Thank God for the BAP

Photo credit:  Abi Skipp's photostream (Isle of Wright 2009) per Creative Commons license.

Photo credit: Abi Skipp’s photostream (Isle of Wright 2009) per Creative Commons license.

Two things make me want to put a gun in my mouth.  They are bankruptcy appeals and patent disputes.  In this post, I concentrate on bankruptcy cases.

Thirty years ago, I used to do quit a bit of bankruptcy work when I practiced law out in the sticks.  I made $50 bucks an hour representing agricultural lenders during the farm crisis of the early ’80s.   My job was take farms and ranches away from farmers and ranchers.   Not tons of fun, but interesting.

I remember spending lots of time in the federal courthouse in North Platte, Nebraska, waiting for Judge Tim Mahoney to hear my case.  The judge–a truly wonderful guy and a great judge–worked late into the night hearing farm credit cases.  No matter how long he had been on the bench that day, he was always patient, smart, funny and a joy to practice before.  Happily, most of the time, I was in a superior legal and bargaining position, so I “won” fairly frequently.   But, truth be told, I privately thought that a monkey could have done just as well as I did.  Nonetheless, I took my fifty bucks an hour and never looked back.

When I became a federal district judge in 1992, I quickly realized that an aggrieved party to a bankruptcy matter could “appeal” to the federal district court.  All of a sudden, I had to learn what Judge Mahoney instinctively knew.  Deciding these “appeals” was hard and daunting, and remains so today.  Correctly applying bankruptcy law requires either specialization or a hell of lot of work.  Moreover, bankruptcy cases were and are infrequent enough that a typical district judge must relearn bankruptcy stuff over and over again.  To make matters worse, lots of time my otherwise helpful law clerks would be useless.  Once, a clerk told me, “Judge,I don’t do math or money.”

Anyway, today, there is a wonderful modern invention called a BAP.  Here is how the Administrative Office of the United States Courts describes a BAP:

Bankruptcy Appellate Panels are 3-judge panels authorized to hear appeals of bankruptcy court decisions. These panels are a unit of the federal courts of appeals.

Bankruptcy Appellate Panels (BAPs) were established under the Bankruptcy Reform Acts of 1978 and 1994. 28 U.S.C. §158 sets forth jurisdiction for appeals of bankruptcy decisions and authorizes the establishment of BAPs upon the order of the circuit judicial councils. BAP judges continue to serve as active bankruptcy judges in addition to their duties on the appellate panel.

Appeals from dispositive orders of bankruptcy judges may be taken to the district court or the BAP (if one has been established and the district has chosen to participate), with further appeal as of right to the court of appeals for the circuit. In accordance with requirements of federal statutes and procedural rules, parties may elect to file an appeal of a bankruptcy court decision with the BAP or with the district court.

The following circuits have established BAPs:

1st, 6th, 8th, 9th, and 10th Circuits.

Bankruptcy Appellate Panels, United States Courts.

With the advent of the BAP, almost all bankruptcy appeals in Nebraska go to the BAP.  From my perspective, that is as it should be.   The BAP–composed of very experienced bankruptcy judges–is more able than I am to process bankruptcy appeals in a timely and efficient manner.   I am fortunate to be in a place where bankruptcy practitioners and their clients have the option of proceeding before the district court or before the BAP when they prosecute appeals.

This brings me to a related point.   On the criminal side of things, federal district judges are specialists.  After all, for federal criminal cases, we are the only game in town and we have to become specialists.  On the civil side, that has never been the common view.  Rather, federal district judges, when dealing with civil cases, have generally be seen as generalists.  We handle diversity cases involving state law, and all manner of federal questions.  We are reasonably good at handling most things that come in the door.

I am persuaded that the generalist model for the handling of civil cases in the federal district courts is a good thing except when it isn’t.   As our legal systems evolve, we are likely to find more efficient and less costly ways of resolving certain types of disputes by increasingly looking to specialist tribunals.  In my view, the BAP experience proves the efficacy of that idea.

Litigants, lawyers and generalist judges are all well served by the BAP.  That’s why I say, “Thank God for the BAP!”


The real face of sequester


I took Tim’s photo today.  It is appended to this post.  He is the most experienced and senior investigator for the Nebraska Federal Public Defender’s office.

