Order Code RL33189
CRS Report for Congress
Received through the CRS Web
Proposals in the 109th Congress to Split the Ninth
Circuit Court of Appeals
December 14, 2005
R. Sam Garrett
Analyst in American National Government
Government and Finance Division
Congressional Research Service ˜ The Library of Congress

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Proposals in the 109th Congress to Split the Ninth
Circuit Court of Appeals
Summary
The composition of the United States Court of Appeals for the Ninth Circuit has
been controversial for decades. The nation’s largest circuit court in geography,
population, and caseload, the Ninth Circuit on occasion has been noted for its
controversial rulings. Twice since 1970, major government commissions have
considered whether to split the Ninth Circuit into two or more circuits. Since the
mid-1990s, Congress has also considered legislation to split the Ninth Circuit.
Proponents of a split generally argue that the current Ninth Circuit is overburdened
and inefficient, and that creating two or more new circuits with reduced geography,
population, and caseload would improve judicial administration. Opponents of a
split reject those claims, saying that the current Ninth Circuit functions efficiently,
despite its large geography, population, and caseload. Opponents of a split also
suggest that efforts to divide the circuit represent an attack on judicial independence,
a claim supporters of a split deny.
Efforts to split the Ninth Circuit appeared to be bolstered on November 18,
2005, when the House of Representatives passed the Deficit Reduction Act of 2005
(H.R. 4241). Among many other provisions, the bill contains a provision to split the
current Ninth Circuit into two circuits — the “new Ninth” and Twelfth Circuit Courts
of Appeals. The Senate’s version of the budget reconciliation bill (S. 1932) does not
contain language splitting the Ninth Circuit. The question of splitting the Ninth
Circuit is expected to be considered by a conference committee appointed to resolve
differences between the House and Senate versions of the reconciliation measures.
This report compares relevant provisions of the House version of the Deficit
Reduction Act with Senate proposals introduced during the 109th Congress which
propose to split the circuit. Despite differences, these House and Senate proposals
are largely similar. The report also provides background information on the debate
concerning splitting the Ninth Circuit and analyzes the outlook for doing so.
The current debate echoes themes present in the past. Disagreement generally
focuses on three areas: (1) geography and population; (2) efficiency; and (3) the
circuit’s rulings. Although the House version of the budget reconciliation bill
potentially increases the likelihood of dividing the circuit, the measure could also
face substantial obstacles. Further, history suggests that should Congress not adopt
the provision splitting the Ninth Circuit, the issue will continue to be active.
This report will be updated in the event of legislative action on proposals to split
the Ninth Circuit.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Splitting the Ninth Circuit: Legislative Proposals . . . . . . . . . . . . . . . . . . . . . 1
Splitting the Ninth Circuit: Current Debates and Analysis . . . . . . . . . . . . . . 3
Geography and Population . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Efficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The Circuit’s Rulings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Judges’ Opinions on a Split . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Outlook for Splitting the Ninth Circuit . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
List of Tables
Table 1. Major Provisions of Legislation Introduced During the
109th Congress Which Would Split the Ninth Circuit Court of Appeals . . . 15
Table 2. Authorized Judgeships and Vacancies in the Circuit
Courts of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Table 3. Ninth Circuit and National Caseloads, FY1999-FY2004 . . . . . . . . . . . 25
Table 4. Median Time in Months from Filing Notice of Appeal
to Disposition for FY2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

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Proposals in the 109th Congress to Split the
Ninth Circuit Court of Appeals
Introduction
On November 18, 2005, the House of Representatives passed the Deficit
Reduction Act of 2005 (H.R. 4241). Among many other provisions, the bill contains
a provision to split the United States Court of Appeals for the Ninth Circuit into two
circuits — the “new Ninth” and Twelfth Circuit Courts of Appeals. Currently, the
Ninth Circuit includes 11 jurisdictions: Alaska, Arizona, California, Guam, Hawaii,
Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington.1
In this bill, a new Ninth Circuit would include four of the 11 jurisdictions: California,
Guam, Hawaii, and the Northern Mariana Islands. A Twelfth Circuit would include
the remaining seven jurisdictions: Alaska, Arizona, Idaho, Montana, Nevada,
Oregon, and Washington. The Senate’s budget reconciliation bill (S. 1932) does not
contain a provision to split the Ninth Circuit. The question of splitting the Ninth
Circuit is expected to be considered by a conference committee appointed to resolve
differences between the House and Senate versions of the reconciliation measures.
This report compares the provisions of the Deficit Reduction Act of 2005 passed
by the House which would split the Ninth Circuit,2 with Senate proposals introduced
during the 109th Congress which propose to split the circuit. The report also provides
background information and analysis on the current debate concerning splitting the
Ninth Circuit, which tends to focus on three areas: (1) geography and population; (2)
efficiency; and (3) the circuit’s rulings. Proponents of a split generally argue that the
current Ninth Circuit is overburdened and inefficient, and that creating two new
circuits from the existing one with reduced geography, population, and caseload
would improve judicial administration. Opponents of a split reject those claims,
saying that the current Ninth Circuit functions efficiently despite its large geography,
population, and caseload.
Splitting the Ninth Circuit: Legislative Proposals
The debate over whether to split the current Ninth Circuit into two or more
circuits has been before Congress for decades. Two major commissions on circuit
reorganization have reached different conclusions concerning the Ninth Circuit. In
1973, the so-called “Hruska Commission” recommended that the Ninth Circuit be
1 28 U.S.C. §41. On the Northern Mariana Islands, see P.L. 95-157, Sec. 1(a); 91 Stat. 1265
(1977), which provides that the Northern Mariana Islands be included with the same circuit
as Guam (the Ninth Circuit).
2 Unless otherwise noted, this report does not address provisions in H.R. 4241 or other bills
unrelated to splitting the Ninth Circuit.

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CRS-2
divided in two.3 In 1998, however, the so-called “White Commission” recommended
against dividing the Ninth Circuit, stating that doing so would be “impractical and
is unnecessary.”4 Nonetheless, since the mid-1990s, several bills have been
introduced which would split the Ninth Circuit. During the 108th Congress,
Representative Michael Simpson sponsored House Amendment 780 to S. 878, which
would have split the Ninth Circuit into three circuits. The measure passed the House
but did not win Senate approval.
During the 109th Congress, seven bills have been introduced in the House and
Senate which propose to split the Ninth Circuit into two or more circuits.5 Table 1
(at the end of this report) provides an overview of each bill’s major provisions.
Although there are differences among the bills, they all would take largely similar
approaches to splitting the current Ninth Circuit. During the FY2006 budget
reconciliation process in the House, language from one of the bills — the Federal
Judgeship and Administrative Efficiency Act of 2005 (H.R. 4093, sponsored by
Representative F. James Sensenbrenner Jr.) — was inserted into the Deficit
Reduction Act of 2005 (H.R. 4241).6 When the House passed H.R. 4241 on
November 18, 2005, with that language, the bill became the focal point for legislative
and media attention regarding splitting the Ninth Circuit.
Although the Senate’s budget reconciliation bill (S. 1932) does not include
language splitting the Ninth Circuit, two of the Senate bills introduced for that
purpose — S. 1296, sponsored by Senator Lisa Murkowski, and S. 1845, sponsored
by Senator John Ensign — contain language similar to the relevant provisions in
H.R. 4241. Therefore, S. 1296 and S. 1845, and the language inserted from H.R.
4093 into H.R. 4241, take a similar approach to splitting the Ninth Circuit.7
3 Commission on the Revision of the Federal Court Appellate System, The Geographical
Boundaries of the Several Judicial Circuits: Recommendations for Change (Washington:
GPO, 1973). The Hruska Commission also recommended splitting the Fifth Circuit in two,
which occurred in 1981. Under the Fifth Circuit Court of Appeals Reorganization Act,
Louisiana, Mississippi, Texas, and the Canal Zone remained in the Fifth Circuit, while
Alabama, Florida, and Georgia constituted the new Eleventh Circuit. See 94 Stat. 1994; and
[http://www.fjc.gov/public/home.nsf/hisc].
4 Commission on Structural Alternatives for the Federal Courts of Appeals, Final Report,
“Submitted to the President & the Congress Pursuant to Pub. L. No. 105-119,” Dec. 18,
1998, p. iii. A copy of the report is available online at [http://www.library.unt.edu
/gpo/csafca/final/appstruc.pdf].
5 The seven bills are: H.R. 211, H.R. 212, H.R. 3125, H.R. 4093, S. 1296, S. 1301, and S.
1845. Language from H.R. 4093 was inserted into the House version of the Deficit
Reduction Act (H.R. 4241).
6 Charlene Carter, “House Budget Bill Would Split 9th Circuit Court, Create New 12th
Circuit,” CQ Today, Nov. 7, 2005; available at [http://www.cq.com/display.do?dockey=
/cqonline/prod/data/docs/html/news/109/news109-000001953313.html@allnews&metap
ub=CQ-NEWS&searchIndex=0&seqNum=1].
7 H.R. 3125 adopts the same geographic boundaries for the new Ninth and Twelfth Circuits
but authorizes judges among the circuits differently than the other bills. See Table 1 for
details.

