[Pages S2042-S2044]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

NINTH CIRCUIT DIVISION

<bullet> Mr. MURKOWSKI. Mr. President, today I rise to clarify a
production and printing problem that occurred with regard to the
Congressional Record. On January 19, 1999, I, with my distinguished
colleague from the State of Washington, Senator Gorton, introduced
legislation to reorganize the Ninth Circuit Court of Appeals.
Unfortunately, the legislation we introduced, S. 186, was an incorrect
draft. I reintroduced the correct draft as S. 253. However, through a
glitch in the publishing of the Record, the incorrect language of the
bill was again reproduced in the Record.
The language appearing in today's record is the correct language of
S. 253. This language is identical to the recommendation of the White
Commission, the congressionally-mandated Commission structured to study
the alignment of the U.S. Court of Appeals.
Mr. President, I ask that the ``star print'' of S. 253, the Ninth
Circuit Reorganization Act of 1999, be printed in the Record.
The material follows:

S. 253

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Federal Ninth Circuit
Reorganization Act of 1999''.

SEC. 2. DIVISIONAL ORGANIZATION OF THE COURT OF APPEALS FOR
THE NINTH CIRCUIT.

(a) Regional Divisions.--Effective 180 days after the date
of enactment of this Act, the United States Court of Appeals
for the Ninth Circuit shall be organized into 3 regional
divisions designated as the Northern Division, the Middle
Division, and the Southern Division, and a nonregional
division designated as the Circuit Division.
(b) Review of Decisions.--
(1) Nonapplication of section 1294.--Section 1294 of title
28, United States Code, shall not apply to the Ninth Circuit
Court of Appeals. The review of district court decisions
shall be governed as provided in this subsection.
(2) Review.--Except as provided in sections 1292(c),
1292(d), and 1295 of title 28, United States Code, once the
court is organized into divisions, appeals from reviewable
decisions of the district and territorial courts located
within the Ninth Circuit shall be taken to the regional
divisions of the Ninth Circuit Court of Appeals as follows:
(A) Appeals from the districts of Alaska, Idaho, Montana,
Oregon, Eastern Washington, and Western Washington shall be
taken to the Northern Division.
(B) Appeals from the districts of Eastern California,
Northern California, Guam, Hawaii, Nevada, and the Northern
Mariana Islands shall be taken to the Middle Division.
(C) Appeals from the districts of Arizona, Central
California, and Southern California shall be taken to the
Southern Division.
(D) Appeals from the Tax Court, petitions to enforce the
orders of administrative agencies, and other proceedings
within the court of appeals' jurisdiction that do not involve
review of district court actions shall be filed in the court
of appeals and assigned to the division that would have
jurisdiction over the matter if the division were a separate
court of appeals.
(3) Assignment of judges.--Each regional division shall
include from 7 to 11 judges of the court of appeals in active
status. A majority of the judges assigned to each division
shall reside within the judicial districts that are within
the division's jurisdiction as specified in paragraph (2),
except that judges may be assigned to serve for specified,
staggered terms of 3 years or more, in a division in which
they do not reside. Such judges shall be assigned at random,
by means determined by the court, in such numbers as
necessary to enable the divisions to function effectively.
Judges in senior status may be assigned to regional divisions
in accordance with policies adopted by the court of
appeals. Any judge assigned to 1 division may be assigned
by the chief judge of the circuit for