After 18 years of serving the impoverished clients of the FPD (and years of experience before that as a Lieutenant in a metropolitan police force), Tim’s last day is April 30, 2013. Out he goes.  Tim takes with him, and thus deprives the FPD’s clients of, the highest level of skill, wisdom, integrity and common decency that one can imagine.

This is the real face of the sequester, and it is a tragic one.


Should senior status district judges retire as a group to get the attention of Congress?

As I noted yesterday, federal district judges who take senior status work for free.  They also do a hell of lot of work.

Consider this analysis:

For the district courts, there were 678 authorized judgeships (including
temporary judgeships) and 651 judges in regular active service in December
2009. The latter accounted for 78.8% of case terminations in 2009, while
judges in senior status accounted for the other 21.2% (including 26.8% of all
trials). It would require 174 district judges in regular active service to do the
case work performed by judges in senior status in that year. Taking vacancies
into account, this translates into 147 additional authorized district court

Stephen B. Burbank, S. Jay Plager, Gregory Ablavasky, Leaving the Bench, 1970-2009: The Choices Federal Judges Make, What Influences Those Choices, and Their Consequence,  161 University of Pennsylvania Law Review 1, 93 (2012).

If Congress continues to starve the federal judiciary of the money it needs to perform its core functions,  perhaps a significant symbolic act is in order.  At some point, senior district judges, who obviously love the federal judiciary enough to work for free, should consider retiring as a group.   Congress would then have to find a lot of money to pay for its intransigence.   While the impact on our active judicial colleagues and our staffs would be severe, there may be no other way to truly get the attention of Congress.  I am entirely serious about this.


Working for free, but not cheaply

Photo credit:  pcambraf's photostream per Creative Customs license.

Credit: pcambraf’s photostream per Creative Commons license.

As a senior judge, I could quit today, and the government would continue to pay my salary.  Or, if I like, I can continue to work even though I am not required to do so to receive my salary.

Like many others (who are far better judges than me), I work for free.  I don’t deserve a pat on the back–I like what I do and am happy to do it.

But, as the sign says, I don’t work cheaply.

This afternoon’s activity in the United States Capitol was the last straw.  I am compelled to speak out bluntly.*

So, to the crazies in Congress, primarily, but not exclusively, members of the Republican party, I say the following:

Today, Congress approved a budget fix so that you and others can fly around the country secure in that knowledge that the air traffic controllers will be at work rather than on furlough.   Then you scurried away to catch your flights home.  Yet you are knowingly and wilfully failing to appropriate the funds necessary for the federal courts to perform their core functions.  What is it about the word hypocrisy that you don’t understand?  Have you no shame?


*Unlike active judges who are constrained by all sorts of things, I don’t have much to lose by speaking my mind.

Congratulations and best wishes to M3

mckeown“Ninth Circuit Judge M. Margaret McKeown to Lead Federal Judges Association,” observes Howard Bashman at How Appealing.  (7:10 PM post on April 24, 2013).

I had the privilege of getting to know the judge when she served as the Chair of the Codes of Conduct Committee for the federal judiciary.  She is brilliant.  She is a great writer.  She is one of the nicest and most interesting people you will ever meet.  She has a lovely sense of humor.  She is down-to-earth.  (Being Made In Wyoming will do that for you.)  She has finally tuned  people skills.  She is universally respected.  She was (and is) on a lot of “short lists” for the Supreme Court.  She is adventurous–McKeown was a member of the first American mountain climbing expedition to China.

Judge McKeown will do a wonderful job leading the FJA during this most challenging time.   I wish her well.


The Bomber, the Boston Federal Public Defender and the Anti-Deficiency Act

Zoe Tillman, writing for the National Law Journal, noted today that “[a]s the federal public defender office in Boston prepares to defend Dzhokhar Tsarnaev, the 19-year-old charged in the Boston Marathon bombings, the lawyers involved face an added challenge: managing the case in the midst of furloughs.” Public Defenders for Boston Suspect Facing Furloughs (free registration required).

To make matters even more complicated, there may be a serious question whether those defenders would violate federal law if they appeared in court during a furlough day.  According to the GAO,

The Antideficiency Act prohibits federal employees from

*making or authorizing an expenditure from, or creating or authorizing an obligation under, any appropriation or fund in excess of the amount available in the appropriation or fund unless authorized by law. 31 U.S.C. § 1341(a)(1)(A).

