House Passes FY07 Funding Bill

On June 14, 2006, the House passed H.R. 5576, the $140 billion FY 2007 Transportation, Treasury, Housing and Urban Development, the Judiciary, District of Columbia appropriations bill. The bill gives the Judiciary, as a whole, $6.1 billion in funding for FY 2007, a 6.3 percent increase over FY 2006. The federal court’s Salaries and Expenses account, an account divided into allotments for salaries and bene-fits, space and facilities, operating expenses, judges salaries and bene-fits, automation and technology, and other programs, received a 5.7 percent increase.

“This is a good level of funding, given the funding constraints and competing priorities the Committee had to deal with,” said Administra-tive Office Director Leonidas Ralph Mecham, “and it will provide for current staffing levels. However, it does not fully fund court operating expenses or provide the courts with sufficient funds to pay for congressio-nally-mandated workload increases or needed initiatives, especially those along the southwest border.”

The Senate Appropriations subcommittee that funds the Judi-ciary is not expected to mark-up its version of the bill until July.

I N - D E P T H

THIRDNewsletter

of the

Federal

Courts

Vol. 38

Number 6

June 2006BRANCH

INSIDE

THE

See FUNDING BILL on page 2

Senator Hatch Praises AO Director Mecham ......................pg. 2 What Follows a Moratorium? .................................................pg. 3 Courts Are Ready for Hurricane Season ..............................pg. 4

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Immigration Crisis Tests Federal Courts on Southwest Border

“The sad truth is that America has an insatiable hunger for illegal drugs and cheap labor. The south-west border is a gateway for both,” Judge George Kazen (S.D. Tex.) said

amid a mountain of paperwork in his district court chambers six blocks from Mexico.

Sitting in Laredo, Texas, Kazen is

Criminal defendants are herded into a federal courthouse cell in Laredo, Texas, while awaiting a hearing in a magistrate judge’s courtroom. More than 30 defendants at a time may stand before a judge.

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Mecham “Deserves Praise,” says Hatch

Senator Orrin Hatch (R-UT), for many years chair of the Senate Judi-ciary Committee and long-time friend to the Judiciary, paid eloquent tribute to retiring Administrative Office Director Leonidas Ralph Mecham. Speaking from the floor of the Senate on May 18, 2006, Hatch said Mecham, as the AO’s longest-serving Director, had “ably guided the Judiciary through some turbulent and challenging times, and for such he deserves the praise and commen-dation of this body.”

He noted that “providing effec-tive judicial administration in the face of budgetary constraints is difficult when the Federal judicia-ry’s caseload continues its upward spiral. . . National tragedies such as the terrorist attacks of September 11, as well as catastrophes such as Hurricane Katrina, created their own unique challenges.

“Ralph met each challenge effec-tively. His extensive background in public administration and experience

in both the legislative and executive branches served him well in equipping the judicial branch for its crit-ical tasks, even through these challenges and trou-bled times.

“Ralph also helped guide the judicial branch through a period of increased public atten-tion and even criticism regarding judicial deci-sions. Protecting judicial independence while also enhancing public under-standing of the function of judges in our system of government is just the kind of balancing act Ralph was prepared to tackle. He did so effectively with a steady hand.”

In closing, Hatch said, “The judicial branch and the country are better because of Ralph’s service. I want to commend him for his commitment and for setting a good example of public service. His record tells me that, even in supposed retirement,

Ralph Mecham will continue helping and serving those around him.”

For FY 2007, the Judiciary requested $6.3 billion in funding. In April 2006, Judge Julia Gibbons (6th Cir.), chair of the Judicial Confer-ence’s Budget Committee told a House Appropriations subcommittee, “We believe this level of funding represents the minimum amount required to meet our constitutional and statutory responsibilities.”

The Judiciary’s funding require-ments essentially reflect basic oper-ating costs, largely for personnel and space requirements. Of the $540 million increase being requested for FY 2007, a total of $462 million, or 86 percent of the requested increase,

represents must-pay items such as pay and benefit increases, space rental increases, panel attorney payments, and general inflationary increases for Judiciary programs.

The House Appropriations Committee has limited funding to distribute to the appropriations bills. In making the FY 2007 allocations to the subcommittees, Committee Chair Jerry Lewis (R-CA) noted that funding levels “will require some difficult choices and tough votes.” As it turned out, the subcommittee’s allocation was only a 3.8 percent increase over FY 2006 funding, and yet they provided the Judiciary with a 6.3 percent increase.

“It is clear,” said Director

Mecham, “that the Judiciary is a funding priority for the Appropria-tions Committee.”

The Judiciary competes for limited funds in its appropriations bill with several major programs, including the federal-aid high-ways program, the Department of Housing and Urban Development, the Federal Aviation Administration, and the General Services Adminis-tration, which builds federal court-houses.

