August 2014

Congress is in the midst of its five-week “district work period” recess. It will return on September 8 amid a crowded agenda for a brief two-week period, before another recess begins extending past the November 4 mid-term elections. Lawmakers during those two weeks foremost will try to forge a catchall funding bill that will keep federal agencies and the courts operating past September 30 and the end of the government’s fiscal year.

Two familiar legislative and policy issues – budget resources for the courts and judicial vacancies – continue to occupy FBA’s advocacy attention.

Budget Resources for the Federal Courts

Sustained budget pressures, compounded by a polarized Congress, have resulted in another budget stalemate for the federal courts, with “flat funding” the likely outlook for FY 2015. Despite optimism in the spring that the Ryan-Murray budget agreement of 2013 would provide the framework for a return to “regular order” and Congressional passage of the twelve regular government funding bills, that scenario has disintegrated. The Senate’s failure to pass a single funding bill, due to internal partisan squabbling over funding levels, has triggered the necessity for both chambers to approve the stopgap funding bill in September.

The spending measure, called a Continuing Resolution, is expected to continue funding for all government components, including the courts, at FY 2014 funding levels past the November elections, and into the lame duck session, probably into the second week of December. Flat funding for the courts will necessitate the absorption of new, additional costs within current resources. While this outcome is better than the 5 percent cut that the courts suffered in FY 2013 due to sequestration, it still will require the continuation of relatively strict budget controls and cost containment by court units over the next year. The shape of funding for FY 2016 remains uncertain, depending upon the complexion of the new Congress, but overall, relatively little new, additional funding is expected.

Judicial Vacancies

Over the past seven months we have witnessed a dramatic decline in the number of judicial vacancies, especially in the district courts. Since January, judicial vacancies in the Article III courts have fallen by roughly forty percent. As of August 18, the following vacancies existed:

  Vacancies Nominees Pending
Courts of Appeal 8 1
District Courts 49 25
US Court of International Trade 0 0
Total 58 26

The Senate rules change made last November, requiring only bare-majority approval for confirmation of executive and most judicial nominees (instead of 60 votes) has had an impact, but so has the Senate Democrats’ desire to secure as many nominations as possible before the November elections, with the possibility of losing majority control of the Senate. The numbers of judicial vacancies and nominees pending have both considerably declined, a welcome development.

Second-Tier Issues

Several additional legal policy issues, some engaging the interest of FBA sections and divisions, will saw these developments over the past several months:

Veterans Reform – In the most notable example of bipartisanship during the current Congressional session, House and Senate negotiators in late July agreed on a package of reforms to speed-up and increase the accessibility of health care for veterans. The reforms also included steps to permit the VA Administrator to more easily fire career senior-level officials. The shape of that removal process and its minimal assurance of due process for civil servants caused the Veterans and Military Law Section to send a cautionary letter of concern to Congressional leaders on June 24.

Patent Reform – Efforts in the Senate to pass legislation that curbed abusive patent infringement lawsuits collapsed in May, as Senate Judiciary Committee Chairman Patrick J. Leahy terminated sensitive negotiations over the legislation and pulled the bill from further consideration by the Committee. Leahy faulted continuing disputes between tech firms and pharmaceutical firms that have taken opposite sides in the debate over reform and blocked a bill from going forward.

The House in December easily passed its own measure, H.R. 3309, which would discourage frivolous litigation by taking steps such as requiring plaintiffs to provide more information about the nature of their infringement claims; limiting the discovery process in cases until after judges interpret terms in the patent at issue; and ordering the losing party to pay the winning party’s legal costs in most cases. That would be a significant change from current law, in which attorney’s fees are only awarded to the winners in “exceptional” cases. The House legislation also bypassed the Rules Enabling Act and established rules for patent cases superceding the Federal Civil Rules of Procedure. The speed of House approval of its measure heightened the stakes for action in the Senate, leading in part to the standoff between opposing interests.

The collapse of the Senate’s efforts also may have been caused, in part, by recent decisions from the U.S. Supreme Court that afford district courts greater flexibility and responsibility in safeguarding parties from abusive patent litigation practices. The Court in a pair of recent cases, Octane Fitness v. Icon Health and Fitness and Highmark Inc. v. Allcare Health Management System held that district courts have full discretion, on a case-by-case basis, to decide whether attorneys’ fees are appropriate in “exceptional” cases considering “the totality of the circumstances,” and obligating the Federal Circuit to respect the discretion of the district courts. The Supreme Court held in Nautilus, Inc. v. Biosig Instruments that lower courts may determine a patent to be invalid for indefiniteness if its claims do not inform “with reasonable certainty” the scope of the invention. The Court further held in Alice v. CLS Bank Int’l. that a patent is ineligible for protection if an abstract idea is merely combined with a generic computer implementation in an effort to transform the abstract idea into a patent-eligible invention. Both cases suggest that courts may be more critical of ambiguous patents.

Immigration Reform – Deep partisan divisions have prevented agreement in the House on comprehensive reform, after the Senate in June passed a comprehensive bill that grants citizenship to undocumented immigrants. House Republicans dismissed the sweeping Senate bill and promised to move their own incremental measures, but have not been able to accomplish that, including a supplemental funding bill addressing the humanitarian crisis on the border. Meanwhile, the Federal Bar Association, in coordination with its Immigration Section, continued to advocate the establishment of an Article I immigration court within a comprehensive immigration reform measure. The FBA Issues Agenda adopted last year established FBA support for the transfer of responsibilities for the adjudication of immigration claims from the Executive Office of Immigration Review within the Department of Justice to a specialized Article I court, as established by Congress, for the adjudication of claims under the Immigration and Naturalization Act.

Criminal Sentence Reform – Growing concerns over the rising costs of federal prisons and the fairness of mandatory minimum sentences prompted bipartisan proposals to emerge in the House and the Senate to revise federal sentencing laws, particularly for nonviolent drug offenders. The Senate Judiciary Committee approved the Smarter Sentencing Act, S. 1410, which would reduce mandatory sentence penalties (by authorizing federal judges greater discretion at sentencing to depart below mandatory minimums in certain cases) and revisions that would permit offenders to serve less time in prison. However, Senate leaders refrained from bringing the bill to the floor, largely out of fear that promoters of the legislation would be branded in an election year by detractors as “soft on crime.” The FBA Issues Agenda, as affirmed by the Board of Directors, provides that “[T]he Federal Bar Association supports efforts to advance fairness and consistency in federal sentencing, while preserving judicial independence and discretion to deal with the particular circumstances of individual cases.”


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