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THIRD BRANCH Pay Hearing Raises Questions of Delinkage and Diversity in Federal Judiciary

Justices Samuel Alito and Stephen Breyer appeared before a House subcommittee last month to make the case for a change in the judicial compensation system.

Supreme Court Justices Stephen Breyer and Samuel Alito appeared before the House Judiciary Subcommittee on the Courts, the Internet, and Intellectual Property in April, and the topic of their testimony was federal judicial compensation. “I [testify] today,” Breyer said, “because I believe that something has


gone seriously wrong with the judicial compensation system. Compared to the average American, real judicial compensation levels over time have fallen by nearly 50 percent and that decline threatens to weaken the institution. Perhaps by appearing on behalf of the judicial institution See Pay Hearing on page 4

Court Security Hearing in House............................................. pg. 3 New Law Protects Filers............................................................ pg. 5 Bankruptcy Work Per Case Increases...................................... pg. 6

Newsletter of the Federal Courts

Vol. 39 Number 5 May 2007

Salary Linkage: “An Unfortunate Policy” The report’s title says it best— “How to Pay the Piper: It’s Time to Call Different Tunes for Congressional and Judicial Salaries.” Released in April by the Brookings Institution and the American Enterprise Institute for Public Policy Research (AEI), the report describes linkage of judicial and congressional salaries as “an unfortunate policy mechanism,” and calls into question many of the commonly held assumptions on why linkage is good for both legislators and judges. Now a group of former U.S. Senators and Representatives has called for Congress to end the practice. The group includes former Senators Howard Baker, John Danforth, and Sam Nunn, and former Representatives Richard Gephardt, Henry Hyde, Susan Molinari, Leon Panetta, and Louis Stokes. Written by the Brookings Institution’s Russell R. Wheeler and AEI’s Michael S. Greve, the report delves into the history of interbranch salary linkage. Linkage in the report means district judges, members of Congress, deputy cabinet secretaries, and agency heads receive the same salary. Contrary to some expectations, linkage has not been consistent in the 116 years since the federal judicial system took its present form. As See Linkage on page 2

Linkage continued from page 1 the report notes, “Only in 1987 did a firm member-judge linkage take hold.” The report describes the federal judicial system and judges’ salaries, reviews the history of salary linkage, and considers arguments in support of linkage. And after weighing the case, the report’s authors conclude that linkage “has no bearing on the question of what salaries should be and, in fact, distorts the relevant considerations.” In particular, their research found: • Linkage is a one-size-fits-all salary determination for officials with different responsibilities and career anticipations. • Data are at best inconclusive on whether linkage serves the practical justification offered for it—that it provides members greater salary increases than they could otherwise achieve. • Linkage has not kept subordinate salaries in check. Salaries for numerous Executive Branch staff are higher than the salaries for members, district judges, and deputy secretaries. • Linked salaries do not symbolize equality between the branches. • No jurisdiction similar to the United States requires salary linkage. • There is no evidence that informed public opinion supports linkage. The complete report is available online at views/papers/wheeler/20070418. htm.

Conference Recommends Changes in Administration, Procedure to Improve Judicial Efficiency A package of legislative proposals to improve the efficiency and effectiveness of federal court operations has been sent to Congress by the Judicial Conference under the rubrics of the “Civil Judicial Procedure, Administration, and Technical Amendments Act of 2007,” and the “Criminal Judicial Procedure, Administration, and Technical Amendments Act of 2007.” Altogether, there are 34 civil and criminal provisions in the proposed legislation that the Conference hopes will be introduced as legislation in the 110th Congress. The provi-

sions would enhance the administration of the justice system, many of them by making technical or conforming changes to existing law. Among the hoped-for improvements under the proposed Criminal Judicial Procedure, Administration, and Technical Amendments Act of 2007: • an automatic increase in the case compensation maximums for representation of Criminal Justice Act defendants in non-capital cases by the same percentage as any increases in the hourly compensation rate. • authorization of intermittent confinement as a condition of supervised release, with certain limitations, as is now possible as a condition of probation; and provision for an upward adjustment of the supervised release term for offenders with extensive criminal histories. • treatment of most fines and orders of restitution in criminal

What’s Your EQ? What’s your ethics quotient? There’s an easy way to find out. The second annual ethics quiz for federal judges is now available on the Judiciary’s intranet in the Judges’ Corner. “The short quiz is designed to test your knowledge—and increase your understanding—of ethics rules governing recusal obligations that may arise from financial and other conflicts of interest,” said Judge Gordon J. Quist, chair of the Judicial Conference Committee on Codes of Conduct. Correct answers are accompanied by a brief explanation and relevant citations, but not, unfortunately, by prizes. Ready to test? EQ Question: A mutual fund you own invests only in the health care industry, and you are currently handling several cases involving health care companies. Your recusal is mandatory. True or False? (See answer below.) EQ Answer: The correct answer is False. Recusal is not required unless you know that the outcome of those cases could substantially affect your interest.

