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Record Bankruptcy Filings, Too Few Judges
Judge Joy Flowers Conti (W.D. Pa.)
Judge Joy Flowers Conti (W.D. Pa.), was named chair of the Judicial Conference
Committee on the Administration of the Bankruptcy System in October 2010. A
member of the committee since 2007, Conti was appointed to the bench in 2002.
You bring your experience as
a former bankruptcy attorney
to your role as committee chair.
Could you talk a little about
I was a law school professor when
the 1978 Code was enacted and went
into effect. I taught bankruptcy and
bankruptcy reorganization. In practice,
I was the debtor’s counsel in one of
the first Chapter 11 cases filed in my
district under the new Code. From my
experience, I developed a respect for the
bankruptcy system and an understanding
of how the bankruptcy process works.
How is work progressing
on enhancements to the
Next Generation of Case
Files System that will affect
bankruptcy judges and chambers
and also the filers? Can
you talk about the planned
improvements or changes?
The Bankruptcy Committee has been
very interested in the progress of the “Next
Gen” project. The project is on schedule
to meet a primary goal of completing
the collection and documentation of
functional requirements by February
2012. A lot of hard work has been
performed by members of the functional
requirements groups, (FRGs), comprised
primarily of judges, chambers and clerks,
office staff. After the functional requirements
are collected, the project will
proceed through other phases, including
design and development. Project participants
are to be congratulated for the fine
work they’ve accomplished to date.
While specific functionality that will be
in the Next Gen system can’t be described
at this point, there are several interesting
concepts that have been talked about.
One idea that could benefit all users is
what has been called the “MyECF” page.
This page would provide users in the
system with a way to organize the user’s
preferences and links to information
in the system. Another concept that is
under consideration is a process to draft
opinions and other documents entirely
within the case management system. This
approach will be especially helpful to
judges and chambers staff.
How did the passage of the
Bankruptcy Abuse Prevention
and Consumer Protection
Act of 2005 affect the type
of bankruptcy filings?
It was widely reported in the press
that the Bankruptcy Abuse Prevention
and Consumer Protection Act of 2005,
popularly referred to as BAPCPA, brought
on a surge of filings in mid- to late-2005.
This surge in filings amounted to an
estimated 725,000 filings above the
“normal” level for the time period. That
surge resulted from what many observers
understand was the mistaken belief
that, after the effective date of BAPCPA,
individuals would no longer be permitted
to file for bankruptcy protection. The vast
majority of the pre-effective date filings
were under chapter 7. Subsequent to
BAPCPA’s effective date of October 17,
2005, the total number of bankruptcy
filings plunged. In fact, in November
2005, there were only 14,500 total
bankruptcy petitions filed in the entire
country. That level of filings had not been
seen in the previous 40 years.
In the intervening years, the level of
filings largely returned to pre-BAPCPA
levels. Immediately following the effective
date of BAPCPA, the mix of total filings
shifted dramatically toward chapter 13
filings. Historically, chapter 13 filings
tended to represent about 29 percent of
total bankruptcy petitions filed. Immediately
after the new law took effect, the
proportion of total filings represented by
chapter 13 filings jumped to in excess
of 50 percent, while chapter 7 filings,
which historically accounted for about
70 percent of all bankruptcy filings, fell to
well below 50 percent. Whether this shift
in the mix was the direct result of the new
law or a statistical anomaly occasioned by
the pre-effective date surge, which effectively
accelerated the filing of hundreds of
thousands of chapter 7 bankruptcy filings,
may never be known. Since that time,
however, the mix of filings has gradually
shifted back to the pre-BAPCPA levels.
By late 2010, chapter 7 filings were again
accounting for about 70 percent of total
It is difficult to determine whether the
recession accounted for the surge in the
number of bankruptcy filings over the last
few years with any degree of confidence.
Although intuitively it appears plausible
that the recession did in fact “cause” some
bankruptcies, the reality is that bankruptcy
relief may not benefit everyone who lost a
job or had mortgage difficulties.
How did BAPCPA affect the
workload of bankruptcy judges?
Statistics indicate that the work of
bankruptcy judges on a per case basis
increased substantially under BAPCPA
compared with the level of work under
the prior bankruptcy law. In all, BAPCPA
created more than 35 types of new
motions, objections, and hearings—
many related to consumer matters—
that did not exist before its enactment.
The overall consequence of BAPCPA is
estimated to be a 42 percent increase
in judicial workload. It is estimated that
the impact of BAPCPA was a 37 percent
increase in the average judicial workload
per chapter 7 case, and an increase of 54
percent in judicial workload per chapter
13 case. The overall impact on chapter
11 cases is estimated to be a 4 percent
increase per case.
When you consider the level and mix
of bankruptcy filings, they’ve returned to
near pre-BAPCPA levels.
