October 12, 2004

Honorable Judd Gregg
Chairman
Senate Appropriations Subcommittee on
Commerce, Justice, State, The Judiciary
and Related Agencies
S-146 A, U.S. Capitol Building
Washington, D.C. 20510

Honorable Ernest F. Hollings
Ranking Member
Senate Appropriations Subcommittee on
Commerce, Justice, State, The Judiciary
and Related Agencies
Room 123, Hart Senate Office Building
Washington, D.C. 20510

Dear Chairman Gregg and Senator Hollings:

     As you prepare to conference the FY 2005 Commerce, Justice, and State, the Judiciary and Related Agencies (CJSJ) Appropriations Bill, we write to inform you of the views of the Judicial Conference of the United States concerning funding levels included for the judiciary in the two versions of the bill (H.R. 4754/S. 2809).

     First, we want to express our sincere appreciation for your effort to resolve the FY 2004 funding crisis in the Defenders Services account. The supplemental funding you provided the judiciary in the FY 2005 Department of Defense Appropriations Act allowed us to avoid the suspension of payments to panel attorneys which otherwise would have been halted at the end of August 2004. In addition, we appreciate your prompt attention to our reprogramming request for the Fees of Jurors account. Without these additional monies, jury trials could not have continued through to the end of the fiscal year.

     With regard to FY 2005, we are grateful for the full funding provided the Fees of Jurors account in both the House and Senate bills. The shortfalls in this must-pay account in recent years has required reprogrammings from other underfunded judiciary accounts to ensure that jury trials can continue.

     However, in almost every other judiciary account, we face significant shortfalls from our FY 2005 full requirements at the funding levels provided in both the House and Senate bills. As was stated in testimony before the House Appropriations Committee last spring, “...the federal judiciary is at a crisis point. The courts’ workload and the resources provided to handle that workload are headed in opposite directions.” This statement was based upon the funding levels provided the courts in FY 2004. Unfortunately, the funding levels provided in both the House and Senate bills for FY 2005 will continue this trend of ever-growing workload and fewer resources to handle it.

     In years past, we have appealed to you for what we believed was needed to perform our Constitutional and statutory responsibilities. However, we are well aware of the overall budget constraints under which you are forced to operate this year. Thus, we have decided not to appeal for the funds necessary to meet our FY 2005 workload requirements, but instead to appeal for the minimum funding needed to maintain FY 2004 levels of services and operations.

For our largest account, the courts’ Salaries and Expenses, we appeal for $4,197,786,000, the amount needed to fund uncontrollable expenses and to bring court staffing back up to the level on-board at the beginning of FY 2004 – before the courts lost over 900 employees due to hiring freezes, layoffs, buy-outs and early retirements. This appeal will allow courts to fill critical vacant positions lost in FY 2004, but would not allow them to hire any new staff to meet their growing workload needs. The House level is about $17 million below the amount required to replace all of the employees lost in FY 2004. At the Senate level, we estimate that courts would have to reduce staffing by an additional 570 employees through another round of lay-offs, furloughs, buy-outs and early retirements.

• For the Defender Services account, we appeal for $687,791,000, the amount needed to maintain current levels of service, assuming the hourly panel attorney rate increase for capital cases approved in both the House and Senate bills. The funding level provided for the Defender Services account is below current services in both the House and Senate bills. At the House level, there would be a two week suspension of panel payments, while the Senate level would result in almost a two month suspension of payments.
  
• For the remaining judiciary accounts, we are appealing for appropriations levels that generally would provide for current services. We make a special plea for your consideration of funding for the Administrative Office of the U.S. Courts (AO). Currently, the AO is holding approximately 60 positions vacant due to a shortage of funds in fiscal year 2004. The House-passed recommendation, while $2.7 million below current services, will at least avoid any further staffing reductions and permit the AO to continue its ongoing efforts to improve court productivity and accountability through a number of critical automation projects and cost-containment efforts.

