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Legislative Activity - Annual Report 2011

Judiciary representatives regularly communicate with Congress about matters of mutual interest and concern and discuss Judicial Conference initiatives that require legislative action. The dialogue between the two branches helps assure that courts are able to meet their requirements to serve the public and informs Congress on how pending legislation may affect Judiciary operations and resources.

New Laws

Financial Disclosure Redaction Authority

On January 3, 2012, the President signed into law legislation that extends until December 31, 2017, Judicial Conference authority to redact sensitive security information in a federal judge's or judicial employee's financial disclosure report where release of the information could endanger the filer or the filer's family (Pub. L. No. 112-84). This critical authority would have expired without this extension. Representative John Conyers, Jr. (MI) introduced the legislation which initially would have permanently extended the Judicial Conference's redaction authority. The Senate, however, amended the bill to extend the authority for only an additional six years, and the House agreed to this change.

Jurisdiction and Venue Clarification Act

On December 7, 2011, the President signed into law the Federal Courts Jurisdiction and Venue Clarification Act of 2011 as Public Law No. 112-63. Representative Lamar Smith (TX) was the lead sponsor of this Conference-supported legislation. This new law reflects substantial work over several years by the Committee on Federal-State Jurisdiction. The law will lessen uncertainty for certain jurisdictional and venue provisions, reducing wasteful litigation and assisting litigants in pursuing their claims. The law, for instance, codifies present case law requiring all defendants to consent to removal. It also ensures that when a federal question claim is removed to federal court along with unrelated state law claims, the federal question claim will proceed in the federal court and the state law claims will be remanded to state court. In addition, the law clarifies that each defendant has 30 days after service to remove, while allowing earlier-served defendants to consent to that removal.

Regarding venue, the Jurisdiction and Venue Clarification Act, for example, creates a general statute and establishes a unitary approach to venue rules for both diversity and federal question cases. It also repeals the outdated "local action" rule, clarifies "residence" for venue purposes, and provides that unincorporated associations are treated the same as corporations for venue purposes. In addition, the law clarifies the application of venue for persons residing outside of the United States.

Other Congressional Activity

Judicial Salary Restoration Initiative

Efforts during the first session of the 112th Congress to secure adequate and reasonable compensation for judges remained severely constrained by the ongoing difficult economic conditions and federal budget restrictions. Every legislative initiative involving any type of spending has become strictly limited by current-year budget levels and Congressional concerns about the potential long-term impact on the federal deficit. Judiciary representatives and AO staff continued to remind Members of Congress and congressional staff about how the extended and worsening problem of inadequate federal judicial compensation is adversely affecting the Judiciary.

On March 14, 2011, Senator Dianne Feinstein (CA) introduced the "Federal Judicial Fairness Act of 2011," which would allow judges to receive enhanced annual pay adjustments, generally referred to as COLAs, equal to the overall average pay increases authorized for the General Schedule workforce (the base pay adjustment plus the national average of the various locality pay adjustments). The bill would also repeal section 140 of Public Law No. 97-92, which requires affirmative action by Congress before judges can receive any annual salary adjustment. Although the bill has bipartisan support, no further action has been taken on the bill since it was referred to the Senate Judiciary Committee in March 2011.

Cost-of-Living Adjustment for 2012

On December 22, 2010, the President signed into law the Continuing Appropriations and Surface Transportation Extensions Act of 2011 (Pub. L. No. 111-322), with a provision to withhold cost-of-living salary adjustments for nearly all federal employees for both FY 2011 and 2012. Under Section 101 of the Government Management Reform Act of 1994 (Pub. L. No. 103-356, 5 U.S.C. § 5318(b)), the basic annual pay adjustment for members of Congress, judges, and senior officials can be no higher than that year's comparable pay adjustment for the General Schedule. If General Schedule employees do not receive a basic pay adjustment in 2012, neither will judges. Under the statutory formula set forth in the Ethics Reform Act of 1989 (Pub. L. No. 101-194), federal judges, members of Congress, and top-level Executive Branch officials could have received up to a 1.3 percent Employment Cost Index (ECI) base pay adjustment in their salaries for 2012, if the pay adjustments had been allowed to take effect.

Cameras in the Courtroom

The "Sunshine in the Courtroom Act" was again introduced in the House (by Representative Steve Chabot (OH)) and in the Senate (by Senator Chuck Grassley (IA)). The bills would give presiding judges discretion to permit electronic media coverage of proceedings in the district courts, the courts of appeals, and the U.S. Supreme Court. The legislation would give any non-party witness the right to request that faces and voices be disguised or obscured to the broadcast audience, bar interlocutory appeals of decisions to permit, deny, or terminate electronic media coverage, and preclude electronic media coverage of jurors and the jury selection process. The legislation would authorize the Judicial Conference to promulgate guidelines for managing and administering cameras in the courtroom. Although no action has occurred on the House bill, in April the Senate Judiciary Committee reported favorably its cameras bill. The Judicial Conference continues to strongly oppose bills that would allow for electronic media coverage and broadcasting of federal trial court proceedings.