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Of the legislation introduced in the 109th Congress, one set of bills would split
the current Ninth Circuit in two, while a second set of bills would divide the current
circuit into three circuits. The relevant provisions of H.R. 4241, H.R. 3125, S. 1296,
and S. 1845 would all split the Ninth Circuit into two circuits, the new Ninth and the
Twelfth, with the same geographic boundaries.8 Under these bills, the new Ninth
Circuit would include California, Guam, Hawaii, and the Northern Mariana Islands.
The Twelfth Circuit would include Alaska, Arizona, Idaho, Montana, Nevada,
Oregon, and Washington. S. 1845 and S. 1296 specify that the offices of the Chief
Executive and Clerk of Court for the Twelfth Circuit be located in Phoenix, while
H.R. 4241 and other bills do not specify a location for those offices. Currently, the
Ninth Circuit is headquartered in San Francisco and also meets in Los Angeles,
Portland, and Seattle.9 Under H.R. 4241 and S. 1845, the new Ninth would meet in
Honolulu, Pasadena, and San Francisco; the Twelfth would meet in Las Vegas,
Missoula, Phoenix, Portland, and Seattle. S. 1296 designates only Missoula,
Phoenix, and Portland as meeting places for the Twelfth Circuit. In their provisions
to split the Ninth Circuit, the three bills — H.R. 4241, S. 1296, and S. 1845 — are
otherwise identical, except for slight differences in the number of active judges
allocated to the circuits and the dates on which the legislation dividing the current
Ninth Circuit would become effective.
A second set of bills would take an alternate approach to dividing the current
Ninth Circuit. Under H.R. 211, sponsored by Representative Michael Simpson, and
S. 1301, sponsored by Senator John Ensign, the current Ninth Circuit would be
divided into three circuits instead of two. Both bills would establish a new Ninth
Circuit including California, Hawaii, Guam, and the Northern Mariana Islands. The
Twelfth Circuit would include Arizona, Idaho, Montana, and Nevada, while the
Thirteenth Circuit would include Alaska, Oregon and Washington.
Aside from different allocations of judges for the new circuits and designating
different geographical boundaries and cities in which the circuits would meet, both
sets of bills take largely similar approaches to splitting the current Ninth Circuit.
Table 1 provides additional details. Nonetheless, the choice immediately facing
Congress is whether to split the Ninth Circuit into the new Ninth and Twelfth
Circuits, as outlined in the House version of the Deficit Reduction Act (H.R. 4241),
which is the focus of this report.
Splitting the Ninth Circuit: Current Debates and Analysis
The debate over splitting the Ninth Circuit tends to focus on three areas: (1)
geography and population; (2) efficiency (including caseload, how quickly the circuit
disposes of cases, and cost); and (3) the circuit’s rulings. Proponents of splitting the
Ninth Circuit argue that the court is too big and covers too many people to operate
efficiently. Opponents of a split generally respond that although the Ninth Circuit is
8 A fourth bill, H.R. 212, sponsored by Representative Michael Simpson, would create a
new Ninth Circuit consisting of Arizona, California, and Nevada. The Twelfth Circuit
would include Alaska, Guam, Hawaii, Idaho, Montana, the Northern Mariana Islands,
Oregon, and Washington.
9 28 U.S.C. §48(a).

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CRS-4
big, it still delivers effective justice and provides legal continuity for the western
United States. Opponents of a split also often assert that dividing the court is a
backdoor method of eliminating the current Ninth Circuit due to its reputation as the
nation’s most liberal appellate court. Proponents of a split deny that the Ninth
Circuit is targeted for division based on its sometimes controversial rulings, saying
instead that efficiency is the prime concern.
Geography and Population. The Ninth Circuit’s geography is controversial
for two reasons: the large area the circuit encompasses, and a feeling among some
observers that cases originating in California dominate the court’s caseload.10 In both
land area and population, the Ninth Circuit surpasses all other federal circuits. In
2004, the area covered by the Ninth Circuit included more than 58 million people,
almost 36 million of whom were in California.11 The 2004 estimated population of
the area covered by what would be the new Ninth Circuit under H.R. 4241, H.R.
3125, S. 1296, and S. 1845 was more than 37 million, while the population covered
by what would be the Twelfth Circuit was estimated at almost 21 million.12
Currently, the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) is the
second-most-populous circuit jurisdiction, with a 2004 estimated population of more
than 31 million.13 Therefore, even after a split, a new Ninth Circuit would still be the
nation’s most populous circuit.
Those opposing a split contend that the Ninth Circuit’s large geography is
essential in maintaining one legal voice for the western United States. Senator
Dianne Feinstein, a member of the Judiciary Committee who opposes a split, recently
stated that,

[t]he uniformity of law in the West is a key advantage of the 9th Circuit,
providing consistency among western states that share many common concerns.
For example, splitting the circuit could result in one interpretation of a law
governing trade with Mexico in California and a different one in Arizona, or in
10 As is explained below in the discussion of the Ninth Circuit’s rulings, the debate over
geography and population also has tacit connections to how congruent those rulings are with
the West’s diverse political culture.
11 The Ninth Circuit’s estimated population was computed by CRS by taking the sum of the
Census Bureau’s 2004 population estimates (released on Aug. 11, 2005; see
[http://www.census.gov/popest/estimates.php]) for the states included in the Ninth Circuit.
To this, CRS added the 2000 populations for Guam and the Northern Mariana Islands,
which were apparently not included in the 2004 population estimates. Using this method,
the total population of the Ninth Circuit is estimated to be 58,233,206. For 2004 estimates,
see the “population finder” link from the Census Bureau’s home page at
[http://www.census.gov/]. For 2000 Guam and Northern Mariana Islands populations, see
[http://www.census.gov/population/www/cen2000/islandareas.html].
12 Precise estimates are 37,380,665 and 20,852,541 respectively. These estimates were
computed by CRS using the method described above.
13 The precise estimate is 31,618,515, using the method described above.

