The White Commission proposal purports to delineate a way of resolving conflicts among divisions through the mechanism of a "Circuit Division." The Circuit Division's only role, however, would be to resolve "conflicts on . . . issue[s] of law" between the regional divisions. It is unclear from the legislation what a "conflict" is and how a conflict is different from the existence of other decisions that are difficult to reconcile but which nonetheless point the law in different directions. Often, the creation of a conflict is not clear, much less immediately clear. And because the decisions of other divisions are not binding precedents, judges would be less likely to distinguish, discuss, or even cite decisions from outside their division. Overall, the Circuit Division mechanism, as proposed, does not provide an effective mechanism for the resolution of the many intra-circuit inconsistencies that the semi-autonomous division system would produce.

The inability of the Circuit Division to review cases not involving inter-divisional conflicts on issues of law may have a further pernicious effect - insulating many decisions from Supreme Court review. The Circuit Division's narrow jurisdictional mandate would effectively preclude Circuit-wide review of matters of exceptional importance, cases that conflict with decisions of other circuits, and cases in which the intra-circuit disagreement is significant but does not rise to the level of a "conflict." Such cases would be decided solely at the divisional level, and those decisions would not be binding circuit-wide. That structure would inevitably multiply the number of decisions within the Ninth Circuit that conflict with decisions of other circuits, while simultaneously creating a possible impediment to Supreme Court review. It is uncertain whether Supreme Court Justices would vote to grant certiorari in cases that present conflicts between only one division of the Ninth Circuit (rather than the Circuit as whole) and another circuit. The discretionary nature of certiorari jurisdiction suggests that parties opposing review will argue that the Supreme Court should give the Ninth Circuit as a whole an opportunity to overturn a divisional decision so as to bring the division into harmony with the other circuit's decision. The proposed divisional structure therefore might serve to insulate decisions of the Ninth Circuit from further review, effectively isolating it from the rest of the federal court system.⁽⁷⁾

The probability that the Commission's proposed divisional structure could spawn greater inconsistency in Circuit law would be particularly problematic in California. Under the proposal, the State of California would be split between the Middle and Southern Divisions of the Ninth Circuit, neither of which would be required to follow the precedent of the other. We do not support dividing any State in this manner, because, as much as possible, federal rights and responsibilities should be the same for all citizens within a State. Splitting California between two divisions that are not bound by each other's precedent would yield different interpretations of federal and state law, and could result in inconsistent federal court rulings regarding the constitutionality of the same California law.⁽⁸⁾ For the reasons discussed above, Supreme Court review and resolution of these inconsistencies might be rare and, at a minimum, protracted, particularly with the requisite added layer of Circuit Division (following divisional en banc) review. In addition, the existence of different divisions within one State could encourage forum shopping among those seeking to assure a more favorable audience to adjudicate questions of federal and state law, as well as delays in the reconciliation of conflicting decisions.⁽⁹⁾

Efficient Resolution of Cases

The interest in achieving an expeditious appellate process is important for all kinds of cases, but it is particularly acute in two areas in which the Ninth Circuit has large caseloads: criminal cases, in which the defendant's liberty, as well as the victim's and public's interest in finality, are at stake; and immigration cases, in which the Ninth Circuit currently reviews as much as 50 percent of the nationwide caseload and in which delay defers a determination of the alien's status and can encourage new case filings. A swifter and less cumbersome process in such matters is in the interest of both the government, which must enforce the law, and the individual, whose resources typically cannot sustain vigorous multi-tier litigation.

By adding another layer of review, the Ninth Circuit restructuring suggested by the White Commission would delay the completion of the judicial process for litigants. Following an adverse panel decision, an aggrieved litigant could seek en banc review by the Division en banc court, as would now be true of the Circuit as a whole. A denial of such a petition would, in many cases, precipitate a further request for rehearing at the Circuit Division level.⁽¹⁰⁾ The evaluation of a case for alleged conflicts with a decision of another panel would only add to what is already a protracted period for finally resolving cases.

The White Commission justified this divisional structure partly on the grounds that smaller decisional units might increase efficiency by reducing the volume of precedent judges would be required to consult and monitor (thereby saving these judges time). We doubt that the creation of smaller decisional units would save much time or that Circuit judges will deem it advisable to disregard the development of law in the other divisions of the Circuit. Because the Commission's proposal contemplates that a number of judges would be assigned outside their division of residence for substantial periods of time, it is unlikely that judges would benefit substantially over the long run by ostensibly being relieved of the burden of monitoring other divisions' opinions. While serving outside their division of residence, they would presumably be expected to keep abreast of the decisions of at least two divisions -- their division of permanent residence and their division of temporary assignment. And if, over a three-to-five year period, they might be assigned to all three divisions, that monitoring responsibility would be hindered by a failure to have kept up with the output of all three divisions. Whatever benefit might accrue to individual judges with respect to the burden of monitoring opinions, therefore, is likely to be only modest and incomplete, at best.

