United States Court of Appeals for the Ninth Circuit

History

The Ninth Circuit's large size is due to the dramatic increases in both the population of the western states and the court's geographic jurisdiction that have occurred since the U.S. Congress created the Ninth Circuit in 1891. The court was originally granted appellate jurisdiction over federal district courts in California, Idaho, Montana, Nevada, Oregon, and Washington. As new states and territories were added to the federal judicial hierarchy in the twentieth century, many of those in the West were placed in the Ninth Circuit: the newly acquired Territory of Hawaii in 1900, Arizona upon its admission to the Union in 1912, the Territory of Alaska in 1948, Guam in 1951, and the Commonwealth of the Northern Mariana Islands in 1977.

The Ninth Circuit also had jurisdiction over certain American interests in China, in that it had jurisdiction over appeals from the United States Court for China during the existence of that court from 1906 through 1943.

However, the Philippines was never under the Ninth Circuit's jurisdiction. Congress never created a federal district court in the Philippines from which the Ninth Circuit could hear appeals. Instead, appeals from the Supreme Court of the Philippines were taken directly to the Supreme Court of the United States.

In 1979, the Ninth Circuit became the first federal judicial circuit to set up a Bankruptcy Appellate Panel as authorized by the Bankruptcy Reform Act of 1978.

The cultural and political jurisdiction of the Ninth Circuit is just as varied as the land within its geographical borders. In a dissenting opinion in a rights of publicity case involving the Wheel of Fortune star Vanna White, Circuit Judge Alex Kozinski sardonically noted that "[f]or better or worse, we are the Court of Appeals for the Hollywood Circuit." Judges from more remote parts of the circuit note the contrast between legal issues confronted by populous states such as California and those confronted by rural states such as Alaska, Idaho, Montana, and Nevada.

Judge Andrew J. Kleinfeld, who maintained his judicial chambers in Fairbanks, Alaska, wrote in a letter in 1998: "Much federal law is not national in scope....It is easy to make a mistake construing these laws when unfamiliar with them, as we often are, or not interpreting them regularly, as we never do."

Procedures

Cases from United States District Courts within the Ninth Circuit are appealed to the United States Court of Appeals, that case is reviewed by a three-judge panel in the circuit for which the district court is a part. In the vast majority of cases, the ruling of that three-judge panel is final, unless overruled by the Supreme Court of the United States, which happens in less than 1% of cases. A procedure exists for the review of a ruling made by a three-judge panel by all of the active judges in the circuit, which is called a en banc review. Only about 1.5% of the cases heard by the Ninth Circuit are granted an en banc review, and only 0.24% of cases are decided by en banc review, which is statistically almost as rare as a case being granted certiorari by the Supreme Court. The Ninth Circuit's rules of procedure state that en banc reviews are to be used for only very complex or important cases, or when the court believes there is an especially significant issue at stake, as stated by Rule 35 of the Federal Rules of Appellate Procedure: "An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance."

Criticism

Rate of overturned decisions

From 1999 to 2008, of the Ninth Circuit Court rulings that were accepted for review by the Supreme Court, 20% were affirmed, 19% were vacated, and 61% were reversed; the median reversal rate for all federal appellate courts was 68.29% for the same period. From 2010 to 2015, of the cases it accepted to review, the Supreme Court reversed around 79% of the cases from the Ninth Circuit, ranking its reversal rate third among the circuits; the median reversal rate for all federal circuits for the same time period was around 70 percent.

Some argue the court's high percentage of reversals is illusory, resulting from the circuit hearing more cases than the other circuits. This results in the Supreme Court reviewing a smaller proportion of its cases, letting stand the vast majority of its cases.

However, a detailed study in 2018 reported by Brian T. Fitzpatrick, a law professor at Vanderbilt University, looked at how often a federal circuit court was reversed for every thousand cases it terminated on the merits between 1994 and 2015. The study found that the Ninth Circuit's decisions were reversed at a rate of 2.50 cases per thousand, which was by far the highest rate in the country, with the Sixth Circuit second as 1.73 cases per thousand. Fitzpatrick also noted that the 9th Circuit was unanimously reversed more than three times as often as the least reversed circuits and over 20% more often than the next closest circuit.

