The Ninth Circuit Appellate Commissioner


In 1994, the Ninth Circuit created the position of Appellate Commissioner, an adjunct judicial officer whose role in the court of appeals is analogous to the role of a magistrate judge in the district court. See 9th Cir. R. Introduction C(2); 9th Cir. General Order 1.8. The Court delegated functions to the Appellate Commissioner that were previously performed by circuit judges:

1.  Motions

The Appellate Commissioner rules on a wide range of nondispositive motions that do not legally or practically require an Article III judge. See 9th Cir. R. 27; 9th Cir. General Order 6.3(e).

2.  Compensation of Appointed Counsel

The Appellate Commissioner manages the compensation of appellate counsel appointed under the Criminal Justice Act to represent parties financially unable to retain counsel. See 9th Cir. R. 4-1; 9th Cir. General Order 6.7. The Appellate Commissioner also works with the various local appointing authorities to monitor the performance of appointed counsel and to improve the quality of representation.

3.  Special Master Duties

The Appellate Commissioner is the court’s special master. In this capacity, the Appellate Commissioner conducts evidentiary hearings and performs various other functions. Some examples follow:

a.  Attorney Discipline

When the Court contemplates suspending or disbarring an attorney for acts or omissions during the appellate process, the court issues an order to show cause why the attorney should not be disciplined. If the attorney exercises the right to a hearing provided by Federal Rule of Appellate Procedure 46(b), the Court routinely refers the matter to the Appellate Commissioner to conduct the hearing and submit a report and recommendation to a panel of judges for final action.

b.  Self-representation in Criminal Appeals

When a criminal defendant seeks self-representation on appeal, the Appellate Commissioner recommends whether the defendant should be granted leave to proceed pro se pursuant to Ninth Circuit Rule 4-1(d), Martinez v. Court of Appeal, 120 S. Ct. 684 (2000) and Faretta v. California, 422 U.S. 806 (1975). This determination may require a hearing to confirm that the request to proceed pro se and the attendant waiver of the right to counsel are knowing, intelligent, and unequivocal. See Hendricks v. Zenon, 993 F.2d 664, 669 (9th Cir. 1993).

c.  Attorney Fees in Civil Appeals

When the prevailing party in a civil dispute seeks attorney fees on appeal, the Court routinely refers to the Appellate Commissioner the responsibility to rule on the fee request.

d.  Case Management Conferences in Complex Criminal Appeals

The Appellate Commissioner conducts case management conferences in complex multi-party criminal appeals. In addition to setting customized briefing schedules and brief lengths, the Appellate Commissioner confers with appointed counsel to explore ways to utilize Criminal Justice Act fund efficiently.

e.  NLRB Enforcement Proceedings

Where the Court has enforced an order of the National Labor Relations Board and the party against whom the order runs allegedly violates the order, the National Labor Relations Board files a petition for a contempt citation in this Court. The Court routinely refers these matter to the Appellate Commissioner to conduct an evidentiary hearing under the Federal Rules of Evidence and Civil Procedure and to issue a report and recommendation.

f.  Binding Determinations

The parties in civil appeals may stipulate to have their appeal or a portion of their appeal referred for a binding determination by the Appellate Commissioner. Where the parties enter into such a stipulation, the matter may be handled with abbreviated and accelerated briefing and a guaranteed opportunity for oral argument before the Appellate Commissioner.