SMU Law Review Volume 34 Issue 5 Article 4 1980 A Proposal for Descretionary Review in Federal Courts of Appeals Donald P. Lay Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation Donald P. Lay, Comment, A Proposal for Descretionary Review in Federal Courts of Appeals, 34 SW L.J. 1151 (1980) https://scholar.smu.edu/smulr/vol34/iss5/4 This Comment is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. ESSAYS A PROPOSAL FOR DISCRETIONARY REVIEW IN FEDERAL COURTS OF APPEALS by Donald P. Lay* p ROFESSOR Kallay has written: Whether access to appellate review can be denied or curtailed by means of a dismissal should test ultimately on the difference between appeals as of right and discretionary appeals. Ifaparty can perfect an appeal as a matter of right, he should necessarilybe entitled to the bene- fits of the entire deliberativeprocessoffered by theforum to which he has taken his appeal' No one should seriously challenge Kallay's observations. Federal liti- gants in both civil and criminal cases have been given the right of appel- late review in the courts of appeals since the Act of 1891 creating the federal courts of appeals. 2 The problem existing today is that federal courts of appeals are so inundated by the volume of appeals that appeals of right can no longer be given the full deliberative process to which they are entitled. 3 In 1960, 3,899 appeals were filed in the courts of appeals. By June 30, the end of the 1980 fiscal year, 23,200 appeals had been filed. Consider that 568% more appeals were pending in 1980 than in 1962, 158% more than in 1969, and 13% more than in 1979. This huge increase oc- curred notwithstanding that the courts terminated 401% more cases in 1980 * Chief Judge, United States Court of Appeals for the Eighth Circuit. 1. Kallay, The Dismissal of Frivolous Appeals by the Cal!fornia Courts of Appeal, 54 CAL. S.B.J. 92 (1979) (emphasis added). 2. Act of Mar. 3, 1891, ch. 517, 26 Stat. 826. Litigants are currently given the right to appeal by 28 U.S.C. § 1291 (1976). This statute is the successor of Act of Mar. 3, 1911, ch. 231, § 128, 36 Stat. 1133. 3. Judge Godbold of the Fifth Circuit has observed that the volume of cases has forced courts to alter their procedures for handling appeals, a development that he finds to be positive. If the enormous growth of appellate caseloads is an ill wind, it has blown considerable good. It has forced appellate courts to re-evaluate what they are doing and to think about whether and how they can do it better. No more significant re-evaluation has occurred than scrutiny of the premise that all appellate cases, regardless of differences between them, must be immu- tably accorded the full range of all appellate procedures. Courts have found the courage to look with questioning eyes at their policies on oral argument, the necessity for opinions, the content of opinions, and the contents of records. Godbold, Improvements in Appellate Procedure.- Better Use of Available Facilities, 66 A.B.A.J. 863 (1980). 1151 1152 SOUTHWESTERN LAW JOURNAL [Vol, 34 than in 1962, 132% more than in 1969, and 10% more than in 1979. 4 Al- though courts of appeals have experimented with many short cuts, they continue to experience such backsliding that a projection of the appellate process in federal courts by the year 2000 is overwhelming.5 In this essay, I would like to pose the question whether the time has come for the exer- cise of discretionary jurisdiction in federal courts of appeals. The appellate process today is so delayed and time-consuming for liti- gants in the majority of the courts of appeals that the situation is scandal- ous. The total number of cases under submission for longer than three months increased from 587 to 767 cases, or nearly 31%, between June 30, 1979, and June 30, 1980. The Fifth, Ninth, and Tenth Circuits accounted for more than 57% of these 767 cases. Cases under submission for longer than one year increased 23% during fiscal year 1980. The District of Co- lumbia, Ninth, and Tenth Circuits accounted for nearly 76% of this in- crease. On June 30, 1980, 18% of the District of Columbia cases under submission for more than three months had been under submission more than one year. Fifteen percent of the Seventh Circuit's and 10% of the Ninth Circuit's appeals had been under submission for more than one year. 6 Even more egregious is the fact that in some circuits an appeal takes from one to two years to be calendared for oral argument. The ominous clouds of billowing appellate dockets are no longer merely on the horizon. The tremendous increase of federal appeals has prompted various re- sponses, some more effective than others. The most palliative response Congress has made, albeit ten years late, has been to increase the number of federal judges on the courts of appeals. 