The United States Court of Appeals
for the Sixth Circuit in 1976

by
The Honorable Harry Phillips

Almost forty percent of all cases that have been docketed in the U. S. Court of Appeals for the Sixth Circuit during its entire 85-year history were filed within the ten-year period ending June 30, 1976.¹ Circuit Judges Howell E. Jackson, William H. Taft, Horace H. Lurton and William R. Day could not have envisioned the staggering increase in workload which has occurred during the past decade. The workload becomes more formidable each year. In earlier days three judges were sufficient to handle all the Court's business at a leisurely pace. As of December 1, 1976, only thirty-five circuit judges² have been members of the Court of Appeals since its creation in 1891. At the risk of understating the problem, the present membership of nine active judges simply is insufficient for the Court to keep abreast of its accelerating docket.

The Court reviews not only the decisions of the nine district courts of the Sixth Circuit but also the determinations of the United States Tax Court and various federal administrative agencies including the National Labor Relations Board, the Federal Trade Commission, the Federal Communications Commission, the Federal Power Commission, the Interstate Commerce Commission, the Environmental Protection Agency, and the Occupational Safety and Health Review Commission.

In this Bicentennial Year, the Court of Appeals, like the District Courts of the Sixth Circuit, is confronted with an ever growing avalanche of litigation. In the fiscal year ending June 30, 1976, 1,622 appeals or petitions were docketed, an increase of thirteen percent over 1975. In the fiscal year 1975, 1,436 appeals and petitions were docketed, an increase of eight percent over the previous year. In 1963, when this author became a Judge of the Court of Appeals, only 374 appeals were filed.

Terminations also have increased steadily. In 1969, when the membership of the Court reached nine judges, 947 cases were terminated, an average of 105 cases per judge. In the fiscal year ending June 30, 1976, 1,412 cases were terminated. In 1969 the median time from filing of the record to termination of the appeal was 10.9 months. In 1975 that time was reduced to 6.6 months.

This increase in productivity has not been at the expense of unwarranted short cuts in the appellate process. Oral argument is required in practically all cases except those falling within the scope of Circuit Rules 3(e), 8 or 9, relating to patently frivolous and unmeritorious appeals or those in which there is unquestioned controlling Sixth Circuit or Supreme Court precedent.

These Rule 3(e) cases are disposed of by panels of three judges who meet between regular sessions of the court. The cases are decided only after a careful study of the briefs and records by the three judges in consultation. Under Rule 8 a case will be dismissed for lack of jurisdiction or affirmed on the ground that the questions on which the decision of the cause depends are so unsubstantial as not to need further argument. Under Rule 9 an appeal will be dismissed when the panel concludes that the case is frivolous and entirely without merit, or the decision of the District Court may be reversed, vacated or remanded for further proceedings where clear error so requires. Disposition of a case under Rule 8 or 9 requires the unanimous vote of the panel. If any one of the three judges so desires, the appeal is scheduled for oral argument. In 1976, between the October and December sessions (of three weeks each), a three-judge panel held a special session in Cincinnati and heard oral arguments in 26 priority appeals involving criminal convictions, habeas corpus and 28 U.S.C. §2255 cases.

The active judges of the Court of Appeals sit, on the average, three days a week, fifteen weeks per year. Five cases are set each day before each panel, with two panels sitting simultaneously in two courtrooms. Thus, each judge participates in approximately 225 orally argued cases each year. In addition, each judge participates in decisions on numerous special panels, motions, miscellaneous matters and original proceedings.

Although the Court demonstrated remarkable increases in productivity through 1976, it is clear that the limits of capacity have been reached and that further increases in the workloads of the judges would not be possible without unacceptable infringement of the traditional elements and safeguards of the appellate process.

During each June session from 1969 through 1975, the Court heard every case that was ready for oral argument. In June, 1976, with the assistance of two Senior Circuit Judges, one Senior District Judge and one active District Judge, the Court heard every criminal case that was ready for oral argument, but carried forward to the next term 180 non-criminal proceedings which were ready for oral argument but could not be heard because there were too few judges and insufficient time. As of June 30, 1976, the Court's backlog was 1,068 cases, an increase of seventeen percent over 1975. In 1970 the backlog was 489 cases.

