United States Courts of Appeals

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The United States Courts of Appeals (or circuit courts) are the mid-level appellate courts of the United States federal court system. A court of appeals decides appeals from the district courts within its federal judicial circuit, and in some instances from other designated federal courts and administrative agencies.

The judicial circuits of the eleven "numbered" circuits and the D.C. Circuit are geographically defined. The D.C. Circuit also hears appeals from agency decisions and rulemaking. The Federal Circuit hears appeals from specialized trial courts, primarily the United States Court of International Trade and the United States Court of Federal Claims. The Federal Circuit also hears appeals from the district courts in patent cases and certain other specialized matters. Finally, the Court of Appeals for the Armed Forces hears appeals in court-martial cases.

The circuit with the least number of appellate judges is the First Circuit, and the one with the most is the Ninth Circuit. The number of judges Congress has authorized for each circuit is set forth in the U.S. Code (U.S.C.) at Title 28, Section 44.

The rules that govern the procedure in the circuit courts are the Federal Rules of Appellate Procedure. Being appellate courts, the circuit courts do not hold trials, which is where witnesses and other evidence are presented to a jury or judge that then decides the facts of what happened and what, if any, punishment (in criminal cases), damages, or other relief should be awarded. Appeals courts decide only the question of whether the trial court reached the right conclusion in the case, based on the evidence presented there, so in an appeal the court considers only the record (that is, the papers the parties filed and the transcripts and any exhibits from any trial) from the trial court and the legal arguments of the parties, made in written form as briefs and sometimes in spoken form as oral argument at a hearing where the parties' lawyers (only) speak to the court.

In a court of appeals, an appeal is almost always heard by a "panel" of three of the court's judges, although there are instances where all of the judges will participate in an en banc hearing. As a rule, there is no right to appeal a decision of the federal circuit court to the Supreme Court of the United States, but a party may apply to that court to review a ruling of the circuit court -- that is called petitioning for a writ of certiorari -- and if the Supreme Court agrees, then the matter is treated like an appeal to the Supreme Court from the circuit court.

A court of appeals may also certify questions to the Supreme Court, a rare procedure that was used by the Second Circuit, sitting en banc, in United States v. Penaranda, as a result of the Supreme Court's decision in Blakely v. Washington. 28 U.S.C. 1254(2).

Contents

Attorneys

In order to serve as counsel in a case appealed to a circuit court the attorney must be admitted to the bar of that circuit. The United States does not have a separate bar examination for federal practice (except with respect to patent law). Admission to the bar of a circuit court is generally granted as a matter of course to any attorney who is admitted to practice law in any state located within the circuit. The attorney submits an application with a nominal fee and takes the oath of admission. Local practice varies as to whether the oath is given in writing or in open court before a judge of the circuit.

U.S. Courts of Appeals

See each article for a listing of the States within each circuit's jurisdiction, or a complete listing under United States federal judicial circuit.


The Circuits

From 1789-1912, the circuit courts were federal trial courts.

There are 13 now circuits. Intermediate Court of Appeal in the federal system, in the form of the U.S. Court of Appeal (formerly known as the Circuit Courts of Appeals) were established in 1891. Prior to 1891, appeals went directly from the federal trial courts to the U.S. Supreme Court.

First Circuit

The First Circuit consists of Maine, New Hampshire, Massachussets, Puerto Rico and Rhode Island. It is generally considered a moderate court.

Judges of the First Circuit

Second Circuit

The Second Circuit consists of Vermont, Connecticut, and New York. Some people consider it a liberal court, but it is probably better described as moderate.

Third Circuit

The Third Circuit consists of New Jersey, Pennsylvania, and Delaware. It also handles appeals from the U.S. Virgin Islands. It is a moderate court.

Fourth Circuit

The Fourth Circuit consists of West Virginia, Maryland, Virginia, North Carolina, and South Carolina. It is by far the most conservative court , even more so than the Supreme Court, whose ultra-conservative bloc often tries to follow this court (e.g. in over-turning Miranda.)

Fifth Circuit

The Fitfth Circuit consists of Texas, Louisiana, and Mississippi (and until 1980 also included all of the states in the 11th Circuit). It also had jurisdiction over the U.S. Canal Zone in Panama until it was surrendered. It is a conservative court.

