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Federal Document Clearing House Congressional Testimony
June 16, 1999
SECTION: CAPITOL HILL HEARING TESTIMONY
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TESTIMONY June 16, 1999 HARVEY SCHLESINGER JUDGE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA HOUSE JUDICIARY COURTS AND
INTELLECTUAL PROPERTY FEDERAL COURT IMPROVEMENT MULTIDISTRICT JURISDICTION
BODY:
SUMMARY Judge Harvey Schlesinger Chairman
Committee on Magistrate Judges Mr. Chairman and members of the Subcommittee, I
am Harvey Schlesinger, Judge of the United States District Court for the Middle
District of Florida, and Chair of the Judicial Conference Committee on
Magistrate Judges. I am pleased to be here this afternoon to testify on behalf
of the Judicial Conference of the United States on H.R. 1752, the "Federal
Courts Improvement Act of 1999." On behalf of the Judicial Conference, I want to
thank you, Mr. Chairman, for introducing H.R. 1752, and for scheduling this
hearing today. H.R. 1752 contains forty-two separate provisions and touches upon
a wide range of issues including federal court jurisdiction, the authority of
judicial officers and Judicial Branch personnel and administrative programs. Of
the forty-two provisions in this bill, twenty-nine passed the House last
Congress in the form of H.R. 2294. I would like to express the sincere
appreciation of the Judicial Conference for your continued interest in the
legislative needs of the federal court system. This bill reflects the ongoing
commitment of the Judicial Conference, and the 23 committees of judges which
support the Judicial Conference, to improve the effectiveness and efficiency of
the federal judiciary. With your permission, Mr. Chairman, I have included as
Appendix A to this statement, an additional recommendation of the Board of the
Federal Judicial Center (FJC). This proposal would eliminate the mandatory
retirement age for the Director of the Federal Judicial Center. The present law
requires a Director of the FJC to step down at age 70. I would hope that you can
add the provision to the bill when it is considered in mark up. I would also
like to take this opportunity to comment upon H.R. 1281, a bill pending before
this Subcommittee that would allow photographing, electronic recording, or
televising court proceedings at the discretion of the respective appellate or
district court. With regard to such media coverage of district court
proceedings, the Judicial Conference in September 1994, after experimenting with
and studying the effects of the presence of cameras during federal civil
proceedings, determined that the potentially intimidating effect of cameras on
some witnesses and jurors was cause for considerable concern. Because the
paramount responsibility of a United States Judge is to guarantee citizens a
right to a fair and impartial trial, the Conference concluded that it was not in
the interests of justice to permit cameras in federal district courtrooms. With
regard to appellate proceedings, in March 1996 the Judicial Conference adopted a
policy that allows each federal court of appeals to determine whether or not to
permit such media coverage. Currently, two of the thirteen appellate courts
permit such coverage of their proceedings. This afternoon I will focus my
remarks on two sections of the bill: Section 305, and Section 405. Both of these
provisions were contained in H.R. 2294 when it passed the House in the last
Congress. STATEMENT ON BEHALF OF THE JUDICIAL CONFERENCE OF THE UNITED STATES ON
THE FEDERAL COURTS IMPROVEMENT ACT (H.R. 1752) INTRODUCTION Mr. Chairman and
members of the Subcommittee, I am Harvey Schlesinger, Judge of the United States
District Court for the Middle District of Florida, and Chair of the Judicial
Conference Committee on Magistrate Judges. I am pleased to be here this
afternoon to testify on behalf of the Judicial Conference of the United States
on H.R. 1752, the "Federal Courts Improvement Act of 1999." On behalf of the
Judicial Conference, I want to thank you, Mr. Chairman, for introducing H.R.
1752, and for scheduling this hearing today. H.R. 1752 contains forty-two
separate provisions and touches upon a wide range of issues including federal
court jurisdiction, the authority of judicial officers and Judicial Branch
personnel and administrative programs. Of the forty-two provisions in this bill,
twenty-nine passed the House last Congress in the form of H.R. 2294. I would
like to express the sincere appreciation of the Judicial Conference for your
continued interest in the legislative needs of the federal court system. This
bill reflects the ongoing commitment of the Judicial Conference, and the 23
committees of judges which support the Judicial Conference, to improve the
effectiveness and efficiency of the federal judiciary. With your permission, Mr.
Chairman, I have included as Appendix A to this statement, an additional
recommendation of the Board of the Federal Judicial Center (FJC). This proposal
would eliminate the mandatory retirement age for the Director of the Federal
Judicial Center. The present law requires a Director of the FJC to step down at
age 70. I would hope that you can add the provision to the bill when it is
considered in mark up. I would also like to take this opportunity to comment
upon H.R. 1281, a bill pending before this Subcommittee that would allow
photographing, electronic recording, or televising court proceedings at the
discretion of the respective appellate or district court. With regard to such
media coverage of district court proceedings, the Judicial Conference in
September 1994, after experimenting with and studying the effects of the
presence of cameras during federal civil proceedings, determined that the
potentially intimidating effect of cameras on some witnesses and jurors was
cause for considerable concern. Because the paramount responsibility of a United
States Judge is to guarantee citizens a right to a fair and impartial trial, the
Conference concluded that it was not in the interests of justice to permit
cameras in federal district courtrooms. With regard to appellate proceedings, in
March 1996 the Judicial Conference adopted a policy that allows each federal
court of appeals to determine whether or not to permit such media coverage.
Currently, two of the thirteen appellate courts permit such coverage of their
proceedings. This afternoon I will focus my remarks on two sections of the bill:
Section 305, and Section 405. Both of these provisions were contained in H.R.
2294 when it passed the House in the last Congress. Magistrate Judge Contempt
Authority (Sec. 305) Section 305 of the bill would expand the contempt authority
of magistrate judges. As Chair of the Committee on the Administration of the
Magistrate Judges System, I have a particularly strong interest in this issue.
Presently, the lack of adequate contempt authority by magistrate judges
undermines both the magistrate judge's and the court's authority when confronted
with misconduct or failure to obey court orders. This section of the bill would
provide magistrate judges with summary criminal contempt authority to punish any
misbehavior occurring in their presence. Summary criminal contempt authority is
necessary to maintain order and to protect the court's dignity in response to
contumacious behavior by witnesses, parties, counsel, and others present at
court proceedings. The need for power to immediately vindicate the court's
authority in the face of disruptive behavior exists whenever a magistrate judge
presides for the district court regardless of litigant consent. Felony initial
appearances under Fed. R. Crim. P. 5, detention hearings under the Bail Reform
Act, 18 U.S.C.3142, and evidentiary proceedings in case-dispositive matters
under 28 U.S.C. 636(b)(1)(B) are typical examples where magistrate judges
preside routinely on behalf of the district court without the litigants'
consent. The bill would also provide magistrate judges with additional criminal
and civil contempt authority in civil consent cases under 28 U.S.C. 636(c) and
in misdemeanor cases under 18 U.S.C. 3401. Since magistrate judges serve as the
final dispositional judicial officer for the district court in these cases, this
authority is necessary to enable magistrate judges to enforce compliance with
the court's orders. Such authority does not constitute a significant expansion
of magistrate judge authority, but provides them with a tool needed to perform
effectively their existing statutory duties for the district court. The bill
would also establish limits on the penalties magistrate judges may impose for
criminal contempts. Imprisonment for a summary contempt committed in the
presence of the magistrate judge, or for a criminal contempt occurring in a
civil consent or misdemeanor case outside the magistrate judge's presence, would
not exceed 30 days incarceration (the maximum term of imprisonment for a Class C
misdemeanor set forth in 18 U.S.C. 3581(b)(8), and a fine could not exceed
$5,000 (the maximum fine that may be imposed on an individual for a Class C
misdemeanor under 18 U.S.C. 3571(b)(6). The restricted contempt penalties are
intended to provide magistrate judges with an effective tool to impose order in
the courtroom that is distinguishable from the criminal contempt power of
Article III judges. Potential constitutional concerns about providing magistrate
judges with criminal contempt authority are resolved by placing appropriate
limits on the penalties magistrate judges may impose. Limitations on penalties
differentiate magistrate judge contempt authority from that of Article III
judges, who may impose theoretically unlimited terms of imprisonment or fines
upon entities who commit contumacious acts. 18 U.S.C. 401. By contrast, this
bill would impose limits on the penalties magistrate judges could order in
contempt situations. Judges' Firearms Training Program (Sec. 405) The Judicial
Conference strongly recommends the enactment of Section 405 which directly
relates to the personal safety of federal judicial officers. Threats against
judges, and judge's families, has risen significantly over the past ten years.