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FUNDING BILL continued from page 1

AO Director Leonidas Ralph Mecham and Senator Orrin Hatch (R-UT).

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What Follows a Moratorium? Cost-Containment Measures Replace Hold on Construction

Most federal courthouse construc-tion came to a halt in 2004 when a moratorium imposed by the Judi-cial Conference stopped 35 of 42 planned courthouse projects across the country, as well as numerous other smaller projects. In the face of funding shortfalls, the two-year hiatus was intended to help slow the rate of growth in rental expenses in future years and give the Judi-ciary an opportunity to see how their space needs could be satisfied with reduced costs. For projects costing less than $2.6 million, the morato-rium ended in March 2006, and will end for the remaining projects in September 2006, unless the Judicial Conference recommends an exten-sion.

What happens now? Is the Judi-ciary due for a building boom?

“First of all, there is no money,” said Judge Jane Roth (3rd Cir.), chair of the Conference Committee on Space and Facilities. “The White House did not include funding for courthouse construction proj-ects in its Fiscal Year 2007 budget, although we are trying to get some funding from Congress. But realisti-cally, the Judiciary cannot afford the rent bills for most of the courthouse projects on the Judiciary’s Five-Year Courthouse Program Plan. So we’re attempting to balance the Judiciary’s space needs against cost-contain-ment initiatives without adversely affecting court functionality.”

In March 2006, the Judicial Conference adopted asset manage-ment planning as part of the Judi-ciary’s long-range facilities planning process. This methodology weighs functional space needs and the costs, risks, and benefits of new construc-tion or renovation projects.

Put simply, the courts are acting much like a homeowner

with a growing family who might consider an addition to the family home before making the move to a roomier, yet potentially more expen-sive house. By taking a second look at their needs and trying to maxi-mize existing space, courts will see if an addition or renovation would be more cost-effective than a new courthouse. Can an extra courtroom or two be squeezed out of available space and will that satisfy future needs? Or will a potentially expen-sive renovation leave a court with a space shortage that might more easily be solved by a new court-house? Asset management will be applied to all 35 of the projects that were subject to the moratorium and are without congressional appropria-tions or authorizations, as well as to future projects.

“By taking this action,” said Roth, “there is a possibility that new court-houses might not be constructed at these 35 locations. Other alternatives, such as conducting major repairs and alterations to an existing building might be pursued instead.”

Interim Budget Checks and CapsWhen the moratorium went into

effect in 2004, the Conference also endorsed an accompanying budget check process to be performed by the Administrative Office and circuit judicial council staff. With this process, all pending space requests before the councils must reflect consideration of alternative space, future rent implications, and afford-ability by the Judiciary. If funding is not available for the request, but the council determines the space is necessary, the council must then seek an exception from the Confer-ence through the Committee on Space and Facilities in coordination with the Budget Committee. The

lapse of the space moratorium leaves this process firmly in place. It will be replaced only when budget caps are established for the Judiciary’s space and facilities program.

In March 2006, the Conference approved, in concept, the estab-lishment of an annual budget cap for space rental costs, which will be determined by the Budget Committee in consultation with the Space and Facilities Committee.

“Budget caps, in effect,” said Roth, “will produce a rental cost avoidance by using a percentage increase to limit the annual amount of space rental funding available for prospectus and non-prospectus proj-ects, in conjunction with inflationary adjustments.”

The Committee on Space and Facilities now is considering what amount of new space the Judiciary can afford each year and how to allo-cate this amount equitably among the circuits. A preliminary budget cap for space and facilities cost is anticipated to become effective October 1, 2006.

“The benefit of a cap,” said Roth, “is that circuit judicial councils will be able to balance and prioritize their space needs at a local level, based on the amount the Judiciary can afford nationally in new rental costs.”

Design Guide Revised, Space Policy MadeWhile the moratorium was in

place, the Conference took the addi-tional step of endorsing a review of and subsequent revisions to the U.S. Courts Design Guide with an eye toward imposing tighter constraints on future space and facilities costs, including rent. Any construction projects that follow the moratorium expiration will be subject to the

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See MORAtORIUM on page 11

The Third Branch n June 2006

Start of Hurricane Season Finds Courts Learning from PastJune 1 is the traditional start

of the hurricane season. For 2006, the National Oceanic and Atmo-spheric Administration (NOAA) predicts an 80 percent chance of an above-normal hurricane season—an outlook that calls for 4-5 major hurricanes. The word from NOAA is “prepare.” And preparation is the byword in the Fifth Circuit, espe-cially in the districts hit hardest by Katrina in 2005—the Eastern, Middle, and Western Districts of Louisiana, the Southern District of Mississippi—and in the Elev-enth Circuit’s Southern District of Alabama and the Northern, Middle and Southern Districts of Florida.

