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THIRD BRANCH 109th Congress and Pending Legislation Wrap Up The 109th Congress ended December 8, 2006, without passing most of the fiscal year 2007 appropriations bills, including one funding the Judiciary. Instead, a continuing resolution providing funding until February 15 will keep government operating into the new year. The first session of the 110th Congress begins officially on January 4, 2007. Among the bills passed by the 109th Congress in the hours before adjournment was legislation to extend a capital gains rollover provision to federal judges. The Judiciary worked with Congress to include this provision in the package of tax credit extensions. The provision will enable judges, who sell financial interests to avoid conflicts of interest, to defer capital gains taxes until the substitute financial interests are subsequently liquidated. Members of the executive branch already are covered by such a provision. The President is expected to sign the bill. Very few bills were passed at the end of the 109th Congress. Some of the legislation it considered was

INSIDE

Newsletter of the Federal Courts

Vol. 38 Number 12 December 2006

Planning for a Pandemic

Photo: Centers for Disease Control

Photo: Digital Stock

opposed by the Judiciary and some was needed by the federal courts. Among the unsuccessful bills was H.R. 5219, the Judicial Transparency and Ethics Enhancement Act of 2006. The bill would have imposed an independent Inspector General on the Judiciary, a move opposed by the Judicial Conference. The July 2006 See 109th Congress on page 2

An Interview with FBA President William LaForge...........pg. 4 Transparency Takes Shape.......................................................pg. 6 An Eyewitness to Terrorist Attacks........................................pg. 9

From the White House to the World Health Organization, word is we are closer to another influenza pandemic than at any time since 1968. But if your best response to the threat of a pandemic is to wash your hands more frequently, you might want to expand your action plan— which is what the federal courts are doing with the release of templates and materials on how to respond in a widespread public health threat. The pandemic plans are now part of the courts’ Continuity of Operations Plans (COOP), already in place. “COOP typically covers issues that deal with facilities and infrastructure,” said Administrative Office (AO) Director James C. Duff, “and See Pandemic on page 3


109th Congress continued from page 1

issue of The Third Branch has more on the House hearing on this bill. The Conference also strongly opposed H.R. 1279 and S. 155, criminal gangs legislation introduced in both Houses that would have brought for the first time a large number of juveniles into a federal system ill-equipped to handle them. The House bill contained a number of mandatory minimum sentence provisions, which, as the Conference expressed in a letter to congressional leadership, “would inappropriately constrain the Judiciary in ensuring fair sentencing for each individual offender under federal law.” The bills are now dead this year. Moot for now are any pending legislative responses to the January 2005 Supreme Court decision in U.S. v. Booker. Judge Paul G. Cassell (D. Utah), chair of the Judicial Conference Committee on Criminal Law, informed Congress in March there was no need for “Booker fix” legislation because federal judges’ practices in sending convicted criminals to prison remain much the same as they were before the Supreme Court invalidated mandatory sentencing guidelines last year. The April 2006 Third Branch newsletter covered the House oversight hearing on federal sentencing practices post-Booker. Congress again failed to pass a comprehensive judgeship bill; the last such bill was passed in 1990. The Judicial Conference recommended the creation of nine permanent and three temporary judgeships in the courts of appeals, and 44 permanent and 12 temporary judgeships for the district courts. Two bills creating judgeships were introduced, but they coupled new judgeships with a split of the Ninth Circuit. These bills ultimately failed to move. Despite continued concerns about judges’ safety, a court security bill failed to become law. H.R. 4472 and a similar Senate bill, S. 1968

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contained provisions that would have required the U.S. Marshals Service to coordinate and consult with the federal Judiciary on security requirements of the judicial branch, criminalized the malicious filing of fictitious liens, and allowed judges who have completed a training requirement to carry firearms. A related House bill, H.R. 1751, also would have established mandatory minimum penalties for certain federal offenses but also included a provision on broadcast media coverage of federal court proceed-

ings at both the appellate and trial court level, at the discretion of the presiding judge. Throughout the 109th Congress, the Judicial Conference supported judicial security provisions, but opposed both the mandatory minimums, which severely distort and damage the federal sentencing system, and the provision on cameras in courtrooms. Other House and Senate bills attempted to introduce cameras into the Supreme Court and to district courtrooms, but they also were blocked by opposition.

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The 109th Congress confirmed 2 Supreme Court justices and 52 judges, 16 to the U.S. Courts of Appeals and 35 to the U.S. District Courts, and one judge to the U.S. Court of International Trade. There were 52 vacancies on the federal courts as of December 1, 2006, with 16 vacancies in the U.S. Courts of Appeals and 36 vacancies in the U.S. District Courts. Thirty-six nominees were pending. With the end of the 109th Congress all pending judicial nominations returned to the White House. In the 108th Congress, 104 judges were confirmed; 18 to the U.S. Courts of Appeals and 86 to the U.S. District Courts, including one judge to the U.S. Court of International Trade. At the end of the 108th Congress in 2004, there were 29 vacancies on the federal courts, with 13 vacancies in the U.S. Courts of Appeals and 16 in the U.S. District Courts.


