REPORT
of the
PROCEEDINGS OF THE
JUDICIAL CONFERENCE OF THE
UNITED STATES
September 22-23, 1982
Wash~ton,
1982
I
D.C.
ADMINISTRATIVE OFFICE OF THE
~TEDSTATESCOURTS
William E. Foley
Director
REPORT
of the
PROCEEDINGS OF THE
JUDICIAL CONFERENCE OF THE
UNITED STATES
September 22-23, 1982
Washington, D.C.
1982
THE JUDICIAL CONFERENCE OF THE UNITED STATES, 28 U.S.C. 331
§331.
JUDIC1AL CONfERENCE Of THE UN1TED STATES
The Chief Justice of the United States shall summon annually the chief judge of each
judicial circuit, the chief judge of the Court of Claims, the chief judge of the Court of Cus·
toms and Patent Appeals, and a district judge from each judicial circuit to a conference at
such time and place in the United States as he may designate. He shall preside at such
conference which shall be known as the Judicial Conference of the United States. Special
sessions of the conference may be called by the Chief Justice at such times and places as
he may designate.
The district judge to be summoned from each judicial circuit shall be chosen by the
circuit and district judges of the circuit at the annual judicial conference of the circuit held
pursuant to section 333 of this title and shall serve as a member of the conference for three
successive years, except that in the year following the enactment of this amended section
the judges in the first, fourth, seventh, and tenth circuits shall choose a district judge to
serve for one year. the judges in the second. firth. and eighth circuits shall choose a district
judge to serve for two years and the judges in the third, sixth. ninth, and District of
Columbia circuits shall choose a district judge to serve for three years.
If the chief judge of any circuit or the district judge chosen by the judges of the circuit
is unable to attend, the Chief lustice may summon any other circuit or district judge from
such circuit. If the chief judge of the Court of Claims or the chief judge of the Court of
Customs and Patent Appeals is unable to attend, the Chief Justice may summon an
associate judge of such court. Every judge summoned shall attend, and, unless excused by
the Chief Justice, shall remain throughout the sessions of the conference and advise as to
the needs of his circuit or court and as to any matters in respect of which the administra
tion of justice in the courts of the United States may be improved.
The conference shall make a comprehensive survey of the condition of business in the
courts of the United States and prepare plans for assignment of judges to or from cir
cuits or districts where necessary. and shall submit suggestions to the various courts, in the
interest of uniformity and expedition of business.
The conference shall also carry on a continuous study of the operation and effect of the
general rules of practice and procedure now or hereafter in use as prescribed by the
Supreme Court for the other courts of the United States pursuant to law. Such changes
in and additions to those rules as the conference may deem desirable to promote simplicity
in procedure, fairness in administration, the just determination of litigation, and the e1im·
ination of unjustifiable expense and delay shall be recommended by the conference from
time to time to the Supreme Court for its consideration and aoopti(l1, modification or
rejection, in acmrdance with law.
The Attorney General shall, upon request of the Chief Justice, report to such conference
on matters relating to the business of the several coutts of the United States, with par
ticular reference to cases to which the United States is a party.
The Chief Justice shall submit to Congress an annual report of the proceedings of the
ludicial Conference and its recommendations for legislation.
iv
TABLE OF CONTENTS
REPORT OF THE PROCEEDINGS OF THE
JUDICIAL CONFERENCE OF THE UNITED STATES
September 22-23, 1982
Page
Call of the Conference • . • • . • . . . . • • • . . . . . . • . . • • . . • .
Report of the Director of the Administrative
Office of the United States Courts ...•••.•.••••.••
Judicial Business of the Courts •• • . • • • • . • • • . • • • • • •
Judicial Panel on Multidistrict Litigation. • • • • • . . • • . . • • •
Committee on the Judicial Branch. • . • . • . • • • • • • • . • • • • •
Judicial Salary Control Act of 1981 . . • • • . • • • . • . . • • •
Commission on the Bicentennial of
the Constitution. • • • • • • • • • • • • • . • • • • • . • • • • • • • •
Committee on Court Administration •••.••••••••••••••
Additional Judgeships. • • . • • • • • • . • • • . . • • • • • . • • • •
United States Immigration Court. • • • . • • • . • • • • • • • • •
Social Security Court • • . • • • • • . . . • • • • • • • • • . • • • • •
Judicial Review of the Denial
of Veterans Claims. . • . • • • . • • • • • • • . • . • • • . • • • • •
Contribution and Claims Reduction
in Anti trust Cases . . . . . . . . . . . . . . . . . . . . . . . . . . .
