2008-04 Apr

THIRDNewsletter

of the

Federal

Courts

Vol. 40

Number 4

April 2008BRANCH

INSIDE

THE

CJA Representations Costly to Attorneys .....................................................................................................pg. 3Judgeship Bill “Long Overdue” ......................................................................................................................pg. 5Court Offers Mobile Version of Website .......................................................................................................pg. 6

See Interview on page 10 See Cooperating on page 9

See Illiteracy on page 2

I N T E R V I E W

An Interview with PBS Commissioner David Winstead

David L. Winstead was named Commissioner of the General Services Administration Public Buildings Service in October 2005. Before joining GSA, he was a partner in a major Washington, DC law firm, practicing in the areas of real estate, transporta-tion, public law, project development and procurement. He served as Mary-land’s Secretary of Transportation from 1995 to 1998, and had been executive director of the Washington/Baltimore Regional Association, a private sector economic development alliance.

Q: We understand that PBS has undergone significant

changes in the last 20 to 30 years. What do you think PBS will look like 25 years from now?

A:GSA’s Public Buildings Service has adapted as the

needs of our clients change over the years. This customer focused approach will continue in the years ahead as we address the Judiciary’s

Courts Fight Financial IlliteracyIn every economic downturn

there’s a chorus of admonitory voices with advice to those deep-in-debt. But over the years, one group has consistently spread the message of financial responsibility. They’re the judges, court staff, and practitioners in the bankruptcy community who see the consequences every day of poor financial management.

“I couldn’t sit in this court any longer watching people who had ruined their lives because they were financially illiterate. Nobody was teaching them,” said Bankruptcy Judge John C. Ninfo II of the Western

District of New York. Ninfo created CARE, the Credit Abuse Resistance Education program, to teach the wise use of consumer credit to the group most at risk for credit abuse—high school seniors and college freshmen.

In 1997, Ninfo began by spending his own dime and time to reach out to students with a message of finan-cial literacy. Why students? “They’re 18 years old and they’re being bombarded with credit card offers for the first time,” he said. “They’re hungry consumers, and they’re getting their first taste of freedom. They’re the ones who are really at

Federal Courts Urged to Protect Cooperating Defendants

Federal trial courts are being asked to consider adopting a local policy that protects information about coopera-tion in law enforcement investigations while recognizing the need to preserve legitimate access to court files.

A Judicial Conference committee has decided against recommending a

national policy, and instead is urging each court to adopt its own protocol.

For the past year, the Conference Committee on Court Administra-tion and Case Management (CACM) considered the implications of web sites, such as www.whosarat.com,

The Third Branch n April 2008

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Illiteracy continued from page 1risk. They treat a credit card as if it’s an ATM machine on somebody else’s account. They don’t even think of it as debt.” Ninfo has the experience to convince them other-wise.

It’s not just students who fail the financial literacy test. “After inter-viewing hundreds and hundreds of debtors in my court,” he said, “and asking them how they could end up with two, three, or four times their annual income in credit card debt, with cars that were worth less than the money they owed on them, I’d ask them, ‘Didn’t you have a budget? Didn’t you have savings for an emergency or understand the true cost of credit with 20 percent interest—especially if you were only making minimum payments? Didn’t you do the math on some of these things?’ Most said they’d never had any kind of personal financial education.”

In presentations to student groups, Ninfo and other CARE presenters illustrate their message of financial responsibility with the stories of the people they see in bankruptcy court.

“One of the things I tell students is that it’s not about your academic IQ,” Ninfo says, “it’s about your financial IQ. Because every day in bankruptcy court I see professionals like doctors, engineers, lawyers and teachers by the dozens, who don’t have a clue about their finances.”

By 2002, Ninfo realized he couldn’t get into enough schools alone and contacted his local bar association to see if they would take on an outreach program. Twenty lawyers signed up and the formal CARE program was begun. Then Chief Judge John Walker in the U.S. Court of Appeals for the Second Circuit encouraged the courts in his circuit to start CARE programs. From there, a national program grew. Today, CARE has a presence in all 50 states and the District of

Columbia. Programs are conducted by bankruptcy judges, bankruptcy trustees, private attorneys and court staff.

CARE’s message also targets members of fraternities and sorori-ties through its GLAD (Greeks Learning to Avoid Debt) initiative, and other college students through the SIFE (Students in Free Enter-prise) initiative. CARE’s website at www.careprogram.us has sched-ules on where CARE programs are offered, new initiatives, a variety of materials that presenters can use, and information on starting your own program.

