Statement of Procter R. Hug, Jr.
Chief Judge of the Ninth Circuit Courts

To The Commission on Structural Alternatives
for the Federal Courts of Appeals

Public Hearing May 29, 1998
United States Court of Appeals Courthouse
Courtroom One
San Francisco, California

Initially, I would like to state that we in the Ninth Circuit are extremely pleased that Congress ultimately saw fit to authorize the establishment of this Commission and that the Chief Justice of the United States appointed the distinguished members of this Commission to examine this matter of great importance to the future of the federal courts. I appreciate the opportunity to appear before you to discuss this matter, and to answer any questions you have.

The mandate of the Commission is to study the structure and alignment of the federal courts of appeals system, with particular reference to the Ninth Circuit. It is this particular reference to the Ninth Circuit that I wish to address at the outset.

As Chief Judge, I can confidently represent to you that the great majority of all of the judges of our circuit, including the circuit judges, the district judges, the bankruptcy judges, and the magistrate judges, and the great majority of the attorneys who practice before our federal courts are opposed to any division of the Ninth Circuit. It is the opinion of the overwhelming majority of the judges and the lawyers of the Ninth Circuit that the circuit and the circuit court of appeals are working well and that any advantages that might be gained by dividing the circuit in any of the ways proposed are greatly outweighed by the advantages lost and the disruption and expense of a division of the circuit.

It is not our function to attempt to tell other circuits how they should operate in meeting a steadily increasing caseload. It is our function, however, to express why a large circuit and circuit court, which we have been fine-tuning for over twenty years should not be torn apart, but rather, should be left intact to serve as a viable model of an option to deal with the increasing caseloads. Because some judges have referred to a position paper, which I prepared and distributed a couple of months ago to the judges and lawyers in our circuit, summarizing the reasons for retaining the structure of the Ninth Circuit as it is, I have attached it for your information.

I might offer a word about my background. I engaged in the private practice of law for twenty years, I have served as a member of the Ninth Circuit Court of Appeals for twenty years, and as Chief Judge of the Ninth Circuit for two years. Prior to my becoming Chief Judge, I was the apparent next Chief Judge, and I was pleased to work with Chief Judge Wallace on many administrative matters for the circuit. I chaired the committee that developed the Long-Range Plan for our circuit and its annual review and implementation. I also recently completed six years' of service on the Judicial Resources Committee of the United States Judicial Conference that is vitally concerned with the number of authorized judgeships in the nation and the evaluation of caseloads. Over the past seven years, in these various capacities, I have devoted a lot of time, thought, and energy to judicial administration.

The congressional mandate to this Commission is to study the structure and alignment of the federal court of appeals system. It is quite natural that Congress provided that the study is to be with particular reference to the Ninth Circuit because it is the Ninth Circuit that precipitated the study itself. However, I am pleased that the Commission has taken a broad view of its mandate and is studying the structure of our federal court system nationwide. It is most appropriate, before considering any change to the Ninth Circuit, that the system is reviewed as a whole to determine whether the Ninth Circuit's approach provides a viable option of an appropriate way to deal with the increasing caseload over the next 5, 10, or 20 years.

The focus of the study on the federal courts of appeals is most appropriate, for that is where the structural problem exists. It is like a pyramid. At the top of the federal court structure, there is no structural problem. The Supreme Court has the ability to regulate its caseload, and indeed, during the past few years has cut its caseload from 150 to 80 or 90 cases a year in order to devote the time that the Court feels is necessary to decide the cases it selects. At the trial level, there is no inherent structural problem in providing increased numbers of district courts as the caseload increases and, thus, providing sufficient judge power to carry out the important functions of the federal trial courts in their tradition of excellence. The problem that arises is how we are to structure the middle of the pyramid, the intermediate courts of appeals, between the trial court and the United States Supreme Court. As the caseload grows at the trial level, it is obvious that the number of appeals will increase; the question is how these appeals are to be handled.