How are bankruptcy courts
handling the increased
With great difficulty in those districts
where judges have triple and quadruple
the threshold number of filings at which
point the districts are considered for
additional judgeships. That level now is
1,500 weighted filings. In many courts
it is the norm for judges and chambers
staff to work evenings and weekends.
Recalled judges have helped, but
recalled judges are not a permanent
solution. Also, recalled judges are not
available in all of the districts that are in
need of judicial assistance.
Calendars are getting longer and it
is more difficult to schedule evidentiary
hearings and other matters lasting
more than a few hours. In some districts,
night court is close to a reality. Certain
districts requesting additional judgeships
have calendars with 300, 400, 500,
or more matters scheduled to be heard.
In some courts, it is now necessary to
wait four to six months or more to have
a half-day hearing set on the schedule.
A trial taking five or more days may, in
fact, take place over 12 months or more
with many part-day sessions in order for
the hearing to be completed. It is also
routinely necessary that the 30-day limit
on motions to lift the automatic stay
be waived in many courts because the
dockets are so crowded that it is simply
impossible to reach a final resolution
within the 30-day time frame.
Many judges are concerned that they
don’t have time to write opinions. This
causes a judicial version of a Catch-22:
the courts have many cases, which may
have similar fact patterns and issues, and
written opinions could alleviate some
of the judges’ workloads by communicating
to the bar how certain matters are
addressed. It is beneficial if a judge can
rely on a well-reasoned opinion in appropriate
cases. But the judges are so pressed
for time due to the volume of cases that
they are unable to take the time necessary
to write an opinion on a recurring issue.
Given the present workload
situation, do the bankruptcy
courts have adequate resources
—including a sufficient number
of bankruptcy judges?
The short answer to this question
is “no.” Nationwide, there are only 351
authorized bankruptcy judgeships and
additional bankruptcy judgeships, are
not frequently authorized by Congress.
Until BAPCPA authorized 28 additional
temporary judgeships in 2005, no
additional bankruptcy judgeships had
been authorized since 1992.
To address the need for additional
judicial resources, the Judicial
Conference, on the recommendation of
the Bankruptcy Committee, approved
requests for 49 additional judgeships, the
conversion of 28 temporary judgeships
to permanent status, and the extension
of two temporary positions for additional
five-year periods. The Committee is
greatly concerned that the failure to
enact bankruptcy judgeship legislation
will impair the ability of the bankruptcy
courts to perform their work in the
face of increasing case filings that are
at near-record levels. Failure to convert
and extend the temporary judgeships is
of particular concern because, without
congressional action, the Judiciary could
soon have fewer judicial resources to
address an historically heavy workload.
Many temporary judgeships are due to
lapse in the next few years.
The House Judiciary Committee has
voted to favorably report the Temporary
Bankruptcy Judgeship Extension Act of
2011 (H.R. 1021) on March 17, 2011. This
bill would extend for five years 30 existing
temporary bankruptcy judgeships that have
lapsed, or are lapsing soon, and would
thus be in danger of expiring. We hope
that this legislation will be considered and
acted upon favorably by both Houses of
Congress as soon as possible.
Has your Committee made any
recommendations for assistance
to the bankruptcy courts?
In addition to its recommendations for
additional judgeships and the preservation
of existing judgeships through conversion
or extension of temporary judgeships, the
Committee established a working group
of Committee members to explore alternative
uses of existing judicial resources.
Among other things, the group will
explore the possibility of establishing a
visiting judge information system through
the AO to assist circuits and districts in
finding judges who are willing and able to
provide assistance to overworked courts.
Enhancements in technology also are
The group will consider the results
of a survey of bankruptcy judges being
conducted by the Federal Judicial Center
to explore factors that might make recall
an attractive alternative to full retirement.
Given the difficulty of obtaining
additional bankruptcy judgeships, retired
bankruptcy judges willing to serve under
the recall program are indispensable to
the national bankruptcy court system.
At the present time, 33 bankruptcy
judges are serving on recall. Their service
provides individual districts with a costeffective
means to address shifting
caseloads and valuable experience that
benefits the bankruptcy system. Using
recalled judges, however, is only a shortterm
Also, the Judicial Conference
approved at its March 2011 session
a recommendation to revise the
Conference guidelines for the intercircuit
assignment of bankruptcy judges
to allow more flexibility and promote
greater use of intercircuit assignments.
What are your goals and/or
projects as committee chair?
This is a critical time for the bankruptcy
court system with so many overworked
bankruptcy judges and the possibility of a
large number of judicial retirements in the
near future. It is essential that the courts
continue the effort to obtain adequate
judicial resources and create more flexibility
and efficiency in using existing
resources to address the dramatic increase
in the workload. The bankruptcy courts
need appropriate resources to serve the
public and to meet the needs of justice.