A Primer on the Jurisdiction of the U.S. Courts of Appeals provides an introduction to the complexity and nuance in the subject-matter jurisdiction of the U.S. Courts of Appeals. The monograph examines procedural issues related to the exercise of appellate jurisdiction in appeals from final judgments and interlocutory appeals. Coverage includes civil and criminal appeals, extraordinary writs, and federal administrative agency reviews.

This edition contains new sections on the future of the Courts of Appeals, judicial rulemaking, non-party appeals in criminal matters, and an updated bibliography. Research for the second edition is current through the end of the Supreme Court Term 2007-2008, and includes appellate case law through October 2008.

Purpose of This Primer

The organization is topical in seven chapters, followed by an annotated bibliography. Chapter 1 provides some introduction, background, and overview. Chapter 2 covers procedures related to the exercise of subjectmatter jurisdiction. Civil appeals are discussed in two chapters: Chapter 3 deals with appeals from final judgments, and Chapter 4 deals with interlocutory appeals. Extraordinary writs are covered in Chapter 5. Criminal appeals are the subject of Chapter 6. Chapter 7 summarizes the review of federal administrative agencies.

That this is not a full-length treatise should not be lost on the reader. A complete, thorough, and self-contained work on this subject necessarily would be several times longer with many more digressions. Each of the two leading multivolume treatises takes up several feet of library shelf space, and scores of supplements are added annually.

Discussion here is meant to be introductory. As a research tool this effort is derivative, as well. The reader is directed to primary and secondary treatments of each topic by selective footnote references. The annotated bibliography surveys the literature more widely.

Finally, the reader should bear in mind that this primer is meant as a supplement, not a substitute, for the jurisdictional outlines and guides that the various courts of appeals have prepared for the benefit of their new judges. Likewise, over the years the Federal Judicial Center has published numerous studies and reports on particular topics relevant to the courts of appeals, and many of these reports are downloadable at the Center’s website.

Download A Primer on the Jurisdiction of the U.S. Courts of Appeals, Second Edition

PDF format, 674KB, 120Pages.

Thomas E. Baker
Florida International University
College of Law
Federal Judicial Center 2009

Future of the Courts of Appeals
Toward the end of the last century, futures studies and long-range planning were the rage among court administrators and judges, including the administrators and judges of the federal appellate courts. There were more than a dozen such undertakings: studies, committees, commissions, and reports that contemplated the future of the federal appellate courts in terms of their jurisdiction, structure, and organization. Of these reform studies, four deserve brief mention here.

First, in 1990, the Federal Courts Study Committee issued its report. This statutorily created committee included representatives of the three branches of the federal government, state government officials, practitioners, and academics. The report concluded that the federal appellate courts were faced with a “crisis of volume” that it predicted would worsen, requiring “fundamental change.” Rather than endorse any one proposal, however, the report described various possible restructurings and urged further study.

Next, an important “further study” was released in 1993: In response to a congressional request, the Federal Judicial Center published a report to the Congress and the Judicial Conference titled Structural and Other Alternatives for the Federal Courts of Appeals.

The report elaborately detailed the pros and cons of various futuristic reforms: total or partial consolidation of the circuits; subdividing and increasing the number of circuits; multiple appellate tiers; discretionary appeals; differentiated case management; district court error review; overall jurisdiction reduction; and miscellaneous other nonjurisdictional options. Significantly, the report rejected the need for any radical change in the organization and structure of the federal appellate courts in the foreseeable future.

Third, the Judicial Conference formally approved a Long Range Plan for the Federal Courts in 1995. The portion of the Long Range Plan that focused on the courts of appeals imagined alternative future appellate scenarios, including some rather Malthusian docket scenarios, but concluded with a note of skepticism about future appellate reforms: Each court of appeals should comprise a number of judges sufficient to maintain access to and excellence of federal appellate justice.

Circuit restructuring should occur only if compelling empirical evidence demonstrates adjudicative or administrative dysfunction in a court so that it cannot continue to deliver quality justice and coherent, consistent circuit law in the face of increasing workload.

Thus, once again, the insider-expert group concluded that the familiar, present organization and structure of the federal appellate courts was preferable over the uncertain, radical reform proposals for the future. Fourth, the Commission on Structural Alternatives for the Federal Courts of Appeals issued its Final Report to the President and the Congress in 1998.

Popularly known as the “White Commission,” named after its chair, Justice Byron White, the Commission was charged by Congress to make recommendations about the courts of appeals generally and about the Ninth Circuit in particular. The White Commission rejected various proposals for dividing the Ninth Circuit, proposals that had been debated over the years. Instead, the Commission proposed a novel reform that reconceptualized the court of appeals as being separate and distinct from the circuit, so that the courts of appeals could be reorganized while maintaining the existing circuits. As the inevitability of more and more appeals resulted in the appointment of more and more circuit judges, the larger courts of appeals would be authorized to organize themselves into “regional divisions.”

The more authorized judgeships on a court of appeals, the more divisions it could create to further accommodate the growing docket. From the decision of the district court, there would be an appeal-as-of-right before a three-judge panel of a “regional division” followed by a petition for rehearing to the “divisional en banc court.” If and only if the decision created a conflict with a decision of another regional division could there be a discretionary rehearing before the “circuit division” for conflict resolution. Otherwise, the next appellate procedure would be a petition for certiorari in the Supreme Court.

The Commission proposed an eight-year experiment with regional divisions in the Ninth Circuit. Bills were drafted for congressional consideration, but they were ignored amid the decades-long impasse among members of Congress and Ninth Circuit judges over dividing that court of appeals.

Several relevant generalizations are suggested by even this brief account of these studies and reports. The basic structure of the Evarts Act has proven remarkably resilient and remains intact today, over one hundred years after its enactment. The three-judge panel still today is the engine that runs the courts of appeals. Beginning in the 1960s and continuing into the 1990s, however, docket growth had significant effects on the courts of appeals. Congress added judgeships, but not nearly enough to keep pace with new appellate filings; after a period of rapid increases, the creation of new judgeships slowed.

Appellate resources were added to the system in the guise of additional law clerks and staff attorneys, and with broadened responsibilities and duties. Judicial resources were more effectively managed by various procedural reforms in differentiated appellate processes, such as screening some appeals to a nonargument calendar and relying on unpublished opinions or omitting opinions altogether for some appeals. Alternate dispute resolution programs were instituted for appeals.

The advent of new technologies, such as the personal computer, Westlaw, Lexis-Nexis, the internet, e-mail, videoconferencing, and software programs for court administration also contributed greater interconnectivity to increase judicial productivity.

During this period, Congress resisted the urgings of academics who called for dramatic, even radical, jurisdictional and structural appellate reform. Instead, the judges sought to streamline and modernize appellate procedures in order to preserve the essential federal appellate tradition. Judges, lawyers, and court experts have adjusted to the new appellate procedural paradigm, and this period of equipoise is likely to continue.

Indeed, no one is currently agitating for radical reform. Thus, it appears that the subject-matter jurisdiction of the courts of appeals, as described in this primer, will have lasting explanatory power for the foreseeable future.

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