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the application of environmental regulations one way on the California side of
Lake Tahoe, and another way on the Nevada side.14
By contrast, Ninth Circuit Judge Diarmuid O’Scannlain, who supports a split,
testified that the need for a unified legal voice for the West and Pacific Coast is “a
red herring.” He also argued that the Atlantic Coast has “five separate circuits,” and
that “[t]here is no corresponding ‘Law of the South’ nor ‘Law of the East.’”15
Efficiency. The debate over the Ninth Circuit’s efficiency generally includes
three issues: (1) judges and caseload; (2) how quickly the circuit disposes of cases;
and (3) cost. On a related note, proponents of a split generally say that the Ninth
Circuit is too large to hold effective en banc hearings.
Judges and Caseload. Opponents of a split argue that the Ninth Circuit
handles its large workload well, and that professional case management limits
potential inefficiencies. Furthermore, those opposed to a split contend that dividing
the circuit would create new inefficiencies because of having to duplicate case-
management systems in the new circuits, perhaps without the substantial staff
expertise many opponents of a split believe the Ninth Circuit currently possesses.
In the view of supporters of a split, the Ninth Circuit is overworked, with too many
cases to handle efficiently. Those favoring a split say that Congress has a
responsibility to reduce the circuit’s caseload by dividing the circuit, and that failing
to do so jeopardizes timely access to justice. Further, proponents say that the
circuit’s work is too important to leave major decisions to staff, and that lighter
caseloads made possible by dividing the circuit and adding new judgeships would
allow judges to follow their own cases, and those of their colleagues, more closely.
As Table 2 (at the end of this report) shows, there are 28 authorized judgeships
in the current Ninth Circuit, about 16% of the total circuit judgeships nationwide.
Twenty-four of those judgeships are currently filled.16 H.R. 4241 would authorize
14 Statement of Senator Dianne Feinstein, in U.S. Congress, Senate, Committee on the
Judiciary, Subcommittee on Administrative Oversight and the Courts, Revisiting Proposals
to Split the Ninth Circuit: An Inevitable Solution to a Growing Problem,109th Cong., 1st
sess.,Oct. 26, 2005; [http://judiciary.senate.gov/member_statement.cfm?id=
1635&wit_id=2626].
15 Testimony of Circuit Judge Diarmuid O’Scannlain, in U.S. Congress, Senate, Committee
on the Judiciary, Subcommittee on Administrative Oversight and the Courts, Revisiting
Proposals to Split the Ninth Circuit: An Inevitable Solution to a Growing Problem, 109th
Cong., 1st sess., Oct. 26, 2005; [http://judiciary.senate.gov/testimony.cfm
?id=1635&wit_id=4726].
16 Twenty-three senior judges are also assigned to the circuit. In total, 47 judges currently
serve the circuit. Senior judges have taken “senior status,” a specialized form of judicial
retirement. Many senior judges maintain busy part-time work schedules, and are considered
an important element in covering the judiciary’s caseload. See Administrative Office of the
United States Courts (AO), Senior Status and Retirement for Article III Judges, Apr. 1999
(Judges Information Series, No. 4); and 28 U.S.C. §371. The figure of 23 senior judges
comes from the judiciary portion of the House Budget Committee report (109-276)
accompanying H.R. 4241, p. 721. The report is available online at
(continued...)

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19 judges for the new Ninth Circuit and 14 judges to the Twelfth Circuit, an increase
of five judges compared with the current Ninth Circuit.17 (Other sections of the bill
also authorize additional federal judgeships throughout the nation.) H.R. 4241
would allow the chief judges of either the new Ninth or Twelfth Circuits to
temporarily assign district or appellate judges to the other circuit18 to provide for
increased judicial capacity when needed.
As Table 3 (at the end of this report) shows, data from the Administrative
Office of the United States Courts (AO) indicate that the Ninth Circuit was
responsible for 20-25% of the nation’s appellate caseload in 2004 (in filings and
appeals terminated).19 The table also shows that the Ninth Circuit’s caseload
increased during the five years between 1999 and 2004. During that period, the
number of Ninth Circuit appeals filings increased 52.1%, from 9,383 to 14,274.20
During the same period, all other circuits’ filings increased by a comparatively small
7.0%, from 45,310 to 48,488.21 In 2004, the Ninth Circuit led the nation in appellate
filings, with 14,274. Other circuits’ appeals filings in 2004 ranged from 1,390 for the
Court of Appeals for the District of Columbia, and 1,723 for the First Circuit, to
8,509 for the Fifth Circuit.
Based on the Ninth Circuit’s 14,274 appeals filed in 2004, each authorized
active judge (when the current circuit is fully staffed) would carry an average
16 (...continued)
[http://a257.g.akamaitech.net/7/257/2422/10nov20051200/www.access.gpo.gov/congress
/house/pdf/109hrg/hr276.pdf]. However, data for the year ending Sept. 30, 2004, from the
AO, list 22 senior judges on the Ninth Circuit. See “U.S. Court of Appeals - Judicial
Caseload Profile” for the Ninth Circuit, Administrative Office of the United States Courts;
see [http://www.uscourts.gov/cgi-bin/cmsa2004.pl].
17 See section 5404 of H.R. 4241 for the number of judges authorized to each circuit after
reorganizing the current Ninth Circuit. H.R. 4241 also authorizes two temporary judgeships
for the Ninth Circuit. See section 5202 of the bill. The bill specifies that “official duty
station[s]” for all seven judges (the five additional judges plus the two temporary judges)
“shall be in California.”
18 Ibid., sec. 5411.
19 Based on the data in Table 3, the Ninth Circuit received 22.7% of the nation’s appellate
filings in 2004. This percentage was calculated by CRS.
20 This figure was computed by CRS and also appears in “U.S. Court of Appeals - Judicial
Caseload Profile” for the Ninth Circuit and national totals, Administrative Office of the
United States Courts; see [http://www.uscourts.gov/cgi-bin/cmsa2004.pl]. Throughout this
report, unless otherwise noted, caseload data appear in a database entitled, “Federal Court
Management Statistics, 2004, Courts of Appeals,” published by the AO; available at
[http://www.uscourts.gov/cgi-bin/cmsa2004.pl]. For that database, calendar years end on
Sept. 30 of each year. Some other sources involved in the debate over splitting the Ninth
Circuit cite data for the year ending June 30, 2005, as noted elsewhere in this report.
However, comprehensive 2005 statistics are not yet posted on the AO’s website.
21 Totals throughout this section do not include data for the Court of Appeals for the Federal
Circuit. As is noted in Table 2, Federal Circuit data regarding caseload are not posted by
the AO with other circuits’ caseload data.

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caseload of almost 510 filed appeals.22 However, in 2004, the Ninth Circuit was
outpaced by the Second Circuit, which led the nation with an average caseload of
more than 539 appeals filed for each of the circuit’s 13 authorized judgeships. The
Fifth Circuit closely followed the Ninth Circuit, with almost 501 filed appeals per
each of its 17 authorized judgeships. By contrast, the Court of Appeals for the
District of Columbia received an average of 116 appeals for each of its 12 authorized
judgeships, and the Third Circuit received an average of 277 appeals for each of its
14 authorized judgeships.23
According to data provided by the AO, for the year ending June 30, 2005,
11,275 cases were filed in what would be the new Ninth Circuit (under H.R. 4241,
H.R. 3125, S. 1296 and S. 1845) compared with 4,442 cases filed in what would be
the Twelfth Circuit;24 the new Ninth would have carried 72% of cases of the current
Ninth Circuit, compared with 28% for the new Twelfth Circuit. The 19 authorized
judges provided for the new Ninth in H.R. 4241 would have carried an average
caseload of 593 appeals filed. By contrast, the 14 authorized judges provided for the
Twelfth Circuit in H.R. 4241 would have carried an average caseload of 317 appeals
filed in the Twelfth Circuit.25
How Quickly the Circuit Disposes of Cases. Another potential measure
of the Ninth Circuit’s efficiency is how quickly it disposes of cases. According to
data from the AO, for the year ending September 30, 2004, the Ninth Circuit
disposed of cases in a median of 14.0 months after filing, ranking 11th among the 12
circuits (see Table 4 at the end of this report). Only the Sixth Circuit had a slower
process. Nationwide, the median time for disposing of cases ranged from 7.5 months
for the Fourth Circuit to 16.8 month s for the Sixth Circuit. Those favoring a split
contend that a period of more than a year for disposal is another indicator that the
Ninth Circuit is too big and has too much work. Opponents of a split argue that the
current Ninth Circuit functions well given its heavy caseload, and that its judges and
large, experienced staff are essential to maintaining that efficiency.26
22 This figure was computed by CRS by dividing 14,274 cases by 28 authorized judgeships.
The actual number is 509.8 cases, which assumes that all 28 authorized judgeships are filled,
but does not include visiting or senior judges who handle cases. However, as explained
below, the Ninth Circuit currently has four vacancies on the bench. Based on 24 filled
positions, the average caseload is 594.8 filed appeals. In the text above, figures in this
section are rounded to the nearest whole number.
23 These figures were calculated by CRS using caseload data provided by the Administrative
Office of the United States Courts, cited elsewhere in this report.
24 The AO’s estimates are based on H.R. 4093 and S. 1845, both of which establish the same
geographic boundaries for the new circuits. As previously explained, these boundaries are
the same as those established by H.R. 3125 and S. 1296. See “Appellate Caseload &
Number of Judges: S. 1845/H.R. 4093 Scenario,” table submitted on Oct. 25, 2005, in
response to a request from the Honorable Dianne Feinstein by Leonidas Ralph Mecham,
Director, Administrative Office of the United States Courts, “ prepared Oct. 24, 2005;
provided to CRS by the Office of Legislative Affairs at the AO.
25 These figures were computed by CRS.
26 See, for example, Statement of Circuit Judge Alex Kozinski, in U.S. Congress, Senate,
(continued...)

