FBA Takes Its Priorities to DC

By Matthew C. Moschella

Matthew C. Moschella is chair of the Litigation Department at Sherin and Lodgen and a partner in the firm’s Litigation and Employment Departments. He represents companies and individuals in a wide variety of civil matters in state and federal courts across the country as well as in arbitration proceedings. Moschella also represents employers concerning complaints filed against them with state and federal administrative agencies. In addition to representing clients in various types of civil litigation, he counsels clients in a wide variety of industries on employment risk management issues. Moschella is also an adjunct professor at New England Law Boston, where he teaches contract drafting. Following law school, he was a law clerk to Hon. Judith Gail Dein, U.S. magistrate judge, U.S. District Court for the District of Massachusetts.

On March 23, 2023—thanks to the extensive efforts of our Government Relations Committee (led by Chair Ben Robinson) and our outside Government Relations Counsel (Dan Renberg, Cissy Jackson, and their team at ArentFox Schiff), FBA had an incredibly productive Capitol Hill Day. This was the first in-person Capital Hill Day since 2019. Collectively, more than 80 FBA members from numerous states had approximately 150 meetings with various senators, representatives, and members of their staffs. The meetings focused on the FBA’s 2023 legislative policy priorities, which are summarized below.

1. Judicial Security. The FBA commends Congress for passing the Daniel Anderl Judicial Security and Privacy Act last year (which was subsequently signed into law by President Biden). The act will protect federal judges and their families by making it easier for them to have personally identifiable information (PII) removed from the internet. Our democracy depends on judges who are free to make decisions without fear of retribution. Members of the federal judiciary, however, have been exposed to an increased number of personal threats in connection with their roles, rising from 926 in 2015 to 4,449 in 2019.

Now it is essential for Congress to appropriate the modest funding authorized by this new law so that the government can provide the critical protections that the act envisioned. Specifically, the FBA is urging Congress to appropriate funds for the attorney general to make grants to states and local governments that operate a database or registry that contains covered information so they can respond to judicial requests for PII to be removed. Further, Congress should appropriate funds to expand the capabilities of the Office of Protective Intelligence of the U.S. Marshals Judicial Security Division to ensure that it can better perform, anticipate, and deter threats to the federal judiciary.

The FBA encourages members of Congress to submit a request to the Appropriations Committee for the funds needed to implement the act, either via a joint letter or individually.

2. Establishing New Federal Judgeships. The FBA supports legislation to relieve the country’s severely overburdened federal courts by increasing the number of federal judgeships. The federal courts are facing enormous caseloads, and the increasing backlog is adversely impacting both access to, and the administration of, justice. Congress last enacted a comprehensive bill to increase the number of appellate and district judgeships in 1990, and judicial workloads have increased substantially since then. The Administrative Office of U.S. Courts recently released its report and recommended adding 66 district court judges and two court of appeals judges. Senators Coons and Young and Representative Issa introduced bills last Congress, and our understanding is that they will be reintroducing their bills soon. Their bipartisan JUDGES Act would add new federal district judgeships in two batches: half in 2025 and half in 2029. This is a creative solution designed to overcome the objections of adding judgeships that will be immediately filled by the party then in control. In addition, there may be a reintroduction of a more robust and immediate proposal by Representative Hank Johnson. The FBA urges members of Congress to consider cosponsoring legislation to increase the number of federal judge- ships and to let Judiciary Committee leaders know that this policy issue needs to be a higher priority for Congress this year.

3. Judiciary Funding. The FBA is committed to supporting the annual budget for the federal judiciary, which has submitted a total request of $9.1 billion for Fiscal Year 2024 for Article III courts. This includes $8.3 billion in discretionary appropriations and $796 million in mandatory appropriations. The funds are used for salaries and expenses for the entire judicial branch, the cost of space, retirement, court security, including hardening of facilities, and IT. The FBA is encouraging members of Congress to ask the Appropriations Committee to provide the Judiciary’s requested amount.

4. Creation of an Independent Immigration Court. The FBA has spent years helping draft model legislation that would establish an independent Article I Immigration Court. The FBA is working with Representative Lofgren and Senator Gillibrand and others to introduce this legislation in the near future, hopefully on a bipartisan basis. As background, immigration judges are part of the U.S. Department of Justice, and there is a case backlog of 1.6 million immigration cases. The bill would use the power of Congress under Article I to create a new court, just as it created the U.S. Tax Court and the Court of Appeals for Veterans Claims when these courts were removed from Treasury and the Department of Veterans Affairs, respectively. An independent immigration court would not set immigration policy—that would continue to be the responsibility of the Executive Branch. Rather, the immigration judges would just apply law and regulations—whatever they are—to individual cases.

The FBA has worked alongside stakeholders on this initiative, including the National Association of Immigration Judges and the American Immigration Lawyers Association. More than 120 prestigious legal organizations support this proposal. Establishing an Article I immigration court would provide transparency to the public regarding removal proceedings, judicial conduct, and, if necessary, discipline. Moreover, judges would be allowed to manage their caseloads without the undue political pressure that exists in the current system. Further, locating immigration courts in a political branch of government undermines Congress’ carefully designed immigration laws and the current case backlog is the direct result of politicization of these courts.

The FBA is encouraging members of Congress, once Representative Lofgren and Senator Gillibrand circulate a draft bill, to cosponsor it or otherwise support the bill as the House and Senate consider it.

Although we had an incredibly productive day on Capital Hill, the FBA’s work on these initiatives is not even close to done. Please continue to contact your legislators about supporting these initiatives, and also look out for the FBA’s frequent action emails about specific steps to take. 