March 2013


Sequestration and the Federal Courts

The President and Congress effectively have called a ceasefire in the ongoing budget wars, preferring not to clash over a potential government shutdown, which would occur without extension of the current Continuing Resolution on March 27.  Meanwhile, sequestration – the automatic, across-the-board budget cuts required by the 2011 budget law – became effective on March 1 for the federal courts and the rest of the federal government.  Sequestration has become the new normal. It will reduce the federal judiciary overall funding levels by almost $350 million – a 5 percent cut affecting people, programs, and court operations.

The impact of sequestration could be severe, and will vary from court unit to court unit.  Stating that sequestration has put the federal Judiciary "in uncharted territory," Judge Julia Gibbons, chair of the Judicial Conference’s Budget Committee, told the Judicial Conference at its biannual meeting in Washington on March 12 that "we face a budget crisis that is unprecedented, one that is not likely to end in the near-term."  "We believe we have done all we can to minimize the impact of sequestration, but a cut of this magnitude, particularly so late in the fiscal year, will affect every facet of court operations," Judge Gibbons said.  She said sequestration will "impact the general public as well as individuals and businesses looking for relief in the courts." 

The Federal Bar Association, in a February 19 letter to Congressional leaders, urged adequate funding for the federal courts, and warned of the adverse impact that sequestration cuts will bring to bear.  “Major reductions in federal court funding under sequestration could bring about a range of adverse consequences, diminish public safety and threaten economic recovery,” FBA Executive Director Karen Silberman and Government Relations Committee Chair West Allen wrote.  “For example,” they noted, “funding reductions could jeopardize the supervision of thousands of persons under pretrial release and convicted felons released from federal prisons, compromising public safety in communities across the nation.  They also could bring about the suspension of civil trials, which would impede business litigation, create uncertainty and delay, and thereby harm the nation’s economy.”  (For press reports on the detrimental impact that sequestration will have on the federal legal system, click here.  A CNN video report referencing FBA is here

Judge Gibbons, in her March 12 report to the Judicial Conference, also identified these likely impacts for some courts:

Public Safety: There will be fewer probation officers to supervise criminal offenders released into the community. Funding for drug testing and mental health treatment will be cut 20 percent.

Cases Delayed:
With fewer available clerks’ office staff and the need to focus on criminal cases, there could be significant delays in the processing of civil and bankruptcy cases, which could adversely affect economic recovery.

Court Security: There will be a 30 percent cut in funding for court security systems and equipment and court security officers will work fewer hours, exposing courts and those who use them to possible vulnerabilities.

Federal Defenders: Staffing levels of federal public defenders will decline, which could result in delays in the appointment of defense counsel, and payments to attorneys appointed under the Criminal Justice Act could be delayed several weeks at the end of the year.

Information Technology: Deep cuts will be made for IT programs that the courts depend on for daily case processing and which have enabled the Judiciary to achieve efficiencies and limit budget growth. 

In late February, the Administrative Office of the United States Courts issued detailed guidance to all federal court units on the impact of sequestration.  The guidance describes the steps and "emergency measures" that the courts may or must undertake to weather the impact of sequestration.   Overall, the AO guidance reaffirms responsibility for decision-making by local court units over decisions involving closing courts, furloughing staff, how to manage court operations within these lower funding levels, rewarding employees with step increases, promotions and cash awards.  If furloughs of court staff need to occur, they will begin in April or later. 

The indiscriminate, blunt cuts imposed by sequestration (averaging about 5 percent in all court accounts) are likely to remain through the remainder of the seven months of fiscal year, ending September 30, unless Congress provides more targeted cuts under separate, specific funding bills.  

The House of Representatives on March 6 approved its Continuing Resolution legislation, and the Senate is expected to pass a potentially more detailed spending plan during the week of March 11.  Both chambers are proceeding through “regular order” to pass the funding bills, providing a semblance of the legislative process as it actually should work.  A further deal over deficit reduction may yet be reached between the President and the Congress later this summer, in conjunction with raising the debt ceiling, but any deal will not likely reverse the sequestration cuts now in effect.

On March 6, the House of Representatives approved a targeted bill for the Defense Department and the Veterans Department in its extension of government funding for the rest of the year under the Continuing Resolution.  The Senate is considering government funding legislation that would add three funding bills (for Agriculture, Commerce-Justice-Science and Homeland Security) to the CR.  The Senate legislation is not expected to contain a funding bill for the Financial Services-General Government jurisdictional sector, which is the source of funding for the federal courts.  This means that federal court operations funding at FY 2012 levels, minus the new sequestration cuts, will be extended to FY 2013.  A compromise version reached by House and Senate negotiators could be agreed to by Congress during the week of March 18. 

