The viability of certification in federal appellate procedure.

• Author: Crennan, Kevin G.

TABLE OF CONTENTS INTRODUCTION I. A BRIEF HISTORY OF CERTIFICATION A. Certification's Inception: Resolving Intra-Circuit Splits B. Certification and the Judiciary Act of 1891: Resolving Inter-Circuit Splits C. Certification and the Judiciary Act of 1925: Reducing the Court's Docket II. THE CONSTITUTIONALITY OF CERTIFICATION A. The Supreme Court's Original and Appellate Jurisdictions B. Answering a Certified Question that Is Dispositive of the Entire Case C. The Dual Definitions of Original Jurisdiction III. THE FUTURE OF CERTIFICATION A. Current Restrictions on the Use of Certification B. "Recent" Uses of Certification C. United States v. Seale: Certification in the 21st Century D. Maximizing the Benefits of Certification CONCLUSION INTRODUCTION

In the summer of 2009, a federal circuit court of appeals used an appellate mechanism that has been described as "a dead letter." (1) Given its dead-letter status, it should come as little surprise that "there are few lawyers (and perhaps few circuit judges) who even know it remains an option." (2) Despite this reality, the Fifth Circuit Court of Appeals, sitting en banc, utilized Supreme Court Rule 19, which provides: "A United States court of appeals may certify to [the Supreme Court] a question or proposition of law on which it seeks instruction for the proper decision of a case." (3) The Fifth Circuit was divided evenly over the proper resolution of a legal issue, so it certified a question of law to the Supreme Court. (4) One can only speculate as to whether the Fifth Circuit appreciated at the time it issued the certified question (5) that it was employing an appellate mechanism that the Supreme Court has discouraged, and that circuit courts have rarely implemented in the last fifty years. (6) Despite these hostilities, certification has existed in federal statutory law for more than two centuries. (7) Notwithstanding certification's deep historical roots, few lawyers, legal scholars, and judges know that it exists) Moreover, despite a dearth of academic literature and recent case law on the topic, certification remains a relevant aspect of federal appellate practice. (9)

By entering the somewhat dormant academic debate on certification, this Note seeks to assess the history, constitutionality, and viability of certification. Part I provides a historical overview of the arguments that Congress, the Supreme Court, and legal scholars have advanced to justify certification's inception and continued existence. Part II addresses whether certification is wholly constitutional or whether, even if it is constitutional, it has been unconstitutionally applied. Part III evaluates the present and future viability of certification. Ultimately, this Note concludes that certification remains a viable, albeit broken, appellate mechanism. In order to maximize the benefits that it has to offer, the Supreme Court must reevaluate and revise certification's place in federal appellate procedure.

1. A BRIEF HISTORY OF CERTIFICATION

   In order to assess the future viability of certification, one must first understand and appreciate the role that certification has played in federal appellate procedure. (10) Through an examination of statutory law and judicial interpretation, Part I tracks the expansion, limitation, and transformation of certification from its initial conception through its multiple revisions. This Part also examines the nexus between the Supreme Court and certification, and analyzes the Justices' reasons for certification's continued use.

   1. Certification's Inception: Resolving Intra-Circuit Splits

      Certification has deep historical roots that extend as far back as 1802. (11) At the time, there were only six circuit courts, and each individual court "consist[ed] of the justice of the supreme court residing within the said circuit, and the district judge of the district where such court [was] holden." (12) Because these courts were composed of only two judges, a district judge and a Supreme Court Justice, the sitting judges frequently did not agree on the appropriate holding. (13) In response to this problem, Congress enacted the following law:

