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
Updated April 26, 2006
R. Sam Garrett
Analyst in American National Government
Government and Finance Division
Congressional Research Service ˜ The Library of Congress

Proposals in the 109th Congress to Split the Ninth
Circuit Court of Appeals
Summary
Proposals to split the Ninth Circuit Court of Appeals have been before Congress
for decades. Proponents of a split generally argue that the current Ninth Circuit is
overburdened, and that creating two or more new circuits with reduced geography,
population, and caseloads would improve judicial administration. Opponents of a
split reject those claims, saying that the current Ninth Circuit functions well and that
the court is a model of innovation. 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), which, among many other provisions, contained language splitting the
current Ninth Circuit into a new Ninth Circuit and a Twelfth Circuit. During
December 2005 House-Senate conference negotiations, language splitting the Ninth
Circuit was dropped from the budget reconciliation package. However, seven bills
(H.R. 211, H.R. 212, H.R. 3125, H.R. 4093, S. 1296, S. 1301, and S. 1845) remain
under consideration. Most recently, on February 8, 2006, H.R. 4093 was reported
from the House Judiciary Committee and placed on the Union Calendar.
This report provides information and analysis on the debate concerning
proposals to split the Ninth Circuit. The debate over splitting the Ninth Circuit
generally focuses on six areas: (1) geography and population, (2) judgeships and
caseloads, (3) how quickly the circuit disposes of cases, (4) cost of splitting the
circuit, (5) en banc procedures, and (6) the circuit’s rulings. Analysis suggests that
splitting the Ninth Circuit would have different effects on each of these six areas.
Caseload is particularly prominent in the debate over splitting the Ninth Circuit.
Proponents of a split suggest that the current Ninth Circuit’s caseload is too high, and
that reduced caseloads would improve judicial administration. Opponents of a split
disagree, saying that if a split occurred, judges in a new Ninth Circuit would have
higher caseloads than their counterparts in proposed Twelfth or Thirteenth Circuits.
Analysis of the most recently available estimates suggests that if the current Ninth
Circuit had been reorganized in 2005, five of seven bills introduced in the 109th
Congress splitting the circuit would have yielded somewhat higher caseloads (based
on authorized judgeships) in a new Ninth Circuit than in the current Ninth Circuit
during the same time period. Six of the bills would have yielded higher caseloads in
a new Ninth Circuit than in proposed Twelfth or Thirteenth Circuits. By contrast,
one bill (H.R. 3125) would have yielded a higher caseload in a Twelfth Circuit than
a new Ninth Circuit. Other factors — such as how quickly the circuit disposes of
cases and complexity of cases — could also affect caseload considerations.
This report will be updated in the event of significant 109th Congress legislative
activity regarding efforts to split the Ninth Circuit.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Splitting the Ninth Circuit: Recent Legislative Proposals . . . . . . . . . . . . . . . 2
Geographic Provisions of a Two-Way Split . . . . . . . . . . . . . . . . . . . . . 4
Geographic Provisions of a Three-Way Split . . . . . . . . . . . . . . . . . . . . 6
Splitting the Ninth Circuit: Current Debates and Analysis . . . . . . . . . . . . . . 7
Geography and Population . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Judgeships and Caseloads in the Current Ninth Circuit and Other
Circuits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
How Quickly the Circuit Disposes of Cases . . . . . . . . . . . . . . . . . . . . 18
Cost of Splitting the Circuit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
En Banc Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
The Circuit’s Rulings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Judges’ Opinions on a Split . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Analysis: Potential Impacts of Splitting the Ninth Circuit . . . . . . . . . . . . . 24
Geography and Population . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Judgeships and Caseloads . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
How Quickly the Circuits Would Dispose of Cases . . . . . . . . . . . . . . 25
Cost of Splitting the Circuit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
En Banc Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
The Circuit’s Rulings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Concluding Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
List of Figures
Figure 1. Ninth Circuit: Current Boundaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Figure 2. Two-Way Split Under H.R. 3125, H.R. 4093, S. 1296, and S. 1845 . . . 5
Figure 3. Two-Way Split Under H.R. 212 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Figure 4. Three-Way Split Under H.R. 211 and S. 1301 . . . . . . . . . . . . . . . . . . . . 7
Figure 5. FY2005 Caseloads in the Circuit Courts . . . . . . . . . . . . . . . . . . . . . . . 14
Figure 6. Estimated Caseloads for New Ninth, Twelfth, and Thirteenth Circuits
for the Year Ending June 30, 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
List of Tables
Table 1. Authorized Judgeships and Vacancies in the Circuit Courts of
Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Table 2. Ninth Circuit and All Other Circuits’ Caseloads, FY2000-FY2005 . . . 12
Table 3. Median Time in Months from Filing Notice of Appeal to Disposition
for FY2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Appendix. Major Provisions of Legislation Introduced During the 109th
Congress That Would Split the Ninth Circuit Court of Appeals . . . . . . . . . 29

Proposals in the 109th Congress to Split the
Ninth Circuit Court of Appeals
Introduction
In 1891, Congress established the U.S. Courts of Appeals — often called
“circuit courts” — to hear appeals from federal district courts and, later, many agency
regulations.1 The circuit courts remain the last avenue of judicial review for all but
the relatively few cases the Supreme Court considers. Establishing the appeals courts
organized federal judicial business into geographic divisions (circuits). Today, there
are 11 numbered circuit courts, covering federal judicial districts housed in the 50
states and U.S. territories. In addition, the Court of Appeals for the D.C. Circuit has
jurisdiction over appeals for the District of Columbia, including many agency
appeals.2 Finally, the Court of Appeals for the Federal Circuit has national
jurisdiction over specialized issues such as patents and trademarks.3 The Ninth
Circuit, located in the western United States, is the nation’s largest circuit court in
geography, population, and appeals filings. (Figure 1 shows the boundaries of the
current Ninth Circuit.) On occasion, the Ninth Circuit has been noted for its
controversial rulings. These factors, and others discussed below, surround recent
proposals to split the Ninth Circuit into one or more new circuits. Opponents counter
that the Ninth Circuit should remain intact, and that proposals to split the circuit
threaten judicial independence.
1 See Article III of the U.S. Constitution and 28 U.S.C. 1291-1292.
2 The First through Eleventh Circuits and the D.C. Circuit are often called the “regional
circuits,” which hear appeals from trial courts situated within their regional boundaries. By
contrast, the Federal Circuit may hear appeals from lower court decisions from anywhere
in the nation if the cases involve issues falling within the Federal Circuit’s subject matter
jurisdiction.
3 The Federal Circuit’s jurisdiction also includes issues such as 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. See also CRS Report RL31703, Patent Law and Innovation: The Creation,
Operation and a Twenty-Year Assessment of the U.S. Court of Appeals for the Federal
Circuit
, by John R. Thomas.


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Figure 1. Ninth Circuit: Current Boundaries
This report provides information and analysis on the debate concerning splitting
the Ninth Circuit and compares provisions of House and Senate bills introduced
during the 109th Congress that propose to split the circuit. The report also analyzes
potential impacts of these proposed reorganizations. The current debate over the
Ninth Circuit echoes themes present in the past and generally focuses on six areas:
(1) geography and population, (2) judgeships and caseloads, (3) how quickly the
circuit disposes of cases, (4) cost of splitting the circuit, (5) en banc procedures, and
(6) the circuit’s rulings. Analysis suggests that splitting the Ninth Circuit would have
different effects on each of these six areas, as is summarized at the end of this report.
Splitting the Ninth Circuit: Recent 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 “Hruska Commission” — charged by Congress with evaluating the federal
circuit courts — recommended that the Ninth Circuit be divided in two.4 In 1998, the
4 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 commission (widely known as the “Hruska Commission,” for its
(continued...)

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“White Commission” — which Congress tasked with examining the Ninth Circuit
in particular — recommended against dividing the Ninth Circuit (stating that doing
so would be “impractical and is unnecessary”), but also proposed creating three
somewhat autonomous divisions within the circuit to improve court management.5
Congress chose not to adopt the Hruska or White Commissions’ recommendations
to reorganize the Ninth Circuit.
Since the mid-1990s, several bills have been introduced that 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 House passed S. 878 with the amendment (by a vote
of 205-194)6 in October 2004, but the measure did not win Senate approval. In the
109th Congress, seven bills have been introduced in the House and Senate that, in
whole or in part, propose to split the Ninth Circuit into two or more circuits.7 The
Appendix (at the end of this report) provides an overview of each bill’s major
provisions relating to a Ninth Circuit split.
Late in 2005, the Federal Judgeship and Administrative Efficiency Act of 2005
(H.R. 4093, sponsored by Representative James Sensenbrenner, who chairs the
House Judiciary Committee) became the focus of legislative and media attention
when language from the bill was inserted into the Deficit Reduction Act of 2005
(H.R. 4241), which the House passed on November 18, 2005.8 During conference
4 (...continued)
chairman, Senator Roman Hruska) 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]. The Fifth Circuit no longer retains jurisdiction
over the Canal Zone.
5 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. The commission was widely known as the “White Commission” after its
chairman, Associate Justice Byron White. A copy of the report is available online at
[http://www.library.unt.edu/gpo/csafca/final/appstruc.pdf]. The three divisions would have
been the Northern (including the federal judicial districts of Alaska, Idaho, Montana,
Oregon, and Eastern and Western Washington), Middle (districts of Eastern and Northern
California, Guam, Hawaii, Nevada, and the Northern Mariana Islands), and Southern
(districts of Arizona and Central and Southern California). A proposed Circuit Division
would have resolved disputes between the regional divisions. See Commission on Structural
Alternatives for the Federal Courts of Appeals, Final Report, p. 41.
6 Roll call vote number 492.
7 The seven bills are: H.R. 211, H.R. 212, H.R. 3125, H.R. 4093, S. 1296, S. 1301, and S.
1845.
8 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]. H.R. 4241, containing language from H.R.
(continued...)

