Statement of Cathy A. Catterson, Clerk of Court
U.S. Court of Appeals for the Ninth Circuit
before the Commission on Structural Alternatives
for the Federal Courts of Appeals
San Francisco, California
May 29, 1998
Thank you for the opportunity to appear before the Commission. My name is Cathy Catterson. Since 1985, I have had the honor of serving as Clerk of Court/Court Executive for the United States Court of Appeals for the Ninth Circuit. I joined the Court staff in 1979 serving in a variety of staff positions prior to my appointment as Clerk. Before coming West, I served as law clerk to the Honorable Edward J. Devitt, in his capacity as Chairman of the U.S. Judicial Conference Committee on Attorney Admission Standards. I have worked in the federal court system for more than twenty years. I am somewhat amazed to say that I am the "senior clerk" among the federal Circuit Clerks around the country.
The Commission has received the Ninth Circuit's report on the functioning of the Circuit Court of Appeals and Judicial Council. I would be happy to try and answer any questions the Commission may have concerning that report or about the Court of Appeals in general. We invite the members of the Commission to inspect our operations, our processes, our practices, and our historical files. As one member of the Court has been known to say, "no bad idea goes untested in the Ninth Circuit." As our report demonstrates, we believe we have also had a lot of very good ideas in the Ninth Circuit, and continue to experiment with many innovative methods of case processing and disposition.
At this point, I am certain the Commission has read many, many pages
concerning the serious issues facing the federal circuit courts. I would like to spend
my limited number of words on three areas: (1) the administrative units as they affect
court staff operations; (2) technology and how it will be used in court operations in the
next millennium; and (3) the time needed to process cases in the Ninth Circuit.
The Court of Appeals adopted its Administrative Units Plan in May 1980 in response to Section 6 of the Omnibus Judgeship Act of 1978. The Court, however, decided that its adjudicative function was not to be decentralized, meaning that the judges of the court of appeals would continue to sit throughout the circuit, on both oral argument and motions calendars. As Judge Browning noted in his remarks, that decision was reached following the court's experimentation with regional calendaring. Judges from their particular geographical region -- northern, middle and southern -- were assigned to oral argument calendars consisting of cases arising only from within their region. The Court, which then consisted of 17 senior and active judges, scheduled the experiment to last six months, from September 1979 to February 1980. After just a few months experience with regional calendaring, the Court voted to stop the experiment. It was a bad idea. Court records reflect that the judges missed the mix of cases, the diversity of the panels, its negative effect on collegiality, and the concern that the law would develop differently in the three regions.
This decision was reaffirmed when the Court adopted the Administrative Units Plan in May 1980. Page one of the Plan read:
Retaining adjudicative unity will foster the collegiality and interpersonal relationships among the judges essential to maintaining a reasonably integrated and consistent law of the circuit.
Implementation of the Plan was done in phases. During Phase One we opened up small clerk's offices in Los Angeles and Seattle. Basically, we established a presence, put up the flag, and installed a local phone number. Following some experience with Phase One, the Court was to determine how much further decentralization of staff offices should occur in Phase Two of the Plan. The staff in the Los Angeles and then Pasadena divisional office increased when the Court moved into what is now known as the Richard H. Chambers U.S. Court of Appeals Building, and the number of judges resident in the building reached a critical mass requiring additional administrative and automation support. In 1987 and 1988, the Court once again revisited the issue of whether Phase Two of the Plan should be implemented, namely, further decentralization of case management staff and the associated files and records. The decision was "no." The two main reasons for this decision were, in my view, related to the Court's decision to maintain its adjudicative unity, and the ever increasing use of and reliance on technology. Dispersing staff and records to divisional offices when the judges within that administrative unit continue to sit throughout the circuit accomplishes very little. In fact, with regard to case management functions, it would dilute some of the expertise and efficiencies of a central staff attorney resource for the court if the functions the office performed had to be replicated in three offices within the circuit. Further, the introduction of an automated docket back in 1986 permitted anyone with access to the system to respond to inquiries from the bar as to case status.
For a more in-depth history of the administrative units plan, the Commission
members might wish to refer to the chapter in Restructuring Justice written by
Professor Thomas W. Church, Jr. I believe it fairly and accurately describes the
evolution of the Administrative Units Plan.
