DISTRICT COURT JUDGESHIPS

In its last report the subcommittee noted that the Judicial Conference of the United States would formally transmit to the 93d Congress its recommendation for the creation of 51 new judgeships in 33 separate judicial districts, plus a request that a temporary judgeship in one district be made a permanent judgeship. This request was transmitted in January 1973 and was embodied in S. 597 which was promptly introduced. Subsequently, individual bills were introduced proposing the creation of one additional judgeship in each of nine additional judicial districts. On January 23, 1973, the subcommittee commenced a series of comprehensive hearings on these bills which extended over a nine-week period, covering fifteen separate days of hearings. In addition to elaborate statistics prepared both by the Administrative Office of the United States Courts and by subcommittee staff, thorough inquiry was made concerning the workload of the judges of a particular district. Included among the matters of inquiry were the number of days spent on the bench, the use made of the U.S. Magistrates, the use made of various court procedures and techniques leading to the settlement of civil cases and to the dismissal or acceptance of guilty pleas in criminal cases. The hearings also concentrated on the amount of time spent by active judges of the particular district in holding court in other Judicial Districts.

The need to inquire thoroughly into the operation of the district court in each of the Judicial Districts under consideration seemed to be required by the fact that in recent years both the Congress and the Judiciary have recognized that the twin problems of congestion and delay in our federal courts could not be solved solely by an increase in the number of judges. This, in turn, was accompanied by an increased awareness of the fact that the processing of a large volume of cases requires improvements in our judicial machinery which will increase the efficiency of our judicial process. While the Congress has recently enacted improvements such as the creation of the U.S. Magistrates System and the creation of a Court Executive for each of the eleven judicial circuits, the extensive hearings on S. 597 and related bills led the subcommittee to the conclusion that the greatest improvement to be had was through increased efficiency by the judges themselves.

To this end, the subcommittee fashioned a standard by which to evaluate the workload (as distinguished from mere caseload) of the district court judges. This standard consisted of the following four criteria:

(1) Either raw or weighted case filing are 400 or more cases per judge, and;

(2) terminations are in excess of the national average of 358 per judge, and;

(3) the bench time averages 110 or more days per judge, and; (4) the district has made efficient use of existing judges, supporting personnel and procedural devices in order to cope with its existing workload.

Applying this standard to the requests for additional judgeships which were under consideration, the subcommittee on September 18, 1973, reported to the full committee the bill S. 597 which, as amended,

would create 27 new judgeships and convert an existing temporary judgeship to a permanent judgeship. At the conclusion of the first session of the 93d Congress, this bill was still pending for consideration by the full committee.

U.S. COURTS OF APPEAL

In the 92d Congress, this subcommittee initiated legislation which led to the creation of the Commission on Revision of the Federal Court Appellate System. (Public Law 92-489). The measure created a 16 member Commission composed of persons appointed by the Presi dent, the Chief Justice, the Speaker of the House, and the President Pro Tempore of the Senate. The duties of the Commission are:

(a) to study the present division of the United States into the several judicial circuits and to report to the President, the Congress, and the Chief Justice its recommendations for changes in the geographical boundaries of the circuits as may be appropriate for the expeditious and effective disposition of judicial business.

(b) to study the structure and internal procedures of the Federal courts of appeal system, and to report to the President, the Congress, and the Chief Justice its recommendations for such additional changes in structure or internal procedure as may be appropriate for the expeditious and effective disposition of the caseload of the Federal courts of appeal, consistent with fundamental concepts of fairness and due process.

The report on part (a) was to be filed within six months and the report on part (b) within 15 months. On June 21, 1973, the Revision Commission, under the Chairmanship of Senator Hruska, was formally constituted. In addition to its formal meetings, the Commission held ten public hearings in Washington, D.C., and in various principal cities in the Fifth and Ninth Circuits. Testimony was received from members of the bench, bar, attorneys, law professors and various public, civic and professional organizations.

On December 18, 1973, the Revision Commission transmitted its report on changes in the geographical boundaries of the circuits and stated in part:

The Commission has held hearings in ten cities; a preliminary report was widely circulated. The Commission has received ideas and opinions on the alignment of the circuits from the bench and bar in every section of the nation. We have concluded that the creation of two new circuits is essential to afford immediate relief to the Fifth and Ninth Circuits. We have not recommended a general realignment of all the circuits. To be sure, the present boundaries are largely the result of historical accident and do not satisfy such criteria as parity of caseloads and geographical compactness. But these boundaries have stood since the nineteenth century, except for the creation of the Tenth Circuit in 1929, and whatever the actual extent of variation in the law from cir

cuit to circuit, relocation would take from the bench and bar at least some of the law now familiar to them. Moreover, the Commission has heard eloquent testimony evidencing the sense of community shared by lawyers and judges within the present circuits. Except for the most compelling reasons, we are reluctant to disturb institutions which have acquired not only the respect but also the loyalty of their constituents.

