Although the federal court system managed to find sufficient “no year” funding to stay open one more week (until January 18), the ongoing federal government shutdown has begun to affect the system’s daily operations. Several district courts are reportedly staying some civil cases, especially those involving the U. S. government as a party. Courts are also cutting back on operational spending such as travel, supplies, and new equipment.
All court employees are continuing to receive full pay as of now, but if the shutdown continues beyond the 18th, non-essential employees would be furloughed and essential employees will continue to work without a paycheck. In small district courts like the Northern District of Iowa, staffing is already sufficiently thin that all employees would be considered essential even if funds were to run out.
As bad as this news is for the courts, it dramatically illustrates the importance and wisdom of the AO’s internal budgeting operations. As I have discussed elsewhere, it was not until the late 1930s that the federal court system obtained control over its own budget. Even though the courts cannot control how much money they receive from Congress, the ability to manage that money with forethought is exactly why they have been able to weather the shutdown (at least for now) while other federal government offices have closed or reduced operations.
Consider, for example, the dire situation at the Justice Department, where the Antitrust and Civil Divisions already have reportedly furloughed more than half of their staffs. As a Bloomberg story explains:
A continued shutdown could seriously hamper some of the civil division’s broad and crucial mandates that range from ensuring healthy market competition and weeding out Medicare fraud to defending the U.S. in lawsuits and recouping money for the Treasury. The effect could then spill over into the department’s criminal division and federal courts, a scenario that could jeopardize law enforcement nationwide.
Not good news. Not good at all.
Members of Congress have recently introduced several bills that would affect the staffing, administration, or jurisdiction of the federal courts. Among them:
- The Injunction Authority Clarification Act of 2018 would prevent a court from enforcing an injunction against a non-party to the suit, “unless the party is acting in a representative capacity pursuant to the Federal Rules of Civil Procedure.” Howard Wasserman has a good analysis of the bill here.
- The Electronic Court Records Reform Act of 2018 would ensure free public access to public records on the federal courts’ PACER system. Members of the public are currently charged 10 cents per page to access documents online, unless they obtain a fee waiver from the individual court in which the case is pending. I know PACER can be a meaningful source of income for the court system, but I have long supported opening up PACER access without fee restrictions.
- The ROOM Act would add 52 new federal district judges, and would require the Supreme Court (by audio) and Courts of Appeal (by video) to stream their oral arguments live when possible, and otherwise with an archive delay. None of these proposals is new, and indeed the addition of district judges has long been requested by the courts themselves.
We’ll see if, and how, any of these nascent pieces of legislation develop.
Last week, Senator Charles Grassley promised to hold a hearing on the federal courts’ response to workplace harassment, which culminated in a working group report. The Washington Post reports on that hearing here.
From the story:
Sen. Dianne Feinstein (D-Calif.), the top Democrat on the Judiciary Committee, said in her opening statement that she was troubled by some aspects of the report.
“I’m also concerned that the working group’s report didn’t quantify the prevalence of sexual harassment in the judiciary and instead relied on previous EEOC data,” said Feinstein, using an acronym for the Equal Employment Opportunity Commission.
Grassley said in an interview that the report seemed like a way to “create the appearance of caring” while leaving “employees of the judicial branch without a vehicle for reporting abuses.”
The Iowa Republican said he would like to see an independent watchdog for the judiciary that could take and investigate reports of harassment. While Congress could theoretically get involved with legislation, he said, that might be difficult to accomplish in practice.
This week, the Federal Judiciary Workplace Conduct Working Group released its report and recommendations, which covered a range of workplace conduct including sexual harassment.
Senator Chuck Grassley is not impressed with the final report, stating that “The report lacked very serious proposals and, in a sense, just kind of kicked the can down the road.” He wants Congressional hearings on the matter.
Representatives of the federal judiciary testified before the House Appropriations Subcommittee on Financial Services and General Government today, issuing a budget request for $7.22 billion for Fiscal Year 2019. The request reflects an overall increase of 3.2 percent to maintain current services and fund priority initiatives — including $95 million for cybersecurity.
Seven billion dollars is nothing to sneeze at, but it represents a tiny fraction of the overall national budget (currently proposed at $4.41 trillion for FY19). The requested judicial budget is one percent of the White House’s 2019 allocation for national defense alone. It is, in the end, a remarkably small amount of money to fund the operations of an entire branch of government.
N.B. — in the link above, the U.S. Courts helpfully included a video of the entire hearing before the House Appropriations Subcommittee. Remarkably, this act of transparency did not hopelessly compromise the integrity of the federal judiciary. It’s time to bring similar video technology into the courtroom.
The Administrative Office of the United States Courts has released its 2017 annual report, which includes a wealth of caseload statistics for the district courts and circuit courts of appeal. It’s a fascinating read for those who like reams of data.
For those who just want the punchline, Law360 gives a good summary:
In the fiscal year ending Sept. 30, 2017, case filings fell in federal courts of appeal by 16 percent and in district courts by 7 percent, while petitions to U.S. bankruptcy courts fell by 2 percent, bringing the overall number of cases filed in each of those courts to their lowest levels since at least fiscal year 2013, the report shows.
Since 2013, the number of cases filed in federal appellate courts have dropped by 10.5 percent, while the number filed in district courts have fallen 6 percent and federal bankruptcy petitions have declined by 28.5 percent, according to the data, which pointed to a few factors that impacted the year-on-year decline in each of those courts.
In U.S. district courts, the decline from 2016 was driven by a reduction in civil filings. They fell 8 percent from approximately 291,000 to just under 268,000 from one year to the next, while civil filings per authorized judgeship dropped from 431 in 2016 to 396 in 2017, the report said.
For law geeks with small children, the highlight of every New Years Eve is the quiet posting of Chief Justice Roberts’s Year-End Report on the federal courts website. It is a predictably comfortable document that invariably begins with a 200-year-old anecdote, proceeds through a single chosen topic in 10th-grade detail, and ends with a brief recitation of court statistics. In other words, it’s a little like Dave Barry’s annual year-end column, if that column were written by John Roberts instead of Dave Barry.
This year the Chief Justice’s focus is on court preparedness in the face of terror and natural disaster — an appropriate enough topic in light of last year’s hurricane season. He also includes a short discussion of the courts’ forthcoming internal sexual harassment investigation.
Finally, some interesting statistical notes:
- The Supreme Court’s docket fell again, with a little under three percent fewer filings and only 61 signed opinions.
- Filings in the Courts of Appeal fell sixteen percent, but civil appeals were actually up one percent.
- Filings in the federal district courts fell eight percent, and bankruptcy filings fell two percent.
I will probably have more to say on these figures in subsequent posts. In the meantime, Happy New Year.