The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is a federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts:
Additionally, it sometimes handles appeals that originate from American Samoa, which has no district court and partially relies on the District of Hawaii for its federal cases.[1]
Headquartered in San Francisco, California, the Ninth Circuit is by far the largest of the thirteen courts of appeals, covering a total of 9 states and 2 territories and with 29 active judgeships. The court's regular meeting places are Seattle at the William Kenzo Nakamura United States Courthouse, Portland at the Pioneer Courthouse, San Francisco at the James R. Browning U.S. Court of Appeals Building, and Pasadena at the Richard H. Chambers U.S. Court of Appeals.
Panels of the court occasionally travel to hear cases in other locations within the circuit. Although the judges travel around the circuit, the court arranges its hearings so that cases from the northern region of the circuit are heard in Seattle or Portland, cases from southern California and Arizona are heard in Pasadena, and cases from northern California, Nevada, Hawaii, and the Pacific territories are heard in San Francisco. Additionally, the court holds yearly sittings in Anchorage and Honolulu. For lawyers who must come and present their cases to the court in person, this administrative grouping of cases helps to reduce the time and cost of travel. Ninth Circuit judges are also appointed by the United States Secretary of the Interior to serve as temporary acting Associate Justices for non-federal appellate sessions at the High Court of American Samoa in Fagatogo.[1]
The Ninth Circuit's large size is due to the dramatic increases in both the population of the western states and the court's geographic jurisdiction that have occurred since the U.S. Congress created the Ninth Circuit in 1891.[2] The court was originally granted appellate jurisdiction over federal district courts in California, Idaho, Montana, Nevada, Oregon, and Washington. As new states and territories were added to the federal judicial hierarchy in the twentieth century, many of those in the West were placed in the Ninth Circuit: the newly acquired Territory of Hawaii in 1900, Arizona upon its admission to the Union in 1912, the Territory of Alaska in 1948, Guam in 1951, and the Commonwealth of the Northern Mariana Islands in 1977.
The Ninth Circuit also had jurisdiction over certain American interests in China, in that it had jurisdiction over appeals from the United States Court for China during the existence of that court from 1906 through 1943.[3][fn 1]
However, the Philippines was never under the Ninth Circuit's jurisdiction. Congress never created a federal district court in the Philippines from which the Ninth Circuit could hear appeals. Instead, appeals from the Supreme Court of the Philippines were taken directly to the Supreme Court of the United States.[4]
In 1979, the Ninth Circuit became the first federal judicial circuit to set up a Bankruptcy Appellate Panel as authorized by the Bankruptcy Reform Act of 1978.
The cultural and political jurisdiction of the Ninth Circuit is just as varied as the land within its geographical borders. In a dissenting opinion in a rights of publicity case involving the Wheel of Fortune star Vanna White, Circuit Judge Alex Kozinski sardonically noted that "[f]or better or worse, we are the Court of Appeals for the Hollywood Circuit."[5] Judges from more remote parts of the circuit note the contrast between legal issues confronted by populous states such as California and those confronted by rural states such as Alaska, Idaho, Montana, and Nevada.
Judge Andrew J. Kleinfeld, who maintains his judicial chambers in Fairbanks, Alaska, wrote in a letter in 1998: "Much federal law is not national in scope....It is easy to make a mistake construing these laws when unfamiliar with them, as we often are, or not interpreting them regularly, as we never do."[6]
Rate of overturned decisions
From 1999 to 2008, of the Ninth Circuit Court rulings that were reviewed by the Supreme Court, 20% were affirmed, 19% were vacated, and 61% were reversed; the median reversal rate for all federal appellate courts was 68.29% for the same period.[7] From 2010 to 2015, of the cases it accepted to review, the Supreme Court reversed around 79% of the cases from the Ninth Circuit, ranking its reversal rate third among the circuits; the median reversal rate for all federal circuits for the same time period was around 70 percent.[8]
Some argue the court's high percentage of reversals is illusory, resulting from the circuit hearing more cases than the other circuits. This results in the Supreme Court reviewing a smaller proportion of its cases, letting stand the vast majority of its cases.[9][10]
However, a detailed study in 2018 reported by Brian T. Fitzpatrick, a law professor at Vanderbilt University, looked at how often a federal circuit court was reversed for every thousand cases it terminated on the merits between 1994 and 2015.[11] The study found that the Ninth Circuit's decisions were reversed at a rate of 2.50 cases per thousand, which was by far the highest rate in the country, with the Sixth Circuit second as 1.73 cases per thousand.[12][11] Fitzgerald also noted that the 9th Circuit was unanimously reversed more than three times as often as the least reversed circuits and over 20% more often than the next closest circuit.[11]