After September 11, 2001,the Fifth Circuit was one of the first circuits to examine its disaster readi-ness. The Court of Appeals and each district court completed and tested their continuity of operations plans (COOP). Hurricane Katrina provided the ultimate test.

“With Katrina, we discovered that our worst-case scenario when plan-ning for a natural disaster wasn’t bad enough,” said Andy Crawford, Emergency Preparedness Coordinator for the Fifth Circuit. “We had alter-nate sites that weren’t useable and communica-tions problems. We went back to our judges, to our staff—and to the AO’s Judicial Emergency Plan-ning Office Chief Bill Lehman—to find out

where we needed to modify our COOP.” Judge Rhesa Barksdale (5th Cir.) was tasked by Chief Judge Edith Jones (5th Cir.) with working out the revisions with Crawford.

“Our COOP served us well with Katrina,” said Barksdale, “But we had a great deal of internal discus-sion about lessons learned. We fine-tuned those lessons and incorpo-rated them into our COOP. Then we held training sessions.”

With communications a problem post-Katrina, the circuit now has available cell phones that use a Houston area code, a simple yet effective work-around if the phone system in the New Orleans 504 area code is damaged.

Katrina scattered employees and closed courthouses for indefinite periods. Now there are a number of predetermined rally points where groups of court staff will ride out the storm. “Once the storm has passed,” said Crawford, “we can return to the New Orleans facilities, assess the damage and, based on the GSA esti-mated time of repair, make a deci-sion on whether or not to relocate the

court.” Emergency contact informa-tion for staff now includes the phone numbers where people plan to go during a storm—not just their home phones.

Phones didn’t work after Katrina, but websites generally were acces-sible. So a commercially-based website, located on a server out of harm’s way in Phoenix, Arizona, will give court unit heads a site to post notices for staff. Nearly half the staff now have laptop computers to take with them in a disaster to access the DCN remotely, along with “fly-away” kits with everything they need to set up shop in a remote location. Wallet cards have impor-tant telephone numbers and web addresses.

Finally, the federal district and appellate courts in New Orleans have established their own guid-ance for closing. “Previously, we waited for the City of New Orleans to evacuate, which was often at the last minute,” said Crawford. “Now, when we’re in the strike zone of a Category II storm or higher, and it’s within 72 hours of landfall in New

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Orleans, we intend to close the court and evacuate from New Orleans.”

The Eleventh Circuit is no stranger to hurricanes either. In August and September of 2004, three major hurricanes hit Florida. In 2005, Katrina closed courts in the circuit’s Southern District of Alabama. Now the courts are gearing up for another season.

“We try to involve as many people as possible in our COOP planning,” said Chief Deputy Clerk Steven M. Larimore in the Southern District of Florida. “All the court’s sections have active, updated COOP Opera-tion Action plans that are kept online and also offsite as paper copies.” The district plans to conduct table top exercises on the COOP with senior managers, other court units, and the U.S. Marshals Service in early July.

Redundancies will be built-in by the district. “For example, following a storm,” said Larimore, “if they have no other means of contacting the court, employees will be able to leave their status on our Internet site, or if that’s down, they will be able to send an e-mail to an external e-mail account that we can monitor and retrieve messages.”

The court is meticulous about backing up data. Files and records are backed-up nightly and tapes stored off-site. There are redundant computer servers. Replaced yet func-tional computer equipment is stored in divisional offices for use by storm-displaced staff. Staff have “drive away” kits with everything they’ll need to take care of essential func-

tions for 30 to 60 days, should a divi-sion be shut down.

A new wrinkle on the court’s tele-phone system was added this year that will let the court track staff scat-tered in a storm. An 800-number just for employees will deliver a message on the court’s status, then allow employees to post their own status message. Staff also are issued laminated wallet cards with impor-tant phone numbers and, in an idea borrowed from the Middle District of Florida—refrigerator magnets with emergency numbers.

To fine-tune their own COOP, the Bankruptcy Court for the Southern District of Florida will participate in a training exercise with the district court, the General Services Adminis-tration (GSA) and the U.S. Marshals Service (USMS), among other agen-cies. The bankruptcy court’s COOP changed dramatically this year, when the court implemented the Case Management/Electronic Case Files system, according to Jose A. Rodriguez, the court’s director of Administrative Services.

“It adds a backup system that we didn’t have before,” said Rodri-guez. “Before a hurricane strikes, we’ll request the fail-over to the Replication Center, well outside the hurricane strike zone. Attorneys can continue to file because they’ll be redirected to the alternate site server. After the hurricane, the Replication Center will overnight a tape with our database back to us and we will restore it to our CM/ECF server. Granted it is more complicated than

it sounds, but it is an additional layer of protection.”