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offenses as civil debts, payable immediately and collectable by the Department of Justice or the victim. This change would expand debt collection techniques, maximize collection levels, and minimize the need for courts to intervene repeatedly to adjust payment schedules. Under a separate provision, judges also would be authorized to order restitution be paid to a broader category of victims for more types of damages. • authorization of the Director of the Administrative Office to provide to pretrial defendants and post-conviction offenders treatment and services, such as equipment and emergency housing, corrective and preventative guidance and training, and other services reasonably necessary to protect the public, ensure defendants appear in court as required, and promote the successful re-entry of offenders into the community.

• appointment of a federal public defender as a non-voting member to the U.S. Sentencing Commission. • restoration of the requirement that a minimum of three federal judges be members of the Sentencing Commission. • authorization for the 11-member Foreign Intelligence Surveillance Court to sit en banc. • revision of the federal anti-profiteering statute to provide that, as a condition of probation and supervised release, a defendant convicted of a felony or misdemeanor that is a crime of violence may not receive any proceeds derived from that offense. • restoration of broad designation authority to the Bureau of Prisons in the assignment of prisoners to residential re-entry centers.

cial Procedure, Administration, and Technical Amendments Act of 2007: • reduction in the amount of time —from 30 to five days—a petit juror is required to serve before becoming eligible for the supplemental daily fee. • repeal of the present exemption or bar from jury service for members of fire and police departments and public officers, unless they request to be excused. • the addition of magistrate judges to those judges in active service who may, by statute, be invited to attend circuit judicial conferences. • authorization for the Southern District of Iowa’s Western division to hold civil trials, upon consent of the parties, in nearby Omaha, Nebraska.

Among the improvements recommended in the proposed Civil Judi-

House Hearing on Court Security Bill The House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security held a May 3, 2007, hearing on H.R. 660, the “Court Security Improvement Act of 2007.” Judge David B. Sentelle (photo right), chair of the Judicial Conference Committee on Judicial Security, testified on behalf of the federal Judiciary. “The judicial security issues contained in the Act continue to be critically important to the federal courts,” Sentelle told the subcommittee. “When enacted,” he said, “this bill will contribute significantly to the security of federal judges and their families.” Also testifying at the hearing were Chief Judge Robert M. Bell of the Maryland Court of Appeals and John F. Clark, director of the U.S. Marshals Service (photo left.) Last month, the Senate passed its version of the Court Security Improvement Act of 2007, S. 378. Both the House and Senate bills contain several important Judicial Conference-supported security provisions, including new penalties for the malicious filing of fictitious liens and a requirement that the U.S Marshals Service consult with the Conference on matters relating to court security.

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Pay Hearing continued from page 1 and speaking directly to you in the Legislative Branch, who are facing a similar problem, I can help to explain the problem and why something must be done.” Just as the salaries for executives in private industry and the non-profit sector exceed the salaries of federal judges, Breyer noted that many positions in the Executive Branch of the federal government now offer salaries “far higher than the salaries of district court judges and Members of Congress.” He showed subcommittee members a stack of announcements for vacant positions in the Executive Branch offering annual salaries of up to $305,166, well beyond the $165,200 paid to federal trial judges. In his remarks, Alito calculated that if judges’ salaries had kept pace with the increase in the average wages of American workers between 1969 and 2006, a district judge’s salary would be $261,300. “Judges do not expect to become wealthy when they are appointed to the federal bench,” Alito said. “However, they do expect to receive, in real terms, what the job paid when they took it. This situation threatens irreparable harm both to the institution and to the public that it serves.”

Fear That Diversity May Be Lost


In large part, subcommittee members responded favorably. The relatively recent historic link of salaries of judges and Members of Congress was on many minds. “There probably was a time in our history when it could be justified or there was a rationale for it that made sense,” said House Judiciary Committee chair, Representative John Conyers Jr. (D-MI). “I don’t think that exists any longer.” Conyers also expressed concern that diversity on the federal bench is slipping away. “One of the strengths of the court. . . is the pluralism in terms of race, religion, and career expertise,” he said. “If we don’t eliminate linkage and The Third Branch


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Subcommittee chair Representative Howard Berman (D-CA) and ranking minority member Representative Howard Coble (R-NC) discussed the delinkage of judicial and congressional salaries.