Pandemic continued from page 1

these new templates provide guidance on issues relating to people.” Over a year ago, the Judiciary began to outline an approach for employee safety, continuity of operations, and means of communications in an influenza outbreak or pandemic. With AO guidance, information and procedures were developed by judges and unit executives in circuit, district and bankruptcy courts across the country, with input from several court advisory groups. To develop the templates, the AO’s Judiciary Emergency Preparedness Office (JEPO) coordinated with staff from the Department of Homeland Security and worked with consultants. While the templates outline strategies and planning for such elements as delegations of authority, essential functions, telework, alternate work sites, and recovery, each court is expected to tailor the templates to meet its specific local requirements. “This is something we all need to be thinking about,” said Duff. “The last few years have demonstrated that planning is necessary for courts to recover in a timely manner from a catastrophic event and to continue to serve the people of this country.” Federal planners are assuming that 30 percent of the overall population could be infected in a pandemic. Among working adults, an average of 20 percent could become ill. Rates of absenteeism will depend on the severity of the pandemic. Some employees will be sick, while others will need to stay home to care for ill family members. And it is conceivable that certain public health measures, such as school closings, quarantining of infected households and government closures will increase the rate of absenteeism. All told, absenteeism could reach 40 percent during peak outbreak weeks. “The federal Judiciary responded in an exemplary way to the damage

In a pandemic, 30 percent of the population might be infected. Photo: Centers for Disease Control

and upheaval from Hurricane Katrina. You always learn from events like that and one of the lessons we learned from Hurricane Katrina,” said Duff, “is that you have to plan for situations in which your staff is spread out, or for whatever reason they cannot get to the office.” The advance pandemic planning of Chief Judge Joseph F. Bataillon (D. Neb.) and his district strongly influenced the final templates. “We formed a subcommittee,” said Bataillon, “that looked at our COOP specifically in terms of how to function in a pandemic situation and how that would affect our clerks and probation offices, and judicial chambers. I don’t know if we solved all the problems, but we now have procedures in place to minimize the impact.” Assuming that staff would be reduced by 40-50 percent in a pandemic, the district extended the chain of command, looked at their capacity for remote work, determined how they would operate with a skeleton staff, consulted with local public health officials, and ran a desktop exercise. Many ques-

tions remain, however. “We want to plan so that people can rely on the courts,” said Bataillon. “But will we be able to bring a jury together if people are quarantined? Can we even hold trials? What would that mean for criminal cases under the Speedy Trial Act?” In the U.S. District Court for the Western District of Missouri, employees can review the court’s pandemic action plan on their internal website. “We also tested the home portion of the plan,” said Clerk of Court Pat Brune, “by sending folks home last summer to work for a week. That way we could understand the strain on the system over and above our usual telecommuting schedule.” The U.S. District Court for the Southern District of Indiana also has its emergency preparedness plan on its website as a source of information for staff, and staff have been briefed, in conjunction with their periodic occupant emergency plan reviews. “We gave a presentation on pandemic flu, what it is, how it spreads, and the worldwide status,” said Clerk of Court Laura Briggs. “We emphasized that telework would be the key to court operations and that criminal matters would likely become the most critical.” The district formed a task force with representatives from the various court units, largely to be clear on what types of work were critical, and how things could move through the judicial system in the event few—or no— employees came to work. Staff at the court have been encouraged to sign up for access to the Judiciary’s virtual private network, and a databank has been created with information on staff, their families, phone numbers, addresses, and home computer capabilities. “This will be the resource we utilize in the event of a pandemic,” said Briggs, “both as a means of contacting family members if someone here falls ill, and as a way to determine who can do what from home.” See Pandemic on page 9 The Third Branch

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I N T E RV I E W

A Focus on Federal Practice: An Interview with FBA President William LaForge William N. LaForge, an attorney with the law firm of Winstead, Sechrest & Minick P.C. in Washington, DC, is the new President of the Federal Bar Association (FBA). In his career, LaForge has been a private practitioner, a prosecutor and a deputy chancery court clerk in the Mississippi Delta, and a senior congressional policy advisor in Washington. He has been involved with the public policy arena at the local, state, and federal levels for over 30 years.

Q:

You joined the FBA as a Hill staffer 30 years ago. What drew you to an association of federal lawyers?

