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1974/09/19 S3052 Commission on Revision of the Federal Court Appellate System
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1974/09/19 S3052 Commission on Revision of the Federal Court Appellate System
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The original documents are located in Box 7, folder "9/19/74 S3052 Commission on
Revision of the Federal Court Appellate System" of the White House Records Office:
Legislation Case Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Exact duplicates within this folder were not digitized.
Digitized from Box 7 of the White House Records Office Legislation Case Files at the Gerald R. Ford Presidential Library
APPROVED
ACTION
THE WHITE HOUSE
Last Day - September 28
SEP
WASHINGTON
September 19, 1974
MEMORANDUM FOR:
THE PRESIDENT
FROM:
KEN COLE
9/20
SUBJECT:
Enrolled Bill S. 3052
raphi
Attached is the Senate bill, S. 3052, Commission on Revision of the
Federal Court Appellate System, which extends in effect the date
for filing the final report of this Commission from September 21,
1974 to June 21, 1975, and increases the authorization for appro-
priation for the Commission from $270,000 to $606,000.
The Counsel's office, Bill Timmons, Justice, and OMB concur.
RECOMMENDATION
That you sign the attached bill.
FORD is LIBRARY
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
SEP 17 1974
MEMORANDUM FOR THE PRESIDENT
Subject: Enrolled Bill S. 3052 - Commission on Revision
of the Federal Court Appellate System
Sponsors - Sen. Hruska (R) Nebraska and three others
Last Day for Action
September 28, 1974 -- Because the final date for filing its
final report is September 21, 1974, the Commission has re-
quested that this bill be acted upon as soon as possible.
Purpose
Extends in effect the date for filing the final report of
this Commission from September 21, 1974 to June 21, 1975,
and increases the authorization for appropriation for the
Commission from $270,000 to $606,000.
Agency Recommendations
Office of Management and Budget
Approval
Department of Justice
Approval (informally)
Administrative Office of the
United States Courts
Approval (informally)
Discussion
The Commission on Revision of the Federal Court Appellate
System was established by Public Law 92-489 and was composed
of 4 Senators, 4 Representatives, 4 members appointed by the
President, and 4 members appointed by the Chief Justice. It
was assigned two major objectives:
(1) to study the geographical boundaries of the
several judicial circuits and make recommenda-
tions for change within 180 days.
GERALD FORD LIBRARY
2
(2) to study the structure and internal procedures of
the Federal Courts of Appeals system and prepare
recommendations for change. Under the terms of
the Act establishing the Commission, this report
was to be filed no later than September 21, 1974.
The first report on circuit realignment was filed in timely
fashion on December 18, 1973.
The Commission, however, voted to request a nine-month exten-
sion from September 21, 1974 to June 21, 1975 of the date for
filing of the second report. In this connection, the House
Committee on the Judiciary in its report on the bill,
commented:
"As a result of testimony received by the Com-
mission during its study in phase I and the
initial inquiry in phase II, the members of the
Commission determined that the problems of the
Federal Court Appellate System were SO great that
additional time and money were necessary to make
a meaningful study prior to submitting recommen-
dations. Specifically, the Commissioners felt,
after their experiences in phase I of the study,
that it would be preferable to have additional
time to circulate a preliminary report to elicit
throughtful responses from members of the bench
and bar about possible changes in the structure
and internal procedures of the Federal Court
Appellate System. In addition, phase I revealed
the importance of public hearings as a means of
obtaining information and suggested solutions.
In order for the Commission to hold such hearings
it will require additional time so that witnesses
may thoughtfully and adequately prepare their
testimony so as to focus clearly on the problems
of the Federal Appellate Court System."
When the Commission was first established, OMB and the Admin-
istrative Office of the United States Courts agreed that the
Commission had essentially judiciary-related responsibilities
and should be considered a Commission in the Judiciary branch.
Therefore, OMB does not review the budgetary requirements of
the Commission.
Welfred H. Rommel
Assistant Director for
Legislative Reference
Enclosures
THE WHITE HOUSE
WASHINGTON
Date 9-18-74
TO:
WARREN HENDRIKS
FROM:
WILLIAM TIMMONS ta
FOR YOUR INFORMATION
FOR YOUR COMMENTS
FOR APPROPRIATE HANDLING
OTHER
I am most anxious for S. 3052 to be
signed.
URGENT
September 16, 1974
MEMORANDUM FOR:
JERRY JONES
FROM:
WILLIAM E. TIMMONS
SUBJECT:
S. 3052
Subject legislation extends the life of the Commission
to study and revise Circuit Courts of Appeals and
authorizes appropriations in amount of $606, 000, I
gather the bill has cleared the Hill and is on the way
to the White House.
It is very important that this measure be quickly
staffed and signed into law so that money can be
included in the Supplemental Appropriations bill now
being considered in committee. Can you help?
CC: Stan Ebner
THE WHITE HOUSE
RUSH
ACTION MEMORANDUM
WASHINGTON
LOG NO.: 586
Date:
September 18, 1974
Time:
9:45 a. m.
