Indiana Law Review


Time For an Intermediate Court of Appeals: The
Evidence Says **Yes"

Stephen Safranek*

I. Introduction

We have **more variations of [federal law] than we have of time
zones. "^ One source of these variations is the conflict between circuits
caused by their differing interpretations of federal laws.^ Investigations
by various committees have resulted in several proposals to solve the
persisting and increasing number of intercircuit conflicts.^ Recently, these
conflicts caused Senator Thurmond to introduce a bill which would
create an intercircuit panel/ This bill, identical to the one he introduced

in the 100th Congress,^ seeks to create an intercircuit panel somewhat
along the lines advocated by both the Freund and the Hruska commissions
nearly fifteen years ago.^

Since the Freund and Hruska commissions released their reports,
numerous other proposals have been forwarded regarding the necessity
for and structure of such a court. Currently, the Federal Courts Study

Committee's (Study Committee) agenda includes such a report.^ Previ-

ously submitted proposals advocated the creation of such a court chiefly

* Visiting Professor of Law, University of Detroit; B.A., University of San

Francisco, 1981; M.A., University of Dallas, 1983; J.D., cum laude. University of Notre
Dame, 1988.

1. Baker & McFarland, The Need for a New National Court, 100 Harv. L. Rev.
1400, 1408 (1987).

2. Id. at 1404. One of the prime roles of the Supreme Court is to ensure uniformity
of federal law. Hellman, The Business of the Supreme Court Under the Judiciary Act

of 1925: The Plenary Docket in the 1970's, 91 Harv. L. Rev. 1709, 1713-14 (1978). See

also Thompson, Increasing Uniformity and Capacity in the Federal Appellate System, 1

1

Hastings Const. L.Q. 457, 458 (1984); Rx for an Overburdened Supreme Court: Is Relief
in Sight?, 66 Judicature 394, 395 (1983) (remarks of Prof. Daniel J. Meador).

3. U.S. Commission on Revision of the Federal Court Appellate System,
Structure and Internal Procedures: Recommendations For Change (1975), reprinted

in 67 F.R.D. 195 (1976) [hereinafter Hruska Report]; Federal Judiclal Center, Report

OF THE Study Group on the Caseload of the Supreme Court (1972), reprinted in 57
F.R.D. 573 (1972) [hereinafter Freund Report]; Report of the Federal Courts Study

Committee (April 2, 1990) [hereinafter Study Committee].

4. S. Rep. No. 93, 101st Cong., 1st Sess. (1989).

5. S. Rep. No. 239, 100th Cong., 1st Sess. (1987).

6. See infra Part II.

7. See Study Committee, supra note 3, at 109.

863



864 INDIANA LAW REVIEW [Vol. 23:863

to reduce the Supreme Court workload.^ The Freund and Hruska com-
missions found that courts have interpreted federal law in varying ways

and that this inconsistency has caused national problems that the Supreme

Court seems incapable of resolving.^

This Article presents a new proposal demonstrating the need for an
intercircuit court. My task in this Article is to reevaluate the arguments
for and against the creation of a court to resolve inconsistencies in

national law, and to determine whether the arguments for uniformity

lead to the conclusion that an intermediate court of some type would
benefit the Supreme Court, the appellate courts, and most importantly,

the citizenry. ^^ In addition, I will add new reasons supporting the creation
of an intercircuit panel. These new reasons extend the arguments set
forth in previous proposals by showing that the circuits are unable to

resolve intra- or intercircuit conflicts via en banc proceedings. An in-
termediate panel, such as the one I propose in this Article, would not

only eliminate the conflicts between circuits, thus reducing demands on
the Supreme Court's time, but would also reduce the need for en banc
proceedings before the circuit courts, freeing them to decide more cases,
or to spend more time deciding the same number of cases. In short.

8. See Hruska Report, supra note 3, at 209; Freund Report, supra note 3, at
577-84. The Court's increased work load is due, in part, to the increased supervision of

judges by the Supreme Court. The Court's supervisory responsibility has grown from 179

judges in 1925 to 430 judges in 1970 and 742 judges in 1987. Baker & McFarland, supra
note 1, at 1402. This growing supervision alone should warn us that the Court might

become overburdened.

The underlying premise of these commissions is that "[t]he function of the Supreme

Court is . . . not the remedying of a particular litigant's wrong, but the consideration of

cases whose decisions involve principles, the application of which are of wide pubhc or

governmental interest." Taft, The Jurisdiction of the Supreme Court Under the Act of
February 13, 1925, 35 Yale L.J. 1, 2 (1925). Chief Justice Vinson later echoed this view

saying that '*[t]he Supreme Court is not, and never has been, primarily concerned with

the correction of errors in lower court decisions." Vinson, Work of the Federal Courts,
69 S. Ct. V, vi (1949). They held this view even though they were not faced with as

great a degree of disparity between circuits in interpreting federal law as is apparent

today. See U.S. Const, art. Ill, § 2.

9. See Hruska Report, supra note 3, at 206. A perfect example of differing
interpretations that had to be addressed by the Supreme Court is found in Feeney v.

Port Auth. Trans-Hudson Corp., 873 F.2d 628 (2d Cir. 1989), cert, granted, 110 S. Ct.

320 (1989), and Port Auth. Police Benev. Ass'n, Inc. v. Port Auth. of N.Y. and N.J.,

819 F.2d 413 (3d Cir. 1987), cert, denied, 484 U.S. 953 (1987). These courts' differing

interpretations had to be redressed by the Supreme Court. See 129 Cong. Rec. S1947-

48 (daily ed. Mar. 1, 1983) (remarks of Senator Dole).

10. The creation of such a court would necessarily reduce the Supreme Court's

role as a corrector of error in interpreting federal law. However, the Supreme Court now
seems incapable of fulfilling this role. See Kurland & Hutchinson, The Business of the
Supreme Court, O.T., 50 U. Chi. L. Rev. 628, 629 (1983).



1990] INTERMEDIATE COURT OF APPEALS 865

an intermediate panel could ensure consistency in the interpretation of
federal law within and among circuits. •'

Before elaborating on a proposal, I must first set forth the ground-
work for it. In Part II of this Article, I will examine two formative
proposals that advocate the creation of an intercircuit court and the

Federal Courts Study Committee's recent proposal. In Part III, I examine

various arguments made by those opposing formation of such a court
and more recent proposals for such a court. I also examine proposals
which argue that the same results could be achieved more simply than
through the creation of an intermediate court of appeals. In addition,

I explore how each differing proposal would solve some identified prob-
lems, but not others. In Part IV of this Article, I show that, even
within circuits, conflicts in law are left unresolved because of the cum-

bersome nature of en banc proceedings. This Part briefly considers the

historical development of en banc hearings and considers their usefulness

in solving intra- and intercircuit conflicts. In Part V, I propose an

intermediate court and explain why my proposal solves many problems
earUer proposals do not solve.

Initially, I realize that any proposal I make may be long in coming
to implementation. However, I am steeled for this wait, remembering
that **[t]he 1891 Evarts Act, creating the circuit courts of appeals was

passed nearly 100 years after the First Judiciary Act and more than
forty years after it was first proposed."'^

II. Proposals for an Intercircuit Panel: First Explorations

A. Freund Commission

In 1972, the Federal Judicial Center established a panel to study,

among other things, the degree of intercircuit conflict in federal law.'^
The Federal Judicial Center charged the panel with the responsibility

*'to conduct research and [to] study ... the operation of the courts of

the United States. '""^ The panel considered the subject of unresolved

intercircuit conflicts only because the committee implicitly believed that

these conflicts reflected an inability of the Supreme Court to resolve

11. This Article implicitly accepts the premise that uniform federal law is desirable.

It will show that no justification for inconsistency exists. Moreover, the number of conflicts

now present, added to the "almost conflicts" revealed in Part IV(C), call for a solution.

The Freund and Hruska commissions asserted that this disarray was unquestionable. See

supra note 9.

12. Baker & McFarland, supra note 1, at 1415.
13. See Freund Report, supra note 3, at 573.

14. Id.



866 INDIANA LAW REVIEW [Vol. 23:863

issues that it was designed to resolve. ^^ The committee believed that
these unresolved cases were part of the Supreme Court's nondelegable

duties.'^ The number of such cases has become more acute in subsequent
years and the justices, pressed for time, are even less likely to resolve

them.'^

The committee's chief proposal was the "creation of a National
Court of Appeals which would screen all petitions for review now filed
in the Supreme Court, and hear and decide on the merits many cases
of conflicts between the circuits."*^ In most cases, this would be the

court of final adjudication for appeals.'^ Cases of conflict would be

argued, and would '*be adjudicated on the merits" by this new court. ^°

''Its decision would be final, and would not be reviewable in the Supreme

Court. "21

The primary benefit of such a court is that conflicts among circuits
would be resolved by another court, thus freeing the Supreme Court to

decide only those cases which are of importance irrespective of whether

the cases involve a conflict among circuits. ^^ As an added benefit, this
new court would resolve conflicts now left unresolved by the Supreme
Court.

15. The panel believed that the Supreme Court is meant to secure the uniform

application of federal law. Id. at 578.

16. Id. at 575. Nevertheless, it seems impossible for the Court to attempt to correct

the errors of the courts of appeals and to serve as the ultimate interpreter of the Constitution.

See Kurland & Hutchinson, supra note 10, at 629.
17. Six Justices of the Supreme Court have called for a scheme to reduce their

v^orkload. Brennan, Some Thoughts on the Supreme Court's Workload, 66 Judicature
230 (1982); Marshall, Remarks at the Second Circuit Judiciary Conference (Sept. 9, 1982)

(available on request from the Public Information Office, United States Supreme Court);

O'Connor, Comments on the Supreme Court's Case Load, delivered in New Orleans,
Louisiana (Feb. 6, 1983) (available on request from the Public Information Office, United

States Supreme Court); Rehnquist, Are the True Old Times Dead, (Sept. 23, 1988) (Mac

Swinford lecture) (available on request from the Public Information Office, United States

Supreme Court); Stevens, Some Thoughts on Judicial Restraint, 66 Judicature 177 (1982);
White, Challenges for the U.S. Supreme Court and the Bar: Contemporary Reflections,

51 Antitrust 275, 280 (1982). Others have also commented on this need. Baker &
McFarland, supra note 1, at 1401; Burger, Annual Report on the State of the Judiciary,

69 A.B.A. J. 442 (1983); Freund, A National Court of Appeals, 25 Hastings L.J. 1301
(1974); Hart, The Supreme Court, 1958 Term - Foreward: The Time Chart of the Justices,

73 Harv. L. Rev. 84 (1959). Even though the court has apparently not set as many cases
as normal for argument in the 1989-1990 term, this does not change the basic arguments

regarding the Court's overload.