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negotiations, language splitting the Ninth Circuit into proposed new Ninth and
Twelfth Circuits was dropped from the budget reconciliation bill. In the Senate, three
bills (S. 1296, S. 1301, and S. 1845) proposing to split the Ninth Circuit were the
subject of an October 2005 Subcommittee on Administrative Oversight and the
Courts hearing.9 H.R. 4093 in the House, and S. 1845 in the Senate, appeared to be
the bills receiving the most legislative and media attention during the first session.
Geographic Provisions of a Two-Way Split. The major difference among
the seven bills introduced during the 109th Congress to split the Ninth Circuit
concerns whether the current Ninth Circuit would be divided into two or three new
circuits.10 Four of the seven bills — H.R. 3125 (Representative Michael Simpson),
H.R. 4093 (Representative James Sensenbrenner), S. 1296 (Senator Lisa
Murkowski), and S. 1845 (Senator John Ensign) — would split the Ninth Circuit into
two circuits: the new Ninth and the Twelfth (all bills specify the same geographic
boundaries), as shown in Figure 2. 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.
The four bills also specify where reorganized courts would meet and, in some
cases, be headquartered. Currently, the Ninth Circuit is headquartered (including the
offices of the clerk and circuit executive) in San Francisco and also meets in Los
Angeles, Portland, and Seattle.11 Under H.R. 4093 and S. 1845, the new Ninth
Circuit would meet in Honolulu, Pasadena, and San Francisco; the Twelfth would
meet in Las Vegas, Missoula, Phoenix, Portland, and Seattle. Two other bills (H.R.
3125 and S. 1296) propose slightly different arrangements. Under S. 1296, the New
Ninth Circuit would meet in Honolulu and San Francisco; a Twelfth Circuit would
meet in Phoenix, Portland, and Missoula. H.R. 3125 specifies that a new Ninth
Circuit meet in Honolulu, Pasadena, and San Francisco (like H.R. 4093 and S. 1845);
the Twelfth Circuit would meet in Phoenix and Seattle.
8 (...continued)
4093, passed the House by a vote of 217-215 (roll call vote number 601).
9 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, S.Hrg. 109-90
(Washington: GPO, 2005).
10 H.R. 4093 is unique among the 109th Congress Ninth Circuit bills because it couples
splitting the Ninth Circuit with authorizing more than 60 new federal judgeships throughout
the nation. H.R. 4093 also creates an Article III court in the U.S. Virgin Islands. The other
bills under consideration that would split the Ninth Circuit do not address additional
judgeships (except within what is currently the Ninth Circuit) or the Article III court for the
Virgin Islands — topics not addressed in this report.
11 28 U.S.C. §48(a).


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Figure 2. Two-Way Split Under H.R. 3125,
H.R. 4093, S. 1296, and S. 1845
None of the bills requires that a new Ninth Circuit’s headquarters would remain
in San Francisco, although it certainly could. S. 1845 and S. 1296 specify that the
Twelfth Circuit headquarters be located in Phoenix. None of the other bills
proposing a two-way split specify headquarters locations for a Twelfth Circuit.
A fifth bill — H.R. 212 (Representative Michael Simpson) — also proposes a
two-way split, but with different boundaries. (See Figure 3.) H.R. 212 would create
a new Ninth Circuit including Arizona, California, and Nevada. The Twelfth Circuit
would include Alaska, Guam, Hawaii, Idaho, Montana, the Northern Mariana Islands,
Oregon, and Washington. Under H.R. 212, the new Ninth Circuit would meet in
Pasadena, Phoenix, and San Francisco; the Twelfth Circuit would meet in Portland
and Seattle. The bill does not specify headquarters locations.


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Figure 3. Two-Way Split Under H.R. 212
Geographic Provisions of a Three-Way Split. Two other bills introduced
in the 109th Congress would take an alternate approach. Under H.R. 211
(Representative Michael Simpson), and S. 1301 (Senator John Ensign), the current
Ninth Circuit would be divided into three circuits instead of two. (See Figure 4.)
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. The Thirteenth Circuit would include Alaska, Oregon,
and Washington. Under these bills, the new Ninth Circuit would meet in Los
Angeles and San Francisco. The Twelfth and Thirteenth Circuits would meet in Las
Vegas and Phoenix and Portland and Seattle, respectively. Neither bill specifies
headquarters locations.


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Figure 4. Three-Way Split Under H.R. 211
and S. 1301
Proposals to split the Ninth Circuit into three appellate courts were also
introduced during previous Congresses. During the 109th Congress, however, the
debate over splitting the circuit has generally focused on splitting the current Ninth
Circuit into two circuits. Although Senator Ensign sponsored S. 1301, which
proposes a three-way split, Senators Murkowski (S. 1845) and Ensign have also
stated their support for S. 1845, which proposes a two-way split.12
Splitting the Ninth Circuit: Current Debates and Analysis
The debate over splitting the Ninth Circuit generally focuses on six areas: (1)
geography and population, (2) judgeships and caseloads, (3) how quickly the circuit
disposes of cases, (4) cost of splitting the circuit, (5) en banc procedures, and (6) the
circuit’s rulings. Proponents of splitting the Ninth Circuit argue that the court is too
big and covers too many people to operate effectively. Opponents of a split generally
respond that although the Ninth Circuit is 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
12 Subcommittee on Administrative Oversight and the Courts, Revisiting Proposals to Split
the Ninth Circuit: An Inevitable Solution to a Growing Problem
, pp. 9-11. Although Sen.
Murkowski’s testimony references “S. 1824” (p. 9), this is apparently a typographical error.
In the same sentence, Sen. Murkowski references the “Circuit Court of Appeals
Restructuring and Modernization Act of 2005,” which is S. 1845. S. 1824, as introduced
in the 109th Congress, is an unrelated bill sponsored by Sen. John Kerry.

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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 effective judicial administration
is the prime concern.
Opponents of a split also say that the Ninth Circuit handles its large number of
appeals well, and that professional case management helps facilitate circuit
operations. For example, former Ninth Circuit Chief Judge James R. Browning has
argued that the Ninth Circuit’s innovations, such as computerized docketing and
long-range planning, serve as models for other courts.13 Those against a split also
contend that duplicating staff and administrative functions in a reorganized circuit
would be costly and unnecessary. Opponents warn that existing Ninth Circuit staff
expertise — which they contend enhances the current circuit’s functioning — could
not necessarily be replicated in proposed Twelfth or Thirteenth Circuits.
Those supporting a split counter that the Ninth Circuit is overworked. They
contend that reducing the circuit’s caseload by dividing the circuit falls within
Congress’s responsibility to manage the federal courts, and that failing to do so
jeopardizes timely access to justice. Proponents fear that judges are too busy to
effectively manage the court and say that dividing the circuit and adding new
judgeships would allow judges to follow cases more closely. Finally, those who
support a split maintain that the Ninth Circuit’s administrative innovations are
ultimately a short-term solution to a long-term problem.14
The Ninth Circuit’s efficiency is often discussed in the debate over whether
Congress should split the circuit. Although “efficiency” is commonly cited on both
sides of the debate, measurements for the term are rarely defined. Efficiency could
be measured in a variety of ways, with varying results. Because there is no
universally accepted definition of “efficiency” in the current debate over splitting the
Ninth Circuit, this report discusses various Ninth Circuit outputs, such as caseloads
and how quickly the circuit disposes of cases, but does not address the Ninth
Circuit’s efficiency per se.
Geography and Population. The Ninth Circuit’s geography and population
are 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 docket. 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
13 Judge James R. Browning, “Innovations of the Ninth Circuit,” U.C. Davis Law Review,
vol. 34, no. 2 (Winter 2000), pp. 357-363.
14 For example, in a March 2006 statement about H.R. 4093 in the Congressional Record,
Rep. Michael Simpson argued that “No amount of technology and innovation is going to
provide my constituents with the efficiency and expediency that they deserve. The current
judges of the Ninth deserve a collegial atmosphere where they can spend time on case law
and not case management.” See Rep. Michael K. Simpson, “The Federal Judgeship and
Administrative Efficiency Act of 2005,” remarks in the House, Congressional Record, daily
edition, vol. 152 (March 15, 2006), p. E368.

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58 million people, almost 36 million of whom lived in California.15 Currently, the
Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) is the second-most-
populous circuit, with a 2004 estimated population of more than 31 million.
Proponents of a split contend that decreasing the current Ninth Circuit’s population
could improve judicial administration and suggest that rapid population growth in the
West will exacerbate the Ninth Circuit’s workload challenges.16
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, stated
during an October 2005 committee hearing 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
the application of environmental regulations one way on the California side of
Lake Tahoe, and another way on the Nevada side.17
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.’”18
Judgeships and Caseloads in the Current Ninth Circuit and Other
Circuits. For the 11 numbered circuits and the D.C. Circuit, there are currently 167
authorized judgeships, which are filled with full-time, active judges. In many circuit
courts, temporary judges and senior judges also help handle the judiciary’s business.
Temporary judgeships are filled by additional appointments to the bench, which
temporarily increase the number of judgeships for a particular circuit or district. The
total number of judgeships authorized for the district or circuit reverts back to the
15 The author calculated the Ninth Circuit’s estimated population 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, the author 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].
16 See, for example, U.S. Congress, House Committee on the Judiciary, Federal Judgeship
and Administrative Efficiency Act of 2005
, report to accompany H.R. 4093, 109th Cong.,
2nd sess., H.Rept. 109-373 (Washington: GPO, 2006), p. 15.
17 Statement of Sen. 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
, p. 5.
18 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
, p. 11.