A:

As a new House staffer, and as a freshly minted lawyer looking for a meaningful bar affiliation, I was looking for networking, programs and professional development, and came across the Capitol Hill Chapter of the Federal Bar Association. It had great programs and speakers, and membership gave me a sense of involvement in the early stage of my career. I was a rank-and-file member of the chapter for years and eventually got involved with its governance and committee work.

Q:

As the new FBA president, you’ll determine the association’s mission for the coming year. What are your priorities during your term as FBA President?

A:

I like to think of the FBA going into this next year as the new FBA. It falls to our new Board of Directors and me to implement a new governance structure put into place just last year, so that is my top priority. We use to have an Executive Committee of nine. Now we have a board of 15 that is very talented, very

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diverse, and very demographically balanced across the country in terms of age groups, practice fields, government, and private sector. I have two task forces underway that I think are keys to our future. One group is actually looking at the future of the FBA and trying to “crystal-ball” our needs. It is exploring what sort of programs and policies we need to have in place to make the FBA an attractive organization for our members in the years ahead. A second task force is conducting an internal review of our sections and divisions to determine what we need to do to be able to continue providing quality service and programs to our membership. We’re also updating our computer and communications systems, and one of my priorities for this year is to enhance our membership benefits with things like improved leadership training, more professional development, and cutting-edge programming. The FBA is a relatively modestsized bar, with 16,000 members nationally. We proudly count among our members approximately 1,300 federal judges. We are, by definition and by choice, the only nationwide bar association that exclusively concerns itself with federal jurisprudence, the

federal court system, and federal laws. Our members are government and private-sector lawyers who focus on a federal practice.

Q:

What is the role of the Government Relations Committee in the work of the FBA?

A:

The Government Relations Committee plays a very instrumental role in the FBA. I was privileged to chair the committee for several years. It is actually a committee that was established 10 years ago as a broad-based panel with a non-partisan mission that gives the FBA a platform and mechanism for dealing with public policy issues, while also positioning the FBA as a credible voice with decision makers in the nation’s capital. The Government Relations Committee is issues-oriented and helps the FBA identify, decide upon and advocate public policy issues of importance to our members and to those we serve. We use a document we call our issues agenda, compiled with input from members and chapters, sections, and divisions, that includes some 30 public policy issues that affect the federal Judiciary and lawyers who are in federal practice. Our role in government relations


is to focus on a narrow set of issues dealing with federal jurisprudence and with our federal Judiciary. I think because we bite off a manageable piece of policy engagement and don’t try to comment on and advocate policy on every issue that arises in society, we’re more effective than other organizations that tend to stake out a position on many issues. To me, that is an important key. We stick to our business and to our script.

Q: A:

Can you give some examples of the FBA’s current issues?

Some of the key issues on the current FBA issues agenda are judicial independence and all its various components, including adequate compensation for federal judges, courthouse security, courthouse construction, establishment of new judgeships where they’re needed, and support for a level of federal funding each year in the appropriations process that befits the greatest judicial system in the world. Many of our issues tend to coordinate very well with the priorities of the AO. We have enjoyed and continue to have a wonderful collaborative relationship with individual judges, the Judicial Conference, and the AO. We worked closely with Director Ralph Mecham during his years, and my first official meeting after being sworn into office was with the new Director of the AO, Jim Duff. We look forward to working with Jim and his outstanding staff throughout the year. At the beginning of my term of office, I restated the FBA’s commitment to be the natural constituency of the Judiciary. We will continue to work in Washington to support issues that are not just important to the bench and the bar and to our membership, but to the clients and the publics we all serve. One thing

the FBA has done, and I think done well in the last 10 years, is to position itself as a reliable and credible source of information and an advocate for sound policy in Washington. What was the FBA’s position on the proposal for an Inspector General for the Judiciary?

I think staying the course on the Judiciary’s targeted agenda items, telling the good story that the Judiciary has to tell, and continuing to make the compelling case for a sustained, independent Judiciary, are the keys. The FBA is committed to assist the Judiciary in these enterprises in all quarters of government.

A:

Q:

Q:

In short, it’s a bad policy idea and it would be bad law. We believe that federal judges should be held accountable for their ethical lapses, but we do not consider the establishment of an IG office as consistent with judicial accountability. There are mechanisms in place—new administrative measures and rules, computer software to cross-check financial holdings, and those sorts of things—that we think are enough. The bill would create investigatory powers that are far too intrusive and vulnerable for abuse. We see it as an affront to the traditional concept and importance of judicial independence, so we oppose the Inspector General concept.

Q:

You’re at home on the Hill, having served as chief of staff to Senator Thad Cochran and as chief counsel to a Senate Appropriations Subcommittee. What can you tell the Judiciary about how to improve its relations with Congress?

