United States Court of Appeals for the Ninth Circuit
- District of Alaska
- District of Arizona
- Central District of California
- Eastern District of California
- Northern District of California
- Southern District of California
- District of Hawaii
- District of Idaho
- District of Montana
- District of Nevada
- District of Oregon
- Eastern District of Washington
- Western District of Washington
It also has appellate jurisdiction over the following territorial courts:
Headquartered in San Francisco, California, the Ninth Circuit is by far the largest of the thirteen courts of appeals, with 29 active judgeships. The court's regular meeting places are Seattle at the William K. Nakamura 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, but panels of the court occasionally travel to hear cases in other locations within its territorial jurisdiction. 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 are heard in Pasadena, and cases from northern California, Nevada, Arizona, and Hawaii are heard in San Francisco. 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.
History and background
|Year||Jurisdiction||Total population||Pop. as % of nat'l pop.||Number of active judgeships|
|1891||CA, ID, MT, NV, OR, WA||2,087,000||3.3%||2|
|1900||CA, HI, ID, MT, NV, OR, WA||2,798,000||3.7%||3|
|1920||AZ, CA, HI, ID, MT, NV, OR, WA||7,415,000||6.7%||3|
|1940||AZ, CA, HI, ID, MT, NV, OR, WA||11,881,000||9.0%||7|
|1960||AK, AZ, CA, GU, HI, ID, MT, NV, OR, WA||22,607,000||12.6%||9|
|1980||AK, AZ, CA, GU, HI, ID, MP, MT, NV, OR, WA||37,170,000||16.4%||23|
|2000||AK, AZ, CA, GU, HI, ID, MP, MT, NV, OR, WA||54,575,000||19.3%||28|
|2007||AK, AZ, CA, GU, HI, ID, MP, MT, NV, OR, WA||60,400,000||19.9%||28|
|2009||AK, AZ, CA, GU, HI, ID, MP, MT, NV, OR, WA||61,403,307||19.72%||29|
The large size of the current court is due to the fact that both the population of the western states and the geographic jurisdiction of the Ninth Circuit have increased dramatically since Congress, in 1891, created the United States Court of Appeals for the Ninth Circuit. 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 accession to statehood in 1912, the then-territory of Alaska in 1948, Guam in 1951, and the Commonwealth of the Northern Mariana Islands (CNMI) in 1977. The Ninth Circuit also had jurisdiction over China, in that it had jurisdiction over appeals from the United States Court for China during that court's existence from 1906 to 1943. (China's population is not included in the above chart for 1920 or 1940, since the Court for China lacked plenary jurisdiction over China's domestic population, then numbering approximately 430 million; the Court exercised only extraterritorial jurisdiction over the relatively small number of U.S. citizens in China.)
However, the Philippines were never under the Ninth Circuit's jurisdiction; Congress never created a federal district court there from which the Ninth Circuit could hear appeals. Instead, Congress provided that appeals from the Supreme Court of the Philippines would go directly to the Supreme Court of the United States. 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 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." 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, and Montana. Judge Andrew J. Kleinfeld, who maintains his chambers in Fairbanks, Alaska, wrote in a 1998 letter: "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."
Alleged political liberalism
According to the most current count, the Ninth Circuit has the highest percentage (68%) of sitting judges appointed by Democratic presidents. Republicans argue the court is biased because of its relatively high proportion of Democratic appointees. However, Republicans have not been the only ones to make such an allegation. Others 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.
Size of the court
Critics of the Ninth Circuit claim there are several adverse consequences of its large size. 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 twenty-eight 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 of a randomly selected 11 judge panel. 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. This 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 do provide for full en banc review in limited circumstances. All currently 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 utilizing limited en banc courts.
In March 2007, 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.