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CRS-8
Opponents of a split also say that the Ninth Circuit’s backlog of cases has been
temporarily increased by the large number of administrative petitions from Board of
Immigration Appeals (BIA), slowing the court’s overall work.27 Many of these cases
originate in California. Therefore, the Ninth Circuit (along with the Second Circuit,
which covers Connecticut, New York, and Vermont), must assume a large
immigration-appeals workload. According to the AO, as of October 2005, 41% of
Ninth Circuit filings were BIA appeals, and 88% of those were filed in California.28
Ninth Circuit Judge Sidney R. Thomas, who opposes a split, recently testified
that from 2001 to 2005 (through June 30), BIA appeals for the circuit had increased
570%. However, Judge Thomas maintained that the backlog of BIA cases is
temporary and declining, which will decrease some of the Ninth Circuit’s caseload
in coming years. Judge Thomas also said that centralized circuit staff resolve “well
over 80 percent” of immigration petitions before they reach judges, and added that
although many BIA appeals take time to resolve, much of the delay is due to what he
sees as slow government filings, not the Ninth Circuit itself.29
Cost. Cost is another major issue associated with the debate over the Ninth
Circuit’s efficiency. Opponents of a split say that administrative costs associated
with splitting the Ninth Circuit and establishing a new headquarters, staff support,
and similar requirements are unnecessary and would be an inefficient use of the
judiciary’s financial resources. Those who favor a split generally concede that there
will be short-term costs associated with dividing the circuit but suggest that long-
term savings and improved efficiency will outweigh those costs.
Cost estimates of splitting the Ninth Circuit vary depending on the source and
level of detail. In October 2005, the AO estimated that if a Twelfth Circuit’s
headquarters were located in Phoenix (as specified in S. 1296 and S. 1845), the
startup cost would be more than $94 million, and annual recurring costs would be
more than $10 million. If the headquarters were in Seattle (another site discussed as
a possible headquarters), the AO estimated startup costs at more than $12 million,
26 (...continued)
Committee on the Judiciary, Subcommittee on Administrative Oversight and the Courts,
Revisiting Proposals to Split the Ninth Circuit: An Inevitable Solution to a Growing
Problem, 109th Cong., 1st sess., Oct. 26, 2005; [http://judiciary.senate.gov/testimony.cfm?id
=1635&wit_id=4729].
27 The BIA is an 11-member administrative body within the Department of Justice. The BIA
has nationwide jurisdiction and, according to the board’s website, is “the highest
administrative body for applying and interpreting immigration laws.” However, its
decisions may be appealed to federal courts. For a brief overview of the BIA, see
[http://www.usdoj.gov/eoir/biainfo.htm].
28 Table note 3 in”Appellate Caseload & Number of Judges: S 1845/H.R. 4093 Scenario,”
provided to CRS by the Office of Legislative Affairs at the AO.
29 See, for example, Testimony of Circuit Judge Sidney R. Thomas; [http://judiciary.senate.
gov/testimony.cfm?id=1635&wit_id=4732].

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with $7 million in annual recurring costs.30 In another estimate, the Congressional
Budget Office (CBO) stated that establishing a headquarters for a Twelfth Circuit
“could range from about $20 million to over $80 million over the 2006-2010 period,”
depending on the location of the new headquarters and whether an existing facility
would be renovated or a new facility constructed. CBO estimated that staff expenses
for the Twelfth Circuit, such as relocation costs, severance pay for staff who did not
relocate, and equipment, could require “$6 million in fiscal year 2006 and $28
million over the 2006-2010 period.”31
En Banc Procedures. Finally, another aspect of the Ninth Circuit’s
efficiency relates to judicial procedures. Proponents of a split generally argue that
the Ninth Circuit is too large to hold effective en banc hearings. En banc hearings
in other circuit courts typically involve all of a court’s active judges, and are normally
reserved for particularly important cases, or those in which the full court wishes to
reconsider the opinion of a three-judge appellate panel. However, the Ninth Circuit
employs a “limited en banc” procedure, allowing 11 judges (rather than the entire
court) to represent a full en banc panel.32 Proponents of a split contend the Ninth’s
reliance on limited en banc procedures allows a minority of the court to speak for the
entire court. According to Ninth Circuit Judge Andrew Kleinfeld, “When the full
court purports to speak, it doesn’t.... A majority of an en banc panel — six judges
— is not even one-fourth of the full court when fully staffed.”33 However, Ninth
30 The AO’s estimates were based on the language in H.R. 4093 (inserted into H.R. 4241)
and S. 1845, although S. 1296 also calls for the Twelfth’s headquarters to be located in
Phoenix. See “Ninth Circuit Legislative Overview”; and “Ninth Circuit Legislation Cost
Estimate”; tables submitted on Oct. 25, 2005, in response to a request from the Honorable
Dianne Feinstein by Leonidas Ralph Mecham, Director, Administrative Office of the United
States Courts,” prepared Oct. 24, 2005; provided to CRS by the Office of Legislative Affairs
at the AO. The Phoenix versus Seattle estimates vary largely because of costs entailed with
constructing a new facility or renovating an existing one. The estimates cited above do not
include the cost of the seven additional judgeships (five permanent and two temporary)
prescribed for the Ninth Circuit under H.R. 4241. If the seven additional judgeships are
included, start-up costs range from almost $14 million if the Twelfth Circuit’s headquarters
were located in Seattle, to more than $95 million if the Twelfth Circuit’s headquarters were
located in Phoenix. Recurring costs were estimated at almost $16 million in Phoenix, and
slightly more than $13 million in Seattle. See “Incremental Costs Associated With S.
1845/H.R. 4093 — HQ in Phoenix — With New Judgeships”; and “Incremental Costs
Associated With S. 1845/H.R. 4093 — HQ in Seattle — With New Judgeships,” Ibid.
31 Congressional Budget Office Cost Estimate “H.R. 4093: Federal Judgeship and
Administrative Efficiency Act of 2005,” Nov. 21, 2005, p. 1.
32 92 Stat. 1633 (1978), P.L. 95-486, allows circuits with more than 15 active judges to
“perform its en banc function by such number of members of its en banc courts as may be
prescribed by rule of the court of appeals.”
33 Testimony of Circuit Judge Andrew Kleinfeld, in U.S. Congress, Senate, Committee on
the Judiciary, Subcommittee on Administrative Oversight and the Courts, Revisiting
Proposals to Split the Ninth Circuit: An Inevitable Solution to a Growing Problem, 109th
Cong., 1st sess., Oct. 26, 2005; [http://judiciary.senate.gov/testimony.cfm?id=
1635&wit_id=4730]. Senator Jon Kyl, who supports a split, recently made a similar
statement. See “Kyl Urges Serious Consideration of Proposals to Split 9th Circuit Court,”
(continued...)

