Newsletter of the Federal Courts
Vol. 43 Number 10 October 2011
New Director of AO Appointed
IN N T E RV IE EW
S Photo left to right: Chief Judge David B. Sentelle, James C. Duff, AO Assistant Director of Finance and Budget George Schafer, and Judge Julia Gibbons during the recent cost-containment summit in Washington, DC.
Hard Choices and Difficult Issues: The Judiciary Considers Its Financial Future
T
his month, The Third Branch spoke in-depth with Judicial Conference Executive Committee Chair, Chief Judge David B. Sentelle, and Budget Committee Chair, Judge Julia Gibbons, about what the Judiciary faces in the upcoming fiscal year.
Q: Judge Gibbons, as chair of the Budget Committee, you recently chaired an unprecedented 5-hour meeting of all Conference committee chairs, and, Judge Sentelle, you were there with the entire Executive Committee. Can you talk about why you met and what you hoped to accomplish?
Gibbons: In September, Judge Sentelle and I led a cost-containment “summit” of chairs of Judicial Conference committees and members of the Budget Committee and the Executive Committee. The current budget situation facing all federal entities is placing the Judiciary in an untenable situation that could result in the loss of hundreds, maybe thousands of Continued on page 10
INSIDE E By the Numbers on Pro Se Bankruptcies ..................................................................................pg. 4 Mobile PACER Case Locator Launched. ...................................................................................pg. 5 New Committee Chairs Named ..................................................................................................pg. 9
enior District Judge Thomas F. Hogan (D. D.C.) will be the new Director of the Administrative Office of the U.S. Courts, beginning October 17. He succeeds James C. Duff and will serve a one-year term. The announcement of the appointment was made by Chief Justice John G. Roberts Jr., who said, “I am delighted that Judge Hogan has agreed to take on this important responsibility. He is one of our Continued on page 7
Learning Center Teaches Scouts About Citizenship
T
his past summer, 53 Boy Scouts spent time at the U.S. District Court for the Eastern District of Missouri’s Learning Center in St. Louis earning a merit badge on the path to becoming Eagle Scouts— and informed citizens. Of the 120-plus merit badges a Boy Scout may earn, and the 15 required to become an Eagle Scout, only one badge addresses what it means to be a citizen of Continued on page 3
Electronic Submission of CJA Vouchers in Development
I
t’s not quite ready, but it is coming. A national application is in development for the electronic submission, processing, approval and payment of the vouchers submitted by panel attorneys representing clients under the Criminal Justice Act (CJA). Development of the core system requirements and independent testing of the Electronic CJA Voucher Processing System (eCJA VPS) are scheduled to be completed by next summer, followed by a roll-out and testing by pilot courts. If all goes as planned, the first wave of courts will begin using the new system in January 2013. In fiscal year 2010, the Judiciary processed 145,473 vouchers submitted through the CJA panel attorney program. Each voucher went through an approval process requiring multiple reviews and certifications, along with repeated manual entry of information and issuance of a paper check. The eCJA VPS will give courts a faster, more responsive, more efficient system to process vouchers submitted in CJA cases and more rapid payments to panel attorneys. “The way CJA vouchers are processed now involves a lot of people sending a lot of paper all over the place,” said Judge Matthew F. Kennelly (N.D. Ill.). “When we’re working on a new generation of our Case Management/Electronic Case Files system, and most of our court procedures are electronic, there’s no good reason why voucher processing shouldn’t be brought into the 21st century, too.” The Administrative Office’s eCJA VPS Working Group—made up of panel attorneys, appellate and district court staff, and staff from the federal defender organizations—helped identify the requirements for the eCJA VPS. Kennelly is a liaison judge to the project from the Judicial Conference Committee on Information Technology. He joined judges from the Budget, Court Administration and Case Management 2
The Third Branch
October 2011
“There’s no good reason why voucher processing shouldn’t be brought into the 21st century, too.” —Judge Matthew F. Kennelly (N.D. Ill.)