FOR ACTION: Geoff Shepard
CC (for information): Warren K. Hendriks
Phil Buchen
Jerry Jones
Bill Timmons
Paul Theis
FROM THE STAFF SECRETARY
DUE: Date: Thursday, September 19, 1974
Time:
2:00 p.m.
SUBJECT: Enrolled Bill S. 3052 - Commission on Revision of the
Federal Court Appellate System
ACTION REQUESTED:
For Necessary Action
XX
For Your Recommendations
Prepare Agenda and Brief
Draft Reply
For Your Comments
Draft Remarks
REMARKS:
Please return to Kathy Tindle - West Wing
PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED.
If you have any questions or if you anticipate a
delay in submitting the required material, please
telephone the Staff Secretary immediately.
Warren K. Hendriks
For the President
THE WHITE HOUSE
RUSH
ACTION MEMORANDUM
WASHINGTON
LOG NO.: 586
Date:
September 18, 1974
Time:
9:45 a.m.
FOR ACTION: Geoff Shepard
cc (for information): Warren K. Hendriks
Phil Buchen
Jerry Jones
Bill Timmons
Paul Theis
FROM THE STAFF SECRETARY
DUE: Date: Thursday, September 19, 1974
Time:
2:00 p.m.
SUBJECT: Enrolled Bill S. 3052 - Commission on Revision of the
Federal Court Appellate System
ACTION REQUESTED:
XX
For Necessary Action
For Your Recommendations
Prepare Agenda and Brief
Draft Reply
For Your Comments
Draft Remarks
REMARKS:
Please return to Kathy Tindle - West Wing
No objection
w.c.
PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED.
If you have any questions or if you anticipate a
delay in submitting the required material, please
telephone the Staff Secretary immediately.
Warren K. Hendriks
For the President
THE WHITE HOUSE
RUSH
ACTION MEMORANDUM
WASHINGTON
LOG NO.: 586
Date: September 18, 1974
Time:
9:45 a. m.
FOR ACTION: Geoff Shepard
CC (for information): Warren K. Hendriks
Phil Buchen
Jerry Jones
Bill Timmons
Paul Theis
FROM THE STAFF SECRETARY
DUE: Date: Thursday, September 19, 1974
Time:
2:00 p. m.
SUBJECT: Enrolled Bill S. 3052 - Commission on Revision of the
Federal Court Appellate System
ACTION REQUESTED:
For Necessary Action
XX
For Your Recommendations
Prepare Agenda and Brief
Draft Reply
For Your Comments
Draft Remarks
REMARKS:
Please return to Kathy Tindle - West Wing
approve
PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED.
If you have any questions or if you anticipate a
delay in submitting the required material, please
telephone the Staff Secretary immediately.
Warren K. Hendriks
For the President
THE WHITE HOUSE
ACTION MEMORANDUM
WASHINGTON
LOG NO.: 586
Date: September 18, 1974
Time:
9:45 a.m.
FOR ACTION: Geoff Shepard
CC (for information): Warren K. Hendriks
Phil Buchen
Jerry Jones
Bill Timmons
Paul Theis
FROM THE STAFF SECRETARY
DUE: Date: Thursday, September 19, 1974
Time:
2:00 p.m.
SUBJECT: Enrolled Bill S. 3052 - Commission on Revision of the
Federal Court Appellate System
ACTION REQUESTED:
For Necessary Action
XX
For Your Recommendations
Prepare Agenda and Brief
Draft Reply
For Your Comments
Draft Remarks
REMARKS:
Please return to Kathy Tindle - West Wing
PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED.
If you have any questions or if you anticipate a
delay in submitting the required material, please
K. R. COLE, JR.
telephone the Staff Secretary immediately.
For the President
THE WHITE HOUSE
WASHINGTON
9/17/74
TO: WARREN HENDRIKS
RDL
Robert D. Linder
VEHIND OFFICE OREGON
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
DATE: 9-24-74
TO:
Bob Linder
FROM:
Wilf Rommel
Attached are the Justice and Adminis-
trative Office of the U.S. Courts
views letters on S. 3052. Please
have them included in the enrolled
bill file. Thanks.
OMB FORM 38
REV AUG 73
ASSISTANT ATTORNEY GENERAL
LEGISLATIVE AFFAIRS
Department of Justice
Washington, D.C. 20530
SEP 19 1974
Honorable Roy L. Ash
Director, Office of Management
and Budget
Washington, D. C. 20503
Dear Mr. Ash:
In compliance with your request, I have examined a
facsimile of the Enrolled Bill S. 3052, "To amend the Act
of October 13, 1972."
S. 3052 would extend the life of the Commission on
Revision of the Federal Court Appellate System nine months,
to June 1975, and would increase the maximum authorization
for the Commission from $270,000 to $606,000.
The work of the Commission is being done in two stages.
The first stage resulted in Commission recommendations last
December to redraw the boundaries of two of the judicial
circuits. The second stage involves a study and recommenda-
tions for additional changes in structure and internal proce-
dure "for the expeditious and effective disposition of the
caseload of the Federal courts of appeal, consistent with
fundamental concepts of fairness and due process."
