Archive

United States Court of Appeals
The Pioneer Courthouse
Portland, Oregon 97204-1396

 
Chambers of
Diarmuid F. O'Scannlain
United States Circuit Judge
(503) 326-2187

November 6, 1998



The Honorable Byron R. White
Chairman
Commission on Structural Alternatives for the Federal Courts of Appeals
Thurgood Marshall Federal Judiciary Building
One Columbus Circle
Washington, D.C. 20544

Re: Draft Report

Dear Mr. Justice White:

I commend the Commission for its Draft Report which is, on the whole, a constructive, perceptive and creative approach to the long-range problem affecting all circuits -- coping with the relentless growth of appellate work in our judicial system. The specific conclusions which I find most significant are:

  1. Decisions of District Courts within the same state may indeed be reviewed by different regional appellate courts (divisions) without difficulty. California now represents nearly 63% of the total workload of our nine-state circuit. Whatever Congress decides to do, be it outright circuit split or creation of divisions, it should no longer be deterred from entertaining the possibility that appeals from the four separate federal judicial districts within California, might be allocated to different appellate courts (divisions). Indeed, it would appear that many of the members of the Supreme Court of the United States agree. I was particularly struck by the comments of your colleague, Mr. Justice Stevens, that the consequences of splitting California between two circuits are seriously exaggerated.


  2. The circuit split alternatives identified as Option A (two-way split -- five northwest states and Pacific Islands in new Twelfth Circuit), Option B (three-way split -- Arizona in the Tenth Circuit and the five northwest states into new Twelfth Circuit), and Option C (the Hruska Commission two-way equal split) are indeed the most viable, notwithstanding the Commission's recommendation against split at this time.

  1. The use of two-judge panels at the Court of Appeals level should be encouraged to the maximum extent possible.

  1. District Courts should be permitted to establish appellate divisions for disposition of appeals in certain classes of cases under conditions to be developed. Review of such appellate decisions at the Court of Appeals level should be by certiorari.


  2. The present limited en banc system is not functioning effectively.


As a refinement to your specific proposals for divisions, I would like to offer two suggestions:

  1. In light of its conclusion that the ideal size of an appellate court is between 7 and 11 judges, why not split the Ninth Circuit into two or three circuits immediately? The current population of the circuit is over 51 million people; the average of all other circuits is approximately half that, and none exceeds 31 million. The optional/mandatory divisional structure for implementation by those circuits, including the new ones who wish to do so, could still be preserved. If Option C, which remains my preference, were to be adopted, both the new Ninth and new Twelfth Circuits could be allocated 14 judges by an equal split of the existing 28 judges to parallel the equal split of caseload; both the new Ninth and new Twelfth would thereafter have the option, as would the Third, Fifth, Sixth and Eleventh Circuits, of implementing the divisional structure. If Option A or B were to be enacted by Congress, at least the larger of the new circuits could elect the divisional approach immediately.


  2. Alternatively, since use of the divisional structure would be mandatory in the case of every circuit having more than 17 circuit judges, might it not be more appropriate for the circuit itself to determine its precise divisional structure. The draft report codifies a mandated structure for the Ninth Circuit only, but not for any other circuits which may very well be faced with division. In other words, why not let the optional (greater than 14 judges) and the mandatory (greater than 17 judges) circuits each have the authority to design divisions to suit the needs of judicial administration within their respective circuits?

Once again, I commend the Commission on its very fine work. I believe that there will be a heightened interest in Congress either to adopt the essence of the divisional structure which the Commission has now put on the table, or to pursue one of the three options for a permanent split of the existing Circuit. In either event, the public has been well served by your deliberations.

Sincerely,


Diarmuid F. O'Scannlain
United States Circuit Judge
for the Ninth Circuit

DFO/ntw