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The Courts and Congress - Annual Report 2012

FY 2012 saw increased Congressional oversight of federal government spending and priorities.

The Judicial Conference makes recommendations to Congress concerning legislation that affects court resources, operations, or organization. Administrative Office staff informs Congress about Conference positions and policies related to potential legislation, and explain bills being proposed by the Conference. AO staff is in daily contact with Congressional staff on a wide variety of matters relating to court administration and activities. Providing Member and staff briefings, responding to Congressional inquiries and constituent concerns, and other informational exchanges are part of this ongoing dialogue. Fiscal year 2012 saw increased Congressional oversight of federal government spending and priorities. Responding to inquiries from Congress or its investigative agency, the Government Accountability Office (GAO), complying with demands for records and data for special reports or hearings, and reviewing potential new oversight legislation, represented a major part of all legislative activity this year. The Judicial Conference acted to allay Congress’ concerns about federal court expenditures and internal operations and affirmed Conference policies on fiscal responsibility. [See this report's section on Accountability for more on the Judiciary’s response.]

The nation’s extremely tight and long-term fiscal constraints and restrictions put in place by Congress to control and reduce spending have created increasingly difficult obstacles for action on any of the Judiciary’s legislative agenda items that have cost implications. Finding ways to comply with strict mandatory spending offset requirements (such as the statutory PAYGO Act or the even more stringent CUTGO rules in the House) presents progressively more demanding challenges, both fiscally and politically.

Enacted Legislation

Temporary Bankruptcy Judgeships Extended: In May 2012, the Temporary Bankruptcy Judgeships Extension Act of 2012, was enacted as Pub. Law No: 112-121, extending for an additional five years 29 existing temporary bankruptcy judgeships that could have expired in 19 judicial districts. All the bankruptcy judgeship extensions were supported by the Judicial Conference.

The legislation, considered in Congress for more than a year, came just in time for many bankruptcy courts with these temporary judgeships. By statute, five years after a judge fills the office, the first bankruptcy judgeship vacancy to occur in that same district cannot be filled. The five years were up for most, and vacancies were beginning to occur.

Extensions of Temporary Article III Judgeships: Short-term extensions of two existing temporary Article III judgeships that were about to expire in the District of Hawaii and the District of Kansas were enacted as part of the Consolidated Appropriations Act of 2012 (Pub. Law No. 112-74).

Divisions Realigned in Act of Congress: The Divisional Realignment Act of 2012 was passed by Congress at the end of September and signed into the law as Pub. Law No. 112-188. The Act realigns divisions in the U.S. District Courts in the Eastern District of Missouri and the Northern District of Mississippi to allow the courts to better manage cases for the benefit of litigants and jurors. The realignment was proposed by the Judicial Conference in March 2012.

Additional Legislative Activity

Judgeship Requests: At the beginning of the 112th Congress, the Judicial Conference requested 80 additional Article III judgeships and the conversion of eight existing temporary judgeships to permanent status. Given little movement in Congress on that request, the Conference authorized the AO Director to pursue expedited consideration of judgeship needs in certain courts with sustained and untenably high workloads. That resulted in a request for Congress to address the judgeship needs in the Eastern District of California and the Western District of Texas (each with over 700 weighted filings per judgeship, averaged over a three-year period). The Senate Judiciary Committee then reported an emergency judicial relief bill (S. 1014) introduced by Senator Dianne Feinstein (D-CA), which addressed judgeship needs in those two courts and several other districts, including some with the nation's highest workloads. Companion legislation was introduced in the House.

Criminal Law Improvements: In August 2012, the Director of the AO transmitted to Congress on behalf of the Judicial Conference a proposed bill entitled “Criminal Judicial Procedure, Administration and Technical Amendments Act of 2012.” The bill contains 17 Conference-approved legislative proposals within the jurisdiction of the Committees on Criminal Law, Defender Services, and the Administration of the Magistrate Judge System. The proposals are wide-ranging, and would, improve public safety, the efficiency and effectiveness of the operation of the federal courts, and fairness to victims and those accused of crimes. Since the transmission, the AO has been in contact with several Congressional offices that have expressed interest in some of the proposals.

Courthouse Construction: The Judiciary’s Five-Year Courthouse Project Plan for fiscal years (FYs) 2013-2017 consisted of twelve projects, the majority of which have remained on the plan for years. Congress has not funded any courthouse projects since FY 2010. Scheduled on this plan for final construction funding in FY 2013 were three projects, totaling $377.8 million—Mobile, Alabama; Nashville, Tennessee; and Savannah, Georgia. The Los Angeles, California project was removed from the plan last year when the Judiciary and the General Services Administration (GSA), which builds courthouses, reached agreement on a scaled-down project that could be constructed within funds already appropriated, permitting GSA to proceed with the project. GSA awarded a design/construct contract for the Los Angeles courthouse on December 10, 2012.

Congress did not complete action on final FY 2013 appropriations bills before adjournment, but instead passed a continuing resolution, which funded most government programs at existing levels through March 27, 2013, and therefore did not include any new funding for courthouses.

The Judicial Conference has adopted several policies in recent years to reduce the costs of the courthouse program significantly, including a decision this year to relinquish court space in six locations where there is no resident judge. Congress, however, continues to closely scrutinize the courthouse program and press for additional cost-savings. For example, the House FY 2013 appropriations bill for the Judiciary included language requiring the Judiciary to develop a space management plan that would freeze the courts’ space footprint at the end of FY 2013, then mandate a 1 percent reduction each year thereafter for FYs 2015-2018. This language was not included in the Senate bill. It was not known, at the end of 2012, whether similar language might appear in either a final appropriations bill or another continuing resolution.

The House Transportation and Infrastructure Committee, which authorizes courthouse projects, is also reviewing the courthouse program. Leaders of this committee asked the Government Accountability Office this year to conduct two studies on courthouses, one to review the Judiciary’s long-range facilities planning process, known as asset management planning, and the other to examine the process for determining the use of a courthouse that is vacated or partially vacated by the court when it moves to a new facility. Related to the second study, this committee held field hearings in August 2012 in Miami, Florida, where a courthouse has been built, and in Los Angeles, California, where a new courthouse will soon be built, to determine what GSA will do with the buildings vacated by the court at these locations. The Los Angeles hearing also followed up on a request by the committee that GSA’s new Acting Administrator again review the Los Angeles project to determine whether it should proceed. Following his review, the Acting Administrator concluded GSA should proceed with the project, resulting in a December 10, 2012, contract award.

Finally, in September 2012, the chairman of the House Transportation and Infrastructure Committee and the subcommittee chairman introduced H.R. 6430, the “Public Buildings Reform Act of 2012.” This bill, as reported by subcommittee, included language that could, if passed into law, require courtroom sharing for active district judges and affect the scope of the Los Angeles project, as well as the other projects included on the Five-Year Courthouse Project Plan. There was no further action on this legislation before Congress adjourned.