A:

It would be presumptuous of me to try to tell the Judiciary how to represent itself on Capitol Hill, especially with leaders as capable and qualified as Chief Justice Roberts and AO Director Jim Duff. The key issues near and dear to the Judiciary are substantive and meritorious, and they should be embraced by the two political branches as well. The FBA is very pleased, as I am personally, to offer advice and assistance and to engage where possible.

A pay increase for judges has been talked about for many years. What do you feel is the major roadblock to a pay increase for judges? What are the prospects for a pay increase in the 110th Congress?

A:

Without question, pure and simple, the roadblock is Congress. The historic coupling of cost-of-living adjustments for federal judges with Members of Congress is in the way of any judicial pay increase. That link has to be broken, and there needs to be a catch-up raise provided to judges, whether it’s a percentage or an actual dollar amount. I’m confident, and the FBA feels very strongly, that eventually we’ll prevail on this. Pay raises for all top official positions in government would also be prudent, under the theory of “all boats rising.” If there’s going to be something done, the 2007 calendar year might be the best time because the following year is a Presidential election year and everything kind of gets pushed to the back burner. I think that we need to stay on message and be diligent in making the case for a pay increase. Chief Justice Roberts is correct when he says that the rationale for the pay raise is multiple, and that it includes a true financial need. There are judges who are leaving the bench. The shamefully low level of compensation is also a direct affront to the notion of judicial independence. See intervIEW on page 11 The Third Branch

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Transparency Takes Shape The Judicial Conference adopted new policies on ethics and accountability in September 2006. Now policy is being put into practice with the use of automated conflict checking and the posting on the web of educational seminar sponsors.

Educational Seminars Sources Beginning January 1, 2007, nongovernmental organizations inviting a federal judge to attend an educational program—a significant purpose of which is the education of federal or state judges—and that pay for or reimburse that judge over a certain dollar amount, will be required to disclose financial and program information on the Judiciary’s website. The policy applies if the judge is invited as a speaker, panelist, or attendee. An automated system, which will be available at www.uscourts.gov, is being developed for program

providers to report their information. “The Judiciary recognizes that judges’ attendance at some educational seminars had posed concerns for some,” said Judge D. Judge D. Brock Hornby Judge Gordon J. Quist Brock Hornby, chair of the Judicial Conference Judicial College; and the Judicial Committee on the Judicial Branch. Division of the American Bar Asso“Our objective in making this policy ciation. The reporting requirement is was to give greater transparency triggered when any payment or reimand accountability, while allowing bursement is above the threshold at judges to continue their education. which judges must report gifts and The Committee believes that judges’ reimbursements on their annual access to knowledge should be financial disclosure reports— neither limited nor censored.” currently $305. The Judicial Conference excludes Under the new Judicial Confercertain organizations from the disclo- ence policy, educational program sure policy, including state and local providers are required to disclose the bar associations; national, state and name of the program’s sponsors; the local subject-matter bar associations; name or title of the program; dates judicial associations; the National and location of the program; various presentation topics and the expected speakers; and all the program provider’s sources of support, financial or otherwise. Judges are barred from accepting reimbursements unless they first determine that the program providers have made the required disclosures. In addition, judges who accept invitations from such program providers must, within 30 days of the end of the program, file a report with their court’s clerk, disclosing the

Beginning January 2, 2007, information about educational programs can be reported on-line at www.uscourts.gov.

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Safeguards in Place on Tax and Personal Information Recent media coverage of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), roughly a year after the Act went into effect, has focused largely on the sharp decline in nonbusiness or personal bankruptcy filings. But provisions of BAPCPA affected not only how bankruptcies are filed, but also the information collected when filing. In some instances, debtors must now file four years of tax returns. The collection of such highly sensitive personal and financial information concerned Congress when it enacted BAPCPA, in light of the potential for improper use of tax information. Although the federal courts already have in place a policy

dates of attendance, the name of the program providers, and the title of the education program.

Mandatory Conflict Screening Policy Judicial circuit councils are in the process of drawing up plans to implement mandatory conflict screening. The new conflict screening policy, approved by the Judicial Conference in September 2006, requires courts and judges to use automated screening software to help identify cases in which they may have a financial conflict of interest and should disqualify themselves. The screening can also be used to check for nonfinancial conflicts. The software has been deployed by the Administrative Office as part of the Case Management/Electronic Case Files (CM/ECF) system used by

on privacy and public access to electronic case files (http://www.privacy. uscourts.gov/b4amend.htm), Section 315 of the Act specifically required that the Director of the Administrative Office (AO) establish procedures for safeguarding the confidentiality of the required tax information. Under the guidance issued by the AO, no tax information filed with the bankruptcy court or otherwise provided by the debtor will be available to the public on the Internet, on the Judiciary’s electronic public access service that allows users to obtain case and docket information from records, or through the courts’ Case Management/Electronic Case Files system. For non-court users of any of these systems or networks, a docket report will indicate only that tax information has been filed. Under Judiciary guidelines, any individual who wishes to gain access to a debtor’s tax returns must file a motion with the court. The motion must include a description of the individual’s status in the case to