The security of judges, judiciary employees, and federal courthouses is a
priority matter. Section 405 would accomplish two highly desirable goals. First,
many federal judicial officers currently carry concealed firearms because of
safety concerns. They do so by obtaining licenses from state and/or local
authorities, as any citizen is entitled to do so. Currently, 41 States allow
licensees to carry concealed firearms. The enactment of Section 405 would mean
that judges who carry firearms would effectively be required to successfully
participate in a training and safety program. The Judiciary would rely on the
United States Marshal Service for expertise in establishing the firearms
training program. Failure on the part of judges to participate in the training
program would mean such judges who carry firearms would be acting in a manner
contrary to statute. The second problem relates to the fact that judges often
travel outside of their district or circuit on official, professional, or
personal business. When they cross State lines, the firearms license from their
home state loses its' effect. Because of this, judges in travel status often are
not able to be armed. Clearly, if a judge is in danger, the fact that he or she
is in one state or the other does not eliminate the danger. Therefore, the
enactment of Section 405 would provide that federal judges are, in most
circumstances, exempted from state and local firearms laws and regulations. This
same treatment is afforded to federal law enforcement agents and federal
probations officers who routinely carry concealed firearms and travel in
interstate commerce. The proposal contained in this Bill reflects the
cooperation and assistance of the Department of Justice which has worked with
key federal judges to arrive at a legislative solution. The balance of the bill
is discussed below. An asterisk follows each provision which was passed as part
of H.R. 2294 in the last Congress. Title I--FEDERAL COURTS STUDY COMMITTEE
RECOMMENDATIONS Section 101--Parties' Consent to Bankruptcy Judge's Findings and
Conclusions of Law Section 157(c)(1) of title 28 of the United States Code
provides that the district court may refer to a bankruptcy judge, for hearing
and final determination, certain "non-core"(1) related proceedings when all
parties to the proceeding consent to the referral. The present statute does not
specify whether the consent must be express or whether it may be implied. In the
interest of avoiding jurisdictional controversies, the judiciary has interpreted
the statute restrictively, and the Federal Rules of Bankruptcy Procedure require
express consent, as set out in Bankruptcy Rules 7008(a) and 7012(b). In the
absence of this consent, a bankruptcy judge is limited to filing proposed
findings of fact and conclusions of law, which must be presented to a district
judge for review and entry of a final order or judgment, even when all parties
agree to what the bankruptcy judge has proposed or when the defendant is in
default. Accordingly, the Federal Courts Study Committee in 1990 recommended
enactment of an implied consent mechanism, and this principle was endorsed by
the Judicial Conference in 1992. Section 101 of the bill provides that, unless
the party files a timely objection to the bankruptcy judge's proposed findings
of fact and conclusions of law, that party will be deemed to have consented to
them and they will become final. This proposal is intended to avoid unnecessary
delay and expense to the parties, and unnecessary use of judicial resources when
no issue of fact or law needs to be resolved. Title II--JUDICIAL FINANCIAL
ADMINISTRATION Section 201--Reimbursement of Judiciary for Civil and Criminal
Forfeiture Expenses * The courts must be given adequate resources to provide
qualified counsel to indigent defendants pursuant to the Criminal Justice Act
(CJA). In three of the past seven Fiscal Years, the CJA program has experienced
budget shortfalls that led to the suspension of payments to private "panel"
attorneys. Without sufficient funding to cover the basic elements of the
program, the CJA's mission is jeopardized. The use of asset forfeiture by the
Department of Justice adds to the financial burden on the courts by requiring
the judiciary to appoint counsel for otherwise financially secure defendants
without providing compensating resources for that responsibility. When the
Department of Justice seizes the assets of a defendant, that person is often
left without sufficient funds to cover the costs of retaining private counsel.
Consequently, the Defender Services appropriation must bear the costs of
representing the defendant against criminal charges. The courts are not
reimbursed. Representation and costs are in addition to the costs of hearings
conducted by the courts in processing forfeiture actions. Other entities of the
federal government, or state and local governments, are reimbursed for costs
related to seizures and forfeitures of assets based upon their participation in
these actions. The courts receive no similar reimbursement. It would be more
equitable if the expenses to the Defender Services appropriation, and those of
the judiciary generally, were offset by provisions for appropriate sharing of
the funds that accrue to the federal government through seized and forfeited
assets. At a minimum, the judiciary should be authorized to recover the direct
additional costs charged to the Defender Services appropriation when a
defendant's assets are seized and legal counsel is provided at government
expense. Section 201 of H.R. 2294 would authorize the reimbursement of the
judiciary from the Asset Forfeiture Fund for costs arising from the forfeiture
of assets of defendants. To avoid even the appearance of a conflict of interest
on the part of counsel compensated from the Defender Services appropriation, the
reimbursement of that appropriation would be limited to the extent to which the
courts are already authorized by subsection (f) of the CJA to order
reimbursement from a defendant for the costs of representation provided under
the Act. We estimate that reimbursement for the costs of defense representation
would be approximately $21.2 million annually. Section 202--Transfer of
Retirement Funds * Section 202 allows the judiciary's contributions, and accrued
interest, to the Civil Service Retirement and Disability Fund to be paid back to
the judiciary when bankruptcy and magistrate judges, for whom the contributions
were made, elect to transfer from the Civil Service Retirement System or the
Federal Employees' Retirement System to the judicial retirement system
established under the Retirement and Survivors' Annuities for Bankruptcy Judges
and Magistrates Act.(2) The contributions of bankruptcy and magistrate judges to
the Federal Employees' Retirement System and the Civil Service Retirement
Systems, as well as the Judiciary's contributions to those systems, are paid to
the Office of Personnel Management. When a judge separates from office or elects
to participate in the Judicial Retirement System, the judge may withdraw his or
her retirement contributions. The Judiciary's contributions are not refunded.
Currently, when a bankruptcy or magistrate judge elects to transfer to the
Judicial retirement system, that judge's contribution to the Civil Service
Retirement System is returned. However, the judiciary's contributions made on
behalf of the same judges are not returned to the judiciary. These contributions
should be returned because the judiciary, not the Civil Service Retirement and
Disability Fund, is responsible for paying the judges' retirement benefits if
they transfer into the judicial retirement system. It is estimated that the
judiciary has already contributed about $6 million to the Civil Service
Retirement and Disability Fund on behalf of judges who subsequently transferred
into the judicial retirement system. Section 203--Judiciary Information
Technology Fund * Section 203 of the bill would eliminate uncertainty created by
the passage of the Information Technology Management Reform Act of 1996 (ITMRA)
and repeal of the Brooks Automatic Data Processing Act. Under the ITMRA, the
Office of Management and Budget was charged with management policy and oversight
of information technology resources for the executive branch through the budget
and appropriations management process. The Judiciary Information Technology Fund
statute was amended to replace the requirement that procurements comply with the
Brooks Act with a requirement that the procurement of information technology be
conducted in compliance with "the provisions of law, policies, and regulations
applicable to executive agencies under the Information Technology Management
Reform Act." The potential reach of this language is so broad that it could be
read to apply to many statutes with varying implications, e.g. Administrative
Procedures Act, Contract Disputes Act, Small Business Act, to which the
judiciary is not subject, to a single activity of the judiciary, i.e.
procurement of information technology equipment under the Fund. Management and
reporting features equivalent to those instituted under ITMRA are already in
place for these resources in the judicial branch and the language added by ITMRA
should be deleted. This amendment would clarify that the judiciary's Fund is not
subject to laws that would not otherwise apply to the federal judiciary. Section
204--Bankruptcy Fees * In 1986, Congress passed Public Law No. 99-554, 100 Stat.
3088 (1986) which authorized the Judicial Conference to establish bankruptcy
administrator programs, in lieu of the U.S. Trustee program, in six judicial
districts in the states of Alabama and North Carolina. Currently, debtors in the
United States trustee and bankruptcy administrator districts pay the same fees
when filing for bankruptcy, but chapter 11 debtors in bankruptcy administrator
districts are not subject to the additional fees on quarterly disbursements that
are subsequently levied on chapter 11 debtors in United States trustee
districts. In St. Angelo v. Victoria Farms, Inc., 38 F.3d 1524 (9th Cir. 1994),
a regional United States trustee objected to the bankruptcy court's calculation
of the quarterly fees to be paid by the debtor under 28 U.S.C. 1930(a)(6). On
appeal, the debtor for the first time argued that the trustee's claim should be
denied because the quarterly fees do not apply uniformly in all judicial
districts. The debtor argued that the bifurcated system violates the Uniformity
Clause of the Constitution, which authorizes Congress to enact "uniform laws on
the subject of bankruptcies throughout the United States." The court agreed,
determining that the United States trustee system is more costly for debtors
than the bankruptcy administrator program and there is no legislative history
justifying the difference. As indicated above, this issue was first raised on
appeal. Jurisdiction over the bankruptcy administrator districts was also
lacking. At its March 1996 proceeding, the Judicial Conference determined that
implementing the establishment of chapter 11 quarterly fees in the bankruptcy
administrator districts would eliminate any Victoria Farms problem and by
providing that the judiciary could retain the fees much-needed revenues could be
used to offset the cost of operating the bankruptcy administrator program. If a
quarterly fee were implemented in the bankruptcy administrator districts through
which the judiciary could retain the fees, any surplus exceeding the costs of
the bankruptcy administrator program would be dedicated to the judiciary to
offset costs of the judicial system. Thus, the proposed language authorizes the
Judicial Conference to implement fees in the bankruptcy administrator program in
the judicial districts in the states of Alabama and North Carolina similar to
those currently imposed by 28 U.S.C. 1930(a)(6). In addition, the language also
provides that these new fees shall be deposited into a fund established under 28
U.S.C. 1931 for the operation and maintenance of the federal judiciary,
including the bankruptcy administrator program. Section 205--Disposition of
Miscellaneous Fees * This provision responds to a directive from congressional
appropriations committees that the Judiciary identify ways to increase
offsetting receipts. This provision would allow the judiciary to retain any
additional offsetting receipts derived from increases in miscellaneous fees
charged in the federal courts of appeals, district courts, bankruptcy courts,
the Court of Federal Claims, and the Judicial Panel on Multidistrict Litigation.
