The Third Branch Newsletter
End of Session Legislation Favors Judiciary
The 104th Congress, which concluded earlier this month, brought enactment of
line-item veto legislation; extended the life of the Parole Commission; reformed
prisoner litigation; streamlined habeas corpus petitions; established mandatory
victim restitution provisions; and denied judges a cost-of-living increase. A
detailed wrap-up of the 104th Congress will appear in the November issue of
The Third Branch.
In the waning days of its second session Congress approved two measures of
particular interest to the Judiciary: a fiscal year 1997 spending bill and the
Federal Courts Improvement Act.
FY 97 Budget Passes
The federal government was spared another government shutdown when Congress
and the President agreed to an omnibus FY 97 funding bill on the last day of FY
96. The Omnibus Consolidated Appropriations Act, P.L. 104-208, provides the
Judiciary with an overall funding increase of 7 percent over FY 96, with the
Salaries and Expenses account receiving a 5 percent increase.
The success enjoyed by the Judiciary was achieved through a major effort by
friends of the Judiciary in Congress and by liaison judges, including the Budget
Committee members, and by the staff and director of the Administrative Office.
With the addition of fees, amounts available are sufficient to fully fund the
financial plan approved by the Executive Committee for the Salaries and
Expenses, Fees of Jurors, and Court Security accounts. Amounts available for
Defender Services will fully fund current estimated obligations, with the
exception of a $5 per hour pay raise for private attorneys who represent
indigent defendants under the Criminal Justice Act, which was specifically
denied in report language. In doing so, the conferees noted their concern with
the rising costs associated with the Defender Services account and directed the
AO to take the necessary steps to moderate the rate of increase. The conferees
also said that the funding for new defender organizations should be considered
only after it is clear that adequate funding exists for current organizations.
The AO received an increase over FY 96, but is $1 million below the revised
request. The appropriations provided the Federal Judicial Center and the U.S.
Sentencing Commission are slightly below the 1996 enacted level.
The House-Senate conference report on the Judiciary's portion of the FY 97
spending measure provided for
- Transfer of $500,000 from the Salaries and Expenses account for a
Commission on Structural Alternatives for the Federal Courts of Appeals, if
legislation was enacted to authorize the establishment of the commission. The
proposed commission, which grew out of legislation that was intended to split
the Ninth Circuit, failed to be authorized in the 104th Congress.
- Clarification that the Judiciary will bear the cost only of special
masters appointed subsequent to the enactment of the Prison Litigation Reform
- Deletion of the appropriation included in the House version of the bill
that would have provided funds for the Commission on the Advancement of
Federal Law Enforcement.
- $10 million for expenses related to the additional workload from the
Antiterrorism and Effective Death Penalty Act of 1996. (The antiterrorism bill
contains habeas corpus reforms and mandatory restitution provisions, and
creates the Alien Terrorist Removal Court.)
- A one-year extension, to September 30, 1998, of the authorization for the
Judiciary Automation Fund.
Congress Clears Federal Courts Improvement Act
S. 1887, the Federal Courts Improvement Act of 1996, cleared the Senate and
the House just minutes before each body adjourned sine die. Within the final two
weeks of the congressional session, the bill was held on the Senate floor for
both political and substantive reasons totally unrelated to the bill. The delay
resulted in several provisions being dropped from the bill, including the repeal of section 140 of
P.L. 97-92, which bars annual cost-of-living adjustments for judges unless
specifically authorized by Congress.
In the end, the improvements bill passed both the Senate and House by
unanimous consent. The bill contains 33 separate provisions that had been
endorsed by the Judicial Conference and address administrative, financial,
jurisdictional, and personnel needs of the judicial branch.
"Our improvements bill, which was basically noncontroversial in nature,
seemed to fall victim to nearly every procedural and political ploy that
exists," said AO Director Leonidas Ralph Mecham. "The fact that the bill was
among the few that both houses cleared in their final minutes is a tribute to
the many judges and the AO staff who kept a watchful eye on its progress and
made the necessary contacts to ensure its passage." (See related story "Uphill Fight Brings Courts
Among the provisions contained in S. 1887 as enacted, are the following:
- The jurisdictional amount-in-controversy in diversity jurisdiction cases
was raised from $50,000 to $75,000. The jurisdictional amount was last
increased in 1986, when it went from $10,000 to $50,000.
- Title 28 U.S.C. § 1914 was amended to increase the civil filing fee from
$120 to $150, with the first $90 (rather than $60) of each fee to be deposited
into a special U.S. Treasury fund available to offset funds appropriated for
the operation and maintenance of the courts. Civil filing fees were last
increased in 1986, from $60 to $120.
- Federal authority for probation and pretrial services officers to carry
firearms, if approved by the appropriate district court, was provided. In some
jurisdictions, state law prohibits or limits officers from carrying weapons,
even where court approval has been given.
- The senior judge work certification procedures of 28 U.S.C. § 371(f) was
revised so that justices and judges who are not certified in one year may
perform work in a subsequent year, then attribute the subsequent work to the
earlier year in order to satisfy the certification requirement.
- Trial of certain classes of petty offense cases by a magistrate judge,
without the consent of the defendant was allowed; also, appeals to civil cases
tried by magistrate judges will be heard only by appeals courts.
- Subject to the availability of appropriated funds, appointment of sign
language interpreters to provide services to a party, witness, or other
participant in a judicial proceeding is allowed if the presiding judicial
officer determines that such individual suffers from a hearing impairment.
- Awards of costs, including attorney's fees and injunctive relief, against
a federal officer or agency acting in an official capacity was prohibited.
- The AO was authorized to prescribe interpreter performance examination
fees. If the AO finds it necessary to develop and administer
criterion-referenced performance examinations for purposes of certification,
the director may prescribe for each examination a uniform fee for applicants
to take such exam.
- The system was changed for selecting the chief judge of the Court of
International Trade to conform to the modified seniority system applicable to
every other Article III court.
- The Special Court, Regional Rail Reorganization Act of 1973, was abolished
90 days after the enactment of the Federal Courts Improvement Act of 1996.
- The Civil Justice Expense and Delay Reduction reporting requirement on
Demonstration and Pilot Programs was extended from December 31, 1996, to June
- Places of holding court were added in the District of Utah and in the
Southern District of New York.
- District judges in the Southern and Eastern Districts of New York will be
allowed to reside within 20 miles of the district to which they are appointed.
In addition to the section 140 provision, also dropped from the bill were
- parties' consent to a bankruptcy judge's findings and conclusions of law;
- authorization for judicial officers to carry firearms;
- the Sunshine in Litigation Act of 1996 added by Senator Herb Kohl (D-WI),
amending Rule 26(c) of the Federal Rules of Civil Procedure, to limit the use
of protective orders and the sealing of cases in civil actions;
- reauthorization of the State Justice Institute;
- the expansion of authority for bankruptcy administrators.