Congressional Redistricting. • • • • • . • • • . • • • • • • • • • • •
Review of Decisions of the Employees'
Compensation Appeals Board. • • • • • • • • • • • • . • • • • • •
Judicial Restraint Act •••••.•••••••••••••••••••
. Jurisdiction of Bankruptcy Courts • • • • • • • • • • • • . • • • •
Venue in Courts of Appeals and
District Courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
National Court of Appeals and
Intercircuit Tribunal of the
United States Courts of Appeals ••• • • • • • • • • • • • • • •
National Judicial Study Commission. • • • • • • • • • • • • • • •
Technical Amendments to Title 28,
United States Code, Section 1364 ••••••••••••••••
Residences of Clerks of Court. • • • • . • . . . • • • • • • • • • •
Places of Holding Court ••••••••••••••••••••••••
Waiver of Overpayments. • . • • . • • • • • • • • • • • . • • • • • •
Court Interpreters Act • • • • • • • • • • • • • • • • • • • • • • • • •
Travel Regulations for Justices
and Judges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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71
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Court Administration (Cont'd)
Litigation Expenses of Judicial Officers. • . . . • . . . . . • •
Miscellaneous Fees ..••..••..... , • • . • . . • . . • • • • •
Space Utilization Survey. . . • • . . . . . . . . • . • • • • • • • • •
Authorization of Temporary
Personnel for Judges. . . . . . . . . . . . . . • . . • . . . . • • . .
Court Reporters. . • . . . . . • • . . . . . . . • . . . . . . • • . • • .
Changes in Authorization and Compensation
of Supporting Clerical Staff .........•.••....•••
Committee on the Budget. . . . . • . . . . . . . . • . . . • . . . . . . .
Appropriations for the Fiscal Year 1984 . • . . • . • • . . • • •
Supporting Personnel for Senior Judges .......•••...
Judicial Ethics Committee .•....••.•••...........•.
Activities of the Committee. • • • . • . . . • . . . • . . • • . . .
Reporting Form and Instructions. • . • • • . . . . • . • . • . • •
Advisory Committee on Codes of Conduct • . • . • . • . • • . . • •
Activities of the Committee. • . • . • • • . • . • • • • • • • . . •
Applicability of Codes of Conduct. • . • . . • • • • • • • • • • •
Model Codes of Conduct for Various
Judicial Employees. • • • • • • • • • • • • • • • • . • • . • • • • • •
Senior Judges Serving as Arbitrators •••••••••••••.•
Committee on Intercircuit Assignments. • • • • • • • • • • • • • • •
Committee on Rules of Practice
and Procedure •••••.•..••.•••••••.•••••••••••
Bankruptcy Rul es • • • • • • • . . • • . • • • • . • • • • • • • • • • • •
Criminal Rules. . . . . . . . . • . • . • • . • • • . • • • • • • • • • • •
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79
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81
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84
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85
85
Civil Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
86
Appellate Rules . • • . . . . • . . • • • • • . • . . . • • • • . • . • • •
Statement of Operating Procedures. • • • . • . • . . • • • • • •
Committee on the Administration of
the Probation System • • . • • • . . . . • . • • • • • • • • • • • • • •
Sentencing Institutes ••..•.....•••.••••••••••••
Sentencing Reform. • • • . . • • • • • • . . . • . • • . • . . • • • • •
Committee on the Administration of the
Bankruptcy System. • • • • • • • • • • • • • • . • • . . • • • • • • • •
Survey of the Need for Bankruptcy Judges. • . • • • • • • • •
Arrangements for Bankruptcy Judges. • • • • • • • • • • • • • •
Guidelines for Chapter 13 Administration. • • • • • • • • • • •
Jurisdictional Conflicts. • • • • • • • • • • • • • • • • • • • • • • • •
Bankruptcy Appeals in District Courts. . • • • • • . • • • • • •
Committee on the Administration of
the Federal Magistrates System. • • • • • • • • • • • • • • • • • •
Jurisdiction of Magistrates • • • • • • • • • • • • • • • • • • • • • •
Qualification Standards and
Selection Procedures •••••••••••••••••••••••••
Changes in Magistrates Positions. • • • • • . • • • • • • • • • • •
86
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Committee to Implement the Criminal
Justi ce Act •. . . • . . . . . . . . . . . . . . . . . . . . . . . . . . ..
