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Committee Reports

107th Congress (2001-2002)

House Report 107-700

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This Report: To Accompany H.R.4125     Printer Friendly: HTML  |  PDF


{link: 'http://www.congress.gov:80/cgi-bin/cpquery?',title: 'THOMAS - Committee Report - House Report 107-700' }

FEDERAL COURTS IMPROVEMENT ACT OF 2002

107TH CONGRESS

REPORT

HOUSE OF REPRESENTATIVES

2d Session

107-700
FEDERAL COURTS IMPROVEMENT ACT OF 2002

SEPTEMBER 30, 2002- Committed to the Committee of the Whole House on the State of the Union and ordered to be printed
Mr. SENSENBRENNER, from the Committee on the Judiciary, submitted the following
R E P O R T
[To accompany H.R. 4125]
[Including cost estimate of the Congressional Budget Office]

CONTENTS Page
The Amendment 1
Purpose and Summary 7
Background and Need for the Legislation 7
Hearings 8
Committee Consideration 8
Vote of the Committee 8
Committee Oversight Findings 8
Performance Goals and Objectives 8
New Budget Authority and Tax Expenditures 8
Congressional Budget Office Cost Estimate 8
Constitutional Authority Statement 12
Section-by-Section Analysis and Discussion 12
Changes in Existing Law Made by the Bill, as Reported 16
Markup Transcript 35

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

Section 1. Short title; table of contents.
TITLE I--JUDICIAL PROCESS IMPROVEMENTS
Sec. 101. Bankruptcy administrator authority to appoint trustees, examiners, and committee of creditors.
Sec. 102. Change in composition of divisions of Eastern District of Texas.
Sec. 103. Conditions of probation and supervised release.
Sec. 104. Reporting of wiretap orders.
Sec. 105. Clarifying the scope of diversity of citizenship for resident aliens.
Sec. 106. Authority of district courts regarding jurors.
Sec. 107. Deletion of automatic excuse from jury service for members of the Armed Forces, members of fire and police departments, and public officers.
Sec. 108. Elimination of the public drawing requirements for selection of juror wheels.
Sec. 109. Supplemental attendance fee for petit jurors serving on lengthy trials.
Sec. 110. Change in composition of divisions in Western District of Tennessee.
Sec. 111. Place of holding court in the Southern District of Ohio.
Sec. 112. Place of holding court in the Northern District of New York.
TITLE II--JUDICIAL PERSONNEL ADMINISTRATION, BENEFITS, AND PROTECTIONS
Sec. 201. Disability retirement and cost-of-living adjustments of annuities for territorial judges.
Sec. 202. Federal Judicial Center personnel matters.
Sec. 203. Annual leave limit for judicial branch executives.
Sec. 204. Supplemental benefits program.
Sec. 205. Inclusion of judicial branch personnel in organ donor leave program.
Sec. 206. Maximum amounts of compensation for attorneys.
Sec. 207. Maximum amounts of compensation for services other than counsel.
Sec. 208. Protection against malicious recording of fictitious liens against Federal judges.
Sec. 209. Appointing authority for circuit librarians.
TITLE III--ADDITIONAL PROVISIONS
Sec. 301. Monitoring of communications of officers and employees of judicial branch.

TITLE I--JUDICIAL PROCESS IMPROVEMENTS

SEC. 101. BANKRUPTCY ADMINISTRATOR AUTHORITY TO APPOINT TRUSTEES, EXAMINERS, AND COMMITTEE OF CREDITORS.

SEC. 102. CHANGE IN COMPOSITION OF DIVISIONS OF EASTERN DISTRICT OF TEXAS.

SEC. 103. CONDITIONS OF PROBATION AND SUPERVISED RELEASE.

SEC. 104. REPORTING OF WIRETAP ORDERS.

SEC. 105. CLARIFYING THE SCOPE OF DIVERSITY OF CITIZENSHIP FOR RESIDENT ALIENS.

SEC. 106. AUTHORITY OF DISTRICT COURTS REGARDING JURORS.

SEC. 107. DELETION OF AUTOMATIC EXCUSE FROM JURY SERVICE FOR MEMBERS OF THE ARMED FORCES, MEMBERS OF FIRE AND POLICE DEPARTMENTS, AND PUBLIC OFFICERS.

`Sec. 982. Members: service on Federal, State, and local juries';

`982. Members: service on Federal, State, and local juries.'.

SEC. 108. ELIMINATION OF THE PUBLIC DRAWING REQUIREMENTS FOR SELECTION OF JUROR WHEELS.

SEC. 109. SUPPLEMENTAL ATTENDANCE FEE FOR PETIT JURORS SERVING ON LENGTHY TRIALS.

SEC. 110. CHANGE IN COMPOSITION OF DIVISIONS IN WESTERN DISTRICT OF TENNESSEE.

SEC. 111. PLACE OF HOLDING COURT IN THE SOUTHERN DISTRICT OF OHIO.

SEC. 112. PLACE OF HOLDING COURT IN THE NORTHERN DISTRICT OF NEW YORK.