---

CRS-10
Circuit Chief Judge Mary M. Schroeder announced on October 1, 2005, that
beginning on January 1, 2006, the circuit will increase the size of en banc panels to
15 judges. According to Judge Schroeder, although she has been satisfied with the
11-judge panels, the decision to increase the number of judges on en banc panels to
15 was “intended to respond to criticism that we should have a majority of our judges
sit on each en banc [panel].”34
Opponents of a split also argue that the en banc issue is not a major concern, as
so few of the court’s cases are appealed for rehearing en banc. According to Judge
Sidney R. Thomas, who serves as the Ninth Circuit’s En Banc Coordinator and
opposes a split, “Out of 5,783 cases decided in the Ninth Circuit between September
2003 and September 2004, only 13 (or .2%) were reheard en banc. This experience
is consistent with the practices of other circuits.” Judge Thomas challenged claims
that the views of en banc panels are unrepresentative of the entire circuit, saying that
“very few decisions made by the en banc panels involved close votes,” and that the
circuit’s Evaluation Committee has been satisfied that en banc opinions are
representative of the entire circuit. Judge Thomas also stated that although en banc
panels currently do not include the entire court, voting on whether a matter should
be granted an en banc hearing is still open to all active judges on the circuit, and that
any active or senior judge may request an en banc hearing.35
None of the legislation currently before Congress proposing to split the Ninth
Circuit would alter en banc procedures.36 Despite what Congress decides on splitting
the circuit, controversy over en banc procedures may remain. For example, although
the Twelfth Circuit would presumably sit en banc with all 14 active judges proposed
by H.R. 4241, the new Ninth would not be required to sit en banc with all 19 active
judges. Under P.L. 95-486, any circuit with more than 15 active judges may devise
rules to sit en banc without all the circuit’s active judges. Therefore, because the new
Ninth would have more than 15 judges, it could employ the same limited en banc
procedure the Ninth Circuit uses today. If Congress wanted to curtail the use of
limited en banc procedures, or require minimum numbers of judges to sit on en banc
panels, legislative action would be required.
33 (...continued)
press release, the Office of Senator Jon Kyl, Oct. 26, 2005.
34 “Ninth Circuit to Increase Size of En Banc Courts,” press release, Public Information
Office, United States Courts for the Ninth Circuit, Oct. 1, 2005;
[http://www.ce9.uscourts.gov/Web/OCELibra.nsf/504ca249c786e20f85256284006da7ab
/5140153ce86f06e38825708f0068c5c6?OpenDocument].
35 Testimony of Circuit Judge Sidney R. Thomas, in U.S. Congress, Senate, Committee on
the Judiciary, Subcommittee on Administrative Oversight and the Courts, Revisiting
Proposals to Split the Ninth Circuit: An Inevitable Solution to a Growing Problem, 109th
Cong., 1st sess., Oct. 26, 2005; [http://judiciary.senate.gov/testimony.cfm?id=
1635&wit_id=4732].
36 A separate bill, H.R. 1064, sponsored by Representative Michael Simpson, was introduced
on March 2, 2005, which would prohibit the Ninth Circuit from using the limited en banc
procedure.

---

CRS-11
The Circuit’s Rulings. Some of the Ninth Circuit’s rulings have been
controversial. Recently, the circuit’s rulings on social issues (e.g., holding in 2002
that the phrase “under God” in the Pledge of Allegiance violated the Constitution)
have reportedly fueled opposition to the circuit.37 Some proponents of a split say that
some Ninth Circuit rulings do not represent the conservative political culture of much
of the western United States, reflecting the perceived division between California and
much of the rest of the circuit.38 However, some opponents of a split warn that
diverse perspectives from judges across the West are vital to ensuring balance on the
court. Some observers say that the new Ninth would be more “liberal” than the
current Ninth Circuit allegedly is, because there would be little geographic diversity
in the new Ninth Circuit.39
Proponents of splitting the Ninth Circuit also contend that the Supreme Court
reverses the current Ninth Circuit more frequently than any other circuit court.
Opponents of a split respond that only a small fraction of the circuit’s rulings are
granted review by the Supreme Court.40 Some opposed to splitting the Ninth Circuit
also suggest that efforts to divide the circuit are an attempt to limit judicial
independence. Supporters of splitting the circuit deny such allegations. For example,
Ninth Circuit Judge Diarmuid O’Scannlain refuted the claim that splitting the Ninth
Circuit is a threat to judicial independence, saying that “the case for the split stands
on the grounds of effective judicial administration, supported by the statistics which
show the ongoing caseload explosion.”41
Judges’ Opinions on a Split. Although a few judges vocally support a split,
the majority of the Ninth’s judges reportedly opposes a split. According to Senator
Patrick Leahy, ranking member of the Judiciary Committee, in 2004 balloting
conducted by Ninth Circuit Chief Judge Mary Schroeder, “Only 9 of the Court’s 47
37 Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002); and CRS Report RS21250, The
Constitutionality of Including the Phrase “Under God” in the Pledge of Allegiance, by
Angie A. Welborn. On media coverage of purported opposition to some of the Ninth
Circuit’s rulings, see, for example, Emma Vaughn, “GOP Resurrects Plan to Split the 9th
Circuit in Two,” Los Angeles Times, Oct. 27, 2005, p. A16; and Alicia Mundy, “Once again,
Magnuson the talk of Washington,” Seattle Times, Nov. 26, 2005, p. B1.
38 In Idaho, for example, a spokesperson for Idaho Chooses Life, an anti-abortion group,
was recently quoted by the Idaho Falls Post Register as being “tired of ‘California liberals’
having veto power over Idaho’s social policies,” such as abortion regulation. See Corey
Taule, “Splitting the 9th,” Post-Register (Idaho), Nov. 11, 2005, p. A01.
39 “Splitting the 9th would leave the wackiest judges on the Left Coast,” Orange County
Register, Nov. 27, 2005; [http://www.nexis.com/research/pnews/emailAlert?_pnewsAlert
=0x0014b53b-0x00050252%2f0x0014b53b%2f20051130%2f11%3a25%3a27]; and
Zachary Coile, “A quiet move in the House to split the 9th Circuit,” San Francisco
Chronicle, Nov. 30, 2005, p. A1.
40 For example, on potential reasons for the Ninth Circuit’s allegedly high reversal rate and
the position that the circuit’s reversal rate is consistent with other circuits, see Erwin
Chemerinsky, “Ninth Circuit Review: The Myth of the Liberal Ninth Circuit,” Loyola of Los
Angeles Law Review 37 (Fall 2003), pp. 1-21.
41 See Testimony of Circuit Judge Diarmuid O’Scannlain; [http://judiciary.senate.
gov/testimony.cfm?id=1635&wit_id=4726]

---

CRS-12
judges favored a split, and only 3 of the 24 active judges favor a split.”42 Those
opposed to a split say that opposition from the majority of the circuit’s judges is one
of the most compelling arguments in favor of keeping the circuit intact. In addition,
several state and local bar associations housed in the current Ninth Circuit reportedly
oppose a split.43 The U.S. Judicial Conference recently “agreed not to take a
position” on bills proposing to split the Ninth, but also stated that “consideration of
splitting the Ninth Circuit should be independently based on the circuit split issue
alone and not driven by possible linkage of that issue to a judgeship bill.” In addition
to splitting the Ninth Circuit, portions of H.R. 4241 would authorize more than 60
additional federal judgeships nationwide.44
Some who support a split suggest that district judges within the Ninth Circuit
would not necessarily be opposed to a split if one were to occur. For example,
District Judge John M. Roll, who maintains chambers in Arizona, recently testified
that “Notwithstanding statements to the contrary, I am aware of no overwhelming
opposition to a circuit split among Ninth Circuit district judges.... My perception is
that there is much support for a split of the circuit among district judges, particularly
among the judges of the proposed new Twelfth Circuit.”45
Outlook for Splitting the Ninth Circuit
In November 2005, the Justice Department went on record in favor of
dividing the Ninth Circuit, saying that splitting the circuit and authorizing additional
judgeships “would improve the administration of justice.”46 Some major western
42 Statement of Senator Patrick Leahy, in U.S. Congress, Senate, Committee on the
Judiciary, Subcommittee on Administrative Oversight and the Courts, Revisiting Proposals
to Split the Ninth Circuit: An Inevitable Solution to a Growing Problem, 109th Cong., 1st
sess., Oct. 26,2005 [http://judiciary.senate.gov/member_statement.cfm?id=1635&wit_id=
2629].
43 Roxie Bacon and Don Bivens, “Rhetoric, Not 9th Circuit, Is What’s Overloaded,” Arizona
Republic, Nov. 21, 2005; p. 7B.
44 “Judicial Conference Acknowledges Loss to Judiciary in Resolutions,” The Third Branch,
vol. 37 (10); [http://www.uscourts.gov/ttb/oct05ttb/loss/index.html]. Title V, subtitles A-C
of H.R. 4241 authorize more than 60 new judgeships throughout the nation. Splitting the
Ninth Circuit is discussed in subtitle III of the bill. For recent media coverage of the bill
containing both provisions (authorizing additional judgeships and splitting the Ninth
Circuit), see Charlene Carter, “House Committee Approves Measure to Split 9th Circuit,
Authorize Judgeships,” CQ Today, Oct. 27, 2005, available at [http://www.cq.com
/display.do?dockey=/cqonline/prod/data/docs/html/news/109/news109-000001935914.ht
ml@allnews&metapub=CQ-NEWS&searchIndex=3&seqNum=8]; and Julie Kay,
“Additional federal judges tied to split of 9th circuit,” Miami Daily Business Review, Dec.
5, 2005, p. 1.
45 Testimony of Judge John M. Roll, in U.S. Congress, Senate, Committee on the Judiciary,
Subcommittee on Administrative Oversight and the Courts, Revisiting Proposals to Split the
Ninth Circuit: An Inevitable Solution to a Growing Problem, 109th Cong., 1st sess., Oct. 26,
2005; [http://judiciary.senate.gov/testimony.cfm?id=1635&wit_id=4731].
46 Letter to the Honorable F. James Sensenbrenner Jr. from Assistant Attorney General
(continued...)