Courts’ vulnerable automa-tion systems have a resource in the AO. The AO can provide disaster recovery e-mail servers, CM/ECF case manage-ment services and external COOP web servers for the courts, in addition to being able to provide new servers for nationally-supported applica-

tions within a short time frame. “Once we have the potential

land fall projections,” said Neal Dillard, chief of the AO’s Wide Area Network Management Branch, “we contact the courts for their building closure plans, points of contact, and their expected contingency plans for relocation. It’s critical that we know when they are turning off their building networks so we do not expend efforts restoring the site.” According to Dillard, it’s a matter of communication.

“Know what is covered nation-ally. Determine what is only covered locally. And then communicate, communicate, communicate,” he said.

Sheryl Loesch, clerk of court in the Middle District of Florida, and Andy Coomes, courthouse project coordinator, have taken that advice to heart. Satellite phones have been added for divisional office managers, the chief judge and the clerk. A secure site on a public website is available for staff to log-on and leave a status message. “It’s a way for us to track employees after a storm.” said Loesch, “It’s also a way for staff to let us know what their needs are.” Court staff who telecommute already have VPN access at home, so working from home is possible if the courthouse is closed, and Coomes is working with the GSA and the USMS to identify relocation sites other than court sites, where busi-ness can continue. In the planning stage is a server, to be located inland at Ocala, for instantaneous mirroring of all court files. With this replication

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one of the busiest federal judges in America today, his criminal felony docket swollen mostly as the result of heightened law enforcement efforts aimed at illegal immigration.

Federal courts along the southwest border are in crisis mode, contending with criminal caseloads that have skyrocketed since the late 1990s. Drug prosecutions, once the primary cause, have not waned but immigration cases have surpassed them and now drive the unprecedented numbers.

“Additional judges are desper-ately needed,” said Judge W. Royal Furgeson (W.D. Tex.) of San Antonio, who chairs the Judicial Resources Committee of the policy-making Judi-cial Conference of the United States. “Courts throughout the country have all the work they can handle, but federal judges in the border courts are being worked beyond exhaustion.

Congress has to step in and give them relief, the sooner the better.”

Not only judges are affected; all in the criminal justice system struggle to keep pace. “You can add Border Patrol agents but if you do, you’d better think upstream. You’d better think marshals, you’d better think pros-ecutors, probation and pretrial services officers, defense lawyers, judges, and clerk’s staff—all of those things,” said Judge Robert Brack (D. N.M) in Las Cruces.

Clint Johnson, a federal pros-ecutor in Las Cruces, agrees. “When you talk about the number of Border Patrol officers and Customs Enforcement officers that are being added to the line, I think that solves part of the problem, if you believe the problem needs more law enforcement,” he said.

“However, it’s an entire pipeline system. If you’re going to increase those resources, the number of arrests are going to increase. Then the number of federal prosecutors needs to increase, your number

of public federal defenders, the court staff, the court buildings to handle it,” Johnson said.

Some in Congress have heard that message. “We have a crisis on our borders and the status quo is not acceptable. . . .We must have more federal judges,” Senator Pete Domenici (R-N.M.), said in comments entered into the Congressional Record in April.

In Las Cruces, Deputy-Clerk-in-Charge Marty Silva reports that taking lunch breaks is rare for members of her staff; working Saturdays and Sundays is common. Robert Kinney, who super-vises the federal public defender’s office there, says he could add six more lawyers tomorrow and “keep

them all with a full caseload.”Criminal felony cases—those

crimes punishable by at least a year in prison—have climbed 287 percent in New Mexico’s federal district courts since 1997. Immigration-related felony cases have increased 661 percent in that span.

The average felony caseload (felony cases per authorized judge-ship) nationwide is 87. In the District of New Mexico, which ranks first, the average is 405.

The Southern District of Texas ranks third, with an average of 326. But the district’s Laredo division, home to Kazen and Judge Micaela Alvarez (S.D. Tex.), carries 2,800 felony cases—an average of 1,400 per judge.

Magistrate judges often handle initial proceedings in felony cases, in addition to handling from start to finish the many more numerous misdemeanor prosecutions. In the first four months of 2006, the two magistrate judges in Del Rio (in the Western District of Texas) presided over 15,586 cases.

In 2005, more than one-third of all federal felonies prosecuted in the United States came from five of the 94 judicial districts—the southwest border courts of the District of New Mexico, the Southern and Western

A defendant has his restraints checked before being led into a federal courtroom. In federal courtrooms throughout the southwest, defendants appear in full body restraints because there are not enough deputy U.S. marshals to ensure security.

Most apprehended illegal aliens from Mexico are returned administratively, but those whom the govern-ment chooses to prosecute criminally are flooding the federal courts along the southwest border.

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Districts of Texas, the District of Arizona and the Southern District of California. The same appears to be the case in 2006, as “organized chaos” remains part of the daily courthouse regimen.

