[Congressional Bills 106th Congress]
[From the U.S. Government Printing Office]
[S. 253 Introduced in Senate (IS)]
106th CONGRESS
1st Session
S. 253
To provide for the reorganization of the Ninth Circuit Court of
Appeals, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
January 19, 1999
Mr. Murkowski (for himself and Mr. Gorton) introduced the following
bill; which was read twice and referred to the Committee on the
Judiciary
_______________________________________________________________________
A BILL
To provide for the reorganization of the Ninth Circuit Court of
Appeals, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Federal Ninth Circuit Reorganization
Act of 1999''.
SEC. 2. DIVISIONAL ORGANIZATION OF THE COURT OF APPEALS FOR THE NINTH
CIRCUIT.
(a) Regional Divisions.--Effective 180 days after the date of
enactment of this Act, the United States Court of Appeals for the Ninth
Circuit shall be organized into 3 regional divisions designated as the
Northern Division, the Middle Division, and the Southern Division, and
a nonregional division designated as the Circuit Division.
(b) Review of Decisions.--
(1) Nonapplication of section 1294.--Section 1294 of title
28, United States Code, shall not apply to the Ninth Circuit
Court of Appeals. The review of district court decisions shall
be governed as provided in this subsection.
(2) Review.--Except as provided in sections 1292(c),
1292(d), and 1295 of title 28, United States Code, once the
court is organized into divisions, appeals from reviewable
decisions of the district and territorial courts located within
the Ninth Circuit shall be taken to the regional divisions of
the Ninth Circuit Court of Appeals as follows:
(A) Appeals from the districts of Alaska, Idaho,
Montana, Oregon, Eastern Washington, and Western
Washington shall be taken to the Northern Division.
(B) Appeals from the districts of Eastern
California, Northern California, Guam, Hawaii, Nevada,
and the Northern Mariana Islands shall be taken to the
Middle Division.
(C) Appeals from the districts of Arizona, Central
California, and Southern California shall be taken to
the Southern Division.
(D) Appeals from the Tax Court, petitions to
enforce the orders of administrative agencies, and
other proceedings within the court of appeals'
jurisdiction that do not involve review of district
court actions shall be filed in the court of appeals
and assigned to the division that would have
jurisdiction over the matter if the division were a
separate court of appeals.
(3) Assignment of judges.--Each regional division shall
include from 7 to 11 judges of the court of appeals in active
status. A majority of the judges assigned to each division
shall reside within the judicial districts that are within the
division's jurisdiction as specified in paragraph (2), except
that judges may be assigned to serve for specified, staggered
terms of 3 years or more, in a division in which they do not
reside. Such judges shall be assigned at random, by means
determined by the court, in such numbers as necessary to enable
the divisions to function effectively. Judges in senior status
may be assigned to regional divisions in accordance with
policies adopted by the court of appeals. Any judge assigned to
1 division may be assigned by the chief judge of the circuit
for temporary duty in another division as necessary to enable
the divisions to function effectively.
(4) Presiding judges.--Section 45 of title 28, United
States Code, shall govern the designation of the presiding
judge of each regional division as though the division were a
court of appeals, except that the judge serving as chief judge
of the circuit may not at the same time serve as presiding
judge of a regional division, and that only judges resident
within, and assigned to, the division shall be eligible to
serve as presiding judge of that division.
(5) Panels.--Panels of a division may sit to hear and
decide cases at any place within the judicial districts of the
division, as specified by a majority of the judges of the
division. The divisions shall be governed by the Federal Rules
of Appellate Procedure and by local rules and internal
operating procedures adopted by the court of appeals. The
divisions may not adopt their own local rules or internal
operating procedures. The decisions of 1 regional division
shall not be regarded as binding precedents in the other
regional divisions.
(c) Circuit Division.--
(1) In general.--In addition to the 3 regional divisions
specified under subsection (a), the Ninth Circuit Court of
Appeals shall establish a Circuit Division composed of the
chief judge of the circuit and 12 other circuit judges in
active status, chosen by lot in equal numbers from each
regional division. Except for the chief judge of the circuit,
who shall serve ex officio, judges on the Circuit Division
shall serve nonrenewable, staggered terms of 3 years each. One-
third of the judges initially selected by lot shall serve terms
of 1 year each, one-third shall serve terms of 2 years each,
and one-third shall serve terms of 3 years each. Thereafter all
judges shall serve terms of 3 years each. If a judge on the
Circuit Division is disqualified or otherwise unable to serve
in a particular case, the presiding judge of the regional
division to which that judge is assigned shall randomly select
a judge from the division to serve in the place of the
unavailable judge.
(2) Jurisdiction.--The Circuit Division shall have
jurisdiction to review, and to affirm, reverse, or modify any
final decision rendered in any of the court's divisions that
conflicts on an issue of law with a decision in another
division of the court. The exercise of such jurisdiction shall
be within the discretion of the Circuit Division and may be
invoked by application for review by a party to the case,
setting forth succinctly the issue of law as to which there is
a conflict in the decisions of 2 or more divisions. The Circuit
Division may review the decision of a panel within a division
only if en banc review of the decision has been sought and
denied by the division.
