[House Report 105-478]
[From the U.S. Government Publishing Office]



105th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 2d Session                                                     105-478
_______________________________________________________________________


 
                      JUDICIAL REFORM ACT OF 1998

                                _______
                                

 April 1, 1998.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

_______________________________________________________________________


Mr. Coble, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1252]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 1252) to modify the procedures of the Federal courts in 
certain matters, and for other purposes, having considered the 
same, report favorably thereon with an amendment and recommend 
that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................    10
Background and Need for Legislation..............................    10
Hearings.........................................................    11
Committee Consideration..........................................    11
Vote of the Committee............................................    11
Committee Oversight Findings.....................................    15
Committee on Government Reform and Oversight Findings............    15
New Budget Authority and Tax Expenditures........................    15
Congressional Budget Office Estimate.............................    15
Constitutional Authority Statement...............................    18
Section-by-Section Analysis......................................    18
Agency Views.....................................................    25
Changes in Existing Law as Made by the Bill, as Reported.........    42
Dissenting Views.................................................    58

  The amendment is as follows:
  Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Judicial Reform Act of 1998''.

SEC. 2. 3-JUDGE COURT FOR ANTICIPATORY RELIEF.

  (a) Requirement of 3-Judge Court.--Any application for anticipatory 
relief against the enforcement, operation, or execution of a State law 
adopted by referendum shall not be granted by a United States district 
court or judge thereof upon the ground that the State law is repugnant 
to the Constitution, treaties, or laws of the United States unless the 
application for anticipatory relief is heard and determined by a court 
of 3 judges in accordance with section 2284 of title 28, United States 
Code. Any appeal of a determination on such application shall be to the 
Supreme Court. In any case to which this section applies, the 
additional judges who will serve on the 3-judge court shall be 
designated under section 2284(b)(1) of title 28, United States Code, as 
soon as practicable, and the court shall expedite the consideration of 
the application for anticipatory relief.
  (b) Definitions.--As used in this section--
          (1) the term ``State'' means each of the several States and 
        the District of Columbia;
          (2) the term ``State law'' means the constitution of a State, 
        or any statute, rule, regulation, or other measure of a State 
        that has the force of law, and any amendment thereto;
          (3) the term ``referendum'' means the submission to popular 
        vote, by the voters of the State, of a measure passed upon or 
        proposed by a legislative body or by popular initiative; and
          (4) the term ``anticipatory relief'' means an interlocutory 
        or permanent injunction or a declaratory judgment.
  (c) Effective Date.--This section applies to any application for 
anticipatory relief that is filed on or after the date of the enactment 
of this Act.

SEC. 3. INTERLOCUTORY APPEALS OF COURT ORDERS RELATING TO CLASS 
                    ACTIONS.

  (a) Interlocutory Appeals.--Section 1292(b) of title 28, United 
States Code, is amended--
          (1) by inserting ``(1)'' after ``(b)''; and
          (2) by adding at the end the following:
  ``(2) A party to an action in which the district court has made a 
determination of whether the action may be maintained as a class action 
may make application for appeal of that determination to the court of 
appeals which would have jurisdiction of an appeal of that action. The 
court of appeals may, in its discretion, permit the appeal to be taken 
from such determination if the application is made within 10 days after 
the entry of the court's determination relating to the class action. 
Application for an appeal under this paragraph shall not stay 
proceedings in the district court unless the district judge or the 
court of appeals or a judge thereof shall so order.''.
  (b) Effective Date.--The amendment made by subsection (a) applies to 
any action commenced on or after the date of the enactment of this Act.

SEC. 4. PROCEEDINGS ON COMPLAINTS AGAINST JUDICIAL CONDUCT.

  (a) Referral of Proceedings to Another Judicial Circuit or Court.--
Section 372(c) of title 28, United States Code, is amended--
          (1) in paragraph (1) by adding at the end the following: ``In 
        the case of a complaint so identified, the chief judge shall 
        notify the clerk of the court of appeals of the complaint, 
        together with a brief statement of the facts underlying the 
        complaint.'';
          (2) in paragraph (2) in the second sentence by inserting ``or 
        statement of facts underlying the complaint (as the case may 
        be)'' after ``copy of the complaint'';
          (3) in paragraph (3)--
                  (A) by inserting ``(A)'' after ``(3)'';
                  (B) by striking ``may--'' and all that follows 
                through the end of subparagraph (B) and inserting the 
                following: ``may dismiss the complaint if the chief 
                judge finds it to be--
          ``(i) not in conformity with paragraph (1);
          ``(ii) directly related to the merits of a decision or 
        procedural ruling; or
          ``(iii) frivolous.''; and
                  (C) by adding at the end the following:
  ``(B) If the chief judge does not enter an order under subparagraph 
(A), then the complaint or (in the case of a complaint identified under 
paragraph (1)) the statement of facts underlying the complaint shall be 
referred to the chief judge of another judicial circuit for proceedings 
under this subsection (hereafter in this subsection referred to as the 
`chief judge'), in accordance with a system established by rule by the 
Judicial Conference, which prescribes the circuits to which the 
complaints will be referred. The Judicial Conference shall establish 
and submit to the Congress the system described in the preceding 
sentence not later than 180 days after the date of the enactment of the 
Judicial Reform Act of 1998.
  ``(C) After expeditiously reviewing the complaint, the chief judge 
may, by written order explaining the chief judge's reasons, conclude 
the proceeding if the chief judge finds that appropriate corrective 
action has been taken or that action on the complaint is no longer 
necessary because of intervening events.'';
          (4) in paragraph (4)--
                  (A) by striking ``paragraph (3)'' and inserting 
                ``paragraph (3)(C)''; and
                  (B) in subparagraph (A) by inserting ``(to which the 
                complaint or statement of facts underlying the 
                complaint is referred)'' after ``the circuit'';
          (5) in paragraph (5)--
                  (A) in the first sentence by inserting ``to which the 
                complaint or statement of facts underlying the 
                complaint is referred'' after ``the circuit''; and
                  (B) in the second sentence by striking ``the 
                circuit'' and inserting ``that circuit'';
          (6) in the first sentence of paragraph (15) by inserting 
        before the period at the end the following: ``in which the 
        complaint was filed or identified under paragraph (1)''; and
          (7) by amending paragraph (18) to read as follows:
  ``(18) The Judicial Conference shall prescribe rules, consistent with 
the preceding provisions of this subsection--
          ``(A) establishing procedures for the filing of complaints 
        with respect to the conduct of any judge of the United States 
        Court of Federal Claims, the Court of International Trade, or 
        the Court of Appeals for the Federal Circuit, and for the 
        investigation and resolution of such complaints; and
          ``(B) establishing a system for referring complaints filed 
        with respect to the conduct of a judge of any such court to any 
        of the first eleven judicial circuits or to another court for 
        investigation and resolution.
The Judicial Conference shall establish and submit to the Congress the 
system described in subparagraph (B) not later than 180 days after the 
date of the enactment of the Judicial Reform Act of 1998.''.
  (b) Disclosure of Information.--Section 372(c)(14) of title 28, 
United States Code, is amended--
          (1) in subparagraph (B) by striking ``or'' after the 
        semicolon;
          (2) in subparagraph (C) by striking the period at the end and 
        inserting ``; or''; and
          (3) by adding after subparagraph (C) the following:
          ``(D) such disclosure is made to another agency or 
        instrumentality of any governmental jurisdiction within or 
        under the control the United States for a civil or criminal law 
        enforcement activity authorized by law.''.
  (c) Effective Date.--The amendments made by subsection (a) apply to 
complaints filed on or after the 180th day after the date of the 
enactment of this Act.

SEC. 5. LIMITATION ON COURT-IMPOSED TAXES.

  (a) Limitation.--Chapter 85 of title 28, United States Code, is 
amended by adding at the end the following new section:

``Sec. 1369. Limitation on Federal court remedies

  ``(a) Limitation on Court-Imposed Taxes.--(1) No district court may 
enter any order or approve any settlement that requires any State, or 
political subdivision of a State, to impose, increase, levy, or assess 
any tax, unless the court finds by clear and convincing evidence, 
that--
          ``(A) there are no other means available to remedy the 
        deprivation of a right under the Constitution of the United 
        States;
          ``(B) the proposed imposition, increase, levying, or 
        assessment is narrowly tailored to remedy the specific 
        deprivation at issue so that the remedy imposed is directly 
        related to the harm caused by the deprivation;
          ``(C) the tax will not contribute to or exacerbate the 
        deprivation intended to be remedied;
          ``(D) plans submitted to the court by State and local 
        authorities will not effectively redress the deprivations at 
        issue;
          ``(E) the interests of State and local authorities in 
        managing their affairs are not usurped, in violation of the 
        Constitution, by the proposed imposition, increase, levying, or 
        assessment; and
          ``(F) the proposed tax will not result in the loss or 
        depreciation of property values of the taxpayers who are 
        affected.
  ``(2) The limitation contained in paragraph (1) shall apply only to 
any order or settlement which--
          ``(A) expressly directs any State, or political subdivision 
        of a State, to impose, increase, levy, or assess any tax; or
          ``(B) will necessarily require a State, or political 
        subdivision of a State, to impose, increase, levy, or assess 
        any tax.
  ``(3) If the court finds that the conditions set forth in paragraph 
(1) have been satisfied, it shall enter an order incorporating that 
finding, and that order shall be subject to immediate interlocutory de 
novo review.
  ``(4) A remedy permitted under paragraph (1) shall not extend beyond 
the case or controversy before the court.
  ``(5)(A) Notwithstanding any law or rule of procedure, any person or 
entity whose tax liability would be directly affected by the imposition 
of a tax under paragraph (1) shall have the right to intervene in any 
proceeding concerning the imposition of the tax, except that the court 
may deny intervention if it finds that the interest of that person or 
entity is adequately represented by existing parties.
  ``(B) A person or entity that intervenes pursuant to subparagraph (A) 
shall have the right to--
          ``(i) present evidence and appear before the court to present 
        oral and written testimony; and
          ``(ii) appeal any finding required to be made by this 
        section, or any other related action taken to impose, increase, 
        levy, or assess the tax that is the subject of the 
        intervention.
  ``(b) Termination of Orders.--Notwithstanding any law or rule of 
procedure, any order of, or settlement approved by, a district court 
requiring the imposition, increase, levy, or assessment of a tax 
pursuant to subsection (a)(1) shall automatically terminate or expire 
on the date that is--
          ``(1) 1 year after the date of the imposition of the tax; or
          ``(2) an earlier date, if the court determines that the 
        deprivation of rights that is addressed by the order or 
        settlement has been cured to the extent practicable.
Any new such order or settlement relating to the same issue is subject 
to all the requirements of this section.
  ``(c) Preemption.--This section shall not be construed to preempt any 
law of a State or political subdivision thereof that imposes 
limitations on, or otherwise restricts the imposition of, a tax, levy, 
or assessment that is imposed in response to a court order or 
settlement referred to in subsection (b).
  ``(d) Additional Restrictions on Court Action.--(1) Except as 
provided in paragraph (2), nothing in this section may be construed to 
allow a Federal court to, for the purpose of funding the administration 
of an order or settlement referred to in subsection (b), use funds 
acquired by a State or political subdivision thereof from a tax imposed 
by the State or political subdivision thereof.
  ``(2) Paragraph (1) does not apply to any tax, levy, or assessment 
that may, in accordance with applicable State or local law, be used to 
fund the actions of a State or political subdivision thereof in meeting 
the requirements of an order or settlement referred to in subsection 
(b).
  ``(e) Notice to States.--The court shall provide written notice to a 
State or political subdivision thereof subject to an order or 
settlement referred to in subsection (b) with respect to any finding 
required to be made by the court under subsection (a). Such notice 
shall be provided before the beginning of the next fiscal year of that 
State or political subdivision occurring after the order or settlement 
is issued.
  ``(f) Special Rules.--For purposes of this section--
          ``(1) the District of Columbia shall be considered to be a 
        State; and
          ``(2) any Act of Congress applicable exclusively to the 
        District of Columbia shall be considered to be a statute of the 
        District of Columbia.''.
  (b) Conforming Amendment.--The table of contents for chapter 85 of 
title 28, United States Code, is amended by adding after the item 
relating to section 1368 the following new item:

``1369. Limitation on Federal court remedies.''.

  (c) Statutory Construction.--Nothing contained in this section or the 
amendments made by this section shall be construed to make legal, 
validate, or approve the imposition of a tax, levy, or assessment by a 
United States district court or a spending measure required by a United 
States district court.
  (d) Effective Date.--This section and the amendments made by this 
section shall apply with respect to any action or other proceeding in a 
Federal court that is pending on, or commenced on or after, the date of 
the enactment of this Act, and the 1-year limitation set forth in 
subsection (b) of section 1369 of title 28, United States Code, as 
added by this section, shall apply to any court order or settlement 
described in subsection (a)(1) of such section 1369, that is in effect 
on the date of the enactment of this Act.

SEC. 6. REASSIGNMENT OF CASE AS OF RIGHT.

  (a) In General.--Chapter 21 of title 28, United States Code, is 
amended by adding at the end the following:

``Sec. 464. Reassignment of cases upon motion by a party

  ``(a) Upon Motion.--(1) If all parties on one side of a civil case to 
be tried in a United States district court described in subsection (e) 
bring a motion to reassign the case, the case shall be reassigned to 
another appropriate judicial officer. Each side shall be entitled to 
one reassignment without cause as a matter of right.
  ``(2) If any question arises as to which parties should be grouped 
together as a side for purposes of this section, the chief judge of the 
court of appeals for the circuit in which the case is to be tried, or 
another judge of the court of appeals designated by the chief judge, 
shall determine that question.
  ``(b) Requirements for Bringing Motion.--(1) Subject to paragraph 
(2), a motion to reassign under this section shall not be entertained 
unless it is brought, not later than 20 days after notice of the 
original assignment of the case, to the judicial officer to whom the 
case is assigned for the purpose of hearing or deciding any matter. 
Such motion shall be granted if--
          ``(A) it is presented before trial or hearing begins and 
        before the judicial officer to whom it is presented has ruled 
        on any substantial issue in the case, or
          ``(B) it is presented by consent of the parties on all sides.
  ``(2) Notwithstanding paragraph (1)--
          ``(A) a party joined in a civil action after the initial 
        filing may, with the concurrence of the other parties on the 
        same side, bring a motion under this section within 20 days 
        after the service of the complaint on that party;
          ``(B) a party served with a supplemental or amended complaint 
        or a third-party complaint in a civil action may, with the 
        concurrence of the other parties on the same side, bring a 
        motion under this section within 20 days after service on that 
        party of the supplemental, amended, or third-party complaint; 
        and
          ``(C) rulings in a case by the judicial officer on any 
        substantial issue before a party who has not been found in 
        default enters an appearance in the case shall not be grounds 
        for denying an otherwise timely and appropriate motion brought 
        by that party under this section.
  ``(3) No motion under this section may be brought by the party or 
parties on a side in a case if any party or parties on that side have 
previously brought a motion to reassign under this section in that 
case.
  ``(c) Costs of Travel to New Location.--(1) If a motion to reassign 
brought under this section requires a change in location for purposes 
of appearing before a newly assigned judicial officer, the party or 
parties bringing the motion shall pay the reasonable costs incurred by 
the parties on different sides of the case in travelling to the new 
location for all matters associated with the case requiring an 
appearance at the new location. In a case in which both sides bring a 
motion to reassign under this section that requires a change in 
location, the party or parties bringing the motions on both sides shall 
split the travelling costs referred to in the preceding sentence.
  ``(2) For parties financially unable to obtain adequate 
representation, the Government shall pay the reasonable costs under 
paragraph (1).
  ``(d) Definition.--As used in this section, the term `appropriate 
judicial officer' means--
          ``(1) a United States magistrate judge in a case referred to 
        such a magistrate judge; and
          ``(2) a United States district court judge in any other case 
        before a United States district court.
  ``(e) District Courts That May Authorize Reassignment.--The district 
courts referred to in subsection (a) are the district courts for the 21 
judicial districts for which the President is directed to appoint the 
largest numbers of permanent judges.
  ``(f) 3-Judge Court Cases Excluded.--This section shall not apply to 
any civil action required to be heard and determined by a district 
court of 3 judges.''.
  (b) Clerical Amendment.--The table of contents for chapter 21 of 
title 28, United States Code, is amended by adding at the end the 
following new item:

``464. Reassignment of cases upon motion by a party.''.

  (c) Monitoring.--The Federal Judicial Center shall monitor the use of 
the right to bring a motion to reassign a case under section 464 of 
title 28, United States Code, as added by subsection (a) of this 
section, and shall report annually to the Congress its findings on the 
basis of such monitoring.
  (d) Sunset.--Effective 5 years after the date of the enactment of 
this Act, section 464 of title 28, United States Code, and the item 
relating to that section in the table of contents for chapter 21 of 
such title, are repealed, except that such repeal shall not affect 
civil cases reassigned under such section 464 before the date of 
repeal.

SEC. 7. RANDOM ASSIGNMENT OF HABEAS CORPUS CASES.

  Section 2241 of title 28, United States Code, is amended by adding at 
the end the following:
  ``(e) Applications for writs of habeas corpus received in or 
transferred to a district court shall be randomly assigned to the 
judges of that court.''.

SEC. 8. AUTHORITY OF PRESIDING JUDGE TO ALLOW MEDIA COVERAGE OF 
                    APPELLATE COURT PROCEEDINGS.

  (a) Authority of Appellate Courts.--Notwithstanding any other 
provision of law, the presiding judge of an appellate court of the 
United States may, in his or her discretion, permit the photographing, 
electronic recording, broadcasting, or televising to the public of 
court proceedings over which that judge presides.
  (b) Authority of District Courts.--Notwithstanding any other 
provision of law, any presiding judge of a district court of the United 
States may, in his or her discretion, permit the photographing, 
electronic recording, broadcasting, or televising to the public of 
court proceedings over which that judge presides.
  (c) Advisory Guidelines.--The Judicial Conference of the United 
States is authorized to promulgate advisory guidelines to which a 
presiding judge, in his or her discretion, may refer in making 
decisions with respect to the management and administration of 
photographing, recording, broadcasting, or televising described in 
subsections (a) and (b).
  (d) Definitions.--As used in this section:
          (1) Presiding judge.--The term ``presiding judge'' means the 
        judge presiding over the court proceeding concerned. In 
        proceedings in which more than one judge participates, the 
        presiding judge shall be the senior active judge so 
        participating or, in the case of a circuit court of appeals, 
        the senior active circuit judge so participating, except that--
                  (A) in en banc sittings of any United States circuit 
                court of appeals, the presiding judge shall be the 
                chief judge of the circuit whenever the chief judge 
                participates; and
                  (B) in en banc sittings of the Supreme Court of the 
                United States, the presiding judge shall be the Chief 
                Justice whenever the Chief Justice participates.
          (2) Appellate court of the united states.--The term 
        ``appellate court of the United States'' means any United 
        States circuit court of appeals and the Supreme Court of the 
        United States.
  (e) Sunset.--The authority under subsection (b) shall terminate on 
the date that is 3 years after the date of the enactment of this Act.

SEC. 9. ADJUSTMENT OF SALARIES OF FEDERAL JUDGES.

  (a) Future Adjustments.--Section 461(a) of title 28, United States 
Code, is amended to read as follows:
  ``(a) Effective as of the first day of the applicable pay period 
beginning on or after the date on which an adjustment takes effect 
under section 5303 of title 5 in the rates of basic pay under the 
General Schedule (or under any other provision of law in lieu thereof), 
each salary rate which is subject to an adjustment under this section 
shall be adjusted by an amount equal to the percentage of the 
adjustment under such section 5303, rounded to the nearest multiple of 
$100 (or if midway between multiples of $100, to the next higher 
multiple of $100).''.
  (b) Repeal.--Section 140 of Public Law 97-92 (95 Stat. 1200; 28 
U.S.C. 461 note) is repealed.
  (c) Pay for Administrative Law Judges.--
          (1) In general.--Section 5372 of title 5, United States Code, 
        is amended--
                  (A) by redesignating subsection (c) as subsection 
                (d); and
                  (B) by inserting after subsection (b) the following:
  ``(c)(1) Any reference in this section to the rate of basic pay for 
level IV of the Executive Schedule shall be considered a reference to 
the greater of--
          ``(A) the rate of basic pay then currently in effect under 
        section 5315; or
          ``(B) the rate of basic pay in effect under section 5315 on 
        the effective date of this subsection, as adjusted under 
        paragraph (2).
  ``(2) Each time that rates of pay for the General Schedule are 
adjusted, whether under section 5303 or another provision of law in 
lieu thereof, the rate under paragraph (1)(B) (as last adjusted under 
this paragraph) shall be adjusted by the same percentage, and as of the 
same date, as are the rates of pay for the General Schedule.''.
          (2) Conforming amendment.--Subsection (a) of section 5372 of 
        title 5, United States Code, is amended to read as follows:
  ``(a) For the purposes of this section--
          ``(1) the term `administrative law judge' means an 
        administrative law judge appointed under section 3105; and
          ``(2) the term `the rate of basic pay for level IV of the 
        Executive Schedule' is used as described in subsection (c).''.

SEC. 10. MULTIPARTY, MULTIFORUM JURISDICTION OF DISTRICT COURTS.