Over the last four years, Ninfo has promoted CARE to as many bankruptcy professionals and communities as possible. “We’re trying to reach kids, one student at a time,” he said. “We have this unique knowledge and experience of dealing with the worst conse-quences of our national epidemic of financial illiteracy. We can use our knowledge to be proactive and do something to change these kids’ lives, instead of cleaning up the mess when, 10 years later, they come before us in bankruptcy court. I’m so proud of the many people in the bankruptcy community who have taken up this challenge. They are really making a difference.”

Throughout the federal Judiciary many courts conduct bankruptcy outreach programs.

Bankruptcy Clerk of Court Therese Buthod in the Eastern District of Oklahoma has devel-oped a presentation combining materials from the CARE program and the Judiciary’s website, with instructional games and a Power-Point presentation. In the Western District of Tennessee, Bankruptcy Judge G. Harvey Boswell and Deputy-in-Charge Rugena Blivins conduct twice yearly programs on bankruptcy in local high schools, using materials from the Judiciary’s website.

In the Middle District of Tennessee, Chief Judge Todd J. Campbell reaches out to high school students with programs on bank-ruptcy and in the Bankruptcy Court for the Western District of Missouri, Chief Bankruptcy Judge Dennis Dow started a training program to prepare volunteer attorneys to teach financial literacy in the classroom.

The National Conference of Bank-ruptcy Judges also supports finan-cial literacy for students, with many of its members participating in CARE programs.

For the general public, the federal Judiciary’s website offers a primer on bankruptcy, called Bankruptcy Basics, at www.uscourts.gov/bank-ruptcycourts/bankruptcybasics.html, with information on federal bankruptcy laws, an explanation of the different chapters of bankruptcy, and answers to some frequently asked questions.

A program designed for high school students, called Your Day in Bankruptcy Court, is available on the Judiciary’s website, www.uscourts.gov/outreach/programs/bank-ruptcy.htm. It is designed to be used with the CD-ROM Bankruptcy: Don’t Let it Happen to You, created by the National Conference of Bankruptcy Judges. The program leads students through a series of scenarios that illustrate some common financial pitfalls, the bankruptcy process, and the possible consequences of filing for bankruptcy.

The Third Branch n April 2008

Where the Money Goes in FY 2008Congress completed action on

the Judiciary’s appropriations on December 20, 2007, and the President signed the spending bill on December 26, 2007. The Judiciary was finally able to disperse $6.25 billion to its judicial branch accounts. Appro-priation levels, combined with carry forward amounts from fiscal year 2007, put the Judiciary on very solid ground financially for fiscal year 2008.

Of the Judiciary’s total funding, 5 percent funds the Supreme Court, the Court of Appeals for the Federal Circuit, the Court of International Trade, the Administrative Office, the Federal Judicial Center, the U.S. Sentencing Commission, and the Judiciary Trust Fund. The remaining 95 percent goes to the Courts of Appeals, District Courts, and Other Judicial Services—for the Salaries and Expenses, Defender Services, Court Security, and Fees of Jurors accounts.

Of the four accounts, the Salaries and Expenses account receives 78 percent of the funding, the largest share. From this account, courts must pay rent, judges and court personnel

salaries and benefits, their operating expenses, and information tech-nology and other expenses.

The Defender Services account receives 14 percent of the money, funding federal public defender and community defender organizations, compensation for private attorneys representing indigent defendants, and fees of persons providing inves-tigative, expert, and other services under the Criminal Justice Act.

The Court Security account receives 7 percent. This account provides funds, which are subse-

quently transferred to the U.S. Marshals Service and the Federal Protective Service, for the procure-ment, installation, and mainte-nance of security equipment, and for protective services, including contract security officers for the courts.

The Fees for Jurors account, 1 percent of the court’s total funding, pays for juror fees and expenses.

Economics of CJA Representations Costly to AttorneysPrivate attorneys who take on

Criminal Justice Act (CJA) representa-tions earn $100 per hour in non-capital cases. But a 2005 survey estimates their average hourly overhead at $64 per hour. This means panel attorneys net an average of just $36 per hour on CJA representations before taxes—assuming average overhead costs have not increased since 2005.

When that net rate is compared to the 2005 net national average of $148 per hour for non-CJA private criminal cases, it is not surprising that solo or small firm attorneys may

think twice before accepting a CJA appointment.

Last month, in fiscal year 2009 appropriations hearings on the Hill, the Judiciary asked Congress to increase the non-capital panel attorney rate to $118 per hour from the current $100 per hour.

Under the CJA, a panel attorney is assigned by the court to represent a financially-eligible person in federal court. And while CJA attorneys received a rate increase in fiscal year 2008 from $94 to $100 an hour, Judge Julia Gibbons, chair of the Judicial

Conference Budget Committee, told congressional appropriators that a more significant increase is required if the courts are to attract and retain enough qualified attorneys to accept CJA appointments.