Congressional officials, legislative commissions, and interest groups have all submitted proposals to divide the Ninth Circuit. These include the Ninth Circuit Court of Appeals Reorganization Act of 1993, H.R. 3654, the Final Report of the Commission on Structural Alternatives for the Federal Courts of Appeals the Ninth Circuit Court of Appeals of Reorganization Act of 2003, S. 562, the Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 2003, H.R. 2723, the 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), the Circuit Court of Appeals Restructuring and Modernization Act of 2005, S. 1845, and the Circuit Court of Appeals Restructuring and Modernization Act of 2007, S. 525.
Current composition of the court
As of April 1, 2013, the judges on the court are:
|#||Title||Judge||Duty station||Born||Term of service||Appointed by|
|62||Chief Judge||Alex Kozinski||Pasadena, California||1950||1985–present||2007–present||—||Reagan|
|50||Circuit Judge||Harry Pregerson||Woodland Hills, California||1923||1979–present||—||—||Carter|
|57||Circuit Judge||Stephen Reinhardt||Los Angeles, California||1931||1980–present||—||—||Carter|
|65||Circuit Judge||Diarmuid Fionntain O'Scannlain||Portland, Oregon||1937||1986–present||—||—||Reagan|
|74||Circuit Judge||Sidney Runyan Thomas||Billings, Montana||1953||1996–present||—||—||Clinton|
|75||Circuit Judge||Barry G. Silverman||Phoenix, Arizona||1951||1998–present||—||—||Clinton|
|76||Circuit Judge||Susan P. Graber||Portland, Oregon||1949||1998–present||—||—||Clinton|
|77||Circuit Judge||M. Margaret McKeown||San Diego, California||1951||1998–present||—||—||Clinton|
|78||Circuit Judge||Kim McLane Wardlaw||Pasadena, California||1954||1998–present||—||—||Clinton|
|79||Circuit Judge||William A. Fletcher||San Francisco, California||1945||1998–present||—||—||Clinton|
|81||Circuit Judge||Ronald M. Gould||Seattle, Washington||1946||1999–present||—||—||Clinton|
|82||Circuit Judge||Richard A. Paez||Pasadena, California||1947||2000–present||—||—||Clinton|
|83||Circuit Judge||Marsha S. Berzon||San Francisco, California||1945||2000–present||—||—||Clinton|
|84||Circuit Judge||Richard C. Tallman||Seattle, Washington||1953||2000–present||—||—||Clinton|
|85||Circuit Judge||Johnnie B. Rawlinson||Las Vegas, Nevada||1952||2000–present||—||—||Clinton|
|86||Circuit Judge||Richard R. Clifton||Honolulu, Hawaii||1950||2002–present||—||—||G.W. Bush|
|87||Circuit Judge||Jay Bybee||Las Vegas, Nevada||1953||2003–present||—||—||G.W. Bush|
|88||Circuit Judge||Consuelo Maria Callahan||Sacramento, California||1950||2003–present||—||—||G.W. Bush|
|89||Circuit Judge||Carlos T. Bea||San Francisco, California||1934||2003–present||—||—||G.W. Bush|
|90||Circuit Judge||Milan D. Smith, Jr.||El Segundo, California||1942||2006–present||—||—||G.W. Bush|
|91||Circuit Judge||Sandra Segal Ikuta||Pasadena, California||1954||2006–present||—||—||G.W. Bush|
|92||Circuit Judge||N. Randy Smith||Pocatello, Idaho||1949||2007–present||—||—||G.W. Bush|
|93||Circuit Judge||Mary H. Murguia||Phoenix, Arizona||1960||2011–present||—||—||Obama|
|94||Circuit Judge||Morgan Christen||Anchorage, Alaska||1961||2012–present||—||—||Obama|
|95||Circuit Judge||Jacqueline Nguyen||Pasadena, California||1965||2012–present||—||—||Obama|
