June 2013: FBA Pushes Emergency Funding for Federal Courts

Washington Watch | June 2013
By Bruce Moyer

The Federal Judiciary, faced with the stark fallout of sequester-triggered budget cuts, has asked Congress for $73 million in emergency funding to help court units get through the remainder of the fiscal year, which ends September 30.

The Federal Bar Association has endorsed the Judiciary’s funding  request and has lobbied Congress on several fronts to approve the funding, which will be an uphill battle. Twenty FBA circuit vice-presidents and chapter leaders met with Washington lawmakers  on April 25 to educate Congress on the need to preserve Federal Judiciary funding and assure the courts discharge their Constitutional responsibilities. The meetings were part of FBA’s annual Capitol Hill Day event. Circuit vice-presidents and chapter leaders also have contributed to FBA’s ongoing lobbying effort.

Capitol Hill Day
“Because of our presence, there is an increasing awareness on Capitol Hill that the Federal Judiciary is facing unprecedented difficulties as a result of sequestration, and that America’s tradition of excellence in the federal judiciary is being challenged,’ West Allen, chair of the FBA Government Relations Committee, said at the conclusion of Capitol Hill Day.

During the course of Capitol Hill Day, FBA leaders sought support  for Federal Judiciary funding, as well as prompt Senate action on judicial nominations to trim existing judicial vacancies. Currently,  there are 84 vacancies on the federal bench, approximately ten percent of all judgeships. Thirty-four are characterized by the Administrative Office of the U.S. Courts as “judicial emergencies,” based on the workload of the respective court and the time during which the vacancy has remained pending.

The greatest amount of FBA lobbying attention, however, was devoted to the need for emergency supplemental funding for the federal courts. The Judiciary’s request for an emergency supplemental appropriation has been prompted by the need to mitigate the impact of the automatic budget cuts, known as sequestration, which have reduced court funding by $350 million. The $350 million figure is tiny compared to the size of most budgets of departments and agencies in the Executive Branch, but large in the context of the Federal Judiciary’s $7 billion budget.

The Predicament of the Federal Courts
The impact of sequestration has been compounded by the fact that the Judiciary has no control over its workload. The courts must respond to the cases that are filed by the Executive Branch, businesses and individuals, all in search of resolution and justice.

Over the past decade, caseloads throughout the federal courts have not declined, placing added pressure on court operations and services. In addition, unlike most Executive Branch entities, the Judiciary has little flexibility to move funds between appropriations accounts to mitigate the cuts. There are no lower-priority programs to reduce to transfer to other accounts.

What’s equally frustrating is that sequestration has not caught the federal courts by surprise. Over the past two years, the federal courts already have eliminated 2,200 probation officers and clerks office staff positions through attrition. But now some offices are getting down to the bone. Further reductions in Federal Judiciary funding, as a result of the next round of sequestration cuts in FY 2014, could cause the further layoff of 1,000 court employees, or the furloughs of thousands for lengthy periods, according to the Administrative Office of the U.S. Courts.

This undoubtedly will result in slower processing of civil and bankruptcy cases, creating delay, unnecessary uncertainty, and economic harm, small and large. Criminal cases will receive higher priority in the courts because of Speedy Trial Act and other requirements. These results will be averted only if Congress reaches a big deficit reduction deal that turns off sequestration, which is set on autopilot to continue to occur for nine more years under the 2011 budget law passed by Congress.

Federal Defenders In Greatest Peril
The greatest impact of sequestration in the federal courthouse has been on the work of federal defenders in representing indigent defendants. While funding for federal prosecutors comes through the Department of Justice, funding for federal defenders comes through the courts.

Because of sequestration, Federal Defender Offices plan to furlough all their employees for 15 days intermittently between now and Sept. 30 in order to offset the funding reductions. This already has caused some federal courts to cancel criminal proceedings on furlough days. It also has caused delays in at least one terror-related court case in New York and prompted a federal judge in Nebraska to say he is “seriously contemplating” dismissing some criminal cases.

Federal defender funding ensures satisfaction of the Constitutional requirement that the government provide funding for indigent defense one way or another. Ironically, if Federal Defenders are not available to provide representation, the government has no choice but to appoint private lawyers to provide representation at greater cost to the taxpayer. \\

“This happens when we cannot afford to fulfill the Sixth Amendment right to representation for indigents charged with crimes,” Chief Judge William Traxler Jr. of the U.S. Court of Appeals for the Fourth Circuit, chairman of the judicial conference’s executive committee, said in an April 17 statement. “The predictable result is that criminal prosecutions will slow and our legal system will not operate as efficiently. This will cost us all in many different ways.”

Ultimately, How Will This All Turn Out?
For the Federal Judiciary, securing emergency funding to help get through September 30 will not be easy. Congress has shown little interest in ending sequestration, and so far has only averted furloughs of FAA air traffic controllers and USDA meat inspectors and provided greater budget flexibility only to a small number of agencies to avoid furloughs.

Lower net funding for the Federal Judiciary for FY 2014 remains a distinct possibility. FBA’s advocacy in support of the Federal Judiciary’s emergency request hopefully will also contribute to a relatively  better funding picture for 2014. Nonetheless, the obstacles of a dysfunctional Congress, hyper-partisanship, and the politics of the approaching 2014 elections are considerable. This all the more reinforces the need for the Federal Bar Association’s advocacy in support of adequate funding for the federal courts.

Sequestration is clearly placing unprecedented pressure on the Federal Judiciary and the administration of justice. If it is allowed to continue into 2014, its impact on the operation of the federal courts clearly could be far more devastating and longer lasting

Bruce Moyer is government relations counsel for the FBA. © 2013 Bruce Moyer. All rights reserved.

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