and Defender Services Committees who worked on the project. As a former CJA panel attorney, Kennelly brings two frames of reference to the discussion. “A number of very dedicated people spent an enormous amount of time identifying what we wanted to have in an electronic voucher processing system,” he said. “The eCJA VPS is designed with those needs in mind.” The online eCJA VPS system eliminates redundant data entry and errors and allows all the representation-related documents, vouchers, and orders to be viewed simultaneously by persons with authorized access. The increased visibility of vouchers better detects expenses for which attorneys may not be compensated, while giving districts the ability to monitor budgets and incorporate their own controls on expenses. The eCJA VPS will be able to exchange data with the Case Management/ Electronic Case Files system and the
Judiciary’s financial system, FAS4T. Once a CJA voucher is approved in eCJA VPS, payment information will be passed to FAS4T to electronically transfer funds directly to the attorney or expert service provider’s bank account. A planned realtime interface between the two systems would allow users to see the latest status of voucher payments. Courts will be able to customize eCJA VPS reports with drop down filters and also select which criteria to show, such as payee, service type, representation or case history. The system will document the voucher trail, from how it was prepared, through the internal review process, and on to payment. Rate information will be posted and edits made online. Attorneys and expert service providers will be notified of submission due dates and limits on expert services, when vouchers have been received, where any adjustment may have been made, and when payment occurs. Where questions arise or clarifications are needed, the court can communicate directly with panel attorneys through eCJA VPS and receive a response. And because it will be all online, a judge will be able to approve vouchers wherever she or he has a secure computer connection.
AO and Chief Justice Say Goodbye to Director Duff Chief Justice John Roberts Jr. attended James Duff ’s last senior staff meeting as Director to thank him for his service to the federal Judiciary. (Photo left to right) Deputy Director Jill Sayenga, James Duff, and Chief Justice Roberts.
Learning Center Teaches Scouts About Citizenship continued from page 1
the United States: the Citizenship in the Nation merit badge. Rachel Marshall is the public education and community outreach administrator at the court and directs the Learning Center’s programs in the Eagleton Courthouse. She’s also a Merit Badge Counselor. “To be a Merit Badge Counselor, you must be associated with the content of the merit badge, either as a hobby or a job,” explains Marshall. “That’s a good fit for what I do here in our Learning Center.” The merit badge requirements teach scouts about their national and state representatives, about national issues and current events, and about the key documents of our democracy—including the Declaration of Independence, the Constitution and the Bill of Rights. To earn the badge, scouts must tour a federal facility and also be able to name the three branches of the federal government, explain their functions, and the importance of the system of checks and balances. That’s where the Learning Center comes into play. “Our interactive exhibits highlight the executive and legislative branches, with a special focus on the judicial branch,” said Marshall. “Even if they’ve had social studies in school, they’re usually surprised at how much they don’t know about how their government is structured.” In addition to the Learning Center, the summer Merit Badge workshop at the Eagleton Courthouse also took the scouts to the jury assembly room, and showed them a district courtroom where they observed a judicial proceeding. A deputy U.S. marshal and two probation officers
—all Eagle Scouts—plus two district court judges, each taught different parts of the badge requirements. Because the merit badge also requires scouts to tour a location on the National Historic Register, a partnership was formed with the National Park form Service. Less than a mile Se ffrom the Eagleton Courthouse is St. Louis’ historic h ccourthouse, the location of the famous Dred Scott o trial. The day started there tr with a ranger-led tour of the old courthouse. co Someone who usually finds the time to talk to the scouts about the federal court system is Judge Rodney Sippel, an
Eagle Scout, and also a scout leader and Merit Badge Counselor. “The skills the scouts learn, and the knowledge they gain earning the Citizenship in the Nation merit badge are their building blocks,” said Sippel. “We’re giving them the tools to be productive members of society and good citizens.” Two to three scout groups visit the court and Learning Center per year, with visits from Webelos to Boy Scouts. This winter, a careers in justice program will be held for Girl Scouts. Overall, nearly 2,000 people take advantage of the courthouse tour program annually. Marshall also organizes in-depth programs for Constitution Day, Law Day, and several workshops for teachers.
Last month the Judicial Learning Center at the U.S. District Court for the Eastern District of Missouri, St. Louis, hosted a troop of Webelos, the Cub Scout program just before Boy Scouts. Judge Rodney Sippel welcomed the group and Deputy Chief Probation Officer Scott Anders talked about what a probation officer does. The Webelos also observed two hearings in the district court and explored the Learning Center with a scavenger hunt activity.
The Third Branch
October 2011
3
By the Numbers—Pro Se Filers in the Bankruptcy Courts
O
ver the last five years, the growth of pro se bankruptcy filings has outpaced the rate of growth of overall bankruptcy filings, increasing most rapidly in the western part of the United States, according to an Administrative Office analysis. AO statistical analysts recently examined pro se filings in the bankruptcy courts. Pro se legal representation refers to a person representing himself or herself without legal counsel in a court proceeding. During the 12-month period ending June 30, 2011, pro se cases accounted for 26 percent (75,229 cases) of the civil caseload in the district courts, 49 percent (27,112 appeals) of the appellate case count, and 9 percent (130,086 cases) of the bankruptcy tally— a significant portion of the overall judicial caseload. The AO began collecting information on pro se bankruptcy filers from all bankruptcy courts during the 12-month period ending September 30, 2006—shortly after the implementation of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA). BAPCPA affected many areas of the bankruptcy system, including rules, forms, fees, and court procedures. Individuals filing for bankruptcy faced a series of additional requirements imposed by BAPCPA, including the completion of credit counseling and means testing to determine eligibility to file for chapter 7. These new requirements, combined with the pro se litigant’s unfamiliarity with general court procedure, made it more challenging to negotiate a complicated system. Research found that, while non-pro se bankruptcy petitions increased 98 percent over the last five years, pro se bankruptcy petitions grew 187 percent over the same time frame. Pro se chapter 7 (debt liquidation) filings rose 208 percent, and pro 4
The Third Branch
October 2011
Ten Courts With the Most Pro Se Bankruptcy Filings District
Pro Se Filings
Total Filings
Percentage
C.D. Cal.