18. Freund Report, supra note 3, at 590.
19. Id.

20. Id. at 593.

21. Id.

22. Hellman, The Proposed Intercircuit Tribunal: Do We Need It? Will It Work?,
11 Hastings Const. L.Q. 375, 381 (1984).



1990] INTERMEDIATE COURT OF APPEALS 867

However, it is unclear whether the formation of a court in accord
with this proposal would eliminate many cases from the Supreme Court's
docket. The Supreme Court now appears willing to let some conflicts
within circuits persist, resolving only those conflicts which involve issues

it deems of special importance. Therefore, the Court might accept some
cases involving conflicts regardless of whether an intercircuit court had

acted upon them. Nevertheless, it appears that the Supreme Court accepts
cases that involve conflicts only because the conflicts cannot be allowed

to persist, not because the issues in the cases are important.^^ The
development of the intercircuit panel proposed by the Freund Commission
would remove these cases from the Supreme Court's docket.

The other power to be given to the intercircuit court would be the
ability either to deny review or to certify a case to the Supreme Court. ^'^

By giving the intermediate court this power, the Freund Commission
suggested that an intermediate court could be given the power to decide

which cases the Supreme Court would hear. Although Justice Stevens
has suggested that such an alternative would be acceptable,^^ others may
be unwilUng to give a body other than the Supreme Court this much
authority.

Finally, the panel outlined how judges could be assigned to the
court. The panel suggested that the court consist of seven judges drawn

from the circuits to serve as special judges for a limited time.^^ The

problem with this solution is that it could create tension by allowing

circuit judges' peers to review their decisions. Circuit judges would be

less willing to accept a decision made by their colleagues than they
would be to accept a decision made by a superior court.

^"^

Several other problems would also face such a court. The size of

the panel outlined by the Freund Commission, although not as cum-

bersome as some of the larger circuits, could complicate the law by

resolving cases with special concurrences or dissents, thereby leaving the

law vague. Lastly, the number of conflicts unresolved by the Supreme

23. See supra note 9. See also Strauss, One Hundred Fifty Cases Per Year: Some

Implications of the Supreme Court's Limited Resources for Judicial Review of Agency

Action, 87 Colum. L. Rev. 1093, 1102 (1987); Kurland & Hutchinson, supra note 10, at
643.

24. Freund Report, supra note 3, at 592.

25. See infra notes 113-114 and accompanying text.

26. Freund Report, supra note 3, at 591. Judges in active service would be listed

according to seniority. The judges would be taken from this list, alternating between the

senior and junior judges. Id. The judges would serve for three years, and two judges

from the same circuit could not sit on the court at one time. Id.

27. Indeed, this unwillingness to be bound by fellow judges appears to be part of

the reason for conflicts between circuits. Judges could freely follow other circuits' decisions.

See infra Part 111(B)(1).



868 INDIANA LAW REVIEW [Vol. 23:863

Court (ninety-eight in the 1970-1971 term), a number certain to have

grown, and the number of petitions filed for certiorari would overwhelm

this court.^^ Therefore, although the Freund Commission made a step
in the right direction, its solutions, now over fifteen years old, are
obsolete.

B. Hruska Commission

In 1975, the Commission on the Revision of the Federal Appellate

System (Hruska Commission) set forth its proposals which included a

recommendation for an intermediate court of appeals.^^ This Commission

was chaired by Senator Roman Hruska, and took its name from him.
Besides recommending the creation of an intermediate circuit, it rec-

ommended the publication of internal operating procedures of the cir-
cuits,^^ new ways to allow the courts to manage their mounting workload,^^

and other various procedural changes. Most of these recommendations

were quickly put into practice.^^

Nevertheless, the recommendation that the Commission focused upon,

and which it urged most strongly, still appears no closer to realization

than it was in 1975. The Hruska Commission noted that **[i]t has been
urged upon the Commission that intercircuit conflict and disharmony

have proliferated to the point where *jurisprudential disarray' threatens

to become 'an intolerable legal mess.'*'" The Commission found that
in the 1971-72 term, the Supreme Court failed to hear ninety-eight cases
involving direct conflicts, most of which involved interpretation of federal

law.3^

The Commission's central recommendation was the creation of an
intercircuit panel. ^^ The Commission recommended that a new court be
formed to hear cases only by reference from the Supreme Court or by
transfer from the circuit courts. ^^ The Commission stated that the Su-
preme Court could **refer any case within its appellate jurisdiction to

28. See Study Committee, supra note 3, at 125. The number of direct conflicts
was estimated to be between sixty to eighty. Id. The study does not consider conflicts
that involve "fundamentally inconsistent approaches to the same issues" to be direct
conflicts. Id.

29. Hruska Report, supra note 3, at 195.
30. Id. at 200-01, 250-62.

31. Id. at 201-03, 266-73.

32. Of the four major recommendations, only the creation of the intermediate
court has failed to be embraced and acted upon.

33. Hruska Report, supra note 3, at 206.
34. Id. at 222.

35. Id. at 208.

36. Id. at 199.



1990] INTERMEDIATE COURT OF APPEALS 869

the National Court of Appeals. "^^ The National Court would "then
select those cases which it would decide on the merits, and decHne review
in the others."^* However, the Supreme Court could require the National
Court to dispose of a case on the merits. ^^ Cases which come before
the Supreme Court on appeal would either be decided by it or would
be sent to the National Court to be decided."^

The Hruska Commission's report also discussed transfers from the
circuit courts to the intermediate court. A case filed before a court of
appeals, the Court of Claims, or the Court of Customs and Patent

Appeals would be transferable to the National Court in three situations.

First, a case would be transferable if it turns on an issue of federal
law and "federal courts have reached inconsistent conclusions with respect

to it.'"^' Second, it would be transferable if it turns on an issue for
which prompt adjudication by the intermediate court would outweigh

any disadvantage of such swift adjudication.^^ Finally, a case would be

transferable if it turns on an issue previously decided by the intermediate

court and the extent of that decision needs to be interpreted in the

pertinent case."*^ The committee provided some examples of cases which
would be appropriate for transfer and set forth some basic principles

upon which to develop a transfer procedure."*^ The transfer procedures

were to "be fashioned on an individual basis by the . . . courts. . . .

The procedures [were to] be designed to minimize both the burdens on

the judges and the delay for the litigants. '"^^

This new court was to be composed of "seven Article III judges
appointed by the President subject to confirmation by the Senate, and

holding office during good behavior. It would sit only en banc.'"^ It

was expected to "decide at least 150 cases on the merits each year.'"^"^

The benefits of such a court, as well as its shortcomings, are several.

First, this structure still requires the Supreme Court to sift through cases

and decide which ones are suitable for this new court. Thus, it burdens

the Supreme Court to a greater degree than it is currently burdened by

asking it to decide which cases are important enough to be decided by

37. Id. at 239.

38. Id.

39. Id.

40. Id.

41. Id. at 242.

42. Id.

43. Id.

44. Id. at 243-46

45. Id. at 245.

46. Id. at 237.

47. Id. at 246.



870 INDIANA LAW REVIEW [Vol. 23:863

this court/^ If the Supreme Court neglected this responsibility, merely

assigning all of the suggested conflicts to the National Court, the National

Court would have no time for other business. In short, this court would

be incapable of handling the large number of cases it would face under

normal conditions. In addition, its size is the same as that suggested

by the Freund Commission, and is therefore similarly defective insofar

as such a court could often fail to delineate a clear interpretation for

a case placed before it."*^

On the other hand, this court has some particular advantages, in-
cluding the ability to solve conflicts in the circuits even before they have

time to develop. If the circuits willingly send cases to the intermediate

court, it could create clear precedent, thereby precluding the development

of some conflicts. In addition, the permanent nature of these judgeships,

unlike those suggested by the Freund Commission, would provide this

intermediate court with prestige and stability; the former would attract

judges of the highest caliber, while the latter would help ensure con-

sistency in federal law. Despite these clear benefits, the requirement that

the Supreme Court largely screen this appellate court *s docket would

cause either a reduction in the Supreme Court's capacity to decide cases

because of the burden of the screening process or it would cause the

appellate court to be overwhelmed by the flood of cases sent to it because
the Supreme Court did not carefully screen cases. ^° In either instance,
neither the Supreme Court nor the new appellate court would be as
effective as it could be under other proposals.^'

C Study Committee
The Federal Courts Study Committee recently released its report on

and recommendation for the federal courts." The Chief Justice appointed
this committee to review the **federal courts' congestion, delay, expense,

and expansion."" The Study Committee focused only on institutional
reforms that could better our federal courts. ^"^ It recognized that the

48. Alsup & Salisbury, A Comment on Chief Justice Burger's Proposal for a
Temporary Panel to Resolve Intercircuit Conflicts, 11 Hastings Const. L.Q. 359, 364

(1984).

49. For a thorough critique see Owens, The Hruska Commission's Proposed Na-
tional Court of Appeals, 23 UCLA L. Rev. 580 (1976).

50. The Justices probably would foist this screening process on their clerks. If
they did so to a large degree, law clerks, not article III judges, would be deciding what
laws are deserving of clarification.

51. See infra Part V.

52. Study Committee, supra note 3.
53. Id. at 3.

54. Id.



1990] INTERMEDIATE COURT OF APPEALS 871

increasing number of appeals to the circuits and the resultant caselaw
made "problematic'' uniformity of precedent within and among circuits."
After having summarily set forth various proposals for an intermediate

appellate court, the Study Committee set forth its own recommendation.^^
Its recommendation was simple: conflicts between circuits should be
resolved by having a third circuit decide the conflict en banc.^^

The Study Committee proposed that when the Supreme Court de-
termines that a conflict between circuits is worthy of national attention,

it should refer the case to a court not involved in the conflict, which

court will hear the case en banc.^^ This procedure has numerous short-

comings. First, it leaves the resolution of conflicts on the same level of
authority as the level at which the conflict was created. Also, under

this procedure, every appellate panel will be subject to control by decisions

of courts of equal stature. This may lead panels in other circuits to
distinguish their cases on narrow grounds because of an unwillingness

to be governed by their equals. ^^ Secondly, this proposed solution is

burdensome. If, as the Study Committee notes, there are at least sixty

direct conflicts and numerous indirect conflicts that the Supreme Court

does not resolve every year, the Supreme Court could, under this pro-

posal, certify at least sixty cases to intra-circuit panels. This would

increase the number of en banc sittings by over fifty percent.^^ The

amount of judicial time thus spent on hearing en banc cases could swamp
the circuit courts. ^*

The Study Committee's proposal also errs by providing that the

Supreme Court should be given the authority to determine which cases

involve true conflicts.^^ It said that this
*

'active participation in the

experiment will make it possible to find out whether there are many or
only a few conflicts that are both unsuitable for Supreme Court review

and nonetheless deserve national resolution. "^^ The Study Committee

believed the Supreme Court is uniquely suited to this task.^ Such a

perspective fails to consider whether the Supreme Court has the time

to consider whether cases of conflict are worthy of resolution. Given

the Supreme Court's already overburdened position, the addition of this

55. Id. at 7.

56. Id. at 125.

57. Id. at 126.

58. Id.

59. See infra Part IV(C).

60. See infra notes 123-124.

61. See infra Part IV(B)(1).

62. Study Committee, supra note 3, at 127.

63. Id.

64. Id.



872 INDIANA LAW REVIEW [Vol. 23:863

new responsibility is unwarranted. It would require that the Court not

only determine whether a conflict exists, but whether the conflict is

serious. In so doing, the Court must find that the conflict is serious

enough to merit consideration by an en banc court, but not so serious

as to merit consideration by the Supreme Court itself. In so adding to

the Court's work, this recommendation fails one of the significant tests

by which any proposal must be gauged — it must not increase, but
should decrease, the Court's workload.

