The End of the 107^thCongress: Budget in Limbo

Congress returned for barely a week after the November 2002 elections for a lame duck session. Preoccupied with passage of the Homeland Security Act, it left the Judiciary’s fiscal year 2003 appropriations bill for the 108^th Congress that will convene January 7, 2003. But the end of a Congress means all pending judicial nominations and unpassed bills of the 107^th Congress must be reintroduced in the next Congress.

The Judiciary’s Budget

The Judiciary and the rest of the non-defense portion of the federal government will be operating in FY 2003 under a continuing resolution (CR) through January 11. The 107^th Congress passed only two appropriations bills, funding the Department of Defense and military construction. Reportedly, there is a commitment between the Congress and the White House to finish work on the fiscal year 2003 appropriations bills by the end of January.

Anticipating a long-term CR and the detrimental impact it would have on the federal courts, the Chief Justice wrote to the President and congressional leaders in October asking that Congress pass a full-year funding bill for the Judiciary. "The Judiciary requires additional funds now above FY 2002 enacted appropriations simply to maintain pace with existing workload," Rehnquist wrote. "My goal is merely to ensure that the courts continue to operate in a manner that will not diminish the quality of justice they provide the nation, which is what will happen under such a long-term continuing resolution."

With the prospect of functioning under a CR into the second quarter of the fiscal year, the Executive Committee of the Judicial Conference determined that all court units must operate at rates of operation no more than 95 percent of their FY 2002 formula allotment levels. This limitation is in effect until Congress acts on a long-term continuing resolution or a full-year appropriation.

The Senate Appropriations Committee favorably reported the FY 2003 Commerce, Justice and State, the Judiciary and Related Agencies Appropriations bill, giving the Judiciary a 6.4 percent increase over FY 2002 in the salaries and expenses account. The House did not mark up its version of the bill before the end of the 107^th Congress.

COLAs

No language was included in any of the enacted appropriations bills that would prevent Members of Congress from receiving an automatic 3.1 percent cost of living increase effective January 1, 2003, which historically has meant judges would be in line for a similar COLA. However, Congress did not include language in any enacted bill waiving Section 140 of P.L. 97-92, which provides that judges receive salary increases only as the result of specific legislative action or when Congress affirmatively authorizes an annual salary increase for judges. In the last days of the 107^th Congress, a decision was made by congressional leaders not to include any legislative riders on the final continuing resolution passed before the new Congress convenes. This decision included the Section 140 waiver needed to provide judges a COLA effective January 1. The AO was recently informed that Congress intends to include the Section 140 waiver in the next CR extension, which should take place on or about January 11.

Judicial Nominations On November 21, the 107th Congress adjourned sine die until January 7, 2003, when the 108th Congress begins. With the end of a Congress, all judicial nominations are returned to the White House. If the nominees are to be considered in the new Congress, their names must be resubmitted. Thirty-one nominations were returned to the White House at the end of the 107th Congress. At adjournment, there were 25 vacancies on the courts of appeals, 34 vacancies in the district courts, and one vacancy on the U.S. Court of International Trade. The Senate confirmed 100 judgeship nominations in the 107th Congress, 17 to the courts of appeals and 83 to the district courts.

Citing the cost of the war on terrorism, on November 29, 2002, the President decided to hold the upcoming government-wide pay adjustment (which affects court employees) to 3.1 percent. Media have reported that Congress intends to include legislation in an upcoming appropriations bill to provide the additional 1 percent for locality pay, which if signed into law by the President, would provide for a total pay adjustment of 4.1 percent.

Article III Judgeships

New federal district judgeships were created in the second session of the 107th Congress, each of which was recommended by the Judicial Conference. P.L. 107-273, the 21^st Century Department of Justice Appropriations Authorization Act, authorized eight new district court judgeships and seven temporary judgeships, made permanent four temporary judgeships, and extended one temporary judgeship.

No bill incorporating all of the Judicial Conference recommendations for 54 judgeships was introduced in either House. Other bills, creating judgeships for specific regions or districts of the country, such as H.R. 272, the Southwest Border Judgeship Act of 2001, and an identical Senate bill, S. 147, did not pass Congress in this session.

The biennial survey of judgeship needs recently was completed in the federal courts, and the survey results are being evaluated by the Judicial Conference Committee on Judicial Resources. The committee’s recommendations will be considered by the Conference at its 2003 March meeting.

Long-Awaited Legislation

The clock ran out on H.R. 4125, the Federal Courts Improvement Act of 2002, which passed the House on October 1, 2002, after a lengthy delay in the Judiciary Committee. The bill was not acted on in the Senate. Senator Charles E. Grassley (R-IA) stated that he might add a provision on cameras in the courtroom if the bill was considered.

At the end of two contentious sessions, Congress appeared to be on the verge of passing Bankruptcy Reform Legislation. House and Senate conferees had reached agreement on a conference report, but then the House declined to vote on the conferenced bill, objecting to provisions unrelated to the Judiciary. In the final hours of the 107^th Congress, the House took up and passed a separate bankruptcy reform bill, shorn of the offending provisions and also of new bankruptcy judgeships. The new bill went on to the Senate, where it never came to a vote. The original legislation would have created the first new bankruptcy judgeships since 1992—28 new temporary judgeships.

The 21^st Century Department of Justice Appropriations Authorization Act gave the Judiciary more than new judgeships. Section 11020 of the Act is the Multiparty, Multiforum Trial Jurisdiction Act of 2002. The provision gives district courts original jurisdiction over any civil action involving minimal diversity between adverse parties arising from a single accident, where at least 75 people have died in the accident and the defendant(s) reside(s) in a state or states other than where the accident occurred. If the majority of all plaintiffs are citizens of a single state, of which the primary defendants are also citizens, the district court shall not hear any civil action in the case. The bill also states that a district court in which an action under this act is pending shall promptly notify the Judicial Panel on Multidistrict Litigation. The Judicial Conference supported similar legislation in prior Congresses.

Nominations Open for 2002 Devit Award Nominations are now open for the 21st Annual Edward J. Devitt Distinguished Service to Justice Award. The award, named for the late Edward J. Devitt of the U.S. District Court for the District of Minnesota, recognizes the dedicated public service of federal judges. The ideal nominee, who must be an Article III judge of national stature, will have had a distinguished lifelong career characterized by decisions that, "through his/her wisdom, humanity and commitment to the rule of law, make clear that bench, bar, and community alike would willingly entrust that judge with the most complex cases of the most far-reaching import." The Devitt Award is administered by the American Judicature Society with support provided by the Dwight D. Opperman Foundation, Minneapolis. Nomination guidelines are available online at www.ajs.org. Nominations for the Edward J. Devitt Distinguished Service to Justice Award should be submitted by February 1, 2003, to: Devitt Distinguished Service to Justice Award 180 North Michigan Avenue, Suite 600 Chicago, Illinois 60601