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Legislative Activity - Annual Report 2009

Judicial Conference representatives

Judicial Conference representatives appeared before Congress during the year to explain Conference positions and provide a judicial perspective on legislation. At a June 2009 hearing, Judge Barbara M.G. Lynn, Chair of the Conference Committee on Administration of the Bankruptcy System, said that the need for new bankruptcy judgeships is critical. Testifying with her were Bankruptcy Judge David S. Kennedy of the National Conference of Bankruptcy Judges, shown here to her left, the Government Accountability Office's William Jenkins, Jr., also shown, and Cary D. Ebert of the National Association of Consumer Bankruptcy Attorneys.

Administrative Office staff maintain regular communications and interactions with Congress. Staff convey and explain policies adopted by the Judicial Conference and monitor legislation that could affect the operations of the federal courts. They also respond to congressional inquiries regarding legislative proposals and constituent concerns, and coordinate with the Government Accountability Office (GAO) on congressional studies affecting the Judiciary.

The first session of the 111th Congress was marked by significant actions in support of the Judiciary as Congress acted on a wide range of issues important to the Judiciary during the year.

Judicial Salary Restoration Initiative

Given the nation’s economic climate, extensive efforts to pursue the full judicial salary restoration initiative were held in abeyance. Senator Dianne Feinstein (CA) introduced the “Federal Judicial Fairness Act of 2009,” which would allow judges to receive enhanced annual pay adjustments equal to the overall average pay increases authorized for the General Schedule. The bill would also repeal section 140 of Public Law No. 97-92 that requires affirmative action by Congress each year before judges can receive their annual salary adjustment. Senate Judiciary Committee Chairman Patrick Leahy (VT), and Senators Orrin Hatch (UT) and Lindsey Graham (SC) were also original cosponsors of this legislation. In her floor speech introducing the bill, Senator Feinstein noted how inflation-adjusted pay for federal judges has declined dramatically over the last 30 years and cited examples of judges forced to leave the bench for financial reasons.

Judicial Survivors’ Annuities System

On August 12, 2009, the President signed into law the “Judicial Survivors Protection Act of 2009” (Pub. L. No. 111-49). This legislation enacted two Judicial Conference legislative proposals. First, incumbent federal judges who had not enrolled previously in the Judicial Survivors’ Annuities System (JSAS) were given a limited six-month period to opt into the system. These new enrollees had to pay an enhanced contribution rate in order to preserve the financial integrity of the JSAS Fund. They also could make extra deposits and pay interest to receive credit for their prior judicial service. They thereby gained immediate coverage and protection for their survivors, obviating the 18-month vesting period. Second, the law allowed all federal judges to increase voluntarily their contributions to JSAS to enhance the value of their survivors’ annuities.

Article III Judgeships

Legislation to create additional Article III judgeships to address workload needs, consistent with the recommendations of the Judicial Conference, was introduced in both the Senate and the House. In the Senate, Judiciary Committee Chair Patrick Leahy (VT) led 17 original cosponsors in introducing the “Federal Judgeships Act of 2009” on September 8, 2009. A few weeks later in the House, the Chair of the Judiciary Subcommittee on Courts and Competition Policy, Hank Johnson (GA), joined full Committee Chair John Conyers (MI) and others in offering substantially similar legislation.

A hearing on the Senate bill was held before the Senate Judiciary Subcommittee on Administrative Oversight and the Courts, where Judge George Z. Singal testified as Chair of the Judicial Conference Committee on Judicial Resources. He thanked Sen. Leahy for introducing S.1653, which reflects the Judicial Conference Article III judgeship recommendation that Congress establish 63 new judgeships in the courts of appeals and district courts, convert five temporary district court judgeships to permanent status, and extend one temporary district court judgeship.

Securing Adequate Funding

Fiscal Year 2009 Funding

Congressional funding in fiscal year 2009 allowed the courts to hire staff to address workload requirements.

Fiscal year 2009 was a successful year for Judiciary appropriations. After a continuing resolution was in place until mid-March, the Omnibus Appropriations Act funded fully the Judiciary’s amended budget request. In addition, the Act contained key legislative provisions, such as a retroactive cost of living adjustment (COLA) for judges, a one-year extension of the temporary judgeships in the Districts of Kansas, Hawaii, and Ohio-Northern, the FEGLI fix for bankruptcy and territorial district judges with the same coverage under the Federal Employee Group Life Insurance Program as Article III, magistrate, and claims court judges, and language making permanent procurement authorities granted to the Judiciary in FY 2006.