Appointments and Payments. . . . • • . . . • • . . . . . • . . ..
Budget Requests - Federal Public
Defenders ...••.•.•.••.•...... . . • . . . . . . . . ..
Grant Requests - Community Defender
Organizations. . . . . • • . . . • • . • • . . . • • . . . • . • • . . ••
Funding for the Federal Public Defender
in the Southern District of Florida. • • . • . • • . • • . . . .•
Guidelines • . • . • . • • • • . . • • • . • • • . • . • • . . . . . . • . •.
Committee on the Administration of
the Criminal Law. . . . . • • . • • • • . • . . • . . • . . . • • . . ..
Interlocutory Appeals • • • • • • • • • • • . . • • . . . . . • • . . ••
Sealing of Records Under the Youth
Corrections Act. . . . . . . . . . • . . . . • • . . . • • • • • • . ..
Amendments to the Smuggling Statute. • . • . . . . • . . . •.
Commitment of Mentally Incompetent
Offenders ••.••••••.••.•••...•••.•••..••...
Committee on the Operation of the
Jury System .•••..•••..••...•.•..•.•..•...••.
Judges' Manual for the Management
of Com plex Criminal Jury Cases • • • . . • . . . . . • • . • ••
Periodic Reporting - Jury Selection. . • • • • . • • . • • • • ••
Voir Dire Examination •••••.••••..••...•••••.••
Witnesses Before Grand Juries. • • . • • • . . • • • . . • • • . •.
Tax Treatment of Jurors' Attendance Fees. • . • • . . • • •.
Juror Qualification Questionnaire •...••••.••••••••
Implementation Committee on Admission
of Attorneys to Federal Practice. • • • • • • • • • . • • . • • ••
Committee on Pacific Territories. • • • • . . . • • . . . • • . . • ••
Committee on Judgeship Vacancies . • • • • • • . • • • • . • . • • •.
Ad Hoc Committee on the Disposition
of Court Records • . • . . • • • • • • • • • • . • • • • . • • • • • • •.
Records Disposition Program and Schedule. . • . • . • • • ..
Termination of the Work of the Committee ••••••••••
Elections . . .. . .. . .. . . .. .. . . .. .. .. .. .. .. . .. .. .. . . .. .. .. .. .. .. .. .. .. .. . ....
Committee to Review Circuit Council
Conduct and Disability Orders. • • • • . • • • • • • . • • . • • ••
Committee on the Selection of Law Clerks. . . . • . . . . • . . .•
Ad Hoc Committee on Judicial Review
Provisions in Regulatory Reform
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III
III
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119
119
120
120
Legisla ti on.. .. .. .. . . .. .. . .. . . .. .. .. . .. . . .. . . . .. .. .. . . . .. . .. ...
120
Courtroom Facilities .•••••••••••••••.•••.•••.••••
Pretermission of Terms of the
Courts of Appeals.............................
Release of Conference Action. • • • • • • • • • • • • • • • • • • • • ••
121
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REPORT OF THE PROCEEDINGS
OF THE JUDICIAL CONFERENCE
OF THE UNITED STATES
September 22-23, 1982
The Judicial Conference of the United States convened
on September 22, 1982, pursuant to the call of the Chief
Justice of the United States, issued under 28 U.S.C. 331, and
continued in session on September 23rd. The Chief Justice
presided and the following members of the Conference were
present:
First Circuit:
Chief Judge Frank M. Coffin
Judge W. Arthur Garrity, Jr., District of Massachusetts
Second Circuit:
Chief Judge Wilfred Feinberg
Chief Judge Constance B. Motley, Southern District of
New York
Third Circuit:
Chief Judge Collins J. Seitz
Chief Judge Gerald .T. Weber, Western District of
Pennsylvania
Fourth Circuit:
Chief Judge Harrison L. Winter
Judge Robert R. Merhige, Jr., Eastern District of Virginia
Fifth Circuit:
Chief Judge Charles Clark
Chief Judge John V. Singleton, Jr., Southern District of
Texas
Sixth Circuit:
Chief Judge George C. Edwards, Jr.