---

CRS-13
newspapers have published editorials favoring a split (although other papers are on
record opposing a split).47 Professor Steve Candrillo, who teaches law at the
Washington School of Law and Seattle University, reportedly said that supporters
of a split are “more aggressive and are more likely to succeed” this year than in the
past. Another observer, University of Pittsburgh law professor Arthur Hellman, was
recently quoted as saying that “[t]he Ninth Circuit is in the fight for its life.”48
Attaching language splitting the Ninth Circuit to the budget reconciliation bill
could either help or hinder efforts to split the circuit. On one hand, the provision
could face an easier path to success than as a stand-alone measure, due to the
pressure to pass the budget reconciliation bill. On the other hand, language splitting
the circuit faces potential procedural hurdles if it remains part of a budget
reconciliation bill. Senator Dianne Feinstein recently stated that she would object to
the language by invoking the Senate’s “Byrd rule,” which can be used to strike
“extraneous matter in reconciliation matters.”49 Others might also oppose the split
if they object to start-up costs associated with dividing the circuit, or if they believe
that a split is not central to the budget reconciliation process. In this regard, Senators
Arlen Specter and Patrick Leahy, the chairman and ranking member, respectively, of
the Senate Judiciary Committee, both publicly oppose legislating a split as part of the
budget reconciliation process. On November 9, 2005, both Senators wrote to Senator
Judd Gregg, Budget Committee chairman, and Senator Kent Conrad, its ranking
member, stating that, “[t]he issue [of dividing the Ninth Circuit] is squarely under the
jurisdiction of the Judiciary Committee and any budgetary issues are merely
incidental. Accordingly, we oppose including such measures in any reconciliation
package.”50
History suggests that even if Congress maintains the status quo, the issue will
likely be active in the future. Proponents of a split argue that rapid population
growth within the current Ninth Circuit will only exacerbate the circuit’s alleged
management challenges. Many proponents of a split view dividing the circuit as
46 (...continued)
William E. Moschella, Nov. 14, 2005.
47 See, for example, “Voice of the Times: Splitting 9th Circuit is a natural progression,”
Anchorage Daily News, Oct. 31, 2005, p. B5; “Break up the 9th,” Las Vegas Review-Journal,
Oct. 17, 2005, p. 6B; Howard Mintz, “Breaking Up the ‘Nutty 9th’,” Seattle Times, Nov. 8,
2005, p. A3; “Short-circuited,” Sacramento Bee, Nov. 11, 2005, p. B8; and “Don’t Split the
Ninth Circuit,” San Francisco Chronicle, Nov. 20. 2005, p. E4.
48 Mundy, “Once again, Magnuson the talk of Washington”; and Les Blumenthal, “‘Nutty
9th’ Circuit Court could be bound for breakup; Judicial experts say Congress might succeed
in dividing the 9th U.S. Circuit Court of Appeals. Critics say it’s too big, too unwieldy and
too liberal,” News Tribune (Tacoma, Wash.), Nov. 14, 2005, p. A01.
49 Senator Dianne Feinstein, “Senator Feinstein Seeks to Prevent Ninth Circuit Split on
Budget Reconciliation Bill,” press release, Nov. 2, 2005;
[http://feinstein.senate.gov/05releases/r-9thcircuitsplit-ltr.pdf]. For a brief overview of the
Byrd rule, see CRS Report 97-695, The Senate’s Byrd Rule Against Extraneous Matter in
Reconciliation Measures: A Fact Sheet, by Robert Keith.
50 Letter to the Honorable Judd Gregg and the Honorable Kent Conrad from Senators Arlen
Specter and Patrick Leahy; Nov. 9, 2005.

---

CRS-14
“inevitable,” with only the timing of a division and some details remaining
uncertain.51 However, others are equally determined to oppose splitting the circuit,
asserting that a split is not a solution to perceived problems.
51 For example, an Oct. 2005 Senate Subcommittee on Administrative Oversight and the
Courts hearings was recently entitled, “Revisiting Proposals to Split the Ninth Circuit: An
Inevitable Solution to a Growing Problem.”

---

CRS-15
Table 1. Major Provisions of Legislation Introduced During the 109th Congress Which Would Split the Ninth Circuit
Court of Appeals
H.R. 3125
H.R. 211
H.R. 212
S. 1845
S. 1296
S. 1301
H.R. 4241/H.R. 4093
last major
last major
last major
last major
last major
last major
last major action:
action:
action:
action:
Provision
action:
action:
action:
11/17/2005
06/29/2005
03/02/2005
03/02/2005
10/26/2005
10/26/2005
10/26/2005
(passed the House)
(referral to
(referral to
(referral to
(hearings)
(hearings)
(hearings)
committee)
committee)
committee)
Circuits
1. Current Ninth Circuita
Same as bills to
Same as bills to
Same as bills to
1. Current Ninth
1. Current Ninth
Same as H.R. 211
Created/Altered
ceases to exist.
left [sec. 3]
left [sec. 3]
left [sec. 3]
Circuit ceases to
Circuit ceases to
[sec. 3]
exist.
exist.
2.”New Ninth” Circuit
created: California,
2. “New Ninth”
2. “New Ninth”
Hawaii, Guam, Northern
Circuit created:
Circuit created:
Mariana Islands
California,
Arizona,
Hawaii, Guam,
California,
3. New Twelfth Circuit
Northern Mariana
Nevada
created: Alaska,
Islands
Arizona, Idaho,
3. New Twelfth
Montana, Nevada,
3. New Twelfth
Circuit: Alaska,
Oregon, Washington
Circuit created:
Guam, Hawaii,
[sec. 5403]
Arizona, Idaho,
Idaho, Montana,

Montana, Nevada
Northern
Mariana Islands,
4. New
Oregon,
Thirteenth Circuit
Washington
created:
[sec. 3]
Alaska, Oregon,
Washington
[sec. 4]

---

CRS-16
H.R. 3125
H.R. 211
H.R. 212
S. 1845
S. 1296
S. 1301
H.R. 4241/H.R. 4093
last major
last major
last major
last major
last major
last major
last major action:
action:
action:
action:
Provision
action:
action:
action:
11/17/2005
06/29/2005
03/02/2005
03/02/2005
10/26/2005
10/26/2005
10/26/2005
(passed the House)
(referral to
(referral to
(referral to
(hearings)
(hearings)
(hearings)
committee)
committee)
committee)
Places of the
1. New Ninth Circuit:
1. Same as H.R.
1. New Ninth
1. Same as
1. New Ninth
1. New Ninth
Same as H.R. 211
Court
Honolulu, Pasadena, San
4241/H.R. 4093
Circuit:
H.R. 4241/H.R.
Circuit: San
Circuit:
Francisco
Honolulu,
4093, S. 1845
Francisco, Los
Pasadena,
2. Same as H.R.
San Francisco
Angeles
Phoenix, San
2. Twelfth Circuit:
4241/H.R. 4093
2. Twelfth
Francisco
Las Vegas, Missoula,
[sec. 6]
2. Twelfth
Circuit:
2. Twelfth
[sec. 6]
Phoenix, Portland,
Circuit:
Phoenix,
Circuit: Las
Seattle
3. Chief
Phoenix,
Seattle
Vegas, Phoenix
2. Twelfth
executive and
Portland,
[sec. 6]
Circuit:
clerk of court
Missoula
3. Thirteenth
Portland, Seattle
offices for
[sec. 6]
Circuit: Portland,
Twelfth Circuit
Seattle
located in
3. Chief
[sec. 4]
Phoenix [sec. 7]
executive and
clerk of court
offices for
Twelfth Circuit
located in
Phoenix [sec.
7]