allow the court to determine whether the access may properly be given; a description of the specific tax information sought; a statement indicating that the information cannot be obtained from other sources; and a statement showing a demonstrated need for the tax information. Courts granting a motion for access to tax information should include language advising that the tax information is confidential and should not be distributed inappropriately. At the discretion of the court, sanctions may be imposed for improper use, disclosure or dissemination of the tax information. In addition to the tax guidance, other protections for personal identifiers continue to apply after BAPCPA. An example is the 2003 amendments to the Federal Rules of Bankruptcy Procedure, designed to protect the privacy of bankruptcy filers and minimize the risk of identify theft. According to these rules, as well as the Judicial Conference’s

nearly all district and bankruptcy courts. As appeals courts begin implementing the CM/ECF system over the next year, they’ll also begin using the accompanying conflict checking software. As new matters are docketed in CM/ECF, the conflict checking software compares names of parties and attorneys to the names on a judge’s recusal list. However, the software cannot catch every conflict. And that’s due in part to the ever-changing nature of big business. “Keeping track of conflicts can be extremely complicated,” said Judge Gordon J. Quist, chair of the Judicial Conference Committee on Codes of Conduct. “Especially when mergers and acquisitions lead to continual changes in investment portfolios. The parties are responsible for providing

notice of corporate changes, and the courts need to make sure this happens. And judges should always perform a manual check for conflicts, in addition to the automated screening.” The AO, with the Judicial Conference Committee on Codes of Conduct and with input from judges, circuit executives and clerks of court, has prepared a model plan for conflict screening that addresses key issues and offers sample language spelling out the obligations of courts and judges. The model plan also offers a number of options for possible adoption by circuit councils or courts. For example, one option is to determine how frequently screening software will run. Circuit councils will report to the Judicial Conference on their preliminary plans by January 31, 2007.

See safeguards on page 8

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JUDICIAL MILESTONES

THE

Appointed: Brian K. Tester, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the District of Puerto Rico, November 13.

Senior Status: U.S. Court of Appeals Judge Bruce M. Seyla, U.S. Court of Appeals for the First Circuit, December 31.

Appointed: Martin Glenn, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Southern District of New York, November 30.

Senior Status: Chief U.S. District Judge Ernest C. Torres, U.S. District Court for the District of Rhode Island, December 1.

Appointed: Esther Salas, as U.S. Magistrate Judge, U.S. District Court for the District of New Jersey, November 3.

Senior Status: U.S. District Judge Donald J. Stohr, U.S. District Court for the Eastern District of Missouri, December 31.

Appointed: Joel Schneider, as U.S. Magistrate Judge, U.S. District Court for the District of New Jersey, October 31.

Retired: U.S. Bankruptcy Judge James G. Mixon, U.S. Bankruptcy Court for the Eastern District of Arkansas, November 30.

Elevated: U.S. District Judge Linda R. Reade, to Chief Judge, U.S. District Court for the Northern District of Iowa, succeeding U.S. District Judge Mark Bennett, December 30.

Resigned: U.S. Magistrate Judge Vanzetta Penn McPherson, U.S. District Court for the Middle District of Alabama, October 31.

Elevated: U.S. Bankruptcy Judge Ronald B. King, to Chief Judge, U.S. Bankruptcy Court for the Western District of Texas, succeeding U.S. Bankruptcy Judge Larry E. Kelly, November 2.

Deceased: U.S. Senior Judge Daniel B. Sparr, U.S. District Court for the District of Colorado, November 9. Deceased: U.S. Senior Judge Richard C. Erwin, U.S. District Court for the Middle District of North Carolina, November 7.

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Policy on Privacy and Public Access to Electronic Case Files, only the last four numbers of a filer’s Social Security number and their financial account numbers may be displayed when the case is viewed electronically. Minor children are identified only by initials. Only the year of any individual’s birth need be included. Although the full Social Security number must still be provided to the court on a separate form and the full number sent to creditors as part of the notice of the bankruptcy filing, it remains the responsibility of the debtor or the debtor’s attorney

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to redact personal identifiers in any information filed with the court or provided to trustees. The public continues to have electronic access to the names, addresses, and last four digits of the Social Security numbers of debtors filing bankruptcy. However, Section 234 of the Act allows the court to restrict public access to information contained in the bankruptcy case files if “the court finds that disclosure of such information would create undue risk of identity theft or other unlawful injury to the individual or the individual’s property.”

