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Unalienable Rights Foundation - what makes the D.C. Circuit so different
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 what makes the D.C. Circuit so different

General Counsel and Senior Law Fellows

There's a lot of discussion now about the D.C. Circuit caseload. Republicans say that the caseload doesn't justify adding any more judges, and compare the caseload statistics to other circuits. Democrats say the cases are more complex and you canít do that. So whoís right?

Well, they're both right to some extent. And I know thatís an unsatisfying answer.

Itís a very political answer.

Here's what we found and here's what I'll say. It's true that a typical D.C. Circuit judge hears fewer cases than his peers in other circuits. But thatís not the whole story. We've run the numbers on this, and the court manages to avoid the cases that tend to be simpler, and instead has a docket full of cases that tend to be more complex. So as a result, we see that the court grants oral argument in more cases, issues published precedential opinions in more cases than other courts. So comparing caseloads from circuit to circuit just doesn't work. It's comparing apples to oranges.

But on the other hand, the court's caseload has decreased substantially over the last few years, so that might suggest that fewer judges would be appropriate. But thatís not the end of the story either. Because the courtís caseload is unusually cyclical, it depends on the regulatory cycle which transitions from president to president. So taking a snapshot of 2013, for example, isn't a good way to make decisions about judges who will likely be on the bench for two or more decades.



What Makes the D.C. Circuit So Special?

Political debate raged in Washington this month about nominees to the U.S. Court of Appeals for the D.C. Circuit. But both sides agreed on one thing: the court's importance. President Obama and senators repeatedly called it a key federal appeals court, or even, the second-most important court in the nation.

So, what makes the D.C. Circuit so different? What makes it special? And how does Congress really view the court?

Four former D.C. Circuit clerks set out to answer those questions and provide a deeper understanding of the court's role by studying how Congress has given authority to the D.C. Circuit.They will publish their findings in an article for the Cornell Journal of Law and Public Policy on Dec. 3, entitled "The Jurisdiction of the D.C. Circuit."



The National Law Journal caught up with one of the authors, Eric Fraser, an associate at Osborn Maledon in Phoenix, to ask him about the research amid the renewed debate over the D.C. Circuit.

The article's timing is fortuitous. Last week, Democrats pushed through a change that severely curtails the effect of a filibuster, prompted in part by Republicans' use the tactic to thwart three of Obama's nominees to the D.C. Circuit in the past three weeks.

"We kind of got lucky on this one," Fraser said of the timing of the article, which he co-authored with David Kessler, an associate at Paul, Weiss, Rifkind, Wharton & Garrison in New York; Matthew Lawrence, an academic fellow at the Petrie-Flom Center at Harvard Law School; and Stephen Calhoun, an associate at Norton Rose Fulbright in Austin.

NLJ: Why did you guys decide to study this and how did you start?

Fraser: We had always heard the common refrain that the D.C. Circuit was a special court and a different court from the other courts of appeal. We always wondered why. What made it different? What made it special? Why did it hear certain cases that other courts didn't hear? So we started looking into it, and ran a quick search on the D.C. Circuit in the full U.S. Code and discovered it was specifically mentioned hundreds of times, which is unusual. Because the numbered circuits, the regional circuits, are mentioned once or twice, maybe three times. We really wondered why was this, so we got down to digging and tried to explain, for the first time we think, what exactly makes the court different.

So what did you find?

We found a lot of things. There's a widespread opinion that it's a special court, and it's called the second-most important court in the nation. But all the federal courts hear important cases. The D.C. Circuit is different in some specific ways. First, it hears very few of what I call the typical bread and butter federal cases: immigration, social security, criminal cases, and even ordinary civil litigation. Instead, and in place of those cases, its docket is filled with cases that affect the whole country. Challenges to federal rulemaking, for example, are brought disproportionally in the D.C. Circuit, and Guantanamo detainee cases can only be brought in the D.C. Circuit.

So the perception of the court as being the second highest in the land is driven by a lot of factors. The docket that I just discussed is one, and the special attention Congress pays to it is another. That's revealed through how many times it's mentioned in the U.S. Code.

And the judges themselves are different. The selection process is different. There are no local voting senators to block nominees, or to require local bar membership. Some of the local provincial interests that play a role in nominating judges elsewhere don't have any effect in D.C. And many Supreme Court justices or nominees are former D.C. Circuit judges or were at least nominated to the D.C. Circuit. Not to mention how many of the Supreme Court clerks were clerks on the D.C. Circuit.