The Sixth Circuit Practitioners' Handbook³ describes the organization of the Court as follows:

The present Court consists of nine full-time active judges and one Senior judge. All the judges have chambers in the United States Post Office and Courthouse on Government Square, Fifth and Walnut streets in Cincinnati, where the two regular courtrooms are located. Each judge residing outside Cincinnati also has chambers and a working law library in his home city. The judges are authorized by statute to choose their own secretary and law clerks.⁴

By statute the administrative head of the Court is the Chief Judge. He attains that position by virtue of his seniority in service on the Court, and may retain the position until he reaches the age of seventy. Thereafter he may continue as an active member of the Court but not as Chief Judge.⁵

The Chief Judge presides over any panel on which he sits and he assigns the writing of all opinions not assigned by the presiding judges of other panels. In addition to a full caseload of hearings and opinion writing, he is responsible for the administrative business of the Court and of the circuit. He is a member of the Judicial Conference of the United States⁶ and is head of the Judicial Council for the circuit. The Council consists of the active judges on the Court and is empowered to "make all necessary orders for the effective and expeditious administration of the business of the courts within its circuit."⁷

Upon retirement, a judge becomes known as a "Senior" judge and he may continue to function as a member of the Court to the extent that he and the active judges agree. By manifesting a willingness to serve on a regular, albeit limited, basis, he may retain his chambers and he is entitled to the services of a law clerk and a secretary.⁸

To facilitate the disposition of cases, statutory provision is made for the assignment of additional judges. The Chief Judge may request the Chief Justice of the United States to appoint a "visiting" judge from another circuit⁹ or more frequently, he may himself designate Senior judges¹⁰ or district court judges from district courts within the circuit¹¹ to serve on panels of the Sixth Circuit.

Motions and emergency matters are presented to the judge assigned to the administrative calendar.¹² This responsibility is rotated among the judges on a weekly basis. Emergency matters and motions requiring action by three judges are assigned to panels who may act without oral argument or hear oral argument if warranted by the nature of the case.

Experience has demonstrated that the hearing of cases by three-judge panels is the most efficient use of the manpower of an intermediate appellate court. Assignments of the membership of panels are made several weeks before the opening of a session, either by the Chief Judge or by a judge designated by him.

The assignment of panels to hear cases during a three-week session might be compared to the completion of a jigsaw puzzle. Each judge is assigned to sit exactly the same number of times as each of his colleagues. The panels are "scrambled" so that each judge sits as often as possible with every other judge. The senior active judge is the presiding judge, but every effort is made to have the judges who are junior in seniority preside over at least one panel each session.

The judge who assigns the panels has no information at the time of the assignment as to what cases will be heard on any day of the session. Likewise at the time the clerk makes up the calendar of cases, he does not know what judges will be sitting on the panels from day to day. This system of separation of responsibility between the processes of assigning panels and scheduling cases is a safeguard against the deliberate assignment of a case to a particular panel. An exception to this procedure is made when a case which has been argued at a previous session is on the docket for a subsequent hearing. In this situation the case is assigned, if possible, to the same panel that heard the previous appeal.

Upon completion of the panels and the assignment of cases to the calendar, the proposed calendar is circulated to all the judges. If any judge feels himself to be disqualified for any reason in a particular case, he notifies the clerk promptly. An adjustment thereupon is made to eliminate the possibility of the judge participating in the hearing of a case in which he has any actual or potential conflict of interest. If a judge later concludes when he reads the briefs that he has a potential conflict of interest, an arrangement is made for another judge to sit in his place.

Each judge reads the briefs prior to oral argument. At the time a case is being argued no member of the panel knows which judge will have the responsibility of writing the opinion.

The holding of a three-week session in June means that each judge must carry a heavy workload into the summer recess. Each judge devotes most of his summer to the writing of opinions from the heavy June docket and also any cases from prior sessions which remain unfinished. It is the goal of each judge (not always fulfilled) to complete all the cases assigned to him during the previous year, before the convening of the fall term.

The court makes it a practice to write opinions for publication only in cases determined to have precedential value. Disposition of other cases is made by unpublished opinions, per curiams or orders. Tables listing unpublished decisions are printed periodically in the Federal Reporter.