Disability Law Blog

Judges Debate the Merits of a Ninth Circuit Splitation

Via How Appealing:   Ninth Circuit Judges Diarmuid F. O'Scannlain and Richard C. Tallman have written a letter to the editor of the Wall Street Journal, responding to an op-ed piece by their colleagues, Judges Alex Kozinski and Sidney R. Thomas. That piece, published November 10, 2004, argues against the split. Judges O'Scannlain and Tallman respectfully dissent. An excerpt:

By any measure, the circuit is too big to handle its caseload effectively and efficiently. This point is underscored by its consistent ranking at the bottom of all federal appeals courts in the length of time it takes to process appeals. More importantly, size adversely affects not only the speed with which justice is administered, but also the quality of judicial decision making. Consistent interpretation of the law by an appellate court requires a reasonably small body of judges who have the opportunity to sit and to confer together frequently, and who can read, critique and, when necessary, correct each others' decisions. That kind of collegiality is no longer possible in a circuit of this size.

The 47 judges who hear and decide Ninth Circuit cases sit on three-judge panels together so infrequently that judges often go for years without sitting with each of the judges with whom they serve. We also deliberate without the benefit of a thorough command of the developing law of our own circuit. An estimated 14,000 appeals are expected to be docketed this year, and it is simply impossible for even the most diligent judge to read critically his or her colleague's dispositions while simultaneously resolving one's own assigned cases.

Editor's Note:  Judge O'Scannlain participated in Howard Bashman's 20 Questions back in March 2003.   Read his answers here.

Benecke v. Barnhart, No. 03-15155, __ F.3d__ (9th Cir. Aug. 9, 2004)

The Ninth Circuit, in an opinion by Senior Circuit Judge Betty B. Fletcher, reversed and remanded for an award of benefits in a fibromyalgia case. The case is interesting procedurally:  The District Court had granted Benecke's motion for summary judgment in part, holding that the ALJ had erroneously discounted her pain testimony and the opinions of her treating physicians. Since the agency did not cross-appeal the district court's partial grant of summary judgment, the only issue considered by the Court was whether the District Court abused its discretion by remanding the case for further proceedings rather than for an award. The Court found that the District Court abused its discretion and remanded the case for an award of benefits.

The Court also created a new basis for remanding for payment of benefits:

We now clarify that in the unusual case in which it is clear from the record that the claimant is unable to perform gainful employment in the national economy, even though the vocational expert did not address the precise work limitations established by the improperly discredited testimony, remand for an immediate award of benefits is appropriate.

The Court goes on to say: "Allowing the Commissioner to decide the issue again would create an unfair “heads we win; tails, let’s play again” system of disability benefits adjudication."

There's much more here. A must-read opinion.

20 Questions for 9th Circuit Judge Stephen Reinhardt

Over at How Appealing, Howard Bashman (who just opened his little boutique) has posted his 20 Questions for Circuit Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit. Very interesting reading:

"I suppose that I first realized that my views would often differ from those of the majority of the Supreme Court in 1986, when President Reagan elevated Justice Rehnquist to Chief Justice and appointed Antonin Scalia to be an Associate Justice. President Reagan made no secret of his desire to alter radically the composition of the federal judiciary from his first days in office. What these appointments did was make it plain that future Supreme Court opinions would not only reach different results, but would generally look and sound much different from those issued during the post-New Deal era of enlightenment -- that there would be a retrenchment in the scope of the rights afforded all Americans. As the President appointed more and more federal judges -- with very few exceptions individuals who passed the Reagan Administration's various ideological and issue-specific litmus tests -- the courts gradually shifted farther and farther to the right of the ideological spectrum."

Even those who would argue that the shift was not radical would be hard pressed to say that the judicial system, as a whole, was not considerably more conservative and far more interested in states rights and less in civil rights in 1988 than it was in 1980 when I was appointed. This rightward turn was made complete in 1990 and 1991, when the first President Bush replaced Justices Brennan and Marshall with Justices Souter and Thomas, thereby replacing the last true liberals on the Supreme Court with one moderate and one extreme conservative. Unfortunately, the policy of "judicial restraint" that we were told would result from this transformation has paradoxically resulted in an increasingly active judiciary, willing to strike down a litany of congressional laws and executive regulations that previously would have been considered unexceptional. The casualty of this movement has been the concern for social justice and individual rights that once served as the guiding principle of the judicial branch.