increase federal judicial pay, I fear that we will be limiting our Judiciary to persons of more privileged backgrounds.” Representative Lamar Smith (RTX), ranking minority member on the House Judiciary Committee, said that “[t]he primary reason judicial pay has lagged for nearly 40 years is linkage.” He added that not all public servants are deprived of higher pay by an “arbitrary link to congressional compensation,” and cited the $257,000 annual salary of the FDIC’s chief officer and the $200,000 plus salary of the SEC’s deputy chief accountant. “In fact,” Smith said, echoing Breyer’s own testimony, “a single day’s listing of federal job vacancies on March 14th, showed 467 positions with pay ranges that exceed the current level for district judges and Members of Congress.” Representative Adam Schiff (D-CA) said he knows judges who have left the bench to go back into private practice and acknowledged that a law clerk in the first year of private practice may make more than a federal judge. In the 109th Congress, Schiff introduced legislation in the House to de-couple congressional salaries from judicial salaries and to increase judges’ salaries. “I think to keep a strong Judiciary, to get the very best people on the bench, we have to make a change,”

Schiff said. He added, however, “[t]here’s only one thing, in fact, less popular than raising judicial salaries. And that’s raising legislative salaries.” Subcommittee chair Representative Howard Berman (D-CA) said that despite opposition, he would not give up on delinkage. An insistence on linkage, he believes, will lead to saying no to any change in judicial salaries.

Opposition to Delinkage The subcommittee’s ranking minority member, Representative Howard Coble (R-NC), remained “mildly in opposition” to his committee chair, saying that at their current salaries, justices and federal judges already place in the top 2 percent of all U.S. salaried workers. Representative F. James Sensenbrenner (R-WI) was more direct. “I think both of our distinguished witnesses know that I do not favor delinkage between congressional and judicial salaries and thus will be the skunk at the lawn party,” he said. Sensenbrenner favors some type of comparability in compensation between the co-equal branches of government. “I think the real question that has to be answered,” he said, “is not whether you deserve more pay

or you don’t deserve more pay, but are the duties and responsibilities and time involved in discharging the duties of a federal district judge worth that much more than the duties, responsibilities, and time involved in being a member of the House of Representatives or a United States Senator?”

Career Stepping Stone I think that every member of the federal Judiciary is underpaid,” offered Representative Robert Goodlatte (R-VA). “But I think it is the nature of public service that you are always going to be underpaid, no matter what we do to resolve this issue, in comparison to those who practice before your court and the lesser courts simply by virtue of what they can do in the private sector.” Subcommittee member Representative Ric Keller (R-FL) echoed that belief. He then asked Breyer if he agreed it is unrealistic to expect that

federal judges be paid an amount commensurate with what they would make in the private sector— noting that TV’s “Judge Judy” earns $28 million. “I have never even in my most fanciful dreams dreamt I would earn Judge Judy’s salary,” Breyer responded. “I agree with you. Life isn’t fair, in respect to compensation, particularly. . . . But it’s the down, down, down, down over the course of—you can do it five years, 10 years, but then it becomes 15. It becomes 20. It becomes an entire working lifetime. And it’s that continuous erosion compared to the average American [salary]. That begins the demoralization. . . . And it eventually changes the institution.” Representative Mike Pence (R-IN) found it “deeply troubling” that as a result of pay erosion that’s occurred over the last generation, the federal Judiciary may become a stepping stone in the course of a career. Breyer agreed and told the

subcommittee that when he’d looked recently at the roster of a prominent arbitration company, he’d found the names of 21 former federal judges. His reaction, he said, was to think, “‘Oh, dear’ because it means that there is a risk that this job which I love—it’s not just the Supreme Court, either, it’s the district court, or it’s the court of appeals—it becomes a stepping stone. The day that that job becomes a stepping stone instead of a capstone, which is what it’s supposed to be. . . that is death for the Judiciary.” The complete testimony of Justices Breyer and Alito is available online at testimony/JusticeBreyerPay041907. pdf and testimony/JusticeAlitopay041907. pdf. To watch the full House hearing, check the Federal Judicial Television Network schedule on-line.