TITLE II--JUDICIAL PERSONNEL ADMINISTRATION, BENEFITS, AND PROTECTIONS

SEC. 201. DISABILITY RETIREMENT AND COST-OF-LIVING ADJUSTMENTS OF ANNUITIES FOR TERRITORIAL JUDGES.

SEC. 202. FEDERAL JUDICIAL CENTER PERSONNEL MATTERS.

SEC. 203. ANNUAL LEAVE LIMIT FOR JUDICIAL BRANCH EXECUTIVES.

SEC. 204. SUPPLEMENTAL BENEFITS PROGRAM.

SEC. 205. INCLUSION OF JUDICIAL BRANCH PERSONNEL IN ORGAN DONOR LEAVE PROGRAM.

SEC. 206. MAXIMUM AMOUNTS OF COMPENSATION FOR ATTORNEYS.

SEC. 207. MAXIMUM AMOUNTS OF COMPENSATION FOR SERVICES OTHER THAN COUNSEL.

SEC. 208. PROTECTION AGAINST MALICIOUS RECORDING OF FICTITIOUS LIENS AGAINST FEDERAL JUDGES.

`Sec. 1521. Retaliating against a Federal judge by false claim or slander of title

`1521. Retaliating against a Federal judge by false claim or slander of title.'.

SEC. 209. APPOINTING AUTHORITY FOR CIRCUIT LIBRARIANS.

TITLE III--ADDITIONAL PROVISIONS

SEC. 301. MONITORING OF COMMUNICATIONS OF OFFICERS AND EMPLOYEES OF JUDICIAL BRANCH.

PURPOSE AND SUMMARY

H.R. 4125, the `Federal Courts Improvement Act of 2002,' contains several provisions that are needed to improve the Federal court system. The bill affects a wide range of judicial branch programs and operations. It addresses judicial financial administration, judicial process improvements, judiciary personnel administration, and benefits and protections.

BACKGROUND AND NEED FOR THE LEGISLATION

H.R. 4125, the `Federal Courts Improvement Act of 2002,' was introduced on April 10, 2002, at the request of the Judicial Conference of the United States.

Periodically, the Judicial Conference submits to the Congress proposals that it believes are necessary to improve the Federal court system. The Judicial Conference is the policy-making body of the Federal judiciary, and through a committee system evaluates court operations. The circuit judicial councils of the regional districts also have statutory responsibility for certain administrative and operational matters within the system. Most of the provisions of H.R. 4125 were developed within the judiciary and approved by the Judicial Conference.

The provisions contained in H.R. 4125 address administrative, financial, personnel, organizational and technical changes that are needed by the article III Federal courts and their supporting agencies. These provisions are designed to have a positive impact on the operations of the Federal courts and enhance the delivery of justice in the Federal system.

HEARINGS

On July 17, 2001, the Subcommittee on Courts, the Internet, and Intellectual Property held a legislative hearing on H.R. 2522, the precursor to H.R. 4125. H.R. 2522 contains all of the recommendations developed by the Judicial Conference for consideration by the 107th Congress. H.R. 4125 is devoid of certain provisions in H.R. 2522. Testimony was received from the Honorable Deanell R. Tacha, Chief Judge of the United States Court of Appeals for the Tenth Circuit.

COMMITTEE CONSIDERATION

On May 2, 2002, the Subcommittee on Courts, the Internet, and Intellectual Property met in open session and ordered favorably reported the bill H.R. 4125, as amended, by voice vote, a quorum being present. On September 10, 2002, the Committee met in open session and ordered favorably reported the bill H.R. 4125, with amendment, by voice vote, a quorum being present.

VOTE OF THE COMMITTEE

There were no recorded votes on H.R. 4125.

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the House of Representatives, the Committee reports that the findings and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report.

PERFORMANCE GOALS AND OBJECTIVES

H.R. 4125 does not authorize funding. Therefore, clause 3(c) of rule XIII of the Rules of the House of Representatives is inapplicable.

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of House rule XIII is inapplicable because this legislation does not provide new budgetary authority or increased tax expenditures.

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the House of Representatives, the Committee sets forth, with respect to H.R. 4125, the following estimate and comparison prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974:

U.S. Congress,

Congressional Budget Office,

Washington, DC, September 30, 2002.

Hon. F. JAMES SENSENBRENNER, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 4125, the Federal Courts Improvement Act of 2002.

If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contacts are Lanette J. Walker (for Federal costs), who can be reached at 226-2860, Angela Seitz (for the State and local impact), who can be reached at 225-3220, and Paige Piper/Bach (for the private-sector impact), who can be reached at 226-2940.

Sincerely,

Dan L. Crippen, Director.

H.R. 4125--Federal Courts Improvement Act of 2002.

SUMMARY

H.R. 4125 would make numerous operational and administrative changes to the Federal court system, and would authorize the judiciary to provide a supplemental payment to jurors who serve on a trial more than 5 days and to establish additional employee benefits programs. CBO estimates that implementing H.R. 4125 would cost $14 million in 2003 and $85 million over the 2003-2007 period, subject to appropriation of the necessary funds.

Because the salaries and benefits of certain Federal judges and Supreme Court justices are considered mandatory, authorizing additional benefits for these employees would increase direct spending. However, CBO estimates that those effects would be negligible in each year over the 2003-2007 period.

