December 1998

Appellate Study Commission Issues Final Report

The Commission on Structural Alternatives for the Federal Courts of Appeals submitted to the President and Congress its Final Report—which can be found on the Commission's Internet website at http://app.comm.uscourts.gov.

Chief Justice William H. Rehnquist appointed the Commission in late 1997 after Congress created it to study the structure and alignment of the federal appellate system, with particular reference to the Ninth Circuit. The Commission recommends several measures to "equip the courts of appeals with an ability, structurally and procedurally, to accommodate continued caseload growth into the indefinite future, while maintaining the quality of the appellate process and delivering consistent decisions—assuming, of course, that the system has the necessary number of judges and other resources." The fivemember Commission is chaired by Retired Justice Byron White.

Among the Commission's conclusions and recommendations:

Congress should restructure the Court of Appeals for the Ninth Circuit but should not split the Ninth Circuit. Splitting the circuit (which includes district and bankruptcy courts as well as the court of appeals) is impractical and unnecessary. The circuit's boundaries and administration should be preserved without statutory change.

Congress should restructure the circuit's Court of Appeals into three regionally based adjudicative divisions. Each regional division should have 7 to 11 judges, a majority of whom reside in its region. Each division should have exclusive jurisdiction over appeals from judicial districts within its region and should perform en banc functions as if it were a court of appeals. So that federal law does not vary from division to division, conflicting decisions by regional divisions should be resolved by a "Circuit Division" of 13 judges—the chief judge of the circuit plus 12 other active circuit judges representing the regional divisions.

Because circuit splitting is not feasible to accommodate caseload growth in the federal appellate courts, Congress should authorize, but not require, any court of appeals to organize into smaller adjudicative divisions when it exceeds 15 judgeships.

Congress should authorize, but not require, each court of appeals to decide some types of cases using panels of two rather than three judges.

Congress should authorize, but not require, circuit judicial councils to establish district court appellate panels and to designate types of appeals to be taken to such panels. These appeals would be decided by panels of two district judges and one circuit judge, with any further appellate review only by leave of the court of appeals.

Congress should forgo any changes in the bankruptcy appellate structure until the Judicial Conference of the United States completes its study of this matter and submits a report to Congress.

Two members of the Commission wrote separately to present a proposal to reduce diversity of citizenship jurisdiction in the federal courts.

The Commission conducted six public hearings and received more than 90 written comments before preparing its draft report, and received nearly 80 written comments on the draft report it issued on October 7, 1998. All comments have been posted on the Commission's website.

In addition to making its report available on its Internet site, the Commission has, pursuant to statute, delivered a copy to the President of the United States, the President of the Senate, and the Speaker of the House of Representatives. Copies will also be distributed to, among others, all who submitted comments to the Commission in the course of its deliberations. The Commission will publish its working papers and close its office by March 19, 1999.

In addition to Justice White, members of the Commission are Vicechair N. Lee Cooper, a Birmingham lawyer and past president of the American Bar Association, Judge Gilbert Merritt, who has been a member of the Court of Appeals for the Sixth Circuit since 1977; Judge Pamela Ann Rymer, who has been a member of the Court of Appeals for the Ninth Circuit since 1989, and Judge William D. Browning, who has served on the District Court for the District of Arizona since 1984.