The miscellaneous fees schedules include fees for services such as record
searches, reproduction of records, and returned checks. Typically, the Judicial
Conference acts to raise such fees to reflect increases in inflation. The
additional amounts collected would be deposited into the special judiciary fund
in the Treasury and these receipts would be available to offset funds which are
appropriated by Congress for the operation and maintenance of the courts.
Section 206--Repeal of Statute Setting Court of Claims Filing Fee By repealing
section 2520 of title 28, United States Code, this provision would eliminate an
unnecessary statutory requirement which has been superceded by authorization of
the Judicial Conference for a miscellaneous fee schedule for the United States
Court of Federal Claims. Section 207--Renumbering of Bankruptcy Court Fee
Schedule * This section would continue the existing structure of the Bankruptcy
Court Fee Schedule by requiring that fees established prior to the enactment of
the legislation establishing the judiciary fund in 28 U.S.C. 1931, with the
exception of noticing fees, be deposited into the General Treasury. This
provision would retain the current structure and allow for the renumbering of
the Bankruptcy Fee Schedule that is required due to the repeal of outdated fees.
Section 208--Increase in Fee for Converting a Chapter 7 or Chapter 13 Bankruptcy
Case to a Chapter 11 Case. This provision would correct the inconsistency that
occurs when a petitioner files a case under chapter 7 for $175 or chapter 13 for
an initial fee of $160 and then converts the case to a chapter 11 case for a
conversion fee of $400. In those instances, the total amount paid ($575 and
$560, respectively) is less than the $800 fee for originally filing a case under
chapter 11. This section addresses that inconsistency by making the conversion
fee equal to the $800 fee for originally filing a case under chapter 11. Section
209--Increase in Chapter 9 Bankruptcy Filing Fee This provision would increase
the filing fee for filing bankruptcy petitions under chapter 9 (debt adjustment
for municipalities) from $300 to the fee for filing petitions under chapter 11
(reorganization), which is $800. This increase more accurately reflects the
judicial resources required to process chapter 9 cases. Section 210--Creation of
Certifying Officers in the Judicial Branch * This provision establishes
statutory authority for the judicial branch to create certifying officers
similar to those established in the executive branch under the Certification Act
of 1941 (31 U.S.C. 3528). That Act was enacted to create pecuniary liability for
those officers and employees in the executive agencies whose duty it is to
certify as to the propriety of a payment made through disbursing officials.
These certifying officials are assigned definite responsibilities for verifying
receipt of goods or services and ensuring funds are available. Certifying
officials are also held personally liable for the propriety of payments which
they certified. This provision will enhance financial accountability and improve
the utilization of administrative resources in the judicial branch. Section
211--Fee Authority for Technology Resources in the Courts * In accordance with
federal policy to defray the cost of providing services by assessing a fee for
their use, this section provides the judiciary with the authority to set,
collect, and retain fees for the use of electronic filing, videoconferencing and
electronic evidence presentation devices. These services will make courts more
efficient and accessible to the bar and the public. Title III--JUDICIAL PROCESS
IMPROVEMENTS Section 301--Removal of Cases Under the Employee Retirement Income
Security Act This section amends section 1445 of title 28, United States Code,
to limit the removal from state court to federal court of subsection
1132(a)(1)(B) claims under the Employee Retirement Income Security Act of 1974
(ERISA). (29 U.S.C. 1001-1461.) ERISA governs employee benefit plans and
provides exclusive federal jurisdiction over such areas as disclosure of plan
information, vesting and funding of plans, and the fiduciary role of plan
administrators. ERISA also allows participants and beneficiaries of employee
benefit (e.g., health insurance and severance pay) plans to bring actions
regarding the terms of these plans in either federal or state court under
1132(a)(1)(B) to: (1) recover benefits due; (2) enforce rights; or (3) clarify
rights to future benefits. These actions typically involve the application of a
benefit plan to a particular individual or individuals rather than present
global questions of federal law arising from ERISA's complex statutory scheme.
In enacting ERISA, Congress determined those principles of ERISA law that must
be decided by a federal court. However, by providing concurrent jurisdiction for
claims where persons are seeking to recover benefits or enforce or clarify
rights, Congress recognized that the state courts are an appropriate forum for
resolution of these cases. These claims involve principles of contract and trust
law--areas in which the state courts have substantial experience. Furthermore,
state courts must apply the federal standards established by ERISA and are
subject to appellate review by the Supreme Court. Under current law, a plaintiff
is allowed to choose for these claims a state or federal forum, whichever will
be more convenient and less costly. Section 301 would provide that once filed in
state court, the case would not be subject to removal solely on the basis of
section 1132(a)(1)(B). Removal, nonetheless, is possible if the suit includes
not only an 1132(a)(1)(B) claim, but another transactionally related claim
having a jurisdictional basis for a federal forum. Also, if the plaintiff and
defendant have diversity of citizenship and the threshold amount in controversy
is met, the defendant would have the right to pursue the case in federal court.
During the twelve-month period ending September 30, 1998, 9,609 ERISA cases were
filed in federal district court (119 with the United States as the plaintiff, 33
with the United States as the defendant, and 9,457 filed under federal question
jurisdiction (U.S. Government not a party)). Of the 9,609 ERISA cases filed in
the federal district courts last year, 2,307 were removed from state court.
Although it is unknown how many of these cases were removed based solely upon
subsection 1132(a)(1)(B), enactment of this amendment will certainly ease the
federal civil docket. Section 302--Elimination of In-State Plaintiff
Diversity Jurisdiction Section 302 would repeal in-state
plaintiff (ISP) diversity jurisdiction. In-state plaintiff
diversity jurisdiction allows a plaintiff to litigate in
federal court a civil claim based on state law, even though the plaintiff is a
citizen of the state whose court system the plaintiff seeks to avoid. There
appears to be no federal interest in providing a forum for enforcing rights
under state law when the plaintiff is a citizen of the state in which suit is
brought. Section 302 pertains only to one type of diversity
jurisdiction, namely ISP, and has a limited effect on the general scope
of diversity jurisdiction. In-state plaintiff diversity
jurisdiction was first created by Congress in 1789 as part of the
Judiciary Act's creation of the federal court system. At that time Congress
permitted federal diversity jurisdiction to be invoked by an
in-state plaintiff while forbidding removal to federal court by an in-state
defendant. The basis for such jurisdiction demonstrates that the original
justification for ISP diversity jurisdiction has entirely
disappeared. Congress had particular reasons in 1789 for treating in-state
defendants and in-state plaintiffs differently in their access to general
diversity jurisdiction. The original purpose of general
diversity jurisdiction was to provide a neutral federal forum
for resolution of interstate commercial controversies. The national problem of
impairment of credit provided ample justification for giving a creditor, who
would have been the plaintiff, the right to enforce a substantial debt in
federal court whenever diversity of citizenship existed. In 1789 there was a
genuine danger that state courts would disrupt the national economy and the rule
of law by systematically favoring two distinct classes of litigants: home-state
citizens and anyone resisting the payment of a debt. Because there was no reason
for Congress to fear state court prejudice against debtors, as opposed to
creditors, it was logical for the First Congress to grant the right to invoke
federal diversity jurisdiction by removal only to out-of-state
defendants and to provide in-state plaintiffs with the alternative forum of a
federal court. Whatever arguments may justify retaining general
diversity jurisdiction in light of modern conditions in state
and federal courts, the historical reasons for supplementing general
diversity jurisdiction with ISP diversity
jurisdiction have completely disappeared. It is difficult to argue
today that in- state plaintiffs require access to federal diversity
jurisdiction because state courts are systematically biased in favor of
defendants in the adjudication of state-law claims or that state courts are
systematically under enforcing state-created rights. Repeal of ISP
diversity jurisdiction is compatible with the arguments
advanced in favor of general diversity jurisdiction, including
the retention of the rights of removal by out-of-state defendants as a
protection against whatever local bias they may encounter when sued in state
court by in-state plaintiffs. In 1998, there were 51,992 diversity cases filed
in the federal courts. Of that number, 13,517 were ISP diversity cases, which
was 26 percent of all new diversity cases filed in 1998. Last year, this would
have been the maximum number of cases affected by the repeal of this one type of
jurisdiction. The decrease in filings, however, could be expected to be less
than this amount because two alternative routes will continue to exist for
filing such diversity cases in federal court. First, a diverse defendant sued in
state court by an in-state plaintiff retains the right to remove that case to
federal court. Second, a plaintiff who would be barred by the proposed repeal of
ISP diversity jurisdiction from filing a diversity case in his
or her home state retains the right, if the plaintiff so chooses, to file that
case in a federal court in any other state in which the defendant is subject to
personal jurisdiction. Under that scenario, the plaintiff would then proceed
under the substantive law of the state in which the case is filed. Thus, the
continued availability of these two alternative avenues for invoking federal
diversity jurisdiction make it difficult to assess accurately
the caseload impact of repealing ISP diversity jurisdiction.