Not long after dawn, van after van arrive at a secured area of the federal courthouse in Laredo. Their shackled passengers file out in silence at the direction of U.S. marshals. A crowded 70-passenger bus lumbers in and its passengers, most of them wearing orange jumpsuits, join the process.

They have traveled hundreds of miles, from jail cells rented by the federal government all over south Texas, for what will be a brief courtroom appearance. In all, U.S. marshals in Laredo have 2,500 pris-oners in custody at any one time.

The men and women are separated into smaller groups and herded to holding cells upstairs to meet the lone defense lawyer who will represent all of them. Then, still fully restrained, they shuffle into a magistrate judge’s courtroom, 30 or 40 at a time.

“Security is a main concern,” said Alex Ramos, the deputy U.S. marshal in charge of the Laredo divi-sion. The overwhelming majority of the prisoners offer no threat of violence, but their sheer numbers make full restraints necessary. “In most federal courts, the ratio of pris-

oners to deputy marshals is one-to-one or two-to-one,” Ramos said. “Here, as it is in most other border courts, it’s more like 30-to-one even though we enlist help from other law enforcement agencies.”

Most of the prisoners are Mexican nationals charged with immigra-tion-related U.S. crimes. Before they reach the courtroom they are told, in Spanish or English, about the charges against them and the options they have. Virtually all will plead guilty to a misdemeanor offense. If the crime is illegal entry, they will be sentenced to the short time they have served behind bars awaiting their day in court, and be deported.

In the Laredo division, Magis-trate Judge Adriana Arce-Flores (S.D. Tex.) alternates seamlessly between English and Spanish as she addresses the first group of 42 defendants and the government and defense lawyers who play a part in their legal cases. Most of the prisoners wear earphones and rely on a court inter-preter when English is used.

“The lawyers are used to the orga-nized chaos,” Arce-Flores said after her morning on the bench navigating nearly 100 cases. “We here on the border have learned to be efficient.”

One fact should not be over-looked: only a tiny percentage of the illegal aliens apprehended each year

(more than 1 million in 2005) along the 1,989 miles of border the United States shares with Mexico ever face prosecution in federal courts. The overwhelming majority are handled administratively by Border Patrol agents and other law enforcement agencies—those apprehended are escorted to the border and told to go home.

A person who enters the United States illegally to look for work and has no other criminal charge pending typically may be “voluntarily returned” to Mexico more than a dozen times before facing the charge of illegal entry. Some did not get into federal court until they amassed 60 voluntary returns.

Citing that reality, Brack said, “I’m not in the policy-making or policy-advising business. I enforce policy. But what I’ve come to know is that if they were to prosecute everyone they apprehended we would just absolutely collapse under the weight of it.”

Rob Johnson, an assistant U.S. attorney in Laredo, cited prosecuto-rial discretion in acknowledging a startling irony. “As Congress ratchets up the number of agents they have down here creating cases, we increase the number of cases that we

See IN-Depth on page 8

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dismiss.” Noting that unfilled pros-ecutor jobs exist because of budget constraints, he added, “We can’t prosecute any more cases than we already are prosecuting. So, if they increase the number of cases, we’re just going to have to dismiss more cases, or not take more cases.”

In Las Cruces, federal prosecutor Clint Johnson voiced another frustra-tion—the inability to more aggres-sively prosecute the criminal organi-zations behind the illegal drug and illegal immigration trafficking.

“Because of the caseload, we can’t always be as proactive as we’d like to be because we’re so busy being reac-tive,” he said. “Those cases do exist, we do work them up the ladder. To be very honest, would I like to spend a lot more time trying to work up the ladder to some of these organiza-tions? Most definitely.”

As resources pour into those agen-cies responsible for apprehending illegal immigrants, the rest of the criminal justice system suffers from relative neglect. “We really are part of homeland security,” said Anita Chavez, chief of probation and pretrial services for the District of New Mexico. “When you arrest someone along the New Mexico border, my people see them within 24 hours. The impact is immediate.”

She adds, “Our biggest concern is

that by not having the resources we might miss something, that there is someone coming across the border who is not who he says he is. And we don’t have the time to process it appropriately, that the volume is so high we didn’t check everything that we should.”

Those prisoners who are convicted of, or plead guilty to, more serious crimes—felonies—must be sentenced by a district judge. Judge Frank Montalvo (W.D. Tex.) in El Paso calls it the most important and most diffi-cult task any judge must do.

“Respecting the dignity of any defendant is essential,” he said. “I’m duty-bound to follow the law, I’ve taken an oath to follow the law. If I need to send that person away for 78 months, 98 months, that’s what I have to do. But I need to respect that person’s dignity.