“We believe there is a direct rela-tionship,” Gibbons said, “between the lack of qualified panel attorneys available to take CJA appointments and the significant financial difficul-ties panel attorneys encounter main-taining their legal practices at the current rate.”

3See CJA Pay on page 4

The Third Branch n April 2008

CJA Pay continued from page 3

“The current pay scale is only enough to cover attorney costs,” said David Markus, a private practitioner and panel attorney in Miami, Florida. “It’s difficult to provide effective assistance of counsel when you’re barely able to pay your bills.”

Markus takes approximately six CJA cases per year. “That’s just about enough to keep up with federal prac-tice, but not enough to dominate my own private practice,” he said. “It’s just not economical to do this. Some practi-tioners won’t take CJA cases anymore. If a CJA representation goes into a long trial, a solo attorney may have to sacri-fice his or her entire practice.”

Jeffery “Chip” Frensley, an attorney in Nashville, Tennessee takes three to five CJA clients per year. Approximately 50 lawyers are members of the local CJA panel and appointment of cases is made on a rotational basis.

“The level of compensation impacts the level of representation,” said Frensley. “If an attorney takes a CJA case, it means they lose the opportunity to take other cases at higher rates. Finally, the realization of how little they make will keep some attorneys off the panel.”

Frensley calls CJA work “a calling” in that there is a substantial pro bono element associated with the current hourly rate. He’s also well aware that, since May 1, 2002, the Department of Justice has paid $200 per hour to

retain private counsel to represent current or former federal employees in civil, congressional, or criminal proceedings.

“When compared to CJA rates, it is an equity issue,” he adds.

Jami Ferrara is one of 125 panel attorneys in the Southern District of California. She charges non-CJA clients $250 per hour and had three to four such retained cases last year. Most of her cases, though, are CJA representations.

“The volume of federal pros-ecution is very high in this district,” Ferrara said. “Last year we had over 4,000 cases.” She is handling about 30 CJA cases at the moment. This number contrasts with the 2005 survey results showing that more than 85 percent of panel attorneys represent 10 or fewer CJA clients a year.

With so many cases, according to Ferrara, there’s an incentive to stay current and be an effective practi-tioner. “If you want quality representa-tion, you need people who know what they’re doing,” she said. But Ferrara also notes that a solo practitioner can’t survive on what a CJA attorney is paid, especially if there’s a lengthy trial.

Things have improved since her early days when rates were $75 per hour and she couldn’t afford WestLaw, she shared books with colleagues, and cut costs anywhere she could. Even today, she pays some expenses herself in order to provide effective counsel.

“If my clients need clothes to appear in court, I go to Target and buy clothes. That’s out of my pocket,” she said.

What is a reasonable rate for CJA attorneys? What rate would assure that every defendant facing federal criminal charges is properly and effectively represented as required by the Sixth Amendment?

The Criminal Justice Act autho-rizes the Judicial Conference to approve cost-of-living adjustments (COLAs) to panel attorney hourly rates. If the annual COLAs had been funded each year by Congress, the maximum hourly rate for non-capital cases would be $133 in fiscal year 2008, and would have reached a projected $136 and $140 in fiscal years 2009 and 2010, respectively. Recognizing fiscal constraints, the Judicial Conference has approved a two-year strategy to obtain the maximum non-capital panel attorney rate, with a request for $118 in fiscal year 2009, and a plan to request the balance in fiscal year 2010.

“CJA rates will never equal private attorney rates,” says Markus, “and we don’t expect that they should. Most of us do this to give back, because we believe in indigent defense. But the low rates make it more difficult to get qualified attor-neys.”

Tornado Damage A tornado that hit downtown Atlanta the night of March 14, 2008, caused major damage to offices of the community defender program for the Northern District of Georgia. The offices, located on two floors of a 33-story building, sustained collapsed walls and blown-out windows. Broken glass and papers were scattered throughout. There were no injuries reported.

4

The Third Branch n April 2008

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Judgeship Bill “Long Overdue”

Senator Patrick Leahy (D-VT), chair of the Senate Judiciary Committee, has introduced S. 2774, a bill that would create 12 permanent court of appeals judgeships and 43 permanent district court judgeships, as well as create and extend addi-tional temporary judgeships.

A comprehensive judgeship bill “to respond to the increasing work-load of our federal Judiciary is long overdue,” Leahy said, noting that the legislation had the support of the Judicial Conference and Senators on both sides of the aisle. Senator Orrin Hatch (R-UT) is the lead cosponsor of the bill, the Federal Judgeship Act of 2008.

The effective date of the legisla-tion would be January 21, 2009.

“By providing that these new judgeships become effective the day after the inauguration of the next President, we attempt to insulate this effort from partisan politics,” Leahy explained.