[[Page S2043]]

temporary duty in another division as necessary to enable
the divisions to function effectively.
(4) Presiding judges.--Section 45 of title 28, United
States Code, shall govern the designation of the presiding
judge of each regional division as though the division were a
court of appeals, except that the judge serving as chief
judge of the circuit may not at the same time serve as
presiding judge of a regional division, and that only judges
resident within, and assigned to, the division shall be
eligible to serve as presiding judge of that division.
(5) Panels.--Panels of a division may sit to hear and
decide cases at any place within the judicial districts of
the division, as specified by a majority of the judges of the
division. The divisions shall be governed by the Federal
Rules of Appellate Procedure and by local rules and internal
operating procedures adopted by the court of appeals. The
divisions may not adopt their own local rules or internal
operating procedures. The decisions of 1 regional division
shall not be regarded as binding precedents in the other
regional divisions.
(c) Circuit Division.--
(1) In general.--In addition to the 3 regional divisions
specified under subsection (a), the Ninth Circuit Court of
Appeals shall establish a Circuit Division composed of the
chief judge of the circuit and 12 other circuit judges in
active status, chosen by lot in equal numbers from each
regional division. Except for the chief judge of the circuit,
who shall serve ex officio, judges on the Circuit Division
shall serve nonrenewable, staggered terms of 3 years each.
One-third of the judges initially selected by lot shall serve
terms of 1 year each, one-third shall serve terms of 2 years
each, and one-third shall serve terms of 3 years each.
Thereafter all judges shall serve terms of 3 years each. If a
judge on the Circuit Division is disqualified or otherwise
unable to serve in a particular case, the presiding judge of
the regional division to which that judge is assigned shall
randomly select a judge from the division to serve in the
place of the unavailable judge.
(2) Jurisdiction.--The Circuit Division shall have
jurisdiction to review, and to affirm, reverse, or modify any
final decision rendered in any of the court's divisions that
conflicts on an issue of law with a decision in another
division of the court. The exercise of such jurisdiction
shall be within the discretion of the Circuit Division and
may be invoked by application for review by a party to the
case, setting forth succinctly the issue of law as to which
there is a conflict in the decisions of 2 or more divisions.
The Circuit Division may review the decision of a panel
within a division only if en banc review of the decision has
been sought and denied by the division.
(3) Procedures.--The Circuit Division shall consider and
decide cases through procedures adopted by the court of
appeals for the expeditious and inexpensive conduct of the
division's business. The Circuit Division shall not function
through panels. The Circuit Division shall decide issues of
law on the basis of the opinions, briefs, and records in the
conflicting decisions under review, unless the Circuit
Division determines that special circumstances make
additional briefing or oral argument necessary.
(4) En banc proceedings.--Section 46 of title 28, United
States Code, shall apply to each regional division of the
Ninth Circuit Court of Appeals as though the division were
the court of appeals. Section 46(c) of title 28, United
States Code, authorizing hearings or rehearings en banc,
shall be applicable only to the regional divisions of the
court and not to the court of appeals as a whole. After a
divisional plan is in effect, the court of appeals shall
not order any hearing or rehearing en banc, and the
authorization for a limited en banc procedure under
section 6 of Public Law 95-486 (92 Stat. 1633), shall not
apply to the Ninth Circuit. An en banc proceeding ordered
before the divisional plan is in effect may be heard and
determined in accordance with applicable rules of
appellate procedure.
(d) Clerks and Employees.--Section 711 of title 28, United
States Code, shall apply to the Ninth Circuit Court of
Appeals, except the clerk of the Ninth Circuit Court of
Appeals may maintain an office or offices in each regional
division of the court to provide services of the clerk's
office for that division.
(e) Study of Effectiveness.--The Federal Judicial Center
shall conduct a study of the effectiveness and efficiency of
the divisions in the Ninth Circuit Court of Appeals. No later
than 8 years after the effective date of this Act, the
Federal Judicial Center shall submit to the Judicial
Conference of the United States a report summarizing the
activities of the divisions, including the Circuit Division,
and evaluating the effectiveness and efficiency of the
divisional structure. The Judicial Conference shall submit
recommendations to Congress concerning the divisional
structure and whether the structure should be continued with
or without modification.

SEC. 2. ASSIGNMENT OF JUDGES; PANELS; EN BANC PROCEEDINGS;
DIVISIONS; QUORUM.