|96||Circuit Judge||Paul J. Watford||Pasadena, California||1967||2012–present||—||—||Obama|
|97||Circuit Judge||Andrew D. Hurwitz||Phoenix, Arizona||1947||2012–present||—||—||Obama|
|—||Circuit Judge||vacant since December 31, 2004||—||—||—||—||—||—|
|—||Circuit Judge||vacant since April 1, 2013||—||—||—||—||—||—|
|38||Senior Circuit Judge||Alfred Theodore Goodwin||Pasadena, California||1923||1971–1991||1988–1991||1991–present||Nixon|
|39||Senior Circuit Judge||J. Clifford Wallace||San Diego, California||1928||1972–1996||1991–1996||1996–present||Nixon|
|43||Senior Circuit Judge||Procter Ralph Hug, Jr.||Reno, Nevada||1931||1977–2002||1996–2000||2002–present||Carter|
|46||Senior Circuit Judge||Mary M. Schroeder||Phoenix, Arizona||1940||1979–2012||2000–2007||2012–present||Carter|
|48||Senior Circuit Judge||Joseph Jerome Farris||Seattle, Washington||1930||1979–1995||—||1995–present||Carter|
|49||Senior Circuit Judge||Arthur Lawrence Alarcon||Los Angeles, California||1925||1979–1992||—||1992–present||Carter|
|53||Senior Circuit Judge||Dorothy Wright Nelson||Pasadena, California||1928||1979–1995||—||1995–present||Carter|
|54||Senior Circuit Judge||William Cameron Canby, Jr.||Phoenix, Arizona||1931||1980–1996||—||1996–present||Carter|
|63||Senior Circuit Judge||John T. Noonan, Jr.||San Francisco, California||1926||1985–1996||—||1996–present||Reagan|
|66||Senior Circuit Judge||Edward Leavy||Portland, Oregon||1929||1987–1997||—||1997–present||Reagan|
|67||Senior Circuit Judge||Stephen S. Trott||Boise, Idaho||1939||1988–2004||—||2005–present||Reagan|
|68||Senior Circuit Judge||Ferdinand Francis Fernandez||Pasadena, California||1937||1989–2002||—||2002–present||G.H.W. Bush|
|71||Senior Circuit Judge||Andrew Jay Kleinfeld||Fairbanks, Alaska||1945||1991–2010||—||2010–present||G.H.W. Bush|
|72||Senior Circuit Judge||Michael Daly Hawkins||Phoenix, Arizona||1945||1994–2010||—||2010–present||Clinton|
|73||Senior Circuit Judge||A. Wallace Tashima||Pasadena, California||1934||1996–2004||—||2004–present||Clinton|
|80||Senior Circuit Judge||Raymond C. Fisher||Pasadena, California||1939||1999–2013||—||2013–present||Clinton|
Vacancies and pending nominations
|Seat||Seat last held by||Vacancy reason||Date of vacancy||Nominee||Nomination(s)|
|5||Stephen S. Trott||Senior status||December 31, 2004||——||——|
|28||Raymond C. Fisher||Senior status||April 1, 2013||——||——|
List of former judges
|#||Judge||State||Born/Died||Active service||Term as Chief Judge||Senior status||Appointed by||Reason for
|2||Joseph McKenna||CA||1843–1926||1892–1897||—||—||B. Harrison||Appointed U.S. Attorney General|
|3||William Ball Gilbert||OR||1847–1931||1892–1931||—||—||B. Harrison||death|
|4||Erskine Mayo Ross||CA||1845–1928||1895–1925||—||1925–1928||Cleveland||death|
|5||William W. Morrow||CA||1843–1929||1897–1923||—||—||McKinley||resignation|
|—||William Henry Hunt||MT||1857–1949||1911–1928||—||1928–1928||||resignation|
|6||Frank H. Rudkin||WA||1864–1931||1923–1931||—||—||Harding||death|
|7||Wallace McCamant||OR||1867–1944||1925–1926||—||—||Coolidge||recess appointment not confirmed by the United States Senate|
|8||Frank Sigel Dietrich||ID||1863–1930||1927–1930||—||—||Coolidge||death|