H.R. 4125 contains an intergovernmental mandate as defined in the Unfunded Mandates Reform Act (UMRA), but CBO estimates the costs would be small and would not exceed the threshold established in the act ($58 million in 2002, adjusted annually for inflation).

H.R. 4125 would impose a private-sector mandate, as defined by UMRA, by eliminating the automatic exemption from Federal jury service now granted to military personnel, police officers, firefighters, and certain public officials. CBO estimates that the direct cost of the mandate would fall well below the annual threshold established by UMRA for private-sector mandates ($115 million in 2002, adjusted annually for inflation).

ESTIMATED COST TO THE FEDERAL GOVERNMENT

The estimated budgetary impact of H.R. 4125 is shown in the following table. The costs of this legislation fall within budget function 750 (administration of justice).

4125CBO.eps

BASIS OF ESTIMATE

For purposes of this estimate, CBO assumes that H.R. 4125 will be enacted near the beginning of fiscal year 2003, and that the necessary amounts will be appropriated for each fiscal year.

Spending Subject to Appropriation

Section 109 would allow jurors who serve more than 5 days on a Federal trial to be eligible for a $10 supplemental payment in addition to the daily payment of $40 per juror. Under current law, only those jurors who serve on trials over 30 days are eligible to receive the supplemental payment. Based on information from the Administrative Office of the United States Courts (AOUSC), the courts compensate jurors for about 340,000 days served each year. About half of all trial days are served on trials over 5 days and very few jurors serve more than 30 days. CBO estimates that implementing this provision would cost roughly $2 million each year over the 2003-2007 period to expand the eligibility of the supplemental payment to jurors. Costs would be subject to the availability of appropriated funds.

Section 204 would allow the judiciary to provide federally subsidized employee benefits that are more generous than benefits authorized under current law. Based on information from the AOUSC, CBO expects that the judiciary would implement a cafeteria-style benefits program. Under the program, the judiciary would contribute up to $500 per employee and the employee would be allowed to tailor the plan to their individual needs; choosing from a variety of benefits including dental insurance, vision insurance, short- and long-term disability insurance, or expanded commuter subsidies.

Based on information from the AOUSC, CBO expects that dental insurance would be provided in the first year with additional options added in future years. The judiciary employs about 31,000 individuals each year and CBO expects that the rate at which those employees participate in the dental plan would be similar for Government-wide participation rates in the Federal Employee Health Benefits program. Assuming an initial participation rate of about 75 percent, the first-year cost would be about $12 million. We also expect that nearly all employees would participate in the cafeteria-style program by 2005 as additional options are added to the program, bringing the annual cost to about $16 million in that year. Assuming appropriation of the necessary amounts, CBO estimates that implementing section 204 would cost $75 million over the 2003-2007 period to expand the employee benefits program.

Direct Spending

Section 204 would allow certain Federal judges and justices to participate in any additional benefits programs offered by the judiciary. Because the salaries and benefits of certain Federal judges and Supreme Court justices are considered mandatory, the Federal cost of more generous benefit programs would increase direct spending. CBO expects that participation rates for judges and justices would be similar to other judicial employees and we estimate that additional direct spending as a result of section 240 would not be significant in any year over the 5-year period because of the limited benefit the AOUSC is likely to offer.

ESTIMATED IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS

This bill would remove the exemption from Federal jury duty that currently exists for employees of fire and police departments and public officials. Under current law, employers are prohibited from firing, intimidating, or coercing employees who are called to serve on a Federal jury. Removing the exemption would extend this mandate to State and local governments the employ the workers newly eligible for jury duty. State and local governments would incur direct costs only to the extent that they would be required to replace employees serving on a jury, in order to maintain full staffing levels. CBO estimates the costs would not be significant and, thus, would be well below the threshold established by UMRA ($58 million in 2002, adjusted annually for inflation).

ESTIMATED IMPACT ON THE PRIVATE SECTOR

H.R. 4125 would impose a private-sector mandate by eliminating the exemption from Federal jury service now granted to military personnel, police officers, firefighters, and certain public officials. The bill would require such individuals to, if selected, serve on grand and petit juries in United States District Courts. The direct cost of the mandate would be loss of net income from those individuals who would have to take the daily jury duty payment rather than their normal salary. According to the AOUSC, individuals currently exempt from jury service would most likely receive their regular salary rather than the jury pay if selected for jury duty. Further, according to the AOUSC, current exempt individuals made up roughly 1 percent of the population eligible for Federal jury duty and few of those individuals would be selected for service. Therefore, CBO estimates that the direct cost of the mandate would fall well below the annual threshold for private-sector mandates ($115 million in 2002, adjusted annually for inflation).

ESTIMATE PREPARED BY:

Federal Costs: Lanette J. Walker (226-2860)

Impact on State, Local, and Tribal Governments: Angela Seitz (225-3220)

Impact on the Private Sector: Paige Piper/Bach (226-2940)

ESTIMATE APPROVED BY:

Peter H. Fontaine

Deputy Assistant Director for Budget Analysis

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of the rule XIII of the Rules of the House of Representatives, the Committee finds the authority for this legislation in article III, section 1of the Constitution.