The proposal also causes one other problem. Because it relies on

en banc courts to decide cases, large panels will decide the conflict

cases. ^^ Such large panels can prove unwieldy, with fragmented plurality

opinions and disparate dissents. Such a result is likely when important

issues are at stake, as in many conflicts. This consequence would leave
the national law even more confused than it would be were each circuit

to have clear precedent which conflicts with precedent of another circuit.

Thus, the Study Committee's proposal fails on all counts. It will

increase the burden on both the Supreme Court and the circuit courts,
and it may not be capable of establishing guiding precedent. As a
consequence, the proposal should be rejected.

III. Other Proposals

A. ... Don't Fix It

Two judges on the courts of appeals have protested the formation
of any intercircuit panel^^ by writing articles against such an intercircuit

panel.^^ Judge Ruth Bader Ginsburg of the District of Columbia Court

of Appeals believes that such a court is unnecessary because Congress,

not the courts, is to blame for the disarray in federal law throughout

the country.^^ Congress, she believes, has caused intercircuit conflicts by

drafting vague laws and by leaving the tough questions to judges.^^

65. The Study Committee does suggest that en banc panels should be made smaller,
but even were they to consist of eleven judges, like the Ninth Circuit en banc hearings,

they would still be quite large. See Study Committee, supra note 3, at 115.
66. Ginsburg & Huben, The Intercircuit Committee, 100 Harv. L. Rev. 1417

(1987); Wallace, The Nature and Extent of Intercircuit Conflicts: A Solution Needed for
a Mountain or a Molehille?, 71 Calif. L. Rev. 913 (1983).

67. Note, Of High Designs: A Compendium of Proposals to Reduce the Workload
of the Supreme Court, 97 Harv. L. Rev. 307, 315 (1983). **[L]ittle evidence suggests
that intercircuit conflicts compose a particularly neglected portion of the docket" of the
Supreme Court. Id.

68. Ginsburg & Huben, supra note 66, at 1420.
69. Id. As one commentatary has stated, "[Clongress often leaves the task of

interpretation to the judiciary when it is unable to develop a consensus on the details of
an issue." Baker & McFarland, supra note 1, at 1413.



1990] INTERMEDIATE COURT OF APPEALS 873

Moreover, even if Congress had not created such problems, she believes
that the benefits of intercircuit conflicts outweigh any detriment caused

by them. The benefit, she perceives, is caused by allowing conflicts to
** percolate.

"''^ * 'Percolation" is explained as allowing conflicts to persist

throughout the country so that the best solution to a problem can be
found through trial and error. ^' This idea is identical to that of Judge
Wallace of the Ninth Circuit Court of Appeals, who also thinks that
percolation is a valuable effect of conflicts — allowing the observation
of differing practices of the law.^^ He observes that "the very diversity
of our vast country, with its many regional differences and local needs,
logically supports a flexible system that can benefit, when appropriate,
from federal law which takes account of these regional variations (e.g.,

in fields such as water rights). "^^

These two judges' perceptions of the benefits of percolation are

indefensible when carefully weighed. ^"^ First, their perception of the ben-
efits of percolation would only be accurate if Congress or the Supreme

Court sent observers out to the circuits to see how the circuits' differing
interpretations of federal law affect the differing circuits' citizenry. ^^

Needless to say, such fact gathering is not done by the Supreme Court, ^^

and nothing suggests that Congress does such either. ^^

Secondly, these two judges completely ignore the fact that Congress,

when it implements federal law, expects its laws to be carried out
uniformly. "^^ If Congress wanted its laws to be carried out in different

ways — according to local or regional differences — it could adopt
language in its statutes to so guide judges. ^^ To argue that percolation
is good with respect to a specific federal law is to argue that federal

law should itself not exist as a uniform law of the land.^^ In fact, it

70. Id. at 1424. See Note, supra note 67, at 317.

71. Ginsburg & Huben, supra note 66, at 1424.
72. Wallace, supra note 66, at 929.

73. Id. at 930 (emphasis added).

74. Justice Stevens also has said that the number of conflicts is exaggerated, and

has noted the value of percolation. See Stevens, supra note 17, at 183.

75. Kurland & Hutchinson, supra note 10, at 639.
76. Schaefer, Reducing Circuit Conflicts, 69 A.B.A. J. 452, 454 (1983). "The

notion of the Supreme Court's monitoring the results of experiments in more than 100

conflicting interpretations each year strains credulity." Id.

11. Kurland & Hutchinson, supra note 10, at 639.
78. Thompson, supra note 2, at 458.

79. Congress could pass statutes which rely upon local, state, or regional distinctions.

It could use non-federal laws as keys to federal law.

80. R. PosNER, The Federal Courts: Crisis and Reform (1985). Posner argues

that there "is a presumption that it [a conflict] should be allowed to simmer for a time

at the circuit level." Id. at 163. The reason for the presumption is unknown and unclear,

and I think nonexistent.



874 INDIANA LAW REVIEW [Vol. 23:863

argues for state or local laws. This belief, although arguably correct in

specific instances, allows judges to arbitrarily shape the law to their

particular circuit. Many believe that Congress makes too many national
laws. However, the citizenry — through their elected representatives —
should make that decision. ^^ Judges should not assume that they have

the ability to correct Congress's failure to account for regional differences

by shaping the law to fit their perception of what the law should be.

In so trying to correct congressional errors, they destroy the most

elementary principle of federal law, coherency. ^^ Such a role for federal

courts directly counters the very reason for their creation. ^^ Indeed, it

is a claim for states' rights.
^'^

Thirdly, Wallace's argument overemphasizes and underemphasizes

regional and local differences. As a member of the circuit with the
largest number of members and covering the most varied terrain, he

should realize that San Francisco has more in common with Houston
than it does with Spokane. ^^ Yet, he does not think that he and members

of the Ninth Circuit would be justified in ignoring decisions of other

panels in his circuit if they found that local or regional differences

justified this treatment. A system of percolation in the Ninth Circuit
would actually be better than national percolation because judges like

himself could keep a close watch on the results, thus saving the Supreme

Court or Congress from such a task. In so doing, they could provide

a valuable service to the courts and to Congress. However, the judges

in the Ninth Circuit would not be pleased if panels began adapting laws

to fit particular parts of the circuit and explicitly relied upon such
differences. Yet, this is the essence of Wallace's and Ginsburg's argument.

Fourthly, the judges are unconcerned by inconsistencies in federal

law that promote forum shopping. One commentator thinks that in-
consistencies between circuits are one of the significant reasons for forum
shopping. ^^ Judge Wallace attempts to justify inconsistent results between

circuits by noting that real persons are not those usually subject to

forum shopping problems; instead, the burdens of the system are borne
by big business. Thus, these conflicts are merely the cost of doing

81. Even though we have also chosen circuits, Congress has never given them the
right to decide cases due to the particular differences within the circuit.

82. See Strauss, supra note 23, at 1092.

83. The Federalist No. 80 (A. Hamilton).
84. See generally Posner, supra note 80, chapter 6, where he discusses the rela-

tionship between the federal and state system in America.

85. Shaefer, supra note 76, at 454.

86. Marcus, Conflicts Among the Circuits and Transfer Within the Federal Judicial
System, 93 Yale L.J. 677 (1985). He said that these inconsistencies provide a "significant
incentive" for forum shopping. Id. Over 2,000 cases a year are transferred between circuits.
Id. at 678. See also Thompson, supra note 2, at 469.



1990] INTERMEDIATE COURT OF APPEALS 875

business. ^^ This perception reveals Wallace's failure to see that the costs

of doing business are ultimately paid for by citizens.
Judge Ginsburg's and Judge Wallace's arguments for percolation

also fail to present any evidence in support of percolation. Neither of
them cites a single instance in which percolation was valuable in helping
Congress or the Supreme Court to rectify the law in light of the best
practice. Indeed, differing interpretations of federal law produce con-
flicting precedents, none of which is practically better than any of the
others, but all create problems with the conflict they present. ^^ Indeed,

a well-articulated basis for percolation does not exist. Therefore, the

rising number of intercircuit inconsistencies indicates that something is
broken.

B. Fix It

Various scholars and practitioners of the law have been on the other
side of this debate. Their views and their proposed solutions merit serious
consideration.

1. First in Time, First in Right.—One practitioner who opposes
Judges Ginsburg and Wallace's proposal is Walter Schaefer. He has
proposed perhaps the clearest solution to the problem of intercircuit

conflicts.*^ He advocates that the circuits merely follow decisions of
other circuits.^

Shaefer's argument is one of the most logical of those proposed.

He notes that **[t]here is no element of sovereignty in a federal judicial
circuit."^' As a result, he believes that the courts in each circuit do not
have a right to ignore the rulings of other circuits. He believes that
their failure to act consistently * ignores the impact of the law on real

people. "^^ In addition, he notes that judges themselves have resolved to

ensure uniformity in their own circuits, and could mandate the same
among circuits. ^^ Just as no federal law mandates that one circuit panel
follow the rulings of another panel in that circuit, so too, nothing

mandates intercircuit harmony. Just as judges have opted for intra-circuit

harmony, they can also opt for intercircuit harmony. Shaefer believes

that the best rule would require circuits to follow the decision of the

87. Wallace, supra note 66, at 931.

88. See Posner, supra note 80, at 236. He states, when criticizing too many
dissents, that *'[t]he case may involve one of those frequent questions where it is more
important that the law be settled than that it be got just right." Id. (emphasis added).