*involving the government in any obligation to pay money before funds have been appropriated for that purpose, unless otherwise allowed by law. 31 U.S.C. § 1341(a)(1)(B).

*accepting voluntary services for the United States, or employing personal services not authorized by law, except in cases of emergency involving the safety of human life or the protection of property. 31 U.S.C. § 1342.

*making obligations or expenditures in excess of an apportionment or reapportionment, or in excess of the amount permitted by agency regulations. 31 U.S.C. § 1517(a).

Federal employees who violate the Antideficiency Act are subject to two types of sanctions: administrative and penal. Employees may be subject to appropriate administrative discipline including, when circumstances warrant, suspension from duty without pay or removal from office. In addition, employees may also be subject to fines, imprisonment, or both.

U.S. Government Accountability Office, Antideficiency Act Background

Imagine this:  “Sorry, judge, I can’t show up today to defend a guy charged with blowing up Boston because if I do I may violate the law.”  Nice.

Rather than trying to solve this puzzle, doesn’t it make far more sense for Congress to authorize an emergency appropriation for the judiciary and, most particularly, Federal Public Defenders and CJA counsel?


The frequent irrelevancy of the Supreme Court

Yesterday I wrote about the great oral advocate Paul Clement getting knocked around in an appearance before the Supreme Court.  That got me thinking about the “center of the universe”  and the “field.”   I once heard a really smart judge refer to the Supreme Court as the “center of the universe”  and the rest of the judiciary as the “field.”   This judge did so without the slightest bit of irony–she really meant it.  It struck me then, as it strikes me now, that such views are often wrong as an empirical matter.

A lot of what the Supreme Court does is simply irrelevant to what federal trial judges do on a daily basis.  Take, for example, the Daubert case that was supposed to be a big deal when it came to expert testimony.   Boiled down, Daubert simply said that an expert had to have an adequate foundation for his or her opinion.   Well, . . . sure.   The “field” absorbed Daubert with little or no change in what was actually going on in most federal trial courts.  A similar shrug happened with the “big” pleading case of Bell Atlantic v. Twombly.  Very little, if anything, changed “in the field.”   Prior to Twombly, most of the time, the goofy cases got weeded out.  Same, same after Twombly.

Irrelevant decisions occur in the Supreme Court’s criminal docket as well.  For example, no one who knows anything about search and seizure law thinks this term’s “dog sniff” case will have any meaning in the “field” save for a vanishingly small number of cases.*  The only real impact of that case is that Aldo the German shepherd got a lot of love.

In short, while the Supreme Court may exist at the “center of the universe,” it frequently plies its trade in a “galaxy far, far away.”


*Now, it is true, that the Supreme Court can really screw things up.  Look at what the Supreme Court did in Booker and those line of cases.  If haphazardly injecting chaos into a system is a good thing, the Supreme Court is very good at that.  Perhaps that is because when you are at the “center of the universe” its hard to look out.


Federal district judges frequently get no respect at the Supreme Court.  Or at least that was true prior to the arrival of Justice Sotomayor who served for many years as a federal district judge before her elevation to the Supreme Court.

With great pleasure, I read the oral argument transcript in Sekhar v. United States, 12-357, where the distinguished advocate Paul Clement gets smacked around for being a smart ass when referring to a federal district judge who sat by designation on the Second Circuit.  I enjoyed the refined ass whipping Clement received as well as his fawning response.  Perhaps you will too.

MR. CLEMENT:  Well, a couple of things, Justice Sotomayor.  I went back to the Tropiano case, because it is sort of the pro genitor of this whole line of Second Circuit cases, and I noticed two things.

One, I noticed it was written by a district [judge] sitting by designation.  So, I mean, I – I don’t mean anything by that other than this is not Marbury.

Second, I would say that the second thing I noticed is that the debt –

JUSTICE SOTOMAYOR:  Oh, I think when I sat as a district court judge, I would have been insulted by that.

MR. CLEMENT:  Well, it’s not – it’s a good thing you’re no longer sitting in that capacity, Your Honor –

JUSTICE SOTOMAYOR:  Okay.  It’s really –

MR. CLEMENT:  — because I – I certainly mean you no offense.  You could write Marbury here.

Arguments Transcript, Supreme Court of the United States, 2012 Term Cases, #12-357, Sekhar v. United States, argued April 23, 2013, p. 60-61.

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