39,478
145,741
27.1
E.D. Cal.
8,877
53,888
16.5
Ariz.
8,625
41,377
20.8
N.D. Ga.
6,283
55,298
11.4
M.D. Fla.
6,223
59,199
10.5
N.D. Cal.
5,554
38,060
14.6
S.D. Fla.
5,451
40,810
13.4
Nev.
3,239
27,978
11.6
Md.
3,162
28,499
11.1
Colo.
3,052
32,056
9.5
se chapter 13 (debt restructuring) filings increased 189 percent. Pro se filings increased from 6 percent of chapter 7 and chapter 13 filings in 2007 to 8 percent of chapter 7 and 10 percent of chapter 13 filings in 2011. Chapter 7 and chapter 13 filings comprise the vast majority of overall bankruptcy filings.
…while non-pro se bankruptcy petitions increased 98 percent over the last five years, pro se bankruptcy petitions grew 187 percent over the same time frame.
In addition, analysis found that the number of pro se petitions did not occur uniformly throughout the court system. The table above reports the ten courts with the most pro se bankruptcy filings in the 12 months ending June 30, 2011. The Central District of California led the nation in bankruptcy filings (145,741),
pro se filings (39,478), and percentage of petitions that were filed pro se (27.1 percent). The large number of pro se filings in these bankruptcy courts should not, by itself, be too surprising, as most of these courts would be considered to be among the most active courts in terms of overall filings. However, the relationship between the size of the court and the number of pro se filings is not a perfect one. For example, the Northern District of Illinois had the second most filings in 2011 (with 63,440 filings), but it ranked 39th for pro se filings (as a percentage of filings). Similarly, the Eastern District of Michigan ranked sixth for most filings overall, but ranked 33rd in terms of proportion of filings that are pro se. Pro se filings in the bankruptcy courts also appear to differ in distinct geographic regions. Districts in the south, a region that has a historically high chapter 13 filing rate, generally have a lower pro se rate than the rest of the country, but districts where the foreclosure crisis has been particularly acute (the Northern District of Georgia, the Middle District of Florida, the Southern District of Florida, the Central District of California, the Eastern District
of California, the District of Arizona, and the District of Nevada) tend to have higher pro se rates than other districts. A district or bankruptcy court may waive the filing fee for qualified debtors who file for chapter 7 relief, and research found that waivers were more likely to be given for pro se petitioners than for bankruptcy filers with counsel. During the 12-month period ending June 30, 2011, 17,412 pro se chapter 7 petitioners had their filing fees waived by the district or bankruptcy court while fees were waived for 11,745 non-pro se filers. Proportionately, more cases in the smaller pro se pool had their fees waived than cases in the counseled pool. A bankruptcy petitioner also may request to pay the filing fee in installments, but research showed that a fully paid filing fee was less likely among pro se bankruptcy petitioners than represented petitioners. The option to pay in installments applies to “an individual commencing a voluntary case or a joint case under title 11,” so this option is not limited to chapter 7 petitions
Percent of Bankruptcy Cases Filed Pro Se Twelve Months Ending June 30, 2011
Percent of Cases Filed Pro Se 2.0 or Less 2.1 to 4.0 4.1 to 8.0 8.1 or More
like the fee waiver. The fee must be paid in no more than four installments, and some courts do not require an initial installment payment upon filing. Of the bankruptcy petitions closed during the 12-month period ending June 30, 2011, the fees in 31 percent of all pro se cases were not paid in full. In comparison, fees in only 2 percent
of the non-pro se bankruptcy cases closed were unpaid. Filing fees supply a significant amount of revenue to the courts, so a decline in bankruptcy fees collected will affect the resources available to the Judiciary at a time when they are needed to address an increase in workload.