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

Sec. 1. Short Title; Table of Contents. This section states that this Act may be cited at the `Federal Courts Improvement Act of 2002.'

Section 101: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 U.S. trustees. Bankruptcy administrators would also be empowered to fix standing trustees's maximum annual compensation and percentage fees. Both changes would further one of the central goals of the Bankruptcy Reform Act of 1978, which is to free bankruptcy judges from an administrative role in their cases.

This section also would authorize bankruptcy administrators to serve as trustees in bankruptcy cases when necessary. Bankruptcy administrators would be granted the same authority to serve as trustees in Chapter 7 cases as United States trustees. Like United States trustees, bankruptcy administrators could serve as case trustees in Chapter 12 and Chapter 13 cases and, like assistant United States trustees, as standing trustees.

Section 102: Change in Composition of Divisions of 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. It also realigns the divisions of the U.S. District Court for the Eastern District of Texas to reflect the closing of the courthouse in Denton County. The Paris division is eliminated and its counties redistributed among the other divisions of the court. 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 103: Conditions of Probation and Supervised Release. In 1984, Congress provided that if the court in a felony case sentences the defendant to probation, that sentence, absent extraordinary circumstances, must include a requirement that the defendant also pay a fine, make restitution, or work in community service. Subsections (a) and (b) make technical amendments that ensure that two sections of title 18 governing discretionary conditions of probation are in conformity on this point.

Subsection (b) also makes an amendment to the conditions of supervised release. Prior to 1996, intermittent confinement was available as a condition of probation, but not of supervised release. Experience since 1996 has demonstrated that this form of confinement (custody by the Bureau of Prisons during nights, weekends, or other intervals of time) is appropriate in certain circumstances. First, its use should be limited, as in the case of probation, to the first year of supervision. Second, it should be ordered only when Bureau of Prisons facilities are available to accommodate the individual in question. Third, it should be available only after the terms of supervised release are violated so as to be an option for the court less severe than a revocation of supervised release. Section (b) authorizes intermittent confinement as a condition of supervised release under these three circumstances.

Subsection (c) amends the section providing for intermittent confinement to clarify that its provisions, including the temporal limitations on its imposition, apply to supervised release as well as to probation.

Section 104: Reporting of Wiretap Orders. Currently, 18 U.S.C. Sec. 2519(1) requires that Federal and State judges submit a report to the Administrative Office of the U.S. Courts no later than 30 days after the expiration of an approved order, or the denial of an order, for a wiretap. In contrast, Federal and State prosecutors submit only one report which summarizes their previous year activity.

Section 104 would permit judges to submit annual summary reports on wiretap orders acted on during the previous calendar year, just as prosecutors do. This change would simplify the reporting requirements for the judges and their staffs, without affecting the accuracy or timeliness of the reporting required by the statute.

Section 105: Clarifying the Scope of Diversity of Citizenship for Resident Aliens. This section amends Sec. 1332 of title 28 to clarify the scope of diversity of citizenship jurisdiction in disputes involving aliens admitted to the United States as permanent residents (`resident aliens'). Congress added a proviso to section 1332 in 1988 (Judicial Improvements Act) to `deem' an alien admitted for permanent residence as a citizen of the State in which the alien is domiciled with the specific purpose of denying Federal jurisdiction in suits between a citizen of a State and an alien permanently residing in the same State. However, the proviso's deeming language has been interpreted as applying to other litigation circumstances involving aliens. Thus, the Judicial Conference proposes this amendment to resolve conflicting interpretations of the resident alien proviso in 1332.

Section 106: Authority of District Courts Regarding Jurors. This section would amend 28 U.S.C. Sec. 1866(g) to clarify that a court may, but is not required to, follow up on individuals who do not respond to the jury selection process. The provision will allow a court to take appropriate action against those who do not respond to a jury summons, but leaves the decision of how to handle non-responders to the discretion of each court.

Section 107: Deletion of Automatic Excuse from Jury Service for Members of the Armed Forces, Members of Fire and Police Departments, and Public Officers. This section eliminates two categories of exemptions from jury service: (1) members of State and local fire or police departments; and (2) `public officers' of Federal and State governments.

The Department of Defense currently may authorize the exemption of members of the Armed Services from State and local jury service. Section 982 of Title 10 United States Code, 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. Subsection (c) expands this authority of the Department of Defense to include Federal jury service.

Section 108: 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. 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.

Section 109: Supplemental Attendance Fee for Petit Jurors Serving on Lengthy Trials. Section 109 shortens the number of days that a juror is required to serve before he or she is eligible for the supplemental daily fee ($10) authorized pursuant to 28 U.S.C. Sec. 1871. This change acknowledges the hardships encountered when serving on a jury for an extended period of time.

Section 110: Change in Composition of Divisions in Western District of Tennessee. Section 110 switches Dyer County, Tennessee, as a component of the Western (judicial) District of Tennessee, to the Eastern District. The change is being made as an accommodation to the affected litigants and attorneys, who currently experience travel hardships under the present District structure.

Section 111: Place of Holding Court in the Southern District of Ohio. This amendment establishes St. Clairsville as a place of holding court in the Southern District of Ohio. St. Clairsville is more conveniently located for parties, attorneys, and jurors. Also, local courtroom space is available for use.