89. Shaefer, supra note 76, at 452.

90. Id. at 455.

91. Id. at 454.

92. Id.

93. Id. at 455.



876 INDIANA LAW REVIEW [Vol. 23:863

first court to rule on an issue unless that decision is overridden by an

en banc panel in the second circuit which considers the matter. ^"^

The obvious strength of this position is its simplicity. The court

first to rule on an issue binds all future panels unless its decision is

modified by an en banc panel. As a result, all conflicts are resolved by
following the decision of the first court to decide an issue. However,

several problems challenge this simple solution.

The foremost problem with Schaefer's proposal is its implementation.
Even if the circuits were to adopt such a rule, several difficulties would

arise. The circuits would need to agree on whether the first panel to

hear the case or the first to publish its opinion has priority. If the

former were adopted, a panel might be forced, months after its decision,

to withdraw its decision and to realign the rights of the various parties

in light of an earlier heard, later disposed-of case, or to delay its decision

in anticipation of an earlier argued case. If the latter were adopted,

panels might rush to publish knowing that their colleagues in another

circuit were resolving the same issue. This could result in poor opinions

being rushed to the presses. This problem could be resolved partially

by a central processing center that informs the panels when a case with
similar issues has been argued. Thus, panels could withhold their opinions

awaiting an earlier argued case's resolution. This solution would probably

create as many problems as it solves; among which is the failure of the
processing center to see potential conflicts, thereby causing conflicts and

the problems noted above.

The size of federal courts today is likely to lead to another problem:

countless distinctions and a fracturing of federal law. Judges throughout

the country, finding themselves bound by the opinion of two judges in

another circuit, might be willing to distinguish their case from the earlier

one on weak grounds. ^^ This distinguishment would itself fracture federal

law, leading to the type of balkanization that the rule of first in time

was meant to prevent. ^^ Furthermore, once such subtle distinctions have

crept into the law, circuits themselves could find the need to hold more

en banc reviews to resolve intra-circuit conflicts, thus wasting precious

judicial time.

2. Let the Conflicting Circuits Resolve the Conflict.—One other
commentator has noted that the Supreme Court is overworked and has

structured a proposal to reduce its workload. He believes that the Court

94. Id.

95. See infra Part IV(C).

96. See infra Part IV. I will show that such a problem already exists in the federal

courts today.



1990] INTERMEDIATE COURT OF APPEALS 877

could reduce its workload if it were able to choose its docket completely.^''
Coleman suggests that

[wjhenever a circuit renders a decision that is in conflict with

a prior decision of another circuit, the losing party should be

allowed to petition the court issuing the conflicting opinion for

a rehearing before a panel of seven judges, three from each of
the two circuits which gave rise to the conflict, and a seventh
to be assigned from another circuit by the Chief Justice. ^^

Coleman believes that this situation has six advantages over the
current system, among which are: efficiency, because "the issue has
already been briefed and argued before three of the judges conducting
the rehearing"; fraternity, because "it does not elevate a group of circuit

judges to a special panel to sit in judgment on their peers," and;
confidence, because "it does not create the public impression of a

'supercourt' . . . that would undermine public respect for the circuit

courts."^

These apparent virtues pale beside the problems that Coleman's

proposal presents. First, Coleman presents no mechanism by which to
determine whether a conflict has arisen. Apparently, a conflict would

only arise when a panel of judges decided that it wanted to resolve an
issue differently than a panel had in another circuit and articulated its

view that a conflict existed. This could prevent judges on the second

court, if they thought they might get an adverse seventh judge on an

intercircuit panel, from stating that a conflict existed, thus causing the

same fracturing as caused by Schaefer's proposal. If, in the alternative,

the entire circuit had to vote on whether an intercircuit conflict had

arisen, the vote could often progress upon the judges' opinions on whether

they thought the panel had made a poor decision, and whether the
decision would be rectified by the special en banc panel. This could

lead in turn to another problem. The second panel, which was accused

of creating the conflict, would have incentive to distinguish its case on

the most insignificant facts, thereby contributing to the number of

"almost conflicts" in the courts. This would be of even greater disservice

to the citizenry than clear conflicts among the circuits because such
conflicts at least provide a degree of certainty within a particular circuit.

Second, Coleman seems to believe that an intermediate circuit would

"undermine public respect for the circuit courts."**^ I fail to see how

97. Coleman, The Supreme Court of the United States: Managing its Caseload to

Achieve its Constitutional Purposes, 52 Fordham L. Rev. 1, 16-17 (1983).

98. Id. at 18.

99. Id. at 19.

100. Id,



878 INDIANA LAW REVIEW [Vol. 23:863

an intermediate circuit court would necessarily undermine public respect.

Even if it did, I fail to see what harm would result to the judiciary if
such a decrease were accompanied by a greater respect for judges and

the law in general, because of the law's consistency. No evidence suggests
that the public would lose respect for the circuits because of a new
intermediate court. Instead, the formation of an intermediate court could

lead those who deal with the courts to realize that circuit judges are
part of a web of persons charged with interpreting the law consistently.
Circuit judges may be reluctant to accept a court with the ability and
time to oversee their decisions, but their feelings in this matter should

give way to the values of consistency in federal law. Such consistency
would increase the citizenry's respect for the law in general, and would

thereby lead to a greater respect for circuit judges even though their

decisions would no longer be practically unreviewable except in less than

one percent of the cases. '°'

Finally, Coleman asserts that his system would encourage judges to
show **a greater respect ... for the precedents of other circuits. "^°^

Yet, he fails to recognize that courts could now decide to follow the
precedent of other circuits without the need for any legislation or a new
court. Despite the courts' failure to follow decisions in other circuits,

he believes that the courts themselves can be used to create consistency.

The courts' failure to do so is due not only to an unwillingness to
follow the will of their brethren, but also to an inability to do so even

if they were willing. The very size of the courts and the number of

cases they hear quite naturally result in inconsistencies that can only be

resolved by a court whose purpose is to deal with inconsistencies and

that has the power to oversee the circuits by ensuring that conflicts are

resolved. '°^

5. A National Court.—Among various proposals regarding an in-
termediate court is one that proposes a National Court with judges

drawn at random from various circuits.'^ This proposal has several
unique features, some of which are strengths and some of which make
the court unworkable.

This proposal allows judges drawn for the court to decide whether

they have jurisdiction over a case.'^^ Cases could come to this court on

appeal from district courts when a party has petitioned it, claiming that
the decision in the petitioner's case conflicts with published rulings by

101. Study Committee, supra note 3, at 111,
102. Coleman, supra note 97, at 19.

103. See infra Part III(B).

104. Thompson, supra note 2, at 495.

105. Id. at 494.



1990] INTERMEDIATE COURT OF APPEALS 879

two other circuits. •^ In addition, cases could come to this court by
certiorari from any circuit court decision that conflicted with one of the
new court's prior ruhngs.^^^

The advantage of this proposal is that it would not additionally
burden the Supreme Court with having to screen cases for another court.
In addition, this court would reheve some of the current pressure on
the Supreme Court by hearing some of the cases now heard by the
Supreme Court.

However, Thompson's proposal is still not adequate to the task at
hand. First, although his panel of seven judges is arguably small enough

to prevent numerous concurring opinions, it could still meet with a large

number of concurrences. Any number larger than three makes possible
more fractured opinions than is necessary. '^^ There is no magic attached

to the numbers five, seven, nine, etc. Not a single argument has been
made showing that such numbers will help a new court deal with its
workload. Indeed, a court composed of three judges — the smallest
number possible which allows majorities and dissents — could do the
job effectively. This is the same number of judges originally allowed in

the circuits. A three judge panel, thus, seems ideal.
The second problem with this proposal is an administrative one.

Because seven judges would be drawn randomly from the circuits and

would sit on the panel for a regulated number of years, no convenient

sitting place would exist for the judges. Judges of this court could not

be expected to uproot themselves and their families to live in some

central location for three (or less) years. *^ Therefore, the judges them-

selves would be required to travel somewhere distant at regular intervals

to hear cases. This would place a strain on judges, decreasing their

ability to hear and decide cases. ''°

The third problem is that the restricted ability of this court to hear

conflicts allows percolation, with no certain end in sight. Only a decision

by two circuits and one district judge would normally allow the National

Court to hear a case. However, no reason exists to allow divergent

interpretations of federal law to exist until three different circuits decide

an issue. Two circuits may have an important conflict, yet the National
Court could not hear it.

106. Id.

107. Id.

108. R. PosNER, Economic Analysis of Law 512 (3d ed. 1986) [hereinafter Economic
Analysis of Law]. Posner notes that the more parties one has to a transaction the more

complicated it becomes in an exponential fashion. Id.

109. Id. at 499.

110. In addition, this court faces many other problems. See Alsup & Salisbury,
supra note 48, at 367-68. These comments apply equally to Thompson's proposal.



880 INDIANA LAW REVIEW [Vol. 23:863

Thompson's proposal, like the raft of other proposals, implicitly

accepts the value of percolation and is wary of treading on circuit court

judges' prerogatives. However, these authors fail to understand that a

court which could provide clear and swift review of conflicts — within
and among circuits — would aid the citizenry and the courts. Clear
laws would make for fewer appeals, thereby saving citizens from needless
litigation and allowing courts to spend more time considering other cases.

4. Agency Acquiescence.—A large proportion of federal law subject
to review by the circuits involves the actions of administrative agencies.

Currently, the Supreme Court allows these agencies to take inconsistent

positions in different circuits.'" As a result, agencies can press panels

in one circuit to interpret the law in ways differently than it is interpreted

by other circuits.''^

What is freely given could be freely denied. The Supreme Court
could, if it chose to, require agencies to adopt the ruling of the first

circuit to rule on a matter. Although the rule only cuts against agencies

and not those in disagreement with them, it could eliminate some of
the conflicts in the circuits. This is especially true for those issues that

are of little impact.

However, if a court's ruling is of little impact, it would seem that

the agency would shepherd its resources and would not seek a different

ruling in another circuit. In those instances, though, where the rule had

a significant impact, the agency would seek to distinguish cases between

circuits. If the issue did appear to be important, the courts would be

more willing to perceive such a distinction.
Although this rule would have some impact, it would be hobbled

by the same factors that would limit the effectiveness of Schaefer's

program.

5. Other Proposals for Intercircuit Panels.^Among the various pro-
posals for some type of intermediate appellate court has been that of

Justice Stevens, who has suggested the creation of a court that would
screen all certiorari petitions and select the docket of the Supreme

Court. ''^ This court was meant to be identical to the court proposed

by the Freund Commission except for Steven's view that its selection

of cases for the Supreme Court would be mandatory.''"^ Thus, it has

that proposal's strengths and weaknesses."^

111. See United States v. Mendoza, 464 U.S. 154, 155 (1985).

112. Note, Administrative Agency Intracircuit Non Acquiescence, 85 Colum. L. Rev.
582 (1985). This right could be taken away at some point. See Owens, supra note 49, at

598.

