SUBCOMMITTEE ON COURTS AND INTELLECTUAL PROPERTY

COMMITTEE ON THE JUDICIARY

U.S. HOUSE OF REPRESENTATIVES

OVERSIGHT HEARING ON

THE NEED FOR ADDITIONAL FEDERAL DISTRICT COURT JUDGES



Thursday, October 9, 1997

Room 2237 Rayburn Building, 10:00 AM



Gibbons Testimony

SUMMARY OF STATEMENT

The Judicial Conference of the United States has recommended that Congress create 17 additional judgeships for the U.S. Courts of appeals and 36 additional judgeships for the district courts.
Since fiscal year 1991, the last time the Congress created additional judgeships, the number of cases filed in the courts of appeals has grown by 21 percent. Despite this substantial increase, the Judicial Conference has requested only a 10 percent increase in the number of judgeships for the courts of appeals.
In the district courts, the change in the caseload has been even more dramatic. Since 1991, the number of case filings has grown by 24 percent. When these cases are weighted for complexity, the increase is 27 percent. By way of comparison, the Judicial Conference has requested the addition of only 36 judgeships in the district courts, an increase of less than six percent. In the 23 courts where the Judicial Conference has requested additional judgeships, the case filings are up over 30 percent and weighted filings in those courts have increased 33 percent, just since 1991.
In developing recommendations for additional judgeships, the Judicial Conference uses a formal, systematic methodology for evaluating judgeship needs in the courts of appeals and district courts. The courts submit a detailed justification for consideration by the Subcommittee on Judicial Statistics, the judicial council of the circuit, the Committee on Judicial Resources, and finally by the Judicial Conference.
The judiciary has adopted a variety of approaches to maximize use of judicial officer resources, including: use of new, more conservative formulas to evaluate judgeship requests in both the courts of appeals and district courts, requesting temporary rather than permanent judgeships, use of senior judges, intercircuit and intracircuit assignment of judges, use of magistrate judges, and use of alternative dispute resolution. Even with these efforts to balance judicial officer resources, there are workload needs that cannot be met with the current level of resources.
The Judicial Conference recognizes that there cannot be indefinite growth in judicial officer resources and is concerned about continuing growth. The Judicial Conference is constantly evaluating the need to control growth and the need to seek resources that are appropriate to the workload. In an effort to place that policy in effect, the Conference has requested far fewer judgeships than the caseload increases would suggest are now required.
Mr. Chairman and members of the Subcommittee, I am Julia Smith Gibbons, Chief Judge of the U.S. District Court for the Western District of Tennessee and Chair of the Judicial Conference Committee on Judicial Resources. That Committee is responsible for all issues of human resource administration, including the need for Article III judges and support staff, in the U.S. courts of appeals and district courts. I am here today to provide information about the judicial resource needs of the courts and the process by which the Judicial Conference of the United States determines those needs.

SUMMARY OF NEED

On March 21, 1997, Mr. Leonidas Ralph Mecham, Director of the Administrative Office of the U.S. Courts, transmitted to the Speaker of the House of Representatives a draft bill containing the recommendations of the Judicial Conference to create 17 additional judgeships (12 permanent and 5 temporary) for the U.S. Courts of appeals and 36 additional judgeships (24 permanent and 12 temporary) for the U.S. district courts. These recommendations were approved by the Judicial Conference in September 1996 and March 1997. The last time the Congress added to the numbers of Article III judgeships was in 1990. Since that time, the Judicial Conference has submitted recommendations every other year on the numbers of additional judgeships required in the judicial system, with no action on the part of Congress. The recommendations were developed with considerable thought and review within the judiciary. Later in my testimony, I provide a detailed explanation of the process used by the Judicial Conference to determine need. But first, I think it will be helpful to provide information about the caseload in the courts.
Since fiscal year 1991 (the year in which the last judgeships were created) the number of cases filed in the courts of appeals has grown by 21 percent. This increase is on top of the unprecedented growth experienced in the courts of appeals throughout the 1970s and 1980s. Currently the number of appeals filed per authorized panel in these courts is 939, more than 160 above the number in 1991. Despite the substantial increases, the Judicial Conference has requested only a 10 percent increase in the number of judgeships for the courts of appeals. The draft bill requested by the Judicial Conference would establish only 17 additional judgeships, and five of those would be temporary.
In the district courts, the change in the caseload has been even more dramatic. Since 1991, the number of case filings has grown by 24 percent to over 300,000 cases. When these cases are weighted for complexity (see District Court Reviews later in testimony), the increase is 27 percent. By way of comparison, the Judicial Conference has requested the addition of only 36 judgeships in the district courts, an increase of less than six percent. For the 23 courts where the Judicial Conference has requested additional judgeships, the case filings are up over 30 percent and weighted filings in those courts have increased 33 percent, just since 1991. The weighted caseload in some of the individual courts has grown by as much as 60 percent since 1991, without the addition of judgeships. In comparison to the caseload changes, the Judicial Conference request for additional judgeships is rather modest.