Section 112: Place of Holding Court in the Northern District of New York. This amendment establishes Plattsburgh as a place of holding court in the Northern District of New York. Due to increased security along the border, it is expected that the number of criminal cases will increase substantially. This will enable the prompt prosecution of cases. A Federal building is available for use.

Section 201:Disability Retirement and Cost-of-Living Adjustments of Annuities for Territorial Judges. This section gives territorial judges in the district courts of Guam, the Northern Mariana Islands, and the Virgin Islands comparable retirement arrangements as other judges.

Section 202: Federal Judicial Center Personnel Matters. This amendment would restore the parity in the salary levels of the Federal Judicial Center's senior staff and that of the Administrative Office of the United States Courts by authorizing the Director of the Center to set the compensation of a limited number of Center professional employees at levels equivalent to Level IV of the Executive Schedule pay rates. The proposed language would limit the Federal Judicial Center to increase in four positions. The amendment also corrects a misspelling in the original statute.

Section 203: Annual Leave Limit for Judicial Branch Executives. This provision amends Sec. 6304(f) of title 5, United States Code, in order to exempt court unit executive positions designated by the Judicial Conference from the provisions of the Leave Act that prevent most Federal employees from carrying over more than 240 hours of annual leave from 1 year to the next. Instead, it would make applicable to court unit executives the 720 hour maximum carry over amount of annual leave that has already been established for members of the Executive Branch's Senior Executive Services.

Section 204: Supplemental Benefits Program. Section 204 authorizes the judiciary to provide its employees with a benefits package that is more competitive with those already provided throughout the private sector, State governments, colleges and universities, and the banking agencies in the executive branch. The Federal Reserve, the Office of the Comptroller of the Currency, and the Federal Deposit Insurance Corporation recognized the need to improve benefits and were granted authority by Congress to offer these same enhanced benefits.

Section 205: Inclusion of Judicial Branch Personnel in Organ Donor Leave Program. Section 205 extends the application of the Organ Donor Leave Act to the judicial branch, thereby entitling a participant to paid leave as an organ donor for 30 days each calendar year. The statute currently applies only to executive branch employees.

Section 206:Maximum Amounts of Compensation for Attorneys. This section increases the case compensation maximum amounts for attorneys by approximately the rate of inflation since 1986 (44%), the last year case compensation maximums were increased. This section also changes the case compensation maximum applicable to counsel representing non-capital habeas corpus petitioners.

Section 207: Maximum Amounts of Compensation for Services Other than Counsel. This section increases the compensation maximums of investigators, experts, and other service providers by approximately the rate of inflation since 1986 (44%), the last year case compensation maximums were increased.

Section 208: Protection Against Malicious Recording of Fictitious Liens Against Federal Judges. In recent years, members of the Federal judiciary have been victimized by persons seeking to intimidate or harass them by filing false liens against a judge's real or personal property, normally in response to an adverse and unrelated legal proceeding over which the judge presided. The current system used to dismiss the liens--invoking the services of assistant U.S. Attorneys--has not led to expeditious results, in large part because suits are often brought in State court and sometimes later removed to Federal court. Therefore, section 208 creates a new criminal sanction of up to 5 years as a deterrent to such behavior.

Section 209: Appointing Authority for Circuit Librarians. This section amends the appointing authority of the circuit librarian from the appellate court to the circuit judicial council. This change will reflect the transformation of the appellate library program into its current role of providing circuit-wide services.

Section 301: Monitoring of Communications of Officers and Employees of Judicial Branch. This section urges the Judicial Conference to safeguard the privacy of officers and employees of the judicial branch by ensuring that the Administrative Office of the U.S. Courts does not intercept their electronic communications unless the interception is pursuant to: (1) a law enforcement investigation; (2) prior authorization by the Judicial Conference (or its executive committee); or (3) a policy adopted by the Judicial Conference setting forth the procedures under which such interception may be authorized. The amendment also urges the Judicial Conference to ensure that any information obtained pursuant to an authorized interception be used solely for the purposes for which the interception is authorized.