Chief Judge Frank J. Battisti, Northern District of Ohio
56
Seventh Circuit:
Chief Judge Walter J. Cummings
Chief Judge John W. Reynolds, Eastern District of
Wisconsin
Eighth Circuit:
Chief Judge Donald P. Lay
Judge Albert G. Schatz, District of Nebraska
Ninth Circuit:
Chief Judge James R. Browning
Judge Manuel L. Real, Central District of California
Tenth Circuit:
Chief Judge Oliver Seth
Chief Judge Luther B. Eubanks, Western District of
Oklahoma
Eleventh Circuit:
Chief Judge John C. Godbold
Judge William C. O'Kelley, Northern District of
Georgia
District of Columbia:
Chief Judge Spottswood W. Robinson, III
Chief Judge Aubrey E. Robinson, Jr., District of Columbia
Court of Claims:
Chief Judge Daniel M. Friedman
Court of Customs and Patent Appeals:
Chief Judge Howard T. Markey
Circuit Judges Irving R. Kaufman, Anthony M. Kennedy,
Otto R. Skopil Jr., Edward A. Tamm, and Gerald B. Tjoflatj
Senior Circuit Judges Clement F. Haynsworth, Jr. and Carl
McGowan; Senior District Judges Elmo B. Hunter and Thoma~
J. MacBride; and District Judges T. Emmet Clarie, Robert E
57
DeMascio, Edward T. Gignoux and Alexander Harvey II,
attended all or some of the sessions of the Conference.
The Deputy Attorney General of the United States,
Honorable Edward C. Schmults, and the Solicitor General of
the United States, Honorable Rex E. Lee, addressed the
Conference briefly on matters of mutual interest to the
Department of Justice and the Conference.
William E. Foley, Director of the Administrative Office
of the United States Courts; Joseph F. Spaniol, Jr., Deputy
Director; James E. Macklin, Assistant Director; William J.
Weller, Legislative Affairs Officer; Michael J. Remington,
Deputy Legislative Affairs Officer; Deborah H. Kirk, Chief,
Office of Management Review; and Charles W. Nihan, Deputy
Director of the Federal Judicial Center, attended sessions of
the Conference. Mark W. Cannon, Administrative Assistant to
the Chief Justice, and John Yoder of the Supreme Court staff,
attended sessions of the Conference. The Director of the
Federal JUdicial Center, A. Leo Levin, presented the Center's
Annual Report.
REPORT OF THE DffiECTOR
OF THE ADMINISTRATIVE OFFICE
OF THE UNITED STATES COURTS
The Director of the Administrative Office of the United
States Courts, William E. Foley, submitted to the Conference
the Annual Report of the Director for the year ended June 30,
1982. The Conference authorized the Director to release the
Annual Report immediately in preliminary form and to revise
and supplement the final printed edition.
Separate reports on payments under the Equal Access to
Justice Act and on the operation of equal employment
opportunity plans in the courts, filed by the Director, were also
received by the Conference and authorized to be released.
JUDICIAL BUSINESS OF THE COURTS
Mr. Foley reported that appeals docketed in the United
States courts of appeals during the year ended June 30, 1982
increased 6 percent to a record 27,947 appeals filed. During
the year the courts of appeals terminated 27,984 appeals, an
58
increase of 11.6 percent over the previous year and 38 appeals
more than the number filed. As a result, the number of
appeals pending on June 30, 1982 rleclined for the first time
since 1958 to 21,510 pending appeals.
Civil cases filed in the United States district courts
during the year ended June 30, 1982 were 206,193, an increase
of 14.2 percent over the 180,576 civil cases filed during the
previous year. There were 189,473 civil cases terminated, 6.5
percent more than the previous year, and the pending civil
caseload increased 8.9 percent to a record 205,434 cases as of
June 30, 1982.