  (a) Basis of Jurisdiction.--
          (1) In general.--Chapter 85 of title 28, United States Code, 
        is amended by adding at the end the following new section:

``Sec. 1370. Multiparty, multiforum jurisdiction

  ``(a) In General.--The district courts shall have original 
jurisdiction of any civil action involving minimal diversity between 
adverse parties that arises from a single accident, where at least 25 
natural persons have either died or incurred injury in the accident at 
a discrete location and, in the case of injury, the injury has resulted 
in damages which exceed $50,000 per person, exclusive of interest and 
costs, if--
          ``(1) a defendant resides in a State and a substantial part 
        of the accident took place in another State or other location, 
        regardless of whether that defendant is also a resident of the 
        State where a substantial part of the accident took place;
          ``(2) any two defendants reside in different States, 
        regardless of whether such defendants are also residents of the 
        same State or States; or
          ``(3) substantial parts of the accident took place in 
        different States.
  ``(b) Special Rules and Definitions.--For purposes of this section--
          ``(1) minimal diversity exists between adverse parties if any 
        party is a citizen of a State and any adverse party is a 
        citizen of another State, a citizen or subject of a foreign 
        state, or a foreign state as defined in section 1603(a) of this 
        title;
          ``(2) a corporation is deemed to be a citizen of any State, 
        and a citizen or subject of any foreign state, in which it is 
        incorporated or has its principal place of business, and is 
        deemed to be a resident of any State in which it is 
        incorporated or licensed to do business or is doing business;
          ``(3) the term `injury' means--
                  ``(A) physical harm to a natural person; and
                  ``(B) physical damage to or destruction of tangible 
                property, but only if physical harm described in 
                subparagraph (A) exists;
          ``(4) the term `accident' means a sudden accident, or a 
        natural event culminating in an accident, that results in death 
        or injury incurred at a discrete location by at least 25 
        natural persons; and
          ``(5) the term `State' includes the District of Columbia, the 
        Commonwealth of Puerto Rico, and any territory or possession of 
        the United States.
  ``(c) Intervening Parties.--In any action in a district court which 
is or could have been brought, in whole or in part, under this section, 
any person with a claim arising from the accident described in 
subsection (a) shall be permitted to intervene as a party plaintiff in 
the action, even if that person could not have brought an action in a 
district court as an original matter.
  ``(d) Notification of Judicial Panel on Multidistrict Litigation.--A 
district court in which an action under this section is pending shall 
promptly notify the judicial panel on multidistrict litigation of the 
pendency of the action.''.
          (2) Conforming amendment.--The table of sections at the 
        beginning of chapter 85 of title 28, United States Code, is 
        amended by adding at the end the following new item:

``1370. Multiparty, multiforum jurisdiction.''.

  (b) Venue.--Section 1391 of title 28, United States Code, is amended 
by adding at the end the following:
  ``(g) A civil action in which jurisdiction of the district court is 
based upon section 1370 of this title may be brought in any district in 
which any defendant resides or in which a substantial part of the 
accident giving rise to the action took place.''.
  (c) Multidistrict Litigation.--Section 1407 of title 28, United 
States Code, is amended by adding at the end the following:
  ``(i)(1) In actions transferred under this section when jurisdiction 
is or could have been based, in whole or in part, on section 1370 of 
this title, the transferee district court may, notwithstanding any 
other provision of this section, retain actions so transferred for the 
determination of liability and punitive damages. An action retained for 
the determination of liability shall be remanded to the district court 
from which the action was transferred, or to the State court from which 
the action was removed, for the determination of damages, other than 
punitive damages, unless the court finds, for the convenience of 
parties and witnesses and in the interest of justice, that the action 
should be retained for the determination of damages.
  ``(2) Any remand under paragraph (1) shall not be effective until 60 
days after the transferee court has issued an order determining 
liability and has certified its intention to remand some or all of the 
transferred actions for the determination of damages. An appeal with 
respect to the liability determination and the choice of law 
determination of the transferee court may be taken during that 60-day 
period to the court of appeals with appellate jurisdiction over the 
transferee court. In the event a party files such an appeal, the remand 
shall not be effective until the appeal has been finally disposed of. 
Once the remand has become effective, the liability determination and 
the choice of law determination shall not be subject to further review 
by appeal or otherwise.
  ``(3) An appeal with respect to determination of punitive damages by 
the transferee court may be taken, during the 60-day period beginning 
on the date the order making the determination is issued, to the court 
of appeals with jurisdiction over the transferee court.
  ``(4) Any decision under this subsection concerning remand for the 
determination of damages shall not be reviewable by appeal or 
otherwise.
  ``(5) Nothing in this subsection shall restrict the authority of the 
transferee court to transfer or dismiss an action on the ground of 
inconvenient forum.''.
  (d) Removal of Actions.--Section 1441 of title 28, United States 
Code, is amended--
          (1) in subsection (e) by striking ``(e) The court to which 
        such civil action is removed'' and inserting ``(f) The court to 
        which a civil action is removed under this section''; and
          (2) by inserting after subsection (d) the following new 
        subsection:
  ``(e)(1) Notwithstanding the provisions of subsection (b) of this 
section, a defendant in a civil action in a State court may remove the 
action to the district court of the United States for the district and 
division embracing the place where the action is pending if--
          ``(A) the action could have been brought in a United States 
        district court under section 1370 of this title, or
          ``(B) the defendant is a party to an action which is or could 
        have been brought, in whole or in part, under section 1370 in a 
        United States district court and arises from the same accident 
        as the action in State court, even if the action to be removed 
        could not have been brought in a district court as an original 
        matter.
The removal of an action under this subsection shall be made in 
accordance with section 1446 of this title, except that a notice of 
removal may also be filed before trial of the action in State court 
within 30 days after the date on which the defendant first becomes a 
party to an action under section 1370 in a United States district court 
that arises from the same accident as the action in State court, or at 
a later time with leave of the district court.
  ``(2) Whenever an action is removed under this subsection and the 
district court to which it is removed or transferred under section 
1407(i) has made a liability determination requiring further 
proceedings as to damages, the district court shall remand the action 
to the State court from which it had been removed for the determination 
of damages, unless the court finds that, for the convenience of parties 
and witnesses and in the interest of justice, the action should be 
retained for the determination of damages.
  ``(3) Any remand under paragraph (2) shall not be effective until 60 
days after the district court has issued an order determining liability 
and has certified its intention to remand the removed action for the 
determination of damages. An appeal with respect to the liability 
determination and the choice of law determination of the district court 
may be taken during that 60-day period to the court of appeals with 
appellate jurisdiction over the district court. In the event a party 
files such an appeal, the remand shall not be effective until the 
appeal has been finally disposed of. Once the remand has become 
effective, the liability determination and the choice of law 
determination shall not be subject to further review by appeal or 
otherwise.
  ``(4) Any decision under this subsection concerning remand for the 
determination of damages shall not be reviewable by appeal or 
otherwise.
  ``(5) An action removed under this subsection shall be deemed to be 
an action under section 1370 and an action in which jurisdiction is 
based on section 1368 of this title for purposes of this section and 
sections 1407, 1660, 1697, and 1785 of this title.
  ``(6) Nothing in this subsection shall restrict the authority of the 
district court to transfer or dismiss an action on the ground of 
inconvenient forum.''.
  (e) Choice of Law.--
          (1) Determination by the court.--Chapter 111 of title 28, 
        United States Code, is amended by adding at the end the 
        following new section:

``Sec. 1660. Choice of law in multiparty, multiforum actions

  ``(a) Factors.--In an action which is or could have been brought, in 
whole or in part, under section 1370 of this title, the district court 
in which the action is brought or to which it is removed shall 
determine the source of the applicable substantive law, except that if 
an action is transferred to another district court, the transferee 
court shall determine the source of the applicable substantive law. In 
making this determination, a district court shall not be bound by the 
choice of law rules of any State, and the factors that the court may 
consider in choosing the applicable law include--
          ``(1) the place of the injury;
          ``(2) the place of the conduct causing the injury;
          ``(3) the principal places of business or domiciles of the 
        parties;
          ``(4) the danger of creating unnecessary incentives for forum 
        shopping; and
          ``(5) whether the choice of law would be reasonably 
        foreseeable to the parties.
The factors set forth in paragraphs (1) through (5) shall be evaluated 
according to their relative importance with respect to the particular 
action. If good cause is shown in exceptional cases, including 
constitutional reasons, the court may allow the law of more than one 
State to be applied with respect to a party, claim, or other element of 
an action.
  ``(b) Order Designating Choice of Law.--The district court making the 
determination under subsection (a) shall enter an order designating the 
single jurisdiction whose substantive law is to be applied in all other 
actions under section 1370 arising from the same accident as that 
giving rise to the action in which the determination is made. The 
substantive law of the designated jurisdiction shall be applied to the 
parties and claims in all such actions before the court, and to all 
other elements of each action, except where Federal law applies or the 
order specifically provides for the application of the law of another 
jurisdiction with respect to a party, claim, or other element of an 
action.
  ``(c) Continuation of Choice of Law After Remand.--In an action 
remanded to another district court or a State court under section 
1407(i)(1) or 1441(e)(2) of this title, the district court's choice of 
law under subsection (b) shall continue to apply.''.
          (2) Conforming amendment.--The table of sections at the 
        beginning of chapter 111 of title 28, United States Code, is 
        amended by adding at the end the following new item:

``1660. Choice of law in multiparty, multiforum actions.''.

  (f) Service of Process.--
          (1) Other than subpoenas.--(A) Chapter 113 of title 28, 
        United States Code, is amended by adding at the end the 
        following new section:

``Sec. 1697. Service in multiparty, multiforum actions

  ``When the jurisdiction of the district court is based in whole or in 
part upon section 1370 of this title, process, other than subpoenas, 
may be served at any place within the United States, or anywhere 
outside the United States if otherwise permitted by law.''.
          (B) The table of sections at the beginning of chapter 113 of 
        title 28, United States Code, is amended by adding at the end 
        the following new item:

``1697. Service in multiparty, multiforum actions.''.

          (2) Service of subpoenas.--(A) Chapter 117 of title 28, 
        United States Code, is amended by adding at the end the 
        following new section:

``Sec. 1785. Subpoenas in multiparty, multiforum actions

  ``When the jurisdiction of the district court is based in whole or in 
part upon section 1370 of this title, a subpoena for attendance at a 
hearing or trial may, if authorized by the court upon motion for good 
cause shown, and upon such terms and conditions as the court may 
impose, be served at any place within the United States, or anywhere 
outside the United States if otherwise permitted by law.''.
          (B) The table of sections at the beginning of chapter 117 of 
        title 28, United States Code, is amended by adding at the end 
        the following new item:

``1785. Subpoenas in multiparty, multiforum actions.''.

  (g) Effective Date.--The amendments made by this section shall apply 
to a civil action if the accident giving rise to the cause of action 
occurred on or after the 90th day after the date of the enactment of 
this Act.

SEC. 11. APPEALS OF MERIT SYSTEMS PROTECTION BOARD.

  (a) Appeals.--Section 7703 of title 5, United States Code, is 
amended--
          (1) in subsection (b)(1), by striking ``30'' and inserting 
        ``60''; and
          (2) in the first sentence of subsection (d), by inserting 
        after ``filing'' the following: ``, within 60 days after the 
        date the Director received notice of the final order or 
        decision of the Board,''.
  (b) Effective Date.--The amendments made by subsection (a) take 
effect on the date of the enactment of this Act and apply to any 
administrative or judicial proceeding pending on that date or commenced 
on or after that date.

                          Purpose and Summary

    The ``Judicial Reform Act of 1997,'' H.R. 1252, constitutes 
a restrained legislative response to specific examples of 
unfair practices and procedures, many of which violate the 
separation-of-powers doctrine, that exist in the federal court 
system.

                  Background and Need for Legislation

    Since the late 1950's, a growing legion of critics has 
become increasingly vocal about the prevalence of ``judicial 
activism'' on the federal bench. As defined by these critics, 
an ``activist'' judge is one who reads his or her personal 
convictions of a social or political nature into decisions that 
are otherwise not supported by case law precedent or the 
Constitution. In effect, these judges legislate by judicial 
fiat when their professional and constitutional mission is 
limited to interpreting the law. Worse still, an activist 
federal judge appointed for life cannot be recalled by the 
voters as legislators or many state judges can.
    Defenders of jurists so accused assert that reasonable men 
and women can and do disagree on the meaning of statutes, 
ordinances, regulations, and the Constitution. It is not fair 
to discipline these judges, they argue, for simply issuing 
decisions, oftentimes on controversial matters, that invariably 
result in one side winning and the other side losing. Defenders 
of the status quo also believe that any effort to compromise 
the independence of the federal judiciary will cause far 
greater harm than any assortment of ``activist'' judges ever 
could.
    None of the witnesses at the Subcommittee hearings 
articulated a new standard of review by which the House of 
Representatives could impeach sitting federal judges for 
indulging in extreme ``activism'' or other forms of misconduct. 
By favorably reporting H.R. 1252, the Committee does not intend 
to interfere with the adjudication of specific disputes or to 
prevent the federal courts from interpreting the 
constitutionality of state or federal laws. Rather, the 
Committee has identified a limited number of practices in the 
federal courts that, when invoked, constitute an abuse of power 
that compromises the rights of voters, taxpayers, and 
litigants, while derogating the authority of Congress to make 
public policy. The Committee therefore believes that H.R. 1252 
will inhibit activism to the extent that it relates to the 
judicial abuse which was the subject of Subcommittee and 
Committee consideration.

                                Hearings

    The Committee's Subcommittee on Courts and Intellectual 
Property held one day of legislative hearings on H.R. 1252 on 
May 14, 1997, and an additional day of oversight hearings on 
the related issue of judicial misconduct on May 15, 1997. Over 
the two-day period, testimony was received from eight Members 
of Congress and 14 other witnesses representing 12 
organizations.

                        Committee Consideration

    On June 10, 1997, the Subcommittee on Courts and 
Intellectual Property met in open session and ordered favorably 
reported the bill H.R. 1252, as amended, by a vote of eight to 
seven, a quorum being present. On March 10, 1998, and March 24, 
1998, the Committee met in open session and ordered reported 
favorably the bill H.R. 1252 with amendment by voice vote, a 
quorum being present.

                         Vote of the Committee

    The following rollcalls were taken during Committee 
deliberations on H.R. 1252 (March 10 and March 24, 1998).
    1. An amendment by Mr. Delahunt to the amendments 
considered en bloc offered by Mr. Canady to limit court-imposed 
taxes to any order or settlement which ``expressly directs'' 
(rather than``requires'') any state, or political subdivision 
of a state, to impose, increase, levy, or assess a tax. The Delahunt 
amendment was defeated by a rollcall vote of 10-12.
        AYES                          NAYS
Mr. Conyers                         Mr. Gekas
Mr. Frank                           Mr. Smith of Texas
Mr. Berman                          Mr. Canady
Mr. Nadler                          Mr. Goodlatte
Mr. Scott                           Mr. Bryant of Tennessee
Mr. Watt                            Mr. Chabot
Mr. Meehan                          Mr. Jenkins
Mr. Delahunt                        Mr. Hutchinson
Mr. Wexler                          Mr. Pease
Mr. Rothman                         Mr. Cannon
                                    Mr. Rogan
                                    Mr. Hyde

    2. An amendment offered by Mr. Delahunt to the amendments 
offered en bloc by Mr. Canady to limit the standing provisions 
governing the ability of persons or entities wishing to 
intervene in a court-imposed tax proceeding to U.S. citizens, 
legal aliens admitted for permanent residence, and U.S. 
corporations in which more than 50% of the capital stock is 
owned by U.S. citizens, legal aliens admitted for permanent 
residence, or U.S. corporations. The Delahunt amendment was 
defeated by a rollcall vote of 10-12.
        AYES                          NAYS
Mr. Conyers                         Mr. Gekas
Mr. Frank                           Mr. Smith of Texas
Mr. Berman                          Mr. Canady
Mr. Nadler                          Mr. Goodlatte
Mr. Scott                           Mr. Bryant of Tennessee
Mr. Watt                            Mr. Chabot
Mr. Meehan                          Mr. Jenkins
Mr. Delahunt                        Mr. Hutchinson
Mr. Wexler                          Mr. Pease
Mr. Rothman                         Mr. Cannon
                                    Mr. Rogan
                                    Mr. Hyde

    3. An amendment offered by Mr. Berman to H.R. 1252 to 
strike the three-judge panel section of the bill. The amendment 
was defeated by a rollcall vote of 10-14.
        AYES                          NAYS
Mr. Conyers                         Mr. Gekas
Mr. Frank                           Mr. Smith of Texas
Mr. Berman                          Mr. Canady
Mr. Nadler                          Mr. Goodlatte
Mr. Scott                           Mr. Bryant of Tennessee
Mr. Watt                            Mr. Chabot
Mr. Meehan                          Mr. Barr
Mr. Delahunt                        Mr. Jenkins
Mr. Wexler                          Mr. Hutchinson
Mr. Rothman                         Mr. Pease
                                    Mr. Cannon
                                    Mr. Rogan
                                    Mr. Graham
                                    Mr. Hyde

    4. An amendment offered by Mr. Delahunt to H.R. 1252 to 
authorize a Government Accounting Office (GAO) report on the 
judicial confirmation process. The amendment was defeated by a 
rollcall vote of 10-14.
        AYES                          NAYS
Mr. Conyers                         Mr. Gekas
Mr. Frank                           Mr. Smith of Texas
Mr. Nadler                          Mr. Canady
Mr. Scott                           Mr. Goodlatte
Mr. Watt                            Mr. Bryant of Tennessee
Ms. Jackson Lee                     Mr. Chabot
Mr. Meehan                          Mr. Barr
Mr. Delahunt                        Mr. Jenkins
Mr. Wexler                          Mr. Hutchinson
Mr. Rothman                         Mr. Pease
                                    Mr. Cannon
                                    Mr. Rogan
                                    Mr. Graham
                                    Mr. Hyde

    5. An amendment offered by Mr. Rogan and Mr. Frank to H.R. 
1252 to strike the reassignment-of-case-as-of-right section of 
the bill. The amendment was defeated by a rollcall vote of 11-
13.
        AYES                          NAYS
Mr. Rogan                           Mr. Gekas
Mr. Graham                          Mr. Smith of Texas
Mr. Conyers                         Mr. Gallegly
Mr. Frank                           Mr. Canady
Mr. Nadler                          Mr. Goodlatte
Mr. Scott                           Mr. Bryant of Tennessee
Ms. Lofgren                         Mr. Chabot
Ms. Waters                          Mr. Barr
Mr. Delahunt                        Mr. Jenkins
Mr. Wexler                          Mr. Hutchinson
Mr. Rothman                         Mr. Pease
                                    Mr. Cannon
                                    Mr. Hyde

    6. An amendment offered by Mr. Nadler to the amendment 
offered by Mr. Chabot to permit televised proceedings in U.S. 
district courts provided that any witness (other than a party) 
in a trial proceeding may have his or her voice disguised or 
obscured upon request. The amendment was defeated by a rollcall 
vote of 9-9.
        AYES                          NAYS
Mr. Gekas                           Mr. Gallegly
Mr. Coble                           Mr. Canady
Mr. Smith of Texas                  Mr. Buyer
Mr. Bryant of Tennessee             Mr. Hutchinson
Mr. Chabot                          Mr. Pease
Mr. Jenkins                         Mr. Rogan
Mr. Nadler                          Mr. Frank
Mr. Scott                           Mr. Watt
Mr. Delahunt                        Mr. Rothman

    7. An amendment offered by Mr. Chabot to H.R. 1252 to 
permit televised proceedings, in the discretion of the 
presiding judge, in any U.S. district court as part of a three-
year pilot program. The amendment was agreed to by a rollcall 
vote of 12-6.
        AYES               NAYS
Mr. Gekas                           Mr. Canady
Mr. Coble                           Mr. Buyer
Mr. Smith of Texas                  Mr. Hutchinson
Mr. Gallegly                        Mr. Frank
Mr. Bryant of Tennessee             Mr. Scott
Mr. Chabot                          Mr. Watt
Mr. Jenkins
Mr. Pease
Mr. Rogan
Mr. Nadler
Mr. Delahunt
Mr. Rothman

    \1\ Ms. Jackson Lee, who was absent on official business, indicated 
that had she been present she would have voted ``aye'' on the Chabot 
amendment to H.R. 1252.