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number of permanently authorized judgeships at a future point specified by statute,
in this case, when the next two vacancies among authorized Ninth Circuit judges
occur at least 10 years after two temporary judges are appointed (see the Appendix).
Senior judges are those who have taken “senior status,” a specialized form of judicial
retirement.19 Although many senior judges carry large caseloads and contribute
significantly to the court’s workforce, specific duties and volume of work for senior
judges can vary substantially. Therefore, senior judges are not included in caseload
estimates presented later in this report.
As shown in Table 1, the Ninth Circuit has 28 authorized circuit judgeships,
although four seats on the court are currently vacant. The other circuits have between
six (First Circuit) and 17 (Fifth Circuit) authorized judgeships.20 In addition to the
Ninth Circuit’s 24 filled, authorized circuit judgeships, 23 senior judges are assigned
to the circuit. In total, 47 judges currently serve the Ninth Circuit.
19 For additional information, see Senior Status and Retirement for Article III Judges, April
1999 (Judges Information Series, No. 4); and 28 U.S.C. §371.
20 28 U.S.C. §44

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Table 1. Authorized Judgeships and Vacancies in the Circuit
Courts of Appeals
Current Number
Current Number
Percentage of Authorized
of Vacant
Circuit
of Authorized
Judgeships Currently
Authorized
Judgeships
Vacanta
Judgeships
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
2
12.5
Seventh
11
0
0
Eighth
11
0
0
Ninth
28
4
14.3
Tenth
12
2
16.7
Eleventh
12
0
0
D.C.
12
3
25.0
Sources: Administrative Office of the United States Courts (AO), “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/index.cfm?fuseaction
=Reports.ViewVacancies]. Vacancies data are current as of April 6, 2006, according to the AO
website.
a. Percentages were calculated by CRS and rounded to the nearest decimal.
In FY2005, the Ninth Circuit led the nation in appellate filings, with 16,037 of
68,473 nationwide, as shown in Table 2.21 By contrast, the other circuits’ appeals
filings in FY2005 ranged from 1,912 for the First Circuit, to 9,052 for the Fifth
Circuit.22 As Table 2 shows, data from the Administrative Office of the United
States Courts (AO) indicate that the Ninth Circuit was responsible for 21-27% of the
nation’s appellate workload (in appeals filed, terminated, and pending) in FY2005.
Table 2 also shows that the Ninth Circuit’s appeals filings increased substantially
21 “U.S. Court of Appeals - Judicial Caseload Profile, National Totals” Administrative
Office of the United States Courts; [http://www.uscourts.gov/cgi-bin/cmsa2005.pl]. This
figure excludes data from the Federal Circuit.
22 This excludes data for the Federal Circuit.

CRS-12
(75.3%) between FY2000 and FY2005, from 9,147 to 16,037.23 During the same
period, all other circuits’ filings increased by a comparatively small 15.1%, from
45,550 to 52,436.24 As a result, the percentage of all filings assumed by the Ninth
Circuit has increased in recent years. The same is generally true with regard to
appeals terminated and appeals pending.
Table 2. Ninth Circuit and All Other Circuits’ Caseloads,
FY2000-FY2005
2000
2001
2002
2003
2004
2005
Appeals filed
Ninth Circuit
9,147 10,342 11,421 12,872 14,274
16,037
All other circuits
45,550 47,122 46,134 47,975 48,488
52,436
Percentage of all filings assumed by
16.7
18.0
19.8
21.2
22.7
23.4
Ninth Circuit
Percent change in Ninth Circuit
-2.5
13.1
10.4
12.7
10.9
12.4
filings compared with previous year
Percent change in all other circuits’
1.0
3.5
-2.1
4.0
1.1
8.1
filings compared with previous year
Appeals terminated
Ninth Circuit
9,216 10,372 10,042 11,220 12,151
13,399
All other circuits
47,296 47,050 46,544 45,176 44,230
48,576
Percentage of all appeals terminated
16.3
18.1
17.7
20.0
21.6
21.6
by Ninth Circuit
Percent change in Ninth Circuit
appeals terminated compared with
9.7
12.5
-3.2
11.7
8.3
10.3
previous year
Percent change in all other circuits’
appeals terminated compared with
3.5
-1.0
-1.1
-2.9
-2.1
9.8
previous year
Pending appeals
Ninth Circuit
9,219
9,160 10,226 11,277 13,417
16,074
All other circuits
31,191 31,143 30,739 33,323 37,654
41,650
23 CRS calculated this figure, which also appears in “U.S. Court of Appeals - Judicial
Caseload Profile” for the Ninth Circuit and national totals, provided to CRS by the AO.
24 CRS calculated this figure. Totals throughout this section do not include data for the
Court of Appeals for the Federal Circuit.

CRS-13
Percentage of all appeals pending in
22.8
22.7
25.0
25.3
26.3
27.8
Ninth Circuit
Percent change in Ninth Circuit
pending appeals compared with
-1.0
-0.0
11.6
10.3
19.0
19.8
previous year
Percent change in all other circuits’
pending appeals compared with
-5.5
-0.0
-1.3
8.4
13.0
10.6
previous year
Source: “U.S. Court of Appeals - Judicial Caseload Profile,” Provided to CRS by the Administrative
Office of the United States Courts.
Notes: Percentages were calculated by CRS and rounded to the nearest decimal. National totals do
not include appeals filed in the Court of Appeals for the Federal Circuit. Data for “All Other Circuits”
rows were calculated by CRS by subtracting caseload data for the Ninth Circuit from “national totals”
data from the AO (cited above). Years are based on the 12-month period ending on Sept. 30. Except
where otherwise noted, this report relies on data for complete fiscal years to provide a uniform time
frame for examining circuit courts’ activities.
As Figure 5 shows, the appellate courts’ FY2005 caseload — measured in this
report as filed appeals per authorized judgeship — falls into two groups: those
circuits with fewer than 400 appeals filed per judge, and those with more than 500
appeals filed per judge. Four circuits have caseloads in the latter group. In FY2005,
the Eleventh Circuit had the highest caseload in the nation: 644.3 filed appeals per
authorized judgeship. The Ninth Circuit’s caseload was the second-highest, with
572.8 appeals filed per authorized judgeship. Two other circuit courts trailed slightly
behind the Ninth Circuit: the Second Circuit (541.2 appeals filed per authorized
judgeship) and the Fifth Circuit (532.5 appeals filed per authorized judgeship). By
contrast, eight other circuits’ caseloads ranged from 114.9 appeals filed per
authorized judgeship in the D.C. Circuit, to 353.8 cases per authorized judgeship for
the Fourth Circuit.

CRS-14
Figure 5. FY2005 Caseloads in the Circuit Courts

700
644.3
d
e

572.8
600
541.2
riz
532.5
o
th

500
u
ip
r A
h 400
353.8
e
318.7
321.3
325.7
344.5
328.3
es
s P
g
d
300
242.6
eal
Ju
p
200
p
114.9
A
d

100
ile
F

0
First
Second
Third
Fourth
Fifth
Sixth
Seventh
Eighth
Ninth
Tenth
Eleventh
DC
Circuit
Source: CRS analysis based on data in “U.S. Court of Appeals - Judicial Caseload Profile,” provided
to CRS by the Administrative Office of the United States Courts.
Note: Figure 5 is based on permanently authorized judgeships, and does not include temporary
judgeships or senior judgeships.
Proposed Judgeships in a Reorganized Ninth Circuit. As is stated
above, the Ninth Circuit currently has 28 authorized judgeships. In 2005 (the same
year all the bills proposing to split the Ninth Circuit were introduced in the 109th
Congress), the Judicial Conference — the judiciary’s primary internal policymaking
body — recommended that the Ninth Circuit receive five additional permanent
judgeships (for a total of 33 authorized judgeships) and two temporary judgeships.25
As the Appendix shows, all the bills introduced during the 109th Congress that
propose to split the Ninth Circuit follow those recommendations. The bills differ in
how those judgeships would be allocated to a new Ninth Circuit versus proposed
Twelfth or Thirteenth Circuits after a split.
Of the 33 judgeships that would be authorized for the current Ninth Circuit,
most bills that authorize a two-way split would place 19 of those judgeships in a new
Ninth Circuit, and 14 in a Twelfth Circuit. The two temporary judgeships would go
to the new Ninth Circuit and would generally be housed in California. Under a three-
way split proposed by H.R. 211 and S. 1301, the new Ninth Circuit would receive 19
authorized judgeships, compared with eight and six authorized judgeships,
respectively, for the Twelfth and Thirteenth Circuits. Under all seven bills, senior
judges would be allowed to choose the circuit to which they would be assigned.26
25 Judicial Conference of the United States, Judgeship Recommendations of the Judicial
Conference 2005
, 2005, p. 6.
26 As explained previously, because senior judges carry different workloads comprised of
different duties, they are not included in the following caseload estimates.