However, weighing the above factors, it is estimated that enactment of section
302 would reduce the federal civil case filings by approximately 6,700 per
year--about half of the number of ISP cases now filed. Repeal of ISP
diversity jurisdiction, therefore, would assist the federal
courts in meeting the needs of contemporary plaintiffs who seek judicial
enforcement of the rights conferred on them by federal law and ensuring that
scarce judicial resources are used wisely. The historical justification for ISP
diversity jurisdiction simply no longer exists, and a fair
forum would continue to be available to in-state plaintiffs if such jurisdiction
were abolished. The amendment in this section is a conservative proposal and
would promote sound judicial administration. Section 303--Extension of Statutory
Authority for Magistrate Judge Positions to be Established in the District
Courts of Guam and the Northern Mariana Islands * The Federal Magistrates Act,
28 U.S.C. 631-639, as amended, does not apply to the district courts of Guam or
the Northern Mariana Islands. Under the Act, magistrate judge positions in other
federal district courts are established, adjusted, and eliminated by the
Judicial Conference of the United States in response to changing needs. The
proposed amendment would allow the Conference to establish magistrate judge
positions, if warranted, in Guam and the Northern Mariana Islands. Current
circumstances illustrate the importance of the proposed amendment. The Judicial
Conference determined in 1994 that the district court of Guam had developed a
need for the services of a part-time magistrate judge (compensated at $21,115
per annum under the applicable salary schedule). The district judge of that
court, working alone, must frequently interrupt his scheduled trials to perform
felony preliminary proceedings. The efficiency of the court would be enhanced if
a magistrate judge were available to perform these functions, which include
initial appearances, detention hearings, arraignments, and review of search and
arrest warrant applications. The proposed amendment includes the Northern
Mariana Islands to avoid the need for another statutory change when and if the
caseload of that jurisdiction develops to a level warranting the assistance of a
magistrate judge. Section 304--Bankruptcy Administrator Authority to Appoint
Trustees, Examiners, and Committee of Creditors This section provides statutory
authority for bankruptcy administrators in Alabama and North Carolina to appoint
bankruptcy case trustees, standing trustees, examiners, and committees of
creditors and equity security holders, as is done in the rest of the country by
United States trustees. Experience with the bankruptcy administrator program
established in the judicial districts in Alabama and North Carolina pursuant to
section 302(d)(3) of the Bankruptcy Judges, United States Trustees, and Family
Farmer Bankruptcy Act of 1986, has shown that it would be desirable to have
bankruptcy administrators make these appointments and fix standing trustees'
compensation and percentage fees. Acting pursuant to regulations adopted by the
Judicial Conference of the United States and guidelines promulgated by the
Director of the Administrative Office of the United States Courts, bankruptcy
administrators currently make recommendations to the court on these matters.
Authorizing bankruptcy administrators to make these appointments and fix
standing trustees' compensation and percentage fees directly would further one
of the central goals of the Bankruptcy Reform Act of 1978, Public Law No.
95-598, freeing bankruptcy judges from an administrative role in their cases.
Although the 1986 Act authorized United States trustees to perform these
functions, it did not specifically authorize bankruptcy administrators to do so
even though the two officials have similar roles in overseeing the
administration of estates and supervising trustees and other fiduciaries in
bankruptcy cases. This amendment would give bankruptcy administrators authority
that is comparable to that of trustees. Section 306--Consent to Magistrate Judge
Authority in Petty Offense Cases and Magistrate Judge Authority in Misdemeanor
Cases Involving Juvenile Defendants * Under 28 U.S.C. 636(a) and 18 U.S.C.
3401(b) and (g), United States magistrate judges may try petty offense cases
that are Class B misdemeanors charging a motor vehicle offense, Class C
misdemeanors, and infractions, without the consent of the defendant. Prior to
the enactment of the Federal Courts Improvement Act of 1996 (Public Law No.
104-317, 110 Stat. 3847 (October 19, 1996)), magistrate judges were not able to
try any misdemeanor or petty offense case unless the defendant consented to be
tried before the magistrate judge and specifically waived the right to be tried
by a district judge. The Federal Courts Improvement Act of 1996 eliminated this
requirement in Class B misdemeanors charging a motor vehicle offense, Class C
misdemeanors, and infractions. This new section removes the consent requirement
in all other petty offense cases. A large number of the petty offense cases
heard by magistrate judges are not exempt from the current consent requirement.
These cases include hunting and fishing violations on wildlife refuges (18
U.S.C. 41) and any trespass, assault, or theft which occurs under regulations
governing conduct on property controlled by the Department of Veterans Affairs
(38 C.F.R. 1.218 et. seq.), the National Park Service (36 C.F.R. 1.3 et. seq.),
or military bases (18 U.S.C. 1382). These types of non-exempted cases can be as
simple as fishing with two poles or having an unleashed dog in a National Park.
This section would also enhance the efficiency of the courts by simplifying the
procedure for obtaining consent from defendants charged with petty offenses.
Under current law, a magistrate judge must determine whether the charge against
a defendant is one of the types of cases exempted from the consent requirement.
Magistrate judges report that this process can be time consuming because they
often hear more than 50 petty offense cases in one day. A magistrate judge is
required to admonish certain defendants that they have a right to an article III
judge and others that they do not have this right. This section would simplify
this confusing procedure. These amendments would improve judicial efficiency by
also permitting magistrate judges to preside over all misdemeanor cases,
including Class A misdemeanor cases, that involve juvenile defendants, and by
providing them with the authority to sentence juvenile defendants to terms of
imprisonment in petty offense and misdemeanor cases. In 1968, 18 U.S.C. 3401 was
amended as part of the enactment of the Federal Magistrates Act. The new Act
gave magistrate judges "jurisdiction to try persons accused of, and sentence
persons convicted of, minor offenses committed within that judicial district."
18 U.S.C. 3401(a) (1970). The term "minor offenses" was defined as "misdemeanors
punishable under the laws of the United States, the penalty for which does not
exceed imprisonment for a period of one year, or a fine of not more than $1,000,
or both...." 18 U.S.C. 3401(f) (1970). Section 3401 did not distinguish juvenile
defendants or youth offenders. At that time, however, the Juvenile Delinquency
Act, 18 U.S.C. 5031 et seq., gave jurisdiction over juvenile defendants
exclusively to Article III judges. The federal courts have now had more than 25
years of experience with the federal magistrate judges system. Magistrate judges
now try and sentence almost all adult federal misdemeanor defendants. In Class B
misdemeanors involving a motor vehicle offense, Class C misdemeanors, and
infractions, the requirement that a defendant, either adult or juvenile, must
consent to the jurisdiction of a magistrate judge has been eliminated. See
Federal Courts Improvement Act of 1996, Public Law No. 104-317, 110 Stat. 3847
(October 19, 1996). Moreover, with the 1984 enactment of the Bail Reform Act, 18
U.S.C. 3141 et seq., magistrate judges began exercising broad authority to order
the pretrial detention of criminal defendants, sometimes for extended periods of
time. Under the Juvenile Delinquency Act , magistrate judges have the authority
to detain juvenile defendants before trial. See 18 U.S.C. 5034 and 5035. This
results in a curious paradox: magistrate judges may order the pretrial detention
of juvenile defendants who have committed felonies, yet are forbidden to
sentence a juvenile to even a minimal prison sentence for committing a petty
offense. Under the current system, magistrate judges may not even punish a
juvenile defendant who violates a probation or a supervised release term, except
to impose an additional term of probation or supervised release. Under these
circumstances, it is appropriate to give magistrate judges the authority to
impose sentences of imprisonment upon juvenile defendants in misdemeanor cases.