    8. An amendment offered by Mr. Watt to H.R. 1252 to strike 
the pilot program feature of the reassignment of case as of 
right section of the bill. The amendment was defeated by a 
rollcall vote of 6-12.
        AYES                          NAYS
Mr. Buyer                           Mr. Gekas
Mr. Frank                           Mr. Coble
Mr. Nadler                          Mr. Smith of Texas
Mr. Scott                           Mr. Gallegly
Mr. Watt                            Mr. Canady
Mr. Delahunt                        Mr. Bryant of Tennessee
                                    Mr. Chabot
                                    Mr. Jenkins
                                    Mr. Hutchinson
                                    Mr. Rogan
                                    Ms. Jackson Lee
                                    Mr. Rothman

    9. An amendment offered by Ms. Jackson Lee to H.R. 1252 to 
limit the ability of parties to any civil action to negotiate a 
private settlement and the authority of any federal judge to 
seal sensitive information after final judgment pursuant to 
Federal Rule 26(c). The amendment was defeated by a rollcall 
vote of 6-16.
        AYES                          NAYS
Mr. Conyers                         Mr. Gekas
Mr. Frank                           Mr. Coble
Mr. Nadler                          Mr. Gallegly
Mr. Scott                           Mr. Canady
Ms. Jackson Lee                     Mr. Buyer
Mr. Meehan                          Mr. Bryant of Tennessee
                                    Mr. Chabot
                                    Mr. Barr
                                    Mr. Jenkins
                                    Mr. Hutchinson
                                    Mr. Rogan
                                    Mr. Graham
                                    Mr. Watt
                                    Mr. Delahunt
                                    Mr. Rothman
                                    Mr. Hyde

    10. An amendment offered by Mr. Conyers to H.R. 1252 to 
enhance the ability of any federal court to acquire 
jurisdiction over a defendant located outside the United States 
in any civil action based on harm sustained in the United 
States. The amendment was defeated by a rollcall vote of 8-11.
        AYES                          NAYS
Mr. Chabot                          Mr. Gekas
Mr. Conyers                         Mr. Gallegly
Mr. Frank                           Mr. Canady
Mr. Scott                           Mr. Buyer
Mr. Watt                            Mr. Barr
Ms. Jackson Lee                     Mr. Jenkins
Mr. Meehan                          Mr. Rogan
Mr. Delahunt                        Mr. Rothman
                                    Mr. Graham
                                    Mr. Rothman
                                    Mr. Hyde

    11. Subcommittee amendment in the nature of a substitute to 
H.R. 1252 as amended by the Committee governing the ``Judicial 
Reform Act of 1997.'' The amendment in the nature of a 
substitute was agreed to by a rollcall vote of 12-8.
        AYES                          NAYS
Mr. Gekas                           Mr. Conyers
Mr. Gallegly                        Mr. Frank
Mr. Canady                          Mr. Scott
Mr. Buyer                           Mr. Watt
Mr. Bryant of Tennessee             Ms. Jackson Lee
Mr. Chabot                          Mr. Delahunt
Mr. Barr                            Mr. Wexler
Mr. Jenkins                         Mr. Rothman
Mr. Hutchinson
Mr. Rogan
Mr. Graham
Mr. Hyde

                      Committee Oversight Findings

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

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House Rule XI is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 2(l)(3)(C) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the bill, H.R. 1252, the following 
estimate and comparison prepared by the Director of the 
Congressional Budget Office under section 403 of the 
Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, April 1, 1998.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1252, the Judicial 
Reform Act of 1997.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susanne S. 
Mehlman.
            Sincerely,
                                         June E. O'Neill, Director.
    Enclosure.

H.R. 1252--Judicial Reform Act of 1997

    Summary: H.R. 1252 would make numerous procedural and 
administrative changes to the federal court system. In 
addition, the bill would change the procedure for granting 
cost-of-living adjustments (COLAs) in pay for certain judges. 
Currently, such increases require Congressional action. Under 
H.R. 1252, the COLA's for Article III justices and judges would 
not require legislative approval.
    CBO estimates that enacting H.R. 1252 would increase 
mandatory spending by $121 million over the 1999-2003 period. 
Because H.R. 1252 would effect direct spending, pay-as-you-go 
procedures would apply. CBO estimates that implementing H.R. 
1252 could affect discretionary spending, but we cannot predict 
such effects because they would depend on future Congressional 
action with regard to pay raises.
    H.R. 1252 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act of 1995 
(UMRA) and would have no significant impact on the budgets of 
state, local, or tribal governments.
    Estimated cost to the Federal Government: As shown in the 
following table, CBO estimates that implementing H.R. 1252 
would increase direct spending by $7 million in 1999 and $121 
million over the 1999-2003 period to cover annual COLA's for 
Article III justices and judges. The costs of this legislation 
fall within budget function 750 (administration of justice).

                                    [By fiscal year, in millions of dollars]                                    
----------------------------------------------------------------------------------------------------------------
                                                              1998     1999     2000     2001     2002     2003 
----------------------------------------------------------------------------------------------------------------
                                           CHANGES IN DIRECT SPENDING                                           
                                                                                                                
Cost of living adjustments for judges:                                                                          
    Estimated budget authority............................        0        7       15       25       33       41
    Estimated outlays.....................................        0        7       15       25       33       41
----------------------------------------------------------------------------------------------------------------

Basis of estimate

    For purposes of this estimate, CBO assumes that H.R. 1252 
would be enacted by October 1, 1998.
            Direct spending
    Section 9 would repeal a provision that bars annual COLAs 
for Article III justices and judges except as specifically 
authorized by the Congress. As a result, these judges would 
receive automatic annual cost-of-living adjustments. CBO 
estimates that the cost of these adjustments would be $7 
million in 1999 and $121 million over the next five years. 
These payments would be made from the mandatory spending 
accounts that fund salaries for these judges. The estimate 
assumes pay raises of between 3 percent and 4 percent per year 
applied to salaries totaling about $231 million in 1998.
    Various other provisions of H.R. 2294 could affect direct 
spending by increasing the workload for judges, but CBO expects 
that any such effects would not be significant.
            Spending subject to appropriation
    Section 9 also would enable agencies to provide 
Administration Law Judges (ALJs) with annual COLAs by linking 
their COLAs to the General Schedule instead of to the Executive 
Schedule. Currently, ALJs only receive COLAs from appropriated 
funds when the Congress approves such increases for the 
Executive Schedule. In fiscal year 1998, the Congress approved 
COLAs for the Executive Schedule (and a total of about $3 
million was appropriated for COLAs for ALJs). For the previous 
four years, however, ALJs did not receive COLAs.
    CBO estimates that enacting H.R. 1252 could increase 
discretionary spending, but the amount of such increase would 
depend on future actions of the Congress regarding COLAs for 
the Executive Schedule. If, for one year or several years in 
the future, COLAs are not granted for Executive Schedule 
positions, but are provided for those on the General Schedule, 
H.R. 1252 would result in higher salary costs for ALJs. For 
each year in which there is a raise for one schedule and not 
for the other, we estimate a difference of $3 million to $5 
million in spending for that year and subsequent years, 
assuming appropriation of the necessary amounts.
    Other sections of H.R. 1252 could affect spending subject 
to appropriation, but CBO expects that their budgetary effects 
would not be significant.
    Pay-as-you-go-considerations: Section 252 of the Balanced 
Budget and Emergency Deficit Control Act of 1985 sets up pay-
as-you-go procedures for legislation affecting direct spending 
or receipts. The net changes in outlays and governmental 
receipts that are subject to pay-as-you-go procedures are shown 
in the following table. The bill would affect direct spending 
by requiring COLAs for certain judges. For the purposes of 
enforcing pay-as-you-go procedures, only the effects in the 
current year, the budget year, and the succeeding four years 
are counted.

                                    [By fiscal year, in millions of dollars]                                    
----------------------------------------------------------------------------------------------------------------
                                      1998   1999   2000   2001   2002   2003   2004   2005   2006   2007   2008
----------------------------------------------------------------------------------------------------------------
Changes in outlays.................      0      7     15     25     33     41     50     59     68     77     87
Changes in receipts................                                                                             
(10) Not applicable                                                                                             
----------------------------------------------------------------------------------------------------------------

    Intergovernmental and private sector impact: H.R. 1252 
contains no intergovernmental or private-sector mandates as 
defined in the Unfunded Mandates Reform Act of 1995 (UMRA) and 
would have no significant impact on the budgets of state, 
local, or tribal governments.
    Estimate prepared by: Susanne S. Mehlman.
    Estimate approved by: Robert A. Sunshine, Deputy Assistant 
Director for Budget Analysis.

                   Constitutional Authority Statement

    Pursuant to rule XI, clause 2(l)(4) of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article III, section 1, of the 
Constitution.

                      Section-by-Section Analysis

                        Section One: Short Title

    Section One sets forth the short title of the bill, the 
``Judicial Reform Act of 1997.''

         Section Two: Three-Judge Court for Anticipatory Relief

    Section Two requires that a three-judge panel at the U.S. 
District court level shall hear any constitutional challenge to 
the validity of a state law adopted by referendum. 
Procedurally, the judge receiving a request for such a panel 
contacts the chief judge of the relevant circuit, who then 
assigns two other judges (one of whom must be a circuit judge) 
to hear the challenge. 28 U.S.C. Sec. 2284(b)(1). The bill 
explicitly requires that decisions be rendered expeditiously, 
and any appeal of a ruling by the panel is made directly to the 
U.S. Supreme Court.
    The late Representative Bono first introduced the 
provisions contained in Section Two as H.R. 1170 in the 104th 
Congress. The Subcommittee and Committee favorably reported the 
bill, which the House passed on September 28, 1995. 
Representative Bono was responding to the actions of a single 
District court judge who issued injunctions against the 
enforcement of California state laws enacted pursuant to two 
referenda (Propositions 187 and 209) approved by statewide 
votes.
    Congress initially established three-judge panels following 
the decision of Ex Parte Young, 209 U.S. 123 (1908), in which 
the Supreme Court first ruled that federal courts could enjoin 
state officials from enforcing unconstitutional state statutes. 
During the mid-1970's, however, Congress began to limit their 
statutory application when the federal judiciary complained of 
excessive use in many state and administrative cases. 
Nonetheless, Congress has historically and consistently 
approved the use of three-judge panels for those disputes 
pertaining to voting rights and procedures. Like H.R. 1170 
before it, H.R. 1252 is specifically limited to state laws 
enacted pursuant to a statewide vote, which appropriately 
dovetails with those cases involving apportionment and the 
Voting Rights Act to which three-judge panels currently apply.
    At a time when many states are using referenda as a means 
to provide for the expression of collective legislative will, 
proponents of the late Representative Bono's approach note that 
it is fundamentally unfair and does not accord due process to 
allow one judge to thwart that collective will.

Section Three: Interlocutory Appeals of Court Orders Relating to Class 
                                Actions

    Section Three permits an immediate interlocutory (interim) 
appeal of a class-action certification. In other words, a party 
to an action in which a U.S. District judge certifies the 
composition of a class of litigants to that same action 
(pursuant to criteria established in Rule 23 of the Federal 
Rules of Civil Procedure) may appeal the judge's decision 
within 10 days to the applicable court of appeals. Proceedings 
at the District level are not otherwise halted unless the 
District judge or the court of appeals so orders.
    Representative Canady introduced the provisions contained 
in this section in an effort to dissuade attorneys from 
bringing unwarranted class-action suits. It provides protection 
to defendants who may be forced to expend unnecessary resources 
at trial, only to discover that a class action was improperly 
certified at the outset of litigation.
    In addition, the language set forth in Section Three has 
been approved by the Civil Rules Subcommittee of the Rules of 
Practice and Procedure Committee of the Judicial Conference.

  Section Four: Proceedings on Complaints Against Judicial Misconduct

    Section Four as originally drafted mandates that any 
complaint against judicial misconduct be referred to a judicial 
circuit other than the circuit in which the judge who is the 
subject of the complaint sits, pursuant to rules developed by 
the Judicial Conference. Representative Bryant of Tennessee 
developed this proposal to assure objectivity in Judicial 
Discipline Proceedings.
    Under the ``Judicial Councils Reform and Judicial Conduct 
and Disability Act of 1980,'' 28 U.S.C. Sec. 372(c), a citizen 
may bring a formal complaint against a sitting judge by 
providing the clerk of the relevant circuit court of appeals 
with a written summary of the facts concerning that judge's 
alleged misconduct. The clerk then transmits the complaint to 
the chief judge of the circuit (or the next most senior circuit 
judge if the chief judge is the subject of the complaint). The 
chief judge reviews the complaint, and may dismiss it if he or 
she finds it to be incomplete, frivolous, or directly related 
to the merits of a decision or procedural ruling.
    On the other hand, if the chief judge determines that the 
complaint is meritorious, he or she then appoints (and joins) 
an equal number of circuit and district judges of the circuit 
to investigate the complaint further. This group then issues a 
report to the judicial council of the circuit, which may 
conduct additional investigations and ``* * * take such action 
as is appropriate to assure the effective and expeditious 
administration of the business of the courts. * * *'' 28 U.S.C. 
Sec. 372(c)(6)(B). Such ``action'' runs the spectrum of 
severity from reprimand to impeachment (if recommended by the 
Judicial Conference based on the judicial council's report).
    During the Subcommittee markup, Representative Pease 
offered an amendment to Section Four of the Coble substitute 
which passed by voice vote. Developed in concert with 
Representative Bryant, the Pease amendment would limit out-of-
circuit referrals to those cases in which a complaint is not 
dismissed as being incomplete, frivolous, or directly related 
to the merits of a decision or procedural ruling. The amendment 
represents an effort to respond to those critics of Section 
Four who assert that it will generate unnecessary and trivial 
administrative expenses for out-of-circuit judges. In other 
words, only ``substantive'' complaints will be referred out of 
circuit.
    The purpose of Section Four is to maximize the level of 
objectivity that a chief circuit judge and other judges must 
bring to bear when investigating a fellow jurist for 
misconduct.

            Section Five: Limitation on Court-Imposed Taxes

    Section Five as introduced inhibits the ability of federal 
courts to impose tax settlements on states or municipalities 
which are parties to litigation. More specifically, Section 
Five forbids any U.S. District court from entering an order or 
approving a settlement that requires a state or one of its 
subdivisions to impose, increase, levy or assess any tax for 
the purpose of enforcing any federal or state common law, 
statutory, or constitutional right or law.
    As amended by the Committee, Section Five contains a 
narrow, multi-part exception to this general prohibition of 
judicially-imposed taxation. Specifically, a court may not 
order a state or political subdivision to impose a tax unless 
the court first determines by clear and convincing evidence 
that: (1) there are no other means available to remedy the 
relevant deprivation of rights or laws, and the tax is both 
narrowly tailored and directly related to the specific 
constitutional deprivation or harm necessitating redress; (2) 
the tax will not exacerbate the deprivation intended to be 
remedied; (3) the tax will not result in a revenue loss for the 
affected subdivision; (4) the tax will not result in a 
depreciation of property values for the affected taxpayers; (5) 
plans submitted by state or local authorities will not 
effectively redress the relevant deprivation; and (6) the 
interests of state and local authorities in managing their own 
affairs is not usurped by the proposed tax, consistent with the 
Constitution.
    The Coble substitute as adopted by the Subcommittee, 
however, struck another criterion from this multi-part 
exception; namely, that the tax will not conflict with the 
applicable laws governing maximum tax rates as determined by 
the appropriate state or political subdivision. During the May 
14 Subcommittee hearing, it was noted that the Supreme Court 
has ruled that a federal court possesses the authority to order 
a local government to levy taxes in excess of the limit 
established by state statute where there is reason set forth in 
the Constitution for not observing the statutory limitation. 
Missouri v. Jenkins, 495 U.S. 33, 57 (1990). The substitute 
incorporated this criticism by striking Subsection (a)(1)(E) 
and by appropriately amending Subsection (a)(1)(A)(i). The 
Committee did not amend this change.
    In addition, Representative Delahunt offered an amendment 
to Section Five of the substitute adopted by the Subcommittee. 
The Delahunt amendment struck the third and fourth criteria of 
the multi-part exception, supra, while also revising the nature 
of the judicial action proscribed. Pursuant to the bill as 
drafted and the Coble Subcommittee substitute unamended, no 
district court may enter an order or approve a settlement that 
``requires'' a state or political subdivision to impose taxes. 
The Delahunt language substitutes ``expressly directs'' for 
``requires.'' The Committee believes that the term ``expressly 
directs'' could allow a judge to circumvent the limitations of 
Section Five by simply ordering a state or municipality to 
engage in specific construction projects, for example, without 
expressly directing how they should be financed. The practical 
effect would be to require the state or municipality to still 
impose a tax.
    Consequently, the en bloc amendments adopted by the 
Committee contain a provision which substitutes the word 
``requires'' for the term ``expressly directs.'' The issue is 
clarified further, as ``requires'' is defined as ``any order or 
settlement which expressly directs any [s]tate * * * or 
political subdivision to impose * * * a tax''; and any order or 
settlement which will ``necessarily require'' a tax. (Italics 
added.)
    At the same time, under Section 5(a)(2) of the bill, any 
finding by a court that this exception applies in a given case 
is subject to immediate interlocutory (interim) de novo review 
by the appropriate court of appeals. The purpose of this 
provision is that any decision which is adverse to the 
interests of taxpayers may be quickly reversed. Subsection 
(a)(3)(A) also permits any aggrieved corporation, 
unincorporated association, political entity, or person 
residing in the affected subdivision to intervene in any of the 
applicable legal proceedings by presenting evidence (written or 
oral) before the District court, and by appealing any finding 
that will impose a tax.
    The en bloc amendments adopted by the Committee also 
contain a change to this portion of Section Five in response to 
comments made by the Department of Justice. Since the purpose 
of the review provision is to enable taxpayers to appeal an 
unfavorable ruling on the issue, the amendment makes clear that 
only a finding that the conditions giving rise to a court-
imposed tax have been satisfied is subject to interlocutory de 
novo review.
    In addition, Subsection (b) mandates that any District 
court decision to impose a tax automatically expires one year 
after the date of imposition, or earlier, if the court 
determines that the deprivation addressed ``* * * has been 
cured to the extent practicable.'' Further, and for the most 
part, state or local tax revenues may not be used to pay for 
the costs of administering a District court order to levy a 
tax. Section 5(d)(1).
    The standing provision of Section Five was criticized 
during the Subcommittee hearing and subsequent markup. As 
originally drafted, the bill permitted certain classes of 
persons and entities to ``intervene'' in any proceeding 
concerning the imposition of a tax. The language as introduced 
and as contained in the Subcommittee substitute was too 
expansive since it applied to ``any aggrieved'' corporation, 
unincorporated association, or person residing or ``present'' 
within the affected state or political subdivision. In another 
sense, the language was also narrow, as there is no mention of 
aggrieved parties who reside outside a state or political 
subdivision but who own taxable property within the affected 
area.
    Accordingly, the en bloc amendment adopted by the Committee 
applies the intervention right to ``any person or entity whose 
tax liability would be directly affected by the imposition of a 
tax.'' The term ``directly'' is used to make clear that there 
would be no right to intervene simply because someone can 
identify a possible chain of events that might ultimately 
affect his or her tax liability.
    This revision also specifies, however, that the court may 
deny intervention if it finds that the interest of a person or 
entity is adequately represented by existing parties to the 
dispute.
    Two other changes to Section Five were adopted by the 
Committee. First, the en bloc amendments specify that Section 
Five does not validate, legalize, or approve any judicial tax. 
The purpose of this provision is to ensure that the bill does 
not create a new statutory right of judicial taxation beyond or 
in addition to what is allowed under the U.S. Constitution. The 
second change, set forth in an amendment offered by Mr. Bryant 
of Tennessee, applies Section Five to any action pending on, or 
commenced on or after, the date of enactment. The one-year 
expiration limit, supra, specifically applies to any court 
order or settlement in effect on the date of enactment.
    Representative Manzullo and Senator Grassley introduced 
measures in previous Congresses to address the problem of 
court-imposed taxes; each has been a long-time critic of those 
federal judges who enforce their own decisions by appropriating 
the authority of legislators when they impose taxes on local 
communities. Perhaps the most conspicuous example of this 
practice involves the Kansas City public school system. Since 
1985, a U.S. District judge for the Eastern District of 
Missouri has supervised the spending of more than one-billion 
dollars in excess of the normal school budget for that 
municipality because, based on his findings, certain minority 
schools in the area were insufficiently funded during the past. 
As a consequence, this judge has not only ordered the capital 
refurbishment of these schools, including such construction 
projects as an Olympic-size swimming pool and a model of the UN 
General Assembly Hall, he has also mandated that local property 
taxes be raised to pay for the additions. Roughly 1,200 other 
school districts are federally-supervised nationwide, an 
indication that this practice is widespread.
    Proponents of the changes set forth in Section Five of the 
bill concede that courts are empowered to address due process 
concerns. But these same proponents argue that courts are 
neither equipped nor empowered to devise such remedies as have 
been invoked in the Kansas City example. The messy but 
democratic decisions governing municipal, state, and federal 
budgets as well as taxation must continue under our 
Constitution to be made by legislators who are answerable to 
the people whose interests they represent.

             Section Six: Reassignment of Case as of Right

    Section Six mirrors the civil procedure of many states by 
enabling all parties on one side of a civil action to request 
reassignment of the case (one time) as a matter of right. 
Pursuant to Subsection (b), a motion to reassign must be made 
not later than 20 days after the notice of original assignment 
of the case is given. The motion must be granted under 
Subparagraphs (A) and (B) if: it is made prior to trial or 
hearing and before the judicial officer to whom it is presented 
has ruled on a substantial issue in the case; and it is 
presented by consent of the parties on all sides.
    Subsection (b)(2) addresses those instances in which a 
motion may be made at later points during litigation. First, 
any party joined in a civil action after the initial filing may 
request reassignment within 20 days of service of the complaint 
if the other parties on the same side agree. Similarly, any 
party served with a supplemental or amended or third-party 
complaint may offer a motion of reassignment under the same 
conditions. Finally, a judge who rules on a substantial issue 
before a party who has not been found in default enters an 
appearance in the case may not deny that party the right to 
otherwise request a reassignment.
    Subparagraph (3) further specifies that no party or parties 
on a side may bring a motion to reassign if another party or 
parties on that same side have previously requested 
reassignment. The last relevant provision of the bill also 
requires the side offering the motion to pay for the reasonable 
costs incurred by all sides in traveling to the new location 
for all matters associated with the case.
    The Coble substitute as adopted by the Subcommittee limits 
the application of this change to pilot or demonstration 
programs that will sunset after five years from the date of 
enactment. The projects will be based in the 21 largest federal 
judicial districts. This revision was included in the 
substitute to respond to the criticism that Section Six may 
encourage forum-shopping and attendant delay; if so, the pilot 
projects will sunset after five years allowing evaluation of 
its effects.
    Finally, a minor provision set forth in the en bloc 
amendments adopted by the Committee states that Section Six has 
no application to proceedings before three-judge panels. 
Concern over this matter was expressed at both the Subcommittee 
hearing and markup, as the bill as introduced and the 
Subcommittee substitute as reported would seem to defeat the 
purpose of Section Two of H.R. 1252.
    Representative Canady is the lead advocate of this 
provision of H.R. 1252. Section Six is intended to allow 
litigants on either side of a case to avoid forum-shopping by 
one side, or to avoid a judge who is known to engage in 
improper courtroom behavior or who regularly exceeds judicial 
authority.
    This provision is not meant to replace appellate review of 
district court decisions; rather, it is designed to complement 
such review by encouraging judges to administer their oaths to 
uphold the Constitution. Many judges face constant reversals on 
appeal, yet they may still force a litigant to bear both 
extraordinary costs and the burden of overcoming standards of 
review on appeal.
    Section Six of H.R. 1252 simply provides a litigant some 
freedom in ensuring that due process will apply to his or her 
case before that litigant must also bear the costs associated 
at trial. It will also increase efficiency and apply some 
internal pressure on the bench and bar to adjudicate more 
fairly and without further legislative intervention.