“I am a judge, not a processor. Any time someone comes before me in a criminal case, the full weight of the Constitution comes into play. Here is where the ‘due process’ the founding fathers talked about a couple of hundred years ago gets tested. Here is where the rubber meets the road,” Montalvo said.

Elsewhere in the El Paso court-house, Magistrate Judge Norbert Garney (W.D. Tex.) calls his work a balancing act. “I loathe assembly line

justice, but the reality is I can only pull in a certain number of bodies per day, per hour, and process their cases,” he said. “I try to give every defendant as much personal atten-tion as I can. I even take questions. But at a certain point, you cut it off or we’re going to be sitting here until 10, 11 or 12 every single night.”

The effects of stress and the possi-bility of burnout loom large.

“My heart gets broken several times every day doing this job,” Brack said after sentencing several men to prison. “I’m a father and a husband just like these people I’m talking to. I relate to them as a husband and a father, but I’m also a judge. When their efforts on behalf of their family involve breaking the laws of the United States, I have to say ‘basta’—enough.”

Montalvo tells his law clerks he expects them to be very tired each Friday evening, “but I also let them know that if they get stressed out we need to talk about it.”

It’s not only the volume of cases in his court that can be wearing, he said. “There’s a misconception else-where in the country that everything we do here is routine. This concept is simply misguided. Our caseload is more sophisticated than that.”

Judges along the southwest border and those who work for them try hard to do justice in each case, but many judges voice concerns.

“The increase in our criminal case-load, especially in Las Cruces, has caused us to conduct hearings in a way that we’ve never had to conduct them before, and in a way that other jurisdictions don’t have to,” said Chief Judge Martha Vazquez of the District of New Mexico.

“We have . . . up to 90 defendants in a courtroom. Our magistrate judges try very hard to conduct these hearings in a way that is understand-able to the defendants. But most of

2005 Judicial Conference Judgeship Recommendations - Southwest Border Courts

DistrictAuthorized Judgeships

March 2005 Judicial Conference Recommendation

Calendar Year 2005

Weighted Filings per Judgeship

National Average - Weighted Filings

per Judgeship

Texas-Southern 19 3P 579 480

Arizona 13 4P, 1T 656 480

California-Southern 13 1P 369 480

New Mexico 7 1P, 1T 574 480

P = Permanent Judgeship; T = Temporary Judgeship

I N - D E P T H continued

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Class Action Fairness Act’s Judicial Impact Under Study A long-term study of what impact

the Class Action Fairness Act of 2005 (CAFA) is having on the federal courts has produced its first interim progress report, one that shows that the number of class action cases dramatically increased in three busy district courts since the early 1990s.

CAFA, which took effect February 18, 2005, is aimed at removing class action cases from state to federal courts.

The Federal Judicial Center’s interim report was presented to the Judicial Conference’s Advisory Committee on Civil Rules on May 22. It noted big increases in class action cases handled by the U.S. district courts for the Eastern District of Pennsylvania, Northern District of Illinois, and the Southern District

California, the courts that comprised the study’s initial focus.

A previous FJC study found that those three courts and one other (the Southern District of Florida) resolved 407 class action cases over a two-year period ending in 1994.

The current study found that in the four-year period ending June 30, 2005, there had been 348 class action filings in Pennsylvania Eastern, 1,062 in Illinois Northern, and 465 in Cali-fornia Northern.

“Though the time period in the current study was twice as long and the cases studied were filings and not terminations, those differences do not account for the more than fourfold difference in the number of cases,” the interim report said.

It added, however, “Our current

data do not yet allow us to tell whether there have been signifi-cant changes in class action filings in federal courts generally.”

Tom Willging, leader of the FJC’s study, said that an eventual goal is a before-and-after-CAFA comparison of federal class action caseloads.

The next report, expected in September, likely will include data for all district courts using the Case Management/Electronic Case Files System (as of May, 89 of the 94 district courts were using that case manage-ment system).

To read the interim report, go to http://www.fjc.gov/library/fjc_catalog.nsf and click on Recent Mate-rials.

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our defendants have a first or second grade education in their native coun-tries. Some of them are not even able to read in their native languages. And so, we explain to them their constitutional rights in a legal system entirely foreign to them,” she said.

“You line them up in a courtroom that is intimidating even to American citizens, and we ask them to waive their constitutional rights. It is a diffi-cult atmosphere in which to waive important constitutional rights, and to ask them if they understand their rights. Defendants in other parts of the country do not have to give up critical rights in this atmosphere, only in the border districts because of this exploding caseload,” Vazquez said.

Visiting federal judges from else-where in New Mexico and from other districts around the country help keep the court docket in Las Cruces afloat. But the number of judges who can visit is limited by the

costs and a courthouse space crunch. Plans for a new courthouse are on hold, victimized by budget woes.

The court in El Paso likely could qualify for another magistrate judge, but Judge David Briones (W.D. Tex.) reported, “We simply have run out of space.” A new courthouse is being built there.