Mobile PACER Case Locator Launched
T
he most widely used feature of the federal Judiciary’s Public Access to Court Electronic Records (PACER) service has gone mobile. A version of the PACER Case Locator, a national index for all federal appellate, district, and bankruptcy courts was launched for mobile devices in September 2011. Users with supported mobile devices such as iPads, iPhones, and Android devices version 2.2 and higher will be redirected automatically to the Mobile PACER Case Locator when they visit www. pcl.uscourts.gov to search for court records. The mobile web version also can
be accessed directly by visiting www.pcl. uscourts.gov/searchmobile. PACER accounts allow users to obtain case and docket information from federal courts without having to visit a courthouse. The Case Locator can tell users who have partial information—a party’s name, a company name, or perhaps a case number—where in the federal court system that litigation may exist. “The world is constantly becoming more mobile, and the Mobile PACER Case Locator is an important development in our efforts to enhance public accessibility to federal court records,” said Michel Ishakian, chief of the Administrative Office’s Public Access and
Records Management Division. “This should be a great benefit to attorneys and others who may need information in a hurry.” For users who want more information about a case, the mobile application will link them to the relevant court’s Case Management/Electronic Case Files system. All the search options available on the PACER Case Locator are replicated on the mobile version, in an easily scrollable format. Ishakian reports that the early feedback has been very positive. “Users have told us the mobile version offers very readable displays,” she said.
The Third Branch
October 2011
5
Going Back to Basics Improves Juror Utilization
A
year after the Judicial Conference Committee on Court Administration and Case Management (CACM) looked at juror utilization and took steps to improve the utilization rates, federal trial courts are doing a better job using citizens who are summoned for jury duty. The national average of jurors not selected, serving or challenged (NSSC) on the first day of jury service has dropped to 37.9 percent from a high of 40.1 percent in 2009. “Jury service is a civic duty and juror participation is key to the functioning of the courts. We appreciate the dedication of our jurors who serve,” said Judge Julie Robinson (D. Kan), CACM Committee chair. “We also want to spare citizens the inconvenience of appearing for jury duty, without truly participating in the process.”
Juror Support The federal courts are improving the overall experience for jurors: Online response
With the web-based E-Juror, jurors can complete qualification questionnaires and summons information forms, complete pre-screening questionnaires, query status and reporting information, request excuses and deferments, and complete exit surveys online. Sixty courts now use the program and the courts report a steady increase in the percentage of jury participants who elect to use the self-service system rather than mail in forms or call the court. Counseling
Listening to testimony or viewing evidence in some violent or emotionally difficult cases can be troubling for jurors. Courts may provide counseling services to grand and petit jurors through the Employee Assistance Program (EAP) as long as the jurors are serving. The judge may enter an order near the end of the trial extending the jurors’ term of service “for administrative purposes” for a long enough period to allow individual jurors to obtain counseling.
Petit Juror Usage on the First Day of Jury Service
“Jury service is a civic duty and juror participation is key to the functioning of the courts.”
12-month Periods Ended June 30, 2008–2011 2008
108,745
185,390
2009
113,005
172,493
2010
104,813
161,509
2011
97,498
159,644
—Judge Julie Robinson (D. Kan.)
In the 12-month period ending June 30, 2011, 159,644 jurors were selected to decide cases. Fourteen districts improved their percentages by 10 points or more. A total of 28 districts achieved the Conference-approved utilization goal of 30 percent or less for jurors reporting for jury service but not selected, serving or challenged. The decline over the last year in the percentage of jurors called or serving translates to a savings to the Judiciary of over half a million dollars. Until 1999, the average percentage of NSSC fluctuated between 33 and 35 percent. However, after 1999 the percentage trended above 35 percent and by 2009, had hit 40 percent. Rather than a sign of systemic jury management problems, the increase was seen mainly 6
The Third Branch
October 2011
Total Jurors Not Selected, Serving or Challenged on First Day Total Jurors Selected on First Day
in a few large courts, with factors such as high-profile or notorious trials and other matters beyond a court’s control. Still, the CACM Committee encouraged all courts to look at the number of jurors they called for selection. At its June 2010 meeting, the Committee took steps to improve juror utilization. “We decided we needed to go back to the basics,” said Robinson. “We began
by reviewing with each district their jurorusage rates over the last 10 years, and comparing those numbers to the national trend. We encouraged all courts, particularly those with high percentages of jurors NSSC, to look carefully at the number of jurors they call for selection. We also asked courts to consider establishing a standard reasonable size range for jury panels in routine civil and criminal cases.”
Courts were made aware of “best practices” that courts have used to improve juror utilization, including consolidating or “bunching” trials so they are scheduled to start only on specified days of the week, “pooling” or sharing a group of prospective jurors among several judges, and staggering trial starts throughout the jury selection day. Limiting the number of individuals called on any given day in notorious trials to those who can be voir dired, either individually or as a group, helps maximize juror utilization. Tips and best practices such as these were compiled for court use.