        Section Seven: Random Assignment of Habeas Corpus Cases

    Section Seven was part of the Coble Subcommittee 
substitute. This change was developed in response to the May 14 
testimony of Charlotte Stout, who participated in the related 
oversight hearing on judicial misconduct, and comments made by 
Representative Delahunt. Ms. Stout's daughter was raped and 
murdered by a man who has sat on death row for 18 years as a 
result of filing numerous habeas petitions, all of which have 
been handled by the same judge. The change set forth in the 
substitute would prevent the chief judge of a circuit from 
handling all habeas cases by himself or herself, or from 
delegating the responsibility on an exclusive basis to another 
judge.

                Section Eight: Cameras in the Courtroom

    Section Eight was also added by the Coble Subcommittee 
substitute. It would allow a presiding judge, in his or her 
discretion, to permit the use of cameras during federal 
appellate proceedings. Representative Chabot has introduced a 
bill, H.R. 1280, that would grant this authority to a judge in 
any federal proceeding. This change mirrors state efforts to 
provide greater public access to the workings of the judiciary.
    The Committee also adopted an amendment offered by Mr. 
Chabot which creates a three-year pilot program allowing 
televised proceedings in any U.S. District court proceeding, 
subject to the discretion of the presiding judge.

         Section Nine: Adjustment of Salaries of Federal Judges

    The substitute included parts of H.R. 875, Representative 
Hyde's bill that would grant federal judges an increase in base 
pay and automatic annual COLAs (cost-of-living adjustments) 
without requiring floor votes on these or other future changes 
affecting their compensation. Section Nine of the substitute 
incorporates all of H.R. 875 with the exception of a 
retroactive 9.6% pay adjustment.
    The Committee also adopted an amendment offered by 
Representative Gekas to apply the compensation provisions of 
Section Nine to administrative law judges (ALJs).

   Section 10: Multiparty, Multiforum Jurisdiction of Federal Courts

    Section 10 of the substitute added legislation which the 
House passed in the 101st and 102nd Congresses, and which the 
full Committee on the Judiciary passed in the 103rd Congress. 
This language is intended to improve the ability of federal 
courts to handle complex multidistrict litigation arising from 
a single accident, such as a plane crash.
    Briefly, this reform would bestow original jurisdiction on 
federal district courts in civil actions involving minimal 
diversity jurisdiction among adverse parties based on a single 
accident where at least 25 persons have either died or 
sustained injuries exceeding $50,000 per person. The district 
court in which such cases are consolidated would retain those 
cases for determination of liability and punitive damages, and 
would also determine the substantive law that would apply for 
findings of liability and damage.
    These changes should reduce litigation costs as well as the 
likelihood of forum-shopping in airline accident cases. An 
effective one-time determination of punitive damages would 
eliminate multiple or inconsistent awards arising from 
multiforum litigation. The Judicial Conference and the 
Department of Justice have supported this legislation in the 
past.

         Section 11: Appeals of Merit Systems Protection Board

    Under present law, the Office of Personnel Management (OPM) 
may appeal final decisions of the Merit Systems Protection 
Board (MSPB) and final arbitral awards dealing with certain 
adverse personnel actions; however, any petition for judicial 
review must be filed with the U.S. Court of Appeals for the 
Federal Circuit within 30 days from the time the petitioner 
receives notice of the final order of the MSPB.
    The Office of Personnel Management argues that the 30-day 
limit is half the time allotted to other federal agencies and 
employees which appeal decisions of other administrative 
bodies. Section 11 of the substitute therefore changes the 30-
day constraint imposed on OPM to 60 days.

                              Agency Views

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                    Washington, DC, March 10, 1998.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: This letter sets forth the views of the 
Department of Justice regarding the substitute to H.R. 1252, 
the ``Judicial Reform Act of 1997,'' and other amendments to 
that bill. In our letter of June 10, 1997, to the Chairman of 
the Subcommittee on Courts and Intellectual Property (copy 
enclosed), we discussed the Department's position on the five 
major components of the earlier version of H.R. 1252, and 
recommended that the bill not be passed.
    We note that the bill upon which we commented has been 
replaced and amended, and that it contains five new provisions 
upon which we did not comment. These new provisions include: 
section 7--random assignment of habeas corpus cases; section 
8--authority of a presiding judge to allow media coverage of 
appellate court proceedings; section 9--adjustments of salaries 
of Federal judges; section 10--multiparty, multiforum 
jurisdiction of district courts for certain mass tort 
litigation; and section 11--appeals of the Merit Systems 
Protection Board decisions.
    We address below both the amendments and the new 
provisions. Notwithstanding our agreement with some of the new 
sections, the amendment adopted during the Subcommittee markup 
of this legislation have not alleviated our original concerns. 
Therefore, for the reasons stated below and in our June 10, 
1997 letter, we strongly oppose the enactment of H.R. 1252. To 
the extent that any of the new provisions contain provisions we 
support, we urge that they be addressed in separate 
legislation. We would be happy to work with the Congress on 
these provisions.

Section 2. Three-Judge Court for Certain Injunctions

    This section would require review of certain cases by a 
three judge panel. It provides for a process that is 
cumbersome, confusing, and inefficient, which in all likelihood 
will result in fewer judges--not more--having the opportunity 
to rule on the constitutionality of voter initiatives and 
referenda. As amended, the section would expand the scope of 
application even more broadly to anticipatory relief, including 
declaratory judgment, and would apply to challenges based upon 
``repugnance'' to the Constitution, treaties, or laws of the 
United States. In addition, a three-judge panel would be 
required to grant anticipatory relief from State referenda 
where Federal statutes were intended to preempt the field and 
where a State has passed a referendum that is contrary to 
Federal law. Such a procedure may affect several preemptive 
Federal statutes, including environmental statutes designed to 
protect public health and welfare. For the reasons set out here 
and in our letters of June 10, 1997 and May 16, 1995, we 
continue to oppose this section.

Section 3. Interlocutory Appeals of Court Orders Relating to Class 
        Actions

    Last year, the Judicial Conference transmitted to the 
Supreme Court a proposal, largely identical to section 3, to 
add Rule 23(f), allowing discretionary interlocutory appeals 
within 10 days of a class certification order. The Supreme 
Court is due to act on it within a few weeks. Historically, the 
Department has supported the use of the judicial rulemaking 
process rather than legislation to alter the Federal Rules of 
Civil Procedure. We believe that the Rules Enabling Act process 
is working effectively to achieve the aim of this section. 
Therefore, the Department recommends that section 3 of this 
bill be deleted.

Section 4. Proceedings on Complaints Against Judicial Conduct

    This section would require that complaints against judicial 
conduct be transferred to another circuit for action. While the 
amendments to this section appear to be a slight improvement in 
that they give to the original circuit the opportunity to 
handle frivolous complaints internally, we continue to believe 
that the section is unnecessary and reiterate our concurrence 
in the testimony offered by representatives of the Judicial 
Conference in opposition to this section of the bill.

Section 5. Limitation on Court-Imposed Taxes

    Even as amended, this section continues to raise 
constitutional concerns because, inter alia, it purports to 
restrict the remedial powers of Article III Federal courts to 
enforce Federal constitutional rights. The provision broadening 
the section to apply to any tax, rather than any tax for the 
purpose of enforcing any ``federal or state common law, 
statutory, or constitutional right or law,'' does not eliminate 
the constitutional concerns previously expressed in our June 
10, 1997 letter. Additionally, this section provides the right 
to intervene in any proceeding concerning the imposition of a 
tax to aggrieved corporations, unincorporated associations, or 
persons residing in the political subdivision in which the tax 
is imposed. Besides being cumbersome to the courts, such a 
procedure may cause substantial delay, and prejudice the 
ability of the original litigants to adjudicate their cases.

Section 6. Reassignment of Cases as of Right

    This section would give parties in civil cases the right to 
seek reassignment of their cases to a different judge. By 
effectively enabling parties to exercise peremptory challenges 
against Article III judges, this section raises grave concerns. 
It threatens to undermine the independence of the Federal 
judiciary that Article III of the Constitution is intended to 
secure, as well as the public perception of Federal judges as 
impartial adjudicators. Although the amended version would 
apply only to the 21 largest districts and contains a sunset 
provision, this section is no more appealing than its 
predecessor. In fact, two-thirds of the 21 largest districts 
have smaller divisions, which may have only a few judges; thus, 
there still exists a real potential for judge shopping and 
significant forum shopping, as well as increased costs and 
delay due to relocation.
    The Honorable J. Harvie Wilkinson, Chief Judge of the U.S. 
Court of Appeals for the Fourth Circuit, opposed enactment of 
this provision in a June 13, 1997 editorial in The Washington 
Post. He wrote, ``[T]he customary recourse for litigants 
dissatisfied with a trial court's decision has been to pursue 
an appeal. This legislation replaces the traditional process 
with a dangerous alternative.'' Judge Wilkinson explained one 
of the dangers of the section as the possible influence of 
judges through considerations extrinsic to the merits of the 
case. For example, judges may make unsound decisions based on a 
fear of being removed. Further, Judge Wilkinson pointed out 
that jurists might be removed for racial reasons, creating a 
system worse than the systemic racially motivated juror 
peremptory strikes dismantled by Batson v. Kentucky. He 
concluded that peremptory strikes of judges will add further 
delay to the civil litigation system and erode the rule of law. 
Judge Wilkinson's concerns echo those which we express about 
this provision.
    As amendment to this section appears to impose on the 
United States an obligation to pay certain costs for parties 
with an inability to obtain adequate representation. The 
purpose and intent of this amendment are unclear. While it 
apparently is meant to apply to circumstances arising from a 
transfer to a new location, it is not clearly limited to such 
circumstances. Also,as drafted, the Government might be 
required to pay costs for parties who are financially unable to obtain 
representation as a result of a transfer to another location, even when 
the Government is not a party, or when such transfer and judge shopping 
may have been caused by other parties. Lastly, the provision for 
splitting costs if both sides agree is inadvisable: if both sides 
agree, each party should pay its own costs. For all of these reasons, 
we oppose this section.

Section 7. Random Assignment of Habeas Corpus Cases

    Section 7 of the bill would require the random assignment 
to judges of all writs of habeas corpus received in or 
transferred to a district court. Habeas corpus petitions 
normally are assigned on a random basis. However, following an 
initial assignment, it is the general rule that the subsequent 
petitions from the same prison inmate are assigned to the same 
judge. While each case must be appropriately considered, a 
system by which one judge processes all of the filings on one 
individual expedites and facilitates judicial administration. 
Randomly assigning these cases so that no single judge will 
understand previous activity by any petitioner could be an 
unintended burden on the court and actually lead to greater 
delay in the disposition of habeas proceedings.
    Although it is uncommon, certain districts do assign all 
death penalty habeas corpus petitions to a single judge. There 
has been only one complaint about this practice to our 
knowledge and the district in which the complaint arose 
abandoned the practice. So this proposal would have no effect 
on that district. Therefore, this amendment would force those 
districts that have this assignment arrangement to abandon it 
for no demonstrable reason.

Section 9. Adjustments of Salaries of Federal Judges

    This section would extend to Federal judges and Justices of 
the Supreme Court the same annual cost of living salary 
increases generally available to Federal employees. It would 
also repeal section 140 of Pub. L. No. 97-92, a statute 
requiring specific congressional authorization for salary 
increases for judges and Justices, which was enacted in 
response to the decision of the Supreme Court in United States 
v. Will, 449 U.S. 200 (1980) (an attempt by Congress to rescind 
a judicial pay raise after it took effect held 
unconstitutional).
    Federal judges have supported the enactment of a provision 
such as section 9 for many years. The Department understands 
the judges' concerns regarding judicial pay and we support 
appropriate pay for the Federal judiciary. However, as we noted 
at the outset of this letter, we believe that matters like 
judicial pay should not be addressed in this bill.

Section 10. Multiparty, Multiforum Jurisdiction of District Courts

    Section 10 will expand Federal jurisdiction in a very 
narrowly defined category of cases--mass tort litigation 
arising from a ``single event or occurrence.'' Ordinarily, the 
Department of Justice disfavors the expansion of the 
jurisdiction of the already-overloaded district courts. We are 
continually concerned about the burdens that diversity cases 
impose on the Federal courts, diverting their attention from 
criminal cases and other Federal matters. Section 10, however, 
delineates a unique category of litigation where the exercise 
of Federal jurisdiction in the manner specified will markedly 
increase the fair, speedy and efficient resolution of mass tort 
cases and will avoid time consuming, expensive and repetitive 
liability proceedings before duplicative State and Federal 
courts. This section resolves the problems presented by suits 
arising from the same incident in more than one jurisdiction, 
indeed often in many jurisdictions, both State and Federal. 
Moreover, it assures litigants that liability will be 
determined once and for all in an expeditious manner before a 
court specifically designated to consider the litigation. 
Accordingly, we would consider supporting such a provision 
separate from this legislation.
    Although we note that the proposed Sec. 1660 (``choice of 
law in Multiparty, Multiforum actions'') includes a list of 
factors that the court ``may consider'' when it determines the 
applicable law for the proceedings, it is our understanding 
that these factors are not exhaustive and are included in the 
bill merely to provide a measure of guidance to the district 
courts in the exercise of their discretion (which is to be 
informed through consideration of all relevant legal principles 
and facts bearing on the choice of applicable law). We urge 
that this consideration be reflected in the committee report.

Section 11. Appeals of Merit Systems Protection Board and Arbitration 
        Decisions

    This section would increase the amount of time for filing 
petitions for review of decisions by the Merit Systems 
Protection Board (``MSPB'') and certain arbitral decisions, 
from 30 days to 60 days. This change would give the Office of 
Personnel Management (``OPM'') and the Department of Justice 
the necessary time to devote to case selection and to 
coordinate the drafting of the petition for review. It would 
also put appeals filed pursuant to 5 U.S.C. 7703 on par with 
every other appeal filed in the appellate courts by the 
Executive branch of the Government. In addition, this section 
would extend the time limit from 30 to 60 days for individual 
appellants to appeal an adverse decision. We support this 
section and, as we noted at the outset of this letter, we would 
work to have it passed separately from this bill.
    In addition, we will strongly recommend the inclusion of an 
amendment to this stand alone legislation that will eliminate 
the Federal Circuit's discretionary review of the Government's 
petitions for review in these appeals. This threshold power to 
reject the Government's petitions, unique among the Federal 
courts of appeal, has generated considerable litigation over 
whether the Government's petition meets the ``substantial 
impact'' standard in the law. By changing the system to let 
stand the OPM Director's findings on substantial impact, the 
appeals process would be more efficient and economical for the 
court and the parties because a single judicial panel could 
decide the merits of important civil service issues in the 
Government's petition.
    With over 18 years experience in this role, we think the 
time is right to revisit this issue. Congress passed this 
requirement as part of the Civil Service Reform Act of 1978. 
Since then, the Government has asked the court on only 58 
occasions to review MSPB or arbitration decisions. During that 
same time period, over 22,000 appeals of all types have been 
filed in the Federal Circuit. Since 1993, we have asked the 
court to review only 24 cases out of approximately 8,000 total 
Federal Circuit filings. Yet, while the number of appeals is 
small, the percentage of the Government's petitions the court 
has rejected is quite large. For example, the court rejected 
about 25% of the Government's petitions pursuant to its 
discretionary review of these appeals in the last 18 years. 
During the last five years, the court's rejection rate was 22%.
    Moreover, the statute currently requires that OPM's 
Director, who is the chief personnel official for the Executive 
branch, must make findings on the substantial impact of any 
final decision the Director decides to challenge. In addition, 
the Solicitor General of the United States, the Government's 
chief litigator, acts as the ultimate gatekeeper to the Federal 
Circuit because the Solicitor General must authorize these 
appeals in the same way as every other Government appeal. We 
believe that this makes the court's discretionary review of the 
Government's petitions unnecessary. The parties to these cases 
stand to benefit from the court's considered analysis of 
important issues in an expedited one-step review of the merits 
of the Government's petition for review. This would allow 
agencies, managers, employees and their representatives to know 
the appropriate legal standards by which actions in the 
workpiece will be judged.
    Thank you for the opportunity to present our views on this 
legislation. Please let me know if we may be of additional 
assistance in connection with this or any other matter. The 
Office of Management and Budget has advised this Department 
that there is no objection to the submission of this report 
from the standpoint of the Administration's program.
                                               Andrew Fois,
                                        Assistant Attorney General.
                              ----------                              

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                     Washington, DC, June 10, 1997.
Hon. Howard Coble,
Chairman, Subcommittee on Courts and Intellectual Property, Committee 
        on the Judiciary, House of Representatives, Washington, DC
    Dear Mr. Chairman: This letter sets forth the views of the 
Department of Justice regarding H.R. 1252, the ``Judicial 
Reform Act of 1997.'' We understand that this legislation is 
scheduled to be marked up by your Subcommittee on June 10, 
1997.
    The bill has five major components, each of which appears 
designed to place limits on the exercise of discretion by 
district court judges. For the reasons given below, we oppose 
enactment of H.R. 1252.

Section 2. Three-Judge Court for Certain Injunctions

    This section would establish a requirement that only a 
three-judge court (under 28 U.S.C. Sec. 2284) may entertain an 
application for a interlocutory or permanent injunction, based 
on grounds of unconstitutionality, that seeks to ``restrain [  
] the enforcement, operation, or execution of a State law 
adopted by referendum * * *.'' ``Any appeal from a 
determination on such application shall be to the Supreme 
Court.'' In the past we have recommended against the enactment 
of similar legislative provisions. For the reasons stated in 
our May 16, 1995, letter to the Chairman of the Subcommittee on 
Courts and Intellectual Property (copy enclosed), we continue 
to believe that ``three-judge-court requirements [of the kind 
envisioned by H.R. 1252] are cumbersome, confusing, and 
inefficient.'' We also observe that, as drafted, this provision 
would allow for immediate direct appeals to the Supreme Court 
even where the three-judge court denies injunctive relief. Such 
direct and immediate access to the Supreme Court for denial of 
an interlocutory injunctive decree is highly unusual, if not 
unprecedented.
    We also note that the proposal would have the opposite 
effect of what its supporters maintain they want (i.e., a 
smaller chance that the will of the majority will be overruled 
by the views of one or a small number of judges). Indeed, under 
this legislation, fewer, not more, federal judges would have a 
chance to rule on the constitutionality of voter initiatives 
and referenda. Whereas now a district court, an appeals panel, 
an en banc appeals panel, and the Supreme Court could all very 
likely pass on a challenge to an initiative, under H.R. 1252 a 
maximum of only 12 judges would be involved. If the objective 
of section 2 is to avoid perceived problems that result from 
the decisions of a single judge, the current system is better 
designed than the proposed one. Accordingly, we urge that 
section 2 of H.R. 1252 not be enacted.

Section 3. Interlocutory Appeals of Court Orders Relating to Class 
        Actions

    This provision authorizes the exercise of interlocutory 
appellate jurisdiction to review a district court's 
certification decision in a class action. We support that 
concept. Recently, the Advisory Committee on Civil Rules 
approved a proposed Rule 23(f) that would read:

          (f) Appeals.--A court of appeals may in its 
        discretion permit an appeal from an order of a district 
        court granting or denying class action certification 
        under this rule if application is made to it within ten 
        days after entry of the order. An appeal does not stay 
        proceedings in the district court unless the district 
        court judge or the court of appeals so orders.

    This amendment to the Federal Rules through the Rules 
Enabling Act process is very similar to section 3 of H.R. 1252, 
and in fact embodies the same concept. As this provision has 
been approved by the Advisory Committee, the Judicial 
Conference will consider the matter shortly. Traditionally, we 
have supported the use of the judicial rulemaking process--
rather than the introduction of legislation--to effectuate 
changes in Rules of Civil Procedure. In this instance that 
process is functioning effectively. Accordingly, while we 
support the aim of this provision, we do not believe it is 
necessary, because it appears likely the Federal Rules will be 
changed to accommodate the concept.

Section 4. Proceedings on Complaints Against Judicial Conduct

    This provision includes a number of changes with respect to 
the filing and processing of complaints of judicial misconduct, 
including a requirement that a complaint filed in one judicial 
circuit be referred to another circuit for further proceedings. 
This is a matter that does not directly affect the Department 
in its capacity as litigator; however, we concur in the 
testimony offered by representatives of the Judicial Conference 
inopposition to this section of the bill. The administrative 
burden and confusion inherent in the proposed system are too great and 
are not warranted by any problems evident in the current system. We 
believe that federal judges can and must be trusted to police their 
colleagues with respect to allegations of misconduct, and that judges 
in one circuit are equally--if not better--able to discipline their 
colleagues on that circuit as they are to discipline judges in other 
circuits.

