PREPARED STATEMENT
OF
ROBERT M. PARKER
CIRCUIT JUDGE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BEFORE
THE COMMISSION ON STRUCTURAL ALTERNATIVES
FOR THE FEDERAL COURTS OF APPEALS

WEDNESDAY
MARCH 25, 1998

Statement of Robert M. Parker
United States Court of Appeals for the Fifth Circuit

I thank the Commission for its invitation to present these comments and to testify at the Dallas hearing. I recognize that members of the Commission are familiar with the public statements of Judges Newman, Wilkinson, Reinhardt, Tjoflat, Edwards, King, Parker, and others who have addressed these difficult issues. I therefore chose not to rehash old positions, but instead to attempt to provide the Commission with as clear a picture as I can of the Fifth Circuit as it exists today; and then to explore what it might look like in ten years under two quite different regimes with a view toward the impact on the stated objectives for the courts of appeals. Being without portfolio to represent my colleagues, I speak only for myself.

It is my belief that a clear majority of judges, academicians, and other professionals who have studied the courts of appeals and who are concerned about their future will agree that the following four tenets are appropriate to serve as a foundation for plans to improve the structure of the courts in the foreseeable future.

1. Case filings will increase. Whether growth in filings in the courts of appeals approach the dire predictions in the Proposed Long Range Plan for the federal courts in its worst case scenario or whether the growth will be of more modest proportions remains to be seen. An increasing population, a cyclical economy, new federal legislation, the social tension inherent in a multicultural society, and the impact of technological development will all contribute to increased filings in the federal courts.

2. Congress will not deviate in any significant degree from its consistent course over the past forty years. There will be no significant areas of jurisdictional reduction. The Congress will continue to sporadically create new civil causes of action and to federalize traditional state crimes.

3. Fewer circuits are better than more circuits. It is difficult to justify more than ten independent federal law-creating entities. Increasing the number of circuits will inevitably increase circuit splits in authority. The Supreme Court is stretched to its limit today in its capacity to resolve circuit splits, thereby compromising its ability to maintain uniformity of law in the federal courts. Last term, 35% of the cases decided by the Supreme Court (26 out of 75) had certiorari granted to resolve splits among the circuits. Ten circuits provide more than a fertile field for law development through the percolative effect in the circuits.

4. There is a direct inverse correlation between the size of a court of appeals and its ability to speak with one voice. The ability to maintain uniformity of law, to provide predictability, continuity and coherence are indispensable to maintaining the rule of law. The task of maintaining coherence and uniformity is difficult when a court of appeals is comprised of more than twelve active judges.

THE FIFTH CIRCUIT -- 1998

When the old Fifth Circuit was split, the Court had 25 active judges (26 authorized) and 11 senior judges deciding 4,280 appeals.

The Fifth Circuit Court of Appeals is able in 1998 to dispose of its case load with reasonable dispatch as a result of the integration of a number of case management techniques.

SCREENING

The screening procedure was instituted in 1968 by Chief Judge John Brown whereby cases are routed to panels of three judges who classify cases for oral argument or prepare summary calendar opinions. The percent of cases assigned to the summary calendar has steadily increased through the years to its present rate of almost 70%.

CENTRAL STAFF ATTORNEYS

At the present time, the Fifth Circuit has 44 central staff attorneys. Today, without the assistance of these dedicated professionals, the court would be almost dysfunctional. The services provided by staff counsel are: preparing screening memoranda recommending disposition, which sometimes includes draft opinions, in direct criminal appeals, prisoner cases challenging conditions of confinement, habeas corpus cases, civil federal question cases; immigration cases; civil cases in which the United States is a party; social security cases and civil rights cases (except Title VII). The staff attorneys prepare memos and proposed opinions as well as participating in oral discussions before conference calendar and jurisdictional defect calendar panels.

LOCAL RULE 47.6

This rule permits a case to be decided by a simple "Affirmed." The statistics regarding the utilization of Local Rule 47.6 are deceiving however. Most judges think that it is more politic to prepare a per curiam opinion of one-half to one and one-half pages saying in effect no more than "finding no error, the judgment is Affirmed." The difference is one of form instead of substance.

CONFERENCE CALENDAR

The conference calendar meets every other month to dispose of simple cases that can be easily affirmed. The conference calendar docket typically contains 30 cases a day for four days. Each day each panel member takes the lead in ten of the cases. The staff attorneys prepare memoranda and draft opinions which are made available to the panel along with the briefs prior to the panel meeting. The staff attorney responsible for a particular case makes an oral presentation during the conference panel meeting. The judges reach a unanimous decision concerning the disposition of the case and the wording of the opinion in the vast majority of these cases and enter opinions the same day the case is submitted. Any panel member, acting alone, may direct that a case be removed from the calendar. The conference calendar procedures are described in Graves v. Hampton, 1 F.3d 315 (5th Cir. 1993).

JURISDICTIONAL DEFECT CALENDAR

Dubbed affectionately our "Augean Calendar," the jurisdictional defect calendar is held each month to dispose of cases with simple jurisdictional defects such as lack of appealable order or out of time notice of appeal. The mechanics of this calendar are similar to those utilized by conference calendar panels.

APPELLATE CONFERENCE PROGRAM

The appellate conference program, begun in late 1996, facilitates settlement of pending appeals and reduction or simplification of issues. The program is restricted to civil cases in which all parties are represented by counsel. The program is headed by an appellate conference attorney, who selects the majority of the participating cases from recently filed appeals. Parties can also request to participate in the program and judges can refer cases for conference, even after oral argument. All conference program proceedings are confidential and proceed concurrently with the ordinary processing of the appeal.