CRS-15
The 2005 AO Caseload Estimate for a Reorganized Ninth Circuit.
To gauge a reorganized Ninth Circuit’s caseload, a representative from the AO
reports that, in October 2005, the office developed an approximation of how appeals
would have been divided between proposed new Ninth and Twelfth Circuits for the
year ending June 30, 2005.27 During that one-year period, the Ninth Circuit, as
currently structured, received a total of 15,717 filed appeals. Of those, the AO
estimated that a total of 11,275 appeals from district courts and federal agencies were
filed in what would be the new Ninth Circuit (under H.R. 4093 and S. 1845, with the
same boundaries established in S. 1296 and H.R. 3125) compared with 4,442 cases
filed in what would be the Twelfth Circuit. This suggests that a new Ninth would
have carried 71.7% of cases of the current Ninth Circuit, compared with 28.3% for
a new Twelfth Circuit.28 The following analysis extends the AO’s estimates of how
appeals would have been divided among circuits for the year ending June 30, 2005
— the latest available data — to all seven bills introduced in the 109th Congress that
would split the Ninth Circuit.
27 This information is based on correspondence between the author and a representative from
the Office of Legislative Affairs at the AO, March 2006. Although the AO reportedly does
not anticipate producing updated caseload estimates, the proportion of cases that would be
allocated to new Ninth and Twelfth Circuits is expected to remain consistent with the
October 2005 estimates, provided that proposed boundaries for a two-way split also remain
consistent with current proposals. This information comes from February 2006
correspondence between the author and a representative of the Office of Legislative Affairs
at the AO.
28 The author calculated these figures; see also “Ninth Circuit Legislation Overview;” tables
submitted on Oct. 25, 2005, in response to a request from 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 AO’s estimates were 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, although the bills authorize
different numbers of judgeships. The AO’s estimate was based on H.R. 4093 and S. 1845
as of October 2005. As originally introduced in the House, H.R. 4093 authorized 20 judges
for the new Ninth Circuit, as does S. 1845. The version of H.R. 4093 reported from
committee and placed on the Union Calendar — the version currently pending consideration
— authorizes 19 judges for a new Ninth Circuit. S. 1845 still authorizes 20 judgeships for
a new Ninth Circuit.






















CRS-16
Figure 6. Estimated Caseloads for New Ninth, Twelfth, and Thirteenth
Circuits for the Year Ending June 30, 2005
Source: CRS analysis based on data in “Appellate Caseload & Number of Judges: S. 1845/H.R. 4093
Scenario,” provided to CRS by the Office of Legislative Affairs at the AO. CRS calculated estimated
caseloads for each proposed circuit by adding together state appeals filings (reported in Ibid.), grouped
by proposed circuits, and dividing the total estimated number of cases in each proposed circuit by the
number of authorized judgeships designated for each circuit across the seven bills. All figures are
rounded to the nearest decimal.
Note: Figure 6 is based on permanently authorized judgeships and does not include temporary or
senior judgeships. See footnotes in the text below for caseloads including temporary judgeships.
Estimated Caseloads Among Bills Introduced During the 109th
Congress. As
Figure 6 shows, the seven bills introduced in the 109th Congress
to split the Ninth Circuit would produce somewhat different caseload results, both
compared with caseloads for the current Ninth Circuit, and for a new Ninth Circuit
compared with proposed Twelfth or Thirteenth Circuits. Five of the bills produce
new Ninth Circuit caseload estimates, for the year ending June 30, 2005, that are
somewhat higher (based on authorized judgeships) than the caseload of the current
Ninth Circuit during the same period. However, when the two temporary judgeships
the bills designate for a new Ninth Circuit are included, estimated caseloads fall
below current levels. Specifically, as Figure 6 shows, the caseload in the current
Ninth Circuit is 561.3 appeals filed per authorized judge, whereas H.R. 4093, S.
1296, H.R. 211, and S. 1301 — all of which propose the same boundaries for a new
Ninth Circuit — would produce an estimated 593.4 appeals for 19 authorized
judges.29 S. 1845, with the same boundaries for a new Ninth Circuit but with 20
authorized judgeships, would produce an estimated caseload of 563.8 appeals filed
29 If including the two temporary judgeships allocated for the new Ninth Circuit, the
estimated caseload is 536.9 appeals per judgeship (authorized plus temporary).

CRS-17
per judge in the new circuit — slightly higher than the current Ninth Circuit’s
caseload.30
On the other hand, one bill (H.R. 212) is estimated to reduce a new Ninth
Circuit’s caseload somewhat (to 542 cases per authorized judge31) compared with the
current Ninth Circuit’s caseload for the same period. Another bill (H.R. 3125) would
have reduced the Ninth Circuit’s caseload substantially, producing an estimated
caseload for a new Ninth Circuit of 469.8 appeals filed per authorized judge32 for the
year ending June 30, 2005. This caseload would be less than the estimated caseload
for the Twelfth Circuit. By contrast, the data suggest that six of the seven bills (all
except H.R. 3125) would yield higher caseloads for the new Ninth Circuit than the
projected caseloads for proposed Twelfth or Thirteenth Circuits.
The Influence of Context on Caseloads. The quantitative data presented
throughout this report provide information about how many cases each circuit —
under current proposals and assuming that all judgeships are filled — would carry.
Context (e.g., complexity, types of cases courts handle, and additional vacancies)
could also play a role in caseload considerations. As the following section explains,
immigration cases are particularly prominent in the Ninth Circuit.
Caseload and Immigration Cases. Opponents of a split 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) cases, slowing the
court’s overall work.33 According to the AO, as of October 2005, 41% of Ninth
Circuit filings were BIA appeals, and 88% of those were filed in California.34 In
2005, Ninth Circuit Judge Sidney R. Thomas, who opposes a split, testified that from
2001 to 2005 (through June 30), BIA appeals for the circuit had increased 570%, but
added that, “while the courts can expect continued volume [of BIA appeals] for the
next several years, the volume of immigration cases should decrease as the BIA
becomes current in its case processing.” Judge Thomas also said that centralized
circuit staff resolve “well over 80 percent” of immigration petitions before they reach
30 If including the two temporary judgeships allocated for the new Ninth Circuit, the
estimated caseload is 512.5 appeals per judgeship (authorized plus temporary).
31 If including the two temporary judgeships allocated for the new Ninth Circuit, the
estimated caseload is 500.3 appeals per judgeship (authorized plus temporary).
32 If including the two temporary judgeships allocated for the new Ninth Circuit, the
estimated caseload is 433.7 appeals per judgeship (authorized plus temporary).
33 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].
34 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.

CRS-18
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.35
On a related note, during the spring of 2006, Congress was considering
proposals to transfer immigration appeals from the regional circuit courts to the Court
of Appeals for the Federal Circuit or another entity. On April 3, 2006, the Senate
Judiciary Committee held hearings on immigration litigation reform, which briefly
addressed a proposed Ninth Circuit split. In response to a question from Senator Jeff
Sessions, Ninth Circuit district judge John M. Roll stated his opinion that
centralizing immigration appeals outside the regional circuits would not, on its own,
alleviate the need to split the Ninth Circuit. Writing in The National Law Journal
before the hearing, Judge Roll called for centralizing immigration appeals and
splitting the Ninth Circuit to reduce the circuit’s caseload. According to Judge Roll,
if S. 1845 or H.R. 4093 were adopted, and all BIA appeals were transferred to the
Federal Circuit, “the new 9th Circuit would keep 60% of the current 9th Circuit
caseload and have 61% of the judges allotted to the new 9th and 12th circuits. The
new 12th Circuit would have 40% of the current caseload and 39% of the allotted
judges.”36 The Judicial Conference reportedly opposed centralizing immigration
appeals, and some observers opposed to centralizing immigration litigation
reportedly believed that the move, in part, was an attempt to reduce the Ninth
Circuit’s influence on immigration law.37
How Quickly the Circuit Disposes of Cases. In FY2005, the Ninth
Circuit disposed of cases in a median38 of 16.1 months after filing, ranking it last
among the 12 circuits (see Table 3).39 Those favoring a split contend that this length
of time is another indicator that the Ninth Circuit is too big and has too much work.
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
, p. 179.
36 John M. Roll, “Court is too big, too slow,” The National Law Journal, March 13, 2006,
p. 26. For additional information, see “Specter Withdraws Proposal to Send Appeals of
Immigration Cases to Federal Circuit,” Daily Report for Executives, March 30, 2006, p. A-
13; Maura Reynolds, “Plan to Reroute Immigration Appeals Hits Some Red Lights,” Los
Angeles Times
, April 2, 2006, p. A23; and Ralph Lindeman, “Federal Circuit Chief Judge
Opposes Plan to Consolidate Immigration Appeals in Circuit,” Daily Report for Executives,
April 4, 2006; p. A-1. For background information on immigration litigation, see CRS
Report RL33125, Immigration Legislation and Issues in the 109th Congress, by Andorra
Bruno, et al., especially pp. 16-18.
37 Maura Reynolds, “Plan to Reroute Immigration Appeals Hits Some Red Lights,” Los
Angeles Times
, p. A23.
38 The median identifies the mid-point for individual sets of ordered observations. It is
often a preferred social science measure of central tendency, and is unaffected by extreme
values (unlike the average or mean). For more information, see William H. Greene,
Econometric Analysis, 5th ed. (Upper Saddle River, NJ: Prentice Hall, 2003, p. 847); and Ya-
lun Chou, Statistical Analysis for Business and Economics (New York: Elsevier, 1989),
chapter 4.
39 See “U.S. Court of Appeals - Judicial Caseload Profile,” FY2000-FY2005 data provided
to the author by the AO.

CRS-19
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 in doing
so. Potential mitigating factors, such as the type or complexity of cases filed, or the
contention by many Ninth Circuit judges that the court reaches decisions quickly
once judges hear cases, could also affect caseload considerations. Writing jointly in
Engage (a journal published by the Federalist Society), more than 30 Ninth Circuit
judges recently argued that, although backlogs delay consideration of cases in the
Ninth Circuit, “once the cases are submitted to the judges, we are the second-fastest
among the circuits in disposing of them.”40
Table 3. Median Time in Months from Filing Notice of Appeal to
Disposition for FY2005
Ranking based
Circuit
Median time in months
on shortest time
1
Fourth
8.0
2
Eleventh
9.5
3
Fifth
10.3
4
Seventh
10.6
5
Eighth
10.7
6
D.C.
11.2
7
Third
11.7
8
Tenth
12.0
9
Second
13.0
10
First
13.2
11
Sixth
14.5
12
Ninth
16.1
Source: “U.S. Court of Appeals - Judicial Caseload Profile,” Administrative Office of the United
States Courts; provided to CRS by the AO.