Section 5. Limitation on Court-Imposed Taxes

    In addition to being somewhat ambiguous, this provision 
gives rise to constitutional concerns, because it purports to 
restrict the remedial power of Article III federal courts to 
enforce federal constitutional rights. We recommend against the 
enactment of Section 5 of H.R. 1252.
    Section 5(a)(1) of the proposed bill would amend chapter 85 
of title 28, United States Code, by establishing a new Section 
1369, entitled, ``Limitation on Federal court remedies.'' The 
new section would restrict the power of federal district courts 
to remedy certain legal violations. Specifically, proposed 
Section 1369(a)(1) would limit the power of federal district 
courts to enter orders or approve settlements for the purpose 
of enforcing ``any Federal or State common law, statutory, or 
constitutional right or law'' that require state and local 
governments to impose, increase, levy, or assess taxes. Under 
the new provision, federal district courts would have the power 
to provide such relief only upon finding by ``clear and 
convincing evidence'' that: (A)(i) no other enforcement 
mechanism would provide a remedy, (A)(ii), and the proposed tax 
was narrowly tailored to remedy the deprivation at issue; (B) 
the proposed tax would not exacerbate the deprivation at issue; 
(C) the proposed tax would not result in the loss of revenue of 
the political subdivision compelled to levy it; (D) the 
proposed tax would not depreciate property values for affected 
taxpayers; (E) the proposed tax would not conflict with 
applicable state laws fixing the maximum appropriate rate of 
taxation; (F) and alternative remedial plans submitted to the 
court by State and local governments would not provide 
effective redress.\1\ Section 1369(b) would require that orders 
imposing taxes entered in conformity with Section 1369(a)(1) 
would automatically terminate after one year.
---------------------------------------------------------------------------
    \1\ Section 1369(a)(2) provides that ``a finding'' under Section 
1369(a)(1) would be subject to immediate interlocutory de novo review. 
It is not entirely clear whether ``a finding'' is also meant to include 
a determination that the conditions set forth in Section 1369(a)(1) 
have not been satisfied.
---------------------------------------------------------------------------
    Under current law, federal district courts may compel state 
and local governments to levy taxes in excess of their state 
law taxing powers when such a remedy would be required to 
enforce a federal constitutional right. See Missouri v. 
Jenkins, 495 U.S. 33, 56-58 (1990). In addition, federal courts 
have long been held to possess the equitable authority to 
compel state and local governments to exercise their existing 
taxing authority even when the federal Constitution would not 
require the imposition of such a remedy. Id. at 55. ``[A] court 
order directing a local government body to levy its own taxes 
is plainly a judicial act within the power of a federal 
court.'' Id. Thus, the proposed restrictions would necessarily 
curtail the equitable discretion of federal district courts, 
and deprive them of the power to remedy certain constitutional 
rights altogether.
    Although Congress has broad power to define the 
jurisdiction of lower federal courts, the Constitution bars 
Congress from exercising that power to prohibit the federal 
judiciary from performing its constitutionally assigned 
functions. See Commodities Futures Trading Comm'n v. Schor, 478 
U.S. 833 (1986); United States v. Klein, 80 U.S. (13 Wall.) 128 
(1872). The debate over the nature of this limitation has 
centered principally on whether Congress may impose limitations 
on the authority of lower federal courts to enforce federal 
constitutional rights. Compare, e.g., Laurence H. Tribe, 
``Jurisdictional Gerrymandering: Zoning Disfavored Rights Out 
of the Federal Courts'', 16 Harv. C.R.-C.L.L. Rev. 129 (1981), 
with Henry M. Hart, Jr., ``The Power of Congress to Limit the 
Jurisdiction of Federal Courts: An Exercise in Dialectic'', 66 
Harv. L. Rev. 1362 (1953); see also Gordon G. Young, ``A 
Critical Reassessment of the Case Law Bearing on Congress's 
Power to Restrict the Jurisdiction of the Lower Federal 
Courts''. 54 Md. L. Rev. 132 (1995) (surveying the caselaw). As 
a result, we believe that the proposed bill's restrictions on 
the power of federal district courts to enforce federal 
constitutional rights would be subject to reasonable 
constitutional challenge.\2\
---------------------------------------------------------------------------
    \2\ We note, however, that the force of any such challenge might be 
mitigated here because the terms of the proposed bill appear to permit 
the Supreme Court to provide equivalent relief in the course of 
reviewing a state court judgment. See generally Akhil Reed Amar, A Neo-
Federalist View of Article III: Separating the Two Tiers of Federal 
Jurisdiction, 65 B.U. L. Rev. 205 (1985) (arguing that Article III 
requires only that jurisdiction over federal constitutional claims be 
vested in either the Supreme Court or the lower federal courts).
---------------------------------------------------------------------------
    By contrast, we believe that it is reasonably clear that no 
similar limitation pertains to Congress's power to limit the 
ability of federal district courts to remedy non-constitutional 
rights. The enforcement of state law rights cannot be said to 
be a constitutional duty of the lower federal courts. See e.g., 
Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850) (upholding 
statuteprecluding jurisdiction over certain diversity cases); Amar, 
supra, at 255, 260 (concluding that Article III courts need not be 
available to hear purely state law claims). Similarly, Congress is 
generally free to define the remedies that are available for the 
statutory rights that it creates. Accordingly, the proposed bill's 
restrictions on remedies for violations of state law and federal 
statutory law would not appear to prevent federal district courts from 
performing their constitutionally assigned functions.\3\
---------------------------------------------------------------------------
    \3\ In addition, we do not believe that the prohibition on the use 
of consent decrees raises independent constitutional concerns. By its 
own terms, that prohibition would not prevent federal district courts 
from imposing indirect taxes after a case had been litigated to 
judgment, or if the parties stipulated that a constitutional violation 
had occurred.
---------------------------------------------------------------------------
    Moreover, we note that proposed Section 1369(d) is very 
confusing as drafted. It appears that the provision requires 
federal courts to use federal funds in administering 
permissible orders imposing indirect taxes on state and local 
governments unless applicable state or local law makes sate or 
local funds available for the administration of such orders. 
However, the reference to ``subparagraph (B)'' in Section 
1369(d)(1) is ambiguous, as is the reference to the use of 
funds ``for the purpose of funding the administration of an 
order.''

Section 6. Reassignment of Case as a Right

    This section provides that, ``[i]f all parties on one side 
of a civil case to be tried in * * * district court bring a 
motion to reassign the case, the case shall be reassigned to 
another appropriate judicial officer.'' Each side would be 
permitted one reassignment, without cause, as a matter of 
right. We recommend against the enactment of this provision.
    As a general matter, it constitutes an unseemly affront to 
the judiciary and to the very concept of evenhanded justice 
under neutral laws. As a matter of good government, it is 
inappropriate to treat judges like jurors and to allow the 
parties to strike them without cause. This provision could 
undermine public confidence in judges and threaten their 
independence. It could also be used to isolate a judge who is 
criticized for a controversial decision, again thereby 
undermining pubic confidence and judicial independence, and 
perhaps even impairing collegiality among members of the 
judiciary. These are serious constitutional policy concerns. By 
effectively enabling parties to exercise peremptory challenges 
against Article III judges, the provision invites judge-
shopping and thereby threatens to undermine the integrity and 
independence of Article III judges.
    The provision would also undermine judicial efficiency. For 
example, we litigate major land condemnation projects, such as 
the current Big Cypress National Park expansion, in the Middle 
District of Florida, and the Everglades National Park expansion 
in the Southern District of Florida, each involving hundreds of 
condemnation cases. A single judge is assigned all the cases in 
the particular project, and the judge appoints a three-member 
commission pursuant to F.R.C.P. 71A(h) to try the cases. (There 
are hundreds of cases in these two projects that will be filed 
over the next several years.) the obvious benefits of such an 
assignment to a single judge are the judge's familiarity with 
the issues and consistency in ruing on issues that tend to 
arise repeatedly throughout the years of litigating these 
cases. If landowners (after learning of rulings that would be 
unfavorable in their cases) obtain reassignment after cases 
affecting their property are filed, the benefits of having a 
single judge over these cases are lost. Also, the defendant 
landowners might persuade the new judge to have their cases 
tried by jury rather than by commission, losing the fairness 
and evenhandedness benefits of uniform treatment that comes 
from the use of a commission. (See Advisory Committee Notes on 
Rule 71A(h) as to the benefits of trail by commission.) These 
problems would be compounded if the reassignments are to 
numerous judges. In projects such as these, the provisions of 
this bill would likely lead to a chaotic process and materially 
delayed resolutions.
    Finally, the provision is unnecessary. There are existing 
procedures for dealing with cases of judicial bias. The parties 
should not be allowed, without cause, to second-guess the 
independence and competence of life-tenured federal judges duly 
appointed under the Constitution.

           *       *       *       *       *       *       *

    Thank you for the opportunity to present our views on this 
legislation. If we may be of further assistance in connection 
with this or any other matter, we trust that you will not 
hesitate to call upon us. The Office of Management and Budget 
has advised that there is no objection from the standpoint of 
the Administration's program to the presentation of this 
report.
            Sincerely,
                                               Andrew Fois,
                                        Assistant Attorney General.
                              ----------                              

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                      Washington, DC, May 16, 1995.
Hon. Carlos Moorhead,
Chairman, Subcommittee on Courts and Intellectual Property, Committee 
        on the Judiciary, House of Representatives, Washington, DC.
    Dear Mr. Chairman: This letter sets forth the views of the 
Department of Justice regarding H.R. 1170, a bill to provide 
that federal court cases challenging the constitutionality of 
measures passed by state referendum be heard by a three-judge 
district court, whose decision would be appealable directly to 
the Supreme Court. We understand that this bill will be marked 
up by your Subcommittee in early May.
    Provisions similar to those found in H.R. 1170 once were 
commonly found in federal law, but Congress gradually has 
eliminated such provisions because of a consensus view that 
such three-judge-court requirements are cumbersome, confusing, 
and inefficient. Indeed, in 1976, Congress rescinded a 
provision of federal law that was almost identical to the 
requirement proposed in section 1(b) of H.R. 1170. Former 28 
U.S.C. Sec. 2281 provided, in pertinent part, that

          [a]n interlocutory or permanent injunction 
        restraining the enforcement, operation or execution of 
        any State statute * * * shall not be granted by any 
        district court or judge thereof upon the ground of the 
        unconstitutionality of such statute unless the 
        application therefor is heard and determined by a 
        district court of three judges under section 2284 of 
        this title.

The only material difference between this former statute and 
proposed section 1(b) of H.R. 1170 is that the latter is 
limited to ``State law adopted by referendum.''
    Before its revocation in 1976, both the bar and the bench 
expressed sustained and virtually unanimous opposition to 
Sec. 2281. Vocal proponents of rescinding that statute included 
the United States Judicial Conference, the Chief Justice of the 
Supreme Court, the Chief Judges of the Second, Third, Fourth 
and Fifth Circuit Courts of Appeals, the Department of Justice, 
the American Bar Association, and Professor Charles Alan 
Wright, the foremost expert in the area of federal civil 
procedure. See S. Rep. No. 204, 94th Cong., 1st Sess. 3 (1975) 
[``Senate Report'']; H.R. Rep. No. 1379, 94th Cong., 2d Sess. 4 
(1976) [``House Report'']. Repeal of the three-judge-court 
requirement also was recommended by the Federal Judicial Center 
Study Group on the Caseload of the Supreme Court, popularly 
known as the Freud Committee. See Report of the Study Group on 
the Caseload of the Supreme Court, 57 F.R.D. 573, 595-605 
(1972) [``Freund Committee Report'']
    The strong criticism of the three-judge procedure in former 
Sec. 2281 was animated by the widely-held view that that 
procedure was ``the single worst feature in the Federal 
judicial system as we have it today.'' Senate Report at 2. 
Accordingly, Congress repealed former Sec. 2281 in 1976. Pub. 
L. No. 94-381, Sec. 1, 90 Stat. 1119. The specific reasons 
Congress invoked to explain the repeal were threefold.
    First, ``the original reasons for the three-judge court 
ha[d] been largely dissipated by limiting statutes and 
decisions controlling the jurisdiction of the federal courts 
collaterally to review State laws.'' Senate Report at 8. As 
then-Chief Justice Burger noted, ``[t]he original reasons for 
establishing these special courts, whatever their validity at 
the time, no longer exist.'' Id. at 3. Because later legal 
developments obviated the concerns that originally had given 
rise to the three-judge-court requirement, the House concluded 
that ``states no longer require this kind of protection from 
the arbitrary actions of a single judge.'' House Report at 4. 
See also Senate Report at 7 (original rationale for Sec. 2281 
``has long been obsolete'').
    Second, the procedure ``compounds and confuses rather than 
simplifies orderly constitutional decision.'' Senate Report at 
8-9. Whether and to what extent a three-judge court must be 
convened under particular circumstances, and at certain stages 
of litigation, were questions that engendered hopelessly 
complex and arcane litigation and decisional law under 
Sec. 2281. See generally 12 Moore's Federal Practice para. 
421.03[2], at 5-63 to 5-96 (2d ed. 1995) (canvassing and 
discussing hundreds of pertinent decisions and distinctions). 
Examples of frequent areas of procedural litigation included 
whether a three-judge court was required when it was unclear 
that the court had jurisdiction (for example, because the 
plaintiff lacked standing or the suit was barred by the statute 
of limitations or res judicata), and whether a three-judge 
court was required when plaintiff's claim was frivolous.
    What is more, a second tier of complex litigation was 
generated by the ``wasteful and confusing'' channels for 
appealing jurisdictional issues relating to three-judge courts 
underSec. 2281. According to the Senate, the rules on appellate 
review of whether a three-judge court was needed were ``so complex as 
to be virtually beyond belief.'' Senate Report at 6. See also Freund 
Committee Report, 57 F.R.D. at 598 (``When, where, and how to obtain 
appellate review of an order by or relating to a three-judge court is a 
hopelessly complicated and confused subject that in itself has produced 
much unnecessary litigation,'' and ``review of these matters has become 
so mysterious that even specialists in this area may be led astray''). 
Examples of this kind of litigation included questions as to which 
court had appellate jurisdiction when a three-judge court decided a 
case that should have been decided by a single-judge district court, or 
when a three-judge district court decided the case, not on the issue 
for which a three-judge court was required, but on some other issue, 
e.g., lack of standing, lack of personal or subject-matter 
jurisdiction, a statute of limitations bar, res judicata, or lack of 
merit on an unconstitutional ground.
    Third, in addition to the extra, complex litigation 
engendered by the three-judge-court requirement of Sec. 2281, 
the three-judge procedure in and of itself was, in Justice 
Frankfurter's words, a ``serious drain upon the federal 
judicial system.'' Phillips v. United States, 312 U.S. 246, 250 
(1941). As the Senate concluded, ``the burden placed on the 
panels of judges to handle these cases on an expedited basis is 
onerous in view of the mounting backlog of cases of no loesser 
priority.'' Senate Report at 9. See also id. at 4-5; House 
Report at 4 (``The scarce judicial manpower of the nation is 
inefficiently used by requiring three judges to convene for 
work that could be performed by one.''); Freund Committee 
Report, 57 F.R.D. at 598.
    Three-judge district courts are administratively 
complicated to convene and conduct, especially when, as 
frequently occurs, the judges do not reside in the city where 
the proceedings take place. Such a court ``is not well adapted 
for the trial of factual issues,'' Freund Committee Report, 57 
F.R.D. at 599, and accordingly, such courts often resort to 
procedural devices to induce stipulated facts or otherwise 
pretermit development of the facts at an evidentiary hearing, 
id.
    Moreover, eliminating court of appeals review and providing 
direct appeal to the Supreme Court unnecessarily burdens the 
Supreme Court by requiring the Court to resolve cases that 
could and should be resolved at the court of appeals level. On 
direct appeal from a three-judge court, the Supreme Court often 
must decide between reaching decision on an inadequate factual 
record or protracting the litigation by remanding for 
development of a more helpful record. Id. And, even where the 
record is adequate, direct appeal means that he Supreme Court 
``does not have the benefit of the preliminary screening and 
sharpening of issues that the courts of appeals ordinarily 
provide.'' Id. (citing Youngstown Sheet & Tube Co. v. Sawyer, 
343 U.S. 937, 938 (separate opinion of Burton and Frankfurter, 
JJ.) (1952)).
    In sum, the three-judge requirement of Sec. 2281 
``generate[d], rather than lessen[ed], litigation,'' and 
Congress accordingly eliminated that requirement in order to 
``increase the efficiency of our judicial system to the benefit 
of litigants, lawyers, and judges alike.'' Senate Report at 7. 
H.R. 1170 would simply reinvite the problems and stresses that 
were alleviated by repeal of Sec. 2281. Admittedly, H.R. 1170 
might not apply to as many lawsuits as did former Sec. 2281, 
because it is limited to state laws ``adopted by referendum.'' 
Nonetheless, the problems associated with such cases will be 
just as pronounced as they were with respect to cases under 
Sec. 2281.
    Moreover, in one important respect, HL.R. 1170 is broader 
in scope than was Sec. 2281. Section 2281 required a three-
judge court only for the issuance of an injunction restraining 
the enforcement of a state statute. Section 1(a) of H.R. 1170 
would, by contrast, require a three-judge court without respect 
to whether injunctive relief is sought. Under that section, a 
three-judge court would be required to ``hear [  ] and 
determine [  ]'' ``[a]ny action'' in federal court that 
``challenges the constitutionality of a State law adopted by 
referendum.'' Thus, for example, a three-judge court arguably 
would have to be convened if the unconstitutionality of a State 
referendum-passed statute were simply interposed as a defense 
to a private civil action or to a criminal charge. Indeed, H.R. 
1170 seems to contemplate that any action being heard by a 
single district judge would have to be transferred to a three-
judge court whenever a question is raised in the litigation as 
to the constitutionality of an applicable State statute. Thus, 
the problems and complexities that led to the elimination of 
Sec. 2281 might even be exacerbated under H.R. 1170
    The standard judicial procedure provides for expedited 
appellate review in the courts of appeals in appropriate cases. 
A decision of a single-judge district court holding 
unconstitutional a state law adopted by referendum would be 
such a case. H.R. 1170 would provide that only the Supreme 
Court, not a court of appeals, could overturn such a decision. 
The result in most cases will be to delay, rather than to 
expedite, appellate review. For these reasons, H.R. 1170 is 
likely to have the opposite result than the one of its sponsors 
intend.
    The Office of Management and Budget has advised this 
Department that there is no objection to the submission of this 
report from the standpoint of the Administration's program.
            Sincerely,
                                               Kent Markus,
                                 Acting Assistant Attorney General.
                              ----------                              

                  Judicial Conference of the United States,
                                     Washington, DC, March 3, 1998.
Hon. Howard Coble,
Chairman, Subcommittee on Courts and Intellectual Property, Committee 
        on the Judiciary, House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Judiciary Committee has scheduled 
the ``Judicial Reform Act of 1997,'' H.R. 1252, for 
consideration. The Judicial Conference of the United States 
opposes the enactment of Sections 2, 3, 4, 5, 6, 7 and 8 of 
this bill. The Subcommittee on Courts and Intellectual Property 
has not requested nor received the views of the Judicial 
Conference on Section 7: Random Assignment of Habeas Corpus 
Cases; and Section 8: Authority of Presiding Judge to Allow 
Media Coverage of Appellate Court Proceedings. This letter 
provides those views. The subcommittee has rejected the 
recommendations of the Judicial Conference on the other 
enumerated sections. Since the proposals in Section 4: 
Proceedings on Complaints Against Judicial Conduct; and Section 
6: Reassignment of Case as of Right, are particularly 
significant and highly objectionable, I would summarize the 
Conference positions on these two sections.