Indeed, the use of smaller decisional units may not only be ineffective as a means of reducing delay, but may also have undesirable collateral effects. By creating a smaller pool of judges from which panels would be selected, litigants would be able to better predict the identity of a panel's judges. But it is precisely to discourage litigants from attempting to tailor their arguments for particular judges that many circuits do not publicly announce the judges on the panel until shortly before argument. And under the proposed divisional plan, predictability may encourage forum shopping (especially within California) or tactics to delay pursuit of an appeal to await either the periodic change in judicial composition within a division or the resolution of a pending case raising the same issue in a different division. A unified circuit avoids those anomalies.⁽¹¹⁾

Appearance of Legitimacy

As the Supreme Court has recognized time and again, the authority of the judicial branch is tied to its legitimacy. One important aspect of a court's legitimacy is the perception of the public and the bar that when a judge or a panel of judges speak, they speak for the entire court of which they are members. More to the point, the views of a panel of judges on the Court of Appeals should represent the views of the entire Circuit Court. In all other Circuits but the Ninth, this is always the case because all of the judges on the Circuit have either implicitly approved of the decisions of the three-judge panels (by opting not to rehear the case en banc) or have reheard the case en banc with all of the non-recused, active judges on the Circuit participating. The Ninth Circuit, however, employs a limited en banc procedure under which the Circuit's en banc panel is comprised of 11 judges - the Chief Judge and 10 other judges selected at random. As a result, the Ninth Circuit's en banc panel involves fewer than a majority of the Circuit's 28 active judgeships. Thus, the Ninth Circuit has been criticized on the ground that its en banc decisions are not representative of even a majority of the judges on its court.

Instead of making the court more representative, the White Commission's proposal is likely to reduce the representativeness of the Ninth Circuit's decisions. Once a three-judge panel issues an opinion, each regional division would have the opportunity to rehear the case en banc. This en banc process would involve every active judge on the regional court. However, given that the divisional court would consist of only 7 to 11 judges, at least two of whom joined the majority decision being challenged, a litigant would likely face an uphill battle in obtaining divisional en banc review. In those rare instances where en banc review were granted, the decisions issued within any regional division would be representative of the views of the judges in that region. This representativeness at the regional division level does not reach the Circuit level, however. At the Circuit level, the Commission's proposal would create the Circuit Division to replace the limited en banc structure currently employed by the Ninth Circuit. While the Circuit Division is slightly more representative than the limited en banc because it increases the number of judges from 11 to 13, the 13 Circuit Division judges still do not consistent a majority of the 28 judges on the Ninth Circuit and are not selected randomly for each en banc case (they are instead assigned by lot for three year terms). The Circuit Division would only operate where there is a "conflict" on a legal issue, however. In every other case, the decision of the regional en banc court (of 7 to 11 judges) would be the final word of the 28-judge Circuit. As a result, the White Commission's proposal would appear to undermine the representativeness, and hence the legitimacy, of the Ninth Circuit's decisions.

* * *

Our serious reservations about implementing the White Commission's primary proposal regarding the Ninth Circuit are magnified by the recognition that the move to any divisional structure would likely be irreversible.⁽¹²⁾ Once regional divisions are created - and differences in divisional law are permitted to flourish - the Ninth Circuit would have little ability to reunify. Instead, the restructuring compelled by this proposal would lead in only one direction - to an eventual split of the Circuit. But this result is precisely what the White Commission found to be unwarranted and unworkable. Rather than proceed down this inevitable path to split of a Circuit viewed by its users (and its evaluators) as operating reasonably well, we respectfully suggest that Congress should instead, at least as a first effort, direct the Ninth Circuit to study and implement constructive changes in relation to the specific areas of concern identified by the White Commission and the Department.

Alternatives to Divisional Re-structuring

From our perspective as litigants, the Ninth Circuit's primary shortcoming is traceable not principally to its large number of judges or geographical size, but rather to its failure effectively to address erroneous panel decisions in important cases and to review cases in which a meritorious claim of conflict is presented. This problem is already being mitigated in the light of the recent upswing in the number of cases that the Ninth Circuit has voted to hear en banc. The problems that continue to persist, while admittedly difficult to quantify, nonetheless appear susceptible to amelioration by nonstructural means, as suggested in our submissions to the White Commission. Indeed, the Circuit's en banc mechanism, if modified, is particularly well suited to solving many of these problems. If that course is followed, structural changes might ultimately prove to be unnecessary and their attendant difficulties and dislocations avoided. After a period of experience with non-structural alternatives and an assessment of legal and demographic trends, the need for any structural reforms might become clearer.