Limiting the number of individuals called on any given day in notorious trials to those who can be voir dired, either individually or as a group, helps maximize juror utilization. “We also asked the Federal Judicial Center to consider resuming its juror utilization and management workshops,” said Robinson. The workshops had been a fixture throughout the 1980s and ’90s, but had been discontinued. In March 2011, the FJC held a Juror Utilization and Jury Management Workshop for the larger courts that looked at the entire juror experience from before jurors are called, through service at the courthouse, and after. A year after CACM undertook its initiative, juror utilization rates are improving. “As the courts continue to review their jury selection practices and identify measures to make better use of jurors, we can improve juror utilization rates, reduce the costs to the court, and ease burdens on jurors and jurors’ employees,” said Robinson.
New Director of AO Appointed continued from page 1
nation’s most distinguished judges. Judge Hogan will bring extraordinary experience and insight to the position by virtue of his prior service to the Judiciary. In addition to his tenure as chief judge of a district court that hears many issues of national importance, he has served as a member of the Judicial Conference, chair of its Executive Committee, chair of the Conference’s Courtroom Technology Subcommittee, and a board member of the Federal Judicial Center. I look forward to working closely with Tom on the many critical issues facing the Judiciary.” Hogan has nearly 30 years of federal judicial service. He was appointed to the U.S. District Court for the District of Columbia in 1982, and he served as chief judge of that court from 2001 until 2008, when he assumed senior status. He chaired the Executive Committee from 2005 to 2008. Chief Judge David B. Sentelle (D.C. Cir.), chair of the Judicial Conference Executive Committee, noted that his committee “enthusiastically endorsed” Hogan’s selection as AO Director. “He has
Judge Thomas F. Hogan (D. D.C.)
a long history of exemplary service to the Judiciary and the U.S. Judicial Conference,” Sentelle said. “We are most fortunate that he has agreed to continue that service in this new role.” James C. Duff, Hogan’s predecessor, agreed. “Judge Hogan is a perfect choice by Chief Justice Roberts to be Director of the Administrative Office of the United States Courts. He is and has been a leader in the Judiciary for many years. He is well-respected throughout all three branches of government and throughout the country. He’s also a dear friend and I couldn’t be more pleased for both the Chief Justice and the Judiciary.”
Supreme Court Fellowships Begin The 2011-2012 Supreme Court Fellows have begun their year-long work with the federal Judiciary. ■ Michael F. Duggan, an assistant in the Department of Collections Management at the U.S. Supreme Court Library and an adjunct professor at Georgetown University, will work at the Supreme Court of the United States. ■ Julie Yap, a career judicial law clerk from the chambers of Judge Frank C. Damrell, Jr. (E.D. Calif.) will be at the Administrative Office, in the Office of Judges Programs. ■ Milena Sanchez de Boado, a consultant at the World Bank, will spend her fellowship year in the International Division of the Federal Judicial Center. ■ Todd Haugh, an instructor of legal analysis, research, and communication from DePaul University College of Law, will conduct legal research at the U.S. Sentencing Commission. The Supreme Court Fellows Program was created in 1973 by Chief Justice Warren E. Burger to provide promising individuals with a first-hand understanding of the judicial branch. Fellows are selected by a commission whose members are named by the Chief Justice. The Third Branch
October 2011
7
October Judicial Milestones Appointed: U.S. District Judge Bernice Bouie Donald, as U.S. Court of Appeals
Judge, U.S. Court of Appeals for the Sixth Circuit, September 8.
a U.S. Magistrate Judge, U.S. District Court for the District of Puerto Rico, September 12.
Appointed: Paul A. Engelmayer, as U.S.
Appointed: William G. Cobb, as a U.S.
District Court Judge, U.S. District Court for the Southern District of New York, September 26.
Magistrate Judge, U.S. District Court for the District of Nevada, September 3.
Appointed: J. Paul Oetken, as U.S.
District Court Judge, U.S. District Court for the Southern District of New York, September 19. Appointed: Richard Brooke Jackson,
as as U.S. District Court Judge, U.S. District Court for the District of Colorado, September 16. Appointed: Jessica E. Price Smith, as a
U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Northern District of Ohio, August 22. Appointed: Brian F. Kenney, as a U.S.
Visit our Internet site at www.uscourts.gov
Court for the Southern District of New York, September 11.
DIRECTOR Judge Thomas F. Hogan
Senior Status: U.S. District Judge Michael R. Hogan, U.S. District Court
for the District of Oregon, September 24. Retired: Senior U.S. District Judge Frederic N. Smalkin, U.S. District
Court for the District of Maryland, September 1. Retired: U.S. Bankruptcy Judge Jerry A. Brown, U.S. Bankruptcy Court for the
Eastern District of Louisiana, August 31.