|9||Curtis D. Wilbur||CA||1867–1954||1929–1945||—||1945–1954||Hoover||death|
|10||William Henry Sawtelle||AZ||1868–1934||1931–1934||—||—||Hoover||death|
|11||Francis Arthur Garrecht||WA||1870–1948||1933–1948||—||—||F. Roosevelt||death|
|12||William Denman||CA||1872–1959||1935–1957||1948–1957||1957–1959||F. Roosevelt||death|
|13||Clifton Mathews||AZ||1880–1962||1935–1953||—||1953–1962||F. Roosevelt||death|
|14||Bert Emory Haney||OR||1879–1943||1935–1943||—||—||F. Roosevelt||death|
|15||Albert Lee Stephens, Sr.||CA||1874–1965||1937–1961||1957–1959||1961–1965||F. Roosevelt||death|
|16||William Healy||ID||1881–1962||1937–1958||—||1958–1962||F. Roosevelt||death|
|17||Homer Bone||WA||1883–1970||1944–1956||—||1956–1970||F. Roosevelt||death|
|18||William Edwin Orr||NV||1881–1965||1945–1956||—||1956–1965||Truman||death|
|19||Walter Lyndon Pope||MT||1889–1969||1949–1961||1959–1959||1961–1969||Truman||death|
|20||Dal Millington Lemmon||CA||1887–1958||1954–1958||—||—||Eisenhower||death|
|21||Richard Harvey Chambers||AZ||1906–1994||1954–1976||1959–1976||1976–1994||Eisenhower||death|
|22||James Alger Fee||OR||1888–1959||1954–1959||—||—||Eisenhower||death|
|23||Stanley Nelson Barnes||CA||1900–1990||1956–1970||—||1970–1990||Eisenhower||death|
|24||Frederick George Hamley||WA||1903–1975||1956–1971||—||1971–1975||Eisenhower||death|
|25||Oliver Deveta Hamlin, Jr.||CA||1892–1973||1958–1963||—||1963–1973||Eisenhower||death|
|26||Gilbert H. Jertberg||CA||1897–1973||1958–1967||—||1967–1973||Eisenhower||death|
|27||Charles Merton Merrill||NV||1907–1996||1959–1974||—||1974–1996||Eisenhower||death|
|28||Montgomery Oliver Koelsch||ID||1912–1992||1959–1976||—||1976–1992||Eisenhower||death|
|29||James R. Browning||CA||1918-2012||1961–2000||1976–1988||2000–2012||Kennedy||death|
|30||Benjamin Cushing Duniway||CA||1907–1986||1961–1976||—||1976–1986||Kennedy||death|
|31||Walter Raleigh Ely, Jr.||CA||1913–1984||1964–1979||—||1979–1984||L. Johnson||death|
|32||James Marshall Carter||CA||1904–1979||1967–1971||—||1971–1979||L. Johnson||death|
|33||Shirley Hufstedler||CA||1925–present||1968–1979||—||—||L. Johnson||Appointed U.S. Secretary of Education|
|34||Eugene Allen Wright||WA||1913–2002||1969–1983||—||1983–2002||Nixon||death|
|35||John Francis Kilkenny||OR||1901–1995||1969–1971||—||1971–1995||Nixon||death|
|36||Ozell Miller Trask||AZ||1909–1984||1971–1984||—||—||Nixon||death|
|40||Joseph Tyree Sneed III||CA||1920-2008||1973–1987||—||1987–2008||Nixon||death|
|41||Anthony Kennedy||CA||1936–present||1975–1988||—||—||Ford||elevation to Supreme Court|
|42||J. Blaine Anderson||ID||1922–1988||1976–1988||—||—||Ford||death|
|45||Betty Binns Fletcher||WA||1923-2012||1979–1998||—||1998–2012||Carter||death|
|47||Otto Richard Skopil, Jr.||OR||1919-2012||1979–1986||—||1986–2012||Carter||death|
|51||Warren John Ferguson||CA||1920–2008||1979–1986||—||1986–2008||Carter||death|
|52||Cecil F. Poole||CA||1914–1997||1979–1996||—||1996–1997||Carter||death|
|56||William Albert Norris||CA||1927–present||1980–1994||—||1994–1997||Carter||retirement|
|58||Robert R. Beezer||WA||1928–2012||1984-1996||—||1996–2012||Reagan||death|
|59||Cynthia Holcomb Hall||CA||1929–2011||1984–1997||—||1997–2011||Reagan||death|
|60||Charles Edward Wiggins||CA||1927–2000||1984–1996||—||1996–2000||Reagan||death|