      [W]henever any question shall occur before a circuit court, upon which the opinions of the judges shall be opposed, the point upon which the disagreement shall happen, shall, during the same term, upon the request of either party, or their counsel, be stated under the direction of the judges, and certified under the seal of the court, to the supreme court, at their next session to be held thereafter; and shall, by the said court, be finally decided. (14) Congress intended that circuit courts would use certification to resolve intra-circuit splits. (15) Congress, however, in rectifying one problem, created another: due to the frequency with which the circuit courts split, (16) certification had the potential to burden the Supreme Court with certified questions. To guard against this, the Court began to place restrictions on certification despite the fact that these restrictions were absent from the statute. (17) For example, the Court dismissed those questions that were "too imperfectly stated to enable [the Supreme Court] to pronounce any opinion upon them." (18) The Court also accepted only questions of law, dismissing those questions in which the facts were still at issue. (19) Similarly, the Court restricted certified questions to a "single and material point" of law, reasoning that when a certificate brings up the whole case, "it would, in effect, be the exercise of original, rather than appellate jurisdiction." (20) Acting under congressional silence, the Court has repeatedly either upheld or expanded these restrictions. (21)

   2. Certification and the Judiciary Act of 1891: Resolving Inter-Circuit Splits

      Despite the Supreme Court's restrictions on certification, it was still overburdened with an ever-increasing caseload. (22) In response to this growing problem, Congress sought to revise the structure and procedures of the federal judiciary, which it did in 1891. (23) As part of these revisions, Congress established the permanent circuit courts of appeals to act as intermediate appellate courts between the Supreme Court and the district courts. (24) Congress also retained certification, and authorized the Court to "require that the whole record and cause ... be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal." (25) This revision, surprisingly, was met with little debate.

      When the Judiciary Act was first introduced in Congress in 1888, the legislation "provided for circuit court certification of sufficiently important legal questions." (26) After its passage in the House in 1889, the bill authorized the circuit courts in diversity cases "to certify novel, difficult, or important questions, and required circuit courts to certify any question that had been decided differently in another circuit court." (27) The purpose of certification, however, remained an issue for debate. Originally, certification was established for the purpose of resolving intra-circuit splits between the two judges sitting on a circuit court. (28) But proponents of the 1888 legislation asserted that the revised purpose of certification was to resolve inter-circuit splits. (29) The legislation's sponsor, Senator William Evarts, supported this latter view in the congressional debates, contending that certification would "guard against diversity of judgment in these different courts." (30)

      At the time the Senate considered the legislation, the Senate Judiciary Committee requested the Justices' views on the "various proposals for relieving the Court's workload," one of which included a proposal to establish permanent intermediate appellate courts of appeals. (31) Voicing their support, the Justices, in a letter to the Committee, noted "their approval of eleven particular features of the various proposals." (32) The Justices were particularly interested in "the provision that certain cases were 'not to be brought to the Supreme Court ... unless the Court of Appeal, or two judges thereof, certify that the question involved is of such novelty, difficulty or importance as to require a final decision by the Supreme Court.'" (33) Although the Justices thought that certification would be especially useful in resolving inter-circuit splits, (34) they would ultimately restrict its use in cases implicating such divisions.

   3. Certification and the Judiciary Act of 1925: Reducing the Court's Docket

      Certification achieved its ultimate design in the Judiciary Act of 1925, which "amend[ed] the Judicial Code" and "further define[d] the jurisdiction of the circuit courts of appeals and of the Supreme Court." (35) The legislation's sponsor, Senator Albert Cummins, acknowledged that revisions to the Judicial Code were necessary to "restrict or reduce the appellate jurisdiction of the Supreme Court ... in order to enable it fairly to meet the demands that are made upon it." (36) For example, when Congress enacted the legislation, the Court was "15 or 18 months behind in its work." (37) In relieving the Court of its ever-increasing caseload, the legislation "restricted the right of appeal to the Supreme Court to a very limited area involving constitutionality of statutes." (38) Certification, however, remained intact, largely because Congress sought to limit "the number of cases in which there is an appeal or writ of error as of right, and increase those in which only a certiorari or a certificate can bring the case before the Supreme Court." (39) Ultimately, Congress determined that certification's "obligatory review" (40) would "furnish ample opportunity for all cases to go from the circuit court of appeals to the Supreme Court." (41)

      Although Congress was primarily responsible for drafting this legislation, the Court was given the...