Appointed: Edward A. Godoy, as a U.S.
Court for the Eastern District of Virginia, August 31.
Appointed: Shon Kaelberer Hastings,
Retired: U.S. Bankruptcy Judge Stephen S. Mitchell, U.S. Bankruptcy
CONTRIBUTOR Dick Carelli, AO
Please direct all inquiries and address changes to The Third Branch at the above address or to Karen_Redmond@ao.uscourts.gov.
JUDICIAL BOXSCORE
Courts of Appeals Vacancies ..................................18 Nominees.................................12
the District of Nevada, September 2.
a U.S. Magistrate Judge, U.S. District Court for the District of New Jersey, August 12.
Retired: U.S. Magistrate Judge Sandra M. Snyder, U.S. District Court for
October 2011
PRODUCTION OmniStudio, Inc.
for the Western District of Kentucky, September 30.
Appointed: Michael A. Hammer, as
The Third Branch
MANAGING EDITOR Karen E. Redmond
As of October 1, 2011
Retired: U.S. Magistrate Judge Robert A. McQuaid, Jr., U.S. District Court for
Magistrate Judge, U.S. District Court for the Northern District of Ohio, August 20.
EDITOR-IN-CHIEF David A. Sellers
Retired: U.S. Bankruptcy Judge David T. Stosberg, U.S. Bankruptcy Court
as a U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the District of North Dakota, September 9.
Appointed: Kathleen B. Burke, as a U.S.
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
Senior Status: U.S. District Judge Richard M. Berman, U.S. District
Bankruptcy Judge, U.S. Bankruptcy Court for the Eastern District of Virginia, September 1. Bankruptcy Judge, U.S. Bankruptcy Court for the District of Puerto Rico, September 1.
8
Appointed: Silvia L. Carreno-Coll, as
the Eastern District of California, September 30. This month, Milestones exceeded the available space. Please visit the Third Branch online at www.uscourts.gov/ news/TheThirdBranch.aspx to read the complete Milestones for October.
District Courts Vacancies ..................................76 Nominees.................................44 Court of International Trade Vacancies .................................... 1 Nominees................................... 0 Courts with “Judicial Emergencies” .........36 Up-to-date information on judicial vacancies is available at http://www.uscourts.gov/ JudgesAndJudgeships/JudicialVacancies.aspx
Judicial Conference Committee Chairs Named
E
ight new chairs of Judicial Conference committees were appointed as of October 1, 2011 by Chief Justice John Roberts Jr. The Chief Justice also extended the terms of three current committee chairs. ■ Judge John M. Rogers (6th Cir.) succeeds Judge M. Margaret McKeown (9th Cir.) as chair of the Committee on Codes of Conduct. ■ Judge Richard W. Story (N.D. Ga.) succeeds Judge Janet C. Hall (D. Conn.) as chair of the Committee on FederalState Jurisdiction. ■ Judge Joseph H. McKinley, Jr. (W.D. Ky.) succeeds Judge Bobby R. Baldock (10th Cir.) as chair of the Committee on Financial Disclosure. ■ Judge Timothy M. Tymkovich (10th Cir.) succeeds Judge George Z. Singal (D. Me.) as chair of the Committee on Judicial Resources. ■ Judge Nancy F. Atlas (S.D. Tex.) succeeds Judge Michael S. Kanne (7th Cir.) as chair of the Committee on Judicial Security. ■ Judge Mark R. Kravitz (D. Conn.) succeeds Judge Lee H. Rosenthal (S.D. Tex.) as chair of the Committee on Rules of Practice and Procedure. ■ Judge David G. Campbell (D. Ariz.) succeeds Judge Mark R. Kravitz as chair of the Advisory Committee on Civil Rules. ■ Judge Reena Raggi (2nd Cir.) succeeds Judge Richard C. Tallman (9th Cir.) as chair of the Advisory Committee on Criminal Rules. The terms of three current committee chairs were extended. Judge Claire V. Eagan (N.D. Okla.) will serve an additional year as chair of the Committee on Defender Services. Judge Rosemary M. Collyer (D. D.C.) will serve another year as chair of the Committee on Information Technology. Judge J. Frederick Motz (D. Md.) will serve three
more years as chair of the Committee on Intercircuit Assignments. Committee chairs, with the exception of the Executive, Judicial Branch, and Budget Committees, usually serve for a term of three years. Six years of cumulative committee service, including
past committee assignments, generally is considered the maximum a member may serve. For more on the Judicial Conference of the United States, visit www.uscourts.gov/FederalCourts/ JudicialConference.aspx on the Judiciary’s website.