Improving the opportunity for en banc review. There are a number of discrete but effective ways to increase the opportunities for en banc review of panel decisions. In particular, Congress might consider granting the courts of appeals a dispensation to lower the statutory requirement that a majority of the Circuit's active-service judges must vote affirmatively to rehear a case en banc. The success of the Supreme Court in exercising its discretionary review based on the votes of less than a majority is a model that should be studied for application in the courts of appeals' en banc process. A similar "4/9s" rule might well work at the Circuit level.

Other actions could better alert Circuit judges to the need for en banc review. For example, the recently amended Federal Rule of Appellate Procedure 35(b)(1) now requires litigants to set forth at the outset of any petition requesting en banc rehearing a summary statement regarding why the case creates an inter-Circuit or intra-Circuit split or involves a question of exceptional importance. In addition, opinions to be published that distinguish or disagree with existing precedent should be circulated among the judges of the Circuit for review before publication. Staff personnel could be deployed to act as an additional check in the review of panel decisions for potential conflict with other circuit decisions.

Although a system of increased availability of rehearing en banc would require some investment of judicial resources, it seems likely that time expended en banc in clarifying the law of the circuit and resolving issues of exceptional importance would in the long run be repaid by a corresponding reduction in litigation and an enhanced ability of the Ninth Circuit as a whole to speak through the en banc procedure. The short-term costs of increased en banc review may well pay substantial long-term dividends.

Improving the representativeness of the en banc panel. The Ninth Circuit should also consider methods of enhancing the representativeness of its en banc panel. The most direct way to do so is to increase the number of judges who sit on the en banc panel from 11 judges to 15. With 15 judges, the Circuit's en banc decisions would properly represent the views of a majority of the Circuit's active membership. Except for the Chief Judge, these judges should be selected at random. Judges who call for en banc rehearing or who authored the three-judge panel's opinion should not automatically be placed on the en banc panel, for that might skew the representativeness of the panel, and the legitimacy of the resulting en banc opinion.

* * *

In the long term, we recognize that demographic changes in the Nation's population may well necessitate structural changes in the court of appeals system. If and when that occurs, the analysis contained in the White Commission's final report will provide valuable insight on the potential options to be considered. At this time, however, we believe that these non-structural alternatives should be explored first and that any structural reforms should be reserved for a time when these other alternatives are no longer workable.

Regional Division of Other Circuits

The White Commission also recommends that all appellate courts with more than 15 authorized judgeships be granted discretion to adopt a divisional arrangement such as the one set out for the Ninth Circuit. These courts would be permitted to organize themselves into two or more adjudicative divisions, each capable of rehearing cases en banc. Each judge would be assigned to a specific division for a substantial period of time, and each division would exercise exclusive jurisdiction over the appeals assigned to it. Any Circuit that opted to reorganize itself would be required to create a Circuit Division modeled on the one set out for the Ninth Circuit, involving no more than 13 judges and convened solely to resolve "square interdivisional conflicts."

The Department of Justice does not support the recommendation that the remaining circuits be permitted to split themselves into semi-autonomous adjudicative divisions when they reach a certain number of judgeships. We do not believe such a significant change in the federal appellate structure is justified, particularly before non-structural alternatives of the type we have suggested are implemented and their effects evaluated.

The implementation of a nationwide adjudicatory divisions plan would create for each circuit the types of problems we have identified in our discussion of the proposed changes to the Ninth Circuit. Moreover, widespread enactment ultimately would result in a completely restructured system overall, adding a fourth layer of review throughout much of the federal judicial system, creating differing paths of access to the Supreme Court depending on geography, and allowing varying bodies of law to be developed by numerous mini-courts of appeals in relative isolation from one another.⁽¹³⁾

As an alternative to section 2A, we recommend implementing experimental non-structural changes of the type described above with regard to the Ninth Circuit. At a minimum, we suggest that section 2A be deleted from S. 253 until such time as the existence of systemic problems in other circuits sufficient to warrant such a change has been found and to allow litigants and judges an opportunity to assess whether the proposed structural changes would improve the quality of justice.

Two-Judge Panels

The White Commission would authorize federal appellate courts to use two-judge panels, and to allow the courts to designate by rule those case types suitable for such disposition. The legislation leaves it entirely to the court to determine when a case assigned to a two-judge panel should be referred to a three-judge panel for hearing or decision.

The Department's experience with various screening procedures employed by the courts of appeals, including summary affirmance, leads us to question whether it is necessary for Congress to authorize two-judge panels and whether such panels would actually conserve judicial resources. We have further questions regarding whether this provision ensures both adequate procedures for assessing how cases are selected for decision by such panels and necessary safeguards for determining how a third judge is to be brought into the process when the two-judge panel reaches an impasse. We are also concerned about how this provision would affect the public's perception of the administration of justice by the courts. If the two-judge panel provision is to be adopted at all, we believe it would best be implemented as an experiment for a limited duration in a few courts to allow Congress, courts, and litigants an opportunity to assess the change.