Authority Gives Some Protection From Unreasonable Risk On May 3, 2007, the Judicial Disclosure Responsibility Act, was signed into law by the President as P.L. 110-24. The new law reinstates through December 31, 2009, the authority of the Judicial Conference to redact information from financial disclosure reports where the release of that information would endanger the filer. The Act also expands the authority to allow redaction where the release of the information could endanger a member of the filer’s family. The authority was needed to protect the safety of judges and their families. “The purpose of the financial disclosure reports is to reveal to litigants where there may be potential bias or a conflict of interest by a judge,” said Judge Ortrie Smith

(W.D. Mo.), chair of the Judicial Conference Committee on Financial Disclosure. “The reason for redaction authority is to allow judges to exclude information that, if made public, may expose judges and family to unreasonable risk.” As an example, Smith said that judges are required to disclose revenue-producing assets. “However, excluding the location of a vacation home generating rental income,” he said, “does not generally interfere with this requirement. Revealing the location where a spouse teaches or works also would not be necessary to the disclosure requirements.” Listing work locations or residences where they or family members might be found is a sensi-

tive topic for judges, especially following the murders of members of the family of Judge Joan Lefkow (N.D. Ill.) in 2005. “We deal with civil issues that affect large sums of money, and with criminal cases that affect an even more important issue—personal freedom,” Smith said. “Both often result in very passionate demonstrations that could result in a person doing or threatening harm to a judge or a judge’s family members. The ability to redact sensitive information may shield a judge and family members from that threat.”

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Bankruptcy Courts’ Work Per Case Increases Significantly The far-reaching changes in federal bankruptcy law that took effect in October 2005 yielded a sharp decline in filings in 2006, but preliminary information suggests that the work per case has increased significantly for bankruptcy courts. That increase, perhaps the least publicized impact of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), is being felt in bankruptcy court clerks’ offices across the nation. “Although filings have started to rebound, no consensus exists among bankruptcy courts as to when, or if, filings will return to pre-BAPCPA levels,” Judge Julia Gibbons (6th Cir.), chair of the Judicial Conference’s Committee on the Budget, told congressional appropriations committees in March. “The number of filings alone, however, should not be viewed as the sole indicator of overall workload. BAPCPA created new docketing, noticing, and hearing requirements that make addressing the petitions more complex and timeconsuming,” she said. Bankruptcy court officials agree. “Our staff is finding that the amount of work per case has increased substantially,” said Susan Thurston, the bankruptcy court clerk in Rhode Island. George Prentice, clerk of court for the Western District of Texas Bankruptcy Court, added: “The nature of our work shifted; it did not go away.” Survey information from 10 bankruptcy courts indicates that userentered docket entries per case have risen substantially since the new law took effect. Likewise, the number of motions filed and the number of judges’ orders show similar increases in those courts.

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“More documents are filed in each case, reflecting the fact that the new law carries more requirements, such as each petitioner must certify that he or she has been through credit counseling. No such document existed before BAPCPA,” Prentice said. “The number of externally filed documents has increased,” he said. “We quality control almost every document filed in a case, particularly if it is user-entered. That has to be a daily function of automated courts, because once something is filed it is instantly public and transparent. It

“The nature of our work shifted; it did not go away.” is incumbent on the clerk’s office to ensure the docket offers an accurate picture of what is happening in a case.” In Rhode Island, Thurston said, “Our workload is almost as demanding and time-consuming for our small office as in past years.” Why? The numbers from the District of Rhode Island Bankruptcy Court show: • an 87 percent increase since BAPCPA in the ratio of motions to filings. • a 104 percent increase in the ratio of orders to filings. • a 68 percent increase in the ratio of docketed events to filings. “There’s been a dramatic increase in the amount of work per case, including the fact that we have many more pro se (filed without a lawyer’s help) cases being filed. This increase directly impacts our telephone work-

load, intake workload, and casemanagement workload,” Thurston said. The experience is not isolated. “More areas of the law are unsettled. More hearings are required to determine the proper way to interpret the new law,” Prentice explained. “And the law has resulted in an increase in the percentage of more complicated Chapter 13 filings compared to Chapter 7 cases.” A Chapter 13 case, which involves reorganization and partial repayment to creditors, can be active in a bankruptcy court for up to five years. A Chapter 7 case, which involves liquidation of a debtor’s assets, usually remains on a court’s docket for three to six months. Enactment of BAPCPA came at a time when bankruptcy court staffs were undergoing resizing. After reaching a peak of 5,334 onboard employees in fiscal year 2002, employment in FY 2007 is 4,438—a 17 percent reduction. In this period of transition, Gibbons cited one constant in her congressional testimony. “Of course, the root causes of bankruptcy—job loss, business failure, medical bills, credit problems, and divorce—were not affected by the legislation and are expected to continue to be the primary drivers of filings,” she said.

Aging Bankruptcy Filers: Is This a Trend?