---

CRS-17
H.R. 3125
H.R. 211
H.R. 212
S. 1845
S. 1296
S. 1301
H.R. 4241/H.R. 4093
last major
last major
last major
last major
last major
last major
last major action:
action:
action:
action:
Provision
action:
action:
action:
11/17/2005
06/29/2005
03/02/2005
03/02/2005
10/26/2005
10/26/2005
10/26/2005
(passed the House)
(referral to
(referral to
(referral to
(hearings)
(hearings)
(hearings)
committee)
committee)
committee)
Authorized
1. Authorizes 5
1. Authorizes 5
1. Authorizes 5
1. Authorizes 2
1. Same as H.R.
Same as H.R.
Same as H.R. 211
Judgeships
additional judgeships for
additional
additional
additional
4241/H.R. 4093
3125
[sec. 5]
the Ninth, with official
judgeships for
judgeships for
judgeships for
[secs. 4, 5]
duty stations in
the New Ninth,
the New Ninth,
the current
2. Judges
California
with official
with official
Ninth Circuit,
authorized for
duty stations in
duty stations in
with official
New Ninth
2. Judges authorized for
California
California, not
duty stations in
Circuit: 19
New Ninth Circuit: 19
to be appointed
Arizona,
2. Judges
before Jan. 21,
California, or
Judges authorized
Judges authorized for
authorized for
2006.
Nevada
for Twelfth
Twelfth Circuit: 14
New Ninth
[sec. 4]
Circuit: 8
[sec. 5202]
Circuit: 20
2. Authorizes 3
2. Same as H.R.
additional
Judges authorized
Judges
4241 [sec. 5]
judgeships for
for Thirteenth
authorized for
the New Ninth
Circuit: 6
Twelfth Circuit:
Circuit, not to
[sec. 5]
14
be appointed
[sec. 4]
before Jan. 21,
2006.
[sec. 4]
3. Judges
authorized for
New Ninth
Circuit: 24
Judges
authorized for
Twelfth
Circuit: 9
[sec. 5]

---

CRS-18
H.R. 3125
H.R. 211
H.R. 212
S. 1845
S. 1296
S. 1301
H.R. 4241/H.R. 4093
last major
last major
last major
last major
last major
last major
last major action:
action:
action:
action:
Provision
action:
action:
action:
11/17/2005
06/29/2005
03/02/2005
03/02/2005
10/26/2005
10/26/2005
10/26/2005
(passed the House)
(referral to
(referral to
(referral to
(hearings)
(hearings)
(hearings)
committee)
committee)
committee)
Temporary
Authorizes 2 additional
Authorizes 2
Same as
Authorizes 2
Same as S. 1296,
Same as H.R.
Same as S. 1296,
Judgeships
temporary circuit
additional
S. 1301, S.
additional
S. 1301, S. 1845
3125 [sec. 4]
S. 1845, H.R. 211
judgeships for the Ninth
temporary
1845, and H.R.
temporary
[sec. 3]
[sec. 4]
Circuit, with official
circuit
211
circuit judges
duty stations in
judgeships for
[sec. 4]
for the Ninth
California
the current Ninth
Circuit, with
[sec. 5202]
Circuit, with
official duty
official duty
stations in
stations in
Arizona,
California
California, or
[sec. 4]
Nevada
[sec. 4]
Assignment of
Judges are assigned to
Same as bills to
Same as bills to
Same as bills to
Same as bills to
Same as bills to
Same as bills to
Active Judges
the circuit in which their
left [sec. 8]
left [sec. 8]
left
left [sec. 4]
left
left [sec. 7]
duty station was located
[sec. 7]
[sec. 7]
the day before the act
became effective, as if
the act had been
effective
(i.e., California in New
Ninth Circuit; Montana
in Twelfth) [sec. 5406]
Assignment of
Senior judges in the
Same as bills to
Same as bills to
Same as bills to
Same as bills to
Same as bills to
Same as bills to
Senior Judges
current Ninth Circuit the
left [sec. 9]
left [sec. 8]
left
left [sec. 4]
left
left [sec. 8]
day before the act
[sec. 8]
becomes effective may
elect to be assigned to
either the New Ninth
Circuit or the Twelfth
Circuit. [sec. 5407]

---

CRS-19
H.R. 3125
H.R. 211
H.R. 212
S. 1845
S. 1296
S. 1301
H.R. 4241/H.R. 4093
last major
last major
last major
last major
last major
last major
last major action:
action:
action:
action:
Provision
action:
action:
action:
11/17/2005
06/29/2005
03/02/2005
03/02/2005
10/26/2005
10/26/2005
10/26/2005
(passed the House)
(referral to
(referral to
(referral to
(hearings)
(hearings)
(hearings)
committee)
committee)
committee)
Seniority of
Based on
Same as bills to
Same as bills to
Same as bills to
Same as bills to
Same as bills to
Same as bills to
Judges
commissioning in
left [sec. 9]
left
left
left
left
left
current Ninth Circuit
[sec. 10]
[sec. 9]
[sec. 4]
[sec. 9]
[sec. 9]
[sec. 5408]
Judicial
First 2 vacancies in
First 2 vacancies
Same as S.
Same as S.
Same as S. 1845
Same as S. 1845
Same as S. 1845
Vacancies
Ninth Circuit judgeships
in New Ninth
1845 [sec. 4]
1845[sec. 4]
[sec. 3]
[sec. 4]
[sec. 4]
confirmed to fill the
Circuit
temporary judgeships
judgeships
noted above occurring
confirmed to fill
10 or more years after
the temporary
initial appointment shall
judgeships noted
not be filled [sec. 5202]
above occurring
10 or more years
after initial
appointment
shall not be
filled
[sec. 4]
Temporary
Allows the Chief Judge
Same as bills to
Same as bills to
Same as bills to
Same as bills to
Same as bills to
Same as bills to
Assignment of
of the Ninth or Twelfth
left [sec. 12]
left [sec. 12]
left [sec. 11]
left, except
left,
left, except
Circuit Judges
Circuits, by request from
applicable to
[sec. 11]
applicable to
the other Chief Judge, to
Ninth, Twelfth,
Ninth, Twelfth,
temporarily assign
and Thirteenth
and Thirteenth
circuit judges to either
Circuits [sec. 4]
Circuits [sec. 11]
circuit [sec. 5410]

---

CRS-20
H.R. 3125
H.R. 211
H.R. 212
S. 1845
S. 1296
S. 1301
H.R. 4241/H.R. 4093
last major
last major
last major
last major
last major
last major
last major action:
action:
action:
action:
Provision
action:
action:
action:
11/17/2005
06/29/2005
03/02/2005
03/02/2005
10/26/2005
10/26/2005
10/26/2005
(passed the House)
(referral to
(referral to
(referral to
(hearings)
(hearings)
(hearings)
committee)
committee)
committee)
Temporary
1. Allows the Chief
Same as bills to
Same as bills to
Same as bills to
Same as bills to
Same as bills to
Same as bills to
Assignment of
Judge of the Ninth or
left [sec. 13]
left [sec. 13]
left [sec. 12]
left, except
left
left, except
District Judges
Twelfth circuits, by
applicable to
[sec. 11]
applicable to
request from the other
Ninth, Twelfth,
Ninth, Twelfth,
Chief Judge, to
and Thirteenth
and Thirteenth
temporarily assign
Circuits [sec. 4]
Circuits [sec. 12]
district court judges
within the Ninth or
Twelfth circuits to sit on
either circuit court of
appeals when required to
facilitate the business of
the court
2. Allows the Chief
Judge of the Ninth or
Twelfth circuits, by
request from the other
Chief Judge, to
temporarily assign
district court judges
within the Ninth or
Twelfth circuits to sit on
district courts within
either circuit when
required to facilitate the
business of the court
[sec. 5411]