Section 307--Savings and Loan Data Reporting Requirements * After Congress
amended Title 28 in 1990 to require this report, the Administrative Office
decided not to duplicate the collection efforts of the Department of Justice and
the Federal Deposit Insurance Corporation (FDIC) but to obtain the data from
those two agencies and to transmit that data to Congress in Judicial Business of
the United States Courts, which is transmitted under 28 U.S.C. 604(a)(4). The
number of savings and loan (S&L) cases peaked in 1992, and major S&L
cases are now a small proportion of cases in federal courts. This past year,
criminal S&L case filings dropped to 17 major cases brought against as many
defendants by U.S. Attorneys. This information is readily available from the
Department of Justice and the FDIC should the Congress need it. However, because
these cases make up such a small percentage of the caseload of the federal
courts this report should be eliminated so that staff of the Administrative
Office can focus their analytic efforts on the most significant aspects of the
federal courts' caseload. Section 308--Place of Holding Court in the Eastern
District of Texas * This amendment would implement the March 1991 Judicial
Conference proposal to designate Plano, Texas as a place of holding court in the
Eastern District of Texas. In addition, the provision clarifies that court for
the Eastern District of Texas and the Western District of Arkansas may be held
anywhere in the Federal Courthouse which sits astride the Texas-Arkansas state
line. Section 309--Federal Substance Abuse Treatment Program Reauthorization *
The Federal Substance Abuse Treatment program was created in the Contract
Services for Drug Dependent Federal Offenders Treatment Act of 1978 (Public Law
No. 95-537, October 27, 1978). The proposal in section 103 would reauthorize
appropriations for Fiscal Year 1999 and subsequent years "such sums as may be
necessary to carry out" the drug and alcohol aftercare program for federal
offenders administered by the Federal Corrections and Supervision Division of
the Administrative Office of the United States Courts pursuant to the authority
granted the Director of the Administrative Office under 18 U.S.C. 3672. This
amendment would eliminate the necessity for repetitive enactment of bills to
reauthorize appropriations for this important program in favor of a permanent
reauthorization. The program has operated under the judiciary appropriations
bill without a reauthorization in Fiscal Years 1993, 1994, 1995, 1996, 1997,
1998 and 1999. Section 310--Multidistrict Litigation This section, entitled the
Multidistrict Trial Jurisdiction Act of 1999, amends section 1407 of title 28,
United States Code, to allow a transferee judge to retain cases for trial or
transfer those cases to another judicial district for trial in the interest of
justice and for the convenience of parties and witnesses. This amendment
provides transferee judges the needed flexibility to resolve multidistrict cases
as expeditiously and fairly as possible. Currently, section 1407(a) authorizes
the Judicial Panel on Multidistrict Litigation to transfer related cases,
pending in multiple federal judicial districts, to a single district for
coordinated or consolidated pretrial proceedings. Such transfer is based on the
Panel's determination that centralizing those cases will serve the convenience
of the parties and witnesses and promote the just and efficient conduct of the
cases. Section 1407(a) also requires the Panel to remand each transferred case
to its original district at or before the conclusion of the pretrial
proceedings, unless the case is previously terminated in the transferee court.
For nearly 30 years, federal courts had followed the practice of allowing a
transferee court to invoke the venue transfer provisions (28 U.S.C. 1404) and
transfer the case to itself for trial purposes. The Supreme Court reversed that
practice in Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S.
26 (1998), stating that such self-assignment transfer power did not exist under
section 1407. Now, even if all parties to a case agree on the wisdom of
self-transfer for trial, the Panel must remand the cases to their transferor
districts and then have each original district court decide whether to transfer
each case back to the transferee district for trial--a costly, inefficient, and
time-consuming process. This section seeks to restore the power of the
transferee judge to retain cases for trial or to transfer such cases to another
district for trial. Self-transfer for trial is not to a distant, unfamiliar
forum, but to one where the parties and the transferee judge are already
familiar through the ongoing pretrial proceedings. In addition, the ability to
set a trial date historically has provided a powerful inducement for the
resolution of such cases through global or individual settlements. This section
will, in essence, restore the trial- setting authority previously utilized in
multidistrict litigation. Section 311--Membership in Circuit Judicial Councils *
This section amends section 332(a) of title 28, United States Code, to provide
participation of senior judges in the federal judiciary's internal governance
process at the regional (i.e., judicial circuit) level. The Judicial Conference
requests this legislation in accordance with Recommendation 50 of the Long Range
Plan for the Federal Courts, which encourages "broad, meaningful participation
of judges in governance activities at all levels" and specifically identifies
the need to establish the eligibility of senior circuit and district judges to
serve as members of the circuit judicial councils (Implementation Strategy
50b(3)). Each of the 12 regional judicial circuits has a circuit judicial
council responsible for exercising general administrative oversight of the
courts within the circuit. These judicial councils consist of the chief judge of
the circuit, who presides, plus equal numbers (which vary from circuit to
circuit) of other circuit judges and district judges from the circuit. Section
332(a)(3) of title 28 presently limits council membership to circuit judges and
district judges "in regular active service." Senior judges have substantial
judicial and, in many instances, administrative experience that can inform and
enhance decision making on the many issues that come before the circuit
councils. This legislation would provide the judges of each circuit with the
option of including one or more senior judges among council members as they deem
appropriate. This change would not alter the eligibility requirements for
serving as chief judge of the circuit. The Federal Courts Improvement Act
enacted in the 104th Congress (Public Law No. 104-317, 601, 110 Stat. 3847,
3857) included similar provisions that authorized or clarified senior judge
eligibility for service on the Judicial Conference and the Board of the Federal
Judicial Center. Section 312-Sunset of Civil Justice Expense and Delay Reduction
Plans * Section 2 of Public Law No. 105-53 entitled "Enhancement of judicial
information dissemination," amended the sunset provision in section 103(b)(2) of
the Civil Justice Reform Act of 1990 (CJRA) to leave only "sections 472, 473,
474, 475, and 478" of title 28, United States Code, subject to the December 1,
1997, sunset. These code sections set forth the standards for development and
implementation of the CJRA plans, and also provided for review of the plans by
the chief circuit judge and chief district judge, periodic assessment of the
plans, and development of a model plan by the Judicial Conference. Omitted from
the sunset provision were sections 471 and 476. Section 476, also entitled
"Enhancement of judicial information dissemination," requires the semi-annual
reporting of civil cases pending over three years and motions pending over six
months. The introductory remarks for Senator Biden's amendment to S. 996, the
bill that became Public Law No. 105-53, make it clear that only section 476 was
to be retained: My amendment to S. 996 would make permanent one very successful
reform from the Civil Justice Reform Act--the requirement that a list of each
Federal judge's six-month-old motions and three-year-old cases be published and
disseminated twice each year. According to the Rand Institute for Civil Justice,
this public reporting require- ment was effective in reducing delay . This very
effective reporting requirement will expire in December 1997 unless Congress
acts. With my amendment, I seek to extend this reporting requirement. 143 Cong.
Rec. S8528-01 (daily ed. July 31, 1997). Beyond the omission of 28 U.S.C. 471
from the sunset provision, there is nothing in the legislative history or in
Public Law No. 105-53 itself to suggest that the amendment was intended to
extend any provision of the CJRA besides section 476. The continuation of
section 471 is inconsistent with the expiration of the six code sections that
define the substantive and procedural standards of the CJRA plan program. There
are no other remaining provisions in chapter 23 of title 28 that deal with CJRA
plans; therefore, literal fulfillment of section 471 is now impossible. It can
be concluded that the failure to retain 28 U.S.C. 471 in the sunset provision
was inadvertent. This technical amendment to reinstate section 471 in the sunset
provision is therefore necessary. Section 313--Technical Bankruptcy Correction *
Title 11, United States Code, section 1228 contains incorrect cross references
to 11 U.S.C. 1222(b)(10). Those references should be to 11 U.S.C. 1222(b)(9).
Section 1228 provides for the discharge of debt in chapter 12 bankruptcies.
Under that provision, as soon as the debtor completes all payments under the
debtor's plan, debt will generally be discharged, subject to a few, limited
exceptions. One obvious exception covers certain payments that, under the plan,
will necessarily extend beyond the period of the plan. It simply makes sense
that, where the plan contemplates payments to be made beyond the period of the
plan, the debt will not be discharged at the close of the plan period. The
exception currently refers to subsections 1222(b)(5) and 1222(b)(10), which
appear in that section of chapter 12 governing the contents of the plan. The
reference to subsection 1222(b)(1) is plainly in error, however, and should be
to subsection 1222(b)(9). Subsections 1222(b)(5) and 1222(b)(9) both concern
debts on which payments are due following completion of the plan. Subsection
1222(b)(10), however, concerns something entirely different: the vesting of
property in the debtor or another entity. The current cites to subsection
1222(b)(10) should be to 1222(b)(9). The bill corrects those errors. Title
IV--JUDICIARY PERSONNEL ADMINISTRATION, BENEFITS, AND PROTECTIONS Section
401--Judicial Retirement Matters Federal circuit and district judges may serve
for life and are entitled to their compensation for life. This Constitutional
arrangement insulates the judiciary from any form of political pressure. But an
inequity exists for those who become federal judges before age 50. Under present
law, life-tenured judges may not retire from regular active service or take
senior status until they reach age 65 with a minimum 15 years in service. This
requirement is commonly known as the "rule of 80" because its age and service
requirements must add up to 80. Section 401 modifies the "rule of 80" to permit
a judge with 20 years in service who has reached age 60 to take senior status.