As earlier noted, one of the principal reasons not to decentralize staff and court
records has to do with the ever increasing use of technology in the Courts. First, we
had the automated docket, NewAIMS, which permitted court staff around the circuit
to access docket information from their desktops. The introduction of electronic mail,
facsimile equipment, computer aided legal research, electronic bulletin boards for
public access, teleconferencing capability further improved the ability of the court to
manage its caseload more efficiently. Technology has in many ways erased the miles
between the courthouse and its constituency. Today, the Internet, video conferencing,
imaging, scanning, and coming soon 'the electronic case file' are going to result in a
virtual courthouse. Both judges and lawyers will be able to reduce dramatically the
number of hours spent in travel, and the weight of their briefcases. The manner in
which information is stored, accessed and retrieved will change dramatically as we
enter the next millennium. The Ninth Circuit looks forward to embracing these new
technologies, and to use them to further improve court operations.
Much has been said and written about case delay in the Ninth Circuit. The
Court takes this criticism seriously and continuously examines its processes to further
enhance the disposition of cases before the Court. Members of the Commission are
urged to look at these statistics carefully. Despite having one third of its authorized
judgeships vacant, the Court's disposition rate has been keeping up with the incoming
workload. As noted in our report, the judges of the Court are working extremely hard,
and are quite prompt in disposing of cases once submitted to them. The delay in our
Court occurs during the stage following completion of briefing until argument or
submission. The chart below depicts the time line for processing appeals in the Ninth
Circuit, in the perfect world, in the real world, and compares those to the national
average.
"The Perfect World, According to FRAP &
Circuit Rules
& Court's Internal Policies, No Delay"
- Ninth Circuit
| Day 1 | Day 60 | Day 100 | Day 130 | Day 144 | Day 165-186 | Day 214-235 | Day 244-265 |
| NOA | COR Filed | Aplnt Brief | Aplee Brief | Inventory | Materials to Panel | Oral Argument | Decision Filed |
"The Real World, Oral Argument Cases in the
Ninth Circuit"
Non-Priority Civil Cases -- (Average Processing Time)
| Day 1 | Day 60 | Day 130 | Day 180 | Day 194 | Day 464-485 | Day 513-534 | Day 533-574 |
| NOA | COR Filed | Aplnt Brief | Aplee Brief | Inventory | Materials to Panel | Oral Argument | Decision Filed |
"The Real World, Screening Cases in the Ninth Circuit"
(Average Processing Time)
| Day 1 | Day 30 | Day 90 | Day 120 | Day 144 | Day 204-264 |
| NOA | COR Filed (No Rts) | Aplnt Brief | Aplee Brief (if any) | Inventory | Screening Panel & Decision |
Median Time, Administrative Office Statistics" -- (Table B-4, 12/97)
Non-Priority Civil Cases, Ninth Circuit
| Day 1 | Day 162 | Day 345 | Day 426 |
| NOA | Aplee Brief | Oral Argument | Decision Filed |
Median Time, Administrative Office Statistics" -- (Table B-4, 12/97)
Non-Priority Civil Cases, All Circuits
| Day 1 | Day 156 | Day 276 | Day 345 |
| NOA | Aplee Brief | Oral Argument | Decision Filed |
Statistics only tell some of the story. They need to be woven into an understanding of how the Court operates. For example, the Court has become a bit more generous in permitting brief extensions in non priority civil cases since it does not serve the Court well to receive stale briefs. Nor can it justify limited extensions when there is a six to eight month delay in getting a calendar date due to the judicial vacancies. Also, unlike some other courts of appeals, our judges wish to receive the calendar materials at least six weeks prior to the hearing. Many circuits have only a few weeks lead time. Yes, we could reduce the time to make ours statistics look better, but the judges want the cases sufficiently in advance so that they can prepare thoroughly for the day of oral argument. There are differences among the circuits, some of which explain the differences in their statistical profiles. But overall, the Ninth Circuit is still keeping up. We expect that once the Court has its full complement of judges we will be able to reduce the delay between briefing and argument considerably.
In sum, there is much more I could say about the Ninth Circuit. It is truly a honor to work for this Court. I have served under four Chief Judges - Judge Browning, Judge Goodwin, Judge Wallace and now Judge Hug. The Chief Judge sets the tone for the Court. The tone is a positive one. From my vantage point as court administrator, I can unequivocally tell you that the judges of this Court work extremely hard, they respect one another, they enjoy one another's company, and they are committed to keeping the institution of the Ninth Circuit alive and kicking well into the next millennium.
Thank you for the opportunity to appear.