---

CRS-21
H.R. 3125
H.R. 211
H.R. 212
S. 1845
S. 1296
S. 1301
H.R. 4241/H.R. 4093
last major
last major
last major
last major
last major
last major
last major action:
action:
action:
action:
Provision
action:
action:
action:
11/17/2005
06/29/2005
03/02/2005
03/02/2005
10/26/2005
10/26/2005
10/26/2005
(passed the House)
(referral to
(referral to
(referral to
(hearings)
(hearings)
(hearings)
committee)
committee)
committee)
Application to
1. If a matter has been
Same as bills to
Same as bills to
1. Same as bills
1. Same as bills
1. Same as bills
1. Same as bills
Cases
submitted for a decision
left [sec. 11]
left
to left
to left
to left
to left
in the current Ninth
[sec. 11]
Circuit, further
2. Same as bills
2. Same as bills
2. Same as bills
2. Same as bills
proceedings will occur
to left
to left.
to left
to left.
as if no reorganization
of the Ninth Circuit had
3. A petition for
3. Same as H.R.
3. Same as H.R.
3.Same as H.R.
occurred.
rehearing or
3125
3125, H.R. 211
3125, H.R. 211,
rehearing en
[sec. 4]
[sec. 10]
H.R. 212
2. If a matter has not
banc in a
[sec. 10]
been submitted for a
matter
decision, the appeal or
submitted or
proceeding, with
decided before
appropriate
the effective
documentation, will be
date of the act
forwarded to the court in
shall be treated
which the matter would
in the same
have been submitted if
manner as
the act had been in
though the act
effect.
had not been
enacted. If a
3. If a petition for
petition for
rehearing en banc is
rehearing en
pending on or after the
banc is granted,
effective date of the act,
the matter shall
the petition will be
be reheard by a
considered by the court
court
of appeals to which it
comprised as
would have been
though the act
submitted if the act had
had not been
been in effect at the time
enacted.
the appeal or proceeding
[sec. 10]
was filed. [sec. 5409]

---

CRS-22
H.R. 3125
H.R. 211
H.R. 212
S. 1845
S. 1296
S. 1301
H.R. 4241/H.R. 4093
last major
last major
last major
last major
last major
last major
last major action:
action:
action:
action:
Provision
action:
action:
action:
11/17/2005
06/29/2005
03/02/2005
03/02/2005
10/26/2005
10/26/2005
10/26/2005
(passed the House)
(referral to
(referral to
(referral to
(hearings)
(hearings)
(hearings)
committee)
committee)
committee)
Administration
1. The Court of Appeals
Same as bills to
Same as bills to
Same as bills to
Same as H.R.
Same as
Same as
for the current Ninth
left
left
left
3125
H.R. 211, H.R.
H.R. 211, H.R.
Circuit shall be
[sec. 14]
[sec. 14]
[sec. 14]
[sec. 4]
212, and H.R.
212, and H.R.
responsible for
3125
3125
administering the Ninth
and
Circuit split.
Any two
2. For administrative
circuits may
purposes, the current
jointly carry
Ninth Circuit ceases to
out
exist 2 years after date
administrative
of enactment of the act
functions the
reorganizing the Ninth
judicial
Circuit.
councils of the
[sec. 5412]
two circuits
believe would
be beneficial
[sec. 13]
Effective Date
No later than Dec. 31,
Same as S. 1296
12 months after
On the first day
Same as H.R.
Same as H.R.
On the first
2006; see also, item 2
the date of
of the first
3125
211, H.R. 3125
October 1
under “Administration”
enactment [sec.
fiscal year that
[sec. 6]
[sec. 15]
occurring on or
above. [sec. 5413]
15]
begins at least
after nine months
nine months
after the date on
after five of the
which all five
judges
judges described
authorized in
in item 1 above
the act [sec. 4]
under
have been
“Authorized
confirmed by
Judgeships” have
the Senate
been confirmed
[sec. 15]
by the Senate
[sec. 15]

---

CRS-23
Source/Note: CRS comparison of bill texts. This table includes only provisions in the cited bills which propose to split the Ninth Circuit. Provisions in these bills not related to splitting
the Ninth Circuit are excluded, unless otherwise noted.
a. For the purposes of this table, “current Ninth Circuit” refers to the Ninth Circuit as it exists without any reorganization.

---

CRS-24
Table 2. Authorized Judgeships and Vacancies in the Circuit Courts of Appeals
Current Number of Authorized
Current Number of Vacant
Percentage of Authorized Judgeships
Circuit
Judgeships
Authorized Judgeships
Currently Vacanta
First
6
0
0
Second
13
0
0
Third
14
2
14.3
Fourth
15
2
13.3
Fifth
17
1
5.9
Sixth
16
1
6.3
Seventh
11
0
0
Eighth
11
0
0
Ninth
28
4
14.3
Tenth
12
1
8.3
Eleventh
12
0
0
DC
12
3
25.0
Federal
12
N/Ab
N/A
Sources: Administrative Office of the United States Courts, “U.S. Courts of Appeals, Additional Judgeships Authorized by Judgeship Acts,” available online
at [http://www.uscourts.gov/history/authorized_appeals.pdf]; and “Vacancies in the Federal Judiciary - 109th Congress,” available online at
[http://www.uscourts.gov/cfapps/webnovada/CF_FB_301/archived/judgevac12_01_05.html]. Vacancies data are current as of Dec. 2005, according to the AO
website.
a. Percentages were computed by CRS and rounded to the nearest decimal.
b. Data on vacancies in the Court of Appeals for the Federal Circuit are not included in the source cited above from the AO. However, the Federal Circuit is
a special case, as it has national jurisdiction based on issue, not geography. The Federal Circuit’s jurisdiction includes issues such as patents, trademarks, and
copyrights, and appeals from the Court of Veterans Appeals. For a brief overview, see Jack C. Plano and Milton Greenberg, The American Political Dictionary,
10th ed. (Fort Worth: Harcourt Brace, 1997), p. 257.

---

CRS-25
Table 3. Ninth Circuit and National Caseloads, FY1999-FY2004
1999
2000
2001
2002
2003
2004
Appeals Filed
Ninth Circuit
9,383
9,147
10,342
11,421
12,872
14,274
All Other Circuits
45,310
45,550
47,122
46,134
47,975
48,488
Percentage of National Filings Assumed by Ninth Circuit
17.2
16.7
18.0
19.8
21.2
22.7
Percent Change in Ninth Circuit Filings Compared With Previous Year
—
-2.5
13.1
10.4
12.7
10.9
Percent Change in All Other Circuits’ Filings Compared With Previous Year
—
1.0
3.5
-2.1
4.0
1.1
Appeals Terminated
Ninth Circuit
8,402
9,216
10,372
10,042
11,220
12,151
All Other Circuits
45,686
47,296
47,050
46,544
45,176
44,230
Percentage of All National Appeals Terminated by Ninth Circuit
15.4
16.3
18.1
17.7
20.0
21.6
Percent Change in Ninth Circuit Appeals Terminated Compared With Previous Year
—
9.7
12.5
-3.2
11.7
8.3
Percent Change in All Other Circuits’ Appeals Terminated Compared With Previous Year
—
3.5
-1.0
-1.1
-2.9
-2.1
Pending Appeals
Ninth Circuit
9,274
9,219
9,160
10,226
11,277
13,417
All Other Circuits
32,997
31,191
31,143
30,739
33,323
37,654
Percentage of All National Appeals Pending in Ninth Circuit
21.9
22.8
22.7
25.0
25.3
26.3
Percent Change in Ninth Circuit Pending Appeals Compared With Previous Year
—
-1.0
-1.0
11.6
10.3
19.0
Percent Change in All Other Circuits’ Pending Appeals Compared With Previous Year
—
-5.5
-0.0
-1.3
8.4
13.0
Source: “U.S. Court of Appeals - Judicial Caseload Profile,” Administrative Office of the United States Courts; [http://www.uscourts.gov/cgi-bin/cmsa2004.pl]. Percentages computed
by CRS and rounded to the nearest decimal. National totals apparently do not include appeals field before the Court of Appeals for the Federal Circuit. Data for “All Other Circuits” rows
computed by CRS by subtracting caseload data for the Ninth Circuit from “national totals” data from the AO (cited above).
Note: Years are based on the 12-month period ending on Sept. 30, the methodology employed in the AO data.

---

CRS-26
Table 4. Median Time in Months from Filing Notice of Appeal to Disposition for FY2004
Ranking Based on Shortest Time
Circuit
Median Time in Months
1
Fourth
7.5
2
Fifth
8.5
3
Eleventh
8.8
4
Eighth
9.8
5
Seventh
10.3
6
District of Columbia
10.5
7
Second
11.0
8
First
11.2
9
Third
11.6
10
Tenth
11.7
11
Ninth
14.0
12
Sixth
16.8
Source: “U.S. Court of Appeals - Judicial Caseload Profile,” Administrative Office of the United States Courts; see [http://www.uscourts.gov/cgi-bin/cmsa2004.pl].
Note: Data are for the year ending Sept. 30, 2004.

---