      We would also like to acknowledge the Senate’s inclusion of the bill language necessary for federal judges to receive a COLA for FY 2005. We respectfully urge you to include this COLA provision in conference.

     We have enclosed for your consideration a summary detailing the impact the House and Senate recommendations will have on each appropriations account within Title III of the CJSJ Appropriations Bill, and the funding requirements necessary to preserve current services within the judiciary. We ask you to keep in mind that these amounts are the minimum necessary for the judiciary to carry out its duties effectively, and urge you to exclude the judiciary from any across- the-board reductions you may apply to the conference agreement. The across-the-board reductions included in both the CJSJ chapter and the overall Omnibus bill in FY 2004 required the judiciary to lose more than 900 positions during the past twelve months. A similar reduction in FY 2005 would erode judiciary staffing further and greatly harm the judicial process.

     On behalf of the entire Judicial Branch, we appreciate greatly your attention to the priorities of the Federal Judiciary as you proceed through the difficult task of conferencing the final appropriations bill. Please do not hesitate to contact us if you have any questions or need additional information.

Sincerely,

John G. Heyburn II
Chair, Committee on the Budget

 

Leonidas Ralph Mecham
Secretary

Enclosure

cc:      Conferees

U.S. Court of Appeals for the Federal Circuit

The Court of Appeals for the Federal Circuit (CAFC) requests that the House mark of $22,936,000 be granted if its full request for $25,162,000 cannot be approved. At this level, the CAFC would be able to essentially maintain current services including funding for its full complement of court security officers (CSOs) including those that were approved and allotted to the court by Congress through the Wartime Supplemental in 2003. The funding for the CSOs through the supplemental appropriation lapsed at the end of the fiscal year. Future funding must be met through the court’s appropriation and has been requested in our 2005 budget and provided in the House passed level. In addition to funding the CSOs, the House mark provides for basic increases to contracts, salaries and benefits.

At the Senate level the CAFC could not maintain the full complement of CSOs and would be required to lose up to17, or more than 50%, of its currently authorized level of CSOs. This would leave the courthouse without sufficient security. The courthouse is located in an extremely vulnerable area of Washington, D.C., adjacent to Lafayette Park and across the street from the White House. The CSOs provide security coverage not only for the judges and courtrooms of the Federal Circuit and for the U.S. Court of Federal Claims on a daily basis, but must be very vigilant in patrolling and providing a visible security presence on the exterior perimeter of the courthouse on a constant basis.

U.S. Court of International Trade

The Court of International Trade's (CIT) appeal for Fiscal Year 2005 is to the House mark of $14,888,000. This figure will enable the court to nearly maintain current services and provide for basic increases to salaries and benefits. Because this level does not fully provide for current services ($15,133,000), some reduction in court operating costs will be required, however, given the fiscal constraints placed on the Congress, the court is not appealing for the full current services amount. However, should resources become available the court asks that the Congress consider funding its full current services requirements.

Although the court will reduce operating expenses as much as possible, because the court is small and has little flexibility to make up the large shortfall at the Senate level, staff would have to be furloughed for up to three days per pay period for five pay periods, which would place additional workload burdens on the present staff. Judge and Clerk's Office staff training would be substantially reduced. The TransitCheks program would have to be eliminated, thereby creating a greater financial burden on all employees. This has an added impact in New York City where EPA has mandated that employees take mass transit to avoid driving into the city.

In addition, the court would not be able to continue with CSO replacements when a CSO is on leave, thereby negatively impacting the court's security program. The court would also have to cancel some of its maintenance agreements. Thus, any problem with essential court equipment or software would have to be dealt with on a case-by-case, and likely more expensive, basis.

The CIT is a court with nationwide jurisdiction. As such, to fulfill its mission, the court’s judges travel to locations across the country to hear cases. At the Senate level, case-related travel for Judges, Senior Judges and Clerk's Office personnel would be drastically reduced. This reduction would greatly reduce the number of cases that could be heard outside of New York City, and thereby increase the time it takes for litigants outside of New York to have their cases resolved. Further, a reduction in funds for travel would have a negative impact on the Court's roll-out of its CM/ECF program.