The last comprehensive judge-ship bill was enacted 18 years ago by Congress. Since that time, additional district court judgeships and exten-sions for a few temporary judgeships were authorized, but no new circuit court judgeships.

“Our federal judges are working harder than ever,” Leahy said, “but in order to maintain the integrity of the federal courts and the prompt-ness that justice demands, judges must have a manageable workload.”

Leahy cited statistics that show case filings in the courts of appeals since 1990 have increased by 55 percent, and case filings on the district courts have risen by 29 percent. In addition, the number of weighted filings in the district courts in 2006 was 464 per judgeship, well above the Judicial Conference’s stan-dard. The weighted caseload takes

into account case complexity. The same year, according to Leahy, the national average appellate court caseload per three-judge panel approached the record number of 1,230 cases, recorded a year earlier.

“These additional judgeships would address the significant increase in caseloads that the federal courts have seen over the nearly two decades since the last comprehensive judgeship bill was enacted,” said Leahy.

During his tenure as chair of the Senate Judiciary Committee, Hatch sponsored or cosponsored judge-ship bills in the 106th and the 108th Congresses. He joined with Leahy on S. 2774 because, he said, “it is based on the Judicial Conference’s assessment of their needs, not on backroom political deals, and it reflects the changes to the alloca-tion of appeals court seats made in S. 378, the Court Security Improve-ment Act.” S. 378, now Pub. L. No. 110-177, eliminated one judgeship for the Court of Appeals for the District of Columbia and created one judge-ship for the Court of Appeals for the Ninth Circuit.

“In our constitutional frame-work,” Hatch said, “Congress has responsibility to both make the laws and ensure that the Judiciary tasked with interpreting and applying those laws has the appropriate resources. This includes addressing the staffing and compensation needs of the judi-cial branch, and we should strive to do so without political gambles or speculation about the outcome of a Presidential election.”

Cameras in Courtroom Bill Moves in SenateIn other congressional action,

the Senate Judiciary Committee amended and reported out on March 6, S. 352, the Sunshine in the Courtroom Act of 2008. The bill, introduced last session by Senators Charles E. Grassley (R-IA), Charles E. Schumer (D-NY) and others, now

includes some of the same new provisions as a bill approved by the House Judiciary Committee, H.R. 2128, the Sunshine in the Courtroom Act of 2007.

Several provisions were added to the Senate bill not present in the House version. For example, the bill requires the Judicial Conference within six months after enactment of the bill to promulgate mandatory guidelines for obscuring “certain vulnerable witnesses, including crime victims, minor victims, families of victims, cooperating witnesses, undercover law enforce-ment officers or agents, witnesses relating to witness relocation and protection, or minors.” The guide-lines must include procedures for determining at the earliest practi-cable time which witnesses should be considered vulnerable, specifying that “nothing in the bill shall limit the inherent authority of a court to protect witnesses or clear the court-room to preserve the decorum and integrity of the legal process or protect the safety of an individual.”

The Judicial Conference strongly opposes H.R. 2128 and S. 352 because they would permit the use of cameras in the federal trial courts and change the present policy of allowing a court of appeals first to determine whether to permit cameras in that circuit.

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District Court Offers Mobile Version of Its Website

Like most federal courts, the Northern District of Illinois created its website long before the advent of e-filing and the proliferation of hand-held computers.

But on March 1, it became what is believed to be the first federal court to offer a mobile version of its website.

The mobile version, made possible by specially designed software, allows visitors using a PDA, Black-Berry, or other hand-held device to navigate the Chicago-based court’s website just as if using a desk-bound computer.

“It’s information for those on the move,” said Clerk of Court Michael Dobbins. “It’s a nice addition to what we’ve had.”

The district court began considering a revamp of its website in early 2007, and decided to survey attorneys about the changes they would recommend. “The prevalence of e-filing gave us a ready-made list of addresses where we could send the online survey,” said Ted Newman, the court’s judi-cial support manager. “We sent out 5,000 surveys to randomly selected e-mail addresses, and received more than 1,200 responses—a 24.7 percent response rate.”

Work on upgrading the website began in October 2007, with programmer Arnold Dizon, who joined the court that month, playing a big role. When the revamped website debuted on March 1, it featured, among other innovations, a new search capability and a fresher “What’s New” entry.

“We learned from the survey that we had to pay attention to the ‘What’s New’ listings because items can grow stale, like leftovers in a refrigerator,” Newman said.

Another innovation was the mobile version, which had been one of the changes requested by a majority of the lawyers who responded to the survey.

In consulting other federal court clerks, Dobbins learned that some were considering the creation of website mobile versions, but none reported having put one in place.

“Reaching the current site using a BlackBerry is cumbersome at best, and often completely impractical,” Newman reported in summarizing the survey’s results for Chief Judge James Holderman last September. “The use of hand-held devices by attorneys has grown rapidly, and there may be a good deal of interest in the ability to reach the website using this type of device.”

