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Committee 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 White Commission Draft Report

Dear Justice White and Members of the Commission:

I commend the Commission on its thoughtful report and appreciate the opportunity to provide comments.

General comments: I strongly agree with the Commission's opposition to creating new circuits. There is simply no evidence that breaking up the circuit into two circuits would result in any benefits from an administrative standpoint. None of the proposed alternative circuit

From an adjudicative and collegiality standpoint, the Commission's general concept that larger circuits be divided into smaller adjudicative panels offers an interesting alternative with considerable merit. Some aspects of the Commission's specific proposals, however, are likely to impede the effective functioning of the appellate courts, as set forth below.

Dividing the Circuit into adjudicative divisions may promote collegiality and consistency of opinions. However, three aspects of the Commission's proposal should be modified:

1. Interposing another level of en banc review at the divisional level would add a layer of delay and potential inconsistency that is not justified by the analysis of the report.

2. Divisional opinions should be binding on the entire circuit, otherwise it will be impossible to determine with certainty what the "law of the circuit" is.

3. All en banc review should be conducted at the circuit level. Current standards for review should apply: such review is appropriate if inconsistencies develop between panels, whether cross-divisional or intra-divisional; and if reconsideration of prior lines of authority is warranted. Circuit en banc proceedings should not be limited to clear-cut divisional conflicts, as the proposal appears to contemplate.

Comments on the Commission's positions relating to bankruptcy appeals:

The Commission opposes the National Bankruptcy Review Commission's recommendation favoring direct appeals of final bankruptcy court decisions. The report on this issue is a little surprising, in light of the fact that bankruptcy judges were not included in the Commission's survey of judges described on page four of the report. This portion of the report does not appear well-founded.

The opposition appears to be due solely to concerns about the appellate burden of increased volume of bankruptcy appeals. This is not a principled reason for denying effective appellate Yet the worst-case scenario for increased appeals would still result in far fewer bankruptcy appeals than pro se prisoner civil appeals: bankruptcy appeals are projected to increase from 2% of the court of appeals workload to approximately 6%, which is far less than the 10% level of prisoner litigation (see Table 2-4). Given the significance of bankruptcy issues and the overall volume of bankruptcy petition filings, the 6% figure would not appear to represent a disproportionate allocation of appellate resources. More importantly, most bankruptcy appeals settle; many involve straightforward application of existing law, which may be resolved using the Circuit's expedited procedures for resolution; and the volume is likely to decrease significantly, once clear circuit-level precedent is established on many of the currently unsettled issues.

Referring bankruptcy appeals to divisional BAPs will not be possible, due to the high volume of appeals from the Central District of California. Only a circuit-wide BAP would be possible. For these reasons, the report should not take a position on the issue of bankruptcy appeals.

Thank you for the opportunity to comment.

Very truly yours,

Lisa Hill Fenning
United States Bankruptcy Judge