This modification would not affect the requirements for a judge to retire from
office. The minimum age for a judge's retirement to vest would remain age 65
with at least 15 years of service. Section 401 applies only to transfers to
senior status. It seems to us unfair that a judge who serves on the bench for
many years but must leave the judiciary prior to the time he or she reaches age
65 would have no vested interest in any retirement income and would receive
nothing in the way of benefits from those years that he or she served. Judges
are alone among Federal employees in this respect. Revision of the current "rule
of 80" would also increase the flexibility of the judiciary and Congress in
dealing with periodic imbalances of caseloads by increasing the numbers of
senior judges who are readily available to accept temporary reassignment to
other courts. By definition, senior judges are very experienced members of the
court and a valuable resource. Senior judges can be assigned to sit on a court
where there are special problems that can be solved by the immediate
availability of a seasoned judge, such as emergencies caused by illness or
districts with persistent unfilled judicial vacancies and significant case
backlogs. The judiciary is constantly seeking ways to handle its caseloads more
efficiently, and a greater pool of senior judges is one way to add resources
without changing the total number of judgeships authorized by law. A judge who
takes senior status continues to receive the salary of the office and continues
to perform judicial duties. In order to continue receiving the full salary of
the office, which includes adjustments to salary that are not cost-of-living
adjustments, a senior judge must perform judicial duties equivalent to at least
25 percent of the workload of an average active judge. The vast majority of
senior judges choose to provide valuable and irreplaceable service. For the 12
month period ending September 30, 1995, senior judges accounted for about 17
percent of all appellate participations and about 19 percent of all trials.
These totals are equivalent to the annual services of almost 100 active judges.
Section 402--Disability Retirement and Cost-of-Living Adjustment of Annuities
for Territorial Judges * Section 402 provides parity for the four territorial
judges by giving them similar retirement benefits to those of bankruptcy judges,
magistrate judges, and Court of Federal Claims judges. Currently, the judges of
the district courts in Guam, the Northern Mariana Islands, and the Virgin
Islands are nominated by the President and, after confirmation by the Senate,
serve for 10- year terms. Since these judges do not enjoy lifetime tenure and
salary protection under Article III of the Constitution, they are not "judges of
the United States" eligible to retire under sections 371 and 372 of title 28,
United States Code. Instead, their retirement rights and benefits are set forth
in section 373 of that title. A territorial district judge may retire from
office (a) after meeting the same "Rule of 80" age and service requirements
applicable to Article III judges, (b) if removed by the President solely on
grounds of mental or physical disability after serving at least 10 years, or (c)
if not reappointed at the end of a term. An annuity equal to the pre-retirement
salary (prorated, in cases of disability or failure of reappointment, for judges
with less than 15 years of service) is payable beginning at the time of
retirement or upon attaining age 65, whichever is later. For judges who retire
under the "Rule of 80," the annuity is subject to the same cost-of-living
adjustment as annuities payable under the Civil Service Retirement System,
provided that such adjustment cannot result in a total annuity greater than 95
percent of an Article III district judge's salary. In two key respects, the
retirement arrangements for territorial district judges under section 373
compare unfavorably with analogous arrangement for bankruptcy judges, magistrate
judges, and judges of the Court of Federal Claims (see 28 U.S.C. 178;377): (1)
territorial judges cannot retire on disability grounds before completing 10
years of service (as compared with 5 years for other non-Article III judges)
and, even then, no annuity is payable until age 65 (no age restriction for other
judges);(3) and (2) territorial judges are not afforded cost-of- living
adjustments in their retirement annuities unless they retire under the "rule of
80" (i.e., no adjustment for disabled judges or judges who are not reappointed),
and even then, any adjustment must wait until active judge salaries have
increased to the point that the retired judge's annuity is less than 95 percent
of an active judge's salary.(4) Section 403--Federal Judicial Center Personnel
Matters * This provision corrects an inequity which exists between the Federal
Judicial Center and every other agency of the government, including the
Administrative Office of the United States Courts. The Center's 1967 statute
limits maximum compensation of Center staff (other than the Director and Deputy
Director) to that equal to Executive Schedule level V. Although the Center for
most of its history was essentially at statutory parity with the Administrative
Office, changes to the Administrative Office personnel statute have placed the
Center at a recruitment disadvantage with respect to the Administrative Office,
as well as the Executive Branch. Authorizing Executive Schedule level IV
compensation for five percent of the Center's staff could reach up to eight
persons, but the Center intends to use this authority only for its five division
directors. The Center is fully prepared to absorb the very modest cost
increment. The Board of the Federal Judicial Center has approved the amendment.
Section 404--Judicial Administrative Officials Retirement Matters * Section 404
provides for a greater degree of equity and parity in crediting prior service in
the Legislative Branch for purposes of retirement by the Director of the
Administrative Office, the Director of the Federal Judicial Center and the
Administrative Assistant to the Chief Justice. These officials currently may
receive a maximum of five years of retirement credit for prior service in any
civilian presidential appointment in the Executive Branch requiring Senate
confirmation, but they may receive credit for prior service in the Legislative
Branch only as a Member of Congress. Section 404 allows credit for prior
Legislative Branch service of a comparable rank and responsibility to the
Executive Branch service that is currently creditable. Credit would be allowed
to a primary administrative assistant to a Member of Congress or as staff
director or chief counsel for a committee or subcommittee. Although section 404
limits congressional service credit to high- level positions, it further
requires that the person serving in the position have served in that capacity
for at least five years or at a salary that is within the top 10 percent of
salaries for congressional staff at the time of the service. Section
406--Deletion of Automatic Excuse from Jury Service for Members of the Armed
Services, Members of Fire and Police Departments, and Public Officials *
(Changed in part) This section repeals the automatic excuse from service now
granted to members of the Armed Forces, members of fire and police departments,
and public officials under 28 U.S.C. 1863(b)(6). These exemptions were
established in 1948 on the assumption that it would be a waste of time to
include on juries persons whose jobs affect public health, safety, or welfare.
More recent experience has indicated, however, that many individuals who fall
within the scope of these exemptions could easily serve, such as police or fire
officials who work on compressed time shifts. The same is true for the "public
officer" exception, which bars service from elected or appointed officials such
as school board officials, state legislators, as well as secretaries and clerks
appointed by locally elected officials. Circumstances in the Armed Forces have
also changed in the last decade so that military personnel have more flexibility
to accommodate jury service without interfering with their official duties.
According to the National Center for State Courts, 24 states and the District of
Columbia currently have no exemptions from jury service at all. Of the 27 states
with exemptions, only ten states exempt active military members. It should be
noted that the Department of Defense can currently authorize the exemption of
members of the Armed Services from state and local jury service, and this
amendment would expand this authorized exemption to federal jury service. Title
10, U.S.C. 982 specifies that members on active military duty may not be
required to serve on a state or local jury if the Department of Defense
determines that such service would "unreasonably interfere" with their military
duties or would "adversely affect the readiness" of their unit or command. This
provision amends 10 U.S.C. 982 to include federal jury service with state and
local jury service. Regulations on the administration of this section are
prescribed in 32 C.F.R. 144.6, and state that service members who fall within
these determinations are exempt from jury duty. Section 407--Expanded Workers'
Compensation Coverage for Jurors * Section 407 extends Federal Employees'
Compensation Act (FECA) coverage (workers' compensation) to persons summoned for
jury duty in the federal courts, while they are traveling to or from court.
Although claims by commuting jurors have not arisen frequently, they do occur.
The Department of Labor, which administers FECA, denied compensation to a
special grand juror in the District of Maryland who was injured while en route
from her home to the courthouse.(5) Although it is unknown whether the
individual in that case had insurance protection, some jurors may well be
financially unprotected while traveling to and from the court. Jurors appear in
court under compulsion of law; they are not free to decline to come to court at
the time and place directed. The fact that they might have to travel a long
distance--often across an entire judicial district--or suffer significant
inconvenience in so doing does not relieve them of this legal obligation.
Additionally, while regular employees must bear their own travel costs, the Jury
Act at section 1871(c) provides that jurors shall receive mileage reimbursement
for their expenses of commuting to and from the courthouse, as well as
reimbursement of toll charges and (in the discretion of the court) parking
expenses. Thus, as a matter of law, the Jury Act can be viewed as providing that
jury service begins "when a juror steps out of his or her door." Statutory
consistency suggests that FECA coverage be in accord. The number of occasions on
which FECA claims will be filed by commuting jurors cannot be estimated with any
precision, but the number will be small. The dollar value of benefits provided
by the Labor Department in FECA claim awards likewise will be insignificant
because the Jury Act at section 1877(b)(1) deems jurors to be paid at the rate
of GS-2 of the General Schedule. Section 408--Property Damage, Theft, and Loss
Claims of Jurors * Section 408 authorizes the Director of the Administrative
Office of the United States Courts to compensate jurors and prospective jurors
for their personal property when it is lost or damaged during their official
service. At present, the only means available to compensate jurors for personal
property that may be damaged, lost, or stolen in the course of their official
service is an administrative claim under the Federal Tort Claims Act,(6) which
requires the head of an agency to find that some agency employee negligently
caused the loss. Evidence of such negligence is almost always speculative, or
nonexistent, compounding the time it takes to conduct any kind of investigation.