District Court Appellate Panels (DCAP)

The White Commission would also authorize judicial councils to create a "district court appellate panel service" with district and circuit judges from the circuit. The judicial council would specify categories of cases appropriate for DCAP jurisdiction and the panel would have exclusive jurisdiction over those cases. The Commission observes that diversity cases would be likely prospects for DCAP jurisdiction, as well as sentencing appeals and cases that "generally require the reviewer to apply well-settled legal rules to varying fact patterns."⁽¹⁴⁾ Panels created from the DCAP service would consist of two district judges and one circuit judge designated by the chief judge of the circuit. District judges would not review judgments from the courts on which they serve. Further review of decisions by a DCAP would be discretionary in the court of appeals. In addition, the panel itself could transfer a case to the court of appeals if disposition involved a determination of a question of law it deemed appropriate for the court of appeals.

In our view, the use of DCAP services in the Courts of Appeals would likely result in a net cost to litigants and to the judicial system as a whole, even if it produced an incidental reduction in the burdens on the courts of appeals. Accordingly, we are not persuaded that the creation of DCAPs is warranted or desirable.

First, the use of DCAPs would not reduce the overall judicial workload -- instead, it would simply divert much of the workload for some appeals from busy appellate judges to busy district court judges. Although the factual justification underlying this legislative proposal is unstated, it may be a response to the statistical trends recorded in Table 2-3 of the White Commission's final report, which suggest that in the past century the per-judge caseload for circuit judges has increased five-fold while that for district judges has only doubled.⁽¹⁵⁾ Without a more careful analysis of the workload of district judges, however, it would be premature to base conclusions on those numbers alone. The statistics do not capture the increasing complexity of time-consuming pre-trial practice, trials, and sentencing proceedings, as well as district judge assignments to court of appeals cases. Absent more definitive data, it seems unwarranted to conclude that district judges are sufficiently underutilized that they may absorb the extra work contemplated by this provision. Indeed, overall the proposal may require even more judicial resources than are now required at both the district court and court of appeals level, because in at least some instances the court of appeals would grant permission to take a further appeal after a DCAP decision and would in any event have to consider requests for the exercise of discretionary review. Thus, the courts (as well as the parties) could incur the expense of conducting two appeals instead of just one before seeking Supreme Court review.

Second, third proposal calls for judicial councils, rather than Congress, to determine the class of cases to be adjudicated by DCAPs. That assessment, however, involves policy decisions about the nature of the underlying legal disputes, including a substantive evaluation of the applicable law. Such significant policy decisions, such as whether diversity cases should be handled in a distinctive manner, should be made by Congress, rather than by the judicial councils.⁽¹⁶⁾

Moreover, we question whether the administration of justice would be served by creating a class of appellate courts inferior to circuit courts of appeals and assigning cases deemed to be less significant to them. Certainly service on such courts is not made to seem attractive as described in the White Commission's reports, since it seems unlikely that a circuit judicial council would assign the most interesting classes of cases to any court other than its own court of appeals. Finally, this proposal would make the final decisions of district court appellate panels subject to discretionary review by the court of appeals. Such discretionary review raises the possibility that a litigant might be foreclosed from having the right to seek Supreme Court review of a decision that the court of appeals declined to review.

For the foregoing reasons, the Department opposes the creation of District Court Appellate Panels. At a minimum, this provision should be adopted only as a temporary pilot project that would operate in a single court, in carefully and explicitly designated categories of cases selected by Congress, and only for a limited period of time.

Concluding Remarks

I have outlined the more important of the concerns of the Justice Department based upon its review of the White Commission's final report. The White Commission has performed a valuable service in studying the United States court of appeals system and proposing ideas for its future organization. We are not, however, convinced that either its conclusions or any other data evidence a need for the structural reforms contained in the report. As we noted above, the provisions contained in the final report themselves risk creating greater inconsistencies in the law, greater delay in the resolution of cases, and greater challenges to the representativeness and legitimacy of the courts of appeals. Accordingly, while circumstances may one day warrant the adoption of structural changes, other measures should be tried first. We are committed to working with this Subcommittee and the Ninth Circuit to develop and, where appropriate, implement such proposals.

I thank you for the opportunity to submit the views of the Department of Justice to this Subcommittee.

1. Sec. 305(a)(1)(B)(i, ii), Pub. L. No. 105-119, 111 Stat. 2491 (1997).

2. White Commission Final Report (hereafter "Final Report") at 29.