Those under siege know that their caseload reflects a problem of national, not regional, proportions.

“All these drugs are not coming to Laredo. All this stuff is just passing through,” Kazen said. “Likewise, the aliens rarely want to come and work cutting grass in Laredo. Most of them are trying to go north. They’re ending up all over the country.”

Magistrate Judge Richard Mesa (W.D. Tex.) in El Paso sounds the same theme. “Narcotics prosecu-tion here is intended to stop the flow before the narcotics get to the interior of the country. The same applies in the immigration area,” he said. “There’s a tremendous number

of prosecutions brought here, but illegal immigrants are working and living throughout the United States.”

In Laredo, Arce-Flores believes border courts are growing accus-tomed to the unrelenting pace. “But the visiting judges who come to help us, they are shocked,” she said.

Chief Judge William Downes of the District of Wyoming has served in Las Cruces as a visiting judge. In Wyoming, he said, he may sentence 75 people a year to long prison terms. In Las Cruces, he has sentenced 50 in a week.

“The challenge that my border colleagues have is astonishing,” Downes said. “I’ll go down there for two weeks and I go home exhausted. But I can go home. They stay, day in and day out. I don’t know how they deal with it. It is unbelievable the work they do. They are my heroes. They are at the front line of this crisis in our country.”

IN-Depth continued from page 8

The Third Branch n June 2006

10

THE

THIRD BRANCH

Published monthly by theAdministrative Office of the U.S. Courts

Office of Public AffairsOne Columbus Circle, N.E.

Washington, D.C. 20544(202) 502-2600

Visit our Internet site at http://www.uscourts.gov

DIRECTORLeonidas Ralph Mecham

EDITOR-IN-CHIEFDavid A. Sellers

MANAGING EDITORKaren E. Redmond

PRODUCTIONLinda Stanton

CONTRIBUTORDick Carelli

Please direct all inquiries and address changes to The Third Branch at the above address or to Karen_Redmond@ao.uscourts.gov.

JUDICIAL BOXSCORE As of June 1, 2006

Courts of Appeals Vacancies 18

Nominees 9

District Courts Vacancies 34

Nominees 14

Courts with “Judicial Emergencies” 24

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

J U D I C I A L M I L E S T O N E S

Appointed: Brett M. Kavanugh, as U.S. Court of Appeals Judge, U.S. Court of Appeals for the District of Columbia, May 30.

Appointed: Patrick J. Schiltz, as U.S. District Judge, U.S. District Court for the District of Minnesota, May 30.

Appointed: Michael R. Barrett, as U.S. District Judge, U.S. District Court for the Southern District of Ohio, May 25.

Appointed: Gray H. Miller, as U.S. District Judge, U.S. District Court for the Southern District of Texas, May 15.

Appointed: Stacey G. Jernigan, as U.S. Bankruptcy Judge, U.S. Bank-ruptcy Court for the Northern District of Texas, May 12.

Appointed: Victoria S. Kaufman, as U.S. Bankruptcy Judge, U.S. Bank-ruptcy Court for the Central District of California, May 2.

Elevated: U.S. District Judge Robert W. Pratt, to Chief Judge, U.S. District Court for the Southern District of Iowa, succeeding U.S. District Judge Ronald E. Longstaff, May 2.

Senior Status: U.S. District Judge Oliver W. Wanger, U.S. District Court for the Eastern District of Cali-fornia, May 31.

Senior Status: U.S. District Judge Harvey E. Schlesinger, U.S. District Court for the Middle District of Florida, June 5, 2006.

Retired: Senior U. S. District Judge F. A. Little, Jr., U.S. District Court for the Western District of Louisiana, May 15.

Retired: U.S. Bankruptcy Judge William Houston Brown, U.S. Bank-ruptcy Court for the Western District of Tennessee, May 31.

Resigned: U.S. Court of Appeals Judge J. Michael Luttig, U.S. Court of Appeals for the Fourth Circuit, May 10.

Deceased: Senior U.S. District Judge Frederick A. Daugherty, U.S. District Court for the Western District of Oklahoma, April 7.

Deceased: Senior U.S. District Judge S. Hugh Dillin, U.S. District Court for the Southern District of Indiana, March 13.

Deceased: Senior U.S. District Judge Edward R. Becker, U.S. Court of Appeals for the Third Circuit, May 19.

Deceased: Senior U.S. District Judge Robert E. Varner, U.S. District Court for the Middle District of Alabama, May 17.

Deceased: U.S. Bankruptcy Judge Bert M. Goldwater, U.S. Bankruptcy Court for the District of Nevada, May 3.

The Third Branch n June 2006

revisions identified and approved by the Judicial Conference.