In order to accomplish the purposes of the second
stage, the Commission is studying several complex areas of
procedure and will need additional time and staff in order
to conduct this study thoroughly.
Because of the importance of the study being conducted
by the Commission to the administration of justice, the
Department of Justice recommends Executive approval of this
bill.
W.Whokestran W. Vincent Rakestraw
Sincerely
Assistant Attorney General
RECEIVED
SEP 19 2 41 PM1974
MANAGEMENT&BUDGET
ADMINISTRATIVE OFFICE OF THE
UNITED STATES COURTS
SUPREME COURT BUILDING
WASHINGTON, D.C. 20544
ROWLAND F. KIRKS
DIRECTOR
September 17, 1974
WILLIAM E. FOLEY
DEPUTY DIRECTOR
Mr. W. H. Rommel
Assistant Director
for Legislative Reference
Office of Management and Budget
Washington, D. C.
Dear Mr. Rommel:
Reference is made to your enrolled bill request
concerning S. 3052 which would amend the act of October 13,
1972.
Although the Judicial Conference of the United
States did not specifically pass on the provisions of
S. 3052, the Conference did propose to the Congress the
concept of a commission on revision of the federal courts
appellate system. Accordingly Executive approval of
S. 3052 is recommended.
Sincerely,
William E. Foley
Deputy Director
4) $. FORD LIBRASS
RECEIVED
SEP 20 10 19 M1974
OFFICE OF
MANAGEMENT & BUDGET
Calendar No. 716
93D CONGRESS
SENATE
REPORT
2d Session
No. 93-742
COMMISSION ON REVISION OF THE FEDERAL
APPELLATE SYSTEM
MARCH 22, 1974.-Ordered to be printed
Mr. HRUSKA, from the Committee on the Judiciary,
submitted the following
REPORT
[To accompany S. 3052]
The Committee on the Judiciary, to which was referred the bill,
S. 3052, providing for an extension of the term of the Commission on
Revision of the Federal Court Appellate System, and for other pur-
poses, having considered the same, reports favorably thereon without
amendment and recommends that the bill pass.
PURPOSE
The purpose of the bill is to extend the final date for the report of
the Commission on Revision of the Federal Court Appellate System by
nine months and to increase its appropriation authorization from
$270,000 to $1,000,000.
BACKGROUND
The Commission on Revision of the Federal Court Appellate Sys-
tem, was established by Public Law 92-489 and assigned two major
objectives, each with its own timetable.
In Phase I, the Commission was to study the geographical bound-
aries of the several judicial circuits and make recommendations for
change. This phase of the work was to be completed within 180 days.
The report on circuit realignment was filed in timely fashion on De-
cember 18, 1973.
In Phase II, the Commission is to study " the structure and inter-
nal procedures of the Federal courts of appeal system
and prepare
recommendations for change in those broad areas as well. Under the
terms of the governing statute this second assignment is to be com-
pleted and a report filed no later than September 21, 1974. The pro-
posed legislation, S. 3052, would extend this final filing date to June 21,
1975.
99-010
2
3
The Commission is composed of four members from the Senate, Sen-
operations of the intermediate federal appellate courts. This inter-
ators Roman L. Hruska (Chairman), Quentin N. Burdick, Edward J.
Gurney, and John L. McClellan; four members from the House of Rep-
relationship was apparent from the opening of the first hearings held
resentatives, Congressman Jack Brooks, Walter Flowers, (vice Wil-
by the Commission. Changes in a structure were urged as an alterna-
liam L. Hungate), Edward Hutchinson, and Charles E. Wiggins; four
tive to the creation of new circuits; changes in internal procedures
members appointed by the President, Honorable Emanuel Celler,
already effected by courts unundated with appellate filings, were
Roger C. Cramton, Francis R. Kirkham, and Judge Alfred T. Sul-
sharply attacked and vigorously defended, all in the context of cir-
monetti; and four members appointed by the Chief Justice, Judge J.
cuit realignment.
Edward Lumbard, Judge Roger Robb, Bernard G. Segal and Profes-
The net effect of the process has been to make the Commission
sor-Herbert Wechsler (Vice Professor Charles Alan Wright).
keenly aware of the complexities of the issues with which it will be
The rationale for the extension of time and increase in the level of
obliged to grapple in phase two; of the diversity of points of view
expenditure sought by the proposed legislation is best understood in
among judges, scholars and practicing lawyers; and of the multiplicity
light of the problems currently besetting the Courts of Appeals and the
of alternatives already developed and remaining to be developed in
experience gained by the Commission during its first phase of activity.
order to assure the continued vitality of the intermediate appellate
courts. In short, the very substantial commitment of time and thought
Problems Faced by the Courts of Appeals
to problems of structure and procedure during the first six months
Congress established the Commission in response to a long-felt need.
served to demonstrate the need for adequate time to probe deeply,
Numerous judges and court observers have addressed themselves in
to explore carefully and thereafter to develop fully any recommen-
the past decade to the crisis which has been confronting the Courts of
dations which the Commission may choose to make before it can
Appeals. Many commentators have voiced the concern that an ever-
consider its task completed and its obligations discharged.
increasing load of cases, if unabated, will lead to a "breakdown" of
The experience of the first six months also yielded two important
these courts as we now know them.
lessons concerning procedures.
