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The Courts and Congress – Annual Report 2017

Bankruptcy Judgeships

Congress approved legislation in 2017 that provided for four new bankruptcy judgeships. Although the judgeships are temporary, the Judiciary, which had requested permanent judgeships, supported the legislation. On October 26, 2017, the President signed H.R. 2266, the Bankruptcy Judgeship Act of 2017, which provided for four new temporary judgeships and extended 14 existing temporary bankruptcy judgeships for an additional five years. The measure was paired with the $36.5 billion Disaster Relief Supplemental Appropriations Act.

The new temporary judgeships are in the District of Delaware (2), the Middle District of Florida (1), and the Eastern District of Michigan (1). Temporary judgeships extended to October 26, 2022 are in the following districts: Delaware (5), Florida Southern (2), Maryland (1), Michigan Eastern (1), Nevada (1), North Carolina Eastern (1), Puerto Rico (2), and Virginia Eastern (1).

Congress last authorized permanent bankruptcy judgeships in 1992. At its March 2017 meeting, the Judicial Conference recommended the creation of four permanent judgeships and the conversion of 14 temporary bankruptcy judgeships to permanent status. The request was made to address workload issues.

Cameras in the Courtroom

Several bills were introduced in the 115th Congress that would allow cameras in federal courts. Members of Congress asked questions about the issue at a February 2017 oversight hearing held by the House Subcommittee on Courts, Intellectual Property, and the Internet. Administrative Office (AO) Director James C. Duff, in his capacity as secretary of the Judicial Conference, submitted a letter for the hearing record reiterating the Judiciary’s opposition to allowing electronic media coverage and broadcasting of federal trial court proceedings. The Conference has said that camera coverage can have an intimidating effect on litigants, witnesses, and jurors, and ultimately can undermine a citizen’s right to a fair and impartial trial. Cameras at trial proceedings also create security and privacy concerns, the Conference maintains.

PACER

At the same February oversight hearing, members of Congress inquired about the costs and operations of the Public Access to Court Electronic Records (PACER) system. AO Director Duff provided the panel with extensive documentation of the history and current structure of the PACER program, including recent and planned improvements, court filing data privacy policies, an explanation of how fee schedules are developed, fee waiver or exemption procedures, recent expenditures of collected fees to support the Judiciary’s Electronic Public Access programs and initiatives, and an analysis of the potentially negative impact that reducing fees would have on the PACER and CM/ECF (Case Management/Electronic Case Filing) systems. AO staff held additional briefings with congressional staff to answer questions about the PACER system.

Probation Officer Protection Act

In May 2017, the House passed the Probation Officer Protection Act, bipartisan legislation that would give probation officers authority to use verbal commands with – and arrest if needed – anyone obstructing them from performing their official duties. A companion bill with a bipartisan list of cosponsors was introduced in the Senate; no action was taken on it in 2017. The proposed law requires the AO director to issue national implementation guidelines. If the bill is enacted, related training would likely be added to the instruction that officers receive at the Federal Probation and Pretrial Academy in Charleston, SC. Currently, a federal probation officer cannot give verbal commands to third parties, much less arrest them, exposing the officer to greater risk of harm and compromising effective supervision.

Class Action Litigation Policy

The House passed legislation that would alter substantially the procedures governing class actions, multidistrict litigation, and certain civil actions involving personal injury or wrongful death claims. The AO sent letters to the House Judiciary Committee and to the House leadership stressing the importance of following the Rules Enabling Act, which gives the judicial branch authority to set the Federal Rules of Civil Procedure. The letters also outlined the Judicial Conference’s strong opposition to the imposition of time limitations for rulings on certain motions and its concern that the expansion of interlocutory appeals and of federal diversity jurisdiction could create duplicative litigation. The letters also raised concerns regarding the substantial new reporting requirements for the AO and the Federal Judicial Center, with no allocation of additional resources, and the potential disruption caused by retroactive application of the many statutory changes to pending class actions and multidistrict cases. At the close of 2017, the bill had not been acted on in the Senate, where it was pending in the Judiciary Committee.

Regulatory Reform

In the 115th Congress, two bills affecting regulatory procedures were of particular interest to the Judiciary: the Regulatory Accountability Act and the Separation of Powers Restoration Act. Both measures would affect judicial review of administrative rulemaking, alter the federal courts’ role in the regulatory process, make review of administrative decisions potentially more complex and time-consuming, and require more resources to consider such cases. The bills were referred to committee and no further action was taken on them in 2017.

Safeguarding Sensitive Financial Disclosure Information

The Judiciary’s authority to redact from financial disclosure forms certain information that could endanger judges or their families was scheduled to expire at the end of 2017. Federal judges, the AO, and members of Congress worked to secure reauthorization before that date.

A bipartisan group of House Judiciary Committee members, including Representatives Hakeem Jeffries (D-NY), Darrell Issa (R-CA), and John Conyers (D-MI) introduced legislation to extend redaction authority for 10 years, until 2027. The bill was reported favorably by the committee and passed the full House. In the Senate, Senators Ron Johnson (R-WI) and Claire McCaskill (D-MO) filed a bill that would grant the Judiciary permanent redaction authority. The Senate Committee on Homeland Security and Governmental Affairs approved the bill, without amendment, by voice vote and without debate. In the full Senate, there was some opposition to permanent authority, so the Senate took up the House bill, with its 10-year expiration provision. However, the session ended without a bill passing the Senate, and redaction authority expired on December 31, 2017. Efforts to pass legislation continued in the second session of Congress in 2018.