Size of the court
Many commentators have argued that the Ninth Circuit faces several adverse consequences of its large size,[13] such as "unwieldly size, procedural inefficiencies, jurisprudential unpredictability, and unusual en banc process."[14]
Chief among these is the Ninth Circuit's unique rules concerning the composition of an en banc court. In other circuits, en banc courts are composed of all active circuit judges, plus (depending on the rules of the particular court) any senior judges who took part in the original panel decision. By contrast, in the Ninth Circuit it is impractical for 29 or more judges to take part in a single oral argument and deliberate on a decision en masse. The court thus provides for a limited en banc review by the Chief Judge and a panel of 10 randomly selected judges.[15] This means that en banc reviews may not actually reflect the views of the majority of the court and indeed may not include any of the three judges involved in the decision being reviewed in the first place. The result, according to detractors, is a high risk of intracircuit conflicts of law where different groupings of judges end up delivering contradictory opinions. That is said to cause uncertainty in the district courts and within the bar. However, en banc review is a relatively rare occurrence in all circuits and Ninth Circuit rules provide for full en banc review in limited circumstances.[16]
All recently proposed splits would leave at least one circuit with 21 judges, only two fewer than the 23 that the Ninth Circuit had when the limited en banc procedure was first adopted. In other words, after a split at least one of the circuits would still be using limited en banc courts.[17]
In March 2007, Associate Justices Anthony Kennedy and Clarence Thomas testified before a House Appropriations subcommittee that the consensus among the justices of the Supreme Court of the United States was that the Ninth Circuit was too large and unwieldy and should be split.[18]
Congressional officials, legislative commissions, and interest groups have all submitted proposals to divide the Ninth Circuit such as:
Ninth Circuit Court of Appeals Reorganization Act of 1993, H.R. 3654[19]
Final Report of the Commission on Structural Alternatives for the Federal Courts of Appeals[20]
Ninth Circuit Court of Appeals of Reorganization Act of 2003, S. 562
Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 2003, H.R. 2723
Ninth Circuit Judgeship and Reorganization Act of 2004, S. 878 (reintroduced as the Ninth Circuit Judgeship and Reorganization Act of 2005, H.R. 211, and co-sponsored by House Majority Leader Tom DeLay)
Circuit Court of Appeals Restructuring and Modernization Act of 2005, S. 1845[21]
Circuit Court of Appeals Restructuring and Modernization Act of 2007, S. 525[22]
Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 2017, H.R. 196[23]
The more recent proposals have aimed to redefine the Ninth Circuit to cover California, Hawaii, Guam, and the Northern Mariana Islands, and to create a new Twelfth Circuit to cover Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington.
Chief judges have administrative responsibilities with respect to their circuits, and preside over any panel on which they serve unless the circuit justice (i.e., the Supreme Court justice responsible for the circuit) is also on the panel. Unlike the Supreme Court, where one justice is specifically nominated to be chief, the office of chief judge rotates among the circuit judges. To be chief, a judge must have been in active service on the court for at least one year, be under the age of 65, and have not previously served as chief judge. A vacancy is filled by the judge highest in seniority among the group of qualified judges. The chief judge serves for a term of seven years or until age 70, whichever occurs first. The age restrictions are waived if no members of the court would otherwise be qualified for the position.
When the office was created in 1948, the chief judge was the longest-serving judge who had not elected to retire on what has since 1958 been known as senior status or declined to serve as chief judge. After August 6, 1959, judges could not become or remain chief after turning 70 years old. The current rules have been in operation since October 1, 1982.
Succession of seats
The court has 29 seats for active judges, numbered in the order in which they were initially filled. Judges who assume senior status enter a kind of retirement in which they remain on the bench, while vacating their seats, thus allowing the U.S. President to appoint new judges to fill their seats.
Seat 1
Established on December 10, 1869, by the Judiciary Act of 1869 as a circuit judgeship for the Ninth Circuit
Reassigned to the United States Circuit Court of Appeals for the Ninth Circuit by the Judiciary Act of 1891
Sawyer
CA
1891–1891
McKenna
CA
1892–1897
Morrow
CA
1897–1923
Rudkin
WA
1923–1931
Garrecht
WA
1933–1948
Pope
MT
1949–1961
Browning
MT
1961–2000
Ikuta
CA
2006–present
Seat 2
Established on June 16, 1891, by the Judiciary Act of 1891
Gilbert
OR
1892–1931
Denman
CA
1935–1957
Hamlin, Jr.