One possible solution, of course, would be to limit the jurisdiction of the federal courts and, thus, the number of cases that come into the federal system at the trial level. It is worthy of consideration by Congress as to what are appropriate matters to be adjudicated in the federal courts. Judge Wiggins will address this issue. At this point, I will only note the fact that this is a political question that ultimately is in the control of Congress and the President to determine.

There have been discussions about capping the number of federal judges at 1,000, in order to limit the number of cases that come into the federal system. First, it is interesting to note, as Professor Resnik ably pointed out in her submission to the Commission, there are already 1,600 federal judges performing judicial functions in the federal system, when we take into account the important work of the bankruptcy judges, the magistrate judges, and the senior judges who perform at all levels. Even more fundamental, in my opinion, is the fact that the political determination of which legal matters are allocated to the federal court system will not be governed by any limited number of federal judges that we think should be authorized, but rather by what Congress and the President believe to be appropriate issues for resolution by the federal court system. It is then the obligation of Congress, however, to provide the judges necessary to do the job.

I believe that there is little doubt that the caseload in the federal court system will continue to grow as it has in the past. This was the conclusion reached by the United States Judicial Conference Committee that developed the Long-Range Plan. Thus, in formulating the structure for the federal court system of the future, we must focus on how this increasing caseload is to be handled by the circuit courts of appeals because this dictates how the circuit is to be structured.

With the existing statutory appellate structure, there are three alternatives for the courts of appeals in dealing with the increasing caseload.

1. The first, is when a circuit believes that the prime objective is to keep the circuit court small, to take all of the cases that come along, and to handle them in some way. In my opinion, this is the worst solution. The question then becomes how are these tremendous caseloads being handled and whether the inevitable reduced time that judges, themselves, can spend on their cases can be justified by the desire of the judges to remain a comfortably small circuit court.

2. A second option would be to continue to divide the circuits so as to maintain a small number of judges on a court of appeals. The Hruska Commission thought the appropriate number was nine. At the present time, only one circuit has nine or fewer judges. If we were to divide all circuits with more than nine judges on the circuit court, there would be 12 new circuits for a total of 24. Within the next twenty years, we could have 30 or 40 circuits if this were to be the alternative, even if we revise the supposed maximum number of judges on a circuit court to be 12 or 15. This would not only involve a division of some states into two or more circuits, but it would also inevitably involve a fourth tier in the court structure with some sort of an appellate court between the courts of appeals and the Supreme Court. If this is the chosen solution, I might note that the Fifth Circuit will very soon be facing this question. They have 17 judges with a heavy caseload and with a great majority of the cases coming from the State of Texas. The question will be whether to divide the State of Texas, or to allow Texas to remain as the sole state in the circuit or to keep the circuit intact. This will likely be true at some later stage for Florida, New York, and dominant states in other circuits.

3. The third alternative is to allow a court of appeals to grow in order to provide the adequate judge power to resolve its cases, and to develop procedures that allow the larger court to operate efficiently and effectively. The controlling objective is not the size of the court but, instead, the number of judges necessary to devote the judge-time to the decision of a case that the case requires and deserves.

The Ninth Circuit has opted for the third approach. I think it is the best approach. Judge Wallace has made a persuasive case in his testimony that the ideal would be to have five large circuits with the circuit court responsible for keeping the law consistent in the larger area and with the Supreme Court reviewing conflicts between the five circuits. Politically, I believe that this is infeasible at this time, but at the very least a circuit should be allowed the option to grow in order to handle its increasing caseload.

As I mentioned, it is not for us in the Ninth Circuit to say how other circuits should operate. There is not necessarily one way that all circuits should be structured. There is currently a strong view among each of the circuits that there is no need to alter their structure when the circuit courts are operating well and to the satisfaction of the judges, lawyers, and litigants in their circuit. There is much to be said for this. After all, we are a nation of large and small states operating in many different ways to satisfy the culture of the area served. My main point is that we have shown that a large circuit can work well and to the satisfaction of the overwhelming number of judges, lawyers, and litigants and that this is an option that our circuit should be able to choose now, and other circuits should be able to consider in the future.