113. Stevens, supra note 17, at 177.

114. Id. at 182.

115. See supra notes 12-28 and accompanying text.



1990] INTERMEDIATE COURT OF APPEALS 881

Former Chief Justice Burger also proposed an interim court that
would be authorized to decide all cases of intercircuit conflict. ^'^ This
proposal is similar to the one recently introduced by Senator Thurmond."^

In his proposal, Burger calls for a temporary court attached to the

United States Court of Appeals to the Federal Circuit.''^ This court

would be authorized to decide cases involving intercircuit conflicts and

possibly would decide cases involving statutory interpretation.'*^

Senator Thurmond has introduced a bill along similar lines. '^^ This
bill calls for an intercircuit panel composed of nine judges and four
alternates who are to be designated by the Supreme Court. '^^ This bill
would amend Section 4(a)(1) of Chapter 81 of Title 28 U.S.C. so that
**[t]he Supreme Court may refer a case in which it has found to exist
a conflict with the determinations of another circuit of the United States

Courts of Appeals to the Intercircuit Panel. "'^^ The Supreme Court
could review the decisions of this intercircuit panel. '^^

These two proposals, which provide jurisdiction via the Supreme

Court, would not solve one of the critical problems to which they were

addressed — a decrease in the Supreme Court's workload. The reason
that they would not is that the Supreme Court still would be forced to

decide which cases were to be heard by this panel. •^'^ In addition, this

court is even larger than that proposed by the Hruska and Freund

commissions and would therefore pose the same problem of splintered

opinions.

6. Conclusion.—A variety of arguments and counter arguments have
been made regarding the need for and the efficiency of various types
of intercircuit panels. The shortcomings of the various proposals essen-

tially have been twofold. First, some of the proposed courts would

actually burden the Supreme Court by requiring it to sift through cases

for the new court. (Freund, Hruska, Study Committee, Thompson,

Burger, and Thurmond proposals). Second, all of the courts are to be
composed of such a large number of judges that spHntered opinions

would be likely.

Furthermore, various proposals have shortcomings, including tem-

porary judges (Freund and Thompson) and administrative organization

116. Burger, supra note 17, at 442.116. Burger, supra note 17, at 442.

117. For a full critique of this court, see Posner, supra note 80, at 162-66.

118. Burger, supra note 17, at 442.

119. Id.

120. See supra note 4.

121. Id. at 2-3.

122. Id. at 5-6.

123. Id. at 7.

124. See Stevens, supra note 17, at 179.



882 INDIANA LAW REVIEW [Vol. 23:863

(Shaefer, Coleman, and Thompson), making them less than ideal. In

addition, the various proposals have failed to address Wallace's and

Ginsburg's arguments.

In the Section which follows, I show that the need for the repair
work originally proposed by the Freund and Hruska commissions has
grown to new dimensions because the circuits have been unable to
maintain reasoned uniformity of the law within each circuit. Thus, I

add a new and even more potent argument to the arsenal of those
calling for the creation of a new circuit.

In addition, I ultimately propose a court that is administratively

simple, that will be capable of handling its potential workload, and that

is likely to produce clear rules of law. First, however, I reassess whether

en banc courts and the current court structure adequately handle con-

flicting interpretations of federal law.

IV. The Current En Banc Situation

A. Introduction

In 1988, 117 cases were placed before en banc panels in the various

circuits. In 1969, only thirty-eight such cases had been similarly placed. '^^

The number of en banc cases heard by the circuits has not increased
with the same degree of rapidity as have fiUngs with the court of appeals.

Nevertheless, the number of cases heard by en banc panels has nearly
tripled in the past twenty years while the number of filings with the
courts of appeals has quadrupled. '^^ This tripling of en banc hearings

125. The number of cases heard en banc has increased steadily, despite a few

temporary drops, since 1968. In fact, the number of en banc hearings increased 236%
between 1968 and 1988. The number of total cases heard increased 412% for the same
period. These statistics are cited from the 1968 and 1988 Director's Annual Report.

126. See Director's Report 195 (1979). The filings numbered 9,116, and the en

banc hearings numbered 39 in 1968. In 1988, the filings were 37,524 and the en bancs

numbered 92. Director's Report 2 (1988). One would have expected en banc hearings
to increase at least as dramatically as filings because the number of cases filed and the

increased number of judges, increasing from 97 to 156, would accelerate the chances for

conflict. This result has been avoided by three factors: the increase in non-published

dispositions which thereby cannot cause a conflict; the ability of judges themselves to

vote for en banc hearings, thus allowing judges to limit en banc hearings, but not to

limit filings; and the judges' creation of "almost conflicts" which has been noted above.

Indeed, one commentator has said,

there remains a strong presumption against exercise of the en banc power. Judges

view en banc hearings as divisive and seek to avoid the friction engendered by

a procedure designed to resolve intracircuit conflicts. En banc sittings are costly
as well, requiring the attention of each active judge in the circuit.

Note, Playing with Numbers: Determining the Majority of Judges Required to Grant En
Banc Sittings in the United States Courts of Appeals, 70 Va. L. Rev. 1505, 1508 (1984).



1990] INTERMEDIATE COURT OF APPEALS 883

in less than twenty years reveals that conflicts within circuits have at
least tripled in twenty years. Indeed, this Section shows that this increased
number of en banc hearings would need to be even greater if circuits
were to resolve all of their intra-circuit conflicts. The inability or un-
willingness of each circuit to maintain uniformity in interpreting federal

law is thus another reason to create an intermediate court of appeals.

Current procedures for reviewing cases and maintaining uniformity within

the circuits are unable to actually maintain intra-circuit harmony.
It was not until 1947 that Congress codified the law providing for

en banc courts. '^^ This enactment arose as a result of the Supreme
Court's decision in Textile Mills Securities Corp. v. Commissioner. ^^^

In that case, the Supreme Court was faced with interpreting a section
of the United States Code which provided that *'[t]here shall be in each
circuit a circuit court of appeals, which shall consist of three judges,

of whom two shall constitute a quorum, which shall be a court of record
with appellate jurisdiction. '''^^ Two circuits had interpreted the code
section differently. The Third Circuit had held that the court of appeals
could sit en banc, with more than three judges deciding a case.^^^ The
Ninth Circuit held that the court of appeals could not sit in a number
larger than three. '^' The Supreme Court analyzed the various statutes

affecting the work of the circuit courts and concluded that the courts

could sit en banc with more than three judges. '^^ The Court noted that

the benefits of en banc review were threefold: 1) more effective judicial

administration, 2) conflicts within a circuit will be avoided, and 3) finahty

of decision in the circuit courts of appeal will be promoted.'" It concluded

that en banc hearings were allowed by statute. Today, circuits use en

banc panels to maintain intra-circuit uniformity in applying a law.

Two rules have been developed to guide judges in voting for en
banc hearing by their court. '^"^ A circuit '*may" vote to hear a case en
banc **when consideration by the full court is necessary to secure or

maintain uniformity of its decisions, or (2) when the proceeding involves

a question of exceptional importance. "'^^ Although this language suggests

that an en banc panel should be convened only to resolve conflicts

127. 28 U.S.C. § 46(c) (1968).

128. 314 U.S. 326 (1941). See H.R. Rep. No. 306, 80th Cong., 1st Sess. A6 (1947).
129. 28 U.S.C. § 212 (1968) (repealed 1982).

130. Commissioner v. Textile Mills Sec. Corp., 117 F.2d 62, 67-71 (3d Cir. 1940)

(en banc).

131. Lang's Estate v. Commissioner, 97 F.2d 867, 869 (9th Cir. 1938).

132. Textile Mills, 314 U.S. 326, 329-35.

133. Id. at 335.

134. Fed. R. App. P. 35.

135. Id.



884 INDIANA LAW REVIEW [Vol. 23:863

within a circuit, at least one circuit has decided that intercircuit conflicts

also are governed by this rule.'^^ Nevertheless, not a single reported case

appears to have been taken en banc for the sake of intercircuit harmony.*^''

This absence indicates that the circuits themselves will not resolve in-

tercircuit conflicts.

The need for an intercircuit court, as a court capable of resolving
conflicts in interpretations of federal law, is highlighted by the circuits*

inability to resolve these conflicts themselves. Another compelling reason

for such a court is the inability of each circuit to resolve intra-circuit

conflicts by means of en banc review. This argument has not been made
before. Yet, its validity will be shown by considering the limits of en
banc review.

B. Intra-Circuit Conflicts

1. Procedure for En Banc Review.—Whenever discussion of conflicts
among or within circuits begins, an advocate will attempt to distinguish
the cases, thereby eliminating the conflict. '^^ However, these distinctions

generally are not based upon a real difference. In fact, such arguments
could be used to eliminate the precedential value of any decision by

confining it to its unique facts. These distinctions without a difference

cost the courts and society.

They cost society because citizens within a circuit do not have a
clear body of law to guide their actions. The law, as interpreted, does
not give those subject to its power the rules by which to shape their

actions. They cost the courts because the ambiguities result in more

cases taken to court and more appeals taken to the courts of appeals.

Therefore, both society and the courts would benefit from clear circuit

precedent.

Each circuit has its own rules for preventing intra-circuit conflicts. '^^

Generally, not only can counsel request rehearing en banc upon a belief

136. Ninth Circuit Rule 35-1 states:

When the opinion of a panel directly conflicts with an existing opinion by
another court of appeals and substantially affects a rule of national application

in which there is an overriding need for national uniformity, the existence of

such conflicts is an appropriate ground for suggesting a rehearing en banc.

9th Cm. R. 35-1, reprinted in U.S.C.S. Court Rules (Law. Co-op. 1983 & Supp. 1989).
137. Although I cannot conclusively state that no such cases exist, a broad search

through the online computer services revealed no cases among the en banc decisions Avhich
were based solely upon an intercircuit conflict.

138. See Feeney, Conflicts Involving Federal Law: A Review of Cases Presented to
the Supreme Court, 67 F.R.D. 301, 305-06 (1975).

139. All of these rules can be found in U.S.C.S. Court Rules (Law, Co-op. 1983

& Supp. 1989). Each of the circuits has developed its own rules, including whether they
call it "en banc" or "in bank" or even a combination of the two. The First (Rule 35),



1990] INTERMEDIATE COURT OF APPEALS 885

that an intra-circuit conflict exists, but judges within the circuit can
suggest a hearing by the full court. ''^

Requests for en banc review can meet with a variety of responses.''*'
First, the panel that has written the case can respond by modifying the

opinion. In so doing, the panel may reverse itself or, more commonly,
note a distinction revealing why its decision differs from the case with
which it allegedly conflicts. Second, the panel can reject the petition

without modification. Third, the conflict may be clear, and the panel
may find itself bound by conflicting precedents; thus, it may request a
vote for calling an en banc panel to decide the issue. If the vote is

against the formation of such a panel, the original panel will then have

to decide which of the conflicting precedents it will follow. Finally, an

active sitting judge may request a vote for an en banc review. Again,
the court may reject this suggestion, and the panel will proceed as in
the previous situation.