Overall, the Judiciary received $6.481 billion to support its operations in fiscal year 2009. The resulting court allotments grew by 3.7 percent over fiscal year 2008 levels and 5.3 percent over fiscal year 2008 obligations, allowing the courts to hire staff to address workload needs. For the second year in a row, funding was included to increase the hourly rate paid to private attorneys who represent eligible defendants under the Criminal Justice Act (CJA), from $100 to $110 for non-capital cases, and from $170 to $175 for capital representations.

Court security program funding was again fully supported in fiscal year 2009 appropriations and provided improved court security staffing and equipment, as well as additional reimbursable staff at the U.S. Marshals Service (USMS) to enhance program oversight responsibilities. Congress also included the funding and authorization to continue the Judiciary pilot project at several courthouses for USMS perimeter security services previously performed by the Federal Protective Service. Once the pilot project ends in mid-2010, an evaluation will be provided to the Financial Services and General Government Appropriations Subcommittees.

Supplemental Funding for Fiscal Year 2009

An additional $10 million was provided the Judiciary in the FY 2009 Emergency War Supplemental to address workload requirements in the courts resulting from immigration and other law enforcement initiatives.

The USMS received $4 million for enhanced personal security of judges in districts along the southwest border (SWB). The Administrative Office has worked closely with the USMS on security priorities.

Image of man and women reading fiscal year funding report

Fiscal year 2010 funding provided an increase to the hourly rates for non-capital Criminal Justice Act panel attorneys and allowed a cost-of-living adjustment to the hourly rate for attorneys in capital cases.

Fiscal Year 2010 Funding

Most federal agencies, including the Judiciary, began the fiscal year operating under a continuing resolution (CR) at the 2009 funding level. However, unlike recent years, the CR was in place for a much shorter duration, and a six-bill Consolidated Appropriations Act, which included funding for the Judiciary, was signed into law on December 16, 2009. Congress again showed strong support of the Judiciary. Overall, the Judiciary received nearly $6.9 billion in appropriations. This represents a 5.7 percent increase over fiscal year 2009 appropriations and essentially funds fully our amended request. The appropriation addresses Judiciary salaries and expenses, court security, and top courthouse construction priorities. In addition, the budget funds an increase to the non-capital CJA panel attorney rate from $110 to $125 per hour, and a cost-of-living adjustment to the capital rate from $175 to $178 per hour, effective January 1, 2010.

The Judiciary will continue its outreach to Congress and dedication to cost containment. The process has helped improve the Judiciary’s financial position and educate Congress about court requirements.

Courthouse Construction

Fiscal year 2009 also was a very successful year for courthouse construction funding, as Congress appropriated nearly $600 million for courthouses in three separate bills. Funds to complete the San Diego, California courthouse, and major renovations of courthouses in Chicago, Illinois and New Bern, North Carolina were included in the FY 2009 Omnibus Appropriations Act.

The Judiciary was also able to obtain stimulus funding for courthouses this year through the American Recovery and Reinvestment Act of 2009, signed into law in February. The Act provided a lump sum of funding to the General Services Administration (GSA), the agency that constructs the Judiciary’s courthouses. GSA chose to allocate some of those funds to the construction of three new courthouses: Austin, Texas, the first project on the Judiciary’s plan for fiscal year 2010, and Bakersfield, California and Billings, Montana, both of which were originally planned as build-to-suit leases and therefore not on the Judiciary’s five-year building plan. GSA also used stimulus money to make up shortfalls in three other courthouse projects already under construction: Little Rock, Arkansas; Jackson, Mississippi; and El Paso, Texas. Finally, several hundred million dollars in stimulus funds were allocated to modernize and renovate about 100 existing court facilities.