Furthermore, it is often unclear to which agency's employee the supposed
negligence should be attributed--for example, the court, the United States
Marshal, or the General Services Administration. The items lost by jurors tend
to be everyday things such as overcoats, wallets, and pocketbooks. Considering
the importance of jurors to the functioning of the court system and the burden
of service they assume, it is in the interest of the United States to establish
a fast, effective means of compensating them for these losses in appropriate
circumstances. This amendment grants the Director authority equivalent to that
by which federal employees may be compensated under the Military Personnel and
Civilian Employees' Claims Act.(7) That statute does not require a finding of
negligence; it simply requires a determination that the claimant was not at
fault. Extension of this authority is consistent with the provision of other
employee- like benefits and protection to jurors in recognition of the value of
their public service--for example, travel expenses and subsistence allowances,
(8) and on-the-job injury benefits under the Federal Employees' Compensation
Act.(9) The cost of paying claims under this amendment is likely to be
negligible. Section 409--Elimination of the Public Drawing Requirements for
Selection of Juror Wheels This section eliminates the noticing and public
drawing requirements for selecting names from jury wheels. The Jury Act at 28
U.S.C. 1864(a) and 1866(a) currently states that the clerk shall "publicly draw
at random," from the names of persons required for jury service. "Publicly draw"
is defined in 28 U.S.C. 1869(k) as a "drawing which is conducted ... after
reasonable public notice and which is open to the public." Because computers
have replaced the physical drawing of names, and because the public has little
or no interest in attending a jury drawing, this section would eliminate the
requirement to post a separate notice for each drawing from the master and
qualified wheels, as well as the requirement to draw names publicly and/or to
post public notices. Instead, one general notice will be posted in the clerk's
office that explains the process by which names are randomly and periodically
drawn from the wheels. The Jury System Improvements Act of 1978, Public Law No.
95-572, authorized the Judicial Conference to adopt regulations governing the
drawing of juror names from the jury wheels when a drawing is made by electronic
data processing. Accordingly, the Conference has adopted regulations that take
into account the changes in jury selection resulting from technological
advances. The Conference regulations narrowed the meaning of "public drawing" to
apply only to the selection of the starting number and interval (quotient)
during the process of selecting juror names from the original source lists. The
Conference did not require any public observance of the actual computer
operations, interpreting the term "reasonable public notice" to mean the posting
of a written announcement of the drawing from the master and qualified wheels on
a bulletin board or another public place at the courthouse. With advanced
computer technology, more courts are moving to a purely randomized method for
selecting juries. And, the Administrative Office's new Jury Management System
for the courts will perform the selection of names from the master and qualified
jury wheels by a purely randomized process approved by the National Institute of
Standards and Technology. Section 410--Annual Leave Limit for Court Unit
Executives * This amendment permits the Judicial Conference to designate certain
positions within the judiciary as "court unit executive positions" for purposes
of permitting those officials to accumulate and carry over up to 90 days of
annual leave from one year to the next. At present, the Leave Act(10) prohibits
these court officials from carrying over more than 30 days of leave. In
contrast, senior executives in the Executive Branch and Administrative Office
may carry over up to 90 days of annual leave from year-to-year. Thus, this
change will enable the courts to remain competitive with other government
agencies in hiring and retaining top executives. This provision will affect
approximately 294 officials, including circuit executives, clerks of courts of
appeals, district court clerks, district court executives, bankruptcy court
clerks, clerk of the Court of International Trade, clerk of the United States
Court of Federal Claims, chief probation officers, chief pretrial services
officers, senior staff attorneys, chief preargument attorneys, bankruptcy
administrators, and circuit librarians. Section 411--Payments to Military
Survivor Benefit Plans * This section addresses an inequity in the treatment of
regular active Article III judges who are military retirees. These judges,
unlike other former military retirees employed by the federal government, do not
have contributions made to the Military Survivor Benefit Plan (MSBP) on their
behalf from the military retirement fund, as is provided under the Dual
Compensation Act. 5 U.S.C. 5532(c)(2)(B). This amendment corrects this inequity
by entitling Article III judges to have contributions made to the MSBP on their
behalf from the military retirement fund even though they are ineligible to
receive retired pay from that fund while in regular active service. In pertinent
part, section 371(e) of title 28 states that " n otwithstanding subsection (c)
of section 5532 of title 5, United States Code, retired pay for a former member
of a uniformed service who ... becomes employed as a justice or judge of the
United States ... shall not be paid during regular active service as a justice
or judge but shall be resumed or commenced without reduction upon retirement
from the judicial office or from regular active service (into senior status)."
See Public Law No. 100-702, Sec. 1005, 102 Stat. 466 (1988). Before this
provision was enacted the retired pay of all military retirees in federal
civilian service (including Article III judges) was subject to reduction in
accordance with the offset requirements of the Dual Compensation Act. 5 U.S.C.
5532(b)(c). Under that statute, the military retired pay due a federal employee
whose salary equals or exceeds Level V of the Executive Schedule (currently
$108,200 per annum) is reduced to zero, with the amount otherwise payable
transferred to the general fund of the Treasury, except that the retired pay
cannot be "reduced to an amount less than the amount deducted ... as a result of
participation in any survivor's benefits in connection with the retired or
retainer pay or veterans insurance programs." 5 U.S.C. 5532(c)(2)(B). Based on
that exception, contributions to the MSBP or similar survivor benefits plans are
subtracted from an individual's retired pay before the balance is returned to
the Treasury. As a result, most military retirees employed by the federal
government are still generally entitled to have their survivor benefit
contributions paid from the military retirement fund even though they cannot
receive any money directly from that fund. In contrast, the Comptroller General
has construed section 371(e) to require Article III judges to make contributions
directly to the Survivor Benefit Plan until they retire from the judicial office
or take senior status. Matter of Major General Ira Dement III, USAFR (Retired),
B-252391 (Comp. Gen. Oct. 22, 1993) (holding that 28 U.S.C. 371(e) removed
retired pay received by judges from the coverage of 5 U.S.C.5532, with the
result that the limit on reductions to military pay in section 5532(c)(2)(B) is
no longer available). This amendment corrects this outcome and provides for
parity in the treatment of military retirees. Section 412--Authorization for a
Circuit Executive for the Federal Circuit Section 412 of the bill adds a new
subsection (h) to section 332 of title 28, United States Code, to permit the
United States Court of Appeals for the Federal Circuit to appoint a circuit
executive. All other courts of appeals have a circuit judicial council
established under section 331 of title 28, and the judicial councils have
authority under section 332 to appoint a circuit executive. The Federal Circuit,
in contrast, does not have a judicial council that would have authority to
appoint a circuit executive. The new subsection treats the Federal Circuit in
the same manner as all other courts of appeals with respect to appointment and
delegation of duties to a circuit executive, except that the duties performed by
the judicial councils in other circuits will be performed by the court itself.
Although the Federal Circuit differs from the other courts of appeals in that it
has subject matter rather than geographical jurisdiction and does not supervise
any district courts, it has the same need as the other courts for a principal
staff person to perform the duties of a circuit executive. However, the Federal
Circuit would not be able to have both a clerk of court appointed under 28
U.S.C. 711 and a circuit executive, although it could appoint a combined circuit
executive/clerk. Section 413--Amendment to the Jury Selection Process This
section amends the Jury Selection and Service Act, 28 U.S.C. 1865, to permit the
chief judge to authorize the clerk of the court, under the supervision of the
court (and if provided for in the court's jury selection plan), to determine
whether persons are qualified, unqualified, exempt, or excused from jury
service. The Judicial Conference is satisfied that clerks or jury administrators
authorized to determine qualification of prospective jurors will adhere to the
principles of nondiscrimination by making their determinations using the
objective criteria as required by the Jury Act and the courts' jury plans.