Cost of Splitting the Circuit. Opponents of a split say that administrative
costs associated with splitting the Ninth Circuit and establishing new headquarters,
staff support, and related administrative expenses in the proposed Twelfth Circuit (or
Twelfth and Thirteenth Circuits) are unnecessary and would strain limited 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 judicial administration will outweigh those costs.
40 Mary M. Schroeder et al., “A Court United: A Statement of a Number of Ninth Circuit
Judges,” Engage, vol. 7, no. 1 (March 2006), p. 64. Emphasis in original.

CRS-20
Cost estimates for 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 Twelfth’s headquarters were in Seattle (another site
discussed as a possible headquarters), the AO estimated that the expense would be
substantially less — more than $12 million in startup costs, with $7 million in annual
recurring costs.41 The Phoenix-versus-Seattle estimates reportedly vary largely
because of costs associated with constructing a new headquarters facility versus
renovating an existing one.
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.”42 Research conducted for this report reveals no publicly available cost
estimates for a Thirteenth Circuit.
En Banc 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
circuits typically involve all a court’s active judges, and are normally reserved for
cases in which the full court wishes to reconsider the opinion of a three-judge
appellate panel. Unlike other circuits, though, the Ninth Circuit employs a “limited
en banc” procedure, which, until January 2006, allowed 11 judges (rather than the
entire court) to serve as a full en banc panel.43 Proponents of a split contend the
Ninth Circuit’s reliance on limited en banc procedures allows a minority of judges
41 The AO’s estimates were based on the language in H.R. 4093 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 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 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. 4093. If the seven additional
judgeships are included, start-up costs reportedly 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.
42 Congressional Budget Office Cost Estimate “H.R. 4093: Federal Judgeship and
Administrative Efficiency Act of 2005,” Nov. 21, 2005, p. 1.
43 92 Stat. 1633 (1978), P.L. 95-486, allows a circuit 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.”

CRS-21
to speak for the entire court. According to Ninth Circuit judge Andrew Kleinfeld
(testifying in October 2005), who supports a split, “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.”44 Some supporting a split also contend
that limited en banc decisions might have changed if different judges had been
assigned to en banc panels, therefore potentially producing inconsistent circuit
rulings.45
Ninth Circuit Chief Judge Mary M. Schroeder announced on October 1, 2005,
that beginning on January 1, 2006, the circuit would increase the size of en banc
panels from 11 to 15 judges. According to Chief Judge Schroeder, although she has
been satisfied with the 11-judge panels, the decision to increase panel size was
“intended to respond to criticism that we should have a majority of our judges sit on
each en banc [panel].”46 According to a court staff member, the first enlarged en
banc
panels began hearing cases in March 2006.47
Opponents of a split contend that the en banc issue is not a major concern
because 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.48
44 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
, p. 61.
Sen. Jon Kyl, who supports a split, made a similar statement in 2005. See “Kyl Urges
Serious Consideration of Proposals to Split 9th Circuit Court,” press release, the Office of
Sen. Jon Kyl, Oct. 26, 2005.
45 See, for example, Diarmuid F. O’Scannlain, “Ten Reasons Why the Ninth Circuit Should
be Split,” Engage, vol. 6, no. 2 (Oct. 2005), p. 62.
46 “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].
47 Telephone conversation between the author and Kevin Madden, manager of the Public
Information Office, Ninth Circuit Court of Appeals, San Francisco, March 21, 2006.
48 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
, pp. 170-
171.

CRS-22
The Circuit’s Rulings. Some of the Ninth Circuit’s rulings have, on
occasion, 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.49 Some proponents of
a split also say that some Ninth Circuit rulings do not represent the conservative
political culture of much of the western United States, reflecting what some
observers perceive as a division between California and much of the rest of the
circuit.50
Proponents of splitting the Ninth Circuit also contend that the Supreme Court
reverses the Ninth Circuit, often unanimously, more frequently than any other circuit
court.51 For the 2004 term (which ended in 2005), of 43 Supreme Court reversals for
the circuit courts, 12 reversed the Ninth Circuit — more than any other circuit.52
Opponents of a split respond that only a small fraction of the circuit’s rulings are
granted review by the Supreme Court, and that Ninth Circuit reversals are not
dramatically different than reversal rates for other circuits in recent years.53
Similarly, some opposed to splitting the Ninth Circuit also suggest that efforts to
divide the circuit threaten judicial independence.54 Supporters of splitting the circuit
deny that position. For example, Ninth Circuit Judge Diarmuid O’Scannlain testified
in October 2005 that “the case for the split stands on the grounds of effective judicial
49 See 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 reported 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.
50 In Idaho, for example, a spokesperson for Idaho Chooses Life, an anti-abortion group, was
quoted in 2005 by the Idaho Falls Post Register as being “tired of ‘California liberals’
having veto power over Idaho’s social policies.” See Corey Taule, “Splitting the 9th,” Post-
Register
(Idaho), Nov. 11, 2005, p. A01.
51 On this point, and summary and unanimous reversals, see U.S. Congress, House
Committee on the Budget, Deficit Reduction Act of 2005, p. 719. On Ninth Circuit
reversals, see also Kevin M. Scott, “Time for a Divorce? Splitting the Ninth Circuit Court
of Appeals,” paper presented at the Annual Meeting of the Midwest Political Science
Association, Chicago, IL, April 2005; [http://webpages.acs.ttu.edu/keviscot/
ScottMPSA2004.pdf].
52 “Table II (E),” Harvard Law Review, vol. 119, no. 1 (Nov. 2005), p. 427.
53 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
, vol. 37 (Fall 2003), pp. 1-21. See also Jeff Chorney, “9th Circuit dominates the high
court’s docket,” National Law Journal, July 5, 2004, p. 6
54 See, for example, The Office of Senator Dianne Feinstein, “Statement of Senator Feinstein
on Withdrawal of 9th Circuit Split Provision,” press release, Dec. 20, 2005.

CRS-23
administration, supported by the statistics which show the ongoing caseload
explosion.”55
Judges’ Opinions on a Split. Although a few Ninth Circuit judges vocally
support a split, the majority reportedly do not. According to Ninth Circuit Chief
Judge Mary Schroeder, in April 2004, Ninth Circuit judges held a retreat to discuss
splitting the circuit, followed by “a mail ballot” to the judges on the court. Judges
were asked to select from three options: “(1) oppose a division of the Ninth Circuit;
or (2) favor a division of the Ninth Circuit; or (3) abstain from voting.”56 In a May
5, 2004, letter to members of the Senate Judiciary Committee, Judge Schroeder
reported the results:
The Court currently has a total of 47 judges serving on the court, 26 active judges
and 21 senior judges, plus two vacancies. The vote concluded on April 30,
2004. Of the 47 judges, 30 judges voted in opposition to circuit division, nine
voted in favor of circuit division and eight judges abstained from voting. Of the
26 active judges, only four active judges favor division, fifteen active judges
oppose division, and six active judges abstained from voting. Of the 21 senior
judges, fifteen senior judges oppose circuit division, five senior judges favor
division, and two senior judges abstained.57
Those against 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 Ninth Circuit
reportedly oppose a split.58 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,” an apparent
reference to the judgeship provisions contained in H.R. 4093.59
55 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
, p. 102.
56 Letter from Mary M. Schroeder, chief judge of the U.S. Ninth Circuit Court of Appeals,
to Honorable Jeff Sessions and Honorable Dianne Feinstein, May 5, 2004; provided to CRS
by staff at the Headquarters Library, U.S. Ninth Circuit Court of Appeals, San Francisco.
57 Ibid.
58 See, for example, Statement of Sen. 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
, p. 6; and Roxie Bacon and Don Bivens, “Rhetoric, Not 9th Circuit, Is What’s
Overloaded,” Arizona Republic, Nov. 21, 2005; p. 7B.
59 Titles I and II of H.R. 4093 authorize more than 60 new judgeships throughout the nation.
Title III discusses splitting the Ninth Circuit. For 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;”
and Julie Kay, “Additional federal judges tied to split of 9th circuit,” Miami Daily Business
Review
, Dec. 5, 2005, p. 1. On the Judicial Conference’s positions, see “Judicial
(continued...)