Systems Manager Mark Tortorici said that once the court decided to go forward, “We asked Arnold to hit the most important things for those attorneys who might be on the road or otherwise away from their office, and who quickly needed to check the court’s daily calendar, or the clerk’s office phone number, or where they might be in a judge’s daily call.”

The mobile version “offers a totally different layout” for users of hand-held devices, Tortorici said. And the website’s software detects when a hand-held device is being used, so the availability of the mobile layout is automatic and seamless.

While designed with lawyers in mind, the mobile version is available to any member of the public with a hand-held device. “We received quite a bit of positive feedback so far,” Dobbins reported.

Pioneer Courthouse Landmark for Portland

The Pioneer Courthouse in Port-land, Oregon, has won the John Wesley Powell prize for historic preservation, awarded by the Society for History in the Federal Government. The prize commem-orates the explorer and federal administrator whose work demon-strated the importance of historical preservation and historical display.

The Pioneer Courthouse, opened in 1875, is the oldest existing federal building in the Northwest and was designated a National Historic Landmark in 1977. The building was originally designed to house all offices and services of the federal government in Portland. Its major tenant is now the U.S. Court of Appeals for the Ninth Circuit.

Although the building saw an expansion in 1903 and several restorations since, the most recent, undertaken by the General Services Administration, began in 2002.

“The last courthouse renova-tion was in 1973, part of the project to prepare the building for occu-

The new formal entrance into the Pioneer Courthouse, formerly the lobby of the old Post Office.

The Third Branch n April 2008

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pancy by the Court of Appeals and the Bankruptcy Court,” said Robert Walch, facilities program manager for the Ninth Circuit. “After 30 years, the building badly needed fresh-ening up. Community sensitivities for the courthouse’s historic value also had increased in that time. The people of Portland are enormously protective of their landmarks. We wanted to bring it back to its original grandeur and improve the building’s functionality for the court.”

Inside, the original terrazzo flooring, ornate plaster work, and oak woodwork were uncovered and restored. Scratch tests on walls deter-mined the original interior color palette, a range of federal blues, dark reds, golds, and mossy greens last seen in the courthouse between 1895 and 1905.

“The success of the restoration and rehabilitation of the Pioneer Courthouse is largely the product of great teamwork between the General Services Administration, the archi-tects, skilled crafts people, and our own court project managers,” said Judge Diarmuid F. O’Scannlain (9th Cir.), chair of the Pioneer Courthouse Committee.

Alongside the historic restoration, there was a complete modernization of building systems. “This building

is now as modern as any new court-house,” said Walch. “We’ve added infrastructure including wireless Internet and conferencing space for judges and attorneys, and in the courtroom we’ve concealed state-of–the–art audio-visual equipment behind custom grill work. We’ve also converted a former law library into an Alternative Dispute Resolution Suite with full audio-visual and tele-conferencing capabilities.”

The rehab included a seismic retrofitting. In 1993, the courthouse was damaged in the Scotts Mills

earthquake, the largest earthquake in the Pacific Northwest since 1981.

“To protect the courthouse,” Walch said, “75 ground base isola-tors were installed on a new founda-tion system. These isolators allow the building and the ground to move separately during an earthquake, minimizing the potential for damage to the historic structure and possible injury to its occupants.”

Outside, the courthouse is the backdrop to Pioneer Courthouse Square, known as “Portland’s living room,” the most visited site in the city. The courthouse invites the public in with displays, organized by its Historical Society, that focus on the architecture of the building and the history of the American system of justice and the Ninth Circuit. “We’re open for public visits from 9 to 4 everyday and an average of 10,000 people a year, including entire classrooms of school children, come through on self-guided tours,” Walch says. “It’s a great way to help the public understand the Judiciary and how it serves our nation.”

Visit our website at http://www.uscourts.gov/ttb/2008-04/Pioneer-Court/PioneerCourt.htm to see a slideshow on the restoration and modernization of the Portland Pioneer Courthouse.

The Pioneer Courthouse borders Pioneer Courthouse Square, best known as “Portland’s living room.” The courthouse is visited by over 10,000 people a year.

One of the ground base isolators (blue object), is visible in the foreground. On either side of it are two micropiles that work as part of the temporary shoring to support upper floors. Under the isolator, a pile cap transfers the weight of the building from the isolator into the piles and then into the ground.

The Third Branch n April 2008

Appointed: Alan S. Trust, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Eastern District of New York, April 2.

Appointed: Frank James Santoro, as U.S. Bankruptcy Judge, U.S. Bank-ruptcy Court for the Eastern District of Virginia, February 21.

Appointed: John V. Acosta, as U.S. Magistrate Judge, U.S. District Court for the District of Oregon, March 5.