Sixth Circuit

The Sixth Cicuit consists of Michigan, Ohio, Kentucky, and Tennessee. It is a moderate court with some conservative leanings.

Seventh Circuit

The Seventh Circuit consists of Wisconsin, Illinois, and Indiana. It is a moderate court, but has a set of extremely conservative justices that have made its most famous law.

Judges of the Seventh Circuit

Eighth Circuit

The Eight Circuit consists of North Dakota, Minnesota, South Dakota, Nebraska, Iowa, Missouri, and Arkansas. It is a moderate (?) court.

Ninth Circuit

The Ninth Circuit consists of Montana, Idaho, Washington, Alaska, Oregon, Nevada, Arizona, California, Hawaii, Guam, and The Marianas. It is generally considered a liberal court. There have been several attempts to split this circuit because it is so liberal, attempting to weaken this last bastion of Warrenism, although not all arguments for splitting the Ninth Circuit are based on its politics. See Splitting the 9th Circuit.

Typically, every time the Ninth Circuit hears a case that makes the news, some idiot on TV comments that it is the most reversed court. However, as shown below, since it takes by far the most cases, it gets reversed more, but its percentage is in line with other circuits. Lawyers may josh about the Ninth Circuit's liberal propensities but they know that it's just too large a court to really have any propensities at all, given that only a very small part of the Ninth Circuit typically hears any appeal. The jokes (and the reputation of being liberal) are thus not taken seriously inside the legal profession.

Judges of the Ninth Circuit

Tenth Circuit

The Tenth Circuit Court of Appeals has federal jurisdiction over Utah, Colorado, Oklahoma, New Mexico, Wyoming, and Kansas. It tends right, though is probably best thought of as a moderate court.

Eleventh Circuit

The Eleventh Circuit consists of Alabama, Florida and Georgia.

D.C. Circuit

The DC Circuit hears cases arising from the District of Columbia (this includes many, many cases coming from federal agencies like the EPA etc.). It is sometimes called a liberal court, though Republican nominees outnumber Democratic nominees by nine to three. Ken Starr was once a judge here. This court is generally considered the second most important court below the Supreme Court, and is the circuit most-often tapped for high court nominees.

Judges of the DC Circuit

Federal Circuit

The Federal Circuit hears cases involving (1) copyrights, trademarks, or patents (and certain other intellectual property matters) from both Courts and administrative determinations, (2) decisions of the U.S. Court of International Trade and certain other disputes involving Tariffs, (3) selected administrative decisions related to oil and gas matters, (4) decisions of the Merit Systems Portection Board, (5) decisions of boards of contract appeals involving contracts with the U.S. Government, (6) appeals from the United States Court of Federal Claims, and (7) appeals from most District Court claims against the United States government other than those relating to taxes. See 28 United States Code Sections 1292(c) and 1295.

Procedure

Generally, Court of Appeals cases are decided by a panel of three judges chosen at random (with any judge who has a conflict of interest recusing himself or herself and replaced by another random judge).

Appealling parties may ask the entire Court of Appeals in a circuit to second guess the decision of an individual panel (or in the 9th Circuit, a much larger panel of the court rather than the entire court). This is called an "en banc" review of a decision. Thus, a case can be appealled from a trial court to a three judge panel of the Court of Appeals, and then receive "en banc" review, and then go to the U.S. Supreme Court. En banc review, like U.S. Supreme Court review of a Court of Appeals decision, is discretionary and rarely granted. Typically, one would see en banc review either in a case of great political moment (such as the Newdow, Pledge of Allegiance case in the 9th circuit), when a very conservative panel makes a decision in a very liberal circuit (or visa versa), when there is a persausive dissenting opinion in the case, or when there is a conflict between two panels dealing with the same issue at about the same time on a single circuit. In 2002 in the 9th Circuit, for example, 801 published opinions were issued out of the thousands of cases that came before the court, of which about 40 were considered for en banc review, and 18 received en banc review (which in the 9th Circuit is actually a large panel of the court rather than the entire court). This was just 2% of cases heard on the merits. En banc review is less frequent in absolute numbers, since the overall caseload is smaller, in other circuits. In 1999, a fairly typical year, only 94 cases in the entire federal system receive en banc review, which makes this level of review similar in frequency to, if not less common than, U.S. Supreme Court review. The vast majority of Court of Appeals cases (probably more than 90% nationwide) are never even considered for en banc review. Less than one case in a thousand filed in a U.S. Court of Appeals is reversed in en banc review or in review by the U.S. Supreme Court.