The statistics of the workload of the Courts of Appeals indicate that
First, the Commission circulated a preliminary report on realign-
during the period beginning at the turn of the last decade, these courts
ment, inviting comment, criticism and suggestions from the bench, the
have experienced an increase in caseloads unprecedented in magnitude.
bar and other interested citizens. Hundreds of responses were received
In fiscal year 1960, a total of 3,899 appeals were filed in all eleven cir-
and these figured in the deliberations of the Commission as it prepared
cuits; with 69 authorized judgeships, the average was 57 per judge-
the recommendations which were later submitted to the President, the
ship. In 1973 the filings had soared to 15,629; with 97 authorized
Congress and the Chief Justice. The number of responses and the rea-
judgeships, the average per judgeship was 161, almost 161, almost three
soned quality of the comments were gratifying. Understandably, the
times the figure for 1960. The filings themselves increased 301 percent
Commission would like to follow the same procedure with respect to
during the same period, compared with an increase of only 58 percent
its report on the second phase of its assignment, but with one im-
in district court cases.
portant difference. In circulating its preliminary report on realign-
The floodtide of appellate filings has given rise to changes in inter-
ment, the Commission allowed very little time for response, a proce-
nal procedures. The privilege to argue orally has been drastically cur-
dure necessitated by the Congressionally-imposed deadline on the
tailed. In one circuit, oral argument is denied in a majority of the cases
filing of the Commission's report. Such stringency with respect to the
which come before it. Traditional patterns of opinion writing have
second report could not help but be counterproductive. Compared to
also changed radically, with the briefest notation of the action of the
the subtleties and complexities invovled in structure and internal
court made to suffice in large numbers of cases. Many of these changes
procedures, realignment appears relatively simple.
may be desirable, worthy of emulation in their present form. Some
New proposals with respect to specialized courts, devices for resolv-
may contain the germ of good ideas which need refinement if they are
ing inter-circuit conflicts, national panels mechanisms for assuring the
to be retained. Others may be no more than responses of the mo-
finality of criminal convictions, both state and federal-all of these
ment, designed to avoid intolerable backlogs, but generating concern
require thoughtful consideration.
in their implementation. Without passing judgment on any of them,
Moreover, there is a particular need to consider carefully the po-
suffice it to say that they present questions which merit careful study.
tential effects of any proposal for change. This is difficult enough with
They have commanded the attention of the legal community which has
respect to effects which are foreseen; only the widest possible exposure
focused its interest on the Commission and its assignment.
of new ideas to the scrutiny of a concerned and knowledgeable public
The Experience of the Commission
can minimize the risks of the unforeseen. A preliminary circulation of
In the course of its first phase of existence, the Commission has
proposals being considered by the Commission can do much to clarify
devoted substantial time to the problems with which it must come to
the intent of the proponents, to refine and amend the suggested solu-
grips in its second phase. This was inevitable, for the two assign-
tions, to allow the unfamiliar to become familiar-in short, to allow
ments are in fact parts of a larger whole: a thorough review of the
the recommendations to be tested, however preliminarily, in the cruci-
ble of public debate.
S.R. 742
S.R. 742
4
5
The second of the procedural lessons learned during the Commis-
sion's first six months arose from its experience with public hearings.
same for citizens in Maryland and Michigan, in North Carolina and
The wisdom of on-site public hearings was clearly demonstrated.
North Dakota.
The Commission held hearings on realignment in 10 cities from the
Few areas are in greater ferment that the administration of the
far northwest to the deep south. Literally scores of witnesses appeared.
criminal law. There is widespread concern with assuring the finality
The transcripts of their testimony are proving valuable for a better
of criminal convictions and reducing the number of collateral attacks
understanding of the courts and the judicial process. Additional hear-
which add substantially to the burdens of the federal courts. Writing
ings appear highly desirable, if not essential, but these must be sche-
in the December 1973 issue of the Harvard Law Review, Professor
duled with ample time for witnesses to prepare adequately and to
David L. Shapiro reviews the relevant data-560 habeas corpus peti-
focus sharply on the particular concerns of the Commission. In one
tions by state prisoners in 1950, more than 9,000 in 1970 and a fairly
sense, the hearings during the first phase served to focus on the prob-
steady 8,000 a year since then-and observes that the increase has been
lems facing the courts of appeals, the coming hearings must focus on
variously described as a "flood," a "tidal wave," and an "avalanche."
solutions, on their relative merits and drawbacks. Once again, ade-
Chief Judge Clement F. Haynsworth, Jr., of the Fourth Circuit
quate time is essential for optimal results.
has written several seminal papers, sharply criticizing the present
situation as inadequate from the perspective of the prisoners and ap-
THE AGENDA FOR PHASE II
proaching the intolerable from the prospective of the courts. The im-
plications of important proposals in this field are far-reaching for
In Phase II, the Commission will address the existing and proposed
they would involve direct review of state adjudications by a court other
procedures relating to the structure and procedures of the Court of
than the Supreme Court.