CRS-24
Some who support a split suggest that district judges within the Ninth Circuit
would not necessarily oppose a split. District Judge John M. Roll, who maintains
chambers in Arizona, testified in 2005 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.”60
Analysis: Potential Impacts of Splitting the Ninth Circuit
Congress has, thus far, chosen to leave the Ninth Circuit intact. The impact
of splitting the Ninth Circuit would likely vary depending on the final boundaries of
a split and related provisions, such as changes in the number of authorized judges,
or other day-to-day realities encountered by judges, staff, and litigants operating in
a reorganized Ninth Circuit, that cannot be anticipated. As noted previously, the
debate over splitting the Ninth Circuit generally focuses on six areas: (1) geography
and population, (2) judgeships and caseloads, (3) how quickly the circuit disposes of
cases, (4) cost of splitting the circuit, (5) en banc procedures, and (6) the circuit’s
rulings. Analysis suggests that splitting the Ninth Circuit would have different
effects on each of these six areas.
Geography and Population. History suggests that the Ninth Circuit’s
population is likely to continue increasing. All seven bills introduced during the
109th Congress would reduce the number of states, geographic area, and population
in proposed new Ninth, Twelfth, or Thirteenth Circuits compared with the current
Ninth Circuit. As explained above, six of seven bills introduced in the 109th
Congress (all except H.R. 212) would create a new Ninth Circuit including
California, Guam, Hawaii, and the Northern Mariana Islands, which, in 2004,
included an estimated 37 million people. Currently, the Sixth Circuit (Kentucky,
Michigan, Ohio, and Tennessee) is the second-most-populous circuit, with a 2004
estimated population of more than 31 million. By contrast, the current Ninth Circuit
includes approximately 58 million people.
Therefore, creating a new Ninth Circuit that included only California, Guam,
Hawaii, and the Northern Mariana Islands would remove approximately 20 million
people in the Mountain West and Pacific Northwest from the current Ninth Circuit
and place them in proposed Twelfth or Thirteenth Circuits.61 A new Ninth Circuit
would still be the nation’s most populous circuit, although its population would be
closer to other circuits than is the current Ninth Circuit’s population. A new Ninth
59 (...continued)
Conference Acknowledges Loss to Judiciary in Resolutions,” The Third Branch, vol. 37
(10); [http://www.uscourts.gov/ttb/oct05ttb/loss/index.html].
60 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
, p. 108.
61 A new Ninth Circuit including Arizona, California, and Nevada (as proposed in H.R. 212)
would house a larger population and geographic area than the other six bills.

CRS-25
Circuit including only California, Guam, Hawaii, and the Northern Mariana Islands
would be the only circuit including just two states (California and Hawaii), although
it would house more total jurisdictions (states and territories) than some other
circuits.
Judgeships and Caseloads. Those who oppose splitting the circuit
generally believe that a caseload disparity between reorganized circuits would
unfairly increase work for judges remaining in a new Ninth Circuit, while creating
smaller caseloads for judges in proposed Twelfth or Thirteenth Circuits. Proponents
of a split point out that California would receive additional permanent and temporary
judgeships to aid the new Ninth’s caseload, and contend that states located in the rest
of the circuit should not be bogged down by the large number of cases originating in
California.
Analysis of the latest available estimates (for the year ending June 30, 2005)
suggests that under six of seven bills introduced during the 109th Congress, caseloads
(i.e., filed appeals per authorized judgeship) in proposed Twelfth or Thirteenth
Circuits would have been lower than caseloads in a new Ninth Circuit (as shown in
Figure 6), although two bills (H.R. 212 and H.R. 3125) would have also produced
lower caseload estimates (based on authorized judgeships) for a new Ninth Circuit
than for the current Ninth Circuit. If two temporary judgeships designated for a new
Ninth Circuit are included, all seven bills would have yielded caseload estimates
below current levels. One bill (H.R. 3125) would have produced a higher estimated
caseload in a Twelfth Circuit than in a new Ninth Circuit. Unlike the other six bills
introduced during the 109th Congress to split the Ninth Circuit, H.R. 3125 would
provide rough caseload parity between proposed new Ninth and Twelfth Circuits.
Qualitative factors, such as the complexity of cases circuits handle, types of cases,
and other factors, could also affect caseloads and, as the next section discusses, how
quickly circuits dispose of cases.62
How Quickly the Circuits Would Dispose of Cases. Although the
Ninth Circuit took a median of more than 16 months to dispose of cases in FY2005,
it also faced the second-highest per-judge caseload in the nation. By contrast, the
Sixth Circuit in FY2005 carried a comparatively small 325.7 filed appeals for each
of its 16 authorized judges, but took almost as long as the Ninth Circuit — a median
of 14.5 months — to dispose of those cases. At the same time, the Eleventh and
Fifth Circuits — created in 1981 from the old Fifth Circuit — both had high
caseloads in FY2005, but disposed of those cases faster than virtually any other
circuit court (see Table 3). These findings suggest that there is not necessarily a
uniform relationship between the number of filed appeals per authorized judgeship
and the speed with which those cases are resolved. It is unclear whether a new Ninth,
62 Qualitative data are often obtained through open-ended survey questions, interviews,
focus groups, case studies, and field observations. Particularly in modern political science,
the appropriateness of qualitative and quantitative methods is often debated. For a general
discussion of choosing between — or combining — the two approaches, see Todd D. Jick,
“Mixing Qualitative and Quantitative Methods: Triangulation in Action,” Administrative
Science Quarterly
, vol. 24, no. 4 (Dec. 1979), pp. 602-611; and Gary King, Robert O.
Keohane, and Sidney Verba, Designing Social Inquiry: Scientific Inquiry in Qualitative
Research
(Princeton: Princeton University Press, 1994).

CRS-26
Twelfth, or Thirteenth Circuit would necessarily dispose of cases faster than the
current Ninth Circuit.
Cost of Splitting the Circuit. As explained previously, depending on
source and level of detail, estimated costs for splitting the Ninth Circuit vary widely.
AO and CBO cost estimates suggest that start-up costs for a split could range
between $20 million and $94 million, plus annual recurring costs and costs related
to additional judgeships. Those estimates also suggest that renovating existing
courthouses, rather than constructing new facilities, could be a way to limit costs. In
addition to facilities, administrative expenses are likely to influence cost estimates.
En Banc Procedures. None of the legislation currently before Congress
proposing to split the Ninth Circuit would alter en banc procedures. 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. A Twelfth Circuit (and Thirteenth Circuit
under H.R. 211 and S. 1301) would presumably sit en banc with all authorized
judges because none of the bills splitting the Ninth Circuit authorizes more than 14
judges for the Twelfth Circuit (or Thirteenth Circuit). By contrast, all bills
introduced during the 109th Congress that would split the Ninth Circuit authorize at
least 19 judges for a new Ninth Circuit, meaning that a new Ninth would still be
allowed to employ a limited en banc procedure if the court chose to do so. 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
necessary. On March 2, 2005, Representative Michael Simpson introduced H.R.
1064, which would prohibit the Ninth Circuit from employing the limited en banc
procedure. The bill was referred to committee on April 4, 2005, but has not been
acted upon since.
The Circuit’s Rulings. The degree to which the current Ninth Circuit’s
rulings motivate calls for a split is hotly debated. Those opposed to a split generally
contend that attempts to divide the circuit threaten judicial independence63 by
separating conservative areas of the Mountain West or Pacific Northwest into their
own circuit or circuits. Supporters of a split reject that argument, saying that their
efforts to split the circuit are based on administrative concerns.64
If the current Ninth Circuit were split, three-judge appellate panels, whose
members would be drawn from around the circuit, would still hear most cases (all
except those heard en banc). If the circuit were split before January 2009, President
George W. Bush would be authorized to make nominations for the additional
judgeships each bill specifies, although the appointing president is not necessarily an
indication of how particular judges might rule. Some observers caution that a new
Ninth would be more “liberal” than the current court allegedly is, because there
would be little geographic diversity in a reorganized Ninth Circuit compared with the
63 See, for example, The Office of Senator Dianne Feinstein, “Statement of Senator Feinstein
on Withdrawal of 9th Circuit Split Provision,” press release, Dec. 20, 2005.
64 See, for example, Rep. Michael K. Simpson, “The Federal Judgeship and Administrative
Efficiency Act of 2005,” p. E368.

CRS-27
current Ninth Circuit.65 Overall, it is unclear how splitting the Ninth Circuit would
impact rulings in a new Ninth, Twelfth, or Thirteenth Circuits.
Concluding Comments
Despite several recent proposals to split the Ninth Circuit, potentially
substantial obstacles remain. In addition to the objection to a split from many Ninth
Circuit judges and lawyers discussed above, Senate Judiciary Committee Chairman
Arlen Specter and Ranking Member Patrick Leahy objected to first-session attempts
to split the circuit as part of the budget reconciliation process.66 Senator Dianne
Feinstein also stated prior to December 2005 conference negotiations on the Deficit
Reduction Act — which, as passed by the House, would have split the Ninth Circuit
— 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.”67
Language splitting the Ninth Circuit was dropped during conference consideration.
The FY2007 budget resolution passed by the House Budget Committee
(H.Con.Res. 376) reportedly “assumes the 9th U.S. Circuit Court of Appeals will be
reorganized and additional judgeships created — reviving a battle from last year’s
budget.”68 History suggests that if Congress maintains the status quo for the Ninth
Circuit, the issue will likely remain active. Several Members of Congress reportedly
remain interested in splitting the circuit, and proponents of a split argue that rapid
population growth in the current Ninth Circuit will only exacerbate the court’s
alleged management challenges. Many proponents of a split view dividing the circuit
as “inevitable,” with only the timing of a division and some details remaining
65 “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]; Zachary
Coile, “A quiet move in the House to split the 9th Circuit,” San Francisco Chronicle, Nov.
30, 2005, p. A1; and Steven Greenhut, “Split decision,” Orange County Register, Dec. 18,
2005;[http://www.nexis.com/research/home?key=1142962530&_session=17adb3dc-b90
1-11da-a526-00008a0c593d.1.3320415330.296188.%20.0.0&_state=&wchp=dGLbVzz-
zSkBW&_md5=3c639f0231072c82851e12e9aa276fe8]. On the potential impact on rulings
resulting from a split, see also Kevin M. Scott, “Time for a Divorce? Splitting the Ninth
Circuit Court of Appeals.”
66 Letter to Honorable Judd Gregg and Honorable Kent Conrad from Senators Arlen Specter
and Patrick Leahy; Nov. 9, 2005.
67 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.
68 David Clarke and Chuck Conlon, “Leaders Prepare Budget for House Floor,” CQ Budget
Tracker News
, April 3, 2006; see also U.S. Congress, House Committee on the Budget,
Concurrent Resolution on the Budget — Fiscal Year 2007, report to accompany H.Con.Res.
376, 109th Cong., 2nd sess., H.Rept. 109-402, p. 46.

