Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Congress is considering legislation that would route all immigration appeals to the U.S. Court of Appeals for the Federal Circuit, instead of the regional federal appellate courts where the cases are now heard and decided. Whether you view this proposal as preposterous (which, admittedly, was my initial reaction) or brilliant, it does present an intriguing possibility: Perhaps there are other categories of cases that, instead of being considered by the regional appellate courts, could be sent for appellate review exclusively to the Federal Circuit. As the Federal Circuit’s Web site explains: “The Federal Circuit is unique among the thirteen Circuit Courts of Appeals. It has nationwide jurisdiction in a variety of subject areas, including international trade, government contracts, patents, trademarks, certain money claims against the United States government, federal personnel, and veterans’ benefits. Appeals to the court come from all federal district courts, the United States Court of Federal Claims, the United States Court of International Trade, and the United States Court of Veterans Appeals.” In the 12-month period ending Sept. 30, 2005, the statistics show that the Federal Circuit disposed of 1,662 cases. And during that same period, 1,555 new cases were filed in the Federal Circuit. None of those cases was an immigration case, because the Federal Circuit does not currently have jurisdiction to hear that category of cases. Across the regional federal appellate courts, in the 12-month period ending Sept. 30, 2005, the statistics show that 12,349 immigration cases were initiated. More than half of those cases were commenced in the 9th Circuit, while nearly 20 percent of them were filed in the 2nd Circuit. As these statistics reveal, if all immigration cases were in fact sent from the regional federal appellate courts to the Federal Circuit, the Federal Circuit’s current eclectic and esoteric caseload would make up only approximately 11 percent of that court’s work. The remaining 89 percent would be immigration cases. BUT WHY STOP? But why stop at immigration cases? There assuredly are other categories of appeals that the regional federal appellate courts view as dry, needlessly complex, burdensome, or inconsequential. Perhaps these cases too could be sent to the Federal Circuit, so that the regional federal appellate courts would be left to handle only the extraordinarily interesting cases that appellate judges anticipate receiving when they take their oath of office. For example, all tax, bankruptcy, NLRB, ERISA, and CERCLA cases could be sent to the Federal Circuit, if only Congress would enact an appropriate law. San Jose Mercury News correspondent Howard Mintz, a seasoned journalist who regularly covers the courts, recently reported that the Federal Circuit “currently specializes in patent and bankruptcy cases.” Yet the Federal Circuit does not handle any bankruptcy cases, that court’s chief judge testified recently before the Senate Judiciary Committee. Nevertheless, Congress could make Mintz appear prescient, thereby increasing its good will among the mainstream media. Another category of cases that Congress could direct to the Federal Circuit is pro se cases, in which one or both of the parties lack counsel. Many of the immigration cases are litigated pro se by the person seeking to remain in the United States. Once the Federal Circuit develops an expertise in dealing with pro se litigants from other countries, it would take little additional effort to grapple with the appeals of pro se litigants who are in this country lawfully. Other cases that could be sent exclusively to the Federal Circuit are appeals from denials of Social Security benefits, black-lung benefits, and benefits available under the Longshore and Harbor Workers’ Compensation Act. As its Web site explains, the Federal Circuit already handles “certain money claims against the United States government, federal personnel, and veterans’ benefits.” Thus, the Federal Circuit already has a bit of relevant experience in these areas. PUNISHING THE 9TH CIRCUIT Some regard the proposal to route immigration appeals exclusively to the Federal Circuit as Congress’ attempt to punish the 9th Circuit for issuing rulings in immigration cases that are too liberal. Moreover, once the 9th Circuit no longer faces an overwhelming immigration caseload, proposals to divide the 9th Circuit into two or more federal appellate courts will appear more reasonable, because the circuit that ends up containing California will have a much smaller caseload than if the immigration appeals remained. Yet if the proposal to route all immigration appeals to the Federal Circuit is truly intended to rein in the judicial excesses of the 9th Circuit, why should Congress stop there? Congress could mandate that any appeals from federal district courts within the 9th Circuit in cases seeking to declare unconstitutional the Pledge of Allegiance or the national motto “In God We Trust” instead be heard in the Federal Circuit. And if it were possible to predict in advance the cases in which the 9th Circuit was destined to be reversed 9-0 in the U.S. Supreme Court, those cases too could be sent instead to the Federal Circuit. Congress may even wish to consider one final innovation regarding the Federal Circuit’s jurisdiction. Legislation could be enacted permitting any regional federal appellate court to transfer any case to the Federal Circuit, for any reason whatsoever, at any time between the filing of the appeal and the conference of the case after oral argument. This way, if a regional appellate court determined that a case was too boring, too complicated, too poorly lawyered, or too likely to doom the Supreme Court confirmation chances of the judges on the panel, the case could be transferred to the Federal Circuit. The crushing immigration caseload plaguing several of the nation’s regional federal appellate courts presents a serious and perhaps even intractable problem. But instead of making the Federal Circuit a court that is overwhelmed by immigration cases, why not make it a court that is overwhelmed by every conceivable sort of undesirable federal appeal? Surely this is a proposal that all of the regional federal appellate courts could wholeheartedly support.
Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. You can access his appellate Web log at appellateblog.com. This article previously appeared on law.com, an ALM publication Web site.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.