JUDICIAL CONFERENCE PROCESS

In developing judgeship recommendations for consideration by Congress, the Judicial Conference, through its committee structure, uses a formal survey process to review and evaluate Article III judgeship needs, regularly and systematically. The nationwide surveys of judgeship needs are based on established criteria related to the workload of the judicial officers. These reviews are conducted biennially by the Committee on Judicial Resources, with final recommendations on judgeship needs approved by the Conference.
The recommendations are based on justifications submitted by each court, the recommendations of the judicial councils of the circuits, and an evaluation of the requests by the Committee on Judicial Resources using the most recent caseload data. During each judgeship survey, the Conference reconsiders prior recommendations based on more recent workload data and makes adjustments for any court where the workload no longer supports the need for additional judgeships. In the next survey the Judicial Conference will also implement a new process for evaluating situations where it may be appropriate to recommend that certain positions in district courts be eliminated or left vacant when the caseload does not support a continuing need for the judicial officer resource.
In general, the survey process is very similar for both the courts of appeals and the district courts. First, the courts submit a detailed justification to the Subcommittee on Judicial Statistics. The Subcommittee reviews and evaluates the request and prepares a preliminary recommendation which is given to the courts and the appropriate circuit judicial councils for their recommendation. More recent caseload data is used to evaluate responses from either the judicial council or the court and to prepare recommendations for approval by the Committee on Judicial Resources. The Committee's recommendations are then provided to the Judicial Conference for final approval.

COURT OF APPEALS REVIEWS

At its September 1996 meeting, on the recommendation of the Judicial Resources Committee, which consulted with the chief circuit judges, the Judicial Conference unanimously approved a new judgeship survey process for the courts of appeals. Because of the unique nature of each of the courts of appeals, the Conference process involves consideration of local circumstances that may have an impact on judgeship needs. The process includes a formula, similar to that used in evaluating the district courts, which generally indicates whether there is a need for additional judgeships. The components of the formula are:
1. Base the evaluation of judgeship needs on current case filings;
2. Remove appeals reinstated after procedural default;
3. Weight pro se appeals .33 and all other appeals 1.0; and
4. After the adjustments noted in 2 and 3 above, apply a standard of 500 appeals per panel to the adjusted filings to provide an estimate of the number of judgeships required.
In approving the formula, the Conference noted that it should be used as a general guide and not applied inflexibly. The process allows for discretion to consider any special circumstances applicable to specific courts and recognizes that court culture and court opinion are important ingredients in any process of evaluation. The opinion of a court as to the appropriate number of judgeships, especially the maximum number, plays a vital role in the evaluation process, and there is recognition of the need for flexibility to organize work in a manner which best suits the culture of the court and satisfies the needs of the region served. The formula and the evaluation process will not be used to suggest that courts adopt a method of operation which simply minimizes the need for judgeships, or that courts need additional judgeships when none have been requested by the court. It was on the basis of this process that the Judicial Conference approved the transmittal of a request to create 17 additional judgeships for the courts of appeals.

DISTRICT COURT REVIEWS

In an ongoing effort to control growth, in 1993, the Conference adopted new, more conservative criteria to evaluate requests for additional district judgeships, including an increase in the benchmark caseload standard from 400 to 430 weighted cases per judgeship. Although numerous factors are considered in looking at requests for additional judgeships, the primary factor for evaluating the need for additional district judgeships is the level of weighted filings. Specifically, the Committee uses a case weighting system designed to measure judicial workload, along with a variety of other factors, to assess judgeship needs. The Conference and its Committee review all available data on the caseload of the courts and supporting material provided by the individual courts and judicial councils of the circuits. The Committee took the following approach in developing its most recent recommendations for additional district judgeships:
A. A general standard of 430 weighted filings per judgeship was used as an indication of the need for additional judgeships.
B. In applying the 430 level, the Committee reviewed the caseload of the individual courts to determine if there were any factors that created a temporary situation which would not provide justification for additional judgeships. The Committee also considered any factors in the caseload which would make the situation unique and provide support either for or against a recommendation for additional judgeships.
C. If an additional judgeship would leave the current caseload above or near the 430 level, the Committee recommended an additional judgeship, unless there were other factors present which would suggest that a temporary judgeship or no additional judgeships were appropriate. If the addition of a judgeship would drop weighted filings to between 350 and 430, the Committee recommended a temporary judgeship unless other factors unique to the district offset the per judgeship caseload factor (see also item D below). In small courts the addition of a judgeship would sometimes drop the caseload per judgeship near or below 300; in those situations the Committee recommended an additional judgeship only if the current per judgeship caseload exceeded 500 per judgeship.
D. In situations where a district met the 430 standard, but the addition of a judgeship would have resulted in a reduction of the per judgeship caseload to well below 430, the Committee also reviewed the senior judge situation in the district and recommended additional positions if the court had no senior judges and no short-term prospects for senior judges. If a court had active senior judges or active judges who would soon be eligible for senior status, the Committee recommended no additional judgeships.
E. The Committee reviewed all requests in detail, including those which the Judicial Conference approved in 1994. It was on the basis of this process that the Judicial Conference developed its request for 36 additional judgeships for the district courts.