CA
1958–1963
Ely, Jr.
CA
1964–1979
Norris
CA
1980–1994
W. Fletcher
CA
1998–2022
H. Thomas
CA
2022–present
Seat 3
Established on February 18, 1895, by 28Stat.665
Ross
CA
1895–1925
McCamant
OR
1925–1926
Dietrich
ID
1927–1930
Sawtelle
AZ
1931–1934
Mathews
AZ
1935–1953
Fee
OR
1954–1959
Koelsch
ID
1959–1976
Anderson
ID
1976–1988
T. Nelson
ID
1990–2003
N.R. Smith
ID
2007–2018
R. Nelson
ID
2018–present
Seat 4
Established as a temporary judgeship on March 1, 1929, by 45Stat.1414
Made permanent on June 16, 1933, by 48Stat.310
Wilbur
CA
1929–1945
Orr
NV
1945–1956
Barnes
CA
1956–1970
Choy
HI
1971–1984
Brunetti
NV
1985–1999
Rawlinson
NV
2000–present
Seat 5
Established on August 2, 1935, by 49Stat.508
Haney
OR
1935–1943
Bone
WA
1944–1956
Hamley
WA
1956–1971
Sneed
CA
1973–1987
Trott
CA/ID
1988–2004
Owens
CA
2014–present
Seat 6
Established on April 14, 1937, by 50Stat.64
Stephens
CA
1937–1961
Duniway
CA
1961–1976
Hug, Jr.
NV
1977–2002
Bybee
NV
2003–2019
VanDyke
NV
2020–present
Seat 7
Established on April 14, 1937, by 50Stat.64
Healy
ID
1937–1958
Merrill
NV
1959–1974
Kennedy
CA
1975–1988
Rymer
CA
1989–2011
Watford
CA
2012–present
Seat 8
Established on February 10, 1954, by 68Stat.871
Lemmon
CA
1954–1958
Jertberg
CA
1958–1967
Carter
CA
1967–1971
Wallace
CA
1972–1996
Wardlaw
CA
1998–present
Seat 9
Established on February 10, 1954, by 68Stat.871
Chambers
AZ
1954–1976
Tang
AZ
1977–1993
Hawkins
AZ
1994–2010
Murguia
AZ
2011–present
Seat 10
Established on June 18, 1968, by 82Stat.184
Hufstedler
CA
1968–1979
Boochever
AK
1980–1986
O'Scannlain
OR
1986–2016
Forrest
OR
2019–present
Seat 11
Established on June 18, 1968, by 82Stat.184
Wright
WA
1969–1983
Beezer
WA
1984–1996
Gould
WA
1999–present
Seat 12
Established on June 18, 1968, by 82Stat.184
Kilkenny
OR
1969–1971
Goodwin
OR
1971–1991
Kleinfeld
AK
1991–2010
Christen
AK
2011–present
Seat 13
Established on June 18, 1968, by 82Stat.184
Trask
AZ
1969–1979
Canby, Jr.
AZ
1980–1996
Silverman
AZ
1998–2016
Bade
AZ
2019–present
Seat 14
Established on October 20, 1978, by 92Stat.1629
B. Fletcher
WA
1979–1998
Tallman
WA
2000–2018
Miller
WA
2019–present
Seat 15
Established on October 20, 1978, by 92Stat.1629
Schroeder
AZ
1979–2011
Hurwitz
AZ
2012–2022
Desai
AZ
2022–present
Seat 16
Established on October 20, 1978, by 92Stat.1629
Skopil, Jr.
OR
1979–1986
Leavy
OR
1987–1997
Graber
OR
1998–2021
Sung
OR
2021–present
Seat 17
Established on October 20, 1978, by 92Stat.1629
Farris
WA
1979–1995
McKeown
WA/CA
1998–2022
Mendoza, Jr.