Moreover, the function of screening juror questionnaires for qualifying criteria
is generally more ministerial than is the task of screening juror hardship
excuses for postponements or deferrals, which may already be delegated. Section
414--Supplemental Attendance Fee for Petit Jurors Serving on Lengthy Trials This
section amends 28 U.S.C. 1871(b)(2) by shortening the number of days that a
juror is required to serve before he or she is eligible for the supplemental
daily fee authorized by this section. Currently, a juror who is required to
serve more than thirty days is permitted to receive an additional ten dollars a
day, above the established juror fee. The economic hardship associated with jury
service worsens the longer jurors are required to serve, especially if service
continues for more than a week. This amendment recognizes that fact by reducing
to five days the time before jurors could qualify for the supplemental fee. This
supplemental fee is $10 and will be paid to the jurors at the discretion of the
trial judge. Title V--CRIMINAL JUSTICE AMENDMENTS The Criminal Justice Act (CJA)
is the means by which this nation fulfills the promise of the Sixth Amendment
that every person accused of a crime shall have the assistance of counsel for
his or her defense. Public confidence in the federal criminal justice system is
based in large part on the assumption that no person will be deprived of life or
liberty without the opportunity for an advocate to ensure effective
representation. The CJA is built upon the fundamental principle that the
determination of an accused's guilt or innocence should not be affected by the
person's financial status. In the Judicial Improvements Act of 1990 (Public Law
No. 101- 650), the Congress directed the Judicial Conference of the United
States to conduct a comprehensive study to assess the effectiveness of the
federal defender program. The Judicial Conference concluded, in a report
submitted to the House and Senate Judiciary Committees in March 1993, that: The
Criminal Justice Act has been a major success in carrying out the mandate of the
Sixth Amendment of the United States Constitution and the policy of the Congress
to provide effective assistance of counsel to all criminal defendants in the
federal courts who are financially unable to retain their own attorney.(11)
While recognizing the success of the CJA throughout its 31-year history, the
Judicial Conference looked forward to identify means to improve the operation of
the CJA to meet the needs of the evolving federal criminal justice system. The
improvements to the CJA program proposed in H.R. 1752 are largely based upon the
recommendations contained in the 1993 Judicial Conference Report. These measures
would increase the efficiency and effectiveness of the CJA program. They are
designed to ensure the high quality of legal representation, to compensate
fairly the attorneys who furnish those representational services, and to reduce
the administrative burden on the courts. Section 501--Maximum Amounts of
Compensation for Attorneys * This section would increase the case compensation
maximum amounts for attorneys by approximately the rate of inflation since 1986
(43.3%), the last year case compensation maximums were increased. In 1986,
recognizing that approval of vouchers in excess of the case compensation
maximums was a significant administrative burden on the chief judges of the
courts of appeals, Congress amended the Criminal Justice Act to authorize the
chief judge to delegate voucher approval authority to another active judge of
the court of appeals (18 U.S.C. 3006A(d)(3).) Over the past decade, inflation
has significantly eroded the level of the case compensation maximums for
appointed counsel. In addition, the Sentencing Guidelines have been implemented,
which has further increased the amount of work required for representation in
each case. As a result, in many districts, particularly those districts for
which higher rates of compensation have been established (up to $75 per hour,
compared to the $60/$40 in-court/out-of-court rates prevailing in 1986), a much
greater proportion of cases involve compensation in excess of the statutory
maximum amounts. This has again substantially increased the administrative
burden to review claims for excess compensation. This section also would change
the case compensation maximum applicable to counsel representing non-capital
habeas corpus petitioners. The appointment of counsel to represent a non-
capital habeas corpus petitioner is not mandatory; it is within the discretion
of the presiding judicial officer based upon a determination that "the interests
of justice so require." (18 U.S.C. 3006A(a)(2)(B).) Those non-capital habeas
corpus cases which merit the appointment of counsel generally have significant
issues that warrant compensation greater than the $750 currently authorized by
the Criminal Justice Act. Because the collateral representation is often as
difficult as that provided in directly defending against a felony prosecution,
the compensation for counsel in non-capital habeas corpus matters should be
governed by the limits applicable to felonies (currently $3,500 in the district
court and $2,500 in the court of appeals, but proposed in this section to
increase to $5,000 and $3,600, respectively). It is not anticipated that the
proposed amendment would have a significant budgetary impact because the chief
judges of the courts of appeals (or their designees) have the authority to
approve compensation in excess of the statutory limits in appropriate cases.
Section 502--Maximum Amounts of Compensation for Services Other Than Counsel *
This section, as with the previous section relating to compensation of appointed
counsel, would increase the compensation maximums of investigators, experts, and
other service providers by approximately the rate of inflation since 1986
(43.3%), the last year case compensation maximums were increased. The Criminal
Justice Act Revision of 1986 increased from $150 to $300 the amount which could
be expended for investigative, expert, and other services without prior judicial
approval, and increased from $300 to $1,000 the amount which could be expended
for such services without the approval of the chief judge of the court of
appeals or an active judge of the court of appeals to whom the chief judge has
delegated this authority. (18 U.S.C. 3006A(e).) The costs of professional fees
have risen substantially since that time, resulting in a greater percentage of
compensation vouchers being submitted to the chief judges of the courts of
appeals or their designees for review, increasing the administrative burden of
judicial officers. It is not anticipated that the proposed amendment would have
a significant budgetary impact because the chief judges of the courts of appeals
(or their designees) have the authority to approve compensation in excess of the
statutory limits in appropriate cases. Section 503--Federal Tort Claims Act
Amendment * In amending the Federal Tort Claims Act (FTCA) in 1988, Congress
appears to have inadvertently included federal public defenders within the FTCA,
negating the 1986 amendment to the CJA authorizing the Director of the
Administrative Office to provide representation. Currently, when a malpractice
complaint is filed against a federal public defender employee, the
Administrative Office notifies the Department of Justice and the Department, in
turn, arranges for counsel to provide representation. This puts the Department
of Justice in the position of representing the interest of a federal public
defender employee who is the courtroom adversary of the United States attorney.
Although the Department can take steps to insulate the attorney who represents
the federal public defender from those attorneys who prosecute defendants
represented by the defender, doing so imposes an administrative burden on the
Department. This difficulty can be avoided by removing federal public defenders
from the scope of the FTCA and restoring the CJA's authorization for
representation by the Director of the Administrative Office. The amendment in
section 503 would exempt federal public defender organization officers and
employees from the Federal Tort Claims Act for claims related to
representational services and rely instead on the malpractice provision
specifically added to the CJA in 1986 to respond to such claims. 18 U.S.C.
3006A(g)(3). This would simplify the provision of representation to federal
public defender employees and avoid creating unnecessary conflicts of interest
for the United States attorney and the federal public defender. Based upon
experience in providing representation to federal public defenders prior to
their inclusion under the Federal Tort Claims Act, pursuant to the 1988
amendment to that Act (Public Law No. 100-604), we anticipate that the costs of
this provision would not exceed $50,000 annually and would probably be
substantially less. These costs would be offset by reductions in the cost of
representation provided by the Department of Justice. Through the cooperative
efforts of the courts, federal defenders, and private defense attorneys, the
Defender Services program has secured for defendants in the federal courts the
legal services essential to guard the basic rights of a fair trial guaranteed by
the Constitution. Our system of justice is held forth as the model for the free
world because no one may be convicted without the assistance of an attorney to
test the evidence and to ensure due process. The improvements proposed in this
bill would greatly assist the judiciary in its efforts to provide for eligible
defendants this fundamental requirement of effective assistance of counsel. 1.
Although the statute does not specifically define "non-core proceedings," courts
have defined such proceedings "as those that do not involve a substantive right
provided by title 11 or that, by their very nature, generally arise outside the
context of a bankruptcy case." Diamond Mortgage Corp. of Illinois v. Sugar, 913
F.2d 1233, 1239 (7th Cir. 1990). 2. 28 U.S.C. 377. (Public Law No. 100-659). 3.
Strictly speaking, territorial district judges, unlike other Federal judges,
cannot voluntarily "retire" for disability. To receive a retirement annuity, a
disabled territorial judge must seek to be removed from office by the President
solely on that ground. 28 U.S. C. 373(e). 4. By contrast, all retired bankruptcy
judges and magistrate judges are afforded cost-of-living adjustments so long as
the total annuity does not exceed 100 percent of an active bankruptcy or
magistrate judge's salary, see 28 U.S.C. 377(e), and Court of Federal Claims
judges who retire under section 178 of title 28 are guaranteed an annuity based
on the full salary payable to active judges of that court. The 95-percent
limitation on cost-of- living adjustments for retired territorial district
judges is peculiar inasmuch as territorial judges in regular active service have
received the same salary as the Article III district judges for the past 40
years or more but the provision for cost-of- living adjustments was added to
section 373 only 19 years ago. 5. The Department of Labor reasoned that a juror
is not covered while traveling to and from his or her home. Department of Labor
File No. A25-316984. 6. 28 U.S.C. 2671-2680. 7. 31 U.S.C. 3721. 8. 28 U.S.C.
1871. 9. 28 U.S.C. 1877j; 5 U.S.C. 8101 et seq. 10. 5 U.S.C. 6301 et seq. 11.
Report of the Judicial Conference of the United States on the Federal Defender
Program (hereinafter referred to as "Judicial Conference Report"), March 1993,
p. 11.
LOAD-DATE: June 17, 1999