7 Such a move is unwieldly and controversial to say the least. It defies the wisdom of every recent student of judicial administrationA 4. ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, ANNUAL REPORT OF THE DIRECTOR 43 (1980). 5. Assuming the caseload continues to grow and the courts continue to dispose of cases at the same rate in the next 18 years as they have in the past 18 years, the courts of appeals, in 1998, will terminate 104,644 cases and will have 135,283 cases pending. These figures are compared to 20,887 cases terminated and 20,252 cases pending in 1980 and 4,167 cases ter- minated and 3,031 cases pending in 1962. The 1998 caseload would be a 2414% increase in cases terminated and a 4363% increase in cases pending over the figures for 1962. See id. Although this assumption may seem somewhat specious, no one doubts that there will be a large increase in filings in the next 20 years. Under the present system the courts of appeals will be unable to cope with even any realistic increase in caseload. 6. Id at 52-54. 7. See 28 U.S.C. § 44 (Supp. 11 1978). 8. Justice Frankfurter once wrote: The consequences that [the expanding federal caseload] entails for the whole federal judicial system . cannot be met by a steady increase in the number of federal judges. The function and role of the federal courts and the nature of their judicial process involve impalpable factors, subtle but far- reaching, which cannot be satisfied by enlarging the judicial plant. .In the farthest reaches of the problem a steady increase in judges does not alleviate; in my judgment, it is bound to depreciate the quality of the federal judiciary and thereby adversely to affect the whole system. Lumbermen's Mut. Cas. Co. v. Elbert, 348 U.S. 48, 58-59 (1954) (Frankfurter, J.,concur- ring). Robert Bork, Solicitor General of the United States, has written that a large number of judges on a court "damage[s] collegiality, lessen[s] esprit, and diminish[es] the possibility 19811 DISCRETIONARY REVIEW 11531 During Congress's extended delay, the courts of appeals, by necessity, have created their own innovations to cope with the ever increasing vol- ume of appeals. The latest experiment has been the Second Circuit's Civil Appeal Mediation Plan, which fosters attempts to settle cases before the appeal process takes place. This process is time consuming, and it is not the most convenient tool for circuits that have broad geographic areas such as the Eighth and Ninth Circuits. Furthermore, the program's effective- ness is hard to measure because it is difficult to assess how many cases that are settled would have been settled without the program's special efforts. Additionally, the Ninth Circuit has experimented with arguments without briefs or written opinions. Another long-needed innovation every court of appeals has found necessary is the lessening of the number of full-length opinions. The most universally adopted innovation has been the screening of cases either for limitation of the time for oral argument or for complete elimina- tion of argument. Various summary techniques have been developed for deciding cases screened for no argument. Central court staffs have been enlarged to work principally on these cases. In many courts of appeals, staff memoranda, written by first-year law clerks, are utilized as the court opinion in no-argument and even some argument cases. Many circuits, including my own I am embarrassed to add, decide no-argument cases without a collegial conference of the three judges meeting together and exchanging possible divergent views. Due to the geographic spread of the Eighth Circuit judges' home bases, the "conference" is, through necessity, by United States mail. In this situation, the danger of one-judge opinions becomes significant. 9 The concept of screening is a good one; courts of appeals should not of interaction throughout the judicial corps." Bork, Dealing with the Overload in Article III Courts, 70 F.R.D. 231, 234 (1976). Embracing this same idea, Judge Friendly indicated that nine is the maximum number of active judges that can sit on a court without losing the attributes of a small, intimate body. H. FRIENDLY, FEDERAL JURISDICTION: A GENERAL VIEW 44-46 (1973). In 1964 the Judicial Conference of the United States resolved: "[N]ine is the maximum number of active judgeship positions which can be allotted to a court of appeals without impairing the efficiency of its operation and its unity as a judicial institu- tion." REPORT OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES 15 (1964).