While public attention gravitates, as of this writing, toward the Senate’s confirmation of Judge Neil Gorsuch to fill the ninth seat on the U.S. Supreme Court, there’s another time-sensitive matter requiring congressional attention.

The situation involves the urgency of the 29 temporary bankruptcy judgeships in 19 judicial districts that are set to expire on May 25, 2017. Unless Congress reauthorizes these temporary bankruptcy judgeships by May 25, by law any bankruptcy judgeship vacancy occurring in any of those 19 districts after May 25 cannot be filled. In districts with multiple temporary judgeships, additional vacancies occurring after May 25 could lead to even more lost judgeships.

The 29 temporary judgeships are located in the following 19 judicial districts: Central District of California (3); Eastern District of California (1); District of Delaware (5); Southern District of Florida (2); Southern District of Georgia (1); District of Maryland (3); Eastern District of Michigan (1); District of Nevada (1); District of New Jersey (1); Northern District of New York (1); Eastern District of North Carolina (1); Middle District of North Carolina (1); Eastern District of Pennsylvania (1); Middle District of Pennsylvania (1); District of Puerto Rico (2); District of South Carolina (1); Eastern District of Tennessee (1); Western District of Tennessee (1); and Eastern District of Virginia (1).
In 2015, the Judicial Conference of the United States, the policy-making body of the federal judiciary, recommended that Congress convert 16 of these temporary judgeships to permanent status and authorize six new permanent judgeships based on high caseloads in certain districts. Bills were introduced in the House and the Senate to fulfill those recommendations, but Congress failed to take action on the Judicial Conference’s request during its relatively short session last year.

Congress last year also refrained from taking action on a stopgap proposal to provide one-year extensions to the most critical temporary bankruptcy judgeships in courts with especially high caseloads. That short-term extension would have extended seven temporary bankruptcy judgeships located in the following judicial districts: District of Delaware (2); Southern District of Florida (2); and Eastern District of Michigan (1); District of Puerto Rico (1); Eastern District of Virginia (1).

In March 2017 the Judicial Conference, as required by law, transmitted to Congress its biennial recommendations for the authorization of additional federal judgeships, including additional bankruptcy judgeships. The Judicial Conference’s recommendation proposed the creation of four new permanent bankruptcy judgeships and the conversion to permanent status of 14 existing temporary bankruptcy judgeships. The Judicial Conference’s recommendations follow the completion of a robust fact-finding process, based upon an examination of each court’s workload, geographic needs and other factors.

During FBA Capitol Hill Day on April 20, FBA leaders from across the country will urge Congress to address the judgeship needs of the federal courts, including those of the bankruptcy courts.

A Revival of Ninth Circuit Split Proposals
Legislative proposals once again have surfaced to split the Ninth Circuit into two circuits. In February, Sens. Jeff Flake (R-Ariz.) and John McCain (R-Ariz.) introduced the Judicial Administration and Improvement Act, S. 276, a measure that would remove six states from the geographic coverage of the Ninth Circuit Court of Appeals and install them in a newly created Twelfth Circuit. Under the bill, only California, Oregon, Hawaii, the Northern Mariana Islands, and Guam would remain in the Ninth Circuit. A new Twelfth Circuit Court of Appeals under the measure would cover Nevada, Washington, Idaho, Montana, Arizona, and Alaska. Additional approaches to divide the Ninth Circuit differently have been introduced by other Western lawmakers, including Sen. Steve Daines (R-Mont.), Rep. Andy Biggs (R-Ariz.) and Rep. Michael Simpson (R-Idaho).

Split proponents argue that the Ninth Circuit has become too big, too liberal, and too slow in resolving cases. Opponents counter that justice is being effectively and efficiently administered by the Ninth Circuit, despite its size. Congressional efforts to split the circuit go back to 1941. The FBA opposed split proposals the last time the issue received serious attention in Congress in 2005-06.

Bruce Moyer is government relations counsel for the FBA. He also serves as counsel to the National Association of Assistant U.S. Attorneys. © 2017 Bruce Moyer.
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