Yet, even when requests are made for en banc consideration, judges
in the circuit do not necessarily vote to hear the case en banc. Federal

Rule of Appellate Procedure 35(a) outUnes the requirements for a circuit

to hear a case en banc. The rule states: "A majority of the circuit
judges who are in regular active service may order that an appeal or
other proceeding be heard or reheard by the court of appeals in banc."'"*^

This rule essentially requires a majority of the active judges to vote in

favor of hearing a case en banc before the court will hear it."*^ The

rule then outUnes when such a vote is appropriate: '*Such a hearing or
rehearing is not favored and ordinarily will not be ordered except (1)
when consideration by the full court is necessary to secure or maintain

uniformity of its decisions, or (2) when the proceeding involves a question
of exceptional importance.

*'''*^

The problem with this rule is that it requires the various circuits to

police themselves. Because **less than 1/2 of 1% of their decisions'*"*^

Fifth (Rule 35), Sixth (Rule 14), Eighth (Rule 16), and Tenth (Rule 35) Circuits all call

it **en banc." The Third (Rule 22), Fourth (Rule 35), and Seventh (Rule 16) Circuits call

it "in banc." The Fifth (Rule 14 and 35), Ninth (Rule 35-1 and index), and the Second

(27(i) and index) Circuits seem to be confused as to what to call it; the Ninth Circuit

shows the most confusion by calling the term "en banc" and "in banc." See also 28

U.S.C. § 46 (1988).

140. See Thompson, supra note 2, at 461. The Eighth Circuit Rule 16 is typical

of such allowance.

141. See Note, En Banc Review in Federal Circuit Courts: A Reassessment, 72
Mich. L. Rev. 1637, 1642-43 (1974).

142. Fed. R. App. P. 35(a).

143. This rule has been subject to varying interpretations in the circuits.

144. Fed. R. App. P. 35(a).

145. Markey, On the Present Deterioration of the Federal Appellate Process: Never

Another Learned Hand, 33 S.D.L. Rev. 371 (1988).



886 INDIANA LAW REVIEW [Vol. 23:863

are reviewed by the Supreme Court, conflicts may stand unresolved if
a majority of the judges are unwilling to decide an apparent conflict.

A variety of factors encourage the courts of appeals to allow intra-
circuit conflicts to persist. The single most important factor is time.
When an en banc panel is scheduled, all of the sitting judges are subject
to being called to hear the case.*'*^ Reviewing the materials, traveling to

the site of the hearing, participating in conference, and writing or

concurring in an opinion all require some amount of a judge's time.
At the very least, hearing a case en banc requires one full day of a
judge's time.''*^ In most instances, a good deal more time is required.

This time is voluntarily spent insofar as the judges can decrease the

likelihood of their being forced to spend this time hearing an en banc

case by voting against the granting of an en banc hearing. Even the

most conscientious circuit judge, already overt2ixed by court matters, is

less willing to hear a case to resolve a conflict than would a judge on

a court whose very purpose is to resolve such conflicts. ^"^^ As one
commentator has stated, **[H]earings en banc are cumbersome and time
consuming events and become impractical as the courts grow larger."'*^

Judges do not ignore the guideHnes of Rule 35, but bleed its guidelines

into each other. They do so because they are willing to overlook apparent

conflicts on minor issues. They are willing to allow such cases to be
distinguished on the most minor facts. '^° However, if the case is one

of significant importance, or one which they believe is significant to

society, they are more wilUng to seize upon the conflict and take that
case en banc.'^* Thus, uniformity in the circuit is best maintained on

those issues that the circuit judges consider most important.

So far, the analysis of this phenomena has been based upon an
examination of the factors judges may weigh in their decision to vote
either for or against en banc hearings. Judges act differently than has

been asserted herein, and could in fact choose to resolve conflicts despite

the incentives to leave conflicts unreconciled. However, judges' writings

and case analyses provide evidence to support this analysis. The judges
have marked the Federal Reporters with testimony that a conflict exists

in a circuit, yet the circuit has refused to resolve it.

146. In most circuits all the judges will hear the case. In the Ninth Circuit, a Umited

number of the judges are required to hear the case. Other circuits also have adopted this

rule.

147. The judges must travel to the site of the argument, hsten to counsel, decide

the case in conference, and return home.

148. See Note, supra note 141, at 1644-45. Many other problems with en banc
proceedings are well articulated there.

149. This was part of the reason for the Fifth Circuit split. Id.

150. Note, supra note 141, at 1647 n.55.

151. See Note, supra note 126, at 1530; Note, supra note 141, at 1639 n.8.



1990] INTERMEDIATE COURT OF APPEALS 887

2. The Call for En Banc Consideration.—Judges throughout the
circuits have complained about their colleagues' failure to take cases en

banc. These complaints are one clear indication that en banc review

does not ensure intra-circuit consistency, much less intercircuit consis-
tency. •"

Recently, Judge Kozinski criticized his colleagues in the Ninth Circuit

for such a decision. The case, Gutierrez v. Municipal Court of Southeast
Judicial Districty^^^ was a Title VII claim. The court ruled that Title VII
prevented the Southeast Judicial District of the Los Angeles Municipal

Court from requiring everyone to speak EngHsh during work hours when
communicating with fellow workers unless

*

'business necessity" could

be shown. '^'^ The court there asserted that an earher case in the circuit,
Jurado v. Eleven-Fifty Corp.,^^^ had a similar holding. '^^ The court so
argued even though no analysis of ^'business necessity" appears in the

Jurado opinion.

Judge Kozinski noted this attempt to recharacterize an earlier decision

and criticized his colleagues for failing to take Gutierrez en banc to

resolve this conflict with Jurado^^'' Kozinski noted that Jurado had

accepted the Fifth Circuit's analysis in Garcia v. Gloor.^^^ It held that

"if the employee is able to speak EngUsh, imposition of an Enghsh-

only rule does not have a discriminatory impact. "^^^ Judge Kozinski

noted that a finding of business necessity, as the Gutierrez panel thought

existed in Jurado , could not exist in Jurado because that case involved

an appeal from a grant of summary judgment. Kozinski stated, "I am
aware of no case in this circuit, or anywhere else for that matter,

affirming a grant of summary judgment in favor of an employer who
rehed on a business necessity defense."'^ In fact, such a decision is

ready made at the summary judgment stage. '^^

Kozinski' s dissent from the denial of a rehearing en banc is ex-

traordinary. Judges rarely publicly castigate their colleagues for refusing

to take a case en banc. In this instance, Kozinski' s analysis, to an

152. See also Note, supra note 141, at 1646-47. (Intra-circuit consistency is a

secondary rationale for the use of en banc power.).

153. 838 F.2d 1031 (9th Cir. 1988).

154. Id. at 1040-41.

155. 813 F.2d 1406 (9th Cir. 1987).

156. Gutierrez, 838 F.2d at 1041.

157. Gutierrez v. Municipal Court of S.E. Judicial Dist., 861 F.2d 1187 (9th Cir.

1988) (dissent from order rejecting the suggestion for rehearing en banc).

158. 618 F.2d 264 (5th Cir. 1980), cert, denied, 449 U.S. 1113 (1981).

159. Gutierrez, 861 F.2d at 1190.

160. Id.

161. See, e.g.. International Union, UAW v. Johnson Controls, Inc., 886 F.2d 871
(7th Cir. 1989).



888 INDIANA LAW REVIEW [Vol. 23:863

unprejudiced eye, seems entirely accurate. His court's failure to take the

case en banc can be read in either of two ways. On the one hand,
some judges may have agreed with the outcome of Gutierrez and did
not want to risk changing the result by allowing the case to go en banc.

On the other hand, some of the judges may have thought the Gutierrez
panel had read Jurado in a way such that en banc consideration was
unnecessary. In either case, it seems unlikely that the judges would have

thought that Jurado and Gutierrez would not confuse those who are
focused to abide by their result — the citizens of the Ninth Circuit.

Other circuit judges also have had to deal with the refusal of their

colleagues to hear cases en banc. Judge Hill dissented from a refusal

to hear a case en banc on the Fifth Circuit. '^^ This refusal forced a
panel on that circuit to consider which previous case in the circuit should

be relied upon as the law of the circuit. In Georgia Association of
Retarded Citizens v. McDaniei,^^^ the Eleventh Circuit explained that

"intra-circuit conflicts are by no means novel. "*^ In fact, it revealed

that **[t]he court has, by necessity, developed rules that govern the choice

among conflicting precedents. "'^^ The rules which govern are: (1) reject
the precedent that is inconsistent with either Supreme Court cases or

the weight of authority within the circuit; and (2) where no Supreme

Court authority exists and no clear weight of authority exists within the

circuit, *'*we must resort to common sense and reason* to determine
the appropriate rule of law.*'^^ This case involved the awarding of

attorney's fees and interest. '^^ Although this may not have been a question
that the members of the Eleventh Circuit considered of vital importance,
their failure to resolve it had left the citizens of the circuit with conflicting

precedent for over seven years. Even more important than this case
itself, however, is the court's admission that conflicts within the circuit

are not novel. Indeed, they are so common that the court had developed
rules to guide its resolution of conflicts.

Gutierrez and McDaniel, one from the Ninth Circuit and the other

from the Eleventh Circuit, respectively, reveal that circuits do allow clear

conflicts to persist. Numerous other examples could be cited in which
members of a circuit have themselves noted such conflicts. '^^ Their

162. Gates v. Collier, 641 F.2d 403 (5th Cir. 1981).

163. 855 F.2d 794 (11th Cir. 1988). A seven-year hiatus occurred between the creation
of the conflict and its resolution in that circuit.

164. Id. at 797.

165. Id.

166. Id. (citations omitted).

167. Id. at 798.

168. See Legros v. Panther Services Group, Inc., 863 F.2d 345, 352 (5th Cir. 1988)

(Jones, J., dissenting); United States v. Troup, 821 F.2d 194, 197 (3d Cir. 1987); Riddle



1990] INTERMEDIATE COURT OF APPEALS 889

existence reveals that even within the circuits, conflicts can persist un-

resolved.

