit. In addition, 
this $94 million figure does not account for the additional 
staff space that would be required to deal with the 
geographical configuration that has been proposed in H.R. 4093, 
which is new and different from prior proposed splits. As a 
result, the $94 million dollar figure, which does not include 
the duplicated, recurring, annual costs, would also need to be 
increased for the additional staff space that would be 
required.
    Without taking these additional, unaccounted for, estimated 
costs, the financial expenditure being pushed by the Majority 
is, nonetheless, exceptionally high. If the Majority's split 
into a new Ninth and Twelfth includes the seven (7) additional 
judgeships, headquartered in Phoenix, the estimated start up 
costs for the new Twelfth Circuit will increase by another 
$1,156,236.00. In addition, the duplicated costs of having a 
new Twelfth Circuit in Phoenix will be $10,257,784.00, 
annually, without the seven (7) additional judgeships, and 
$15,914,180.00 with the seven (7) additional judgeships. 
Therefore, at the close of first operating year of the new 
Twelfth Circuit in Phoenix, the total bill for the Ninth 
Circuit split proposed by the Majority will be between 
$106,112,956 and $111,769,352.
    These figures contrasts starkly with the costs required to 
implement the only truly necessary changes, supported by the 
Minority, which will address the legitimate concerns that have 
been raised about the Ninth Circuit. To implement the 
additional seven (7) judgeships in the Ninth Circuit, the 
estimated start up costs will be $1,156,236, and the annual, 
recurring costs will be $5,656,396, which will include the 
judges' and chambers' staffs' salaries, operating expenses for 
the new judges and their chambers, and courtroom security. The 
start up costs will be in the nature of the expenses to being 
operation of the new courts, the necessary information 
technology and telecommunications equipment, and security 
needed while implemented. There are no estimates for space and 
facility costs.
    The Congressional Budget Office (``CBO'') also provided 
estimated costs for new 12 new circuit judgeships, but also 
included the 56 new district court judgeships, and 25 new 
bankruptcy judgeships.\43\ In the numbers provided, the CBO 
estimated costs that fall outside of the Ninth Circuit split, 
and the CBO did not provide ``estimate the cost of new office 
space for the new Twelfth Judicial Circuit, because the 
legislation does not specify where the new court would be 
located.'' Regardless, application of the costs estimated by 
the CBO to realities of the Ninth Circuit split proposed by the 
Majority leads to the same conclusion: the cost of splitting 
the Ninth Circuit will be excessive.
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    \43\ CBO's Cost Estimate Report, supra note 42.
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    The fact of the matter is the split proposed in title III 
will not equalize the caseload, but will in fact increase the 
caseload while at the same time lowering the number of judges 
available to handle the increased load. Title III will require 
72% of the caseload to be handled by less than 60% of the Ninth 
Circuit judges. Under the House bill, the new Ninth Circuit, 
with California, Hawaii, Guam, and the Northern Mariana 
Islands, would have 407 cases per circuit judge. That is much 
more than the new Twelfth Circuit, of Nevada, Arizona, Idaho, 
and Montana, which would have 280 cases per circuit judge.
    Furthermore, title III does nothing to address the fact 
that there are still four (4) vacancies in the Ninth Circuit. 
Only one nomination has been made to fill one (1) of the four 
(4) vacancies, yet the complaints of delays are not being 
addressed by this legislation through filing of the four (4) 
vacant judgeships, one of which has been vacant for more than 
five (5) years.
    Splitting the Ninth Circuit would produce incredible legal 
uncertainty within the states of the newly created circuit. It 
risks seriously disrupting the administration of justice 
because the status of the law would be unclear in those Western 
states in both the new Ninth Circuit and the new Twelfth 
circuit. People and businesses make decisions with an eye 
toward legal consequences, so they need a clearly established 
body of law. Today, a Ninth Circuit decision is binding in nine 
Western states. After the split, a decision of the new Ninth 
Circuit would leave the law unclear in the seven (7) states of 
the Twelfth circuit. To get the law settled for all these 
states, the same issue would have to be decided by the one new 
circuit, which could take years. More circuits also mean more 
conflicts in the law, increasing the burden on the Supreme 
Court to set matters straight.

                               CONCLUSION

    In conclusion, the proposed legislation contained in title 
III of H.R. 4093 which realigns the Ninth Circuit will only 
create further problems without addressing the concerns that 
are claimed to be the reason for this section of the bill. The 
Ninth Circuit currently operates in an efficient and effective 
manner. Title III will not address the alleged size concerns, 
efficiency issues, consistency problems or reversal rate 
because it does not contain provisions that address the 
supposed problems in the Ninth Circuit. The Congress has never 
before split a circuit over the advice of judges that 
adjudicate in that circuit or the bar associations that 
practice before the circuit. The worst response for Congress to 
take to address judicial decision they do not like is to alter 
the ability to effectively and efficiently administer justice 
in that circuit.

                                   John Conyers, Jr.
                                   Howard L. Berman.
                                   Rick Boucher.
                                   Jerrold Nadler.
                                   Robert C. Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Martin T. Meehan.
                                   William D. Delahunt.
                                   Robert Wexler.
                                   Anthony D. Weiner.
                                   Adam B. Schiff.
                                   Linda T. Sanchez.
                                   Chris Van Hollen.
                                   Debbie Wasserman Schultz.

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