July 2013

2014 Issues Agenda

The FBA Board of Directors on June 23 approved the Government Relations Committee’s recommended 2014 Issues Agenda. It is posted here.

Funding for the Federal Courts

The House Appropriations Subcommittee on Financial Services and General Government on July 10 approved a fiscal year 2014 funding bill that includes a good allocation for the federal courts.

The Financial Services and General Government Appropriations bill provides an increase of $12 million above the fiscal year 2013 enacted level (about a 4 percent increase) and $192 million below the Courts’ request. This is a positive development, and the Senate appropriations number, likely to be approved in September, could be similar or slightly higher.

The Federal Courts fared far better than other components covered by the subcommittee’s funding bill. The IRS suffered a 24 percent cut in its funding, in part as punishment for the recent scandals, and partially to deprive the IRS of funding to enforce the provisions of the Affordability Care Act. Those funds cut from the IRS made it possible for the House Subcommittee to provide more funding to the Federal Courts, while still remain within the overall House budget allocation.

The Federal Bar Association in February provided support for the Federal Judiciary’s FY 2014 appropriations request and urged the House Appropriations Committee to provide adequate funding for the Federal Courts. The FBA’s letter to the House Appropriations Committee is here.

Emergency Supplemental Appropriation for the Courts

On June 11, the FBA urged House Appropriations leaders to enact emergency legislation providing a supplemental appropriation to the Federal Judiciary to mitigate the $300 million shortfall the federal courts have suffered in current fiscal year. The FBA letter is here.

The Judiciary has requested a $73 million supplemental appropriation, half of which will be devoted to court operating costs and the other half to federal defender services. The funding crisis for defender services has reached critical levels, with Federal Defender offices furloughing its attorneys and personnel up to 20 unpaid days (one business month) until September 30, the end of the fiscal year.

The FBA is leading a national effort to prompt Congress to heighten its response to the crisis in court funding and to lessen the damage of sequestration, the automatic budget cuts. Attention and advocacy are being especially devoted to the dire situation faced by Federal Defender offices and the extensive furloughs faced by Defender personnel, the greatest number of furlough days being experienced by any federal government employees at the current time. The Judiciary is the only governmental component that has requested supplemental funding to get through the rest of the fiscal year, ending September 30.

Judicial Nominations and Vacancies
Here are the vacancy numbers, as of July 10:

  Vacancies Nominees Pending
Courts of Appeal 16 7
District Courts 67 23
US Court of International Trade 0 0
Total 83 30

Of the 83 vacancies, 35 are characterized by the Administrative Office of the U.S. Courts as “judicial emergencies.”

Total vacancies increased by two judgeships since last month and the number of pending nominees increased by three.

Filibuster Reform
Senate Democrats are preparing to force confirmation votes on a series of President’s Obama’s most contentious executive branch nominees. If Republicans object, Democrats may threaten to use the impasse to change the Senate rules that allow the minority party wide latitude to stymie action. Not all Democrats agree that this is the wisest action; Minority Leader Mitch McConnell has warned that a change in the Senate rules (the “nuclear option”) could ultimately set off Republican reprisals in the use of such control if they regained a majority of the Senate seats in the upcoming 2014 election.

The impulse for changing the rules has been accelerated by continued concern over delay in the confirmation of judicial nominees, as well as increasing concern obstruction of confirmation of Executive Branch nominees, including nominees to the Environmental Protection Agency, the Consumer Financial Protection Bureau, the Labor Department and the National Labor Relations Board.

Immigration Reform
The Senate passed a comprehensive immigration measure on June 27 by a 68-32 vote. Since that time, it has become increasingly uncertain whether the House will pass an alternative immigration measure, or if it does, whether reconciliation of the two versions is possible. The House is likely to pass a series of immigration bills, rather than one comprehensive measure.

The Senate-passed measure could generate serious resource challenges for the Federal courts, as detailed in a May 3 Judicial Conference letter to the Senate Judiciary Committee. The measure is likely to increase the workload of the federal courts in three ways:

  • Increased enforcement and prosecutions of offenders, through dramatic increase in personnel, resources and funding for DHS and DOJ
  • Judicial review provisions, through legalization of immigration status and appeals therefrom and E-Verify provisions that provide for federal court review
  • New criminalization of certain immigration-related offenses -- increased penalties and charges, as well as the expansion of the scope of conduct that can be considered an "aggravated felony

The Senate measure does little to address these increased caseloads. Four district courts in states with large numbers of unauthorized immigrants could particularly suffer:

  • Eastern District California
  • Eastern District Texas
  • Western District of Texas
  • Arizona

The Senate bill creates a Trust Fund of $6.5 billion for Executive Branch implementation, but none of those resources will provide funding for the Federal Judiciary. An attempt by Sen. Dianne Feinstein (D-CA) to add a floor amendment that would have made Trust Fund resources available to the Judiciary failed to receive a vote. An amendment was added to the measure by Sen. Charles Grassley (R-IA) to require the Government Accountability Office to assess the increased judicial workload created by the measure.

Judicial Pay
The Court of Federal Claims on June 11, 2013 issued its opinion calculating damages in the form of back pay owed to each of the six individual plaintiff judges in United States v. Beer. The opinion is here.

Based on calculations agreed upon by both the plaintiffs and the government in their official exhibits filed with the Court of Federal Claims, the Claims Court ruled that if federal judges had received the pay adjustments they were entitled to under the Ethics Reform Act, the current salary of a district judge would now be $197,100 and the current salary of a circuit judge would now be $209,100. This resulted in back pay awards to each of the six judges in Beer ranging from $153,000 to $163,000. (The current salaries of district and circuit judges are $174,000 and $184,500 respectively).

The deadline for appeal by the Department of Justice of the Claims Court’s decision is by August 11. Meanwhile, the class action litigation brought by a group of federal judges, following on the outcome of Beer, is moving ahead in the Court of Federal Claims. Three other judicial-pay related cases also are pending in the Claims Court.

SCOTUS Review of Recess Appointments
The Supreme Court has agreed to hear arguments next term on the legality of recess appointments to the National Labor Relations Board. The Court could possibly strike down a decades-long practice by the President in appointing nominees to Senate-confirmed posts during Congressional recesses. There is a disagreement between federal appeals courts on when exactly how broadly the President’s power to make these recess appointments can be applied. In the case being reviewed by the Supreme Court, the D.C. Circuit Court of Appeals took a narrow reading of the recess appointment provisions, saying the authority applies only to intersession recesses, occurring only once every two years between Congresses.


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