Criminal cases filed in the district courts in 1982
climbed to 32,682, an increase of 4.5 percent over 1981. There
were 31,889 criminal cases closed during the year, and on June
30, 1982 there were 16,659 criminal cases pending, an increase
of 5.1 percent. During the year prosecutions for marijuana
drug violations increased 39.9 percent and all other drug
related cases increased 11.5 percent. Prosecutions under laws
relating to weapons and firearms continued to increase during
the year, rising 36.2 percent. Prosecutions for forgery and
counterfeiting also rose substantially increasing 17.6 percent,
while auto theft prosecutions increased 21.0 percent.
During the year ended June 30, 1982 there were 367,866
bankruptcy cases, representing 527,342 separate estates, filed
in the United States bankrupcy courts. An additional 469
estates in cases originally filed under the Bankruptcy Act prior
to October I, 1979 were reopened. The bankruptcy courts thus
received 527,811 new bankruptcy cases during the year, an
increase of 1.7 percent. This is a leveling off in the filing of
bankruptcy estates from the increase of 43.8 percent in 1981
and 59.4 percent in 1980. There were 412,852 bankruptcy
estates closed during the year, an increase of 28.3 percent over
the previous year, but almost 215,000 estates less than the
number filed. As a result the number of estates pending on the
dockets of the bankruptcy courts on June 30, 1982 increased
18.6 percent to a record 723,871.
JUDICIAL PANEL ON MULTIDISTR[CT LITIGATION
A written statement filed with the Conference by the
Judicial Panel on Multidistrict Litigation indicated that during
the year ended June 30, 1982 the Panel had acted on 683 civil
59
actions pursuant to 28 U.S.C. 1407. Of that number, 454
actions were centralized for consolidated pretrial proceedings
with 229 actions already pending in the various transferee
districts at the time of transfer. The Panel denied transfer of
155 civil actions.
Since its creation in 1968 the Panel has transferred
11,094 civil actions for centralized pretrial proceedings in
carrying out its responsibilities.
As of June 30, 1982,
approximately 8,814 cases had been remanded for trial,
reassigned within the transferee district, or terminated in the
transferee court.
On June 30, 1982 there were 2,280
transferred civil actions being processed by transferee judges.
COMMITTEE ON THE JUDICIAL BRANCH
Judge Irving R. Kaufman, Chairman of the Committee
on the Judicial Branch, submitted the Committee's report.
JUDICIAL SALARY CONTROL ACT OF 1981
S. 1847, 97th Congress, is a bill to prohibit any future
increases in salaries of Federal judges absent an affirmative
record vote in both Houses of Congress, and to require an
annual review by both Houses of Congress of all standing
SUbstantive program authorizations for judicial branch
activities. The Conference in March 1982 (Conf. Rept. p. 5)
recognized the ultimate final authority of Congress to set
judicial salaries, but expressed its preference for the draft
legislation to create a biennial commission on judicial salaries
previously approved by the Conference. The Conference
further agreed that the bill's objectives with respect to annual
program authorizations are unnecessary and unwise.
Judge Kaufman stated that the Committee had again
reviewed this proposed legislation and concluded that the
Judicial Conference should renew its opposition to the passage
of S. 1847 or any successor legislation.
Upon the
recommendation of the Committee the Conference adopted
the following resolution:
Resolved, that the Judicial Conference of the
United States opposes the passage of S. 1847 or
of any bill replacing or resembling it, or
flO
providing for annual program oversight of judicial
operations.
COl'vtl'lHSSION ON THE BICENTENNIAL OF
THE CONSTITUTION
Judge Kaufman stated that the Committee had
unanimously endorsed pending legislation, S. 2671, 97th
Congress, which would establish a Commission on the
Bicentennial of the Constitution to promote and coordinate
activities to commemorate the wisdom and endurance of that
document. The Committee noted that the bill would provide
for the appointment of Commission members by the President
from lists of nominees submitted by the Speaker of the House,
the President Pro Tempore of the Senate and the Chief