Appeals from most judicial bodies, e.g. U.S. District Courts, are to a single Court of Appeals. For example, appeals from the U.S. District Court in Colorado always go to the 10th Circuit Court of Appeals. This is not true for certain Article I Courts, such as the Tax Court, and for certain administrative agencies from which appeals go directly to the Courts of Appeal, such as the National Labor Relations Board. In these situations appeals from the single national court or quasi-judicial body go directly to the geographical circuit of the Court of Appeals in which the case arose. When a Circuit Court of Appeals rules against an agency, such as the IRS or NLRB, the agency can then decide as a matter of policy whether it will continue to fight the issue it lost upon in other circuits, in an effort to secure a circuit split and obtain U.S. Supreme Court review, or assent to the decision and recognize it as binding nationally. See also Appellate Procedure.

Partisanship Matters

One of the best studies of Court of Appeals behavior, based on a review of more than 4,400 individual decisions and the President who appointed the judges on each three judge panel that decided those cases, looked at the connection between the political party of the President who appointed a Court of Appeals judge, and how that judge voted on particular cases. This study ranked the judicial districts from liberal to conservative and also noted that three judge panels with both liberal and conservative judges tend to be moderate, regardless of who is in the majority, while three judge panels with only liberal or only conservative judges tend to act much more boldly.

The study ranks the circuit courts from most liberal to most conservative as follows: 9th; 3rd; 2nd; 10th; 6th; DC; 11th; 1st; 4th; 8th; 5th; 7th.

Not all issues are equally partisan, however. In the areas of federalism, criminal appeals, and takings of private property, there are no meaningful differences between Republican and Democratic appointees. In the areas of affirmative action, campaign finance, sex discrimination, sexual harassment, piercing the corporate veil, disability discrimination, race discrimination and review of environmental regulations the liberal-conservative trends described above generally hold true. On the issues of abortion and the death penalty, there is a strong Republican v. Democratic appointee split, but judges tend to not be influenced by the composition of the three judge panel making the decision in their voting patterns.

A study of judicial partisanship on environmental issues can be found here.

This research supports the idea that the political party of the President in power, and the involvement in the U.S. Senate in reviewing federal court appointments strongly impacts how the law is interpreted with regard to all of the issues described above.

Another meta-analysis (i.e. compliation of studies of the issue) appears here. This study also makes the interesting observation that roughly 84% of Court of Appeal decisions (a sample year) are unanimous. This is consistent with a finding that 71% of U.S. Supreme Court decisions were unanimous from 1889 to 1959, that in a recent sample year 87% of California intermediate court of appeals decisions were unanimous, and that in the Missouri Supreme Court unanimous decisions are reached 98.5% of the time. Thus, while partisanship matters and influences results even in non-unanimous decisions, there is wide consensus on many legal issues.

Reversal Rates

There is a long standing myth that the 9th Circuit Court of Appeals is reversed at a rate far higher than other courts. While its cases do frequently appear before the Supreme Court, as about 20% of all appeals are in the nation are in the 9th Circuit, the 9th Circuit does not currently have a high reversal rate.

In 2004, the 9th Circuit cases that went to the U.S. Supreme Court were reversed at a lower rate than the average circuit. Moreover, in this largest circuit in the nation, with 12,872 appeals per year on its docket (out of a total of 60,847 federal appeals in the nation as a whole), the 19 U.S. Supreme Court reversals that did occur this year represents roughly 0.15% of the total case load in the 9th Circuit. In other words, 99.85% of its decisions were not overturned by the U.S. Supreme Court, which is a roughly 1 in 600 chance of being reversed. The reversal rate was somewhat higher than the national average, however, in the period from 1989-1998.

States courts are also frequently reversed. For example, the Virginia Supreme Court has been reversed four out of four times since 1995, more than any other state supreme court, despite the fact that it is not known for liberal interpretations of the law.

State courts

Some states also have appellate courts called the "Court of Appeals", most often as an intermediate appellate court (hearing appeals from trial courts but subject to further appeals to the state's highest court). In New York, the Court of Appeals is the state's highest court.

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