(a) In General.--Section 46 of title 28, United States
Code, is amended to read as follows:

Sec. 46. Assignment of judges; panels; en banc proceedings;
divisions; quorum

``(a) Circuit judges shall sit on the court of appeals and
its panels in such order and at such times as the court
directs.
``(b) Unless otherwise provided by rule of court, a court
of appeals or any regional division thereof shall consider
and decide cases and controversies through panels of 3
judges, at least 2 of whom shall be judges of the court,
unless such judges cannot sit because recused or
disqualified, or unless the chief judge of that court
certifies that there is an emergency including, but not
limited to, the unavailability of a judge of the court
because of illness. A court may provide by rule for the
disposition of appeals through panels consisting of 2 judges,
both of whom shall be judges of the court. Panels of the
court shall sit at times and places and hear the cases and
controversies assigned as the court directs. The United
States Court of Appeals for the Federal Circuit shall
determine by rule a procedure for the rotation of judges from
panel-to-panel to ensure that all of the judges sit on a
representative cross section of the cases heard and,
notwithstanding the first sentence of this subsection, may
determine by rule the number of judges, not less than 2, who
constitute a panel.
``(c) Notwithstanding subsection (b), a majority of the
judges of a court of appeals not organized into divisions as
provided in subsection (d) who are in regular active service
may order a hearing or rehearing before the court en banc. A
court en banc shall consist of all circuit judges in regular
active service, except that any senior circuit judge of the
circuit shall be eligible to participate, at that judge's
election and upon designation and assignment pursuant to
section 294(c) and the rules of the circuit, as a member of
an en banc court reviewing a decision of a panel of which
such judge was a member.
``(d)(1) A court of appeals having more than 15 authorized
judgeships may organize itself into 2 or more adjudicative
divisions, with each judge of the court assigned to a
specific division, either for a specified term of years or
indefinitely. The court's docket shall be allocated among the
divisions in accordance with a plan adopted by the court, and
each division shall have exclusive appellate jurisdiction
over the appeals assigned to it. The presiding judge of each
division shall be determined from among the judges of the
division in active status as though the division were the
court of appeals, except the chief judge of the circuit
shall not serve at the same time as the presiding judge of
a division.
``(2) When organizing itself into divisions, a court of
appeals shall establish a circuit division, consisting of the
chief judge and additional circuit judges in active status,
selected in accordance with rules adopted by the court, so as
to make an odd number of judges but not more than 13.
``(3) The circuit division shall have jurisdiction to
review, and to affirm, reverse, or modify any final decision
rendered in any of the court's divisions that conflicts on an
issue of law with a decision in another division of the
court. The exercise of such jurisdiction shall be within the
discretion of the circuit division and may be invoked by
application for review by a party to the case, setting forth
succinctly the issue of law as to which there is a conflict
in the decisions of 2 or more divisions. The circuit division
may review the decision of a panel within a division only if
en banc review of the decision has been sought and denied by
the division.
``(4) The circuit division shall consider and decide cases
through procedures adopted by the court of appeals for the
expeditious and inexpensive conduct of the circuit division's
business. The circuit division shall not function through
panels. The circuit division shall decide issues of law on
the basis of the opinions, briefs, and records in the
conflicting decisions under review, unless the division
determines that special circumstances make additional
briefing or oral argument necessary.
``(e) This section shall apply to each division of a court
that is organized into divisions as though the division were
the court of appeals. Subsection (c), authorizing hearings or
rehearings en banc, shall be applicable only to the divisions
of the court and not to the court of appeals as a whole, and
the authorization for a limited en banc procedure under
section 6 of Public Law 95-486 (92 Stat. 1633), shall not
apply in that court. After a divisional plan is in effect,
the court of appeals shall not order any hearing or rehearing
en banc, but an en banc proceeding already ordered may be
heard and determined in accordance with applicable rules of
appellate procedure.
``(f) A majority of the number of judges authorized to
constitute a court, a division, or a panel thereof shall
constitute a quorum.''.
(b) Technical and Conforming Amendment.--The table of
sections for chapter 3 of title 28, United States Code, is
amended by amending the item relating to section 46 to read
as follows:

``46. Assignment of judges; panels; en banc proceedings; divisions;
quorum.''.