Section 4. Proceedings on Complaints Against Judicial Conduct

    This proposal would amend the Judicial Conduct and 
Disability Act of 1980, 28 U.S.C. Sec. 372(c) to require that 
all complaints of judicial misconduct that are not dismissed as 
(1) frivolous, (2) relating to the merits of a decision or 
procedural ruling or (3) not in conformity with the statute, be 
referred to another circuit for compliant proceedings. This 
would fundamentally revise the current system, under which 
complaints against judicial conduct are processed by the 
circuit in which the complained-against judge serves.
    The Judicial Conduct and Disability Act (1980 Act) emerged 
in its current form from the House Judiciary Committee and was 
enacted with the support of the Judicial Conference. The 1980 
Act has operated as the Committee intended since enactment and 
has been effective and beneficial to the judiciary.
    In 1991, the Judiciary Committee was instrumental in 
establishing the National Commission on Judicial Discipline and 
Removal. Two former members of this committee served on the 
Commission, one as its chair. The 1980 Act was closely reviewed 
and evaluated by the Commission. In its 1993 final Report, the 
Commission concluded that the 1980 Act ``has yielded 
substantial benefits'' to the federal judiciary. No amendments 
to the 1980 Act were recommended.
    The proposal in Section 4 apparently results from a single 
matter: the consideration by the chief judge and by the 
Judicial Council of the Sixth Circuit of 12 complaints arising 
out of the handling of eight death penalty habeas corpus 
petitions by a district judge from the circuit. The complaints 
alleged the judge has unreasonably delayed disposing of these 
cases. One complaint also alleged the judge had violated the 
code of Conduct for United States Judge by accepting a letter 
of commendation from a local religious organization which 
opposes the death penalty.
    The chief judge of the circuit found that the district 
judge had unreasonably delayed processing two of the cases. 
Before that finding was made, the district judge had disposed 
of two of the other cases, and was actively processing all the 
others which were not awaiting action in state court. In light 
of that, the complaints were dismissed on the ground that 
``corrective action'' had been taken as is provided in the 1980 
Act, 28 U.S.C. Sec. 372(c)(3)(B). The judicial council affirmed 
this decision.
    Canon 2A of the Code of Conduct states, in part, that ``[a] 
judge should * * * act at all times in a manner that promotes 
public confidence in the integrity and impartiality of the 
judiciary.'' The chief judge found that the district judge had 
not violated that canon by accepting a letter of commendation 
from the Nashville Ministers Conference ten years earlier. The 
judicial council affirmed this decision.
    The stated purpose of this amendment is to ensure 
objectivity in the operation of the 1980 Act. Nevertheless, the 
decisions made in the case in point reasonably appear to be 
objective. Since the delay had ceased, dismissing the 
complaints of delay on the statutory ground that ``appropriate 
corrective action'' had been taken seems reasonable. The 
conclusion that the ten-year-past act of accepting a letter of 
commendation from a local religious group did not erode 
``public confidence'' in the judiciary also seems reasonable.
    These two decisions were made by the chief judge of the 
circuit, who happens to reside in the same city as the 
complained-against district judge. This fact gives rise to the 
claim that the decisions were either not made objectively or 
had the appearance of a lack of objectivity. However, the 
complaints and the decisions dismissing them were reviewed and 
unanimously affirmed by 15 other judges who sit on the Judicial 
Council of the Sixth Circuit, seven from the Sixth Circuit 
Court of Appeals and eight chief district judges, who reside 
and sit in the states of Michigan, Ohio, Kentucky, and 
Tennessee.
    Neither the decision to dismiss these two complaints, nor 
the make-up of the complement of 16 judges who took part in 
that decision provides any reasonable justification for making 
a fundamental change in the operation of the 1980 Act by 
transferring complaints against judicial conduct to another 
circuit for consideration. Indeed it is likely that 16 judges 
from any region of the country would have decided the same as 
did the 16 judges from the Sixth Circuit.
    Moreover, the proposal ignores the fact that a significant 
strength of the 1980 Act lies in promoting solutions to 
judicial misconduct or disability problems not only through 
formal statutory processes but also through informal activity 
which amounts to peer review. As the Commission final Report 
explains:

    Although the 1980 Act [28 U.S.C. Sec. 372(c)] established a 
formal mechanism for filing complaints, perhaps its major 
benefit has been the facilitation of informal adjustments of 
problems of judicial misconduct or disability. In some 
situations, that has occurred without the filing of a 
complaint; in others it has followed a chief judge's inquiry in 
response to a complaint. A chief judge's power under the 1980 
Act to conclude a proceeding ``if he finds that appropriate 
corrective action has been taken'' is a boon to negotiated 
resolutions.

           *         *         *         *         *

    The 1980 Act * * * has yielded substantial benefits both in 
those few instances where it was necessary for the judicial 
councils to take action and, more importantly, in the many 
instances where the existence of its formal process enabled 
chief judges to resolve complaints through corrective action 
and, indeed, to resolve problems before a complaint was filed.

    ``Report of the National Commission on Judicial Discipline 
and Removal,'' at 104, 123 (August 1993).
    Transferring complaints out of the circuit where the 
complained-against judge is stationed would seriously cripple 
this process, which cannot effectively function from a remote 
location. For this reason, this proposal would not toughen 
discipline of judges nor would it make judges more accountable. 
Rather it would seriously undermine the existing effective 
disciplinary process.

Section 6. Reassignment of Case as of Right

    This section provides that if all parties on one side of a 
civil case bring a motion to reassign the case, the case shall 
be reassigned to another judicial officer. Each side would be 
permitted one reassignment as a matter of right. No cause for 
the reassignment is required.
    Under current practice, civil cases, absent special 
circumstances, are randomly assigned to judges for resolution. 
This system ensures the fact and appearance that the assignment 
was impartially made. The assigned judge may then be challenged 
on grounds of bias or prejudice. 28 U.S.C. Sec. 144. Also, the 
judge must disqualify himself or herself if impartiality 
regarding the case might be reasonably questioned. 28 U.S.C. 
Sec. 455. This process is designed to ensure that legal 
principles are applied in a fair and evenhanded manner in 
federal courts.
    The proposal in Section 6 is designed to disrupt the random 
case assignment process. It condones attempts to influence the 
outcome of a federal civil case by considerations which are 
outside of the merits of the case. For that reason this 
proposal is repugnant to the proper administration of justice. 
The parties would be allowed, indeed required, to evaluate the 
personal characteristics of the assigned judge to conclude 
whether this judge may be favorably or not favorably disposed 
to their case. For the first time, the race, gender, age, 
religious beliefs or political background of a judge would 
become an important and integral part of the federal judicial 
system.
    Approval of Section 6 threatens to undermine public 
confidence in the federal judicial system. Support of this 
proposal appears to be based on two assumptions: federal judges 
are untrustworthy and current laws and practices designed to 
ensure fairness and impartiality in civil litigation are 
failing to protect adequately the rights of civil litigants. 
There is no justification for either assumption.
    This proposal clearly would also delay civil litigation and 
increase the costs to parties in routine civil cases. In 
complicated cases, such as class actions or mass tort cases 
that are consolidated for trial, allowing the removal of judges 
for tactical reasons would have a profoundly negative effect on 
the administration of justice.

Section 7. Random Assignment of Habeas Corpus Cases

    The dismissal of the complaints against the conduct of a 
district judge, which gave rise to Section 4 of the bill, also 
gave rise to this amendment. In the district in question at the 
time of the complaints, the complained-against judge was 
assigned all death penalty habeas corpus petitions. That 
assignment practice in that district has been discontinued.
    The rationale for this proposal is that if a judge were 
predisposed to delay prosecution of death penalty habeas corpus 
petitions, this provision would ensure that fewer such 
petitions would be wrongly handled. For a reason that is not 
apparent, the amendment would apply to all habeas corpus 
petitions, not just those by death row inmates.
    The amendment is objectionable for two reasons. Habeas 
corpus petitions are normally assigned on a random basis. 
However, following an initial assignment, it is the general 
rule that the subsequent petitions from the same prison inmate 
are assigned to the same judge. The great majority of these 
petitions, especially from ``frequent filers,'' are without 
merit. While each case must be appropriately considered, a 
system by which one judge processes all of the filings of one 
individual expedites and facilitates judicial administration. 
Randomly assigning these cases so that no single judge will 
understand previous activity by any petitioner will be an 
unnecessary and, apparently an unintended burden on the court.
    Although it is uncommon, certain districts do assign all 
death penalty habeas corpus petitions to a single judge. 
Outside of the matter which gave rise to this amendment, there 
has not been any complaint about this practice to our 
knowledge. Therefore, this amendment would force those 
districts that have this assignment arrangement to abandon it 
for no demonstrable reason. Conversely, the district that did 
have the practice, and that engendered this amendment, has 
abandoned it; so this proposal would have no effect on that 
district.

Section 8. Authority of Presiding Judge to Allow Media Coverage of 
        Appellate Court Proceedings

    This proposal would authorize a ``presiding'' circuit judge 
to permit photographing, electronic recording, broadcasting or 
televising any court proceeding over which he or she presides. 
The term ``presiding'' means the Chief Justice or Chief Judge 
if an entire court is sitting, or the senior active judge on a 
three-judge panel. The proposal also authorizes the Judicial 
Conference to promulgate advisory guidelines for this activity.
    In March 1996, the Judicial Conference authorized each 
court of appeals to decide for itself whether to permit 
photographs and radio and television coverage of appellate 
arguments in civil cases.
    On March 27, 1996, the Second Circuit Court of Appeals 
approved guidelines pursuant to which media coverage of 
appellate arguments in civil cases could occur. On May 24, 
1996, the Ninth Circuit Court of Appeals voted to allow 
photographs and radio and television coverage of civil case 
appellate arguments, except for arguments in extradition 
proceedings. Guidelines for this practice were developed 
subsequently. Since March of 1996, approximately 30 arguments 
have been televised or recorded on videotape in the Second and 
Ninth Circuits.
    All of the other appellate courts have voted not to allow 
this coverage in their appellate courts, with the exception of 
the Court of Appeals for the District of Columbia which has not 
decided on this matter.
    The House Judiciary Courts and Intellectual Property 
Subcommittee did not hold a public hearing on the proposal in 
Section 8. This is a sensitive and controversial subject that 
presents a number of relevant issues that have not been 
considered. Since there is a very low level of demand from the 
private sector for televised appellate arguments, the question 
arises whether the considered judgment of the Judicial 
Conference and of the appellate courts should be overridden on 
this policy. Both the Second and Ninth Circuits prohibit 
photographs, televising, or radio coverage of appeals in 
criminal cases because such activities are currently unlawful. 
See Federal Rules of Criminal Procedure. Rule 53, 54(a). Would 
this section, if enacted, override the federal rules as to the 
United States courts of appeals?
    Many other issues which surround this proposal have not 
been addressed. We respectfully recommend that this matter be 
postponed for further consideration, especially since a long-
standing rule of criminal procedure may be amended by 
reference.
    Thank you for your attention to our concerns with portions 
of this significant bill.
            Sincerely,
                                     Leonidas Ralph Mecham,
                                                         Secretary.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3 of rule XIII of the Rules of the 
House of Representatives, changes in existing law made by the 
bill, as reported, are shown as follows (existing law proposed 
to be omitted is enclosed in black brackets, new matter is 
printed in italic, existing law in which no change is proposed 
is shown in roman):

TITLE 28, UNITED STATES CODE

           *       *       *       *       *       *       *


PART I--ORGANIZATION OF COURTS

           *       *       *       *       *       *       *


CHAPTER 17--RESIGNATION AND RETIREMENT OF JUSTICES AND JUDGES

           *       *       *       *       *       *       *


Sec. 372. Retirement for disability; substitute judge on failure to 
                    retire; judicial discipline

  (a) * * *

           *       *       *       *       *       *       *

  (c)(1) Any person alleging that a circuit, district, or 
bankruptcy judge, or a magistrate, has engaged in conduct 
prejudicial to the effective and expeditious administration of 
the business of the courts, or alleging that such a judge or 
magistrate is unable to discharge all the duties of office by 
reason of mental or physical disability, may file with the 
clerk of the court of appeals for the circuit a written 
complaint containing a brief statement of the facts 
constituting such conduct. In the interests of the effective 
and expeditious administration of the business of the courts 
and on the basis of information available to the chief judge of 
the circuit, the chief judge may, by written order stating 
reasons therefor, identify a complaint for purposes of this 
subsection and thereby dispense with filing of a written 
complaint. In the case of a complaint so identified, the chief 
judge shall notify the clerk of the court of appeals of the 
complaint, together with a brief statement of the facts 
underlying the complaint.
  (2) Upon receipt of a complaint filed under paragraph (1) of 
this subsection, the clerk shall promptly transmit such 
complaint to the chief judge of the circuit, or, if the conduct 
complained of is that of the chief judge, to that circuit judge 
in regular active service next senior in date of commission 
(hereafter, for purposes of this subsection only, included in 
the term ``chief judge''). The clerk shall simultaneously 
transmit a copy of the complaint or statement of facts 
underlying the complaint (as the case may be) to the judge or 
magistrate whose conduct is the subject of the complaint.
  (3)(A) After expeditiously reviewing a complaint, the chief 
judge, by written order stating his reasons, [may--
          [(A) dismiss the complaint, if he finds it to be (i) 
        not in conformity with paragraph (1) of this 
        subsection, (ii) directly related to the merits of a 
        decision or procedural ruling, or (iii) frivolous; or
          [(B) conclude the proceeding if he finds that 
        appropriate corrective action has been taken or that 
        action on the complaint is no longer necessary because 
        of intervening events.]
may dismiss the complaint if the chief judge finds it to be--
          (i) not in conformity with paragraph (1);
          (ii) directly related to the merits of a decision or 
        procedural ruling; or
          (iii) frivolous.
  The chief judge shall transmit copies of his written order to 
the complainant and to the judge or magistrate whose conduct is 
the subject of the complaint.
  (B) If the chief judge does not enter an order under 
subparagraph (A), then the complaint or (in the case of a 
complaint identified under paragraph (1)) the statement of 
facts underlying the complaint shall be referred to the chief 
judge of another judicial circuit for proceedings under this 
subsection (hereafter in this subsection referred to as the 
``chief judge''), in accordance with a system established by 
rule by the Judicial Conference, which prescribes the circuits 
to which the complaints will be referred. The Judicial 
Conference shall establish and submit to the Congress the 
system described in the preceding sentence not later than 180 
days after the date of the enactment of the Judicial Reform Act 
of 1998.
  (C) After expeditiously reviewing the complaint, the chief 
judge may, by written order explaining the chief judge's 
reasons, conclude the proceeding if the chief judge finds that 
appropriate corrective action has been taken or that action on 
the complaint is no longer necessary because of intervening 
events.
  (4) If the chief judge does not enter an order under 
paragraph (3)(C) of this subsection, such judge shall 
promptly--
          (A) appoint himself and equal numbers of circuit and 
        district judges of the circuit (to which the complaint 
        or statement of facts underlying the complaint is 
        referred) to a special committee to investigate the 
        facts and allegations contained in the complaint;

           *       *       *       *       *       *       *

  (5) Each committee appointed under paragraph (4) of this 
subsection shall conduct an investigation as extensive as it 
considers necessary, and shall expeditiously file a 
comprehensive written report thereon with the judicial council 
of the circuit to which the complaint or statement of facts 
underlying the complaint is referred. Such report shall present 
both the findings of the investigation and the committee's 
recommendations for necessary and appropriate action by the 
judicial council of [the circuit] that circuit.

           *       *       *       *       *       *       *

  (14) Except as provided in paragraph (8), all papers, 
documents, and records of proceedings related to investigations 
conducted under this subsection shall be confidential and shall 
not be disclosed by any person in any proceeding except to the 
extent that--
          (A) * * *
          (B) the judicial council of the circuit, the Judicial 
        Conference of the United States, or the Senate or the 
        House of Representatives by resolution, releases any 
        such material which is believed necessary to an 
        impeachment investigation or trial of a judge under 
        article I of the Constitution; [or]
          (C) such disclosure is authorized in writing by the 
        judge or magistrate who is the subject of the complaint 
        and by the chief judge of the circuit, the Chief 
        Justice, or the chairman of the standing committee 
        established under section 331 of this title[.]; or
          (D) such disclosure is made to another agency or 
        instrumentality of any governmental jurisdiction within 
        or under the control of the United States for a civil 
        or criminal law enforcement activity authorized by law.
  (15) Each written order to implement any action under 
paragraph (6) (B) of this subsection, which is issued by a 
judicial council, the Judicial Conference, or the standing 
committee established under section 331 of this title, shall be 
made available to the public through the appropriate clerk's 
office of the court of appeals for the circuit in which the 
complaint was filed or identified under paragraph (1). Unless 
contrary to the interests of justice, each such order issued 
under this paragraph shall be accompanied by written reasons 
therefor.

           *       *       *       *       *       *       *

  [(18) The United States Court of Federal Claims, the Court of 
International Trade, and the Court of Appeals for the Federal 
Circuit shall each prescribe rules, consistent with the 
foregoing provisions of this subsection, establishing 
procedures for the filing of complaints with respect to the 
conduct of any judge of such court and for the investigation 
and resolution of such complaints. In investigating and taking 
action with respect to any such complaint, each such court 
shall have the powers granted to a judicial council under this 
subsection.]
  (18) The Judicial Conference shall prescribe rules, 
consistent with the preceding provisions of this subsection--
          (A) establishing procedures for the filing of 
        complaints with respect to the conduct of any judge of 
        the United States Court of Federal Claims, the Court of 
        International Trade, or the Court of Appeals for the 
        Federal Circuit, and for the investigation and 
        resolution of such complaints; and
          (B) establishing a system for referring complaints 
        filed with respect to the conduct of a judge of any 
        such court to any of the first eleven judicial circuits 
        or to another court for investigation and resolution.
The Judicial Conference shall establish and submit to the 
Congress the system described in subparagraph (B) not later 
than 180 days after the date of the enactment of the Judicial 
Reform Act of 1998.

           *       *       *       *       *       *       *


     CHAPTER 21--GENERAL PROVISIONS APPLICABLE TO COURTS AND JUDGES

Sec.
451.  Definitions.
     * * * * * * *
464.  Reassignment of cases upon motion by a party.

           *       *       *       *       *       *       *


Sec. 461. Adjustments in certain salaries

  [(a)(1) Subject to paragraph (2), effective at the beginning 
of the first applicable pay period commencing on or after the 
first day of the month in which an adjustment takes effect 
under section 5303 of title 5 in the rates of pay under the 
General Schedule (except as provided in subsection (b)), each 
salary rate which is subject to adjustment under this section 
shall be adjusted by an amount, rounded to the nearest multiple 
of $100 (or if midway between multiples of $100, to the next 
higher multiple of $100) equal to the percentage of such salary 
rate which corresponds to the most recent percentage change in 
the ECI (relative to the date described in the next sentence), 
as determined under section 704(a)(1) of the Ethics Reform Act 
of 1989. The appropriate date under this sentence is the first 
day of the fiscal year in which such adjustment in the rates of 
pay under the General Schedule takes effect.
  [(2) In no event shall the percentage adjustment taking 
effect under paragraph (1) in any calendar year (before 
rounding), in any salary rate, exceed the percentage adjustment 
taking effect in such calendar year under section 5303 of title 
5 in the rates of pay under the General Schedule.]
  (a) Effective as of the first day of the applicable pay 
period beginning on or after the date on which an adjustment 
takes effect under section 5303 of title 5 in the rates of 
basic pay under the General Schedule (or under any other 
provision of law in lieu thereof), each salary rate which is 
subject to an adjustment under this section shall be adjusted 
by an amount equal to the percentage of the adjustment under 
such section 5303, rounded to the nearest multiple of $100 (or 
if midway between multiples of $100, to the next higher 
multiple of $100).

           *       *       *       *       *       *       *


Sec. 464. Reassignment of cases upon motion by a party

  (a) Upon Motion.--(1) If all parties on one side of a civil 
case to be tried in a United States district court described in 
subsection (e) bring a motion to reassign the case, the case 
shall be reassigned to another appropriate judicial officer. 
Each side shall be entitled to one reassignment without cause 
as a matter of right.
  (2) If any question arises as to which parties should be 
grouped together as a side for purposes of this section, the 
chief judge of the court of appeals for the circuit in which 
the case is to be tried, or another judge of the court of 
appeals designated by the chief judge, shall determine that 
question.
  (b) Requirements for Bringing Motion.--(1) Subject to 
paragraph (2), a motion to reassign under this section shall 
not be entertained unless it is brought, not later than 20 days 
after noticeof the original assignment of the case, to the 
judicial officer to whom the case is assigned for the purpose of 
hearing or deciding any matter. Such motion shall be granted if--
          (A) it is presented before trial or hearing begins 
        and before the judicial officer to whom it is presented 
        has ruled on any substantial issue in the case, or
          (B) it is presented by consent of the parties on all 
        sides.
  (2) Notwithstanding paragraph (1)--
          (A) a party joined in a civil action after the 
        initial filing may, with the concurrence of the other 
        parties on the same side, bring a motion under this 
        section within 20 days after the service of the 
        complaint on that party;
          (B) a party served with a supplemental or amended 
        complaint or a third-party complaint in a civil action 
        may, with the concurrence of the other parties on the 
        same side, bring a motion under this section within 20 
        days after service on that party of the supplemental, 
        amended, or third-party complaint; and
          (C) rulings in a case by the judicial officer on any 
        substantial issue before a party who has not been found 
        in default enters an appearance in the case shall not 
        be grounds for denying an otherwise timely and 
        appropriate motion brought by that party under this 
        section.
  (3) No motion under this section may be brought by the party 
or parties on a side in a case if any party or parties on that 
side have previously brought a motion to reassign under this 
section in that case.
  (c) Costs of Travel to New Location.--(1) If a motion to 
reassign brought under this section requires a change in 
location for purposes of appearing before a newly assigned 
judicial officer, the party or parties bringing the motion 
shall pay the reasonable costs incurred by the parties on 
different sides of the case in travelling to the new location 
for all matters associated with the case requiring an 
appearance at the new location. In a case in which both sides 
bring a motion to reassign under this section that requires a 
change in location, the party or parties bringing the motions 
on both sides shall split the travelling costs referred to in 
the preceding sentence.
  (2) For parties financially unable to obtain adequate 
representation, the Government shall pay the reasonable costs 
under paragraph (1).
  (d) Definition.--As used in this section, the term 
``appropriate judicial officer'' means--
          (1) a United States magistrate judge in a case 
        referred to such a magistrate judge; and
          (2) a United States district court judge in any other 
        case before a United States district court.
  (e) District Courts That May Authorize Reassignment.--The 
district courts referred to in subsection (a) are the district 
courts for the 21 judicial districts for which the President is 
directed to appoint the largest numbers of permanent judges.
  (f) 3-Judge Court Cases Excluded.--This section shall not 
apply to any civil action required to be heard and determined 
by a district court of 3 judges.