Appointed: Candy W. Dale, as U.S. Magistrate Judge, U.S. District Court for the District of Idaho, March 30.

Appointed: Gregory A. White, as U.S. Magistrate Judge, U.S. District Court for the Northern District of Ohio, March 1.

Senior Status: U.S. District Judge Monti L. Belot, U.S. District Court for the District of Kansas, March 4.

Senior Status: U.S. District Judge Walker D. Miller, U.S. District Court for the District of Colorado, March 31.

Elevated: U.S. Bankruptcy Judge Stephen Raslavich, to Chief Judge, U.S. Bankruptcy Court for the Eastern District of Pennsylvania, succeeding U.S. Bankruptcy Judge Diane Weiss Sigmund, March 1.

Resigned: U.S. District Judge Mark Filip, U.S. District Court for the Northern District of Illinois, March 9, to accept an appointment as Deputy Attorney General.

Resigned: U.S. District Judge Martin J. Jenkins, U.S. District Court for the Northern District of California, April 4, to accept an appointment as Associate Justice of the California Courts of Appeal.

Retired: U.S. Magistrate Judge Donald C. Ashmanskas, U.S. District Court for the District of Oregon, March 4.

Retired: U.S. Magistrate Judge Patricia A. Hemann, U.S. District Court for the Northern District of Ohio, February 29.

Retired: U.S. Magistrate Judge Mikel H. Williams, U.S. District Court for the District of Idaho, March 29.

Resigned: U.S. Magistrate Judge Monica J. Benton, U.S. District Court for the Western District of Wash-ington, February 29. Deceased: Senior U.S. District Judge William D. Browning, U.S. District Court for the District of Arizona, February 26.

Deceased: Senior U.S. District Judge Edward Rafeedie, U.S. District Court for the Central District of California, March 25. Correction: In the March 2008 Mile-stones, Earle Hagan was identi-fied as a former U.S. bankruptcy judge. While Mr. Hagan was a well-respected attorney and regarded as one of the top mediators in the U.S. Bankruptcy Court for the Central District of California, he never served as a bankruptcy judge.

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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

DIRECTORJames C. Duff

EDITOR-IN-CHIEFDavid A. Sellers

MANAGING EDITORKaren E. Redmond

PRODUCTIONLinda Stanton

CONTRIBUTORSDick Carelli, AO

Elena Johnson, OFB, AO

Please direct all inquiries and address changes to The Third Branch at the above address or to [email protected].

JUDICIAL BOXSCORE

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

As of April 1, 2008

Courts of Appeals

Vacancies 14 Nominees 11

District Courts

Vacancies 36 Nominees 20

Courts with“Judicial Emergencies” 19

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

The Third Branch n April 2008

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Cooperating continued from page 1

that attempt to identify undercover officers, informants, and defendants who provide information to law enforcement authorities.

In December 2006, the Depart-ment of Justice proposed a change in Judicial Conference policy—a change that would eliminate Internet access, through the Judiciary’s PACER system, to all plea agreements.

The CACM Committee solic-ited (see www.uscourts.gov/Press_Releases/privacy091007.html) and received public comment (see http://www.privacy.uscourts.gov/2007comments.htm) on the Justice Department proposal. It then deliberated about the Justice Department proposal and the public comments received.

The Committee determined that prohibiting public Internet access to all plea agreements, most of which do not disclose a defendant’s cooper-ation, while simultaneously leaving

all plea agreements available to the public in clerk’s offices is an inade-quate solution. It declined to endorse the Justice Department proposal.

The Committee noted that several district courts have developed solu-tions that work locally but, given the variations in circuit case law, would not be appropriate as a national policy. The matter, instead, was referred directly to each district court, with the instruction that any such policies should be the least restrictive to promote legitimate public access.

In communicating with the district courts, the Committee listed the various suggestions received, from inside and outside the Judi-ciary, during the public comment period.

Among those included:

•EnteracourtorderrestrictingInternet access to the plea agree-ment to the parties on a case-by-case basis.

•Delaythepublicationofanypleaagreement that includes coopera-tion information, perhaps until after sentencing.

•Restructurethecourt’spracticesto make each case appear identi-cally on PACER. For example, in the District of North Dakota, this was accomplished by filing all plea agreements as public (unsealed) documents, sanitized by the drafter of any references to cooperation. All pleas are accompanied by a sealed docu-ment, “plea supplement.” That document contains either a coop-eration agreement or a statement that no agreement exists.

Bankruptcy Filings Rebound in 2007Bankruptcy filings in the federal

courts rose 38 percent in calendar year 2007. The number of bankrupt-cies filed in the twelve-month period ending December 31, 2007, totaled 850,912, up from 617,660 bankrupt-cies filed in calendar year 2006. Filings rebounded from a 70 percent drop in calendar year 2006, which was the first full 12-month period after the Bankruptcy Abuse Preven-tion and Consumer Protection Act of 2005 (BAPCPA) took effect.

