Crisis at the CAED What is Happening?

by Catherine E. Bennett, Senior Counsel, Klein, DeNatale, Goldner

While most of us practice in state courts, some practice in federal courts a lot, and many practice occasionally in federal courts. Recently at KDG we wondered aloud about the status of the Eastern District of California. I did a bit of investigation, obtained some information from the court, and thought you might like to know, too.

There is good news and bad news from the Eastern District.

First the good news. Our own Hon. Jennifer Thurston was commissioned as an Article III District Court judge at the end of 2021. Hon. Ana de Alba of Fresno was commissioned in July 2022. So, now we have three district judges in Fresno, including Hon. Dale Drozd. Hon. Anthony Ishii, who took Senior Status in 2012, still hears civil cases, although he is retired. The district now has one vacancy of its six authorized district judgeships. But Fresno is going backward: Judge Drozd will have moved to Sacramento by the time you read this, and Judge Ishii has announced he will take inactive status in April 2023.

So the Eastern District’s critical backlog, which Judge Thurston characterized as a “crisis,” will only get worse in Fresno with Judge Drozd’s departure and Judge Ishii’s complete retirement. Judge Thurston reports that she does not expect to clear the backlog she assumed until late 2023 at the earliest, if ever. What caused this?

First, we were without judges for so long that motions languished. There are motions on Judge Thurston’s calendar that have been pending for over two years. But there is another pernicious problem.

Judge Thurston provided me with some data. In June 2022, the CAED compared itself to its sisterCalifornia districts, and the districts of Nevada and Oregon. The population of the CAED and CAND are close, both at just over 8 million. Nevada has a population of just over 3 million, while Oregon has a population of just over 4 million. The CACD has a population of nearly 19.5 million, while the CASD has a population of just 3.5 million. Yet CAED has only 6 authorized judgeships— the same as Oregon—and CAND has 14. Nevada and CASD each have half our population, but Nevada has 7 judgeships and, amazingly, CASD has 13! The CACD has 28 judgeships, so 4.5 times as many judges with only 2.4 times as much population.

Our district is the largest geographically in California. If it were superimposed on the eastern seaboard, it would cover from the top of New Jersey to the middle of South Carolina and reach midway through the Carolinas and Virginia from the Atlantic Ocean. It comprises mountains, valleys, and deserts. There are big cities, smaller cities, and sprawling miles of agriculture. It is home to dozens of federal lands and installations, including military bases, national forests, and federal prisons. case load of over 1,240 cases per authorized judgeship, while the rest of the comparison districts are well below 1,000. Courts also consider weighted fi lings: a concept defi ned by the federal Administrative Offi ce of the Courts, which considers the mix of cases based on estimates of judicial time to resolve them. CAED weighted fi lings per authorized judgeship is 725, while the CACD’s is 681, CASD’s is 602, and CAND’s is 598. Oregon and Nevada are both well below 500.

What this tells us is we have a horrible backlog not just because two of our judgeships sat vacant for months— two years or more—but also because our district is understaffed. Even fully staffed, our district would have to work many more hours to resolve cases.

In her February 24, 2021, testimony before the U.S. House Judiciary Committee, Subcommittee on Courts, Intellectual Property, and the Internet, Chief Judge Kim Mueller implored Congress: “The bottom line of my testimony today is that we cannot fulfi ll our obligations without congressional action to create new judgeships. We urgently ask for your help to meet the needs of the public we serve.” She asked for fi ve new judgeships, stating CAED is “a poster child for illustrating that justice delayed is in fact justice denied when there are insuffi cient judges to decide cases.”

The last Eastern District judgeship was created in 1978 and our population has doubled since then. The CAED has the second to the lowest ranking for median time interval for termination of criminal matters—it is next to last slowest in the nation. But it is the second most productive in the Ninth Circuit and the eighth most productive nationally: the judges disposed of over 5,000 cases in 2021, averaging 873 per judgeship or 1,310 In her testimony, Judge Mueller particularly noted the dire needs of the Fresno courthouse where there was only one judge at the time, noting that anything fi led since February 2020 had been submitted without argument and no civil trials had been set. “Without resolution, those on both sides of these cases live with the uncertainty, lives and incomes and reputations often hanging in the balance, closure or vindication out of reach.”

Chief Judge Mueller called on two stark allegories: The fi rst was Sisyphus, who keeps rolling the stone uphill only to have it roll back down each time he reaches the top. The second was Lucy and Ethel: “we are fi ghting a losing game—as Lucy says to Ethel in the unforgettable Chocolate Factory scene one law clerk reminded me of recently. (I promise we are not eating the chocolates, metaphorically speaking!)” The Ninth Circuit Judicial Council has advised the Administrative Offi ce of the Courts of its support of fi ve new judgeships for CAED. Both Rep. Issa (CA-50) and Sen. Young (IN) introduced bills in the current Congress (July 2021) that would authorize new judgeships around the nation including 2 for CAED. But in the more than a year since the bills were introduced, there has been no movement.

What can we do? First, write letters, call, and email your Congressional representatives. They need to hear from constituencies that judges are important. Tell them about your clients’ waits for justice. Second, recognize the extreme distress under which our district operates and be kind. The judges and clerks are not ignoring you and they would like nothing better than to timely process your matter. They must take each case in turn and put one foot after the other.