Should the Ninth Circuit Court Be Divided Into Thirds? (H.R. 6754)

What is H.R. 6754?

(Updated November 10, 2018)

This bill — known as the CIRCUIT Act — would modify the structure of the Ninth Circuit Court of Appeals by creating three regional divisions and one central administrative division within the court and adding five active judgeships to the circuit, raising the total to 34 judges. The hree regionally-based divisions would consist of: a Northern Division (Alaska, Idaho, Montana, Oregon, and Washington’s Eastern and Western districts); a Middle Division (Guam, Hawaii, Nevada, the Northern Mariana Islands, and California’s Eastern and Northern districts); and a Southern Division (Arizona and the Southern and Central districts of California). Additionally, there’d be a circuit-wide division made up of the chief judge and four judges from each of the regional divisions to hear tax cases, appeals of final agency actions, and cases where two of the regional divisions had split on an issue.

The bill’s full title is the Court Imbalance Restructure Concerning Updates to Impacted Tribunals (CIRCUIT) Act of 2019.

Argument in favor

The Ninth Circuit Court has by far the largest caseload and population size of all 13 appellate courts, and should be split into smaller, more efficient units. This bill strikes an appropriate balance between the unsustainable status quo and breaking up the Ninth Circuit entirely.

Argument opposed

It’s not clear that the structure proposed in this bill will be more efficient than the current Ninth Circuit’s structure, and it’ll likely be more expensive for taxpayers. Additionally, splitting the Ninth Circuit is a partisan decision, as Republicans want to reduce the court’s judicial activism.

Impact

California; Arizona; Alaska; Idaho; Montana; Oregon; Washington; Guam; Hawaii; Nevada; Northern Mariana Islands; federal judges; and the Ninth Circuit Court.

Cost of H.R. 6754

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Rep. Darrell Issa (R-CA) introduced this bill to implement the 1998 White Commission’s recommendation to create three regional divisions within the Ninth Circuit in order to improve judicial efficiency:

“Currently, the Ninth Circuit Court of Appeals is the largest of the 13 federal appellate courts and, on average, hears about a quarter of the nation’s cases brought before the appellate courts in a given year. For years, many have called for this court to be divided, but there remains widespread disagreement on how those divisions should be made.  The CIRCUIT Act is a step toward making this needed change. By dividing the Ninth Circuit into regional divisions that effectively function as individual appellate courts, we open the door to determining whether a circuit split would be feasible while, at the same time, preserve the current Ninth Circuit as a single appellate court.”

Original cosponsor Rep. Bob Goodlatte (R-VA) added that the Ninth Circuit is currently too large to be efficient:

“For the past several decades, the size of the Ninth Circuit has continued to grow far in excess of other circuits. Twenty percent of the U.S. population now resides in this circuit with nine states and two territories, making it twice the size of any other circuit. The geographic breadth and workload of the Ninth Circuit makes it challenging for parties and their counsel to have timely court dates in their region. The CIRCUIT Act does not include an outright split of the Ninth Circuit but instead creates regional divisions in an effort to ensure our federal judiciary is functioning in the fairest and most efficient manner for the citizens it serves.”

Brian Fitzpatrick, a professor at Vanderbilt Law School who clerked on the Ninth Circuit and Supreme Court, testified to the House Judiciary Subcommittee in favor of splitting up the Ninth Circuit. In 2007, he wrote an op-ed in which he argued that the frequency with which Ninth Circuit decisions are overturned by higher courts justifies the splitting of this court:

“As long as the 9th Circuit stays as large as it is, it is likely to disproportionately continue to issue rulings [that are extreme], and it is likely to continue being disproportionately reversed by the Supreme Court. Over the last six years, many members of the Senate have expressed their desire to reduce the number of "extreme" (as opposed to "mainstream") judicial decisions. If they mean what they say, they should also want to complete the work of the last Congress and split the 9th Circuit.”

Several Ninth Circuit judges — Chief Judge Sidney Thomas, and Judges Carlos Bea and Alex Kozinski (who resigned last year due to allegations of sexual misconduct) have testified to Congress opposing the Ninth Circuit Court’s division. Judge Thomas also wrote to the House Judiciary Committee opposing this bill, arguing that:

“The proposed legislation will have serious and far reaching effects on the administration of justice and transaction of commerce in the western United States… It calls for four divisions of the Circuit, three regional, one central. This type of proposal has never been suggested or introduced at any previous time. The bill would create, for the first time, a specialty "Circuit Division" with jurisdiction over all administrative agency cases, including environmental and immigration matters. These cases alone collectively account for 38 percent of the current Ninth Circuit appellate docket. Judges serving on the Circuit Division would be drawn from the regional divisions, which will presumably result either in double-duty for them or even larger caseloads for their colleagues in the regional divisions..r. Beyond disproportionate caseloads, a four-way split will further undermine uniformity of law across the Circuit. Cases having common issues of law may be decided differently and decisions in one division would not be binding on other divisions. While all of the states of the Circuit would be affected, legal conflicts would be particularly problematic in California, which would span two regional divisions, potentially causing businesses and individuals to litigate the same State law under different legal precedents. Conflicting decisions from the regional divisions would require resolution by the already-overburdened Circuit Division, leading to increased delays for litigants. Parties who do not prevail in a case, meanwhile, will have an incentive to seek a second opinion from the Circuit Division as a matter of course. The proposed administrative structure is Byzantine, with an extraordinarily complicated en banc processs… I cannot put my view more strongly. Passage of [this bill] would have a devastating effect on the administration of justice in the West.”

The American Bar Association (ABA) has not taken a position for or against this bill. It has instead encouraged fuller and more thoughtful consideration of this bill, and pointed out in a letter to the House Judiciary Committee that there’s never been widespread Congressional support for the White Commission’s recommendations:

“[T]here has never been widespread congressional support for the White Commission recommendations, and even the most ardent proponents of Ninth Circuit restructuring do not concur over how to split it. The current effort to approve a circuit restructuring plan that has not even been the subject of hearings in decades stands in stark contrast to the congressional bipartisanship and judicial support that existed prior to the division of the Eighth and Fifth Circuits in 1929 and 1980, respectively. These are the only times that Congress has divided a circuit since 1891, when it created a system of regional courts of appeals as we know them today. We urge you to defer action on [this bill].”

This bill passed the House Committee on the Judiciary by a 16-5 vote with the support of one cosponsor, who is also a Republican.

Of Note: The idea of splitting the Ninth Circuit has been raised repeatedly by politicians, as well as the 1998 White Commission, and academics. Congress has considered proposals to break up the Ninth Circuit as early as 1941, as it’s by far the largest circuit in the judicial system, with over 61 million people under its jurisdiction.

Republicans, who view the Ninth Circuit’s tendency towards judicial activism with concern, have tended to champion these efforts. However, despite repeated attempts, the Ninth Circuit has yet to be broken up.

There is a precedent for breaking up circuit courts when they’re too crowded. In 1980, the House Judiciary Committee enacted legislation to move three of the Fifth Circuit’s six states to a new Eleventh Circuit. The legislation to accomplish this split passed the House and Senate by unanimous consent, and a one-year transition was executed smoothly.

Media:

• House Judiciary Committee Press Release
  
• Ninth Circuit Chief Judge Sidney Thomas (Letter Opposed)
  
• LA Times (Op-Ed in Favor)
  
• American Bar Association (Letter Encouraging Further Consideration)
  
• The Recorder
  

Summary by Lorelei Yang

(Photo Credit: iStockphoto.com / JasonDoly)