CRS-28
uncertain.69 Others are equally determined to oppose dividing the circuit, asserting
that a split is not a solution to perceived problems, and that the Ninth Circuit
continues to function effectively.
The data and analysis presented throughout this report suggest that splitting
the Ninth Circuit would have different impacts in different areas common to the
debate over the circuit’s future, such as caseload, cost, and en banc procedures. In
some cases, the impact of splitting the circuit is unclear. In every case, the impact
of splitting the Ninth Circuit would vary with context. Each dimension of the debate
over splitting the Ninth Circuit offers Congress potential benchmarks to consider in
deciding whether to split the Ninth Circuit or maintain the status quo. Different
measures of the concepts discussed here, or different variables altogether, might
produce alternative findings to the analysis presented in this report.
69 For example, as noted previously throughout this report, an October 2005 Senate
Subcommittee on Administrative Oversight and the Courts hearing was entitled, Revisiting
Proposals to Split the Ninth Circuit: An Inevitable Solution to a Growing Problem
.

CRS-29
Appendix. Major Provisions of Legislation Introduced During the 109th Congress That Would Split the Ninth Circuit
Court of Appeals
H.R. 3125
H.R. 211
H.R. 212
H.R. 4093a
S. 1845
S. 1296
last major
last major
last major
S. 1301
last major action:
last major
last major
action:
action:
action:
last major
02/08/2006
action:
action:
06/29/2005
03/02/2005
03/02/2005
action:
(reported and placed
10/26/2005
10/26/2005
(referral to
(referral to
(referral to
10/26/2005
Provision
on Union Calendar)
(hearings)
(hearings)
committee)
committee)
committee)
(hearings)
States/Territories
California, Hawaii,
Same as bill to
Same as bills
Same as bills
Same as bills to
Arizona,
Same as H.R.
Included in New
Guam, Northern
left [sec. 3]
to left [sec. 3]
to left [sec. 3]
left [sec. 4]
California,
211 [sec. 3]
Ninth Circuit
Mariana Islands
Nevada
[sec. 303]
[sec. 3]
States/Territories
Alaska, Arizona, Idaho,
Same as bill to
Same as bills
Same as bills
Arizona, Idaho,
Alaska, Guam,
Same as H.R.
Included in
Montana, Nevada,
left [sec. 3]
to left [sec. 3]
to left [sec. 3]
Montana,
Hawaii, Idaho,
211 [sec. 3]
Twelfth Circuit
Oregon, Washington
Nevada [sec. 4]
Montana,
[sec. 303]
Northern
Mariana
Islands, Oregon,
Washington
[sec. 3]
States Included
No Thirteenth Circuit
No Thirteenth
No Thirteenth
No Thirteenth
Alaska, Oregon,
No Thirteenth
Same as H.R.
in Thirteenth
Circuit
Circuit
Circuit
Washington
Circuit
211 [sec. 3]
Circuit
[sec. 4]

CRS-30
H.R. 3125
H.R. 211
H.R. 212
H.R. 4093a
S. 1845
S. 1296
last major
last major
last major
S. 1301
last major action:
last major
last major
action:
action:
action:
last major
02/08/2006
action:
action:
06/29/2005
03/02/2005
03/02/2005
action:
(reported and placed
10/26/2005
10/26/2005
(referral to
(referral to
(referral to
10/26/2005
Provision
on Union Calendar)
(hearings)
(hearings)
committee)
committee)
committee)
(hearings)
New Ninth
Honolulu, Pasadena,
Same as bill to
Honolulu,
Same as H.R.
Los Angeles,
Pasadena,
Same as H.R.
Circuit: “Places
San Francisco
left
San Francisco
4093, S. 1845
San Francisco
Phoenix, San
211 [sec. 6]
of the Court”
[sec. 305]
[sec. 6]
[sec. 6]
[sec. 6]
[sec. 4]
Francisco
[sec. 6]
Twelfth Circuit:
Twelfth Circuit:
Same as bill to
Twelfth
Twelfth
Las Vegas,
Portland,
Same as
“Places of the
Las Vegas, Missoula,
left
Circuit:
Circuit:
Phoenix
Seattle
H.R. 211
Court”/
Phoenix, Portland,
[sec. 6]
Phoenix,
Phoenix,
[sec. 4]
[sec. 6]
[sec. 6]
Headquarters
Seattle [sec. 305]
Portland,
Seattle
Locations
Headquarters:
Missoula
[sec. 6]
Headquarters
Headquarters
Headquarters location
Phoenix
[sec. 6]
location not
location not
not specified
[sec. 7]
Headquarters
specified
specified
Headquarters:
location not
Phoenix
specified
[sec. 7]
Thirteenth
No Thirteenth Circuit
No Thirteenth
No Thirteenth
No Thirteenth
Portland, Seattle
No Thirteenth
Same as
Circuit: “Places
Circuit
Circuit
Circuit
[sec. 4]
Circuit
H.R. 211
of the Court”/
[sec. 6]
Headquarters
Headquarters
Locations
location not
specified

CRS-31
H.R. 3125
H.R. 211
H.R. 212
H.R. 4093a
S. 1845
S. 1296
last major
last major
last major
S. 1301
last major action:
last major
last major
action:
action:
action:
last major
02/08/2006
action:
action:
06/29/2005
03/02/2005
03/02/2005
action:
(reported and placed
10/26/2005
10/26/2005
(referral to
(referral to
(referral to
10/26/2005
Provision
on Union Calendar)
(hearings)
(hearings)
committee)
committee)
committee)
(hearings)
Additional
Authorizes 5 additional
Authorizes 5
Same as S.
Authorizes 2
Same as
Same as H.R.
Same as H.R.
Authorized
circuit judges for the
additional
1845 [sec. 4]
additional
H.R. 4093
3125 [secs. 4, 5]
211 [secs. 4, 5]
Circuit
Ninth Circuit, with
circuit judges
circuit judges
[sec. 3]
Judgeships
official duty stations in
for the new
for the Ninth
California [sec. 102]
Ninth, with
Circuit, with
[Current Ninth
official duty
official duty
Circuit has 28
stations in
stations in
authorized
California
Arizona,
circuit
[sec. 4]
California, or
judgeships; see
Nevada;
next page for
authorizes 3
total authorized
additional
judgeships after
circuit
split]
judgeships for
the new Ninth
Circuit
[sec. 4]

CRS-32
H.R. 3125
H.R. 211
H.R. 212
H.R. 4093a
S. 1845
S. 1296
last major
last major
last major
S. 1301
last major action:
last major
last major
action:
action:
action:
last major
02/08/2006
action:
action:
06/29/2005
03/02/2005
03/02/2005
action:
(reported and placed
10/26/2005
10/26/2005
(referral to
(referral to
(referral to
10/26/2005
Provision
on Union Calendar)
(hearings)
(hearings)
committee)
committee)
committee)
(hearings)
Temporary
Authorizes 2 additional
Same as bill to
Same as bills
Authorizes 2
Same as H.R.
Same as H.R.
Same as H.R.
Judgeships
temporary circuit
left [sec. 4]
to left
additional
4093, S. 1296,
3125 [sec. 4]
211, H.R. 4093,
judges for the Ninth
[sec. 4]
temporary
S. 1301, S. 1845
S. 1296, S. 1845
Circuit, with official
circuit judges
[sec. 3]
[sec. 4]
duty stations in
for the current
California [sec. 102]
Ninth Circuit,
with official
duty stations in
Arizona,
California, or
Nevada
[sec. 4]

CRS-33
H.R. 3125
H.R. 211
H.R. 212
H.R. 4093a
S. 1845
S. 1296
last major
last major
last major
S. 1301
last major action:
last major
last major
action:
action:
action:
last major
02/08/2006
action:
action:
06/29/2005
03/02/2005
03/02/2005
action:
(reported and placed
10/26/2005
10/26/2005
(referral to
(referral to
(referral to
10/26/2005
Provision
on Union Calendar)
(hearings)
(hearings)
committee)
committee)
committee)
(hearings)
New Ninth
19
20
Same as H.R.
24
Same as H.R.
Same as H.R.
Same as H.R.
Circuit: Total
[sec. 304]
[sec. 5]
4093 [sec. 5]
[sec. 5]
4093, S. 1296
3125 [secs. 4, 5]
211, H.R. 4093,
Authorized
[sec. 5]
S. 1296
Circuit
[secs. 4, 5]
Judgeships after
a Split of Current
Ninth Circuit

Twelfth Circuit:
14
Same as bill to
Same as bills
9
8
Same as H.R.
Same as H.R.
Total Authorized
[sec. 304]
left [sec. 5]
to left [sec. 5]
[sec. 5]
[sec. 5]
3125 [secs. 4, 5]
211 [secs. 4, 5]
Circuit
Judgeships after
a Split of Current
Ninth Circuit

Thirteenth
No Thirteenth Circuit
No Thirteenth
No Thirteenth
No Thirteenth
6
No Thirteenth
Same as H.R.
Circuit: Total
Circuit
Circuit
Circuit
[sec. 5]
Circuit
211 [secs. 4, 5]
Authorized
Circuit
Judgeships after
a Split of Current
Ninth Circuit