From the standpoint of the Ninth Circuit, the balance of a large state, California, and the eight smaller states is the best solution in our particular circuit. California does not dominate the circuit with 40% of the judges in California and 60% of the judges in the other states of the circuit. We are, after all, interpreting the federal law and keeping it consistent in the nine states and territories that have close relations to each other economically, geographically, environmentally, and commercially. We are a unified and well-balanced court representing a wide spectrum of the cultures of our nation. We consider the diversity in the geographical and professional backgrounds of our judges from throughout our nine states to be a real strength in our circuit for interpreting our national law.

We should not create another small circuit, or leave California alone as a circuit, nor should we split California, or combine it with another small state that it will dominate, or create some other bizarre division when the circuit is well balanced and working well as it is. We surely should not do so for political reasons, only because some members of Congress are unhappy with one or two decisions.

When reviewing the future of the appellate system of the federal courts, there has been the suggestion that some of the pressure on the courts of appeals could be relieved if they had discretionary, instead of mandatory, review in some cases. The Long-Range Planning Committee and the Federal Courts Study Committee concluded that there should be at least one level of appeal of right before at least three judges. I certainly agree. Within that framework, I believe some revisions could be made in certain agency appeals that could justify discretionary review by the circuit courts of appeals.

The appellate structure for certain agency cases is unwieldy and should be modified. For example, in a social security case, or a longshoreman's case, the matter is first heard by an administrative law judge, then can be appealed to an agency appellate body, then to the district court, and then to the circuit court. The standard of review at the district court and the circuit court is the same, and it is extremely narrow. Even when a panel of the circuit court believes that a serious injustice is being done, the decision of the administrative law judge must be affirmed if there is substantial evidence to support his determination. This is true even if the decision is clearly erroneous. In my view, these cases would better be handled with an appellate review by an independent court with a less deferential standard of review. This standard should be equivalent to the clearly erroneous standard of review when the appellate court reviews a decision of the district court. If there is one level of appeal by an independent court that is not answerable to the agency involved and employing that standard of review, then it would be appropriate to have discretionary review by the court of appeals. The same could be true with immigration appeals, if there were an independent court, not answerable to the immigration agency, that reviewed immigration appeals for clear error, then it could be justified to have discretionary review by the court of appeals.

I want to call the attention of the Commission to a possible development that could unnecessarily add to the caseload of the circuit courts of appeals. The Bankruptcy Commission recently recommended to Congress that all bankruptcy appeals go directly to the circuit court of appeals. This would eliminate an appeal to the district court or to the Bankruptcy Appellate Panel, which originated in the Ninth Circuit, and is now implemented in five other circuits. We have calculated that in our circuit this would mean that about 1,000 appeals that were concluded with the district court or the Bankruptcy Appellate Panel would go directly to the circuit court. This would be an increase of about one-eighth of our current caseload and would require at least three new circuit judges, depending upon the complexity of the appeals. It would seem that this could be an ideal area for discretionary review if the appeal went first to the three-judge Bankruptcy Appellate Panel.

I will turn now to the specifics of the Ninth Circuit. The attached paper that I previously prepared summarizes the arguments why we are convinced that the circuit is working very well and it answers some of the common criticisms.

I have stressed that our circuit court is efficient and productive. It is worth noting that the court has had no new judgeships authorized since 1984, and the caseload has nearly doubled since that time. Yet, we have been able to keep relatively current despite a very disruptive earthquake and vacancies on our court of up to one-third of our active judges.

One of the frequent criticisms of our court is that the time from the notice of appeal to the determination of a case has been about 14 months, whereas the national average is about 10 months. The criticism is unfair because we have been operating with such a large vacancy factor. The meaningful and fair statistic is that once the case gets to the judges, our circuit is the fastest in the nation for cases submitted without oral argument and is the third fastest for cases orally argued.