WA
2022–present
Seat 18
Established on October 20, 1978, by 92Stat.1629
Alarcón
CA
1979–1992
Tashima
CA
1996–2004
M.D. Smith
CA
2006–present
Seat 19
Established on October 20, 1978, by 92Stat.1629
Pregerson
CA
1979–2015
Collins
CA
2019–present
Seat 20
Established on October 20, 1978, by 92Stat.1629
Ferguson
CA
1979–1986
Fernandez
CA
1989–2002
Callahan
CA
2003–present
Seat 21
Established on October 20, 1978, by 92Stat.1629
Poole
CA
1979–1996
Paez
CA
2000–2021
Koh
CA
2021–present
Seat 22
Established on October 20, 1978, by 92Stat.1629
D. Nelson
CA
1979–1995
S. Thomas
MT
1996–present
Seat 23
Established on October 20, 1978, by 92Stat.1629
Reinhardt
CA
1980–2018
Lee
CA
2019–present
Seat 24
Established on July 10, 1984, by 98Stat.333
Hall
CA
1984–1997
Clifton
HI
2002–2016
Bennett
HI
2018–present
Seat 25
Established on July 10, 1984, by 98Stat.333
Wiggins
CA
1984–1996
Bea
CA
2003–2019
Bumatay
CA
2019–present
Seat 26
Established on July 10, 1984, by 98Stat.333
Kozinski
CA
1985–2017
Bress
CA
2019–present
Seat 27
Established on July 10, 1984, by 98Stat.333
Noonan, Jr.
CA
1985–1996
Berzon
CA
2000–2022
Sanchez
CA
2022–present
Seat 28
Established on July 10, 1984, by 98Stat.333
Thompson
CA
1985–1998
Fisher
CA
1999–2013
Friedland
CA
2014–present
Seat 29
Established on January 21, 2009, by 121Stat.2543[29]
Nguyen
CA
2012–present
See also
Courts of California
Ninth Circuit appointment history
List of current United States Circuit Judges
Same-sex marriage in the Ninth Circuit
Notes
The population of China is not included in the chart for 1912 or 1940, since the Court for China lacked plenary jurisdiction over China's domestic population, then numbering about 430 million people; the court exercised only extraterritorial jurisdiction over the relatively small number of American citizens in China.
References
https://www.gao.gov/products/GAO-08-1124T GAO (U.S. Government Accountability Office. AMERICAN SAMOA: Issues Associated with Some Federal Court Options. September 18, 2008. Retrieved September 7, 2019.
Frederick, David C. (1994). Rugged justice: the Ninth Circuit Court of Appeals and the American West, 1891–1941. University of California Press. ISBN9780520083813.
See, e.g., Republic of China v. Merchants' Fire Ass'n of N.Y., 49 F.2d 862 (9th Cir. 1931). As the court noted, this bizarre insurance claim dispute arose directly from the "perplexing" civil war during China's warlord era, in which various groups of military officers claimed to be the representatives of the Republic's legitimate government.
Farris, Jerome, The Ninth Circuit—Most Maligned Circuit in the Country Fact or Fiction? 58 Ohio St. L.J. 1465 (1997) (noting that, in 1996, the Supreme Court let stand 99.7 percent of the Ninth Circuit's cases).
Govtrack.us S. 525—110th Congress (2007): Circuit Court of Appeals Restructuring and Modernization Act of 2007 (database of federal legislation): govtrack.us; retrieved February 18, 2008.
Sawyer was appointed as a circuit judge for the Ninth Circuit in 1869 by Ulysses S. Grant. The Judiciary Act of 1891 reassigned his seat to what is now the U.S. Court of Appeals for the Ninth Circuit.
Hunt did not have a permanent seat on this court. Instead, he was appointed to the ill-fated United States Commerce Court in 1911 by William Howard Taft. Aside from their duties on the Commerce Court, the judges of the Commerce Court also acted as at-large appellate judges, able to be assigned by the Chief Justice of the United States to whichever circuit most needed help. Hunt was assigned to the Ninth Circuit upon his commission.
Recess appointment not confirmed
President Coolidge first nominated Wilbur for the judgeship in the final days of his presidency, but the Senate failed to act on it before the 70tb Congress ended on March 3, 1929. "Wilbur Nominated for Judge Post," Woodland Daily Democrat, March 1, 1929 at p. 1 (noting, as the Coolidge Administration ended, that Coolidge nominated Wilbur for the new judgeship); "Sentence Cut Out by Hoover," Oakland Tribune, 1929-03-04, Section D, p. 1 (noting that the Wilbur nomination was not acted upon before the 70th Congress ended). Hoover then resubmitted the nomination to the Senate in the 71st Congress, which approved it.
Court Security Improvement Act of 2007, Pub. L. 110–177 § 509(a)(2), 121 Stat. 2534, 2543, January 7, 2008
This website includes links to the court's published and unpublished opinions, court-specific rules of appellate procedure, and general operating procedures.
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