ACTIONS TO MAXIMIZE USE OF JUDGESHIPS

In addition to the conservative and systematic processes described above for evaluating judgeship needs, given the current climate of fiscal constraint, the judiciary is continually looking for ways to work more efficiently without additional resources. As a part of the normal judgeship survey process or as a separate initiative, the judiciary has used a variety of approaches to maximize the use of resources and to ensure that resources are distributed in a manner consistent with workload. These efforts have allowed us to request fewer additional judgeships than the increases in caseload would suggest are required. Among the more significant methods in use are:
(1) Surveys to review requests for additional permanent and temporary judgeships and extensions or conversions of temporary judgeships to permanent: As described previously, surveys are conducted biennially of all Article III judgeships needs. To reduce the number of additional judgeships requested from Congress, the Judicial Conference has recently adopted more conservative criteria for determining when to recommend creation of additional judgeships in the courts of appeals and district courts.
(2) Recommending temporary rather than permanent judgeships: Temporary, rather than permanent, judgeships are recommended in those instances where the need for additional judgeships is demonstrated, but it is not clear that the need will exist permanently.
(3) Development of a process to recommend not filling vacancies: In March 1997, the Judicial Conference approved a process for reviewing situations where it may be appropriate to recommend elimination of a district judgeship or that a vacancy not be filled. The Judicial Conference will include this process in its biennial surveys of judgeship needs for recommending to the Executive and Legislative Branches that specific vacancies be eliminated or not be filled. A similar process is under development for the courts of appeals.
(4) Use of senior judges: Judicial officer resource needs are also met through the use of Article III judges who retire from active service to senior status. Most senior Article III judges perform substantial judicial duties; almost 400 senior judges are serving nationwide. In the district courts during the past five years senior judges closed 15 percent of the civil cases and criminal defendants terminated, and conducted between 16 to 19 percent of all trials. In the courts of appeals during the same time senior judges participated in almost 15 percent of all oral hearings and submissions on briefs.
(5) Shared judgeships: Judgeship positions have been shared to meet the resource needs of more than one district without the cost of an additional judgeship.
(6) Intercircuit and intracircuit assignment of judges: To furnish short-term solutions to disparate judicial resource needs of districts within and between circuits, the judiciary uses intercircuit and intracircuit assignments of Article III judges. On average during the past 10 years, 415 visiting judges disposed of 5270 appeals and 243 visiting judges closed 2277 cases in district courts. This program has the potential to provide short-term relief to understaffed courts.
(7) Use of Magistrate Judges: Magistrate judges serve as adjuncts to the district courts, supplementing the work of the Article III judges. Use of magistrate judges on many routine court matters and proceedings allows for more effective use of Article III judges on specialized court matters.
(8) Use of alternative dispute resolution: Since the late 1970s and with increasing frequency, courts use various alternative dispute resolution programs such as arbitration, mediation, and early neutral evaluation as a means of settling civil disputes without litigation. By 1995, of the 94 district courts, 22 had arbitration programs, 51 had mediation programs and 14 had early neutral evaluation programs. While case referral numbers are not kept nationally on most of the programs, statistics are maintained on arbitration referrals and show that approximately 10 percent of civil cases are referred to arbitration annually. In addition, all of the courts of appeals have programs designed to encourage resolution of many civil appeals by the parties without the need for judicial resources.
(9) Use of technology: The judiciary continually explores ways to help align caseloads through technological advancements, where judges can assist other districts or circuits without the need to travel.
The courts continue to introduce new tools to equalize judicial workloads and reduce requests for additional judgeships. However, even with these numerous efforts to balance judicial officer resources, there are workload needs which cannot be met with the current level of judicial officers.
Over the last 20 years the Judicial Conference has developed, adjusted, and refined the process for evaluating and recommending judgeships needs in response to congressional concerns. In addition, some adjustments have been made because the Conference recognizes that there cannot be indefinite growth in judicial officer resources and is concerned about continuing growth. In the Long Range Plan for the Federal Courts this issue is recognized in Recommendation 15 which acknowledges the need for growth in the judiciary to be carefully controlled so that creation of new judgeships is limited to that number necessary to exercise federal court jurisdiction. The Judicial Conference is constantly evaluating the need to control growth and the need to seek resources that are appropriate to the workload. In an effort to place that policy in effect, the Conference has requested far fewer judgeships than the caseload increases would suggest are now required. On behalf of the Judicial Conference, I request that this Subcommittee give full consideration to the draft bill submitted by the Judicial Conference to establish 17 additional judgeships for the U.S. courts of appeals and 36 additional judgeships for the U.S. district courts.