Courts of Appeals, District Courts and Other Judicial Services

Salaries and Expenses

In fiscal year 2004, allotments provided to the courts were insufficient to maintain staffing levels actually on board at the end of fiscal year 2003. Based upon the most current information, by
September 30, 2004, the courts will end up with approximately 900 fewer employees on board than were present on October 1, 2003. These reductions in staff came as a result of normal attrition of employees for which replacements were not allowed, layoffs (involuntary separations), early retirements approved by OPM, and buyouts. The judiciary’s appeal for the courts’ Salaries and Expenses account of $4,197,786,000 is the amount required to allow courts to maintain current on-board staff plus fill the 900 positions left vacant as a result of the constrained fiscal year 2004 budget (21,822 FTE), and will maintain current services for non-salary expenses. Even if the courts are provided funds to fill these 900 lost positions, they will still be well below the staffing levels needed to address their workload needs resulting from additional criminal cases and defendants, the growing number of felons released under supervision, and expanding requirements for drug testing and aftercare.

At the House appropriations level of $4,180,715,000, the courts would be able to fund the approximate number of staff funded for fiscal year 2004 (21,555 FTE). However, this would still be below fiscal year 2003 levels while workload has continued to grow.

At the Senate level of $4,134,646,000, once adjusted to account for Federal Protective Service (FPS) costs, the courts would be more than $100 million and 1,135 FTE below the aforementioned current services level. Based upon the anticipated number of court staff that will be on board on September 30, 2004, an additional 570 employees would be lost over the course of the fiscal year, through continued hiring freezes, and additional layoffs, early retirements, and buyouts. The disparity between staffing required to address workload and on-board staff will become even greater.

Defender Services

The Defender Services account is appealing to its full current services level of $687,791,000. In addition to providing adequate funding for Federal Defender Organizations, this amount will allow for uninterrupted payments to panel attorneys including the inflationary and capital rate increases provided in both the House and Senate versions of the fiscal year 2005 appropriations bill.

At the House-passed level, payments to panel attorneys would be suspended for the last two weeks of September.

At the Senate-passed level, funds for panel attorney payments would run out in early August, nearly eight weeks before the end of the fiscal year.

Fees of Jurors

The Fees of Jurors account is fully funded at both the House and Senate Levels. The amount included in those bills will be sufficient to sustain jury payments for the entire year.

Court Security

The judiciary requests that the Court Security appropriation be funded at its current services level of $363,740,000. This amount is $89.1 million above the Senate mark and $15.8 million below the House-passed level. This amount would provide for the full FPS contract guard service costs which had been funded out of the Salaries and Expenses and Defender Services accounts in prior years. The House had allowed for this transfer in its version of the Bill, the Senate did not.

The House-passed level included $15.8 million in program increases for security systems and equipment, as well as five additional positions at the U.S. Marshals Service to administer the Judicial Facility Security program. While these funds and positions are needed for this program, given the fiscal limitations faced by Congress, the judiciary has decided to defer these enhancements for another year. Should additional funds become available, the judiciary would ask that the full House-passed level be considered.

After adjusting the Senate mark to provide the requested transfer of FPS funding at the 2004 base level to Court Security (as the Senate report funded base FPS costs of $57 million in S&E), security systems and equipment would be reduced below current services by over $13.8 million and existing FPS contract guard services would be reduced by approximately $17.0 million. The $13.8 million shortfall to equipment would require a large reduction in funding necessary to provide essential security systems and equipment to court facilities nation-wide. This cut, in addition to the $16 million reduction to the appropriation below requirements in fiscal year 2004, would severely impact on our ability to address even minimal security systems and equipment requirements of the courts, including replacement of obsolete security systems and equipment; perimeter security enhancements and CSO radio repeater installation. The $17.0 million reduction to FPS contract guards would require that the judiciary provide immediate notification to FPS to effect an across-the-board reduction to achieve savings of this magnitude. FPS contract guards provide the local marshals with the necessary flexibility to augment the coverage provided by Court Security Officers (CSOs) to ensure an adequate level of security coverage at court facilities. Since the $75 million in FPS charges estimated for fiscal year 2005 are based on a continuation of services already obtained from FPS, the judiciary will be automatically billed via IPAC unless FPS is directed by the judiciary to reduce contract guard services provided to the courts.