2002. Between 1994 and 2002, older filers came to account for a larger percentage of overall filers. Petitioners over the age of 45 constituted 27 percent of filers in 1994, but 39 percent in 2002. In 1994, filers under the age of 25 accounted for 11 percent of overall filers, but in 2002 they accounted for 4 percent.

cites some possible factors. Several studies have pointed to the “tumultuous” economy of the 1980s and early 1990s, during the baby boomers’ peak earning years. Another study points to credit card debt, showing that credit card debt levels among Chapter 7 petitioners were lowest for debtors under the age of 25, three

Is there a relationship between age and filing for bankruptcy? A new study shows that the Percentages of Age Grouping bulk of bankruptcy filings General Population* Bankruptcy Population are filed by the Percent of Age Group in US Population Percent of Age Group in Total Filers middle-aged. Census Data 1994 2002 % change Census Data 1994 2002 % change John Golmant and -1.0% -60.4% under 25 9.9 9.8 under 25 10.6 4.2 Tom Ulrich, -13.5% -10.1% 25 - 34 22.2 19.2 25 - 34 31.6 28.4 statisticians in -3.6% -8.1% 35 - 44 22.5 21.7 35 - 44 30.9 28.4 the Adminis-19.9% 43.9% 45 - 54 16.1 19.3 45 - 54 17.3 24.9 trative Office’s Statistics Divi3.1% 45.8% 55 and over 29.2 30.1 55 and over 9.6 14 sion, gathered * Source: U.S. Census Bureau Current Population Report, 2000, and Population Division, U.S. Bureau of the Census. data from over Note: the percentages exclude data for persons who were less than 20 years old. 13 million records, times that amount for debtors in And although the average age of with information on Chapter 7 and their 50’s and five times that amount the general population and of the Chapter 13 consumer bankruptcy for debtors age 60 and older. The bankruptcy petitioner population are filers. Random sampling selected amount of mortgage debt carried both increasing, the two groups are 2,800 records with data covering 88 by older homeowners also has been aging at different rates. The change of the 94 districts for the years 1993 increasing. Health care costs seem to in the proportion of bankruptcy petithrough 2002. The results of the study th be major contributors to indebtedness tioners by age group, says the study, were presented at the 15 Federal among seniors. Recent data suggest is much greater. Forecasters Conference and published that 14 percent of 64-years-olds are Does age affect the type of bankin the May issue of the American Bankfacing retirement with negative net ruptcy filed? According to the study, ruptcy Institute Journal. worth. it appears that Chapter 7 petitions The study shows a gradual aging “Of course, it remains to be seen are becoming more prevalent among of the typical bankruptcy filer. They whether these potential financial older debtors, with the fastest growth found that the median age for bankinsolvencies will translate into bankin Chapter 7 petitions occurring in the ruptcy petitioners increased from ruptcies within the federal court groups of filers over age 55. The fastest 37.7 years in 1994 to 41.4 years in system and, moreover, whether the growth in Chapter Chapter 7 bankruptcy will continue 13 petitions also Change in Age Group Representation to be the predominant course of occurred in the over Over Time action whenever a debtor is faced age 55 grouping, Percent of Bankruptcy Population by Age with financial insolvency,” the study although the 45-54 on aging and bankruptcy concludes. age group experiAge Category 1994 2002 2006* “The passage of BAPCPA [the enced significant under 25 10.6 4.2 3.6 Bankruptcy Abuse Prevention and growth as well. 25 - 34 31.6 28.4 22.7 Consumer Protection Act of 2005] Why are baby 35 - 44 30.9 28.4 28.6 may have altered the entire insolboomers disprovency landscape.” portionately repre45 - 54 17.3 24.9 22.4 sented in bank55 and over 9.6 14.0 22.7 ruptcy proceed* Source: Institute for Financial Literacy ings? The study

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Appointed: Judge Thomas M. Hardiman, as U.S. Court of Appeals Judge, U.S. Court of Appeals for the Third Circuit, April 5. Judge Hardiman previously served as a U.S. District Judge for the Western District of Pennsylvania. Appointed: N. Randy Smith, as U.S. Court of Appeals Judge, U.S. Court of Appeals for the Ninth Circuit, March 19. Appointed: John Preston Bailey, as U.S. District Judge, U.S. District Court for the Northern District of West Virginia, March 22. Appointed: Vanessa Lynne Bryant, as U.S. District Judge, U.S. District Court for the District of Connecticut, April 16. Appointed: Nora Barry Fischer, as U.S. District Judge, U.S. District Court for the Western District of Pennsylvania, April 3. Appointed: John A. Jarvey, as U.S. District Judge, U.S. District Court for the Southern District of Iowa, March 15. Judge Jarvey previously served as a U.S. Magistrate Judge for the Northern District of Iowa.