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

TITLE 28, UNITED STATES CODE

* * * * * * *

PART I--ORGANIZATION OF COURTS

* * * * * * *

CHAPTER 5--DISTRICT COURTS

* * * * * * *

Sec. 83. Arkansas

EASTERN DISTRICT

* * * * * * *

WESTERN DISTRICT

* * * * * * *

Sec. 112. New York

NORTHERN DISTRICT

* * * * * * *

Sec. 115. Ohio

NORTHERN DISTRICT

* * * * * * *

SOUTHERN DISTRICT

* * * * * * *

Sec. 123. Tennessee

EASTERN DISTRICT

* * * * * * *

WESTERN DISTRICT

* * * * * * *

Sec. 124. Texas

NORTHERN DISTRICT

* * * * * * *

EASTERN DISTRICT

* * * * * * *

* * * * * * *

CHAPTER 17--RESIGNATION AND RETIREMENT OF JUSTICES AND JUDGES

* * * * * * *

Sec. 373. Judges in territories and possessions

* * * * * * *

* * * * * * *

* * * * * * *

* * * * * * *

* * * * * * *

PART III--COURT OFFICERS AND EMPLOYEES

* * * * * * *

CHAPTER 41--ADMINISTRATIVE OFFICE OF UNITED STATES COURTS

* * * * * * *

Sec. 604. Duties of Director generally

* * * * * * *

* * * * * * *

* * * * * * *

* * * * * * *

CHAPTER 42--FEDERAL JUDICIAL CENTER

* * * * * * *

Sec. 625. Director and staff

* * * * * * *

CHAPTER 47--COURTS OF APPEALS

* * * * * * *

Sec. 713. Librarians

* * * * * * *

PART IV--JURISDICTION AND VENUE

* * * * * * *

CHAPTER 85--DISTRICT COURTS; JURISDICTION

* * * * * * *

Sec. 1332. Diversity of citizenship; amount in controversy; costs

* * * * * * *

* * * * * * *

PART V--PROCEDURE

* * * * * * *

CHAPTER 121--JURIES; TRIAL BY JURY

* * * * * * *

Sec. 1863. Plan for random jury selection

* * * * * * *

* * * * * * *

Sec. 1864. Drawing of names from the master jury wheel; completion of juror qualification form

* * * * * * *

Sec. 1865. Qualifications for jury service

* * * * * * *

Sec. 1866. Selection and summoning of jury panels

* * * * * * *

* * * * * * *

* * * * * * *

Sec. 1869. Definitions

* * * * * * *

* * * * * * *

* * * * * * *

Sec. 1871. Fees

* * * * * * *

* * * * * * *

-

TITLE 18, UNITED STATES CODE

* * * * * * *

PART I--CRIMES

* * * * * * *

CHAPTER 73--OBSTRUCTION OF JUSTICE

Sec.
1501. Assault on process server.
* * * * * * *
1521. Retaliating against a Federal judge by false claim or slander of title.

* * * * * * *

Sec. 1521. Retaliating against a Federal judge by false claim or slander of title

* * * * * * *

CHAPTER 119--WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND INTERCEPTION OF ORAL COMMUNICATIONS

* * * * * * *

Sec. 2519. Reports concerning intercepted wire, oral, or electronic communications

* * * * * * *

PART II--CRIMINAL PROCEDURE

* * * * * * *

CHAPTER 201--GENERAL PROVISIONS

* * * * * * *

Sec. 3006A. Adequate representation of defendants

* * * * * * *

* * * * * * *

* * * * * * *

CHAPTER 227--SENTENCES

* * * * * * *

SUBCHAPTER B--PROBATION

* * * * * * *

Sec. 3563. Conditions of probation

* * * * * * *

* * * * * * *

* * * * * * *

SUBCHAPTER D--IMPRISONMENT

* * * * * * *

Sec. 3583. Inclusion of a term of supervised release after imprisonment

* * * * * * *

* * * * * * *

* * * * * * *

-

TITLE 10, UNITED STATES CODE

* * * * * * *

Subtitle A--General Military Law

* * * * * * *

PART II--PERSONNEL

* * * * * * *

CHAPTER 49--MISCELLANEOUS PROHIBITIONS AND PENALTIES

Sec.
971. Service credit: officers may not count service performed while serving as cadet or midshipman.
* * * * * * *
[Struck out->][ 982. Members: service on State and local juries. ][<-Struck out]
982. Members: service on Federal, State, and local juries.

* * * * * * *

Sec. 982. [Struck out->][ Members: service on State and local juries ][<-Struck out] Members: service on Federal, State, and local juries

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-

TITLE 5, UNITED STATES CODE

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PART III--EMPLOYEES

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Subpart E--Attendance and Leave

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CHAPTER 63--LEAVE

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SUBCHAPTER I--ANNUAL AND SICK LEAVE

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Sec. 6304. Annual leave; accumulation

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SUBCHAPTER II--OTHER PAID LEAVE

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Sec. 6327. Absence in connection with serving as a bone-marrow or organ donor

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MARKUP TRANSCRIPT

BUSINESS MEETING

TUESDAY, SEPTEMBER 10, 2002

House of Representatives,

Committee on the Judiciary,

--Washington, DC.

The Committee met, pursuant to notice, at 10:00 a.m., in Room 2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. [chairman of the Committee] presiding.

Chairman SENSENBRENNER. The Committee will be in order, and a working quorum is present.

* * * * * * *

The chair would ask the indulgence of the Members for the remaining three bills which I don't think are very controversial. The next item on the agenda is H.R.4125, the `Federal Courts Improvement Act of 2002.'

The chair recognizes the gentleman from North Carolina, Mr. Coble, for a motion.

Mr. COBLE. Mr. Chairman, the Subcommittee on Courts, the Internet, Intellectual Property reports favorably the bill, H.R. 4125 with a single amendment in the nature of a substitute and moves its favorable recommendation to the full House.

Chairman SENSENBRENNER. Without objection, the bill will be considered as read and open for amendment at any point. The Subcommittee amendment in the nature of a substitute which the Members have before them will be considered as read, considered as the original text for purposes of amendment and open for amendment at any point.

