October 19, 1998

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

Dear Members of the Commission:

I read your report with great interest and think that your proposals for the creation of divisions within the Ninth Circuit are politically justified and administratively possible. I believe that you created a carefully balanced plan that deals with real and perceived problems, while maintaining the administrative structure of the Ninth Circuit.

As to the bankruptcy appeals, I think that there are two issues that you need to deal with in this report:

1. The composition of the Bankruptcy Appellate Panel. You do not make it clear whether there would be one Bankruptcy Appellate Panel for the entire circuit or whether each division of the circuit would have its own Bankruptcy Appellate Panel. My recommendation would be one Bankruptcy Appellate Panel for the entire circuit with any appeal from that panel to the appropriate division given the venue of the case. The Bankruptcy Appellate Panel in the Ninth Circuit has only 7 judges. To the extent that collegiality is an important issue in the BAP, this number falls well below the critical number of 17 that is noted in the report. There is no reason to create the additional structure of three separate Bankruptcy Appellate Panels, which also would increase the number of conflicts between their decisions. Further, I believe that you will find that the bulk of appeals come from the Central District of California. Since bankruptcy judges in the Central District may not hear appeals arising from our district, if there were a BAP just for the "Southern Division of the Ninth Circuit," it would take a large percentage of the bankruptcy judges from California Southern, Arizona and Nevada just to hear appeals from the Central District of California. This is a small pool of judges to draw from in order to get those who are most interested in appellate work and also most skilled in it.
2. The legislation should give precedential effect to bankruptcy appellate panel decisions. If there is to be a unified body of law within a circuit and bankruptcy cases are to be handled without substantial delay and extra litigation, it is important that there be precedential decisions which are obtained without delay. I recommend that Bankruptcy Appellate Panel decisions be given precedential effect within the circuit unless the case has been accepted for appellate review (under your first and second approaches; report and recommendation of the BAP to the Court of Appeals or discretionary review of a BAP decision by the Court of Appeals). If the BAP structure is the same as today in which there is an appeal of right to the Court of Appeals, I recommend that the BAP decision become precedential unless the Court of Appeals uses something similar to "decertification," which is used by the California Supreme Court on decisions made by the California Court of Appeal. In other words, the BAP decision would be precedential unless the Court of Appeals (after a brief review of the matter) decides that it wants to remove the precedential effect before the Ninth Circuit comes down with a final decision.

Thank you for taking these matters under consideration. While I wish that the state of California would not have to be divided in any way, I do believe that your creation of a Circuit Division to correct conflicts will be a useable tool to make this structure function.

Very truly yours,

GERALDINE MUND
Chief Bankruptcy Judge
Central District of California

GM:yg