           *       *       *       *       *       *       *


PART IV--JURISDICTION AND VENUE

           *       *       *       *       *       *       *


CHAPTER 83--COURTS OF APPEALS

           *       *       *       *       *       *       *


Sec. 1292. Interlocutory decisions

  (a) * * *
  (b)(1) When a district judge, in making in a civil action an 
order not otherwise appealable under this section, shall be of 
the opinion that such order involves a controlling question of 
law as to which there is substantial ground for difference of 
opinion and that an immediate appeal from the order may 
materially advance the ultimate termination of the litigation, 
he shall so state in writing in such order. The Court of 
Appeals which would have jurisdiction of an appeal of such 
action may thereupon, in its discretion, permit an appeal to be 
taken from such order, if application is made to it within ten 
days after the entry of the order: Provided, however, That 
application for an appeal hereunder shall not stay proceedings 
in the district court unless the district judge or the Court of 
Appeals or a judge thereof shall so order.
  (2) A party to an action in which the district court has made 
a determination of whether the action may be maintained as a 
class action may make application for appeal of that 
determination to the court of appeals which would have 
jurisdiction of an appeal of that action. The court of appeals 
may, in its discretion, permit the appeal to be taken from such 
determination if the application is made within 10 days after 
the entry of the court's determination relating to the class 
action. Application for an appeal under this paragraph shall 
not stay proceedings in the district court unless the district 
judge or the court of appeals or a judge thereof shall so 
order.

           *       *       *       *       *       *       *


               CHAPTER 85--DISTRICT COURTS; JURISDICTION

Sec.
1330.  Actions against foreign states.
     * * * * * * *
1369.  Limitation on Federal court remedies.
1370.  Multiparty, multiforum jurisdiction.
     * * * * * * *

Sec. 1369. Limitation on Federal court remedies

  (a) Limitation on Court-Imposed Taxes.--(1) No district court 
may enter any order or approve any settlement that requires any 
State, or political subdivision of a State, to impose, 
increase, levy, or assess any tax, unless the court finds by 
clear and convincing evidence, that--
          (A) there are no other means available to remedy the 
        deprivation of a right under the Constitution of the 
        United States;
          (B) the proposed imposition, increase, levying, or 
        assessment is narrowly tailored to remedy the specific 
        deprivation atissue so that the remedy imposed is 
directly related to the harm caused by the deprivation;
          (C) the tax will not contribute to or exacerbate the 
        deprivation intended to be remedied;
          (D) plans submitted to the court by State and local 
        authorities will not effectively redress the 
        deprivations at issue;
          (E) the interests of State and local authorities in 
        managing their affairs are not usurped, in violation of 
        the Constitution, by the proposed imposition, increase, 
        levying, or assessment; and
          (F) the proposed tax will not result in the loss or 
        depreciation of property values of the taxpayers who 
        are affected.
  (2) The limitation contained in paragraph (1) shall apply 
only to any order or settlement which--
          (A) expressly directs any State, or political 
        subdivision of a State, to impose, increase, levy, or 
        assess any tax; or
          (B) will necessarily require a State, or political 
        subdivision of a State, to impose, increase, levy, or 
        assess any tax.
  (3) If the court finds that the conditions set forth in 
paragraph (1) have been satisfied, it shall enter an order 
incorporating that finding, and that order shall be subject to 
immediate interlocutory de novo review.
  (4) A remedy permitted under paragraph (1) shall not extend 
beyond the case or controversy before the court.
  (5)(A) Notwithstanding any law or rule of procedure, any 
person or entity whose tax liability would be directly affected 
by the imposition of a tax under paragraph (1) shall have the 
right to intervene in any proceeding concerning the imposition 
of the tax, except that the court may deny intervention if it 
finds that the interest of that person or entity is adequately 
represented by existing parties.
  (B) A person or entity that intervenes pursuant to 
subparagraph (A) shall have the right to--
          (i) present evidence and appear before the court to 
        present oral and written testimony; and
          (ii) appeal any finding required to be made by this 
        section, or any other related action taken to impose, 
        increase, levy, or assess the tax that is the subject 
        of the intervention.
  (b) Termination of Orders.--Notwithstanding any law or rule 
of procedure, any order of, or settlement approved by, a 
district court requiring the imposition, increase, levy, or 
assessment of a tax pursuant to subsection (a)(1) shall 
automatically terminate or expire on the date that is--
          (1) 1 year after the date of the imposition of the 
        tax; or
          (2) an earlier date, if the court determines that the 
        deprivation of rights that is addressed by the order or 
        settlement has been cured to the extent practicable.
Any new such order or settlement relating to the same issue is 
subject to all the requirements of this section.
  (c) Preemption.--This section shall not be construed to 
preempt any law of a State or political subdivision thereof 
that imposes limitations on, or otherwise restricts the 
imposition of, a tax, levy, or assessment that is imposed in 
response to a court order or settlement referred to in 
subsection (b).
  (d) Additional Restrictions on Court Action.--(1) Except as 
provided in paragraph (2), nothing in this section may be 
construed to allow a Federal court to, for the purpose of 
funding the administration of an order or settlement referred 
to in subsection (b), use funds acquired by a State or 
political subdivision thereof from a tax imposed by the State 
or political subdivision thereof.
  (2) Paragraph (1) does not apply to any tax, levy, or 
assessment that may, in accordance with applicable State or 
local law, be used to fund the actions of a State or political 
subdivision thereof in meeting the requirements of an order or 
settlement referred to in subsection (b).
  (e) Notice to States.--The court shall provide written notice 
to a State or political subdivision thereof subject to an order 
or settlement referred to in subsection (b) with respect to any 
finding required to be made by the court under subsection (a). 
Such notice shall be provided before the beginning of the next 
fiscal year of that State or political subdivision occurring 
after the order or settlement is issued.
  (f) Special Rules.--For purposes of this section--
          (1) the District of Columbia shall be considered to 
        be a State; and
          (2) any Act of Congress applicable exclusively to the 
        District of Columbia shall be considered to be a 
        statute of the District of Columbia.

Sec. 1370. Multiparty, multiforum jurisdiction

  (a) In General.--The district courts shall have original 
jurisdiction of any civil action involving minimal diversity 
between adverse parties that arises from a single accident, 
where at least 25 natural persons have either died or incurred 
injury in the accident at a discrete location and, in the case 
of injury, the injury has resulted in damages which exceed 
$50,000 per person, exclusive of interest and costs, if--
          (1) a defendant resides in a State and a substantial 
        part of the accident took place in another State or 
        other location, regardless of whether that defendant is 
        also a resident of the State where a substantial part 
        of the accident took place;
          (2) any two defendants reside in different States, 
        regardless of whether such defendants are also 
        residents of the same State or States; or
          (3) substantial parts of the accident took place in 
        different States.
  (b) Special Rules and Definitions.--For purposes of this 
section--
          (1) minimal diversity exists between adverse parties 
        if any party is a citizen of a State and any adverse 
        party is a citizen of another State, a citizen or 
        subject of a foreign state, or a foreign state as 
        defined in section 1603(a) of this title;
          (2) a corporation is deemed to be a citizen of any 
        State, and a citizen or subject of any foreign state, 
        in which it is incorporated or has its principal place 
        of business, and is deemed to be a resident of any 
        State in which it is incorporated or licensed to do 
        business or is doing business;
          (3) the term ``injury'' means--
                  (A) physical harm to a natural person; and
                  (B) physical damage to or destruction of 
                tangible property, but only if physical harm 
                described in subparagraph (A) exists;
          (4) the term ``accident'' means a sudden accident, or 
        a natural event culminating in an accident, that 
        results in death or injury incurred at a discrete 
        location by at least 25 natural persons; and
          (5) the term ``State'' includes the District of 
        Columbia, the Commonwealth of Puerto Rico, and any 
        territory or possession of the United States.
  (c) Intervening Parties.--In any action in a district court 
which is or could have been brought, in whole or in part, under 
this section, any person with a claim arising from the accident 
described in subsection (a) shall be permitted to intervene as 
a party plaintiff in the action, even if that person could not 
have brought an action in a district court as an original 
matter.
  (d) Notification of Judicial Panel on Multidistrict 
Litigation.--A district court in which an action under this 
section is pending shall promptly notify the judicial panel on 
multidistrict litigation of the pendency of the action.

CHAPTER 87--DISTRICT COURTS; VENUE

           *       *       *       *       *       *       *


Sec. 1391. Venue generally

  (a) * * *

           *       *       *       *       *       *       *

  (g) A civil action in which jurisdiction of the district 
court is based upon section 1370 of this title may be brought 
in any district in which any defendant resides or in which a 
substantial part of the accident giving rise to the action took 
place.

           *       *       *       *       *       *       *


Sec. 1407. Multidistrict litigation

  (a) * * *

           *       *       *       *       *       *       *

  (i)(1) In actions transferred under this section when 
jurisdiction is or could have been based, in whole or in part, 
on section 1370 of this title, the transferee district court 
may, notwithstanding any other provision of this section, 
retain actions so transferred for the determination of 
liability and punitive damages. An action retained for the 
determination of liability shall be remanded to the district 
court from which the action was transferred, or to the State 
court from which the action was removed, for the determination 
of damages, other than punitive damages, unless the court 
finds, for the convenience of parties and witnesses and in the 
interest of justice, that the action should be retained for the 
determination of damages.
  (2) Any remand under paragraph (1) shall not be effective 
until 60 days after the transferee court has issued an order 
determiningliability and has certified its intention to remand 
some or all of the transferred actions for the determination of 
damages. An appeal with respect to the liability determination and the 
choice of law determination of the transferee court may be taken during 
that 60-day period to the court of appeals with appellate jurisdiction 
over the transferee court. In the event a party files such an appeal, 
the remand shall not be effective until the appeal has been finally 
disposed of. Once the remand has become effective, the liability 
determination and the choice of law determination shall not be subject 
to further review by appeal or otherwise.
  (3) An appeal with respect to determination of punitive 
damages by the transferee court may be taken, during the 60-day 
period beginning on the date the order making the determination 
is issued, to the court of appeals with jurisdiction over the 
transferee court.
  (4) Any decision under this subsection concerning remand for 
the determination of damages shall not be reviewable by appeal 
or otherwise.
  (5) Nothing in this subsection shall restrict the authority 
of the transferee court to transfer or dismiss an action on the 
ground of inconvenient forum.

    CHAPTER 89--DISTRICT COURTS; REMOVAL OF CASES FROM STATE COURTS

Sec. 1441. Actions removable generally

  (a) * * *

           *       *       *       *       *       *       *

  (e)(1) Notwithstanding the provisions of subsection (b) of 
this section, a defendant in a civil action in a State court 
may remove the action to the district court of the United 
States for the district and division embracing the place where 
the action is pending if--
          (A) the action could have been brought in a United 
        States district court under section 1370 of this title, 
        or
          (B) the defendant is a party to an action which is or 
        could have been brought, in whole or in part, under 
        section 1370 in a United States district court and 
        arises from the same accident as the action in State 
        court, even if the action to be removed could not have 
        been brought in a district court as an original matter.
The removal of an action under this subsection shall be made in 
accordance with section 1446 of this title, except that a 
notice of removal may also be filed before trial of the action 
in State court within 30 days after the date on which the 
defendant first becomes a party to an action under section 1370 
in a United States district court that arises from the same 
accident as the action in State court, or at a later time with 
leave of the district court.
  (2) Whenever an action is removed under this subsection and 
the district court to which it is removed or transferred under 
section 1407(i) has made a liability determination requiring 
further proceedings as to damages, the district court shall 
remand the action to the State court from which it had been 
removed for the determination of damages, unless the court 
finds that, for the convenience of parties and witnesses and in 
the interest of justice, the action should be retained for the 
determination of damages.
  (3) Any remand under paragraph (2) shall not be effective 
until 60 days after the district court has issued an order 
determining liability and has certified its intention to remand 
the removed action for the determination of damages. An appeal 
with respect to the liability determination and the choice of 
law determination of the district court may be taken during 
that 60-day period to the court of appeals with appellate 
jurisdiction over the district court. In the event a party 
files such an appeal, the remand shall not be effective until 
the appeal has been finally disposed of. Once the remand has 
become effective, the liability determination and the choice of 
law determination shall not be subject to further review by 
appeal or otherwise.
  (4) Any decision under this subsection concerning remand for 
the determination of damages shall not be reviewable by appeal 
or otherwise.
  (5) An action removed under this subsection shall be deemed 
to be an action under section 1370 and an action in which 
jurisdiction is based on section 1368 of this title for 
purposes of this section and sections 1407, 1660, 1697, and 
1785 of this title.
  (6) Nothing in this subsection shall restrict the authority 
of the district court to transfer or dismiss an action on the 
ground of inconvenient forum.
  [(e) The court to which such civil action is removed] (f) The 
court to which a civil action is removed under this section is 
not precluded from hearing and determining any claim in such 
civil action because the State court from which such civil 
action is removed did not have jurisdiction over that claim.

           *       *       *       *       *       *       *


PART V--PROCEDURE

           *       *       *       *       *       *       *


                    CHAPTER 111--GENERAL PROVISIONS

Sec.
1651.  Writs.
     * * * * * * *
1660.  Choice of law in multiparty, multiforum actions.
     * * * * * * *

Sec. 1660. Choice of law in multiparty, multiforum actions

  (a) Factors.--In an action which is or could have been 
brought, in whole or in part, under section 1370 of this title, 
the district court in which the action is brought or to which 
it is removed shall determine the source of the applicable 
substantive law, except that if an action is transferred to 
another district court, the transferee court shall determine 
the source of the applicable substantive law. In making this 
determination, a district court shall not be bound by the 
choice of law rules of any State, and the factors that the 
court may consider in choosing the applicable law include--
          (1) the place of the injury;
          (2) the place of the conduct causing the injury;
          (3) the principal places of business or domiciles of 
        the parties;
          (4) the danger of creating unnecessary incentives for 
        forum shopping; and
          (5) whether the choice of law would be reasonably 
        foreseeable to the parties.
The factors set forth in paragraphs (1) through (5) shall be 
evaluated according to their relative importance with respect 
to the particular action. If good cause is shown in exceptional 
cases, including constitutional reasons, the court may allow 
the law of more than one State to be applied with respect to a 
party, claim, or other element of an action.
  (b) Order Designating Choice of Law.--The district court 
making the determination under subsection (a) shall enter an 
order designating the single jurisdiction whose substantive law 
is to be applied in all other actions under section 1370 
arising from the same accident as that giving rise to the 
action in which the determination is made. The substantive law 
of the designated jurisdiction shall be applied to the parties 
and claims in all such actions before the court, and to all 
other elements of each action, except where Federal law applies 
or the order specifically provides for the application of the 
law of another jurisdiction with respect to a party, claim, or 
other element of an action.
  (c) Continuation of Choice of Law After Remand.--In an action 
remanded to another district court or a State court under 
section 1407(i)(1) or 1441(e)(2) of this title, the district 
court's choice of law under subsection (b) shall continue to 
apply.

                          CHAPTER 113--PROCESS

Sec.
1691.  Seal and teste of process.
     * * * * * * *
1697.  Service in multiparty, multiforum actions.

           *       *       *       *       *       *       *


Sec. 1697. Service in multiparty, multiforum actions

  When the jurisdiction of the district court is based in whole 
or in part upon section 1370 of this title, process, other than 
subpoenas, may be served at any place within the United 
States,or anywhere outside the United States if otherwise permitted by 
law.

           *       *       *       *       *       *       *


                   CHAPTER 117--EVIDENCE; DEPOSITIONS

Sec.
1781.  Transmittal of letter rogatory or request.
     * * * * * * *
1785.  Subpoenas in multiparty, multiforum actions.
     * * * * * * *

Sec. 1785. Subpoenas in multiparty, multiforum actions

  When the jurisdiction of the district court is based in whole 
or in part upon section 1370 of this title, a subpoena for 
attendance at a hearing or trial may, if authorized by the 
court upon motion for good cause shown, and upon such terms and 
conditions as the court may impose, be served at any place 
within the United States, or anywhere outside the United States 
if otherwise permitted by law.

           *       *       *       *       *       *       *


PART VI--PARTICULAR PROCEEDINGS

           *       *       *       *       *       *       *


CHAPTER 153--HABEAS CORPUS

           *       *       *       *       *       *       *


Sec. 2241. Power to grant writ

  (a) * * *

           *       *       *       *       *       *       *

  (e) Applications for writs of habeas corpus received in or 
transferred to a district court shall be randomly assigned to 
the judges of that court.

           *       *       *       *       *       *       *

                              ----------                              


              SECTION 140 OF THE ACT OF DECEMBER 15, 1981

   Joint Resolution Making further continuing appropriations for the 
               fiscal year 1982, and for other purposes.

  [Sec. 140. Notwithstanding any other provision of law or of 
this joint resolution, none of the funds appropriated by this 
joint resolution or by any other Act shall be obligated or 
expended to increase, after the date of enactment of this joint 
resolution, any salary of any Federal judge or Justice of the 
Supreme Court, except as may be specifically authorized by Act 
of Congress hereafter enacted: Provided, That nothing in this 
limitation shall be construed to reduce any salary which may be 
in effect at the time of enactment of this joint resolution nor 
shall this limitation be construed in any manner to reduce the 
salary of any Federal judge or of any Justice of the Supreme 
Court.]
                              ----------                              


TITLE 5, UNITED STATES CODE

           *       *       *       *       *       *       *


PART III--EMPLOYEES

           *       *       *       *       *       *       *


Subpart D--Pay and Allowances

           *       *       *       *       *       *       *


CHAPTER 53--PAY RATES AND SYSTEMS

           *       *       *       *       *       *       *


SUBCHAPTER VII--MISCELLANEOUS PROVISIONS

           *       *       *       *       *       *       *


Sec. 5372. Administrative law judges

  [(a) For the purposes of this section, the term 
``administrative law judge'' means an administrative law judge 
appointed under section 3105.]
  (a) For the purposes of this section--
          (1) the term ``administrative law judge'' means an 
        administrative law judge appointed under section 3105; 
        and
          (2) the term ``the rate of basic pay for level IV of 
        the Executive Schedule'' is used as described in 
        subsection (c).

           *       *       *       *       *       *       *

  (c)(1) Any reference in this section to the rate of basic pay 
for level IV of the Executive Schedule shall be considered a 
reference to the greater of--
          (A) the rate of basic pay then currently in effect 
        under section 5315; or
          (B) the rate of basic pay in effect under section 
        5315 on the effective date of this subsection, as 
        adjusted under paragraph (2).
  (2) Each time that rates of pay for the General Schedule are 
adjusted, whether under section 5303 or another provision of 
law in lieu thereof, the rate under paragraph (1)(B) (as last 
adjusted under this paragraph) shall be adjusted by the same 
percentage, and as of the same date, as are the rates of pay 
for the General Schedule.
  [(c)] (d) The Office of Personnel Management shall prescribe 
regulations necessary to administer this section.

           *       *       *       *       *       *       *


Subpart F--Labor-Management and Employee Relations

           *       *       *       *       *       *       *


CHAPTER 77--APPEALS

           *       *       *       *       *       *       *


Sec. 7703. Judicial review of decisions of the Merit Systems Protection 
                    Board

  (a) * * *
  (b)(1) Except as provided in paragraph (2) of this 
subsection, a petition to review a final order or final 
decision of the Board shall be filed in the United States Court 
of Appeals for the Federal Circuit. Notwithstanding any other 
provision of law, any petition for review must be filed within 
[30] 60 days after the date the petitioner received notice of 
the final order or decision of the Board.

           *       *       *       *       *       *       *

  (d) The Director of the Office of Personnel Management may 
obtain review of any final order or decision of the Board by 
filing, within 60 days after the date the Director received 
notice of the final order or decision of the Board, a petition 
for judicial review in the United States Court of Appeals for 
the Federal Circuit if the Director determines, in his 
discretion, that the Board erred in interpreting a civil 
service law, rule, or regulation affecting personnel management 
and that the Board's decision will have a substantial impact on 
a civil service law, rule, regulation, or policy directive. If 
the Director did not intervene in a matter before the Board, 
the Director may not petition for review of a Board decision 
under this section unless the Director first petitions the 
Board for a reconsideration of its decision, and such petition 
is denied. In addition to the named respondent, the Board and 
all other parties to the proceedings before the Board shall 
have the right to appear in the proceeding before the Court of 
Appeals. The granting of the petition for judicial review shall 
be at the discretion of the Court of Appeals.