Appeals. In drawing up its agenda for this final phase, the Com-
mission has identified a number of specific problem areas which should
Prisoner petitions which do not seek to attack a judgment of convic-
be studied and for which solutions must be found. Briefly, included
tion, but relate rather to the conditions of imprisonment, have also
increased in volume in recent years. These have become a significant
are such subjects as: a more efficient mechanism for avoiding conflict-
portion of federal judicial business, commanding the concern of the
ing decisions between circuits; assuring the finality of criminal con-
Chief Justice among others. Suggestions for a specialized court dealing
victions; widespread denial of oral argument (in one circuit oral
with all aspects of the criminal law, including conditions of detention,
argument is denied in almost 60 percent of the cases) widespread
emerge and raise broad policy questions. The appeal of specialized
decision of cases without opinions; substituting "leave to appeal" for
courts in other areas, such as patents and taxation, is equally under-
the right to appeal; jurisdiction of patent appeals, and optimum size
standable, but cogent arguments in opposition have not been lacking.
of Courts of Appeals.
These are among the problems which the Commission must consider in
There has been increasing concern about the need to create some
phase two.
new instrumentality which would maintain the national law in the
Proposals for reducing the number of cases reaching the federal ap-
face of conflicting holdings by different courts of appeals. It is a
pellate courts have an attractive quality, but they, too, require the most
familiar phenomenon of present practice that differences in inter-
careful study SO as to assure that the function of the courts, assuring
pretation of the revenue laws can continued unresolved for years, with
justice to litigants, is neither aborted nor impaired. Increasing the rate
the United States Supreme Court too busy with more urgent matters
of settlements at the appellate level is one suggestion. Denying the
to turn its attention to these inter-circuit conflicts.
right to appeal and substituting appeal by leave of court, at least in
A distinguished former Solicitor General, among others, has sug-
some classes of cases, has been suggested by the Chief Justice as worthy
gested the creation of a National Panel of the Courts of Appeals which
of study. Siphoning off a large volume of appeals from the orders of
would have final authority, subject only to Supreme Court review, in
administrative agencies by creating new, quasi-judicial bodies-for ex-
areas such as interpretation of tax statutes. The American Bar Asso-
ample in labor cases-is yet another possibility. These are matters
ciation, at its past midwinter meeting, adopted a resolution recom-
which the Commission cannot ignore and yet remain faithful to its
mending creation of "a national division of the United States Court
obligation to the Congress and to the judicial system.
of Appeals" for the purpose of alleviating a number of these prob-
Rules governing the internal procedures of an appellate court are
lems and authorized its President to present testimony to the Com-
thought to be dull and prosaic; one would hardly expect proposals for
mission on Revision of the Federal Court Appellate System in support
change to evoke the intense, almost impassioned opposition which has
of this position.
in fact followed some recent departures from the familiar. But the
Conflicts between circuits are not limited to tax cases and creation
world of internal procedures is not limited to the technical details of
of a National Panel is certainly not the sole proffered solution. The
moving a trial record from one court to another, to the fixing of respon-
persevering question to which the Commission must address itself is:
sibility for the timely preparation of the transcript below, important
What should be done SO that the law of the United States may be the
as these may be. Internal procedures encompass such departures from
tradition as a court's decision to refuse to hear oral argument, not in a
S.R. 742
S.R. 742
6
7
few isolated instances, but in most of the cases which come before it.
carefully designed and painstakingly executed. Some of the work
They encompass the practice, in a substantial proportion of the cases
can be done, and is being done, by the staff of the Commission. Other
decided, of giving no reason for a decision, of affirming summarily
assignments call for the aid of outside consultants, experts in their
without any indication even of the issues considered and determined.
respective fields who have indicated their willingness to be of service
As suggested earlier, such changes are not necessarily to be deplored,
to the Commission.
but neither should we assume that all innovation inevitably represents
The Federal Judicial Center has been most cooperative in pro-
progress. If it is important in a democratic society not only that jus-
viding research support for the Commission, particularly in the
tice be done, but that it appears to be done, such departures from the
planning of what needs to be done. The Commission has drawn freely
familiar must be studied carefully. The views of attorneys must be
on the expertise of the Center, but that expertise has served in large
sought and evaluated; the savings and efficiencies gained must be
measure to underscore the need for adequate time in which to develop
measured carefully and weighed against the losses, if any.
research proposals, to implement them, and to allow for thoughtful
The use of central staff by appellate courts, similar to procedures
analysis and evaluation of the data produced. All of this is preliminary
which have proved successful in England, has been urged for the fed-
to the consideration of the results by the Commission, for in the final
eral system. At first blush, the argument may be persuasive, but the
analysis research can do little more than refine the policy choices
proposal has evoked concern among those who see the risk of delega-
which must, in the first instance, be made by the Commission and
tion of judicial responsibilities to non-judicial personnel. The fears
thereafter by those to whom the Commission's recommendations must
may be ill-founded, but again there is the need to assess and evaluate.
be submitted, primarily the Congress.