(c) Monitoring Implementation.--The Federal Judicial Center
shall monitor the implementation of section 46 of title 28,
United States Code (as amended by this section) for 8 years
following the date of enactment of this Act and report to the
Judicial Conference such information as the Center determines
relevant or that the Conference requests to enable the
Judicial Conference to assess the effectiveness and
efficiency of this section.

SEC. 3. DISTRICT COURT APPELLATE PANELS.

(a) In General.--Chapter 5 of title 28, United States Code,
is amended by adding after section 144 the following:

[[Page S2044]]

``Sec. 145. District Court Appellate Panels

``(a) The judicial council of each circuit may establish a
district court appellate panel service composed of district
judges of the circuit, in either active or senior status, who
are assigned by the judicial council to hear and determine
appeals in accordance with subsection (b). Judges assigned to
the district court appellate panel service may continue to
perform other judicial duties.
``(b) An appeal heard under this section shall be heard by
a panel composed of 2 district judges assigned to the
district court appellate panel service, and 1 circuit judge
as designated by the chief judge of the circuit. the
circuit judge shall preside. A district judge serving on
an appellate panel shall not participate in the review of
decisions of the district court to which the judge has
been appointed. the clerk of the court of appeals shall
serve as the clerk of the district court appellate panels.
A district court appellate panel may sit at any place
within the circuit, pursuant to rules promulgated by the
judicial council, to hear and decide cases, for the
convenience of parties and counsel.
``(c) In establishing a district court appellate panel
service, the judicial council shall specify the categories or
types of cases over which district court appellate panels
shall have appellate jurisdiction. In such cases specified by
the judicial council as appropriate for assignment to
district court appellate panels, and notwithstanding sections
1291 and 1292, the appellate panel shall have exclusive
jurisdiction over district court decisions and may exercise
all of the authority otherwise vested in the court of appeals
under sections 1291, 1292, 1651, and 2106. A district court
appellate panel may transfer a case within its jurisdiction
to the court of appeals if the panel determines that
disposition of the case involves a question of law that
should be determined by the court of appeals. the court of
appeals shall thereupon assume jurisdiction over the case for
all purposes.
``(d) Final decisions of district court appellate panels
may be reviewed by the court of appeals, in its discretion. A
party seeking review shall file a petition for leave to
appeal in the court of appeals, which that court may grant or
deny in its discretion. If a court of appeals is organized
into adjudicative divisions, review of a district court
appellate panel decision shall be in the division to which an
appeal would have been taken from the district court had
there been no district court appellate panel.
``(e) Procedures governing review in district court
appellate panels and the discretionary review of such panels
in the court of appeals shall be in accordance with rules
promulgated by the court of appeals.
``(f) After a judicial council of a circuit makes an order
establishing a district court appellate panel service, the
chief judge of the circuit may request the Chief Justice of
the United States to assign 1 or more district judges from
another circuit to serve on a district court appellate panel,
if the chief judge determines there is a need for such
judges. the Chief Justice may thereupon designate and assign
such judges for this purpose.''.
(a) Technical and Conforming Amendment.--The table of
sections for chapter 5 of title 28, United States Code, is
amended by adding after the item relating to section 144 the
following:

``145. District court appellate panels.''.

(c) Monitoring Implementation.--The Federal Judicial Center
shall monitor the implementation of section 145 of title 28,
United States Code (as added by this section) for 8 years
following the date of enactment of this Act and report to the
Judicial Conference such information as the Center determines
relevant or that the Conference requests to enable the
Conference to assess the effectiveness and efficiency of this
section.<bullet>

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