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Hon. Paul R. Michel
April 3, 2006
STATEMENT OF CHIEF JUDGE PAUL R. MICHEL
I. Current Operations at the Court of Appeals for the Federal Circuit
This model of appellate adjudication was the norm in an earlier era but is rare in many courts of appeals of today. Most of them now face caseloads that are massive, requiring huge staffs. Our judges feel that it is highly desirable to retain our present size and practices. Not surprisingly, our bar and their clients, including leading corporations, enthusiastically agree.
Our separate areas of jurisdictions share only one thing in common: the Congress determined that national uniformity was crucial. In addition, for areas such as patents and international trade, and perhaps some others, some limited expertise was thought desirable.
If vast increases in all our resources were promptly provided by the Congress, perhaps after a difficult transition period, which could well last more than a year or even two, we might be able to handle the combined workload. But, the increases would have to be truly vast. The number of judges might need to be increased from 12 to 18, rather than just 15 as presently provided, assuming single-judge review is retained; if not, it might have to be doubled to 24. The number of staff attorneys, presently 4, would have to be increased by more than 80, according to court staffing formulas used by the Administrative Office (AO). The number of deputy clerks, presently 20, would have to be increased by over 100, again according to the AO formulas.
In addition, a new, huge and expensive computer system would probably have to be created, tested, and then put into use. Our present computer platform was designed for a court with less than 2,000 filings. The number of people needed to do this is unclear, but our Automation and Technology Office would have to at least double in size from 8 to 16. Additional personnel would also be needed in the Administrative Services Office, Circuit Executive's Office, Library and elsewhere. Including the Chambers staff of the new judges, the total number of additional personnel would have to be on the order of 250 to 300. Our present number is 140. We would need 400 or more. Therefore, roughly speaking, the size of our staff would have to triple.
In dollar terms, our budget, now at $24 Million annually, would have to increase at least two- to three-fold. We would also need to find, rent and secure commercial office space nearly the size of our present courthouse. Simply acquiring such space could take a year, even after funding was provided. It is not even clear that we could find sufficient space for all the new personnel at a location that would make an integrated operation feasible, particularly with paper filings in over 13,000 appeals.
Some people predict the rate of filing of immigration appeals in the courts of appeals may soon decline. I do not know the reliability of this prediction. The number of cases going before judges of the Immigration Court may actually increase, if the government increases the resources devoted to locating illegal aliens and to adjudicating their cases. Consequently, the number of appeals to the Board of Immigration Appeals (BIA) may increase. If the number of judges in these two courts is increased, their annual output will also likely increase, even if more opinions are written at the appellate stage. Therefore, it appears likely that filings in the courts of appeals may go up, rather than down, at least for several years.
Section 707 of the Chairman's Mark contains another major innovation: one-judge review for "prima facie" merit. Some suggest that great efficiency would come from such one-judge review. I see little reason for confidence, however, that this review would be quick or easy. Although I do not have experience myself with immigration appeals, I have learned from those who do that a significant portion of these cases are factually complex and difficult to assess, taking much time for staff attorneys and also judges.
At one time, our court considered a similar procedure with respect to our hundreds of personnel cases. We quickly abandoned the idea, however, because it became clear that given the time needed to adequately assess whether the case had potential merit, the panel might as well decide the merits. Otherwise, the case is studied twice. If 99% of the appeals ended at the stage of one-judge review, the added burden on merits panels would be greatly reduced. But such an outcome is not likely, and in any event, would be greeted by an outcry that the review was inherently shallow and unfair. Such a complaint might have some validity. In addition, without an opinion to explain why merits adjudication by a three-judge panel was not warranted, the denials would look suspect to many. On the other hand, if an opinion was written for every denial by the single judge, the one-judge review process might suffer delays.
In sum, I see little ground for optimism that the nationwide immigration appeal caseload could become manageable either by rapid reduction in its size, or through the one-judge review procedure.
I agree with Judge Posner that the appeal rate from BIA decisions, which recently rose from less than 10% to more than 30%, would likely fall at least somewhat if the Immigration Court and the Board of Immigration Appeals were expanded and better equipped to do more thorough review. On the other hand, aliens awaiting deportation would still have considerable incentive to appeal the Board decision because of the likelihood of a stay of deportation. The alien could at least hope to delay his departure by a year or two and might also think he has some chance of prevailing at a court of appeals. Even those aliens without paid or pro bono representation could proceed pro se.
I am in no position to judge the current level of uniformity among the 12 regional circuits. Assuming that lack of uniformity is demonstrated as a problem, and assuming that delay is, too, I would be concerned that, while uniformity might increase with consolidation, the delays might well get worse, at least for several years of transition. If the concern is the reversal rate, I question whether, given the same BIA decisions reviewed last year, in the Federal Circuit would produce a lower reversal rate. If the concern is disparate interpretations of the immigration statutes, a reinvigorated BIA might prevent further disparities.
I thank the Committee for the opportunity to submit this statement.