The internal procedures appropriate for a court of three active
It would be wrong, however, for the Commission to be obliged
judges, the size of the First Circuit, can hardly be expected to serve
to act in haste, without the benefit of whatever study is in fact ap-
the Fifth which, with 15 active judgeships, is the largest in the coun-
propriate and feasible. Relatively little additional time-less than
try. Judges themselves have been among the first to recognize that
a year-can do much to assure the development of valuable material
there is a limit to the number of judgeships which a court can accom-
which can aid in meeting the problems of the federal judicial system.
modate and still function effectively and efficiently. In 1971 the Judi-
cial Conference of the United States endorsed the conclusion of its
BUDGET PROPOSAL
Committee on Court Administration that a court of more than 15
would be "unworkable". At the same time, the Conference took note
Increasing the sum authorized to be appropriated for the work of the
of and quoted from a resolution of the judges of the Fifth Circuit
Commission is, of course, but a preliminary step which in itself pro-
that to increase the number of judges on that court "would diminish
vides the Commission with no funds. To be effective, it must be fol-
the quality of justice" and the effectiveness of the court as an institu-
lowed by an appropriation. A detailed statement of the precise
tion.
amounts requested, by category of expenditure, would be provided
This is not to suggest that a court of 15 is satisfactory. The Commis-
in the usual manner in connection with a specific proposal for a
sion has heard testimony to the effect that 9 is the maximum number
supplemental appropriation. A preliminary proposed two-year budget
of judges who can work effectively and efficiently together as a single
has been prepared by the Commission and will be submitted at the
court. These are matters which must command the attention of the
appropriate time subject, of course, to possible modification. (See
Commission, for if the business of the appellate courts continues to
Appendix, infra.)
increase apace, the solution cannot be found in dividing and subdivid-
It might be appropriate at this point to give some indication of
ing circuits without limit. A proliferation of circuits to twenty-five or
the broad categories for which additional funds would be utilized.
thirty would create problems of its own, forcing burdens on the United
There is need to supplement the present staff of the Commission,
States Supreme Court which that court would be ill-equipped to
which in addition to the Executive Director and his Deputy, includes
handle.
only one junior staff attorney full time.
The need for careful study and evaluation is a recurrent theme
Mention has already been made of the hearings of the Commission
in the Commission's consideration of an agenda for the second phase
during the first phase. Significant interest has been shown in the publi-
of its work. Each problem which is identified and each proposal for
cation of the transcripts of these hearings because of the valuable
change is accompanied by the call for research to aid in assessing the
material which they contain. Future hearings will require substantial
situation as it exists and as it might exist. Certainly such research is
expenditures. The enabling legislation provides for services both by
of the essence of the Commission's task; the Congress was explicit
the Administrative Office in the United States Courts and the Federal
in asking for study as a preliminary to recommendations. Nor could
Judicial Center on a reimbursable basis. Substantial additional funds
the procedure have been otherwise, whatever the statutory language.
are needed for this purpose.
It is appropriate, however, to note that much of the research must,
Finally, the opportunity for major and significant research relevant
by the very nature of the problems facing the courts of appeals, be
to the present operation of the Courts of Appeals, and necessary for
the evaluation of proposals for change, should not be lost for lack of
S.R. 742
S.R. 742
9
8
APPENDIX
funding. A high proportion of any supplemental appropriation is
likely to be allocated to this area.
Proposed budget-2 years, 1973-75
The total requested, $1,000,000, would cover the full two-year life of
the Commission and is entirely consistent with the level of authoriza-
Personnel Compensation:
Commissioners:
tion for similar undertakings.
Through December 1973
$5,400
Hearings (15x4)
6, 000
CONCLUSION
Meetings (15x8)
12,000
Additional time
4, 000
For the foregoing reasons, the Committee on the Judiciary recom-
Total
27, 400
mends prompt enactment of the subject bill.