(3) Procedures.--The Circuit Division shall consider and
decide cases through procedures adopted by the court of appeals
for the expeditious and inexpensive conduct of the division's
business. The Circuit Division shall not function through
panels. The Circuit Division shall decide issues of law on the
basis of the opinions, briefs, and records in the conflicting
decisions under review, unless the Circuit Division determines
that special circumstances make additional briefing or oral
argument necessary.
(4) En banc proceedings.--Section 46 of title 28, United
States Code, shall apply to each regional division of the Ninth
Circuit Court of Appeals as though the division were the court
of appeals. Section 46(c) of title 28, United States Code,
authorizing hearings or rehearings en banc, shall be applicable
only to the regional divisions of the court and not to the
court of appeals as a whole. After a divisional plan is in
effect, the court of appeals shall not order any hearing or
rehearing en banc, and the authorization for a limited en banc
procedure under section 6 of Public Law 95-486 (92 Stat. 1633),
shall not apply to the Ninth Circuit. An en banc proceeding
ordered before the divisional plan is in effect may be heard
and determined in accordance with applicable rules of appellate
procedure.
(d) Clerks and Employees.--Section 711 of title 28, United States
Code, shall apply to the Ninth Circuit Court of Appeals, except the
clerk of the Ninth Circuit Court of Appeals may maintain an office or
offices in each regional division of the court to provide services of
the clerk's office for that division.
(e) Study of Effectiveness.--The Federal Judicial Center shall
conduct a study of the effectiveness and efficiency of the divisions in
the Ninth Circuit Court of Appeals. No later than 8 years after the
effective date of this Act, the Federal Judicial Center shall submit to
the Judicial Conference of the United States a report summarizing the
activities of the divisions, including the Circuit Division, and
evaluating the effectiveness and efficiency of the divisional
structure. The Judicial Conference shall submit recommendations to
Congress concerning the divisional structure and whether the structure
should be continued with or without modification.
SEC. 2. ASSIGNMENT OF JUDGES; PANELS; EN BANC PROCEEDINGS; DIVISIONS;
QUORUM.
(a) In General.--Section 46 of title 28, United States Code, is
amended to read as follows:
``Sec. 46. Assignment of judges; panels; en banc proceedings;
divisions; quorum
``(a) Circuit judges shall sit on the court of appeals and its
panels in such order and at such times as the court directs.
``(b) Unless otherwise provided by rule of court, a court of
appeals or any regional division thereof shall consider and decide
cases and controversies through panels of 3 judges, at least 2 of whom
shall be judges of the court, unless such judges cannot sit because
recused or disqualified, or unless the chief judge of that court
certifies that there is an emergency including, but not limited to, the
unavailability of a judge of the court because of illness. A court may
provide by rule for the disposition of appeals through panels
consisting of 2 judges, both of whom shall be judges of the court.
Panels of the court shall sit at times and places and hear the cases
and controversies assigned as the court directs. The United States
Court of Appeals for the Federal Circuit shall determine by rule a
procedure for the rotation of judges from panel-to-panel to ensure that
all of the judges sit on a representative cross section of the cases
heard and, notwithstanding the first sentence of this subsection, may
determine by rule the number of judges, not less than 2, who constitute
a panel.
``(c) Notwithstanding subsection (b), a majority of the judges of a
court of appeals not organized into divisions as provided in subsection
(d) who are in regular active service may order a hearing or rehearing
before the court en banc. A court en banc shall consist of all circuit
judges in regular active service, except that any senior circuit judge
of the circuit shall be eligible to participate, at that judge's
election and upon designation and assignment pursuant to section 294(c)
and the rules of the circuit, as a member of an en banc court reviewing
a decision of a panel of which such judge was a member.
``(d)(1) A court of appeals having more than 15 authorized
judgeships may organize itself into 2 or more adjudicative divisions,
with each judge of the court assigned to a specific division, either
for a specified term of years or indefinitely. The court's docket shall
be allocated among the divisions in accordance with a plan adopted by
the court, and each division shall have exclusive appellate
jurisdiction over the appeals assigned to it. The presiding judge of
each division shall be determined from among the judges of the division
in active status as though the division were the court of appeals,
except the chief judge of the circuit shall not serve at the same time
as the presiding judge of a division.
``(2) When organizing itself into divisions, a court of appeals
shall establish a circuit division, consisting of the chief judge and
additional circuit judges in active status, selected in accordance with
rules adopted by the court, so as to make an odd number of judges but
not more than 13.
``(3) The circuit division shall have jurisdiction to review, and
to affirm, reverse, or modify any final decision rendered in any of the
court's divisions that conflicts on an issue of law with a decision in
another division of the court. The exercise of such jurisdiction shall
be within the discretion of the circuit division and may be invoked by
application for review by a party to the case, setting forth succinctly
the issue of law as to which there is a conflict in the decisions of 2
or more divisions. The circuit division may review the decision of a
panel within a division only if en banc review of the decision has been
sought and denied by the division.