Why then the four-month delay? It is simple, it is because cases ready for calendaring before a panel are left in a holding pattern because of the lack of judges to consider them. We would be well within or below the national average if we had our vacancies filled. If we had the nine judgeships that were vacant all last year, we would have been able to have had 120 more argument panels and heard 720 more cases on oral argument calendars. This could have eliminated the delay that we are currently experiencing. It is only because of the extraordinary effort of both our active and senior judges in this emergency situation that we have been able to keep reasonably current.

Another criticism we hear is the lack of consistency because we are a large court with a large number of possible panel combinations. No doubt, any attorney who has lost a case, or judge who has been reversed, believes the decision is inconsistent with the law that he cited. It is significant to note that the thorough, empirical study of Professor Arthur Hellman found no evidence that the size of the circuit led to intracircuit inconsistencies. Restructuring of Justice, (1990), at 83-86, Cornell University Press. A similar conclusion was reached in a study by the Federal Judicial Center, which concluded

"In sum, despite concerns about the proliferation of precedent as the courts of appeals grow, there is currently little evidence that intracircuit inconsistency is a significant problem. Also, there is little evidence that whatever intracircuit conflict exists is strongly correlated with circuit size." Structural and Other Alternatives for the Federal Courts of Appeals (1993), at 94.

One of the criticisms is that because of our large caseload we publish too many cases to keep track of and, thus, the law is difficult to discern. Yet, the surest predictor of the law is a case on point. Each panel on our court decides whether the case establishes any new precedent in the circuit; if so, we publish the case. Annually, we publish between 800 and 900 opinions. Interestingly, the Fifth, Seventh, and Eighth Circuits publish about the same number of opinions as the Ninth Circuit.

For those of us who have practiced in small states, with a dearth of published opinions, we recognize that the greater handicap is when there are gaps in precedent. I believe that because of our size, we are able to choose those cases that add meaningful precedent and yet not fill the books with opinions that are simply redundant.

We have developed rather sophisticated techniques to avoid inconsistency. Our case management attorneys work with a computerized issue code and identify the issues in each case at the inventorying stage. This enables the Clerk's Office to group cases with a similar issue or issues before one panel where timing makes that practical. Where this is not practical, the inventory sheet for each case notifies a panel of the same or similar issues pending before another panel. The first panel to have the issue has priority. This avoids the embarrassing situation of two panels coming to different conclusions near the same time because they are unaware that another panel is considering the same issue.

Of course, the prime mechanism for avoiding inconsistencies is the responsibility of each panel to be aware of and to carefully follow circuit precedent. The three judges and their law clerks and the lawyers presenting the cases are very aware of the Supreme Court and Ninth Circuit precedent when considering a case and the judges conscientiously seek to apply it or, on some occasions, call for en banc review of a precedent the panel believes is in error or in conflict.

The modern 11-judge en banc process is one of the major factors that enables our large court to function effectively. Any active or senior judge can call for an en banc vote, supported by a memorandum articulating the reasons for the call. This generally stimulates a lively exchange of thoughtful memoranda over the e-mail from active and senior judges supporting or opposing the call. The judges of our court take considerable time and effort to analyze the case in question and the memoranda of the judges and to obtain the help of their law clerks before voting. The full court is involved in this process.

The en banc court is composed of the chief judge and 10 active judges selected at random. I have found the careful preparation, the discussion, and the insightful analysis of the judges on the en banc court to be some of the most stimulating and inspiring work our court does. Our rules provide that a judge may request a full court review of the decision of the 11-judge en banc court. In the past 17 years, there have only been 3 such requests and, in each case, the majority of the judges voted against the full court review. I think this clearly demonstrates that our court is quite content to have the 11-judge en banc court be the final decision of the Ninth Circuit Court of Appeals.