Appointed: Charles Everingham, IV, as U.S. Magistrate Judge, U.S. District Court for the Eastern District of Texas, April 1. Appointed: Alicia G. Rosenberg, as U.S. Magistrate Judge, U.S. District Court for the Central District of California, March 13. Appointed: Elizabeth T. Hey, as U.S. Magistrate Judge, U.S. District Court for the Eastern District of Pennsylvania, April 9. Appointed: Jon S. Scoles, as U.S. Magistrate Judge, U.S. District Court for the Northern District of Iowa, March 20. Elevated: U.S. District Judge Raymond J. Dearie, to Chief Judge, U.S. District Court for the Eastern District of New York, succeeding U.S. District Judge Edward R. Korman, March 19. Elevated: U.S. Bankruptcy Judge Niles L. Jackson, to Chief Bankruptcy Judge, U.S. Bankruptcy Court for the Western District of Oklahoma, succeeding U.S. Bankruptcy Judge Thomas M. Weaver, April 5.

Appointed: Sara Lioi, as U.S. District Judge, U.S. District Court for the Northern District of Ohio, March 16.

Senior Status: U.S. District Judge Joseph A. DiClerico, Jr., U.S. District Court for the District of New Hampshire, March 15.

Appointed: Otis D. Wright, II, as U.S. District Judge, U.S. District Court for the Central District of California, April 16.

Retired: U.S. Senior Judge Dickran M. Tevrizian, U.S. District Court for the Central District of California, April 19.

Appointed: George H. Wu, as U.S. District Judge, U.S. District Court for the Central District of California, April 18.

Resigned: U.S. Chief Bankruptcy Judge Melanie L. Cyganowski, U.S. Bankruptcy Court for the Eastern District of New York, February 28.

Appointed: Mark D. Clarke, as U.S. Magistrate Judge, U.S. District Court for the District of Oregon, March 1.

Resigned: U.S. Magistrate Judge Ronald J. Hedges, U.S. District Court for the District of New Jersey, March 31.

Appointed: David W. Christel, as U.S. part-time Magistrate Judge, U.S. District Court for the Western District of Washington, March 24.

Retired: U.S. part-time Magistrate Judge Gilbert H. Kleweno, U.S. District Court for the Western District of Washington, March 23.

For additional May milestones, visit The Third Branch on-line at The Third Branch


May 2007


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 DIRECTOR James C. Duff EDITOR-IN-CHIEF David A. Sellers MANAGING EDITOR Karen E. Redmond CONTRIBUTOR Dick Carelli PRODUCTION Linda Stanton Please direct all inquiries and address changes to The Third Branch at the above address or to

JUDICIAL BOXSCORE As of May 1, 2007 Courts of Appeals Vacancies Nominees

14 6

District Courts Vacancies Nominees

34 20

Courts with “Judicial Emergencies” 16

For more information on vacancies in the federal Judiciary, visit our website at under Newsroom.

BIA Appeals Still Significant Part of Federal Appellate Caseload Administrative agency appeals involving the Board of Immigration Appeals (BIA) remained a significant part of federal appellate courts’ caseloads in 2006, accounting for 17 percent of 63,676 total appeals. The BIA appeals come at the end of a lengthy legal process. An alien first has his or her case heard by a judge in one of the immigration courts overseen by the Department of Justice, and then can appeal to

the BIA, followed by an appeal to the federal court of appeals. Which of the 12 regional appellate courts handles the appeal is based on the location of the immigration court where the case was first heard. The number of BIA appeals filed in federal courts dropped to 10,750 in 2006, a 16 percent decrease from the 12,873 filed in 2005 and the first decline in five years. The number of total federal appeals dropped 9 percent in 2006, from the 70,003 filed in 2005. BIA appeals as a percentage of total appeals dropped slightly, from 18 percent in 2005 to 17 percent in 2006. As in previous years, in 2006 the U.S. Courts of Appeals for the Second and Ninth Circuits handled the bulk of BIA appeals—2,486 and

5,166, respectively. BIA appeals accounted for 37 percent of the total appeals filed in each of those courts last year. Nationwide, BIA appeals have soared 555 percent since 2001, when they represented just 3 percent of all federal appeals. The huge increase initially was in response to the reorganization of the BIA in 2002, when new case review guidelines and processing time standards were instituted. But the growth in appeals of BIA decisions continued in federal courts as the board received and completed more cases.

Courts of Appeals – BIA Rate of Appeal – Calendar Years 2001-2006 100% 90% 80% 70% 60% 50% 41%

43% 36%


20% 10% 0%



19% 20% 14% 15% 8%









3% Total* CY 2001

2nd CY 2002

CY 2003

CY 2004

9th CY 2005

CY 2006

* Represents data for all circuits except the 2nd and 9th.