``(4) The circuit division shall consider and decide cases through
procedures adopted by the court of appeals for the expeditious and
inexpensive conduct of the circuit division's business. The circuit
division shall not function through panels. The circuit division shall
decide issues of law on the basis of the opinions, briefs, and records
in the conflicting decisions under review, unless the division
determines that special circumstances make additional briefing or oral
argument necessary.
``(e) This section shall apply to each division of a court that is
organized into divisions as though the division were the court of
appeals. Subsection (c), authorizing hearings or rehearings en banc,
shall be applicable only to the divisions of the court and not to the
court of appeals as a whole, and the authorization for a limited en
banc procedure under section 6 of Public Law 95-486 (92 Stat. 1633),
shall not apply in that court. After a divisional plan is in effect,
the court of appeals shall not order any hearing or rehearing en banc,
but an en banc proceeding already ordered may be heard and determined
in accordance with applicable rules of appellate procedure.
``(f) A majority of the number of judges authorized to constitute a
court, a division, or a panel thereof shall constitute a quorum.''.
(b) Technical and Conforming Amendment.--The table of sections for
chapter 3 of title 28, United States Code, is amended by amending the
item relating to section 46 to read as follows:
``46. Assignment of judges; panels; en banc proceedings; divisions;
quorum.''.
(c) Monitoring Implementation.--The Federal Judicial Center shall
monitor the implementation of section 46 of title 28, United States
Code (as amended by this section) for 8 years following the date of
enactment of this Act and report to the Judicial Conference such
information as the Center determines relevant or that the Conference
requests to enable the Judicial Conference to assess the effectiveness
and efficiency of this section.
SEC. 3. DISTRICT COURT APPELLATE PANELS.
(a) In General.--Chapter 5 of title 28, United States Code, is
amended by adding after section 144 the following:
``Sec. 145. District Court Appellate Panels
``(a) The judicial council of each circuit may establish a district
court appellate panel service composed of district judges of the
circuit, in either active or senior status, who are assigned by the
judicial council to hear and determine appeals in accordance with
subsection (b). Judges assigned to the district court appellate panel
service may continue to perform other judicial duties.
``(b) An appeal heard under this section shall be heard by a panel
composed of 2 district judges assigned to the district court appellate
panel service, and 1 circuit judge as designated by the chief judge of
the circuit. The circuit judge shall preside. A district judge serving
on an appellate panel shall not participate in the review of decisions
of the district court to which the judge has been appointed. The clerk
of the court of appeals shall serve as the clerk of the district court
appellate panels. A district court appellate panel may sit at any place
within the circuit, pursuant to rules promulgated by the judicial
council, to hear and decide cases, for the convenience of parties and
counsel.
``(c) In establishing a district court appellate panel service, the
judicial council shall specify the categories or types of cases over
which district court appellate panels shall have appellate
jurisdiction. In such cases specified by the judicial council as
appropriate for assignment to district court appellate panels, and
notwithstanding sections 1291 and 1292, the appellate panel shall have
exclusive jurisdiction over district court decisions and may exercise
all of the authority otherwise vested in the court of appeals under
sections 1291, 1292, 1651, and 2106. A district court appellate panel
may transfer a case within its jurisdiction to the court of appeals if
the panel determines that disposition of the case involves a question
of law that should be determined by the court of appeals. The court of
appeals shall thereupon assume jurisdiction over the case for all
purposes.
``(d) Final decisions of district court appellate panels may be
reviewed by the court of appeals, in its discretion. A party seeking
review shall file a petition for leave to appeal in the court of
appeals, which that court may grant or deny in its discretion. If a
court of appeals is organized into adjudicative divisions, review of a
district court appellate panel decision shall be in the division to
which an appeal would have been taken from the district court had there
been no district court appellate panel.
``(e) Procedures governing review in district court appellate
panels and the discretionary review of such panels in the court of
appeals shall be in accordance with rules promulgated by the court of
appeals.
``(f) After a judicial council of a circuit makes an order
establishing a district court appellate panel service, the chief judge
of the circuit may request the Chief Justice of the United States to
assign 1 or more district judges from another circuit to serve on a
district court appellate panel, if the chief judge determines there is
a need for such judges. The Chief Justice may thereupon designate and
assign such judges for this purpose.''.
(b) Technical and Conforming Amendment.--The table of sections for
chapter 5 of title 28, United States Code, is amended by adding after
the item relating to section 144 the following:
``145. District court appellate panels.''.
(c) Monitoring Implementation.--The Federal Judicial Center shall
monitor the implementation of section 145 of title 28, United States
Code (as added by this section) for 8 years following the date of
enactment of this Act and report to the Judicial Conference such
information as the Center determines relevant or that the Conference
requests to enable the Conference to assess the effectiveness and
efficiency of this section.
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