3. Conclusion.—Perhaps the disease is better than the cure. Even
when an en banc panel decides an issue, its decision can fail to clarify
the law. Special concurrences and dissents can result in such ambiguity
in the court's decision that the decision provides guidance no further
than resolving the conflict before it. As a result, federal law cannot be
truly said to be promulgated.'^^ Persons who attempt to comply with
the law as decided by the circuit, even if they do so with the best
intentions, may act contrary to it. Ambiguity at this stage is worse than
a slightly bad law which is capable of being understood. Thus, en banc
opinions, because they are composed by a panel of many judges, lend
themselves to creating ambiguity. '"^^ Indeed, since the cases called en

banc are usually of special importance, judges are likely to see the case

in differing ways, and this ambiguity will infect some of the most
important laws. This variety of problems with the current en banc system

might legitimate an intermediate court. However, in addition to these

problems is a pervasive and ultimately more problematic tendency —
**almost conflicts."

C. ''Almost Conflicts''

**Almost conflicts" are certain to develop in a system Hke the circuit

courts in which a Umited capacity for reviewing cases exists. "Almost

conflicts" involve cases that interpret a law or set of laws to avoid

conflicts, thus creating distinguishing characteristics of the cases or ad

hoc justifications. These cases make the law needlessly fact-specific. As
a result, a law or set of laws that Congress has enacted becomes fractured.

This situation arises when judges are faced with a case that is similar,
but not identical to a previous case decided by a previous panel in the

circuit. The new case, judges believe, can be distinguished on some
factual basis leading to a different outcome than that mandated by the

case with which the new case is almost in conflict.

V. Secretary of Health & Human Services, 817 F.2d 1238, 1244 (6th Cir. 1987) (Engel,
J., dissenting); District Counsel 47, Am. Fed'n v. Bradley, 795 F.2d 310, 316 (3d Cir.

1986) (Aldisert, J., dissenting); Church of Scientology of Cal. v. Foley, 640 F.2d 1335,

1336 (D.C. Cir. 1981) (Spottswood, J., dissenting); Hockenbury v. Sowders, 633 F.2d

443, 445 (6th Cir. 1980) (Keith, J., dissenting); United States v. Williams, 519 F.2d 368,

369-70 (8th Cir. 1975).

169. Two examples in which the en banc decision is difficult to assess are Lowry
V. Baltimore & Ohio R.R. Co., 707 F.2d 721 (3d Cir. 1983) (en banc) and Meadows v.
Holland, 831 F.2d 493 (4th Cir. 1987) (en banc).

170. See Note, supra note 141, at 1647, 1650.



890 INDIANA LAW REVIEW [Vol. 23:863

The consequence of these types of decisions are twofold. Those

subject to the law and its interpretation by the court cannot know where
their case stands if it is not squarely on point with a previous case.
Thus, they are likely to pursue litigation to defend what may be their
right. ^^* This costs the citizens a fair amount of time and money. ^^^ This
pursuit of rights leads to another consequence, an increase of cases

placed before the judiciary. Courts face an increase in cases because

their precedents are seen as fact-specific.'^^ In short, **almost conflicts*'

spawn more litigation, which may in turn fashion more ambiguity.
That **almost conflicts" exist is easily shown. First, the previous

Section, which shows that true conflicts are allowed to exist, is persuasive

evidence that **almost conflicts'' would also be allowed. If judges are

willing to let the more egregious problem, clear conflicts, exist, they
will also allow the less problematical case, the **almost conflict," to

exist. The second proof of such conflicts can be found in the cases
themselves.

One need not look far for instances in which a circuit has adapted
a federal rule or previous decision of a panel in the circuit to comport

with its view of what the law should be. Several examples underscore

this situation.

1. Case Examples.—The Ninth Circuit has long advocated that an
Administrative Law Judge's (ALJ) findings in social security cases should
be upheld if they were based upon substantial evidence in the record. '^"^

This rule allowed the circuit to show some degree of deference to the

ALJ and to keep it from having to reweigh the facts in the record when
a party sought review before the Ninth Circuit.

In 1983, a panel of the Ninth Circuit chose to modify this general

rule with regard to the pain testimony of a claimant. In Murray v.

Heckler, Murray contended that the ALJ should be required to make
a specific finding on the credibility of his pain testimony, or the ALJ's

decision should be overturned. '^^ The Ninth Circuit endorsed Murray's

position and adopted a rule requiring the ALJ to make specific findings
rejecting a claimant's pain testimony. '^^ This modification of the general

rule requiring deference to an ALJ's decision if based on the record

171. See Economic Analysis of Law, supra note 108, at 515.
172. PosNER, supra note 80, at 91.

173. See Study Committee, supra note 3, at 110. The committee noted that in

1945, one of every forty district court determinations was appealed, now the number is
one of every eight. Id.

174. Murray v. Heckler, 722 F.2d 499, 501 (9th Cir. 1983) (the court there set forth

the history of the judge-fashioned rule).

175. Id.

176. Id. at 502.



1990] INTERMEDIATE COURT OF APPEALS 891

was accepted by the court without dissent. '^^ Nevertheless, it was a clear
reshaping of the law. Under Murray, if the ALJ did not make specific
findings regarding subjective allegations of pain, the ALJ's decision must

be remanded even if substantial evidence supported the ALJ's findings.
This, in effect, limits the holding that the ALJ's findings are upheld if

they are substantially supported by the record. It creates an exception

to the broad rule. Yet, that was not enough for the Ninth Circuit. It

seemed to be distressed that an ALJ, on remand, could discredit pain
testimony, which discrediting would be subjected to the

*

'substantial

evidence" standard on appeal. Therefore, it carved out an even larger

exception. In Varney v. Secretary of Health and Human Services, ^''^ it
took the step to prevent such discrediting on remand. The court there

decided that **where it is clear from the administrative record that the

ALJ would be required to award benefits if the claimant's excess pain
testimony were credited, we will not remand solely to allow the ALJ
to make specific findings regarding that testimony. '"^^ The court did
not want the ALJ to make a factual finding on subjective pain testimony.
Instead, the claimant is awarded the appropriate claims even if the weight

of contrary testimony overwhelms the claimant's testimony. In a later

case, Varney was used to further eviscerate the rule of deference to the

ALJ. There, a Ninth Circuit panel held that one could provide the

claimant a remedy, absent the situation of Varney, where "delay ex-

perienced by [claimant] has been severe and because of [claimant's]

advanced age."'^^

These cases were crafted by a variety of panels so as not to explicitly

repudiate the general principle of deference to the ALJ's findings. Yet,

they allow any claimant who claims pain to force the ALJ to make
specific findings regarding such pain. If the ALJ fails to make such
findings, the Ninth Circuit has shown a willingness to shape its decisions

so that the claimant may receive an award. Similarly, this line of cases
could be developed with regard to a whole host of claims made by

claimants before an ALJ. There is nothing pecuHar to pain testimony

that makes it deserving of this special protection. Indeed, one could see

why subjective pain testimony is least deserving of this sort of benefit

because of its non-objectivity. This hne of cases presents a clear picture

of a panel reaching for a decision, and thereby causing
*

'almost conflicts"

with prior precedent. Indeed, the court in Hammock v. Bowen continued
to recite the rule that "[w]e affirm a denial of benefits when the

177. See Miller v. Heckler, 770 F.2d 845, 848-49 (9th Cir. 1985); Taylor v. Heckler,

765 F.2d 872, 876 (9th Cir. 1985).

178. 859 F.2d 1396 (9th Cir. 1988).

179. Id. at 1401.

180. Hammock v. Bowen, 867 F.2d 1209, 1214 (9th Cir. 1989).



892 INDIANA LAW REVIEW [Vol. 23:863

Secretary's decision is supported by substantial evidence and is free from
legal error, *"^* while at the same time they eviscerated the rule. The
unwary ALJ and the well-crafted complaint can combine to allow some-
one unworthy of benefits to receive them as a matter of law. In the
process, the general rule has been excepted in one significant respect.

Further exceptions to the rule could be developed by judges. This ex-

ception will encourage litigants to take appeals to the Ninth Circuit,

hoping that one of its panels may carve out another exception to fit
the appellant's unique situation. This line of cases shows how **almost
conflicts" can develop. Indeed, this line of cases cannot be cut back

without causing further conflict within the circuit.

The Ninth Circuit also has shown its ability to make distinctions
and to cause confusion in areas dealing with constitutional law. The
requirement of ripeness for claims alleging substantive and procedural

due process and takings has been decided in a number of cases. In
MacDonald, Sommer & Frates v. Yolo County, ^^^ the Supreme Court
held that regulatory takings claims can only be brought when "a final
and authoritative determination of the type and intensity of development

legally permitted on the subject property" has been made.^^^ Absent

such a finding, the court stated that a regulatory taking claim could

not be brought. ^^"^ The first Ninth Circuit case deahng with regulatory
takings after Yolo County failed even to cite it. In Norco Construction,
Inc. V. King County, ^^^ the court stated that

under federal law the general rule is that claims for inverse

taking, * and for alleged related injuries from denial of equal

protection or denial of due process by unreasonable delay or

failure to act under mandated time periods, are not matured

claims until planning authorities and state review entities make
a final determination on the status of the property. '^^

Thus, the court paralleled the holding of Yolo County, but failed to

use any of its analysis. Yolo County and Norco were both deficient
insofar as they failed to explain what was meant by ** final," perhaps

the most crucial word in their holdings.
The Ninth Circuit acted quickly to fill that lacuna. In Kinzli v. City

of Santa Cruz,^^'' the court held that to assert a regulatory takings claim,

181. Id. at 1212.

182. 477 U.S. 340 (1986).

183. Id. at 348.

184. Id.

185. 801 F.2d 1143 (9th Cir. 1986)

186. Id. at 1145.

187. 818 F.2d 1449 (9th Cir. 1987)



1990] INTERMEDIATE COURT OF APPEALS 893

a claimant must ** establish two components: (1) that the regulation has
gone so far that it has *taken' plaintiffs property, and (2) that any
compensation tendered is not 'just.'*''^^ The first component demands
that one have a final decision from the pertinent governmental body.
A final decision involves: (1) a rejected development plan; and (2) rejected
variances which would permit uses not allowed under the regulations.'*^
The court also held that an equal protection claim "is not ripe for
consideration by the district court 'until planning authorities and state
review entities make a final determination on the status of the prop-
gj.|-y »'M9o Finally, the court held that substantive due process claims are

ripe only when the plaintiffs have '* final decisions regarding the appli-
cation of the regulations to their property and the availability of var-

iances."'^* Therefore, under KinzUy finality is required for claims of

takings, equal protection, and substantive due process with regard to
regulation of one's property.