THIRD BRANCH

Published monthly by the Administrative Office of the U.S. Courts Office of Public Affairs One Columbus Circle, N.E. Washington, D.C. 20544 (202) 502-2600 Visit our Internet site at http://www.uscourts.gov DIRECTOR James C. Duff EDITOR-IN-CHIEF David A. Sellers MANAGING EDITOR Karen E. Redmond PRODUCTION Linda Stanton CONTRIBUTOR Dick Carelli Please direct all inquiries and address changes to The Third Branch at the above address or to Karen_Redmond@ao.uscourts.gov.

JUDICIAL BOXSCORE As of December 1, 2006 Courts of Appeals Vacancies Nominees

16 10

District Courts Vacancies Nominees

35 26

Courts with “Judicial Emergencies”

25

With the end of the 109th Congress, all judicial nominations return to the White House. For more information on vacancies in the federal Judiciary, visit our website at www.uscourts.gov under Newsroom.


Judge Was Eyewitness to Two Worst Terrorist Attacks in U.S. Like everyone who was in Oklahoma City on April 19, 1995, U.S. Bankruptcy Judge Richard Bohanon remembers exactly where he was when a domestic terrorist’s bomb destroyed the Alfred P. Murrah Federal Building. He was at work in the nearby courthouse, showered by shattered glass and ceiling tiles. And like many Americans, Bohanon remembers exactly where he was on September 11, 2001, when the first of two airliners hijacked by foreign terrorists crashed into the World Trade Center. He watched a billowing plume of smoke while walking to work several blocks away. The soft-spoken judge was an eyewitness to history’s two deadliest terrorist attacks in the United States. “I’d have to say I’ve led a pretty ordinary life, except for those two extraordinary experiences,” he said in a recent interview. “It has affected my outlook on life, made me realize all the more that life is fleeting and that we must enjoy each moment.” As he tells it, Bohanon lives a quiet, enjoyable life in Oklahoma City, not far from where he was born 71 years ago. Before that first fateful day in ‘95, he says, he had never been in harm’s way “except when I was out on the highway.” Moments before the bomb exploded, Bohanon, a bankruptcy judge since 1982, had been standing at his ninth-floor office window, looking out at the Murrah Building. He returned to his desk to call a friend, and credits his high-back chair with helping him escape serious injury. “The window blew out. Ceiling tiles fell. All I could see when I looked out the window was black smoke. I couldn’t tell the source,” he said.

Bankruptcy Judge Richard Bohanon

When he reached the street, assuming that a gas explosion had occurred, the judge walked toward the Murrah Building. “A police officer stopped me and sent me back. He said, ‘We found another bomb.’ I don’t think I ever feared for my life, but there is an apprehension that comes from not knowing all that is happening.” (What was thought to be a second bomb turned out to be a mock up used for training by the Bureau of Alcohol, Tobacco and Firearms, which had an office in the destroyed building.) Six years and five months later, Bohanon was helping the busy Southern District of New York’s bankruptcy court, then plagued by several vacancies. As he emerged from a subway station in lower Manhattan the morning of September 11, people on the street were looking up. “Someone said a plane had hit one of the World Trade Center buildings. I and others nearby assumed it had been a small plane that had been off course. I went into the courthouse. After the second plane hit, I was able to call my wife (back at their hotel about 5 miles north) and one of my sons to let them know I was okay, in a safe place,” he said. Held at the courthouse for about four hours, Bohanon emerged to find himself walking in ankle-deep ash. “We made our way to the East River and then headed north. We had to walk awhile before we escaped the bad air. By the time I arrived at the

hotel, I was completely white with ash.” He and his wife, Annie, flew back to Oklahoma City a week later, and life resumed. “These experiences were no secret. I told friends, but the story wasn’t made public until a reporter from the local newspaper called me earlier this year,” Bohanon said. “I was hesitant at first to talk about it,” he added, “but then I thought it’s something that should be recorded, that someone just happened to be at both locations. I haven’t met anyone else who was.”

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Other courts, such as the Second Circuit and the U.S. District Court for the Southern District of New York have incorporated staff briefings on a possible pandemic into their periodic security briefings. District Court Executive Clifford Kirsch says the Southern District of New York is planning a test of its pandemic procedures for the initial processing of defendants from remote locations. The Northern District of West Virginia is developing a telework training program which will enable any employee to be immediately placed into a telework situation. The district also will hold a COOP and pandemic training retreat this spring that will give each court unit a proactive, hands-on involvement in table top exercises. “Our goal,” said Clerk of Court Wally Edgell, “is not to scare anyone, but to prepare everyone!” JEPO Chief William Lehman agrees. “Courts and court units are advised to review their COOP plans and incorporate the planning assumptions, considerations, and guidance on pandemic influenza,” said Lehman. “The templates provide a strategy to continue the business of the court during a pandemic, and to protect the health and welfare of court

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Bankruptcy Filings Decline in FY 2006 Bankruptcy cases filed in federal courts tumbled in fiscal year 2006. Filings for the 12-month period ending September 30, 2006, fell 37.6 percent to 1,112,542, from total filings of 1,782,643 in FY 2005. The federal Judiciary’s fiscal year is the 12-month period ending September 30. The bankruptcies reported are for October 1, 2005 through September 30, 2006. The FY 2006 figures include most of the filings that were part of the surge in filings prompted by the October 17, 2005, implementation date of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005; filings began to rise in late FY 2005 and peaked as over 600,000 petitions were filed in the first 16 days of October 2005.