An historic high in the number of bankruptcies filings was seen in calendar year 2005, when over 2 million bankruptcies were filed, mainly because, in October of 2005, many of the provisions of BAPCPA were enacted. Filings fell through 2006, but started their gradual climb back up in 2007.

The Third Branch n April 2008

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I N T E R V I E W continued from page 1

building operations and space needs. As we continue to refine our expertise in real estate management, site acqui-sition and construction, we must also focus on the Judiciary’s functional needs, security and space expan-sions. Over the last 30 years, we have focused on innovation in areas such as Design Excellence, and our current efforts in rent containment and design guide improvements.

Historically, we have worked well with the AO, Congress and the White House/Office of Management and Budget in our efforts to deliver best value to the courts. Federal Courthouses are unique in terms of their structure, public purposes and landmark presence in our nation’s communities. Since l992, we have delivered 52 new courthouses with upgraded security and courtroom technologies. Thus, we believe the expertise that has been gained over the past decades—and that we’ll improve on in the next 25 years—will continue to provide value to the federal Judiciary.

Q:How would you describe the customer/client relations

between the Judiciary and PBS?

A:Over the past two and a half years as Commissioner, I have

had some very candid and produc-tive discussions with AO Director, Jim Duff, Ross Eisenman, Assistant Director of the Office of Facilities and Security, and numerous distin-guished judges. About the second month on the job, I met with Judge Jane Roth (3rd Cir.), who was then chair of the Judicial Conference Committee on Space and Facilities, and Ross Eisenman. At those meet-ings, Judge Roth and Ross Eisenman presented some concerns. Although they support the architecturally bril-liant courthouses constructed since 1992 through our Design Excellence Program, they questioned whether

design was the focus to the sacrifice of other things that are just as important to the courts—like daily security and operations, and the long-term opera-tion and maintenance of buildings and how that translates into costs for the courts. They were worried about the budget constraints in Congress and quite frankly about the increasing percentage of the Judiciary’s ongoing budget devoted to rent. They asked for my support and management focus in providing increased efficien-cies. Over the last two and a half years we’ve focused a lot more on those areas, and therefore restored greater balance to that equation.

We’ve strengthened the way we manage the national account with the Judiciary. We have a new national account manager and we’ve set up a number of working committees. For example, we have a committee on the asset management planning process; an appraisal working group; a courts space validation project group; and a security working group comprised of the Judiciary, GSA, the Federal Protective Service and the U.S. Marshals Service. We have an occupancy agreement working group to ensure that our understanding of space and rent and new build-ings coming on line is very clear and upfront and thoroughly vetted through a signed agreement with the courts.

A great concern of Judge Joseph Bataillon (D. Neb.), current chair of the Judicial Conference Committee on Space and Facilities, has been our definition of departures from the U.S. Courts Design Guide. So we spend a lot of time with a departures working group; in fact, there’s another meeting in a month of that group.

We’ve reinitiated biannual part-nering meetings not just with facility committees, but with a selected group of judges, many of whom are the points of contact in courthouses that are under construction or recently completed.

On both sides of the ledger—on the GSA Public Buildings Service’s and on the Judiciary’s—we have a focus on issues that are important to both parties. As a result, we really have improved the dialogue, the understanding and the transparency of how we do business, and how we can do business better in the future. I enjoy and look forward to main-taining this engagement.

Q:How does PBS bring outstanding architecture to

our cities through federal court-houses—and why is that important?

A:It’s important to the courts, number one. They are the

occupants, and they provide a very important judicial function across the country. I think that the thrust of our efforts under the Design Excel-lence Program for the past 15 years, has been to provide renovated and new courthouses, which are opera-tionally efficient, and yet, land-marks that not only are striking and functional, but really create a sense of dignity which conveys the impor-

David L. Winstead, PBS Commissioner

The Third Branch n April 2008

11

tant role that the federal Judiciary plays in the life of our society.

The Design Excellence process has been recognized throughout the United States and by many foreign governments for its achievements in elevating the quality of public architecture, something we can all be proud of. My recent project tours and discussions with judges in Washington, DC; Fresno, California; Pittsburgh, Pennsylvania; Miami, Florida; Eugene, Orgon; Brooklyn, New York; and Springfield, Massa-chusetts, support this assertion.

Q:How are cost considerations balanced against top rate

design?

