November 5, 1998

Commission on Structural Alternatives for the Federal Courts of Appeals
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E.
Washington, D.C. 20544

Re: Comments on the Commission Draft Report

Dear Justice White and Members of the Commission:

Thank you for the opportunity to offer the attached comments of the Federal Bar Association on your tentative draft report. The Association’s comments were drafted by a select working group of fifteen attorneys and federal judges, chaired by former FBA National President Robert Mueller.

A separate set of comments will be filed by and on behalf of the Federal Bar Association’s Taxation Law Section.

Please contact us if we may be of assistance in relation to any other aspect of the Commission’s work.

Sincerely,

Adrienne A. Berry
National President
Federal Bar Association

att.

COMMENTS OF THE FEDERAL BAR ASSOCIATION
ON THE TENTATIVE DRAFT REPORT OF THE
COMMISSION ON STRUCTURAL ALTERNATIVES
FOR THE FEDERAL COURTS OF APPEALS, OCTOBER 1998

November 5, 1998

At the outset, the Federal Bar Association (FBA) thanks the Commission on Structural Alternatives for the Federal Courts of Appeals (Commission) for the opportunity to offer comment and suggestions concerning its tentative draft report of October 1998. The FBA commends the Commission for providing this opportunity to help further refine the thinking that is reflected in the tentative draft report. In particular, the FBA, as the only national bar association that has as its primary focus the practice of federal law, appreciates this occasion to continue to help shape the approach to solving problems associated with growth of caseload management and adjudication in the federal appellate judiciary.

In these comments, we first will address the report’s proposals concerning division of the Ninth Circuit and, in the future, other circuits as they continue to grow. Next, we will touch briefly on specific proposals in the report that would reduce the appellate jurisdiction of the regional circuit courts. Finally, we will propose that the Commission suggest certain actions to Congress, apart from structural initiatives, that we believe will reduce the stress on the circuit courts, regardless of their structure.

1. Division of the Ninth Circuit

The FBA applauds the Commission’s recommendation against splitting the Ninth Circuit into two or more circuits. Both in our written statement to the Commission and in our testimony before the Commission at its San Francisco hearing in May, the Federal Bar Association—like the state officials, the U.S. Department of Justice, the American Bar Association, and most state and local bar associations, which are referred to on page 36 of the draft report—strongly urged against any such split. Although eschewing splitting the Ninth Circuit, the draft report proposes adjudicative division of the circuit, with specific and detailed suggestions for implementing that division, including a "circuit division" for resolving inter-division conflicts and a revised en banc procedure. As well, the report recommends certain experimental efforts such as two-judge panels and district court appellate panels.

As the Report acknowledges, the Ninth Circuit long has been a crucible for experimentation in management and disposition of a growing federal court caseload. Many of the innovations of the Ninth Circuit have proven successful and, thus, are proven mechanisms for other circuits to implement as they, in turn, encounter problems associated with growth of caseload and court size.

Our study of the Commission’s draft report has revealed creative structural approaches and additional mechanisms for grappling with these issues. They seem to serve three overarching principles that the Commission has concluded are desirable in conceiving a circuit structure and operation. First, an appeal should be decided largely by circuit judges who reside in the region from which the appeal emanates. Second, the judges who reside in a particular region of the circuit, where there are relatively homogenous interests and culture, are best able to work together to develop the body of law particularly applicable to that region. Finally, a smaller body of judges who all are from a particular region of the circuit would be better able to monitor the panel decisions from within that region and to adopt procedures for doing so.

In our view, however, the proposals that are designed to implement these principles create certain issues that suggest caution and flexibility. For instance, while legal issues of unique regional concern within a circuit might well be resolved more satisfactorily by judges from within that region, the much larger portion of appellate issues and caseload are not so regionally unique. Experience with the specific division structure proposed in the draft report might well reflect some achievement of greater sensitivity in resolution of essentially regional issues. At the same time, experience might demonstrate that the price for achieving this—occasioned by lack of inter-division stare decisis and of meaningful en banc review— is a significant compromise of jurisprudential integrity of the circuit as an institutional structure.

As another example, the proposal for district court appellate panels to reduce the burden of the circuit court might prove, through experience, to create caseload issues for district judges and a host of other possible problems. We will not burden these comments, and the Commission, with exhaustive discussion of other similar concerns. The Federal Bar Association praises the vision of the Commission—a vision that looks beyond the present and well into the future. Consistent with that vision, the FBA urges the Commission to seize the moment; to recognize that, as creative and positive as any particular scheme or structure might seem to be, only experience will prove the point; and to build upon the Ninth Circuit’s tradition as a crucible for change and experiment and transform it into a laboratory that will explore the way for other growing circuits—that will illuminate for the future the rocky roads, as well as the smooth and promising ones.