Business, Non-Business & Chapters Business bankruptcies for FY 2006 fell 20.1 percent to 27,333 from the 34,222 business bankruptcies filed in FY 2005. Non-business or personal bankruptcies fell 37.9 percent in FY 2006, from 1,748,421 in FY 2005 to 1,085,209 in FY 2006.

In FY 2006, filings under Chapters 7, 11, and 13 of the Bankruptcy Code fell, while filings under Chapter 12 rose slightly. The largest decline was in Chapter 7 filings. • Chapter 7 filings in FY 2006 totaled 833,147, down 38.1 percent from 1,346,201 in FY 2005. • Chapter 11 filings dropped 9.6 percent, falling from 6,637 in FY 2005 to 6,003 in FY 2006. • Chapter 13 filings declined 36.4 percent, falling from 429,316 in FY 2005 to 272,937 in FY 2006. • Chapter 12 is designed to meet the needs of financially distressed family farmers. In FY 2006, Chapter 12 filings totaled 376, up 3.3 percent from the 364 cases filed in FY 2005.

Fourth Quarter Filings Filings for the Judiciary’s fourth quarter, the 3-month period ending September 30, 2006, fell to 171,146, down 68.4 percent from the 542,002 bankruptcy cases filed in the final quarter of FY 2005.

Implementation of Bankruptcy Act Strained Judiciary In early December 2006, an oversight hearing on the implementation of the Bankruptcy Abuse

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10 The Third Branch

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Prevention and Consumer Protection Act was held by the Senate Judiciary Committee Subcommittee on Administrative Oversight and the Courts. Judge Thomas S. Zilly (W.D. Wash.), chair of the Judicial Conference Advisory Committee on Bankruptcy Rules, submitted a statement on behalf of the Conference. Zilly said that implementing within six months the provisions of the Act, which exceeds 500 pages and affects virtually every aspect of bankruptcy cases, had presented the federal Judiciary with “an unprecedented challenge.” The Judiciary met the challenge, Zilly told the subcommittee, despite the immense amount of work and cost involved. He noted that a major segment of the federal Judiciary was required on a short timetable to modify or develop new rules, forms, court procedures, computer software programs, statistical reports, manuals, and training programs and to address a host of other tasks. “The added demands of the Act have increased the already enormous pressures to cope with the day-to-day responsibilities in the administration of justice,” said Zilly, “straining the federal Judiciary’s personnel and resources.” Zilly’s complete testimony is on-line at www.uscourts.gov/newsroom/ judgezilly.pdf. For more on bankruptcy and its chapters, see the Judiciary’s “Bankruptcy Basics” at www.uscourts. gov/bankruptcycourts/bankruptcybasics.html or visit www.fjc.gov/ federal/courts.nsf. Local bankruptcy court rules can be found at www. uscourts.gov/rules/bk-localrules. html. Historic data on bankruptcy filings is available on www.uscourts. gov/bnkrpctystats/bankruptcystats.htm. Additional bankruptcy statistics, including bankruptcies by county, can be found on the Judiciary’s PACER system.


I N T E R V I E W • • • continued from page 5 One final thought on judicial compensation: I think it would be smart for business around this country to get involved with this issue as a matter of policy. If business were to back judicial compensation, it would make a world of difference. And their reason for backing a pay raise is simple. They need to ensure that they have a fair, independent and a just court system at their disposal for disputes in commerce.

Q:

What are some of the other policy issues the FBA is focusing on today or will be addressing in the near future?

A:

Overall, judicial independence is a key theme that includes adequate funding for all aspects of our court system. A little more certainty and a lot more support for the Judiciary in Congress would go a long way in bolstering our vital judicial functions of government. The GSA rent and the facilities’ expense issue needs to be corrected because there is complete disparity between GSA’s treatment of the Judiciary and Executive agencies. The authorization of permanent and temporary judgeships is an area we will continue to lend support. It disturbs us when certain Members of Congress and committees try to link legislation creating new federal judgeships with an issue such as the split of the Ninth Circuit. We think that sort of legislative linkage is very unfortunate.