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Interview with Judge John R. Tunheim Judge John R. Tunheim, of the U. S. District Court for the District of Minnesota, has served as chair of the Judicial Conference Committee on Court Administration and Case Management since October 2005.


What is the jurisdiction of the Committee on Court Administration and Case Management (CACM)?



The Court Administration and Case Management Committee, as it name implies, has one of the broadest jurisdictional grants of any Judicial Conference Committee. As a result, it has been involved in governance issues relating to court administration, such as the composition of circuit councils, the combining of functions between district and bankruptcy courts clerks’ offices and the role of the chief judge in overseeing court operations. The Committee has jurisdiction over a number of court operational areas such as clerks’ offices, Alternative Dispute Resolution, attorney admission and discipline, miscellaneous and filing fees, law books and libraries, records management, places of holding court, court reporting and interpreting, and juries. The Committee has been active in all these areas and in recent years has reviewed and increased miscellaneous fees in a number of areas, trimmed the budget for law books, promoted and encouraged the use of electronic records, established a privacy policy for remote access to electronic records, and recommended legislation to allow circuits and districts where emergencies arise to hold court in other circuits or districts when necessary. In the area of case management, the Committee has supported the increased use of the The Third Branch


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Case Management/Electronic Case Files system (CM/ECF), considered the issue of courtroom usage, and overseen the Civil Justice Reporting Act statistical reporting program and expanded it to include bankruptcy and Social Security appeals. Because the Committee’s jurisdiction encompasses so many areas, of necessity, the Committee also has worked closely with a number of other Conference committees on a number of these issues. I have very much enjoyed working on the Committee and now serving as chair. CACM has an exceptional staff and really outstanding Committee members.


The operation of grand and petit juries comes under CACM’s jurisdiction. Is your Committee considering any initiatives to promote jury service in the courts?


Yes, the Committee has recently been asked by the Executive Committee to look at ways to make jury service less burdensome and more cost effective. Two of the issues suggested by the Executive Committee are: whether measures can be taken to relieve the economic hardships experienced by some jurors and other methods for summoning jurors such as the “one day, one trial” procedure used in some federal courts, which would lessen the uncertainty and service time for jurors. Our jury subcommittee will be considering theses issues as well as whether more can be done to ensure that jury service will not cause employment problems for jurors. Jury service has always been considered an important civic duty involving some sacrifice on the part of those who serve, but it doesn=t mean that we shouldn=t be looking for ways to lessen its burden. Some state courts have established funds

Judge John R. Tunheim, U. S. District Court for the District of Minnesota

to assist jurors serving on long trials and have provided more employment protection for jurors by increasing the penalties for employers who take punitive measures against juror employees. The subcommittee will be examining these and other options to improve jury service.


Identity theft is a real concern. How does the federal Judiciary address privacy and security concerns relating to the electronic filing of document and the public availability of documents filed electronically?


The Committee has worked on privacy-related issues for over five years. As the courts have moved into the realm of electronic case files, the Committee has worked to ensure that there is a viable policy in place to balance both the public right to access court case files and the need to protect privacy interests contained within those case files. First adopted in 2001, the Judicial Conference policy on privacy and access to electronic case files allowed remote electronic public access to documents in case files

as long as certain pieces of personal information are redacted. That information is the same information typically used in identity theft, such as Social Security numbers, financial account numbers, names of minor children, and dates of birth. One type of case was determined to contain too much sensitive information to be made available to the public electronically: Social Security benefits cases. Those case files are only available at the courthouse. The Conference originally deferred granting electronic public access to criminal case files until a study was conducted to ensure no harm would be caused by providing access. In 2003, after receiving study results that showed no harm from the public access, the Conference approved a policy to allow access to documents filed in criminal case files, with one additional piece of data to be redacted: home addresses. Appellate cases are treated as they are in the lower court level. The policy has worked quite well, and as a result, the Rules Committee has incorporated many of its provisions into new Federal Rules of Procedure, scheduled to go into effect (absent Congressional action) on December 1, 2007.


Will there come a day when a member of the public can find transcripts of all trial court proceedings online?


The Committee has devoted significant time and effort to making transcripts of court proceedings available to the public through the PACER system. It is especially critical to provide online access to transcripts now that the courts of appeals are migrating to CM/ECF. Briefs with hyperlinked citations to transcripts—instant access to the record—will be an amazing efficiency once transcripts are filed online. I have found that nearly everyone “has a dog in this hunt,” and as a

result, it has been a challenge to reach an agreement acceptable to all. The Committee is close to such an agreement, and I am now quite confident that we will soon have transcripts online.