The Judicial Conference, also looked at what defines a judicial space emergency for a court, revis-ited the Judiciary’s process for deter-mining whether to close facilities without a resident judge, endorsed recommenations on lease-construc-tion, and adopted a policy for circuit judicial councils to use when approving new appellate chambers.

“These actions by the Judicial Conference since the imposition of the courthouse construction mora-torium support cost-containment initiatives within the Judiciary,” said Roth. “There is no question that the Conference recognizes the signifi-cant impact the building program is having on the Judiciary’s budget and the need to control rental costs both now and in the future.”

hURRICANe continued from page 5 MORAtORIUM continued from page 3

11

Emergency Leave Transfer Program Open to JudiciaryThe President has signed into law

P.L. No. 109-229, an act requiring the Office of Personnel Management, after consultation with the Adminis-trative Office, to allow federal judi-cial branch employees to partici-pate in an emergency leave transfer program for disasters and emergen-cies. The legislation passed the full Senate last fall and was passed by the House in May 2006.

Shortly after Hurricanes Katrina and Dennis uprooted thousands of people throughout the Gulf Coast region, the Judicial Confer-ence requested legislative authority to allow employees of the judicial branch to participate in emergency leave transfer programs. Senator Susan Collins (R-ME), Chair of the

Senate Homeland Security and Governmental Affairs Committee, agreed to introduce S. 1736 on an expedited basis, given the emergency situation in the Gulf Coast region.

Prior to passage of the legisla-tion, in the event of a major disaster or emergency that resulted in severe adverse effects for a substantial number of federal employees, the Office of Personnel Management, at the direction of the President, had the authority under 5 U.S.C. 6391 to establish an emergency leave transfer program at executive branch agencies.

Under such a program, an employee in an executive agency, at the agency’s discretion, could donate unused annual leave for

transfer to employees of his or her agency or to employees of other executive branch agencies who were adversely affected by the disaster or emergency. P.L. 109-229 provides employees of the judicial branch, including the courts, with the same flexibility and authority to partici-pate in such programs as the execu-tive branch.

Since 1997, emergency leave transfer authority has been used for the executive branch three times: after the African Embassy bomb-ings in 1998, following the terrorist attacks of September 11, 2001, and in the aftermath of Hurricane Katrina in 2005.

service, no files would be lost and all would remain accessible.

William McCool, clerk of court for the Northern District of Florida, makes sure his district updates their COOP annually.

“This year, we’ve added gener-ator capacity for emergency power so our telecommunications closets will also have emergency power. We’re also updating our COOP with information specific to a possible influenza pandemic” he said. Like the Southern District of Florida, his district has backup plans for their CM/ECF system and e-mail programs. They’ve also moved the servers with the court’s financial accounting and jury management

systems to Tallahassee where they are less vulnerable.

McCool commended the AO’s responsiveness following the 2004 hurricanes and Katrina. Bill Lehman’s JEPO team at the AO is compiling the lessons learned from the hurricane so that courts are even better prepared.

“The steps courts are taking now,” said Lehman, “to develop relationships with local emergency responders, compile lists of contact phone numbers, improve communi-cations, back up systems and train personnel are all part of preparing for and communicating during a disaster. A good COOP makes it easier for a court to return to normal operations.”

The Third Branch n June 2006

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Defendants Charged With Terrorism in the Federal Courts

Between fiscal years 1997 and 2005, terrorism was the major or primary offense charged in the cases of 197 defen-dants in federal court. Terrorism also could be brought as a secondary or minor charge; in the same time period, a total of 336 defendants faced charges where terrorism was the major or minor charge.

Following the terrorist bombing attacks of 9-11, terrorism as a major offense jumped from five defendants in FY 2000 to 52 defendants in FY 2001. In FY 2005, 35 defendants were charged with terrorism as a major offense.

Thank you for Responding. . . .Over 900 readers responded to our Third Branch

newsletter survey. Here’s what you told us:Over 90 percent of the respondents said they

get most of their news about the Judiciary from The Third Branch. You preferred articles about, in descending order of choice, legislation, court management, automation, and judicial issues. When asked for the story topics that are particu-larly relevant to your position, budget was by far the most popular. Many respondents suggested topics for coverage, such as “best practices” in the courts, trends in case management, benefits, bank-ruptcy issues, and how courts face challenges.

Generally, readers taking the survey thought The Third Branch was “good as is,” but didn’t hesitate to tell us where they thought improve-ments could be made. We’re taking these into consideration. While many readers said they preferred the print edition, a significant number said they read the newsletter on-line. With that in mind, we’re looking at a redesign of the electronic newsletter to make it more accessible.

Your thoughts on The Third Branch are welcome any time. If you have a story idea, a correction, kudos, or a complaint just send an e-mail to the Editors, care of Karen_Redmond@ao.uscourts.gov. We’ll look forward to hearing from you.

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