Judge John M. Rogers (6th Cir.)
Judge Nancy F. Atlas (S.D. Tex.)
Judge Richard W. Story (N.D. Ga.)
Judge Mark R. Kravitz (D. Conn.)
Judge Joseph H. McKinley, Jr. (W.D. Ky.)
Judge David G. Campbell (D. Ariz.)
Judge Timothy M. Tymkovich (10th Cir.)
Judge Reena Raggi (2nd Cir.)
The Third Branch
October 2011
9
INT T ER RVIEW court staff. This is best illustrated by what is happening in FY 2012. A best-case appropriations scenario for the Judiciary for FY 2012 may be a freeze at the FY 2011 enacted level. The outlook for FY 2013 and beyond is not much better. We asked all participants to consider an array of long- and short-term cost-containment ideas generated through court unit executives, as well as by the Judiciary’s system of advisory groups and councils. The goal of this summit was to identify long-range cost-containment initiatives that would help to mitigate funding cuts to the courts and avoid the further loss of staff. Sentelle: The Executive Committee participated in the summit to demonstrate our total commitment to this costcontainment initiative. It is absolutely critical that all aspects of Judiciary expenses be examined and, where it is possible and practical, be reduced. We are not just the Third Branch of government, we are also citizens and taxpayers. As stewards of the funds provided us by Congress, we must do our part to help fix this country’s fiscal problems, but do so in a way that does not impact the delivery of justice.
“The Executive Committee participated in the summit to demonstrate our total commitment to this costcontainment initiative.” —Chief Judge David B. Sentelle
Q: Judge Gibbons, you mention long-term cost containment as a way to mitigate budget problems in FY 2013 and beyond, but what about our more immediate needs for FY 2012? 10
The Third Branch
October 2011
continue ed from pag ge 1
Judge Julia Gibbons
Chief Judge David B. Sentelle
Gibbons: Unfortunately, FY 2012 will begin with uncertainty. The Judiciary will operate for a few months under a continuing resolution while Congress hopefully completes action on our appropriations bill. Although we are doing everything possible to convince Congress to provide us with adequate funding, the outlook is not promising. As I said earlier, the best we can likely expect from Congress is a hard freeze in appropriations. Sentelle: Even at a freeze in appropriations, the courts would still face the loss of hundreds of on-board staff. To help mitigate the impact of these budget reductions on the courts, at its August meeting the Executive Committee approved $76 million in “quick hits” to be used in the interim FY 2012 financial plan to help bridge the gap between available appropriations and requirements. Without these quick hits, the across-the-board reductions to court allotments would have been several percentage points higher resulting in the loss of more on-board court staff. But this is just a start.
Gibbons: There is a great urgency because, overall, our FY 2012 House bill funds the Judiciary 2.1 percent, or $143 million, below the FY 2011 enacted level. The Salaries and Expenses account, which funds court operations, is funded at 4.3 percent ($213 million) below FY 2011. I stress that the House is not reducing our funding because they think we do not need the money. We continue to be a priority, as evidenced by the fact that the overall FY 2012 funding allocation for our appropriations subcommittee was 9.4 percent below the FY 2011 level and yet they only reduced the whole Judiciary by 2.1 percent. If the House level were ultimately enacted into law, the courts would face the possible loss of thousands of on-board staff through a combination of attrition, furloughs, and forced reductions in staff. The Senate bill is $169 million higher overall for the Judiciary, and $180 million higher for the court’s Salaries and Expenses account. This is a much better funding level for the courts than the House bill, but is still 0.7 percent below the FY 2011 funding level, and still is not sufficient to fund fully all on-board court support staff.
Q: Cost-containment is always key, but is there an added urgency this year?
While we do not expect the House level to be enacted, we also know that Congress is in a budget-cutting mode. We fully expect the Judiciary to feel a significant impact in FY 2012 and in the foreseeable future.
Q: What was on the table at the summit? Sentelle: Nearly every aspect of court administration—staffing, technology, facilities, chambers, and even judges— was examined for ways in which to cut or contain future costs. We started with a list of areas where cost savings might be realized immediately. The Conference committees looked at their specific areas of jurisdiction and the discussion cut across committee jurisdictions. For example, changes to the current work measurement formulas used to adjust court staffing were discussed by the Judicial Resources Committee, with input from the Budget, Court Administration and Case Management, and Executive Committees. Gibbons: And jointly, the committees agreed that the best way to contain staffing costs would be to accelerate the development of the next round of work measurement formulas that will incorporate best practices, shared services, benchmarks, and efficiency incentives. But that’s just one example of the crosscommittee thinking that occurred during the summit.