A:Design Excellence, which is essential in selecting the best

possible A/E team for each project, has been integrated with the U.S. Courts Design Guide to make sure the design process, as well as the construction and commissioning processes have catch points where—if we feel that some element of the original design will not work, or that the courts find challenging or that adds unnecessarily to cost—we have the opportunity to be certain that the design is functional and effec-tive. Obviously, the operations of the court are of paramount concern, and design must respond to that. Based upon my initial discussions with the AO, I believe we have established a valuable balance between facility operations and building design through our partnering efforts in recent years.

Q:Thirty years ago, many federal courthouses were aging, over-

crowded, technologically outmoded, and security hazards. In 1985, a courthouse construction program began that would become the largest civilian construction program autho-rized by Congress since the 1930s.

What does the Judiciary’s courthouse construction program look like today? And where is the program headed for the future?

A:As you mentioned, begin-ning in the 1980s and early

1990s, we undertook, with the Judi-cial Conference Committee on Space and Facilities, a massive courthouse construction program. We’ve deliv-ered 53 new courthouses or annexes nationwide since then, and in March, 2008, I received a list of the FY 2009 - 2011courthouse projects to be deliv-ered in the coming years. What we are attempting to do is to refine and adjust the program rolling forward so that each year we have a very careful focus on the courthouse needs for the next five years.

I think the outcomes of the Design and Construction Excellence programs have been very successful overall. I have marveled at the engagement and enthusiasm, and sometimes, enormous patient effort that local judges have given to our projects and PBS teams around the country.

We’ve fulfilled a huge construc-tion program—the largest program since the late-1930s—but the budget constraints that were imposed in 2003 and 2004 continue to weigh upon us. We’ve taken measures to be a lot more proactive with the AO to evaluate projects early, and to insti-tute cost containment initiatives and construction cost benchmarking and quality assurance measures. Going forward with this five-year court-house plan, we’ll apply our Federal Buildings Fund and resources to these priorities.

Q:The Judiciary recently signed a memorandum of agreement

with GSA that will revamp the method for calculating the rent paid for new courthouses. What in your view are the benefits of this arrangement?

A:The MOU we signed on February 11th really reflects a

lot of effort on the part of the AO and GSA. It confirms a very strong and positive relationship that we have now and will continue to have in the future. It also makes very clear that we have a transparent framework for rent calculation.

As we look at new courthouse construction, the rent pricing meth-odology will be calculated according to this MOU. It will, in my judg-ment, be more sensitive to concerns about consistency in the calculation of rent based on a market appraisal. We’ve attempted to provide a rent calculated on a fair market value and return, under an ROI pricing scheme as preferred by the courts. We feel that it essentially provides a win-win framework for the Federal Buildings Fund, the federal taxpayer, as well as the courts, in terms of accuracy and predictability of rent in the future.

Q:Post-Katrina and Oklahoma City disasters, GSA helped

us find alternative sites. What steps does PBS take when courthouses are not available for day-to-day use?

A:We have continuity of oper-ation plans (COOPs) and

defined steps to contain and assess damage. We immediately begin looking for relocation options for tenants whose buildings have been damaged. By our protocols, we look to our own inventory or leased facili-ties in the first instance, and we obvi-ously move very quickly to try to outfit space with needed computers and office furniture in temporary locations. We collaborate with the courts to have these contingency plans in place so that we’re all very clear on what our actions will be in terms of restoring operations as quickly as possible.

See Interview on page 12

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on budget. Inevitably, that is a chal-lenge on complicated court proj-ects, but we will work tirelessly to meet that challenge on behalf of the courts.

And lastly, I would continue to hope that we have occasion to cele-brate the very exciting impact your facilities have on the courts as a working environment, for the public in their engagement with the Judi-ciary, and in the communities the courthouses serve. Looking ahead, we have some great opportuni-ties. We have a wonderful legacy of providing renovated as well as new work space for the Judiciary, and everyone at PBS is committed to this mission and to the federal Judiciary’s needs in the future.

Although I arrived at PBS after Katrina occurred, I heard about many preventive measures that were taken by our property manager and COOP teams that protected court property and our facilities. We tracked the storms and took corrective matters to try to minimize the initial damage to the courthouses that were, in fact, impacted.

Q:What, in your mind, are the key challenges PBS faces in the

near term?

A:My sense is that the near term challenges are some-

what defined by the agreements that we’ve laid out with the courts. PBS

must continue to work closely with the AO to insure that Congress and OMB are clear on the Court priori-ties and funding needs. We want this partnering to continue as we strive for adequate resources in the years ahead.

A continuing challenge will be the security of our courthouses. We were asked at the February 11, 2008, part-nering meeting with the AO to focus on security in the coming year. We must also continue improvements in the efficiency of our capital program delivery given the 28 percent increase in material costs we have seen over the past three years. We will continue to select architects, engineers, and contractors, based upon performance, who can deliver projects on time and

Interview continued from page 11

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