Q:

The FBA has a number of active local chapters that work closely with their respective federal district courts. Can you discuss the role of local chapters in the work of the FBA?

A:

Our chapters are an important component of the FBA at the

heart of our organization because, unlike any other bar association that I know of, the local chapter concept is a unique feature. We have 87 chapters around the country, each with its own autonomy and independence with respect to local programming and priorities. They operate within the guidelines of our national charter, but they are able to provide tailor-made local programming and develop relationships with their local federal bench. Our chapters are sponsoring some highly successful programming. Since taking office, I have been to a CLE program put on by three of our chapters in the western states—Utah, Idaho, and Wyoming. The chief judges from the district courts of each of those states were on the program. Lawyers, particularly younger lawyers, had a chance to meet and hear judges in a setting apart from a formal courtroom. Our Dallas chapter recently put on a program bringing together federal judges and local Members of Congress. The New Orleans FBA Chapter hosts an incredible and widely-attended judicial reception each fall. When you look at it from the top down, our chapters are also readily available to spring into action as a grassroots organization that we can mobilize to support public policy issues. When we identify a key issue, we educate the chapters, request their engagement, and then empower them to work with us from a national perspective. Similarly, the national organization can also take up the mantle for local and regional issues. A lion’s share of the FBA’s strength and value is in our chapters, as well as in our sections and divisions. Those entities are really where our service and delivery systems meet the road to provide value and meaning for our members and those whom we serve.

Danger: Part of the Job for Probation, Pretrial Services Officers Tom Gahl was killed on the job 20 years ago, but most of the 5,100 probation and pretrial services officers working in the federal court system today still know about him. Gahl, a federal probation officer in Indianapolis, was gunned down on September 22, 1986. He is the only federal probation or pretrial services officer killed in the line of duty. “His is a name recognized by the vast majority of today’s officers. His name and how he died is a reminder of the inherent dangers in the work they do,” said Sharon Henegan, chief of the Office of Probation and Pretrial Services (OPPS) Training Branch within the Administrative Office. Gahl’s widow, Nancy, recently wrote about his death in a publication for probation and pretrial services officers. “On a sunny Monday morning, Tom went to the home of Michael Wayne Jackson, who had been placed on Tom’s caseload one week before. When no one answered the door, Tom started to walk toward the neighbor’s house,” she wrote. “Mr. Jackson, who was carrying a sawedoff shotgun, came from behind and shot Tom in the left elbow. “Tom turned and faced Mr. Jackson, trying to reason with him, but fell to his knees weakened from the loss of blood. Crying out to God, Tom was shot twice more, in the head.” Jackson killed two more people before he committed suicide 11 days later while pursued by law enforcement officers. Gahl, 38 and a 12-year veteran, See danger on page 12

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Danger continued from page 11

left behind two sons, ages eight and four. During the difficult times that followed, Mrs. Gahl often was comforted by the judges and probation staff of the Southern District of Indiana. They started an education fund for her boys, which served as the primary source of their college tuition. “Tom was a conscientious probation officer who didn’t take unnecessary risks when dealing with offenders,” Mrs. Gahl wrote, “and he often would take a U.S. marshal to accompany him during home visits. Over the years, I have wished Tom could have done something to save his own life, but the shots came without warning.” She added: “I am pleased to see that safety training is playing a much bigger role in the federal probation and pretrial services system . . . Officers are at risk every day in carrying out their respon-

sibilities to protect the public. Although training can’t ensure that they will never be in danger, it can greatly increase their chances of survival.” Henegan said the officers’ focus on addressing the needs of defendants and offenders can distract them from the potential dangers posed by the job. “We want all officers to know how to do their job in the safest way. We are working toward that by integrating safety awareness and safety training into their overall training on how to be a good officer in the federal Judiciary,” Henegan said. The OPPS training branch offers such training to all new probation and pretrial services officers at the Federal Law Enforcement Training Center in Charleston, South Carolina. In 2007, 13 classes of 24 new officers will receive six weeks of training to build knowl-

THE THIRD BRANCH Administrative Office of the U.S. Courts Office of Public Affairs One Columbus Circle, N.E. Washington, D.C. 20544

edge and skills in all aspects of the job, including interviewing, testifying, substance abuse treatment, assessing offenders’ risks and needs, and conducting purposeful home inspections. The curriculum includes specific classes on self-defense, driving safety, firearms, threat identification and assessment, and more. Mrs. Gahl wants those new officers, and all officers, to know she appreciates the work they do. “I believe it is often under-recognized, but it is crucial to a functioning Judiciary, a successful correctional system, and a peaceful society,” she wrote. “I hope you will continue to take advantage of the training opportunities that come your way, and that you never take for granted your very important role in protecting and serving the public.”

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