Staff
CHANGES IN EXISTING LAW
Through December 1973
43, 400
Executive Director ($36,000), Deputy Executive Director
In compliance with Rule XXIX of the Senate, changes in existing
($24,000), 2 staff attorneys ($42,000)
153,000
Administrative secretary ($11,700), 2 secretaries ($16,100), Ad-
law made by the bill are shown as follows (existing law proposed
ditional part-time staff ($3,300)
46,500
to be omitted is enclosed in black brackets, new matter is printed in
(Vacancies plus cost-of-living increases viewed as cancelling
italic, existing law in which no change is proposed is shown in roman) :
out)
24,000
Total
266,900
PUBLIC LAW 489, 92D CONGRESS
Experts and Consultants:
2D SESSION
Through December 1973
6, 300
General assistants (including Sheehan)
15,000
Projects-high priority
130,000
(Act OF OCTOBER 13, 1972
Additional projects
45,000
86 STAT. 807)
Total
196,300
Personnel Benefits (Government's contributions for retirement, life
AN ACT To create a Commission on Revision of the Federal Court Appellate
insurance, health insurance, and FICA taxes)
24,100
System of the United States
Travel:
*
*
*
Through December 1973
11,100
Meetings (15x1,600)
24,000
SEC. 6. The Commission shall transmit to the President, the Con-
Hearings (15x1,600)
24,000
gress, and the Chief Justice-
Staff (conferences with consultants)
4, 000
(1) its report under section 1 (a) of this Act within one hundred
Committee meetings
6, 000
and and eighty days of the date on which its ninth member is appointed;
Total
69, 100
(2) its report under section 1 (b) of this Act within [fifteen months]
Rent and Communications
pointed. twenty-four months of the date on which its ninth member is ap-
Telephone, through December 1973
4,900
Postage, through December 1973
6, 100
Copying equipment, through December 1973
6,700
The Commission shall cease to exist ninety days after the date of
the submission of its second report.
Total
17,700
SEC. 7. There are hereby authorized to be appropriated to the Com-
mission such sums, but not more than $270,000] not more than
$1,000,000, as may be necessary to carry out the purposes of this Act.
Authority is hereby granted for appropriated money to remain avail-
able until expended.
*
*
S.R. 742
S.R. 742
10
APPENDIX-Continued
Proposed budget-2 years, 1973-75
Printing and Reproduction :
Through December 1973 (transcripts)
4, 800
Transcripts
6, 600
Printing transcripts
105, 000
Printing reports
4, 000
Printing of studies
22,000
Total
142, 400
Other Services:
AO & FJC Reimburseable Services :
Through December 1973
5, 900
AO
18, 000
FJC
45, 000
Additional support services
41, 000
Total
109, 900
Supplies and Materials :
Through December 1973
500
Stationery, et cetera
3, 000
Total
3, 500
Equipment :
Through December 1973
4, 500
Total
861, 800
Less appropriation
235, 000
Grand total
626, 800
93D CONGRESS
HOUSE OF REPRESENTATIVES
REPORT
2d Session
No. 93-1344
COMMISSION ON REVISION OF THE FEDERAL COURT
APPELLATE SYSTEM
AUGUST 23, 1974.-Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
Mr. KASTENMEIER, from the Committee on the Judiciary,
submitted the following
REPORT
[To accompany S. 3052]
The Committee on the Judiciary, to whom was referred the bill
(S. 3052) to extend the term and increase the appropriation author-
ization of the Commission on Revision of the Federal Court Appellate
System, having considered the same, report favorably thereon with
amendment and recommend that the bill as amended do pass.
Che amendment is as follows:
In line 10, strike out "$1,000,000" and insert in lieu thereof
"$606,000".
PURPOSE OF THE AMENDMENT
The amendment changes the appropriation authorization from
$1,000,000 to $606,000.
PURPOSE OF THE AMENDED BILL
The purpose of the bill as amended is to extend the final date for
the report of the Commission on Revision of the Federal Court Ap-
pellate System by 9 months and to increase its appropriation author-
ization from $270,000 to $606,000.
STATEMENT
The Commission on Revision of the Federal Court Appellate Sys-
tem was established by Public Law 92-489 and was assigned two major
tasks with directions to submit a separate réport on each task.
Imphase I, the Commission was to study the geographical boundaries
of the judicial circuits and make recommendations for change. This
phase of the work was to be completed within 180 days of the appoint-
38-006
2
3
ment of its ninth member, which occurred on June 21, 1973. The re-
The committee finds that a total of $42,000 could be taken from the
port was completed on time and was submitted to the President, Con-
Commission's proposed travel budget. While the committee recog-
gress, and the Chief Justice on December 18, 1973.
nizes the wisdom of public hearings and meetings it concurs with
In phase II, the Commission was to study "* * # the structure and
the recommendation of the Office of Management and Budget that
internal procedures of the Federal courts of appeal system *
*
the proposed total of 21 Commission meetings and 20 hearings is
and to recommend appropriate changes. This report was to be sub-
excessive, particularly over a 9-month period. Therefore, a two-thirds
mitted by September 21, 1974. The bill (S. 3052) would extend this
reduction in funding for trävel to meetings and hearings is recom-
reporting date to June 21, 1975.
mended, allowing the Commission approximately seven meetings and
As a result of testimony received by the Commission during its
six hearings during its remaining life.
study in phase I and the initial inquiry in phase II, the members of
Finally, the committee concludes that a proposed expenditure of
the Commission determined that the problems of the Federal Court
$121,000 for printing extra copies of the transcripts of Commission
Appellate System were SO great that additional time and money were
hearings and studies for distribution to the public is unnecessary. In
necessary to make a meaningful study prior to submitting recommen-
any event a final report will be published and widely circulated.