To formalize this commitment to experimentation in structure and procedure, we recommend that the Commission propose that Congress enact legislation that 1) will set out certain principles to be served, such as those articulated earlier that we discern from the draft report, and 2) will authorize the Ninth Circuit to implement the structural proposals in the draft report—and others, as well—all in an effort to determine, in practice, what does and does not work. The structure and process are not the ends—they are the means to the end of serving the principles identified by the Commission that are implicit in its recommendations. Rather than propose legislation that will establish an inflexible structure that may or may not prove desirable with experience, the FBA recommends that the Commission propose legislation that will enable—and charge—the Ninth Circuit with blazing the trail through experiment and flexibility, so that the practitioners and judges of the Ninth Circuit can discover the most efficient and effective appellate structure and procedure, for the sake not just for the Ninth Circuit but of those that follow.

2. Proposals to Reduce Appellate Jurisdiction

1. Social Security Claims

The FBA is of the view that creation of an Article I court, about which the draft report takes no position, is not a necessary predicate to centralizing jurisdiction to review appeals in Social Security claims in the Federal Circuit. Indeed, we continue to believe that a claimant should have Article III review in the district court in which the claimant resides. However, appellate review can and should be consolidated in the Federal Circuit, for the reasons stated in the draft report. This approach would leave fundamentally intact the structure of Social Security Act litigation but would relieve the regional circuits of this caseload. We recommend that the Commission propose this change to the appellate venue for Social Security cases, without encumbering it with a drastic prerequisite of creating an entirely new Article I court for the initial review.

The Bankruptcy Appellate Panel (BAP) has been adopted in only six circuits, including the Ninth Circuit. The Ninth Circuit has had a BAP since 1979, and it has been accepted as an integral part of the appellate process. A BAP, however, may never be adopted as a part of the appellate process in many other circuits. Therefore, procedures should be adopted to improve the system in each circuit that will benefit those circuits with and without a BAP. We do not suggest that all circuits have a BAP; as just stated, we respect the view of some circuits to the contrary. In any event, we believe that the overwhelming number of bankruptcy practitioners and bankruptcy judges and district judges are of one view: Do not involve district courts in the appeal. If a circuit has a BAP, then an appeal should go from the bankruptcy court to the BAP and, from there, to the Court of Appeals; where there is no BAP, then the appeal should go directly from the bankruptcy court to the Court of Appeals. This leads logically to the very important conclusion that BAP opinions be binding on bankruptcy judges except where reviewed by a Court of Appeals. With this in mind, while the FBA believes that, while the Commission’s recommendations are constructive, the third alternative best serves these principles. That alternative would substitute BAP review for district court appellate review of bankruptcy judge decisions in core bankruptcy proceedings and in noncore proceedings where the parties had consented to final judgment by a bankruptcy judge. The first alternative of direct appeals to the circuit court may burden those circuits that have concluded that caseload dictates that a BAP is useful in the administration of justice. And the second alternative of either a direct appeal to the circuit or an appeal to the BAP would create a forum-shopping issue which should be discouraged.

Finally, the Commission’s draft report does not address how the seven BAP judges will hear cases if the three-division recommendation for the Ninth Circuit is adopted. It would be desirable for the seven BAP judges to continue to hear matters as they currently do, however, this issue will require further study to determine how regional divisions will affect the BAP.

The draft report recommends that jurisdiction over appeals on copyright claims be removed from the regional circuits and placed exclusively in the Federal Circuit, as is the case currently with patent claims. We suggest, however, that the technology problems in copyright cases are not of the same quality or quantity as in patent cases. Consequently, there is much less of a need for centralized expertise. At the same time, centralized jurisdiction in the Federal Circuit might dilute that court’s capacity to deal with the types of cases already within its jurisdiction, which do require special expertise.

The majority of the Commission believes that a recommendation regarding diversity jurisdiction is outside the scope of the Commission’s charter. Accordingly, we will not comment extensively on that subject, which is addressed in a separate statement of Judge Merritt, who is joined by Justice White, other than to state that it is the longstanding policy of the Federal Bar Association to support retention of diversity jurisdiction. The FBA would welcome the opportunity to address this subject more fully if and when a specific proposal comes under consideration.

1. Other Relief on Circuit Stress

In our earlier written and oral presentations to the Commission, the Federal Bar Association urged the Commission to note for the attention of the President and the Congress the vital importance to the health of the federal judiciary and the well-being of all our citizens of promptly filling judicial vacancies. No structural innovation will work if judges are not appointed to already-existing, congressionally approved judicial seats (to say nothing of reasonable expansion of those seats on certain courts). We recommend a comment in this regard in an appropriate location in the final report.

In our testimony in San Francisco, the Federal Bar Association discussed with the Commission the importance of focusing attention on the unthinking proliferation of new federal criminal statutes. Surely, there are appropriate occasions for federalization of a crime—occasions in which a federal statute would not merely duplicate a state statute but one in which some additional aspect makes federal treatment appropriate. But crimes that adequately are addressed in state courts do not belong in federal courts. Before Congress passes another single new criminal statute, it should require of itself a "judicial impact statement." It is not inappropriate for this Commission to bring to Congress’ attention the substantial impact that its actions in this regard have on federal court caseloads.

The FBA hopes that it has performed service to the Commission in its earlier presentations and offers these comments and suggestions in the spirit of assisting the Commission in preparing a final report that is of the highest possible quality. Thank you for this opportunity to help.