Size of the court

Many commentators have argued that the Ninth Circuit faces several adverse consequences of its large size, such as "unwieldly size, procedural inefficiencies, jurisprudential unpredictability, and unusual en banc process."

Chief among these is the Ninth Circuit's unique rules concerning the composition of an en banc court. In other circuits, en banc courts are composed of all active circuit judges, plus (depending on the rules of the particular court) any senior judges who took part in the original panel decision. By contrast, in the Ninth Circuit it is impractical for 29 or more judges to take part in a single oral argument and deliberate on a decision en masse. The court thus provides for a limited en banc review by the Chief Judge and a panel of 10 randomly selected judges. This means that en banc reviews may not actually reflect the views of the majority of the court and indeed may not include any of the three judges involved in the decision being reviewed in the first place. The result, according to detractors, is a high risk of intracircuit conflicts of law where different groupings of judges end up delivering contradictory opinions. That is said to cause uncertainty in the district courts and within the bar. However, en banc review is a relatively rare occurrence in all circuits and Ninth Circuit rules provide for full en banc review in limited circumstances.

All recently proposed splits would leave at least one circuit with 21 judges, only two fewer than the 23 that the Ninth Circuit had when the limited en banc procedure was first adopted. In other words, after a split at least one of the circuits would still be using limited en banc courts.

In March 2007, Associate Justices Anthony Kennedy and Clarence Thomas testified before a House Appropriations subcommittee that the consensus among the justices of the Supreme Court of the United States was that the Ninth Circuit was too large and unwieldy and should be split.

Congressional officials, legislative commissions, and interest groups have all submitted proposals to divide the Ninth Circuit such as:

• Ninth Circuit Court of Appeals Reorganization Act of 1993, H.R. 3654
• Final Report of the Commission on Structural Alternatives for the Federal Courts of Appeals
• Ninth Circuit Court of Appeals of Reorganization Act of 2003, S. 562
• Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 2003, H.R. 2723
• Ninth Circuit Judgeship and Reorganization Act of 2004, S. 878 (reintroduced as the Ninth Circuit Judgeship and Reorganization Act of 2005, H.R. 211, and co-sponsored by House Majority Leader Tom DeLay)
• Circuit Court of Appeals Restructuring and Modernization Act of 2005, S. 1845
• Circuit Court of Appeals Restructuring and Modernization Act of 2007, S. 525
• Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 2017, H.R. 196

The more recent proposals have aimed to redefine the Ninth Circuit to cover California, Hawaii, Guam, and the Northern Mariana Islands, and to create a new Twelfth Circuit to cover Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington.

Current composition of the court

:

List of former judges

Chief judges

Succession of seats

Notes

References

References

1. Jenkins, Jr., William O.. (September 18, 2008). "American Samoa: Issues Associated with Some Federal Court Options". United States Government Accountability Office.
2. Frederick, David C.. (1994). "Rugged justice: the Ninth Circuit Court of Appeals and the American West, 1891–1941". University of California Press.
3. See, e.g., ''Republic of China v. Merchants' Fire Ass'n of N.Y.'', 49 F.2d 862 (9th Cir. 1931). As the court noted, this bizarre insurance claim dispute arose directly from the "perplexing" civil war during China's [[warlord era]], in which various groups of military officers claimed to be the representatives of the Republic's legitimate government.
4. (2003). "The American Colonial State in the Philippines: Global Perspectives". Duke University Press.
5. ''Kepner v. United States'', {{ussc. 195. 100. 1904.
6. ''[https://scholar.google.com/scholar_case?case=15763501998860364615 White v. Samsung Elec. Am., Inc.]'', 989 F.2d 1512, 1521 (9th Cir. 1993) (Kozinski, J., dissenting). [https://web.archive.org/web/20201208005657/https://scholar.google.com/scholar_case?case=15763501998860364615 Archived] from the original on December 8, 2020.
7. Kleinfeld, Andrew J. (May 22, 1998). "[http://www.library.unt.edu/gpo/csafca/hearings/submitted/KLEINFEL.htm RE: Splitting the Ninth Circuit]". Retrieved June 21, 2005.
8. "About the U.S. Courts of Appeals". [[United States Court of Appeals]].
9. (9 May 2011). "En banc review has declined during the past decade". ©Wiggin and Dana LLP.
10. (23 May 2005). "A Judicial Hole in One - Scoring an en banc rehearing after losing an appeal is rare, but it happens.". © ALM Properties Inc..
11. (2021). "Rule 35. En Banc Determination". [[United States Court of Appeals]].
12. Hofer, Roy E.. (January–February 2010). "Supreme Court Reversal Rates: Evaluating the Federal Courts of Appeals". [[American Bar Association]] Intellectual Property Law Section.
13. Carroll, Lauren. (February 10, 2017). "No, the 9th Circuit isn't the 'most overturned court in the country,' as Hannity says". [[PolitiFact]].
14. [[Joseph Jerome Farris. Farris, Jerome]], ''The Ninth Circuit—Most Maligned Circuit in the Country Fact or Fiction?'' 58 Ohio St. L.J. 1465 (1997) (noting that, in 1996, the Supreme Court let stand 99.7 percent of the Ninth Circuit's cases).
15. Williams, Carol J.. (July 18, 2011). "U.S. Supreme Court again rejects most decisions by the U.S. 9th Circuit Court of Appeals". [[Los Angeles Times]].
16. Fitzpatrick, Brian. (July 31, 2018). "Written Testimony at Hearing on Oversight of the Structure of the Federal Courts". United States Senate Committee on the Judiciary.
17. Qiu, Linda. (November 26, 2018). "Does the Ninth Circuit Have the Highest Reversal Rate in the Country?". [[New York Times]].
18. O'Scannlain, Diarmuid. (October 2005). "Ten Reasons Why the Ninth Circuit Should Be Split". Engage.
19. (2019). "Break Up the Ninth Circuit". [[George Mason Law Review]].
20. Rule 35–3 http://cdn.ca9.uscourts.gov/datastore/uploads/rules/frap.pdf
21. (October 21, 2003). "Statement of Circuit Judge Alex Kozinski to the House Judiciary Subcommittee on Courts". U.S. House of Representatives.
22. Schroeder, Mary M.. (April 2006). "A Court United: A Statement of a Number of Ninth Circuit Judges". Engage.
23. (March 17, 2007). "America and the Courts". [[C-SPAN]].
24. Gribbin, Eric J.. "47 Duke L.J. 351".
25. Final Report, Commission on Structural Alternatives for the Federal Courts of Appeals, December 18, 1998
26. link. (November 13, 2013 , United States Senate: Committee on the Judiciary, October 26, 2005; retrieved November 19, 2007.)
27. [http://www.govtrack.us/congress/bill.xpd?bill=s110-525 Govtrack.us] S. 525—110th Congress (2007): Circuit Court of Appeals Restructuring and Modernization Act of 2007 (database of federal legislation): [http://www.govtrack.us/congress/bill.xpd?bill=s110-525 govtrack.us]; retrieved February 18, 2008.
28. [https://www.govtrack.us/congress/bills/115/hr196/text Govtrack.us]; retrieved February 27, 2021,
29. "Wilbur Nominated for Judge Post", Woodland Daily Democrat, March 1, 1929 at p. 1 (noting, as the Coolidge Administration ended, that Coolidge nominated Wilbur for the new judgeship).
30. "Sentence Cut Out by Hoover", [[Oakland Tribune]], 1929-03-04, Section D, p. 1 (noting that the Wilbur nomination was not acted upon before the 70th Congress ended).
31. Court Security Improvement Act of 2007, [http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_public_laws&docid=f:publ177.110.pdf Pub. L. 110–177] § 509(a)(2), 121 Stat. 2534, 2543, January 7, 2008