Annual Report

Congressional Activity

Captial Gains Tax Rollover | Emergency Leave Transfer Authority | Court Security | Inspector General | Cameras in the Courtroom | Courts Improvement | Asbestos | Immigration | Habeas Corpus | Ninth Circuit Split | Criminal Law | Rent Relief/Courtroom Sharing | Securing Adequate Funding

Working with Congress continues to be a top priority of the Administrative Office. The AO supports the priorities of the Judicial Conference of the United States and its committees by explaining to Congress policies adopted by the Conference, drafting statements for judges testifying on behalf of the Conference, monitoring legislation that could affect federal court operations, and responding to congressional contacts about legislative proposals and constituent concerns.

During its second session, the 109th Congress considered several bills of interest to the Judiciary. Judicial Conference representatives testified at hearings to voice support for legislative proposals and to address issues that could affect Judiciary operations and workload. As the congressional session came to a close, a number of proposals with negative implications for the courts had been blocked. However, the 109th Congress did not complete several important legislative initiatives in support of the Judiciary's mission, including its appropriations and court security measures.

Capital Gains Tax Rollover. On the last day of the session, Congress cleared a major tax credits extension bill, which included the Judiciary's long-sought request for capital gains tax rollover authority. This provision is similar to what is already provided to executive branch employees. All federal judges may now defer payment of capital gains taxes when they sell stock or other financial holdings to avoid a conflict of interest that arises in a case. The taxes will be due when the substitute holding is eventually sold.

Emergency Leave Transfer Authority. Legislation was enacted in May 2006 to allow employees of the Judicial Branch to participate in emergency annual leave transfer programs when a major disaster or other emergency results in severe adverse effects for a substantial number of federal employees.

Court Security. The Judiciary presented numerous important court security related measures to Congress: extension of the Judicial Conference's authority to redact sensitive information from judges' annual financial disclosure forms, a requirement for the U.S. Marshals Service to consult and coordinate with the Judiciary regarding the security requirements of the federal courts, the criminalization of malicious filing of fictitious liens, as well as the extension of the "FEGLI fix" for bankruptcy, magistrate and territorial court judges. In response to the operational difficulties caused by Hurricane Katrina, Congress did enact a Judiciary proposal giving the courts emergency authority to conduct proceedings outside the territorial jurisdiction of a particular court. AO staff were successful in getting the other measures attached to the Senate version of the Defense Authorization Act of 2007, but these provisions were dropped before that bill was passed.

The House succeeded in passing its own separate court security bill, which included the above-mentioned measures. However, an impasse resulted when the non-controversial court security provisions were packaged with highly contentious provisions that would have expanded federal criminal jurisdiction to include juvenile gang members. The Senate passed a clean version of the Court Security Bill in December-in the lame duck session of Congress-but the House failed to pass the bill. Renewed efforts to get the crucial legislation passed will begin immediately in the 110th Congress.

Inspector General. Rep. James Sensenbrenner (R-WI) introduced the Judicial Transparency and Ethics Enhancement Act of 2006, to establish an Inspector General (IG) for the Judiciary. Sen. Charles Grassley (R-IA) introduced a similar bill in the Senate. Under either bill, the Chief Justice would appoint an IG after consultation with the Speaker and minority leader of the House of Representatives and the majority and minority leaders of the Senate. The results of IG audits and reviews would be reported directly to Congress and the Chief Justice.

The Judicial Conference expressed its strong opposition to establishment of an IG for the Judiciary because of separation of powers issues and the impact the bill would have on independence of federal judicial decision-making. The Administrative Office immediately established a task force to ensure that the Judiciary's position against establishing an IG was communicated broadly and forcefully. The leadership of the House and Senate were educated about the dangers inherent in the proposal. The AO also provided evidence about the Judiciary's rigorous, substantial, and effective systems for audit, review, and investigation. Judges were also encouraged to contact the members of their congressional delegation to express opposition. None of the Inspector General proposals were taken to the floor of the House or Senate before adjournment.

Cameras in the Courtroom. The 109th Congress considered legislation that would permit the use of cameras in all federal courts for all cases-criminal as well as civil. Two such bills were reported favorably by the Senate Judiciary Committee in March 2006: S. 829, which would have provided discretion to the "presiding judge" in proceedings in the U.S. Supreme Court, courts of appeals, and district courts to permit cameras in the courtroom; and S. 1768, which would have required the Supreme Court to permit camera coverage in its proceedings. The House had earlier passed a court security bill that contained a provision to authorize cameras in all federal courts (including the Supreme Court) at the discretion of the presiding judge.

AO staff informed congressional Members and staff regarding the Judicial Conference's opposition to legislation that would allow the broadcasting of trial court proceedings (civil and criminal), even if discretion were to be provided to the trial court judge. The Judicial Conference also wrote to Senate Judiciary Committee leadership to communicate its strong opposition to S. 829 because it would allow the use of cameras in federal trial courts. Although this issue did not proceed further in the 109th Congress, it is likely to be the subject of renewed attention in the next session.