The court is special. But is it indeed the second-most important court?

All federal courts are important, but the D.C. Circuit hears cases that have more of a national impact than other courts.

Let me ask what you set out to answer in your research: Why is the D.C. Circuit special, why is it mentioned so many times, why do you think Congress did that?

In terms of the docket and jurisdiction, some of the differences in the immigration cases, the social security cases, ordinary criminal cases, some of those are due to special factors about the district itself, like the lack of immigration courts within the circuit. The circuit canít hear immigration cases because there are no immigration courts.

But most of it is due to demographics. The proper boundary of the District of Columbia is really a small place with a small population and little commerce, at least when you compare it to all the other regional circuits. I'll give you two statistics that tell the tale. The first is that per capita, the D.C. Circuit has about one judge per 50,000 people, but nationwide that rate is about one judge per 2 million people. So thatís a big difference. The same is true for geography. Thereís about one judge per 5.5 square miles in D.C., compared to one judge per 21,000 per square miles nationwide. What that means is that even though the D.C. Circuit hears federal criminal cases - even if the rate of crime were significantly higher than the nationwide average - it would still hear a far smaller fraction of criminal cases than any other appellate court. Those factors effectively keep some cases out of the court.

But there are other factors that pull cases in, and those come from Congress. Because Congress created the federal courts and they can control their jurisdiction.

So why did they do this, why did they pull in cases to D.C.?

Let me step back a second and say most cases work their way through the geographic regional circuits by where the case began. If something happens in Phoenix, it will go to the District of Arizona in all likelihood, and then be appealed to the Ninth Circuit. But in D.C., Congress said, 'Ok, for some types of cases you can bring the case not only where you live or where you work, but also in the D.C. Circuit.' And for other types of cases it said you can bring the case only in the D.C. Circuit. The question of why is a tricky one. We gleaned about as much as we could from the U.S. Code.

We tracked every time the court was mentioned in the code. We found Congress didn't send every administrative case to the court, because administrative agencies make two types of decisions. One type, theyíre making an individual determination. They are deciding the fate of one person, like revoking a commercial pilotís license for failing a drug test. But on the other hand, they make rulemakings that affect the whole country, like when the [Environmental Protection Agency] makes a new rule about a new pollutant, or when the [Federal Communications Commission] issued the rule on network neutrality. We found that Congress is significantly more likely to vest exclusive jurisdiction in the D.C. Circuit for a rulemaking that has nationwide effect than for an individual determination that might only affect one person.

The other finding we found was that there are independent agencies and then there are departments of the government under the executive branch, where the heads are subject to presidential removal, like the FCC compared to the Department of Labor. Congress gave exclusive jurisdiction twice as often for independent agencies than for the other agencies. When youíre getting down to the question of why, in the independent agency context, because the independent agencies are more isolated from the political process, it could be that Congress wants to add that additional tough level of a judicial check and judicial oversight. And of course the D.C. Circuit has the reputation for administrative law, so maybe Congress thought the D.C. Circuit would be the appropriate place to bring that kind of a review.

There's a lot of discussion now about the D.C. Circuit caseload. Republicans say that the caseload doesn't justify adding any more judges, and compare the caseload statistics to other circuits. Democrats say the cases are more complex and you canít do that. So whoís right?

Well, they're both right to some extent. And I know thatís an unsatisfying answer.

Itís a very political answer.

Here's what we found and here's what I'll say. It's true that a typical D.C. Circuit judge hears fewer cases than his peers in other circuits. But thatís not the whole story. We've run the numbers on this, and the court manages to avoid the cases that tend to be simpler, and instead has a docket full of cases that tend to be more complex. So as a result, we see that the court grants oral argument in more cases, issues published precedential opinions in more cases than other courts. So comparing caseloads from circuit to circuit just doesn't work. It's comparing apples to oranges.

But on the other hand, the court's caseload has decreased substantially over the last few years, so that might suggest that fewer judges would be appropriate. But thatís not the end of the story either. Because the courtís caseload is unusually cyclical, it depends on the regulatory cycle which transitions from president to president. So taking a snapshot of 2013, for example, isn't a good way to make decisions about judges who will likely be on the bench for two or more decades.

So thatís my unsatisfying answer.



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