Vol. 36, Number 8—August 2004

Countdown Begins to End of 108th

It's not over yet, but the time left in the second session of the 108th Congress can be measured in a few short weeks. As Congress gears up in September, appropriations bills may be at the head of its priorities list, but it is unclear what other legislation will squeeze through in the time remaining.

Bills to further punish identity theft and protect personal security in e-filing moved relatively rapidly prior to the August recess. After passage by the House and Senate, H.R. 1303, a bill to amend the E-Government Act of 2002, was signed by the President. HR 1303 provides for a rule which would permit the filing of a "reference list" with the court that would include the complete version of each personal data identifier and a corresponding partially redacted version of each identifier.

For example, if an individual's full Social Security Number is 123-45-6789, the list would include the complete number with the corresponding partially redacted number of XXX-XX-6789. The list is intended to serve as a type of "key" and would be maintained under seal and could be amended by a party as a matter of right. The listing can be filed in civil, criminal, or bankruptcy cases.

This eliminates the filing of two versions of a document—one unredacted (and automatically under seal) and one redacted. It allows the implementation of the Judicial Conference privacy policy by providing public access to redacted electronic case files while satisfying the Department of Justice's needs by permitting filing of unredacted identifiers in those circumstances it deems necessary to establish the elements of a criminal case.

The Identity Theft Penalty Enhancement Act also became Public Law 108-275, enhancing penalties, through the addition of mandatory minimum sentences, for aggravated identity theft. The Act also prohibits probation or a reduced sentence for certain violations.

Other bills struggled. For example, the passage of bankruptcy reform and asbestos compensation legislation is uncertain and class action reform legislation remains mired.

Bills to create both Article III and bankruptcy judgeships are pending in the House and Senate. In the first session of the 108th Congress, the Senate passed S. 878, a bill that includes not only 14 permanent and temporary district court judgeships, but also 36 permanent and temporary bankruptcy judgeships that had been included in S. 1061, the Bankruptcy Judgeship Act of 2003. S. 878 is pending in the House. The possibility still exists that legislation containing some new judgeships may move before the end of this Congress since Senator Orrin Hatch (R-UT) has indicated that he will seek approval for about 20 new Article III judgeships.

The Judicial Conference has recommended the creation of nine permanent and two temporary courts of appeals judgeships, the creation of 29 permanent and 17 temporary judgeships in the district courts, and conversion of five existing temporary judgeships to permanent. The Conference also has recommended the creation of 36 bankruptcy judgeships in 22 judicial districts.

Finally, H.R. 1302, the Federal Courts Improvement Act, is pending in the House Judiciary Committee after being favorably reported in May 2003 by the Subcommittee on Courts, the Internet, and Intellectual Property. In the Senate, Senator Orrin Hatch (R-UT) has indicated that the companion bill, S. 2396, will be considered by the Committee after the August recess. For more on the provisions of H.R. 1302, visit http://www.uscourts.gov/ttb/june04ttb/improvement/index.html.