|61||Melvin T. Brunetti||NV||1933–2009||1985–1999||—||1999–2009||Reagan||death|
|64||David R. Thompson||CA||1930–2011||1985–1998||—||1998–2011||Reagan||death|
|69||Pamela Ann Rymer||CA||1941–2011||1989–2011||—||(none)||G.H.W. Bush||death|
|70||Thomas G. Nelson||ID||1936–2011||1990–2003||—||2003–2011||G.H.W. Bush||death|
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 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 filled. Judges who retire into senior status remain on the bench but leave their seat vacant. That seat is filled by the next circuit judge appointed by the president.
- 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.
- Kepner v. United States, 195 U.S. 100 (1904).
- White v. Samsung Elec. Am., Inc., 989 F.2d 1512, 1521 (9th Cir. 1993) (Kozinski, J., dissenting).
- Kleinfeld, Andrew J. (1998-05-22). Memo to the Commission on Structural Alternatives for the Federal Courts of Appeals. URL Retrieved June 21, 2005.
- Bagley, Constance E.; Savage, Diane (2009). Managers and the Legal Environment: Strategies for the 21st Century. Cengage Learning. p. 1033. ISBN 9780324582048. Retrieved 4 August 2012.
- Matt Hadro (6 August 2012). "PBS Reporter Waters Down Liberal Bias of Ninth Circuit Court". NewsBusters. Media Research Center. Retrieved 28 July 2012.
- Jerome Farris, 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% of the Ninth Circuit's cases).
- Carol J. Williams (18 July 2011). "U.S. Supreme Court again rejects most decisions by the U.S. 9th Circuit Court of Appeals". Los Angeles Times. Retrieved 4 August 2012.
- O'Scannlain, Diarmuid (October 2005). "Ten Reasons Why the Ninth Circuit Should Be Split" (PDF). Engage 6 (2): 58–64. Archived from the original on May 10, 2006. Retrieved May 29, 2006.
- "Statement of Circuit Judge Alex Kozinski to the House Judiciary Subcommittee on Courts". U.S. House of Representatives. October 21, 2003. Retrieved February 6, 2012.
- Schroeder, Mary M.; et al. (April 2006). "A Court United: A Statement of a Number of Ninth Circuit Judges" (PDF). Engage 7 (1): 63–66. Retrieved June 6, 2006.
- C-SPAN America and the Courts, (March 17, 2007).
- Eric J. Gribbin, 47 Duke L.J. 351, law.duke.edu
- Final Report, Commission on Structural Alternatives for the Federal Courts of Appeals, Dec. 18, 1998
- Testimony of Circuit Judge Richard Tallman: U.S. Court of Appeals for the Ninth Circuit. United States Senate: Committee on the Judiciary. Retrieved November 19, 2007.
- Govtrack.us S. 525--110th Congress (2007): Circuit Court of Appeals Restructuring and Modernization Act of 2007, GovTrack.us (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.
- 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, 1929-03-01 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
- United States Court of Appeals for the Ninth Circuit
- This website includes links to the court's published and unpublished opinions, court-specific rules of appellate procedure, and general operating procedures.
- Ninth Circuit Library
- Recent opinions from FindLaw
- Federal Judicial Center
- Disposition of Supreme Court decisions on certiorari or appeal from state and territory supreme courts, and from federal courts of appeals, 1950-2006