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The Commission harbors no illusions that realignment is a sufficient remedy, adequate even for a generation, to deal with the fundamental problems now confronting the Courts of Appeals. These problems are unlikely to be solved by realignment alone without destroying or impairing some of the most valuable qualities of the federal court appellate system. It is our opinion, however, that realignment is a necessary first step in the Fifth and Ninth Circuits, not only to afford relief to the pressing problems of the present, but also to provide a firm base on which to build more enduring reforms.

Our view that realignment of the Fifth and Ninth Circuits is a necessary initial measure is shared by the American Bar Association's Special Committee on Coordination of Judicial Improvements. The American Bar Association itself, acting upon the report of that committee, has expressed its recognition of the "urgent need" for realignment of the Fifth and Ninth Circuits and its support for such a change.

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We are not all of one mind on all issues, but we share the conviction that the situation in the Fifth and Ninth Circuits should not be allowed to continue. Work on the second phase of our assignment has already begun. We emphasize once again, however, that, whatever may emerge from that effort or from changes by the Congress or by the courts themselves which can now be envisioned, litigants in the Fifth and Ninth Circuits are entitled to that immediate and significant relief which our proposals would provide.

Creation of the new courts must be accompanied by authorization of judgeships sufficient to deal effectively with the volume of judicial business which litigants will bring before them. Accordingly, we recommend that the Congress, concurrently with realignment, create new judgeships adequate to man each of the courts affected by such legislation.

With respect to the Fifth Circuit, the Revision Commission recommended that the States of Texas, Louisiana and Mississippi and the Canal Zone be grouped in a new Eleventh Circuit. The States of Florida, Georgia and Alabama would comprise a revised Fifth Circuit. The Commission report also contained two alternative recommendations for realignment of the Fifth Circuit. Under Alternative No. 1 the State of Arkansas would be added to Texas, Louisiana, and the Canal Zone to form a new circuit; and Florida, Georgia, Alabama and Mississippi would comprise the revised Fifth Circuit. Under Alternative No. 2 the alignment would be the same as under the first

S. Rept. 93-991

alternative but Arkansas would remain in the Eighth Circuit. The essential difference between Alternative Nos. 1 and 2 is that Arkansas would be included in order to avoid a circuit comprised of only two

states.

With respect to the Ninth Circuit, the Revision Commission recommended that the States of Arizona, Nevada, and the Southern and Central Judicial Districts of California be grouped in a new Twelfth Circuit. This would leave the States of Alaska, Washington, Oregon, Idaho, Montana, Hawaii, Guam and the Northern and Eastern Judicial Districts of California in a revised Ninth Circuit. In explaining that part of its recommendation which calls for the four judicial districts in California to be divided into different circuits, the Commission stated:

The crucial fact is that California today already provides two-thirds of the judicial business of the Ninth Circuit. To keep it intact, and to join it in a circuit with other states, would make it impossible to provide adequate relief for the problems of the circuit.

Further details of the Commission's recommendations, the number of appeals generated in each of the states involved, and the rationale behind its several recommendations are more fully contained in its report of December 18, 1973, entitled "The Geographical Boundaries of the Several Judicial Circuits: Recommendations for Change."

During the second session of the 93d Congress, the subcommittee proposes to study the Commission's recommendations and to hold hearings on the various proposals affecting the Fifth and Ninth Circuits.

REVISION OF FEDERAL JURISDICTION

The steady increase in volume of cases in the U.S. district courts for the past ten years, combined with continuing disputes over cases within the jurisdiction of those courts, has prompted consideration by the legal profession of the rationale for the division of jurisdiction between Federal and State courts. In 1969, the American Law Institute published the results of a 10-year study. The conclusions of the ALI study were presented in the form of a proposed revision of those sections of title 28 of the United States Code that now delineate the jurisdiction of the district courts in six major areas: (1) diversity jurisdiction; (2) Federal question jurisdiction; (3) United States as a party; (4) jurisdiction of three-judge courts; (5) admiralty and maritime jurisdiction; and (6) multiparty-multistate diversity.

The ALI proposal was introduced by Senator Burdick as S. 1876. and during the 92d Congress, the subcommittee held extensive hearings on the bill. Ten days of hearings were held and 21 witnesses were heard on each of the major provisions of the bill.

Taking into account many of the suggestions made in the hearings, Senator Burdick introduced a revised version of the Jurisdiction Act. S. 1876 (93d Cong.). Copies of the new bill were sent to State bar associations, the American Bar Association, the Maritime Law Association, and many other interested groups, for comment. Several bar associations subsequently submitted their views regarding the bill, and many others are still studying the revised bill. No hearings were held