[The amendment follows:]

A4125.AAB

A4125.AAC

A4125.AAD

A4125.AAE

A4125.AAF

A4125.AAG

A4125.AAH

A4125.AAI

A4125.AAJ

A4125.AAK

A4125.AAL

A4125.AAM

A4125.AAN

A4125.AAO

A4125.AAP

A4125.AAQ

A4125.AAR

Chairman SENSENBRENNER. Without objection, the opening statements of all Members will be placed in the record at this point.

[The prepared statement of Mr. Berman follows:]

Prepared Statement of the Honorable Howard L. Berman, a Representative in Congress From the State of California

Mr. Chairman,

Thank you for calling this mark-up today.

H.R. 4125 represents the annual package of legislative changes requested by the U.S. courts. As we typically do, Subcommittee Chairman Coble and I introduced this bill at the request of the courts. Except for one provision, the bill is entirely non-controversial. It will clearly contribute to judicial efficiency and will promote the sound management of the judicial branch.

After the adoption of several amendments, which will soon be offered, I intend to fully support passage of the bill by the Committee. And assuming these amendments are adopted, I encourage my colleagues to do the same.

I yield back the balance of my time.

Chairman SENSENBRENNER. There are some Members who wish to leave to go home for primaries. I think those Members would particularly appreciate chatter on these three bills being kept to a minimum.

Are there amendments?

Mr. SCOTT. Mr. Chairman, I have an amendment.

Chairman SENSENBRENNER. The gentleman from Virginia.

Mr. SCOTT. Mr. Chairman, I have an amendment at the desk, number one.

[The amendment follows:]

A4125A.eps

Chairman SENSENBRENNER. The clerk will report the Scott amendment.

The CLERK. Amendment offered by Mr. Scott to the amendment in the nature of a substitute to H.R.4125. On page 11 following the text on Line 3, insert Section 111 making permanent the temporary judgeship in the Eastern District of Virginia.

Mr. SCOTT. Mr. Chairman, I move the reading of the amendment be waived.

Chairman SENSENBRENNER. Without objection, it is so ordered. The gentleman is recognized for 5 minutes.

Mr. SCOTT. Mr. Chairman, the purpose of the amendment is fairly straightforward. It would convert a temporary judgeship in the Federal district court in the eastern district of Virginia into a permanent judgeship.

I have a long statement, Mr. Chairman, that I would like unanimous consent to introduce in the record outlining the need for this judgeship.

Chairman SENSENBRENNER. Without objection.

[The prepared statement of Mr. Scott follows:]

Prepared Statement of the Honorable Robert C. Scott, a Representative in Congress From the State of Virginia

Mr. Chairman, the purpose of my amendment is very straightforward. It would convert a temporary judgeship in the federal court in the Eastern District of Virginia into a permanent judgeship.

To give you some history--One of the current federal district court judgeships in the Eastern District of Virginia is a temporary judgeship that will expire with the first vacancy after April 8, 2002. This temporary judgeship was originally created in the 1990 Judgeships Bill and filled in April 1992. It was scheduled to last for 10 years. Presumably, this was so that we could determine whether there is a need, and a [statistical] demand, for the judgeship. If there was a need, we would continue it. If there wasn't a need, then we wouldn't.

Over time, it has been shown that this judgeship is critically needed in the Eastern District of Virginia. According to the most recent statistics [for 2001] by the Administrative Office of the Courts, the weighted filings in the Eastern District of Virginia per judgeship (including the temporary judgeship) was 617. This is about 30% higher than the average weighted filings per judgeship throughout the country. The true number would be even higher without the temporary judgeship or if any of the Court's four senior judges decides to discontinue their [voluntary] practice of taking a full percentage of the case assignments. And this number does not factor in the likelihood that many of the terrorism cases will continue to be tried in the Eastern District of Virginia. So it is clear that there is still a need to continue this judgeship.

Mr. Chairman, I know that there is a great demand for new judgeships in many members' districts. And I have no interest in getting involved in the issue of new judgeships. But here we are not talking about a new judgeship. This is a judgeship that already exists, and that will disappear--perhaps without any advance notice--unless we take action.

Given the high case load already in the Eastern District, it is important for the effective administration of justice in Virginia that the temporary judgeship in the Eastern District be converted to a permanent judgeship. Unless we do so, when one of the ten active judges on the Eastern District bench retires, takes senior status, or passes away the judgeship will be lost forever. I ask for your support on this amendment.

Mr. SCOTT. I'll yield back.

Chairman SENSENBRENNER. The chair will recognize itself for 5 minutes. I would oppose any amendments relating to additional courts in this bill at this time. The Senate has put additional courts in the DOJ reauthorization bill. We are having a meeting of the conference of the Senate and the House on Wednesday of next week.

If the Members will forebear on additional judges, I will give the gentleman from Virginia as well as the gentleman from California who looks very antsy, you know, my commitment that we will work with them to get the courts that their States need in the DOJ reauthorization bill.

Mr. SCOTT. Thank you, Mr. Chairman. With that, I ask unanimous consent to withdraw the amendment.

Chairman SENSENBRENNER. The amendment is withdrawn. Are there further amendments?

Mr. COBLE. I have an amendment, Mr. Chairman, en bloc.