Fiscal year 2010 appropriations for GSA were included in the FY 2010 Consolidated Appropriations Act, signed into law on December 16, 2009. The Act provided funding for the remaining courthouse construction projects proposed by the Judiciary in its five-year plan for fiscal year 2010: Salt Lake City, Utah; Savannah, Georgia; San Antonio, Texas; and partial funding for Mobile, Alabama. In addition, funds were included for courthouse projects in Greenbelt, Maryland, which was on the Judiciary’s list for fiscal year 2011, and for Lancaster, Pennsylvania, which had been planned as a build-to-suit lease and therefore was not in the plan. The conference report that accompanied the Act also included language in support of GSA using previously appropriated funds for construction of a new courthouse in Yuma, Arizona.

Early in the year, several members of the House of Representatives formed a new Congressional Courthouse Caucus. This caucus wrote to the Administration to urge funding for courthouses in the annual budget and also wrote several times during the year to appropriators and authorizers in support of the Judiciary’s courthouse construction program.

Congress continues to closely scrutinize the courthouse construction program. The GAO was asked by the House committee that authorizes courthouse projects to conduct a study of the Judiciary’s courthouse construction program, focusing particularly on whether there can be even more sharing of courtrooms than already required by the Conference for senior judges and magistrate judges.

Court Improvements

The “Federal Judiciary Administrative Improvements Act of 2009” was introduced in both the House and Senate by the chairs and ranking members of the Judiciary Committees and their subcommittees. These bills contain nine Judicial Conference-initiated proposals to improve federal court operations. The House passed its bill in October 2009.

The legislation resolves a workload conflict regarding the role of senior judges in the selection of magistrate judges that was inadvertently created by sections 503 and 504 of the “Court Security Improvement Act of 2007” (Pub. L. No. 110-177). Specifically, Section 503 of the Act broadly allows senior judges to participate in court governance matters once they carry at least the equivalent of a six-month active workload of an active judge in the court. Section 504 of the Act focuses only on senior judge participation in the selection of magistrate judges and has no workload requirement for that participation.

The bills also allow for the separate filing of the “statement of reasons” that judges issue upon sentencing, so as to better protect confidential information such as the identity of government informants. In addition, the legislation improves the timely collection and assimilation of wiretap data needed for the annual report to Congress by extending some reporting deadlines. An inflationary index is created for the threshold amount that triggers the need for approval by a chief judge of reimbursements for costs of expert witnesses and investigators hired to represent indigent defendants.

Cameras in the Courtroom

Bills were introduced in the House and Senate that would provide presiding judges with the discretion to permit electronic media coverage of proceedings in the district courts, courts of appeals, and U.S. Supreme Court. They give any non-party witness the right to request that faces and voices be disguised or obscured to the broadcast audience. The bills also bar interlocutory appeals of decisions to permit, deny, or terminate electronic media coverage and preclude all electronic media coverage of jurors and of the jury selection process.

Separate legislation is also pending to require the Supreme Court to permit television coverage unless the Court decides, by majority vote of the justices, that allowing such coverage would constitute a violation of the due process rights of one or more parties before the Court. The Judicial Conference and the Supreme Court oppose the use of cameras in the courtroom.

Jurisdiction and Venue Clarification Act

The “Federal Courts Jurisdiction and Venue Clarification Act of 2009” was introduced in the house in November 2009. This bill was introduced at the request of the Judicial Conference following years of study and is related to legislation pursued by the Conference beginning in the 109th Congress. The pending bill would facilitate the administration of justice by clarifying the operation of jurisdictional statutes and make it easier to identify the appropriate forum—state or federal court—where certain actions should proceed. The bill also solves problems related to venue and transfer.

In particular, the bill addresses removal and remand issues, including clarifying provisions governing timeliness of removal notices and consent, and participating in the use of stipulations to specify the actual amount in controversy. The bill also provides that unincorporated associations will be treated the same as incorporated associations for determining venue and grants discretion to a court to transfer a case anywhere within the district upon its own motion or upon the request of a party.

Government Accountability Office Studies

The Administrative Office, in coordination with Judicial Conference committees and the courts, responds to the GAO's studies and requests for information on behalf of Congress. It reviews and comments on GAO draft reports. In fiscal year 2009, the GAO conducted eight studies involving the Judiciary, of which five were completed or closed. Final reports addressed:

At year end, there were three active studies: Federal Courthouse Planning and Use, Deferred Prosecution and Non-Prosecution Agreements, and the National Guard and Reservist Debt Relief Act of 2008.