April 2015

FBA Capitol Hill Day on April 30
Approximately fifty Federal Bar Association leaders will meet with House and Senate lawmakers on April 30 during FBA Capitol Hill Day. The increasingly popular FBA event will involve advocacy by FBA national, circuit and chapter leaders to promote:

  • Support for adequate funding for the Federal Judiciary
  • Support for prompt attention by the President and the Senate to filling judicial vacancies
  • Support for curbing abusive patent litigation practices
  • Opposition to H.R. 758 and S. 401, The Lawsuit Abuse Reduction Act of 2015
  • Support for the establishment of an Article I Immigration Court

A brief FBA video providing a primer on each of these five issues has been recorded by Government Relations Counsel Bruce Moyer and is available here: http://bit.ly/1IUmI1a Further registration information about Capitol Hill Day is available here.

FBA Support for Federal Judiciary Funding
As lawmakers return to Washington in mid-April from their two-week recess, House and Senate negotiators will convene to reconcile the differences between the House and Senate budgets adopted in March. They will aim at achieving a final framework for the FY 2016 appropriations allocations to government departments and programs, including for the Federal Judiciary.

The Federal Bar Association earlier communicated to Congress its strong support for the Federal Judiciary’s FY 2016 budget request in correspondence from President Matthew Moreland to the chairs of the Senate and House Appropriations subcommittees overseeing funding for the federal courts. Those letters can be found here.

In underscoring the need for adequate court funding, President Moreland noted that “The Judiciary’s FY 2016 request will maintain current services across the Judiciary, continue the recovery and restoration of activities disrupted because of sequestration, and enable investment in important new or upgraded program initiatives to support judicial operations.”

The Senate and House Appropriation Subcommittee on Financial Services and General Government held hearings on the judiciary’s FY 2016 budget request on March 24 and 25. The leaders of the two committees reflected support for the Federal Judiciary’s request of $7.0 billion in discretionary funding, a 3.9 percent increase above last year.

Judge Julia Gibbons, chair of the Judicial Conference Committee on the Budget, and Jim Duff, Director of the AO, testified at both hearings in support of the Federal Judiciary’s request. They emphasized the Judiciary’s cost containment efforts, aimed at reducing the size of the Judiciary’s physical footprint by 3% by 2018. They also pointed to expanded use of shared administrative services by court units and the additional cost savings that will arise through amendment of law (18 USC §3602) to permit the sharing of probation officers among federal judicial districts.

The Federal Judiciary supports $181.5 million in funding for a new courthouse in Nashville, TN and $20 million for renovations and security improvements in existing courthouses, as contained in the funding request for the General Services Administration, which coordinates the construction for new government buildings and capital improvements.

Judge Gibbons testified, in answer to a question about the potential impact of flat funding, that the judiciary would have to downsize staff by 260 FTEs, defer paying panel attorneys for one month, eliminate $6.3 million from IT-related court security enhancements, and cut funding for court security personnel and equipment by $22 million.

FBA Comments on House Litigation on Abusive Patent Litigation

In a March 26, 2015 letter to the House Judiciary Committee, the Federal Bar Association urged a “balanced approaach” by Congress toward patent law reform that curbs abusive patent litigation while promoting a patent system that provides incentives for American leadership in innovation and technology. The letter reflects the Federal Bar’s opposition to legislation that “mandates rules and practices outside of the traditional Rules Enabling Act procedures and potentially infringes on judicial independence and discretion in adjudicating patent disputes.” The remarks came in a letter setting forth the FBA’s views on the Innovation Act, H.R. 9, legislation intended to deter abusive patent litigation. The FBA letter can be found here.

During Capitol Hill Day on April 30, FBA leaders in meetings with Hill lawmakers will continue to urge Congress to temper abusive patent litigation, while raising concerns about approaches that intrude on judicial independence and generate fee-shifting wars.

Federal Judicial Vacancies

Since the start of the 114th Congress, the number of judicial vacancies has grown from 44 to 55 in appeals, district and international trade courts. Those considered emergency vacancies for benches facing high caseloads has nearly doubled from 12 to 23.