CRS-34
H.R. 3125
H.R. 211
H.R. 212
H.R. 4093a
S. 1845
S. 1296
last major
last major
last major
S. 1301
last major action:
last major
last major
action:
action:
action:
last major
02/08/2006
action:
action:
06/29/2005
03/02/2005
03/02/2005
action:
(reported and placed
10/26/2005
10/26/2005
(referral to
(referral to
(referral to
10/26/2005
Provision
on Union Calendar)
(hearings)
(hearings)
committee)
committee)
committee)
(hearings)
Assignment of
Judges are assigned to
Same as bill to
Same as bills
Same as bills
Same as bills to
Same as bills to
Same as bills to
Active Circuit
the circuit in which
left [sec. 8]
to left [sec. 8]
to left [sec. 7]
left [sec. 4]
left [sec. 7]
left [sec. 7]
Judges
their duty station was
located the day before
the act became
effective
(i.e., California in new
Ninth Circuit; Montana
in Twelfth)
[sec. 306]
Assignment of
Senior judges in the
Same as bill to
Same as bills
Same as bills
Same as bills to
Same as bills to
Same as bills to
Senior Judges
current Ninth Circuit
left [sec. 10]
to left [secs. 8,
to left [sec. 8]
left [sec. 4]
left [sec. 8]
left [sec. 8]
the day before the act
9]
becomes effective may
elect to be assigned to
either the new Ninth
Circuit or the Twelfth
Circuit. [sec. 307]
Seniority of
Based on
Same as bill to
Same as bills
Same as bills
Same as bills to
Same as bills to
Same as bills to
Judges
commissioning in
left [sec. 9]
to left [sec. 10]
to left [sec. 9]
left [sec. 4]
left [sec. 9]
left [sec. 9]
current Ninth Circuit
[sec. 308]

CRS-35
H.R. 3125
H.R. 211
H.R. 212
H.R. 4093a
S. 1845
S. 1296
last major
last major
last major
S. 1301
last major action:
last major
last major
action:
action:
action:
last major
02/08/2006
action:
action:
06/29/2005
03/02/2005
03/02/2005
action:
(reported and placed
10/26/2005
10/26/2005
(referral to
(referral to
(referral to
10/26/2005
Provision
on Union Calendar)
(hearings)
(hearings)
committee)
committee)
committee)
(hearings)
Judicial
First 2 vacancies in
Same as bill to
Same as bills
Same as bills
Same as bills to
Same as bills to
Same as bills to
Vacancies
Ninth Circuit circuit
left [sec. 4]
to left [sec. 4]
to left [sec. 4]
left [sec. 3]
left [sec. 4]
left [sec. 4]
judgeships occurring 10
or more years after
appointment of
temporary judgeships
noted above shall not
be filled [sec. 102]
Temporary
Allows the Chief Judge
Same as bill to
Same as bills
Same as bills
Same as bills to
Same as bills to
Same as bills to
Assignment of
of the Ninth or Twelfth
left [sec. 12]
to left [sec. 12]
to left [sec. 11]
left, except
left [sec. 11]
left, except
Circuit Judges
Circuits, by request
applicable to
applicable to
from the other Chief
Ninth, Twelfth,
Ninth, Twelfth,
Judge, to temporarily
and Thirteenth
and Thirteenth
assign circuit judges to
Circuits [sec. 4]
Circuits [sec. 11]
either circuit [sec. 310]

CRS-36
H.R. 3125
H.R. 211
H.R. 212
H.R. 4093a
S. 1845
S. 1296
last major
last major
last major
S. 1301
last major action:
last major
last major
action:
action:
action:
last major
02/08/2006
action:
action:
06/29/2005
03/02/2005
03/02/2005
action:
(reported and placed
10/26/2005
10/26/2005
(referral to
(referral to
(referral to
10/26/2005
Provision
on Union Calendar)
(hearings)
(hearings)
committee)
committee)
committee)
(hearings)
Temporary
1. Allows the Chief
Same as bill to
Same as bills
Same as bills
Same as bills to
Same as bills to
Same as bills to
Assignment of
Judge of the Ninth or
left [sec. 13]
to left [sec. 13]
to left [sec. 12]
left, except
left [sec. 11]
left, except
District Judges
Twelfth circuits, by
applicable to
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. 311]

CRS-37
H.R. 3125
H.R. 211
H.R. 212
H.R. 4093a
S. 1845
S. 1296
last major
last major
last major
S. 1301
last major action:
last major
last major
action:
action:
action:
last major
02/08/2006
action:
action:
06/29/2005
03/02/2005
03/02/2005
action:
(reported and placed
10/26/2005
10/26/2005
(referral to
(referral to
(referral to
10/26/2005
Provision
on Union Calendar)
(hearings)
(hearings)
committee)
committee)
committee)
(hearings)
Application to
1. If a matter has been
Same as bill to
Same as bills
1. Same as
1. Same as bills
1. Same as bills
1. Same as bills
Cases
submitted for a decision
left [sec. 11]
to left [sec. 11]
bills to left
to left
to left
to left
(continued on
in the current Ninth
next page)
Circuit, further
2. Same as
2. Same as bills
2. Same as bills
2. Same as bills
proceedings will occur
bills to left
to left.
to left
to left
in Ninth Circuit, except
[sec. 10]
in cases of pending en
banc
hearings (see item
3).
2. If a matter has not
been submitted for a
decision, the appeal or
proceeding, with
appropriate
documentation, will be
forwarded to the court
in which the matter
would have been
submitted if the act had
been in effect.

CRS-38
H.R. 3125
H.R. 211
H.R. 212
H.R. 4093a
S. 1845
S. 1296
last major
last major
last major
S. 1301
last major action:
last major
last major
action:
action:
action:
last major
02/08/2006
action:
action:
06/29/2005
03/02/2005
03/02/2005
action:
(reported and placed
10/26/2005
10/26/2005
(referral to
(referral to
(referral to
10/26/2005
Provision
on Union Calendar)
(hearings)
(hearings)
committee)
committee)
committee)
(hearings)
Application to
3. If a petition for
Same as bill to
Same as bills
3. A petition
3. Same as H.R.
3. Same as H.R.
3.Same as H.R.
Cases
rehearing en banc is
left [sec. 11]
to left [sec. 11]
for rehearing
3125
3125, H.R. 211
3125, H.R. 211,
(continued from
pending on or after the
or rehearing en
[sec. 4]
[sec. 10]
H.R. 212
previous page)
effective date of the act,
banc submitted
[sec. 10]
the petition will be
or decided
considered by the court
before the
of appeals to which it
effective date
would have been
of the act shall
submitted if the act had
be treated in
been in effect at the
the same
time the appeal or
manner as
proceeding was filed.
though the act
[sec. 309]
had not been
enacted. If a
petition for
rehearing en
banc
is
granted, the
matter shall be
reheard by a
court
comprised as
though the act
had not been
enacted.
[sec. 10]

CRS-39
H.R. 3125
H.R. 211
H.R. 212
H.R. 4093a
S. 1845
S. 1296
last major
last major
last major
S. 1301
last major action:
last major
last major
action:
action:
action:
last major
02/08/2006
action:
action:
06/29/2005
03/02/2005
03/02/2005
action:
(reported and placed
10/26/2005
10/26/2005
(referral to
(referral to
(referral to
10/26/2005
Provision
on Union Calendar)
(hearings)
(hearings)
committee)
committee)
committee)
(hearings)
Administration
1. The Court of Appeals
Same as bill to
Same as bills
Same as bills
Same as H.R.
Same as
Same as
for the current Ninth
left
to left
to left
3125
H.R. 211,
H.R. 211, H.R.
Circuit may take
[sec. 14]
[sec. 14]
[sec. 14]
[sec. 4]
H.R. 212, and
212, and H.R.
administrative action to
H.R. 3125
3125
carry out the provisions
and
[secs. 13, 14]
[secs. 13, 14]
of the act.
Any two
2. For administrative
circuits may
purposes, the current
jointly carry
Ninth Circuit ceases to
out admin.
exist two years after
functions the
date of enactment of the
judicial
act reorganizing the
councils of the
Ninth Circuit.
two circuits
[sec. 312]
believe would
be beneficial.
[sec. 13]
Effective Date
No later than Dec. 31,
12 months after
Same as
On the first
Same as H.R.
Same as H.R.
On the first Oct.
2006; see also, item 2
the date of
S. 1845
day of the first
3125
211, H.R. 3125
1 occurring on or
under “Administration”
enactment
[sec. 15]
fiscal year that
[sec. 6]
[sec. 15]
after nine months
above. [sec. 313]
[sec. 16]
begins at least
after the date on
nine months
which all five
after five of the
judges described
judges
in item 1 above
authorized in
under
the act [sec. 4]
“Authorized
have been
Judgeships” have
confirmed by
been confirmed
the Senate
by the Senate
[sec. 15]
[sec. 15]

CRS-40
H.R. 3125
H.R. 211
H.R. 212
H.R. 4093a
S. 1845
S. 1296
last major
last major
last major
S. 1301
last major action:
last major
last major
action:
action:
action:
last major
02/08/2006
action:
action:
06/29/2005
03/02/2005
03/02/2005
action:
(reported and placed
10/26/2005
10/26/2005
(referral to
(referral to
(referral to
10/26/2005
Provision
on Union Calendar)
(hearings)
(hearings)
committee)
committee)
committee)
(hearings)
Authorization of
“[S]uch sums as are
Not addressed
Not addressed
Not addressed
Not addressed
Necessary sums
Not addressed
Appropriations
necessary” to carry out
are authorized
the act, including for
to be
space and facilities, are
appropriated to
authorized to be
carry out the
appropriated for
act, including
FY2006-FY2009.
for additional
[sec. 401]
court facilities.
[sec. 16]
Source: CRS comparison of bill texts.
Note: Provisions in these bills not related to splitting the Ninth Circuit are excluded, unless otherwise noted.
a. This table relies on the version of H.R. 4093 reported from the House Judiciary Committee on Feb. 8, 2006, which is slightly different from the version of the bill originally
introduced. The language on Ninth Circuit reorganization is substantially similar in both versions of the bill, although some language appears in different sections of the two
bills.