In 1997, the program handled 223 active cases. Of that number, 69 settled, 54 were released from the program, 48 were decided by the court, and 52 remained active at the end of the year.

The judges of the Fifth Circuit strive to maintain collegiality and to demonstrate mutual respect for our divergent viewpoints. The en banc process continues to be functional, but the ability to monitor our colleagues' work product is made difficult by the volume of our caseload. The adoption of Local Rule 47.5, making unpublished opinions non-precedential, has been beneficial in this respect, but concerns remain that unpublished opinions can deviate from current circuit law without detection.

It is my belief that a majority of the active judges of the Fifth Circuit do not favor further expansion of the court. There might even be a majority that favors reducing the size of the court through attrition, but memories linger of the oppressive workload endured by members of the court prior to the recent appointments. We share concerns related to the impact of volume on the quality of our work product and about the extent to which we are dependent on staff. There is a limit to the assistance afforded by these case management procedures, and we are probably approaching that limit. A significant increase in filings will adversely impact our ability to maintain uniformity within the circuit and will compromise our ability to produce timely opinions that have been afforded an adequate amount of judge attention.

THE FIFTH CIRCUIT - 2008

Case filings are predicted to reach 10,000 in ten more years. The relevance of these comments though is not dependent upon the accuracy of the prediction; whether it takes eight years or twelve years is of no moment. The consequences are the same.

Without structural change, the Fifth Circuit with 10,000 cases will be a court where law of the panel is a serious concern. Intra-circuit conflicts will abound and the monitoring of colleagues' opinions will be a virtually impossible task. The en banc process will be cumbersome, tedious, and could be largely ineffective, contributing to circuit law becoming unpredictable. Appeals will be encouraged by a process that invites a roll of the dice for a favorable panel. Orality will be reduced to tokenism, morale will be affected, and the most qualified potential appointees will not be as interested in the job. If the filing rate increase in the Fifth Circuit is mirrored in the other circuits, the Supreme Court's ability to effectively resolve conflicts between the circuits will be seriously compromised.

It is my sincere hope that the preceding description of the Fifth Circuit with 10,000 cases presents an exaggerated scenario, but even if the negative consequences of growth for the court are exaggerated by as much as 50%, who among us could comfortably predict that the disposition of cases would be timely, that the outcomes would be consistent among the litigants, and that an acceptable level of judicial deliberative attention could be paid to each appeal. To state it another way, the Fifth Circuit unrestructured with 10,000 filings operating as it does today will not meet the objectives set out by the Commission.

What is more likely is that the Fifth Circuit with 10,000 filings will not operate as it does today. Instead we will witness an incremental corruption of case management techniques. Discretionary review will take the form of one word or one paragraph dispositions on the summary calendar. The conference calendar will dispose of more cases with less conference. It is a small step for the jurisdictional defect calendar to be expanded to encompass cases that have merit defects (as determined by central staff attorneys); and all the while, we will be holding ourselves out as providing plenary review for all appeals. With good intentions driven by the need to dispose of our docket, we will compromise the integrity of the court by providing a level of review that is in fact not plenary. It matters not that we may not realize it or that we may have no other choice, the result will be the same. The difference between what we say we are doing and what we will actually be doing will not go unnoticed by pundits, the academy, and the bar. We will erode confidence of the public in the federal courts. Discretionary review in the guise of case management techniques will not play in Peoria or New Orleans or anywhere else.

PROPOSED ALTERNATIVES

A court of appeals system divided into ten circuits of twelve judges each under a system of pure discretionary review could render decisions in a timely manner that are consistent among its litigants and more uniform among the circuits. The objectives of timeliness, consistency and uniformity, however, will be purchased at the price of foregoing plenary review for each case. Full review of every appeal is deeply rooted in our judicial tradition and there is opposition to any proposal that has the effect of eroding this traditional approach. Therefore, many share the view that pure discretionary review is an idea whose time is yet to come.

Realignment of the circuits to produce courts of appeals of relatively equal size and workload is not as intrusive as some other methods of restructuring. I firmly believe that if realignment is seriously considered, the goal for such realignment should be ten circuits. Realignment would tend to serve the interests of coherent, consistent precedent and administrative efficiency. However, any realignment should be considered a temporary fix and not a long term solution.

The creation of first-line appellate review at the district court level by way of an appellate division or the institution of an appellate term would serve the interests of providing plenary review for all cases. Assignment of cases to the appellate division of the district court could be accomplished through the expansion of our screening process and the cases assigned would typically be ones where the issues focused on error correction. Further review by the court of appeals could be provided on a discretionary basis. The downside to such a proposal is the fact that it will not be greeted by enthusiasm by district judges and would in all probability require the appointment of additional district judges.

An intermediate level between the districts and the circuit would also serve the interests of all the objectives identified by the commission. I see very little political support for the creation of an additional level in the appellate system and the accompanying bureaucracy that would be necessary. I also have serious doubts about whether appointment to such an interim tribunal would be particularly attractive to applicants.

The utilization of appellate commissioners or magistrates is handicapped by the fact that in all probability, such a position would be an Article I judge creating the awkward structure where Article I judges would be reviewing the work of Article III judges. The potential for controversy under such a system is apparent.

I invite the Commission to focus their attention on the profile of the courts of appeals in ten years. If the Commission determines that some form of restructuring is warranted, the Ninth, Eleventh and Fifth Circuit Courts of Appeals provide a statistical fit for any pilot studies designed to test the efficacy of structural change. I remain persuaded that the maximum number of circuits should be ten, that the individual courts should not be larger than twelve judges, and that discretionary review in some authorized form best serves the long term interest of our constituency.

Above all others, the objective of maintaining a predictable uniform body of law must be protected and the protection must come from a structure with internal integrity.