Appellate Study Commission Issues Draft Report for Public Comment

The Commission on Structural Alternatives for the Federal Courts of Appeals today issued its draft report for public comment. Comments on the report --which can be found on the Commission's Internet web site at http://app.comm.uscourts.gov -- are due by November 6, 1998. Copies of the draft have been mailed to government leaders and persons who have expressed an interest in the Commission and its work. The Commission must submit its final report to the President and Congress by December 19, 1998.

Congress created the Commission in late 1997 and charged it with studying the structure and alignment of the federal appellate system with particular attention to the Ninth Circuit. The five-member Commission is chaired by Retired Justice Byron White.

The Commission conducted six public hearings and received numerous written comments before preparing its draft report. The draft discusses tentative recommendations reached by the Commission consistent with its statutory mandate to recommend to the President and Congress "such changes in circuit boundaries or structure as may be appropriate for the expeditious and effective disposition of the caseload of the Federal Courts of Appeals, consistent with fundamental concepts of fairness and due process."

The report's tentative recommendations include the following:

• that Congress enact a statute organizing the Ninth Circuit Court of Appeals into three regionally based adjudicative divisions, each division with a majority of its judges resident in its region, and each having exclusive jurisdiction over appeals from judicial districts within its region. Each division would function as a semi-autonomous decisional unit. A Circuit Division would resolve conflicts of law between regional divisions, replacing the current limited en banc system. The administrative responsibilities of the Ninth Circuit itself would continue to be carried out within current circuit boundaries.
• that Congress enact a statute authorizing any court of appeals with more than 13 judgeships to organize itself into adjudicative divisions. The court would have an option in this regard until its membership exceeds 17 judgeships, at which time it would be required to adopt a divisional plan.
• that Congress enact a statute authorizing each court of appeals to decide some types of selected cases using panels of two rather than three judges.
• that Congress enact a statute authorizing circuit judicial councils to establish district court appellate panels to provide appellate review in designated categories of cases with panels of two district judges and one circuit judge, with discretionary review available thereafter in the court of appeals.
• that Congress not authorize direct review in the courts of appeals of bankruptcy court decisions, but rather consider several specific alternatives.

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