On a related matter, in July, the federal Judiciary launched its cameras pilot project in 14 district courts. (See Digital Video Pilot in this report for details.)

Separate legislation has been introduced in the Senate and House that would require only the Supreme Court to permit the televising of all open sessions unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of one or more of the parties. In December 2011, the Senate Judiciary Subcommittee on Administrative Oversight and the Courts held a hearing on this bill.

Courthouse Construction Program

The Judicial Conference proposed funding four new courthouses for FY 2011 (Mobile, AL; Nashville, TN; Savannah, GA; and San Jose, CA), but the President's budget request for fiscal year 2011 did not include any courthouse construction funding. Congress passed a series of continuing appropriations resolutions to keep the government operating, with the final one signed into law (Pub. L. No. 112-10) in April 2011. These resolutions did not include funding for any new programs or projects, including courthouses.

For fiscal year 2012, the Judicial Conference proposed the same four projects that were proposed but not funded in fiscal year 2011. The Los Angeles, CA project, which previously had been authorized and funded, remained the Judiciary's top construction priority. Due to budget constraints, the President's budget request for FY 2012 again did not include any courthouse funding. On December 23, 2011, the President signed into law H.R. 2055, the Consolidated Appropriations Act, 2012, (Pub. L. No. 112-74) which includes only $50 million in funding to the General Services Administration (GSA) for new construction and leaves it up to GSA to propose how the funds will be spent. The small amount of this appropriation and the lack of a Presidential request for courthouse funding this year make it unlikely that GSA will direct any of this funding to address courthouse needs.

The FY 2012 appropriations bill does include $20 million in funding to GSA for a new Judiciary Capital Security Program that will help the Judiciary and GSA address security deficiencies in existing court facilities where physical alterations are viable. The goal of the program is to improve security in selected facilities without having to construct new facilities to address security concerns alone.

Article III Judgeships

Adding Article III judgeships and maintaining many existing temporary Article III judgeships remain vital to the Judiciary's efficient service to the public. In the 21 years since the Judiciary's judgeship needs were comprehensively addressed, the civil caseload has grown by 32 percent and the criminal caseload has grown by 63 percent, while the number of Article III judgeships has grown by only 4 percent. In 2011, the Judiciary continued efforts to secure needed judgeships. The Judicial Conference recommended the creation of 80 new Article III judgeships and the permanent retention of eight existing temporary judgeships, while pursuing expedited attention to judgeship needs in two courts (the Eastern District of California and the Western District of Texas) with sustained severely high workloads. The Senate Judiciary Committee favorably reported legislation (S. 1014) introduced by Senator Dianne Feinstein (CA) to address these judgeship needs in courts with some of the highest workloads in the country. In addition, short-term extensions of two existing temporary Article III judgeships that were in imminent danger of expiring (in the District of Hawaii and the District of Kansas) were enacted through the Department of Defense and Full-Year Continuing Appropriations Act of 2011 (Pub. L. No. 112-10).

Bankruptcy Judgeships

Preserving existing temporary banruptcy judgeships, as well as adding new bankruptcy judgeships in certain courts, similarly remain critical to timely resolution of bankruptcy cases for debtors and creditors. Fiscal year 2011 bankruptcy filings were 138 percent higher than they were during 2006, the first full year after the Bankruptcy Abuse Prevention and Consumer Protection Act took effect. The Judicial Conference has adopted recommendations to create 49 new bankruptcy judgeships, permanently retain 28 existing temporary bankruptcy judgeships, and extend two existing temporary judgeships for an additional five years. The Temporary Bankruptcy Judgeship Extension Act of 2011 would extend for an additional five years 30 existing temporary bankruptcy judgeships in 22 courts that continue to need them. The House version of the bill (H.R. 1021, introduced by Representative Lamar Smith (TX)) was passed by the House of Representatives by voice vote on December 6, 2011. The Senate Judiciary Committee reported identical legislation (S. 1821, introduced by Senator Chris Coons (DE)) by voice vote on December 15, 2011.

Government Accountability Office Studies

The Administrative Office responds to studies and requests for information from the Government Accountability Office (GAO). It reviews and comments on GAO draft reports in coordination with Judicial Conference committees and the courts. In fiscal year 2011, the GAO conducted seven studies involving the Judiciary, five of which were completed. Reports were issued on the following topics:

• Federal Protection Issues at Federal Courthouses
• Bankruptcy of Financial Companies
• Bankruptcy Asbestos Trusts
• National Drug Control Budget
• Health Care Fraud and Abuse Control Program

At the end of fiscal year 2011, there were two active studies including a study on state, local and tribal indigent defense, and a second follow-up study on the bankruptcy of financial companies.