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August 2010

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This article is in the news archives --- for current news go to the Third Branch News.


Pending Bills Await Action in 111th Congress

When Congress returns from August recess, it will have only a few months in the second and last session to pass legislation before the 111th Congress ends. Among the legislation awaiting action are bills creating and extending Article III and bankruptcy judgeships and a bill that would aid in clarifying issues of jurisdiction.

Article III Judgeships

S. 1653, the Federal Judgeship Act of 2009, has been introduced by Senator Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee. The bill reflects the current Judicial Conference judgeship recommendations to establish 63 new judgeships in the courts of appeals and district courts, convert five temporary district court judgeships to permanent, and extend one temporary judgeship.

A companion bill, H.R. 3662, has been introduced in the House by Representative Hank Johnson (D-GA), chairman of the House Judiciary Subcommittee on Courts and Competition Policy.

S. 193, a bill to create and extend certain temporary district court judgeships was introduced by Senator Dianne Feinstein (D-CA). It has been reported by the Senate Judiciary Committee. As introduced, the bill would re-establish two lapsed temporary judgeships in the Eastern District of California and the District of Nebraska, and extend three existing temporary judgeships in the District of Hawaii, the District of Kansas, and the Northern District of Ohio. In committee, the bill was amended to add the extension of three more existing temporary Article III judgeships in the District of Arizona, the Central District of California, and the Eastern District of Texas, and to incorporate the bankruptcy judgeship recommendations of the Judicial Conference.

H.R. 4089, a more limited bill to extend and create temporary Article III judgeships, was introduced in the House by Representative Jim Costa (D-CA). Bankruptcy Judgeships

H.R. 4506, the “Bankruptcy Judgeship Act of 2010,” was passed by the House in March. The bill reflects the current Judicial Conference recommendation to create 13 new permanent bankruptcy judgeships, convert 22 existing temporary bankruptcy judgeships to permanent status, and extend two existing temporary bankruptcy judgeships for an additional five years.

In May, the Senate Judiciary Committee reported the House bill.

The Jurisdiction and Venue Clarification Act, H.R. 4113

H.R. 4113, the Federal Courts Jurisdiction and Venue Clarification Act of 2009, reflects work over several years by the Judicial Conference and its Committee on Federal-State Jurisdiction. The legislation proposes amendments to Title 28, U.S.C., related to diversity jurisdiction, removal and remand, and venue and transfer. These improvements are intended to reduce uncertainty in the application of jurisdictional and venue provisions, thereby reducing wasteful litigation and assisting litigants in pursuing their claims. Some of the proposals are similar to recommendations of the American Law Institute in its 2004 Federal Judicial Code Revision Project.

Among other things, the bill would eliminate the resident alien proviso. By clarifying that diversity jurisdiction does not exist in suits between a citizen of a state and a permanent resident alien in that state, it eliminates the potential expansion of alienage jurisdiction that is possible under the existing language. It also would more clearly define “citizenship” for foreign and domestic corporations doing business abroad.

The removal provisions would:

  • ensure that when a federal question claim is removed along with unrelated state law claims, the federal question claim will proceed in federal court and the state law claims will be remanded to state court;
  • clarify the provisions governing the timeliness of removal in multiple defendant cases by giving each defendant 30 days after service to remove, while allowing earlier-served defendants to consent to that removal; and
  • codify present case law requiring the consent by all defendants to removal.

Regarding the venue amendments, the bill would:

  • create a general venue statute to define ”venue”;
  • establish a unitary approach to venue rules governing both diversity and federal question cases;
  • eliminate the differences in “fallback” venue currently found in section 1391 of Title 28;
  • repeal the outdated “local action” rule;
  • clarify “residence” for venue purposes;
  • provide that unincorporated associations will be treated  the same as corporations for determining venue; and
  • clarify the application of venue for persons residing outside the United States, while granting a venue defense to permanent resident aliens with a domicile in the United States.

The Judicial Conference supports enactment of this important legislation.