October 2013

Federal Shutdown and Court Funding

After the House of Representatives continued to insist on a short-term extension of government funding that either defunded or restricted the implementation of Obamacare, government appropriations lapsed on October 1, requiring federal agencies to curtail operations and furlough 800,000 federal employees.

The outlook in Washington is increasingly tilting toward the resolution of the impasse through a deal that both extends government funding for a short time and raises the debt ceiling, which is expected to be reached around mid-October. That means that the government shutdown could continue for at least two weeks or longer, until a deal is reached. Whether the ultimate bargain provides the definitive word on FY 2014 sequestration levels, or pushes that decision off to later this year, remains uncertain.

In the meantime, the federal courts are expected to remain open for roughly the first two weeks of the fiscal year, which began October 1. Fee balances and other “no-year” funds are providing a thin cushion to permit the payment of judges and court employees and maintain operations, but only through approximately October 15, 2013. After that date, if there still is no appropriation from Congress, the federal courts will operate under the terms of the Anti-Deficiency Act, which allows “essential work” to continue during a lapse in appropriations. Among the definitions of “essential work” are powers exercised under the Constitution, which include activities to support the exercise of Article III judicial powers. Given the decentralized authority of the federal court system, each federal court unit will likely be free to determine the staffing arrangements necessary to support the exercise of Article III judicial powers. Jury trials would be expected to continue as necessary, with courts calling jurors and assuring they will be paid, although on a delayed basis.

The Senate and House-passed versions of the Continuing Resolution each have contained a provision that extends $26 million in funding to the Federal Judiciary to pay Criminal Justice Act panel attorney vouchers that were suspended for the last three weeks of September due to sequestration cuts.

Judicial Nominations and Vacancies

Here are the federal court vacancy numbers, as of October 3:

  Vacancies Nominees Pending
Courts of Appeal 17 9
District Courts 78 45
US Court of International Trade 0 0
Total 95 54

This represents an increase of 3 vacancies and an increase of 12 nominees awaiting confirmation since last month. In particular, four new nominees were named by President Obama on September 19 to the Arizona district court bench, which has six vacancies.

Of the 95 vacancies, 39 are characterized by the Administrative Office of the U.S. Courts as “judicial emergencies.” 

Mandatory Minimum Sentencing

Legislation to curb mandatory minimum sentencing are receiving consideration on Capitol Hill.  On September 18, the Senate Judiciary Committee held a hearing on legislation (The Justice Safety Valve Act, S. 619) introduced by Committee chairman Patrick Leahy (D-VT) and Sen. Rand Paul (R-KY) that would allow federal judges to give federal judges the ability to impose prison sentences shorter than the mandatory minimums they're required to impose.  Another bill (Smarter Sentencing Act, S. 1410), introduced by Sen. Richard Durbin (D-IL) and Mike Lee (R-UT), would revise drug sentencing polices by giving federal judges more discretion in sentencing those convicted of non-violent offenses.

The Judicial Conference Committee on Criminal Law, in a September 17 letter, lent "strong support" to the effort to reform mandatory minimums. The conference has "consistently and vigorously opposed" mandatory minimums for 60 years, the letter stated.  Attorney General Eric Holder Jr.'s in August directed federal prosecutors not to pursue mandatory minimum sentences in certain drug cases. 


On September 20, GRC Chair West Allen and Government Relations Counsel Bruce Moyer presented a government relations update to the Ninth Annual Tri-State Chapter Conference (Idaho, Utah and Wyoming Chapters) in Deer Valley, Utah.

West Allen presented reports on the activities of the GRC to the FBA Board of Directors on September 25 and to the National Council on September 28 during the Annual Meeting and National Convention in San Juan, Puerto Rico.   

On October 9, Bruce Moyer will present a government relations update to the South Florida Chapter in Miami, Florida at its monthly luncheon program.


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