Courts Improvements. In the second session of the 109th Congress, legislators did not pass any of the more than 40 pending Judicial Conference proposals intended to improve the general operation of the federal courts. (One proposal, the Emergency Special Sessions Act, was enacted separately last year, in response to critical needs recognized during Hurricanes Katrina and Rita.) These proposals range from administrative and benefit provisions to substantive jurisdictional amendments.

Asbestos. Early in the second session of the 109th Congress, the Senate considered the Fairness in Asbestos Injury Resolution Act, which was introduced by the chair and ranking member of the Senate Judiciary Committee. The bill would have established a non-adversarial administrative processing system for the resolution of asbestos personal injury claims, administered by the Department of Labor, with review of such decisions in the regional courts of appeals. The legislation would generally have applied to pending asbestos cases in federal and state courts. Although there was bipartisan support for the legislation, the sponsors were unable to overcome significant opposition. Ultimately, the 109th Congress adjourned without completing action on asbestos litigation reform legislation.

Immigration. At the close of the first session of the 109th Congress, the House passed an immigration bill focused primarily on border enforcement. The bill also included provisions requiring employers to verify the work status of employees, and a provision that would require a single circuit judge to issue a certificate of reviewability before a three-judge panel could hear a petition for review of an immigration appeal. The Judiciary opposed the certificate of reviewability provision.

In the second session, the Senate passed a more comprehensive bill, which included not only border enforcement provisions but also provisions addressing the status of undocumented workers, including the creation of a guest-worker program. The Senate bill also included a provision requiring a study to consider consolidating all immigration appeals within one specific Article III appellate court. The Judiciary has expressed its opposition to consolidating certain immigration actions in a single Article III court. Congress was unable to reach agreement on comprehensive immigration legislation.

Habeas Corpus. In the 109th Congress, members of the House and Senate introduced and considered "streamlining" legislation that would significantly limit federal court review of constitutional claims raised in state prisoners' habeas corpus petitions. The federal Judiciary expressed opposition to key provisions of this legislation. Although Congress did not enact the more comprehensive measures, it did pass certain provisions as part of the reauthorization of the USA PATRIOT Act. The approved provisions authorize the Attorney General of the United States to determine whether or not adequate counsel has been provided to indigent defendants in state post-conviction proceedings for capital cases, under chapter 154 of title 28, U.S. Code. This shifts that determination from the federal Judiciary, and limited judicial review would apply.

Congress also approved provisions relating to the rights of state crime victims in federal habeas corpus proceedings. In legislation to authorize military tribunals, Congress included provisions related to the filing of habeas corpus petitions by enemy combatants detained by the United States.

Ninth Circuit Split. Late in the session, the Senate Judiciary Committee held a hearing on a specific proposal to split the Ninth Circuit Court of Appeals into two new circuits and to create new judgeships for the various circuits. Several judges from the Ninth Circuit testified at the hearing on both sides of the issue. The chairman of the House Judiciary Committee kept the fate of the Ninth Circuit split and the Judicial Conference request for new Article III judgeships intertwined, and efforts to separate the two issues were unsuccessful. The 109th Congress did not act on either issue.

Criminal Law. Relatively little criminal justice-related legislation was enacted in the second session of the 109th Congress. Perhaps the most significant of these for the federal courts was the Adam Walsh Child Protection and Safety Act, which contains a number of new criminal justice provisions related to child protection and sex offenders, and includes many new mandatory minimum sentences. Other criminal law related bills passed during the second session addressed trafficking in persons, counterfeit trademarks, animal enterprise terrorism, trade in military medals, and videotaping movies in a movie theater.

In response to the Supreme Court's Booker/Fanfan decisions invalidating mandatory sentencing guidelines, legislation was introduced late in the session that would have directed courts to impose a sentence at the minimum of the sentencing guideline range up to the statutory maximum and to reinstate a de novo review standard for all downward departures. Judge Paul Cassell (D. Utah), chair of the Judicial Conference Committee on Criminal Law, testified in March 2006 that there was no need for such legislation because federal judges' practices in sending convicted criminals to prison remain much the same as they were before Booker. These bills were not acted upon before adjournment.

Several bills were introduced to prevent and deter gang violence, some of which would also have authorized the prosecution of juveniles in federal court for certain offenses and would have established mandatory minimums. Other than the Adam Walsh Act, none of the bills opposed by the Conference passed.

Rent Relief/Courtroom Sharing. In April, the Senate Judiciary Committee approved the Judiciary Rent Reform Act of 2006, which, if enacted, would have reduced the Judiciary's rent to GSA by about $500 million. A similar bill was introduced in the House. In the meantime, the AO began a series of negotiations with GSA on revised rent calculations. Progress is being made in those ongoing discussions. These reforms are expected to translate into tens of millions of dollars in annual rent reductions for the Judiciary.