dations. Specifically, the Commissioners felt, after their experiences
In sum, the committee found items totaling $394,000 which it con-
in phase I of the study, that it would be preferable to have additional
cluded could be cut from the Commission's budget. Consequently, an
time to circulate a preliminary report to elicit throughtful responses
amendment reducing the appropriation authorization from $1 mil-
from members of the bench and bar about possible changes in the
lion to $606,000 was adopted. This reduced appropriation authoriza-
structure and internal procedures of the Federal Court Appellate Sys-
tion will allow the Commission $336,000 in addition to the $270,000
tem. In addition, phase I revealed the importance of public hearings
originally authorized in Public Law 92-489.
as a means of obtaining information and suggested solutions. In order
for the Commission to hold such hearings it will require additional
ESTIMATE OF COST
time SO that witnesses may thoughtfully and adequately prepare their
testimony so as to focus clearly on the problems of the Federal Ap-
Pursuant to the requirements of clause 7 of Rule XIII of the Rules
pellate Court System.
of the House of Representatives, the committee estimates that this
llegislation will result in a Federal cost of $336,000 for the remaining
THE COMMISSION'S PROPOSED BUDGET
life of the Commission, expiring on December 21, 1974. This estimate
is based on the Commission's proposed budget as modified by the
In hearings before the Subcommittee on Courts, Civil Liberties, and
committee.
the Administration of Justice, the Commission submitted a proposed
VOTES
budget of $924,000 and requested approval of an appropriation au-
No record votes were taken in the committee's consideration of
thorization of $1 million. In view of the current need to scrutinize any
proposed Government expenditures, the committee has recommended
3052.
an appropriation authorization substantially below that requested by
COMMITTEE RECOMMENDATION
the Commission. However, in the opinion of the committee, this re-
After careful consideration the committee is of the opinion that
duced authorization should not significantly reduce the Commission's
the bill should be enacted and accordingly recommends that S. 3052,
ability to complete successfully its task.
Specifically, the committee finds that the Commission's proposed
as amended, do pass.
budget could be reduced in the following areas. A total $137,000 could
CHANGES IN EXISTING LAW
be eliminated from the Commission's research budget. This includes
a total of $75,000 for projects which were either of low priority or
In compliance with paragraph 2 of clause 3 of rule XIII of the
could be funded from sources other than the Commission's appropria-
Rules of the House of Representatives, changes in existing law made
tion. In addition, $42,000 for a study of intercircuit conflicts is found
by the bill are shown as follows (new matter is printed in italic, exist-
by the committee to be unnecessary on the ground that this is a subject
ing law in which no change is proposed is printed in roman).
relating primarily to the workload of the Supreme Court which has
the responsibility for resolving intercircuit conflicts rather than the
courts of appeals. Another $20,000 budgeted for a statistical study of
the weighted caseloads of two circuits is recommended for deletion on
the ground that such a study already exists for one circuit.
A total of $94,000 could be deleted from the amount the Commis-
sion's budget has allocated for staff by eliminating two staff attorney
positions, one secretary position and $50,000 for part-time staff. It is
felt that, if the number of research projects is reduced, the Commis-
sion's headquarters staff can be reduced accordingly.
H.R. 1344
H.R. 1344
4
PUBLIC LAW 489, 92D CONCRESS
2D SESSION
(Act OF OCTOBER 13, 1972
86 STAT. 807)
AN ACT To create a Commission on Revision of the Federal Court Appellate
System of the United States
*
*
*
*
*
*
*
SEC. 6. The Commission shall transmit to the President, the Con-
gress, and the Chief Justice-
(1) its report under section 1 (a) of this Act within one hundred
and eighty days of the date on which its ninth member is appointed;
and
(2) its report under section 1(b) of this Act within [fifteen months]
twenty-four months of the date on which its ninth member is
appointed.
The Commission shall cease to exist ninety days after the date of
the submission of its second report.
SEC. 7. There are hereby authorized to be appropriated to the Com-
mission such sums, but [not more than $270,000] not more than
$606,000, as may be necessary to carry out the purposes of this Act.
Authority is hereby granted for appropriated money to remain avail-
able until expended.
*
*
*
*
*
*
*
H.R. 1344
S. 3052
Ninety-third Congress of the United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Monday, the twenty-first day of January,
one thousand nine hundred and seventy-four
An Act
To amend the Act of October 13, 1972.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That the Act of
October 13, 1972 (86 Stat. 807) is amended as follows:
(a) Section (2) of section 6 of such Act is amended by striking out
"fifteen months" and inserting in lieu thereof "twenty-four months".
(b) Section 7 of such Act is amended by striking out "not more
than $270,000" and inserting in lieu thereof "not more than $606,000".
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.
September 17, 1974
Dear Mr. Director:
The following bill was received at the White
House on September 17th:
S. 3052
Please let the President have reports and
recommendations as to the approval of this bill
as soon as possible.
Sincerely,
Robert D. Linder
Chief Executive Clerk
The Honorable Roy L. Ash
Director
Office of Management and Budget
Washington, D. C.