The Senate this week is set to confirm the first judicial nominee since Republicans gained the majority three months ago. That is a slower pace than 2007, when Democrats confirmed 15 of Republican President George W. Bush’s court nominees in the three months after they regained control of the Senate in 2007.

The US Courts website, as of this date, reflects:

  Vacancies Nominees Pending
Courts of Appeal 8 2
District Courts 43 13
US Court of International Trade 4 1
Total 55 16

Of the 55 current vacancies, 23 are designated as “judicial emergencies” by the Federal Judiciary, an increase of 2 over a month ago. There are 26 vacancies that are expected to arise over the course of the next year.

Texas is responsible for more than one-third of those emergencies (six Texas federal district court and two Texas Fifth Circuit seats), one fifth of 55 current vacancies (9 district & 2 Fifth Circuit seats), and two announced future judicial vacancies.

Judge Alfred H. Bennett, whom the Senate is expected to confirm this week for a seat on the Southern District Court of Texas, would fill one of the “emergency” spots that has been empty for more than two years.

The Lawsuit Abuse Reduction Act of 2015
The Lawsuit Abuse Reduction Act of 2015 (H.R. 758) was the subject of a House Judiciary subcommittee hearing on March 17. A companion bill (S. 401) also has been introduced in the Senate. A prior version of the legislation in the last Congress passed the House of Representatives, but stalled in the Senate. It is opposed by the Federal Bar Association, along with the Judicial Conference of the United States and the Obama Administration. The FBA will urge opposition to the legislation during meetings with lawmakers during Capitol Hill Day on April 30.

The legislation would restore mandatory sanctions for frivolous lawsuits filed in federal court and require those who file frivolous lawsuits to pay for the legal costs of defendants when it is proven that the lawsuit was without any basis in law or fact. The mandatory sanctions permitted under the legislation would include repayment to defendants of the full costs of their reasonable expenses incurred as a direct result of the Rule 11 violation, including attorneys’ fees. The bill strikes the current “safe harbor” provisions in Rule 11 that allow lawyers to withdraw allegedly frivolous claims by withdrawing them within 21 days.

The Federal Bar Association opposes the legislation because it would eliminate judicial discretion in the imposition of sanctions for frivolous litigation and likely cause expensive satellite litigation to unfold. By creating an automatic financial incentive, and by removing the safe-harbor period, the changes to Rule 11 could dramatically increase the number of sanctions motions, including those filed against Federal government attorneys, and correspondingly increase the risk of financial exposure for any conduct that might be considered a Rule 11 violation. In short, the legislation would raise the amount and cost of civil litigation and provide more opportunity for unnecessary delay and harassment.

Attorney General Nomination
Senate floor action on the nomination of Loretta Lynch to become Attorney General post continues to remain on hold as Republican opposition has increased over concerns that she would be a rubber stamp for President Barack Obama's executive actions, which many Republicans have labeled an unconstitutional power grab. Lynch, the U.S. attorney for the Eastern District of New York, received high marks for character and competency in her nomination hearings. But as her nomination was held up in March over a stalemate on an abortion amendment on a human trafficking bill. She would be the first black female attorney general, succeeding the first black male attorney general, Eric Holder.

FBA Meeting with AO Director Duff
A cordial and productive meeting of FBA national leaders with James Duff, the new director of the Administrative Office of the U.S. Courts, occurred in Washington on March 26. FBA President Matt Moreland, Vice-President Mark Vincent, Treasurer Hon. Michael Newman, Executive Director Karen Silberman and Government Relations Counsel Bruce Moyer represented FBA. Director Duff thanked FBA for its continued support of the Federal Judiciary and for the collaborative role FBA plays at the national and chapter levels. He was especially appreciative of the FBA’s work on Capitol Hill and its advocacy for adequate resources for the federal courts. He also expressed interest in exploring ways that the FBA may further assist in promoting civic education programs that increase public understanding and respect for the federal courts.


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