Payment to Judiciary Trust Funds

Payment to Judiciary Trust Funds is a mandatory account and is fully funded at both the House and Senate Levels.

Administrative Office

Although it requires $71,717,000 to fund current services, the Administrative Office (AO) is appealing for $68,635,000, the House-passed level, in recognition of Congressional budget constraints. This level is $2.7 million below current services. Currently, the AO is holding approximately 60 positions vacant due to a shortage of funds in fiscal year 2004 and as a precaution resulting from the low House and Senate marks. Despite this reduction in staff, the AO is still expected to continue its ongoing efforts to improve court productivity and accountability through a number of critical information technology projects and cost containment efforts. Additionally, the AO must continue to provide its day-to-day support of the courts and the Judicial Conference.

At the House-passed level, the AO will be able to fund current on-board staff but will be unable to backfill any of the 60 existing vacancies. The AO will be unable to provide adequate support for its many responsibilities unless it is provided necessary resources to maintain current services.

At the Senate level, the AO would be forced to further reduce staff by 26 positions, placing in jeopardy a number of our productivity and cost-containment initiatives.

Federal Judicial Center

The Center is very grateful for the funding levels provided by the House ($21,737,000) and Senate ($21,670,000) which are 50% and 43%, respectively, of the increases needed to maintain the Center's 2005 “current services” funding requirements. Under normal circumstances, the Center would not appeal for full current services funding. The 2004 appropriation, however, is less, in unadjusted dollars than its 1992 appropriation, and its FTEs have declined by 28. Almost all the Center's resources are devoted to the education and training of federal judges, probation and pretrial services officers, court managers, and other court employees. The Center has shifted much of that education to distance education technologies, but the growing need for training is outpacing our ability to meet it. In light of our responsibilities to the judicial system, we petition the conferees respectfully for the full “current services” level ($22,265,000).

United States Sentencing Commission

The United States Sentencing Commission originally requested an appropriation of $13,456,000 for FY 2005. Unforeseen intervening circumstances required the Commission to submit a re-estimate for FY 2005 of $14,689,000, and the Commission is appealing for funding at this level.

In Blakely v. Washington 124 S.Ct. 2531 (2004), the U.S. Supreme Court recently held that the Washington state guideline sentencing scheme violated a defendants's right to a jury trial under the Sixth

Amendment of the United States Constitution. The opinion expressly did not address the federal sentencing guidelines but has caused uncertainty as to whether the Blakely decision impacts to any extent the federal sentencing guidelines. The Supreme Court held oral arguments on October 4, 2004, on two cases, United States v. Booker and United States v. Fanfan, that address the applicability of Blakely to the federal sentencing guidelines. Blakely has required the Commission to reallocate resources. Specifically, the Commission is mounting a vigorous defense of the guidelines by cooperating closely with the Solicitor General's office and filing an amicus brief in support of the guidelines. The Commission is actively collecting data and conducting analyses that might inform Congress in the event statutory changes are needed and is tracking caselaw and compiling an extensive legal database. In addition, the Commission is collecting "real-time" sentencing data on cases sentenced post-Blakely which has contributed to the previously existing backlog of case files.

In addition to responding to the aftermath of Blakely and preparing for the potential impact of Booker and Fanfan, the PROTECT Act recently imposed several new sentencing data collection and reporting requirements. With sixteen months of experience of working toward meeting the PROTECT Act's new requirements, the Commission now understands that greater sustained resources in the area of data collection and quality control are necessary to complete these more detailed, statutorily mandated tasks in the timely manner expected by Congress.