Q: Is this the first time the Judiciary has instituted this level of cost-containment? Sentelle: While the scope of our budget summit was unprecedented—we’ve never gathered as many chairs and committee members in one room to discuss initiatives—this is not the first costcontainment push by the federal Judiciary. In 2004, one of my predecessors as
Executive Committee chair, Chief Judge Carolyn Dineen King (5th Cir.), was given the responsibility by Chief Justice William H. Rehnquist to identify the factors that were driving costs and what could be done to control them or cut them. At the time, the Judiciary’s FY 2004 final appropriations were insufficient to support on-board court staff. Reductions were made in personnel nationwide, and it was obvious that policy and operational changes would be needed for the Judiciary to maintain staffing and live within its budget in the future.
“While we are doing everything possible to convince Congress to provide us with adequate funding, the outlook is not promising…” —Judge Julia Gibbons
Gibbons: Thanks to the costcontainment initiatives instituted then, the Judiciary could be cautiously optimistic about its future. But prior to the cost-containment program, it was a much different story. Then, as now, all of government faced a stringent budget environment. For the Judiciary, funding increases had shrunk below the level needed to continue the courts’ business. Meanwhile, our costs were rising for rent and personnel, even as we experienced a record number of criminal defendants, appeals, civil, bankruptcy, and probation and pretrial services cases.
Q: Can you give some examples of the cost-containment measures that will be implemented now? Gibbons: In addition to the updates in work measurement formulas, we agreed to pursue several other cost-containment
initiatives. We are very interested in encouraging and increasing the use of shared services and in exploring how national contracts can reduce costs. We hope to eliminate rental costs for unused and underused space and to relocate probation and pretrial services offices from leased space to courthouses, where feasible. We urged every circuit to adopt a written policy for providing staff to senior judges and also urged affected committees to examine staffing standards for recalled judges. And we have several ideas for reducing defender and panel attorney costs. That is a sampling of topics under discussion. Sentelle: Cost-containment isn’t just contraction. For example, we will be encouraging courts to expand the use of telephone interpreting program for certain proceedings. Last fiscal year, telephone interpreting saved the Judiciary over $1.1 million by reducing the need for interpreters to travel. We also support the identification of low-risk compliant offenders for early termination of probation, to allow probation officers to focus their attention on higher risk offenders.
Q: What was the outcome of the meeting? Did the Judiciary get the results it needed? Gibbons: The discussion certainly headed us in the right direction. We asked for—and got—many new, creative ideas on how to fulfill our mission in a less costly manner. It isn’t necessarily what we want to do; but what we have to do to mitigate the impact of budget cuts on court operation. Sentelle: It set a good point from which to begin contingency planning efforts. We have a commitment from the program committee chairs to discuss and reach agreement on whether to pursue each of these initiatives. Continued on page 12 The Third Branch
October 2011
11
FIRST CLASS MAIL POSTAGE & FEES
PAID
Administrative Office of the U.S. Courts Office of Public Affairs One Columbus Circle, N.E. Washington, D.C. 20544
U.S. COURTS
PERMIT NO. G-18
FIRST CLASS OFFICIAL BUSINESS PENALTY FOR PRIVATE USE $300
INT T ERV V IEW W
“We have a limited opportunity to exert some control over our future and to avoid a potential extensive loss of on-board staff in the courts.” —Judge Julia Gibbons
Q: What is the next step? Sentelle: Not all measures can be implemented immediately, and in some instances the changes will be gradual. Some of the long-term measures will take effect over several fiscal years. Some costcontainment measures agreed upon at the summit meeting must be considered through the normal decision-making channels of the committees and the Judicial Conference. Program committees
continue ed from m pag ge 11
will be discussing these initiatives at their upcoming meetings. Gibbons: We hope that those initiatives that are agreed to by the committees and the Conference can be incorporated into the FY 2013 financial plan and FY 2014 budget request. We also hope to use the results of this summit to fashion a new cost-containment strategy for the Judicial Conference to consider at its March 2012 session. Whatever our strategy, we need to keep in mind that we have a limited opportunity to exert some control over our future and to avoid a potential extensive loss of on-board staff in the courts.
Q: Do you have any closing remarks on the budget situation or cost containment? Gibbons: I want to assure you that
the Budget Committee, the AO, and our key judge contacts will make every possible effort to obtain the maximum level of resources from Congress. But that is out of our control and will be an uphill battle. We can, however, control many of our expenses, which is why cost containment is so important to the entire Judiciary. Sentelle: As judges, we need to demonstrate leadership on this issue. We need to be supportive of our colleagues and our staff as they implement programs that save money. And we need to challenge each other when tough decisions need to be made. We do not expect this round of cost containment to be easy. Hard choices will need to be made about difficult issues. Unfortunately, the status quo is no longer an option for us.