Herrington v. Sonoma County, ^^^ decided six months after Kinzli,
used its specific facts to create a futility exception to the finality re-

quirements for substantive due process and equal protection claims. The

court there stated that the finality requirement of Kinzli applies to

substantive due process and equal protection. '^^ However, the court

distinguished Herrington from Kinzli by stating that even though a

completed zoning application had not been made, it was as good as

made. Thus, it met the first finality requirement outlined in Kinzli.

Second, the court held that an application for a variance would have

been futile, and was therefore not required. '^'^ Thus, Herrington was the

first case which tried to limit the ruling in Kinzli.

The Ninth Circuit soon created more confusion in this area. In

Shelter Creek Development Corp. v. City of Oxnard,^^^ the court cited

Lake Nacimiento Ranch v. San Luis Obispo County^^^ for the proposition

that '*the * futility exception' is unavailable unless and until landowner

has submitted at least one 'meaningful application' for development of

the property and one 'meaningful application' for a variance. "'^^ This

limitation on the futility exception was held to apply to takings, sub-

188. Id. at 1453 (citing Yolo County, All U.S. 340).

189. Id. at 1454.

190. Id. at 1455.

191. Id. at 1456.

192. 834 F.2d 1488 (9th Cir. 1987).

193. Id. at 1494.

194. Id. at 1496.

195. 838 F.2d 375 (9th Cir. 1988).

196. 830 F.2d 977 (9th Cir. 1987).

197. Shelter Creek, 838 F.2d at 379.



894 INDIANA LAW REVIEW [Vol. 23:863

stantive due process, and equal protection claims. '^^ Shelter Creek thus

seems to create a conflict in the Ninth Circuit by conflicting with

Herrington.

Further confusion was added by two later cases. In Austin v. City

and County of Honolulu, ^^'^ the court found that a takings claim requires

finality, for example, a rejected development plan and denial of a

variance.^^ This case did not consider whether a futility exception was

possible. Thus, this case is squarely on point with Kinzli with regard

to takings claims.

Continuing to add to the confusion, the court decided Bateson v.

Geisse.^'^^ There, the court held that a substantive due process claim is

ripe even though the plaintiff did not **seek 'just compensation. '"^^^

The court did not even discuss any of the finality criteria established

in Kinzli and its progeny. It did not explicitly reject Kinzli' s criteria; it

merely allowed a substantive due process claim when a governing body
arbitrarily withheld Bateson's building permit. ^^^ The court there, unlike

the Herrington court, did not even try to meet the requirements of

finality established in Kinzli.

The Ninth Circuit continues to add cases to this confusing morass.

Again, these cases possibly could be distinguished on various factual

grounds. Yet, they seem to conflict or almost conflict on numerous

points. Indeed, they are further evidence that the citizenry and the courts

of appeals would be well-served by a court capable of taking such a

host of cases and developing consistent logic for the circuits.

2. Conclusion.—Recently, a partner in a California law firm noted
one instance of ''almost conflicts" in the Ninth Circuit.^^ His survey

of one area is not new, nor is it rare. Although the two examples I

have drawn came from the Ninth Circuit, their application is not limited.

198. Id. Lake Nacimiento itself is not a clear authority for this proposition because

it states, in the space of one paragraph, that "[tjhe Ranch correctly argues that it can

avoid the ripeness requirement of a final determination if it can show that the submission

of a development plan and an application for a variance would be futile." 830 F.2d at

980. It then states, 10 lines later, "[sjince the Ranch has failed to submit such applications

[for development and a variancel, it may not argue that it would be futile to secure a
final determination from the County." Id. at 980-81. Thus, Lake Nacimiento seems to

cause a conflict within the circuit.

199. 840 F.2d 678 (9th Cir. 1988).

200. Id. at 680. This is in accord with Lai v. City and County of Honolulu, 841

F.2d 301, 303 (9th Cir. 1988).

201. 857 F.2d 1300 (9th Cir. 1988).

202. Id. at 1303.

203. Id.

204. Perry, 9th Circuit Splits Over Summary Judgment, Los Angeles Daily J., Feb.
23, 1989, at 7, col. 1.



1990] INTERMEDIATE COURT OF APPEALS 895

An experienced practitioner in any of the circuits could note specific
examples of **almost conflicts.'* Such cases provide further justification
for a new court of appeals.

D. History

A final justification for a new intercircuit court can be drawn from
history. Many historical parallels can be drawn between the situation
present when the circuit courts were first established and what would
prevail were a new intermediate court established.

First, the circuit courts were originally created **to play the basic

role of error correction that the Supreme Court could not"^^^ with regard
to the various district courts. The Circuit Court of Appeals Act of 1891
granted the circuit courts jurisdiction over appeals from district courts
in nearly all admiralty, diversity, non-capital criminal, patent, and revenue

cases.^^ At that time, the relatively small size of the circuit courts,
generally only three judges per circuit, ensured uniformity within the

circuits, and the relatively fewer circuits and cases heard by them allowed
the possibility of uniformity among the circuits. The same role could
be played by an intermediate court, ensuring uniformity within and

among the circuits. Indeed, this historical perspective reveals that the
position taken by Judges Wallace and Ginsburg is contrary to the very
reason why these two judges are circuit judges.

V. A New National Court

The various proposals advocating a new intermediate court have all
failed to recognize that the federal courts are an interconnected system

so that any change in one part of that system will have and does have

repercussions for the whole system. They have failed to see that the

Supreme Court's inability to review conflicts between the circuits not

only suggests that the Supreme Court is overworked, but that the circuit

courts themselves are stressed. This Article has attempted to show that

not only is the Supreme Court incapable of resolving the numerous

intra-circuit conflicts that arise every year, thus providing support for

a court that could do so; but also that the circuit courts are incapable

of ensuring uniformity within themselves, thus providing support for a

court that could do so. I believe that an intermediate court of appeals

could resolve conflicts among the circuits and within the circuits, thereby

205. Baker & McFarland, supra note 1, at 1405 (citing Circuit Court of Appeals
Act of 1891, ch. 517, 26 Stat. 826).

206. See Congressional Quarterly, Gutoe to the United States Supreme Court
265 (1979).



896 INDIANA LAW REVIEW [Vol. 23:863

ensuring that federal law is applied fairly, for example, evenly, throughout

our federal system.

I propose the creation of a court with the power to resolve conflicts

among and within the circuits. This court would have the following
features:

i. Parties could appeal to this court directly, instead of being certified

via the Supreme Court as some of the aforementioned proposals ad-
vocated. A party who thought that the decision of a circuit court resulted
in a conflict either within the circuit in which the decision was rendered,

or among any of the federal circuits, could first seek rehearing before
the panel that first heard its case. If the panel failed to reconcile the

conflict, the party could appeal to the intermediate court. The inter-
mediate court could then decide whether a conflict truly existed and was

therefore in need of resolution.

ii. This intermediate court should resolve conflicts that a court of

appeals creates. If a panel in any of the circuits says in its opinion that

it has decided to resolve a federal law in a manner that would create
a conflict with another circuit, the intermediate court would be forced

to hear that case if either party sought review before it.

iii. Decisions of this court could be appealed to the Supreme Court.

However, the Supreme Court could choose not to hear these appeals.
This procedure would allow the Supreme Court to decide those cases

it deemed wrongly decided, yet allow it to let stand cases it deems
unimportant or correctly decided. The Court would not need to take
cases merely because a split between the circuits was causing national

problems.

iv. The judges of this new court would be nominated by the President
and confirmed by the Senate, just as are current courts of appeals judges.

They would be article III judges. The court would consist of three judges

headquartered in a central geographical location such as Chicago or

Denver, yet capable of hearing cases anywhere in the country.

The new intermediate court would ensure that conflicts within and
among circuits are not allowed to fester. Not only would the citizenry
of this country be aided by this court which would keep the law uniform

throughout the country, but the court system also would be aided in

several ways. First, the intermediate court could eliminate the time

consuming en banc review of cases. This would allow the circuits to

concentrate on cases brought before them in the normal course. Second,

the court system would be aided by clearer laws. Because the intermediate

court could resolve **almost conflicts" within circuits if it believed that

a case caused an actual conflict, the circuits would have their interpre-

tation of law more clearly defined so that all panels in a circuit would
decide similar cases consistently with one another. This would aid the

circuits in applying the law to cases before them, and would lead to a



1990] INTERMEDIATE COURT OF APPEALS 897

decrease in the number of appeals because litigants would be able to
perceive the rationale in the law of the circuit and would be less willing
to spend their money in hope of landing the right panel. The Supreme
Court would also be aided insofar as all the cases of conflict that it
now decides, and those that it is incapable of deciding, would now be
resolved by another tribunal. Thus, the Court could decide cases it thinks
are important in their own right, and not merely important because they
have created a national conflict.

The number of potential cases such a court should hear may threaten
to swamp it. Thus, I suggest that it normally resolve conflicts by adopting
the rationale of one of the courts from which the conflict arose. This

presumption would allow the court to easily resolve at least 250 cases

per year. I believe that this type of review would be sufficient to resolve

most of the conflicts that now arise between and within circuits. If this
court was incapable of handling all of the conflicts, Congress could

create two panels of three judges, splitting the country between them.

These two courts would be required to follow the other panel's precedent

if the other panel previously decided a case involving the same issue.

A central filing office could track potential conflicts between the inter-
mediate courts, and advise the respective panels accordingly.

The court I propose has a host of advantages. First, it allows for
resolution of conflicts without requiring the Supreme Court either to

resolve them or to determine that another court should. Thus, my
proposal lightens the Supreme Court's burden without saddhng it with

other duties. Second, it provides for swift resolution of numerous con-

flicts. Third, it estabhshes a court with clear authority to resolve conflicts.

At least one of these three benefits has been lacking in one manner or

another in all the other proposals.

VI. Conclusion

The United States Supreme Court and the federal appellate courts

are currently incapable of providing a consistent interpretation of federal

law. This inconsistency is, in part, a consequence of the vast number

of cases faced by courts of appeals and the increasing number of appellate

judges.

The consequences of this disarray are several. Litigants may forum
shop hoping to find a circuit whose judges have interpreted federal law

in a beneficial manner. The judges themselves cannot find clear precedent

for their decisions. As a result, even citizens seeking to comply with

the law may be incapable of doing so because they cannot discern it
from the various ad hoc interpretations of the law. As a result, the law

can hardly be considered true law.

An intermediate court of appeals could resolve this situation. A
court composed as I have suggested would not only relieve some of the



898 INDIANA LAW REVIEW [Vol. 23:863

pressure on the Supreme Court — a benefit that has been sought by
two commissions — but would create consistency among and within
circuits. As a result, judges on all levels would benefit from clear
precedent. Most importantly, however, the citizenry would have clearer,

uniform precedent by which they could gauge their actions.