One of the criticisms that has been leveled unfairly against the Ninth Circuit is a lack of collegiality among the judges of our court because we are a large court. This criticism has been expressed by those from across the continent who have never served with our circuit, or experienced the relationship that our judges have with each other. We are, in fact, a very collegial court. Our judges get along exceptionally well. We are friends with each other and even though we may disagree vigorously on points of law, it has never extended to being any sort of personal antagonism. This is not true with a great many courts, but it is certainly true with our court. That relationship was well established and jealously guarded by Chief Judge Browning during the 13 years he was chief judge. It has been one of the vital objectives of the chief judges since­Judge Goodwin, Judge Wallace, and me to maintain that collegiality. It is, indeed, the strong tradition of the court and is valued by all of the members of our court.

The idea that we do not know each other well, that we do not have a very full understanding of the opinions and rationales of the judges on our court is simply a fiction. Not only do we get together on three-judge panels, but on en banc panels and at various court and committee meetings. One of the principal and very important meetings that we have is our Symposium, where all of the judges of our court and their spouses get together annually. In the business portion, the judges discuss the operation of our court and ideas for improvement in a quiet, congenial atmosphere that radiates the warmth our judges feel for each other. The social occasions serve to include spouses in our court family and to honor the judges who have taken senior status for their contributions over the years. The spouses of deceased members of our court are invited and, on occasion, attend. We treasure the friendships that we have with each other and respect the abilities and the conscientious efforts of all of our judges to do their best to interpret the law and render their decisions fairly and justly. Not only do we have the contacts with each other when we are on panels together, but several panels will meet at one time in San Francisco or Pasadena, and we have that opportunity to meet and discuss matters with each other. Furthermore, with the advent of the computer and e-mail, memos among the judges are a constant source of communication within the court. I think it is significant to hear the opinions of judges outside our circuit who have come to sit with our court, such as Judges Harlington Wood, Jane Restani, Donald Lay, Robert Myer, and others who attest to the collegiality of our court.

I would like to emphasize that we consider ourselves to be a very effective circuit court. We have instituted many innovations that have, indeed, been adopted in other circuits. (1) We were the first circuit court to develop a Long-Range Plan, which we review annually and fix our sights to implementing the goals that we have set. (2) We use issue coding, as I had mentioned earlier, to assist in achieving consistency within the circuit. (3) We have adopted a very effective mediation and settlement program that settles approximately 600 appeals per year and receives many compliments from the bar and litigants for the manner in which this important program is carried out. (4) We have established the position of an Appellate Commissioner who has greatly assisted in the review of Criminal Justice Act vouchers. He also assists with the award of attorneys' fees in civil cases, handles many non-dispositive motions in order to free-up judge time, and many other important functions. (5) We were the first circuit to develop an oral motions, screening, and conference calendar, where three judges meet for five days per month to consider motions and cases that are clearly governed by existing precedent, have jurisdictional defects, or are frivolous. The importance of this program is that these cases do have the full attention of three judges focused on one case at the same time. Through the assistance of court staff attorneys and the combined experience of the three judges, we determine if the case can be appropriately resolved under this procedure and do so only if it can. There is a fail-safe device, in that, if any one of the three judges believes that a case should be heard by a regular merits panel on an oral argument calendar, then it is removed from the conference program and placed on an argument calendar.

I have emphasized the strength of our circuit court. Equally important is the value of our circuit-wide institutions and the adverse institutional effect that a division of the Ninth Circuit would have throughout the entire circuit. The extensive network that provides an efficient administrative structure for the Ninth Circuit as a whole would have to be dismantled. Others will speak about the importance of our entire circuit remaining together and the critically important institutions and procedures that would be jeopardized by a division of the Ninth Circuit.

I close with this thought. Any discussion about a policy decision as serious as breaking up a 100-year-old institution ought to begin by determining who has the burden of proof. The burden should be on those who propose to split the Ninth Circuit to show that a particular proposal will advance the cause of justice and will do so with greater efficiency than the Ninth Circuit has been able to do for the last century. This burden has not been met. Any advantages that might be gained by dividing the circuit are greatly outweighed by the advantages lost and the disruption and expense of the division.

Thank you for allowing me the opportunity to appear before you to express these thoughts.