Sen. Charles Grassley (R-IA), ranking minority member of the Senate Judiciary Committee, also has pressed the Administrative Office for further details on the judiciary’s plans for implementing sequestration, most recently through a Feb. 27 letter.  Judge Julia Smith Gibbons, chair of the Judicial Conference’s Committee on the Budget and Judge Thomas F. Hogan, director of the Administrative Office, are scheduled to testify before the House appropriations subcommittee on March 20 in connection with FY 2014 funding.

Judicial Nominations and Vacancies

There was little change in circuit and district court vacancies last month, except for Senate confirmation of Magistrate Judge Robert Bacharach, who serves as FBA Vice President for the 10th Circuit, to the U.S. Court of Appeals for the Tenth Circuit.  His nomination cleared the Senate on a 93-0 vote.  Two district nominees also were confirmed.

Here are the judicial vacancy numbers, as of March 12:

  Vacancies Nominees Pending
Courts of Appeal 17 8
District Courts 68 22
US Court of International Trade 2 2
Total 87 32

Reauthorization of Violence Against Women Act

The recent reauthorization of the Violence Against Women Act (Public Law 113-4, March 7, 2013) recognizes the jurisdiction of Indian tribal courts over non-Indian offenders arrested for committing domestic violence or assault against women.  This legislative accomplishment contributes to the advancement of the FBA Issues Agenda, which supports the restoration of criminal jurisdiction to Indian tribal courts over non-Indian offenders in cases of domestic and family violence. 

The FBA Issues Agenda provides:

Indian Tribal Court Jurisdiction over Non-Indian Domestic and Family Violence Offenders

The Federal Bar Association supports the restoration of criminal jurisdiction to Indian tribal courts, in accordance with federal, state and tribal law, over non-Indian offenders in cases of domestic and family violence. 

The tribal provisions in the VAWA achieve long overdue reforms that will increase safety and justice on tribal lands and their surrounding communities.  They permit a defendant to opt for trial in federal court and call for jury selection from the surrounding community, including non-tribal members.   The law continues to guarantee that all constitutional rights apply equally in both tribal and non-tribal courts.

Cameras in the Courts Legislation

Senator Chuck Grassley (R-IA) and Rep. Steve King (R-IA) recently introduced companion versions of the "Sunshine in the Courtroom Act" (S. 405 and H.R. 917) in the Senate and House.  The legislation is identical to measures that were introduced in the Senate and the House in the last Congress.  The Senate measure was approved by the Senate Judiciary Committee, but did not proceed to floor consideration.

The legislation would permit the presence of cameras in Federal trial and appellate courts, at the sole discretion of the presiding judge. The bill also provides a mechanism for Congress to study the effects of this legislation on the federal courts before making the change permanent through a three-year sunset provision. The bill seeks to protect the privacy and safety of non-party witnesses by giving them the right to have their faces and voices obscured. The bill also prohibits the televising of jurors.  It also includes a provision to protect the due process rights of each party.

A bipartisan group of Senators (Leahy, Schumer, Durbin, Klobuchar, Blumenthal and Cornyn) joined Grassley as original cosponsors of the Senate bill.  Similarly, a bipartisan group of House members (Chaffetz, Deutch and Lofgren) joined King in cosponsoring the House measure. 

The Federal Bar Association has not taken a position on the presence of cameras in the federal courts, but has maintained the issue on the Issues Agenda as one deserving continued examination. 

Call for Nominations to the FBA Issues Agenda

FBA chapters, sections and members are invited to nominate one or more issues for addition to the FBA Government Relations Issues Agenda for FY 2014. The deadline for all agenda nominations is Monday, April 29.

The FBA devotes its advocacy attention foremost to the issues on the Issues Agenda. The FBA Board of Directors updates the agenda annually, based upon the recommendations of the FBA Government Relations Committee. Items appearing on the current Issues Agenda will be automatically considered for renewal by the Government Relations Committee. Additionally, new issues may be nominated by any FBA member, chapter, section, or division. A copy of the current 2013 Issues Agenda is available online.

To nominate an issue for the Issues Agenda, please use the Nomination Application and return it to Bruce Moyer, FBA Government Relations Counsel.

The Government Relations Committee will review all nominations and submit a proposed Issues Agenda to the FBA Board of Directors for its consideration and approval later this summer.

FBA Capitol Hill Day

FBA leaders from across the country on April 25 will meet with members of Congress to discuss important FBA legislative issues that impact the administration of justice and the federal courts.  During meetings on Capitol Hill, FBA participants will advocate for: adequate funding for the federal courts, filling judicial vacancies promptly, and sufficient judgeships to render justice.   Click here for more information on this event.

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