In June 2006, the Government Accountability Office (GAO) issued a report, Federal Courthouses: Rent Increases Due to New Space and Growing Energy and Security Costs Require Better Tracking and Management. The report was prepared for the House Committee on Transportation and Infrastructure, prompted by the Judiciary's request for rent relief. The report did not reflect the impact of rent on the Judiciary's budget or incorporate any related input from the Judiciary. The Judiciary, therefore, expressed its concerns about the reduced scope of the GAO rent study and other deficiencies in the final report during a June 2006 hearing held by the House Transportation and Infrastructure Committee's Subcommittee on Economic Development, Public Buildings and Emergency Management.

As recommended in the GAO report, the Judiciary has begun working with GSA to track and analyze rent trends; establish incentives for circuits and districts to use space more efficiently; and to establish space allocation criteria for appellate courtrooms, chambers, and other areas, and for senior district judges.

In response to the Judiciary's rent concerns, the same House Subcommittee suggested that the Judiciary reconsider courtroom sharing as a means of cutting costs. The subcommittee asked that the Judiciary conduct a feasibility study of courtroom usage, in consultation with GAO. The Judicial Conference Committee on Court Administration and Case Management (CACM) asked the Federal Judicial Center (FJC) to conduct the study. The FJC has already designed the study, consulted with GAO on the methodology, and selected 27 districts to participate. Data will be collected from January through June 2007, and the study results will then be made available for CACM review.

SECURING ADEQUATE FUNDING
Fiscal Year 2007 Budget. The Judiciary and most federal agencies began fiscal year 2007 operating under a continuing resolution. Congress enacted only two of the 12 appropriations bills for which it is responsible-for Defense and Homeland Security-before recessing in late September for the mid-term elections.

Post-election, Congressional work on the spending bills stalled during the lame duck session, and in early December Congress enacted a third continuing resolution through February 15, 2007, before adjourning. Unfinished spending bills were left for the new 110th Congress to complete.

Administrative Office staff worked with the Congressional Appropriations Subcommittees to address concerns resulting from a continuing resolution into February, including seeking a waiver to provide judges an Employment Cost Index (ECI) cost-of-living adjustment (COLA) on January 1, 2007. After legislation was enacted to delay the COLA for members of Congress until February, however, the 109th Congress adjourned without addressing the judges' COLA. Prospects for a retroactive judges' COLA for 2007 appear good, if Congress allows the delayed COLA for senators and representatives to take effect.

This end-of-session culminated a full calendar year of work by the Judicial Conference Budget Committee and AO staff to secure sufficient funding for the Judiciary. The Judiciary transmitted its fiscal year 2007 budget request to Congress in February 2006 as part of the President's budget. Judge Julia Smith Gibbons, chair of the Budget Committee of the Judicial Conference, and the AO Director testified on behalf of the Judiciary's budget request before the House Appropriations Subcommittee in April. As in the past several years, the Judiciary did not receive a hearing in the Senate.

The House and the Senate approved overall spending increases for the Judiciary amounting to 6.3 percent and 6.9 percent, respectively-a major achievement given the President's call for a 0.5 percent cut in non-defense and non-security funding. However, the House bill would have underfunded current court staffing levels while the Senate bill would have enabled some courts to hire staff to address some of the critical law enforcement-related workload requirements facing the Judiciary, especially along the southwest border. In addition, both bills underfund the Defender Services account, which would result in a three-to-five-week deferral of panel attorney payments.

Anticipating a fifth year of across-the-board reductions by Congress to final funding levels for most federal agencies, the Judicial Conference Executive Committee in August approved an interim financial plan based on the midpoint of the House and Senate funding levels less an assumed 1 percent across-the-board cut.

Temporary allotments were issued on September 29, 2006, with instructions to all courts and federal defender organizations to restrict hiring and refrain from purchasing non-essential goods and services until a final financial plan was in place. With the continuing resolution extended through February 15, 2007, additional temporary allotments to the courts were planned for December 2006. The Judiciary's two-pronged financial management strategy brought results: Congressional outreach efforts resulted in appropriation marks better than most executive branch agencies; and, cost-containment helped realize lower than historical growth rates in the short-term uncontrollable areas of the Salaries and Expenses account-including GSA rent charges.

The new Democratic Appropriations Committee leaders in December 2006 announced plans to adopt a full-year continuing resolution to address the nine unfinished fiscal year 2007 appropriations bills, including funding for the Judiciary. AO staff were in regular contact with House and Senate Appropriations Committee staff about the possibility of a full-year CR, and they provided a report to the committees describing the severe impact that such a level of funding would have on the Judiciary. The AO also submitted proposed language for inclusion in a full-year CR that addresses the Judiciary's most pressing FY 2007 funding requirements.

Fiscal Year 2008 Budget. The Judicial Conference approved a budget request for FY 2008 of $6.2 billion for the courts of appeals, district courts, and Other Judicial Services, which includes the Salaries and Expenses, Defender Services, Court Security, and Fees of Jurors accounts. This budget request reflects significant and difficult work by the Conference Budget Committee and its Economy Subcommittee, the program committees of the Conference, and AO staff. The request protects the core mission of the courts and includes funding for additional court support staff to handle critical workload increases. The Judiciary's cost-containment program continues to be critical in dealing with the long-term budget outlook and in helping the Budget Committee justify budget requests to Congress.