Chairman SENSENBRENNER. The gentleman from North Carolina.

[The amendment en bloc follows:]

AB4125.AAB

AB4125.AAC

AB4125.AAD

Mr. COBLE. These amendments, Mr. Chairman, make four non-controversial changes.

Chairman SENSENBRENNER. Without objection, the amendments are considered en bloc.

Mr. COBLE. Do you want me to explain each one, Mr. Chairman?

Chairman SENSENBRENNER. No.

Mr. COBLE. All right. Very well.

Chairman SENSENBRENNER. Does anybody have any questions of the gentleman from North Carolina? No.

The question is on agreeing to the amendments en block of the gentleman from North Carolina, Mr. Coble. Those in favor will say aye.

Opposed, no. The ayes appear to have it. The ayes have it and the amendments en bloc are agreed to.

The gentlemen from California.

Mr. BERMAN. Yes, Mr. Chairman. I have an amendment at the desk. It is with Mr. Goodlatte.

Chairman SENSENBRENNER. The clerk will report the amendment.

The CLERK. Amendment to the amendment in the nature of a substitute to H.R.4125 offered by Mr. Berman and Mr. Goodlatte: Add the following at the end.

Mr. BERMAN. Mr. Chairman, I ask unanimous consent that the amendment be considered as read.

Chairman SENSENBRENNER. Without objection.

[The amendment follows:]

A4125B1.eps

A4125B2.eps

Mr. BERMAN. Mr. Chairman, would you like me to explain the amendment?

Chairman SENSENBRENNER. No.

Mr. BERMAN. I have a good explanation to put in the record.

Chairman SENSENBRENNER. Without objection, the good explanation will be put in the record together with all bad explanations that other Members want to put in.

[The prepared statement of Mr. Berman follows:]

Prepared Statement of the Honorable Howard L. Berman, a Representative in Congress From the State of California

TALKING POINTS IN SUPPORT OF JUDICIAL PRIVACY AMENDMENT

I have an amendment at the desk that I am offering in conjunction with Ranking Member Conyers and Representative Goodlatte. Representative Delahunt would have offered this amendment had he been able to attend today.

I believe all my colleagues on both sides of the aisle should be able to support this amendment. It is a well-reasoned compromise and is the product of negotiations convened by Subcommittee Chairman Coble.

The amendment simply states that the Judicial Conference of the U.S. Courts should take certain steps to protect the privacy of judges and judicial employees. Namely, the Judicial Conference should ensure that the Administrative Office of the U.S. Courts--or AO--does not intercept electronic communications of judges and judicial employees without authorization from the Judicial Conference.

The amendment does not require the Judicial Conference to adopt any particular policy regarding interception of electronic communications. Thus, the amendment can in no way be characterized as interfering with the independence of the Judicial Branch.

The amendment does, however, send a powerful message that Congress will closely scrutinize future Administrative Office actions affecting privacy of judges and judicial employees. This focus should serve as a powerful deterrent to any restrictions on privacy that are not authorized by the Judicial Conference as a whole.

Based on past history, we have adequate cause to be concerned that, without this amendment, the AO may unilaterally decide to intercept or otherwise monitor the electronic communications of judges and judicial employees. Twice in the last couple of years, the AO appears to have done so.

In 1998, the AO employed a filtering service to block judicial employee access to websites deemed inappropriate. The AO did so without explicit authorization from the Judicial Conference, and after several judges complained, sought such authorization. While the Committee on Automation and Technology, or CAT, approved the filtering program, the full Judicial Conference rejected it, and the program was suspended.

Late in 2000, the AO activated software to identify and log the transmission, origin, and destination of certain types of files sent between judicial computers and the Internet. The CAT approved this activity, though it is unclear at what point in the process it did so. Apparently having decided that these files were `inappropriate,' the AO sent letters to the Chief Judges of relevant circuits recommending disciplinary action for those employees who had used or downloaded the identified files at the identified courthouses.

Based on these two incidents, a number of judges raised concerns within the Judicial Conference, publicly, and in correspondence with me. These judges believe the AO has demonstrated a desire to snoop into the emails, Internet surfing, and other electronic communications of judges and employees despite general Judicial Conference opposition to its activities.

For nearly a year, I have been exploring the concerns about AO monitoring of electronic communications. That exploration has led me to believe we need to pass this amendment. We need to clearly and unequivocally tell the AO that Congress cares about judicial privacy, and believes decision-making on this issue belongs in the hands of the judges themselves.

I urge my colleagues to vote for this amendment, and yield back the balance of my time.

Chairman SENSENBRENNER. Without objection, the amendment is agreed to. Are there further amendments?

If not, the representing quorum is present. The question is on reporting the bill, H.R. 4125 favorably. Those in favor will say aye.

Opposed, no. The ayes appear to have it. The ayes have it. The motion to report favorably is adopted.

Without objection the bill will be reported favorably to the House in the form of a single amendment in the nature of a substitute incorporating the amendments adopted here today.

Without objection the Chairman is authorized to move to go to conference pursuant to House rules.

Without objection the staff is directed to make any technical and conforming changes. All Members will be given 2 days as provided by House rules in which to submit additional dissenting, supplemental or minority views.



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