As the lingual diversity of our nation grows, are federal courts well situated to accommodate litigants who do not speak English and, if so, how is that accommodation provided?


The federal Judiciary has long been recognized as a leader in providing the best possible interpretation services for non-English speaking defendants in criminal cases, and as a model for certifying court interpreters in Spanish. However, the provision of these services, by statute, is limited to interpretation in cases initiated by the United States. The recent census indicates a substantial increase in the percentage of the population who understand a language other than English and do not understand English Avery well.@ The Committee believes that the Judiciary must recognize the changing nature of the population and respond by expanding our efforts to assist those with limited English proficiency (LEP) in understanding the courts and the justice system. We see it as an access to justice issue that needs to be addressed, just as we did when the Committee recommended measures in 1996 to assist persons with communications disabilities due to speech or hearing impairment. A number of federal courts have already undertaken initiatives to translate court forms into Spanish and other languages. At the request of the Committee, the Administrative Office (AO) has gathered information on court forms that have been translated and is making them available for use by all courts. In addition, a subcommittee will be working

with court personnel and the AO in identifying the forms that will provide the most assistance to those with LEP and developing uniform translated versions of these forms. Of course, all official forms will still be in English, but the Committee believes that translation of these forms will greatly help the courts in their efforts to address the need for this type of assistance and improve access to justice.


In March, the Conference adopted CACM’s recommendation on a pilot project involving digital audio recordings of court proceedings. Would you tell us about this pilot project?


At its meeting last December, the Committee endorsed a pilot project to link audio files of court hearings to the docket in CM/ ECF, and to make those audio files available through PACER. Pursuant to our recommendation, the Judicial Conference endorsed a six-to-12 month pilot project in which several courts will make digital audio recordings of courtroom proceedings publicly available online through PACER. Since the pilot project has been announced, a fair number of courts have expressed interest in participating, and selection criteria for participation has been established. That criteria includes a requirement that at least one Article III judge (as opposed to magistrate judges only) participate in the pilot for district courts, and that the judge already be using digital audio recording as the official means of taking the record. The pilot is limited to six courts— three bankruptcy and three district— in order for the AO to provide and control the technical architecture needed. These include the bankruptcy courts for the Eastern District of North Carolina, the District of Maine, and the Northern District See Interview on page 12 The Third Branch


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Interview continued from page 11 of Alabama, and the district courts in the Eastern District of Pennsylvania and the District of Nebraska. The pilot will begin with these five courts. Should another district court volunteer and meet the criteria, it will be added. A method for providing the audio file through PACER, which was developed by the Eastern District of North Carolina Bankruptcy Court, will be used for the pilot. Staff from the bankruptcy court and the AO’s CM/ECF District Court Development Team are building the additional pieces of necessary software. A chambers module will interface with a digital audio log sheet that will permit a judge to select which hearing(s) he/she would like to make available via PACER at the end of each day. The digital audio files from the selected hearings will be automatically copied from the court’s digital audio system to the CM/ECF server and, using software, a docket entry will be made in the court’s CM/ECF system with the audio file attached. The AO will

provide model procedures that the presiding judge may wish to use for informing parties of the potential of having the audio recording of the hearing available via PACER. The pilot project is scheduled to begin in all five courts on July 1, 2007. At its June 2008 meeting, the Committee will be provided with an evaluation of the pilot.


Last year, the Federal Judicial Center (FJC) began a courtroom usage study at the request of your committee. Why was it begun and when do you expect a report?


The courtroom usage study is one of the Committee’s largest and most important projects. Members of Congress who provide the funding for courthouse construction projects have made very clear that appropriations will slow or stop until the Judiciary conducts a study demonstrating how our courtrooms are being used today. Lacking any real data, the Committee asked the FJC to design and implement a careful study which captures the

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kind of detailed information the Committee needs to analyze whether changes need to be made to traditional courtroom assignment policies and what impact such changes would have on how judges do their work. The data collection phase of the study will be completed in July. Twenty-six randomly selected courts, large, medium, and small, are participating and staff are busy recording every scheduled and actual courtroom event. The study has resulted in a tremendous amount of data that will take the FJC time to analyze. The Committee has been very impressed both with the incredible detail of the study and how well it has been implemented. FJC staff and local study court staffs have done terrific work. The Committee expects to receive an interim report from the FJC by this fall and hopes to work with other committees and be ready to report findings to the Judicial Conference and Congress in 2008.





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2007-05 May  

Supreme Court Justices Stephen Breyer and Samuel Alito appeared before the House Judiciary Subcom- mittee on the Courts, the Internet, and I...