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    We strongly oppose the so-called ``Judicial Reform Act of 
1997,'' legislation put forth by the Republicans in an effort 
to stem a supposed tide of ``judicial activism.'' H.R. 1252 is 
a hodgepodge of ill-considered and largely unnecessary 
proposals that would degrade our judiciary and significantly 
increase unnecessary costs and delays in litigation.
    H.R. 1252 is opposed by the Department of Justice, and an 
Administration veto is likely. In addition, H.R. 1252 is 
opposed by a wide and diverse coalition of groups that are 
concerned about the integrity of our civil and criminal justice 
systems. This includes: (1) legal and judicial groups, such as 
the American Bar Association, the Judicial Conference of the 
United States, and the Alliance for Justice; (2) civil rights 
groups such as the Leadership Conference on Civil Rights, the 
NAACP, and the Mexican American Legal Defense and Education 
Fund; (3) environmental groups, such as the Sierra Club and 
Earth Justice; (4) disabilities groups such as the Bazelon 
Center for Mental Health Law and the National Association of 
Protection and Advocacy Systems; (5) labor groups such as the 
Service Employees International Union and Coalition of Labor 
Union Women; and (6) women's groups such as the National 
Women's Law Center and National Partnership for Women and 
Families.
    If there is any single idea in the Constitution that has 
separated our experiment in democracy from all other nations, 
it is the concept of an independent judiciary. It is the 
judiciary, more than any other branch of our government, that 
has served as the protector of our precious civil rights and 
civil liberties over the years. We agree with Alexander 
Hamilton that the ``independent spirit in the judges'' enables 
them to stand against the ``ill humors of passing political 
majorities.'' \1\ And we support the timeless words of the 
Massachusetts Constitution that ``[i]t is the right of every 
citizen to be tried by judges as free, impartial and 
independent as the lot of humanity will admit.'' \2\
---------------------------------------------------------------------------
    \1\ ``The Federalists Papers, No. 78'' (1789).
    \2\ Mass. Const. art. 29, Declaration of Rights.
---------------------------------------------------------------------------
    Recent efforts by Republicans to discredit our judiciary by 
painting it with the broad brush of ``judicial activism'' are 
both disingenuous and demeaning. Once we parse through the 
thick rhetorical fog surrounding this issue, it becomes clear 
that Republicans real gripe is with the results, not the 
activist nature of judicial decisions. As Roger Pilon, a Cato 
Institute Director, acknowledged, ``examples of `judicial 
activism' that are cited, turn out, when examined more closely, 
not to be cases in which the judge failed to apply the law but 
applied the law differently, or applied different law, to reach 
a result different than the result thought correct by the 
person charging activism.'' \3\
---------------------------------------------------------------------------
    \3\ Hearing on H.R. 1252, The Judicial Reform Act of 1997 and 
Federal Judicial Term Limits Before the Subcomm. on Courts and 
Intellectual Property of the House Comm. On the Judiciary, 105th Cong. 
(1997) [hereinafter, 1997 Subcommittee Hearings] (written statement of 
Roger Pilon, Director, Center for Constitutional Studies, Cato 
Institute).
---------------------------------------------------------------------------
    Republican ``conservatives'' are prone to assert that 
Supreme Court decisions protecting a woman's right to choose 
(Roe v. Wade \4\) and a child's right to attend school without 
being subject to compulsory prayer (Engel v. Vitale \5\) 
constitute judicial activism. But decisions which limit 
Congress' ability to provide affirmative action as a remedy to 
respond to racial discrimination (Adarand v. Pena \6\), Ban 
guns in schools (U.S. v. Lopez \7\), require background checks 
before felons can purchase handguns (Printz v. U.S.\8\), and 
limit campaign expenditures (Buckley v. Valeo \9\) are heralded 
as landmark examples of the Court restraining undue legislative 
power.
---------------------------------------------------------------------------
    \4\ 410 U.S. 113 (1973).
    \5\ 370 U.S. 421 (1962).
    \6\ 515 U.S. 200 (1995).
    \7\ 514 U.S. 549 (1995).
    \8\    U.S.   , 117 S.Ct. 2365 (1997).
    \9\ 424 U.S. 1 (1976).
---------------------------------------------------------------------------
    Similarly, when a Bush-appointed district judge enjoins an 
Oregon ballot initiative allowing for assisted suicide,\10\ or 
a Reagan-appointed district judge dismisses a contempt order 
for violating the Freedom of Access to Clinic Entrances Act 
because the defendants lack the requisite ``willfulness'' on 
account of their religious convictions,\11\ we hear scant 
criticism from the right wing. But when federal courts in 
California have the temerity to suggest that referenda which 
deny alien children the right to an education \12\ or prevent 
minorities subject to discrimination from benefitting from 
action,\13\ we hear storms of protest from the same 
conservatives.
---------------------------------------------------------------------------
    \10\ Lee v. Oregon, Civil No. 94-6467-HO, 2 (D.Or. 1994).
    \11\ U.S. v. Moscinski, 952 F.Supp. 167, 170 (S.D.N.Y. 1997).
    \12\ League of United Latin Americans Citizens v. Wilson, 908 
F.Supp 755 (C.D. CA, 1995), remanded 131 F.3d 1297 (1997), aff'd 1998 
U.S. Dist. Lexis 3418, (March 13, 1998) (holding California Proposition 
187 unconstitutional).
    \13\ Coalition for Economic Equity v. Wilson, 946 F.Supp. 1480, 
rev'd 122 F.3d 718 (1997) (holding California Proposition 209).
---------------------------------------------------------------------------
    The truth of the matter is that Republican-appointed judges 
are at least as likely as Democratic judges to find that 
particular state or federal actions violate the Constitution. 
This was confirmed by a recent study by the Institute for 
Justice which found that President Clinton's Supreme Court 
Justices (Ginsburg and Breyer) are less likely to strike down 
laws on account of economic and civil libertarian concerns than 
any of their Republican-appointed colleagues.\14\ Indeed we 
find that only two Justices voted to invalidate all seven acts 
of Congress considered by the Supreme Court during the 1996-97 
term--Justices Scalia and Thomas, widely considered to be the 
most conservative jurists on the Supreme Court.
---------------------------------------------------------------------------
    \14\ Clint Block and Scott G. Bullock, ``State of the Supreme 
Court,'' Institute for Justice 1997.
---------------------------------------------------------------------------
    The only thing more counterproductive than the phony debate 
over judicial activism are proposed ``solutions'' being floated 
by the Republican leadership. Efforts to impeach federal judges 
who issue unpopular decisions \15\ and limit lifetime judicial 
tenure \16\ would shred any semblance of separation of powers 
envisioned by the founding fathers. When Speaker Newt Gingrich 
(R-GA) states that judges who write opinions he does not agree 
with are ``petty dictators'' imposing ``dangerous and wrong'' 
\17\ decisions and requests that the Judiciary Committee 
conduct hearings on ``judicial activism'' \18\ in his opening 
speech of the 105th Congress, he initiated a dangerous new line 
of attack on federal judges. This was confirmed when Republican 
Majority Leader Tom Delay (R-TX) threatened articles of 
impeachment on several federal judges \19\ and declared ``the 
Judges need to be intimated'' and ``we're going to go after 
[judges who don't behave] in a big way.'' \20\ The irony of all 
of this judicial bashing is that Republicans are criticizing an 
institution--the judiciary--whose public confidence is nearly 
three times greater than Congress itself.\21\
---------------------------------------------------------------------------
    \15\ See Associated Press, ``The Bar Urges Protection of Judges' 
Decisions,'' N.Y. Times, April 7, 1997, at A11.
    \16\ See S.J. Res. 26, 105th Cong. (1997) (constitutional amendment 
limiting the tenure of all federal judges to ten years); H.J. Res. 63, 
105th Cong. (1997) (constitutional amendment limiting the tenure of 
federal judges to twelve years); and H.J. Res. 74, 105th Cong. (1997) 
(constitutional amendment limiting the tenure of federal judges to 
twelve years).
    \17\ 143 Cong. Rec. H1023, H1028 (March 17, 1997) (statement of 
Speaker Gingrich).
    \18\ 143 Cong. Rec. H2 (January 7, 1997) (statement of Speaker 
Gingrich).
    \19\ Supra note 15.
    \20\ Joan Biskupic, ``Hill Republicans Target Judicial Activism; 
Conservatives Block Nominees, Threaten Impeachment and Term Limits,''W. 
Post, September 14, 1997, at A1.
    \21\ The Harris Poll, No. 7, Louis Harris and Associates, Inc., 
February 10, 1997.
---------------------------------------------------------------------------
    The actual provisions of H.R. 1252--though scaled back from 
the dangerous rhetoric and proposals initially floated by the 
Republican leadership--will do far more to undermine the 
judiciary's integrity and efficiency than enhance its 
accountability. While there are a few provisions in H.R. 1252 
which some of us could support in other contexts--such as 
efforts to allow increased use of courtroom cameras where 
permitted by the court (Sec. 8) and provide federal judges with 
cost of living allowances which are not tied to Congressional 
pay raises (Sec. 9)--the potential merits of these provisions 
are far outweighed by the legislation's other far more 
problematic sections. These include:
    A. Peremptory Judicial Challenges (Sec. 6)--Granting the 
parties to federal civil actions the right to peremptorily 
challenge a judge's authority and seek reassignment to another 
judge to a slap in the face of every federal judge in this 
country. In addition to creating new opportunities for judge 
shopping and gamesmanship, section 6 will impose appreciable 
new costs on the judiciary (particularly in mass tort cases). 
It will also permit prejudicial challenges based on a judge's 
race, gender, or other immutable characteristic.
    B. Limiting Judicial Discretion Concerning Tax Revenues 
(Sec. 5)--Limiting the ability of the federal courts to enter 
orders relative to taxes is a classic ``solution in search of a 
problem.'' While there was a single isolated case of a district 
court trying to increase taxes to remedy an illegal segregation 
case several years ago,\22\ the Supreme Court easily found the 
lower court had exceeded its authority.\23\ In truth, it is 
Congress which has raised the specter of judicially imposed 
taxes, by pushing for a balanced budget amendment, thereby 
allowing for open-ended court authority to balance the budget 
when the legislature is incapable of doing so. The real problem 
with section 5 is that by applying to court orders which may 
merely have the effect of impacting governmental revenues, 
rather than orders which expressly direct tax increases, the 
bill could undermine remedial powers relating to a broad range 
of laws, including statutes concerning civil rights, the 
environment and disabilities, and decimate court authority to 
properly interpret and apply the Constitution.
---------------------------------------------------------------------------
    \22\ Missouri v. Jenkins, 672 F. Supp 400 (W.D. Mo. 1987), rev'd, 
515 U.S. 70 (1995).
    \23\ Missouri v. Jenkins, 515 U.S. 70 (1995).
---------------------------------------------------------------------------
    C. Three Judge Panels (Sec. 2)--Requiring special three-
judge panels to hear cases concerning the constitutionality of 
state referenda will diminish courts ability to make well 
reasoned judgment and threaten to tie the legal process up in 
knots. This is why Congress--on a bipartisan and consensus 
basis--repealed nearly all of the three judge panel provisions 
in1976.\24\
---------------------------------------------------------------------------
    \24\ See infra note 54.
---------------------------------------------------------------------------
    D. Judicial Misconduct (Sec. 4)--Proposals to remove the 
evaluation of judicial misconduct complaints fly in the face of 
years of study and validation of the current legal response 
tothe sensitive and constitutionally difficult problem of judicial 
discipline. There has been no showing of need to justify this overhaul, 
which would be both cumbersome and expensive.
    All of the above described proposals would significantly 
increase costs and delays in our judicial system--the precise 
opposite of the drafters' intent. At the same time the Majority 
is so casually imposing these new burdens on our judiciary, 
they have cast a blind eye to the most serious resource issue 
facing the federal bench, the Senate Republicans' failure to 
fill the record number of vacancies which exist in the 
judiciary.\25\ For these and the other reasons set forth 
herein, we dissent from H.R. 1252.
---------------------------------------------------------------------------
    \25\ Obstructionist tactics by Senate Republicans have created a 
nearly 10% vacancy rate and led even Chief Justice William Rehnquist to 
demand that the Senate provide for speedier up or down votes on 
judicial appointments. At the markup, Mr. Delahunt offered an amendment 
which would have required the GAO to study the impact of Senate delays 
in judicial confirmations on the federal judiciary which was rejected 
by an 11 to 13 vote. Markup of H.R. 1252 by the House Comm. on the 
Judiciary 58-62 (March 10, 1998).
---------------------------------------------------------------------------

i. peremptory challenges of federal judges will undermine confidence in 
                             the judiciary

    Perhaps the most objectionable section included in H.R. 
1252 is section 6's peremptory challenge provision allowing 
parties on either side of a civil case to remove the assigned 
judge without stating any reason or cause. We oppose this 
section for a number of reasons including: (1) its negative 
impact on public confidence in the judiciary; (2) its adverse 
impact on litigation costs and delays and its corresponding 
bias in favor of wealthier parties; and (3) the likelihood it 
will result in increased judicial challenges based on racial, 
sexual, and other biases. Section 6 also is subject to a 
massive loophole allowing peremptory challenges to be made 
after a judge has issued major substantive and procedural 
orders.
    Current law already provides a clear and coherent statutory 
regime for removing judges in appropriate circumstances: 28 
U.S.C. Sec. 144 allows for disqualification of a judge because 
of his or her own bias or prejudice; 28 U.S.C. Sec. 372(c) 
establishes a complaint procedure for parties alleging judicial 
misconduct; and 28 U.S.C. Sec. 455 requires judges to 
disqualify themselves in cases where their impartiality might 
reasonably be questioned. However, proposed section 6 goes well 
beyond removing judges for cause, and allows parties to remove 
judges for no stated reason whatsoever. As such, it calls into 
question the integrity of every judge serving in the federal 
judiciary.
    As the Judicial Conference testified, ``[s]ection 6 would 
foster legal manipulation and maneuvering, which is contrary to 
the fair and impartial administration of justice. It would also 
have a negative impact on public confidence in the judicial 
system as a whole, by exacerbating the belief that judges are 
not to be trusted and that the system is irrational.'' \26\ 
These concerns were reiterated by Frederick B. Lacey, a 
respected former U.S. Attorney and Federal District judge who 
stated, ``[e]very trial lawyer wants to judge shop. The 
[peremptory] strike promotes this practice, and I think it 
discredits the judicial system [and] poses a threat to proper 
and fair case management.'' \27\
---------------------------------------------------------------------------
    \26\ 1997 Subcommittee Hearings supra note 3 (written statement of 
Chief Circuit Judge Henry A. Politz, U.S. Court of Appeals for the 
Fifth Circuit, and Judge Ann Claire Williams, Northern District of 
Illinois, U.S. Judicial Conference 20).
    \27\ 1997 Subcommittee Hearings supra note 3 (written statement of 
Judge Frederick B. Lacy).
---------------------------------------------------------------------------
    Peremptory judicial challenges will lead to significant 
added costs and delays in our civil justice system. It is 
significant to note that a recent RAND Corporation study 
completed at Congress' direction found that the most 
significant factor in reducing litigation costs stems from pre-
trial delays and failure by judges to assert early control over 
a case.\28\ These problems would be significantly aggravated 
under section 6. By establishing a right to replace a judge in 
the early stages of a case, the legislation discourages judges 
from devoting significant time and energy at the front end of a 
case. Moreover, ambiguities inherent in section 6--such as the 
determination of which ``side'' a party belongs to (a factual 
finding to be made by the chief judge of the circuit),\29\ 
determining the meaning of ``substantial issue'' \30\ and 
``notice of the original assignment of the case,'' \31\ and the 
uncertainty of the provision's impact on prisoner litigation 
and cases before federal magistrates \32\--are likely to lead 
to increased litigation and costs.
---------------------------------------------------------------------------
    \28\ 1997 Subcommittee Hearings, supra note 3 (written statement of 
Chief Circuit Judge Politz and Judge Williams 22).
    \29\ Sec. 6, Proposed 28 U.S.C. Sec. 464(a)(2).
    \30\ Sec. 6, Proposed 28 U.S.C. Sec. 464(b)(2)(C).
    \31\ Sec. 6, Proposed 28 U.S.C. Sec. 464(b)(1).
    \32\ Sec. 6, Proposed 28 U.S.C. Sec. 464(d)(1).
---------------------------------------------------------------------------
    The potential for delay and gaming of the system in mass 
tort cases involving complicated and lengthy pretrial 
proceedings is particularly acute. In such cases it is only 
after the pretrial period that the matter is formally 
transferred back to its original district for trial, typically 
to the judge who supervised the pre-trial work. Since section 6 
only applies to ``case[s] to be tried'' \33\ it would permit a 
reassignment motion to be filed with respect to a judge after 
he or she has become intimately familiar with the case. Judge 
Paul Niemeyer, writing on behalf of the Judicial Conference, 
has stated that under these circumstances ``a preemptive 
challenge would be devastating. All the expertise that the 
judge acquired regarding the cases, developed over many months, 
would be lost. New judges would have to educate themselves 
regarding the cases, with attendant delay and expense.'' \34\ 
The same problem presents itself with respect to class 
actions--a judge could be disqualified after going to all the 
time and effort to certify a class prior to the actual trial.
---------------------------------------------------------------------------
    \33\ Sec. 6, Proposed 28 U.S.C. Sec. 464(a)(1).
    \34\ Letter from Judge Paul V. Niemeyer, Committee on Rules of 
Practice and Procedure of the Judicial Conference of the United States, 
to Barney Frank, Ranking Member, Subcommittee on Courts and 
Intellectual Property, U.S. House of Representatives, February 27, 
1998.
---------------------------------------------------------------------------
    Moreover, in mass tort cases section 6 would work to the 
pronounced advantage of wealthy corporate defendants, since the 
right to seek reassignment only applies where all the parties 
on a side concur in the motion. Judge Niemeyer has written that 
``[s]ection 6 appears to unfairly favor the side of a case with 
fewest parties, because `all the parties on one side' must 
bring the motion to reassign the case. In most mass tort cases, 
where there are numerous plaintiffs but only a single or small 
number of defendants, the defendants would have a distinct 
advantage in obtaining the consents necessary to transfer the 
case to a different judge.'' The unfairness could be even worse 
with respect to class actions--if ``parties'' is deemed to 
include all class members (as opposed to just named class 
representatives), plaintiffs' attorneys would face the 
impossible task of obtaining consents for thousands, if not 
millions, of class members.
    Another category of concern that we have with section 6 
stems from the opportunity for discriminatory use of peremptory 
challenges. Instead of limiting judicial challenges to cases of 
actual conflict or bias, section 6 does not require the 
exercising party to make any showing or even any allegation of 
bias. According to the Alliance for Justice, ``the [strike] 
decision is more likely to be based on a judge's race, gender 
or experience before taking the bench, instead of a 
demonstrated bias for or against a particular party.'' \35\ 
These concerns were echoed in a recent Washington Post Op-
Ed,\36\ when the Honorable J. Harvie Wilkerson, Chief Judge of 
the Fourth Circuit complained that under H.R. 1252 judges could 
easily be removed for racial reasons, creating a system worse 
than the systemic racially motivated juror peremptory strikes 
previously dismantled in Batson v. Kentucky.\37\
---------------------------------------------------------------------------
    \35\ Memorandum from the Alliance for Justice, the Alliance for 
Justice Opposes H.R. 1252, the ``Judicial Reform Act'' 5 (1998).
    \36\ Judge J. Harvie Wilkerson, ``To Strike a Judge,'' W. Post, 
June 13, 1997, at A29.
    \37\ 471 U.S. 1052 (1985).
---------------------------------------------------------------------------
    Proponents' assertions that peremptory challenges should be 
incorporated into the federal judicial system based on 
supposedly favorable results in the states do not survive 
scrutiny. While seventeen states have reassignment provisions, 
only ten states currently provide for the moreradical form of 
absolute peremptory challenge included in H.R. 1252,\38\ and almost all 
of these laws predate today's concerns for judicial management and 
efficiency.\39\ Moreover, the procedure in these states is not widely 
supported. For example, a former Wisconsin State Supreme Court Justice 
described his state peremptory challenge provision as ``a dilatory 
tactic which causes a great deal of expense and inconvenience to 
litigants, to witnesses, and to the taxpayers who foot the bill for 
court administration.'' \40\
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    \38\ The other states allow for a ``modified'' peremptory 
challenge, by requiring an affidavit that the motion to reassign was 
made in good faith and/or an allegation that the movant believes it 
would be impossible to receive a fair trial before the assigned judge. 
See 1997 Subcommittee Hearings supra note 3 (written statement of Chief 
Circuit Judge Politz and Judge Williams 26).
    \39\ 1997 Subcommittee Hearings, supra note 3 (written statement of 
Chief Circuit Judge Politz and Judge Williams 26).
    \40\ 1997 Subcommittee Hearings, supra note 3 (written statement of 
Chief Circuit Judge Politz and Judge Williams 26).
---------------------------------------------------------------------------
    California's modified peremptory challenge provision has 
also caused ``serious case management problems'' according to 
the Judicial Conference.\41\ During the Committee markup, Mr. 
Rogan (R-CA), a former prosecutor, described his adverse 
experiences under California's peremptory challenge procedure. 
Mr. Rogan explained that California judges are afraid that a 
decision out of step with similar decisions of other judges 
might cause them to be permanently challenged by either the 
plaintiffs' or defendants' bars in civil cases, or by the 
prosecution or defense bars in criminal cases. Accordingly, the 
law has the effect of forcing state judges to meet to ensure 
that their sentences for particular offenses in criminal cases 
and their judgments in civil cases are in line with one 
another.\42\ (A bipartisan amendment offered by Mr. Rogan and 
Mr. Frank to strike the entire peremptory challenge provision 
was defeated by an 11-13 vote.)
---------------------------------------------------------------------------
    \41\ 1997 Subcommittee Hearings, supra note 3 (written statement of 
Chief Circuit Judge Politz and Judge Williams 26).
    \42\ Markup of H.R. 1252 by the House Comm. on the Judiciary 76, 
(March 10, 1998) (statement of Mr. James E. Rogan, R-CA).
---------------------------------------------------------------------------
    The fact that section 6 is generally written to apply to 
motions brought within 20 days of the original assignment of 
the case does not provide a significant limitation on the 
opportunity for abuse and gamesmanship. This is because the 20-
day limitation is subject to gaping loopholes that would allow 
challenges to be made at later stages of the proceeding. For 
example, under section 6 a new opportunity to reassign a case 
arises whenever: (1) a new party is added (by intervention, 
interpleader, etc.); (2) a supplemental, amended, or third 
party complaint is served; or (3) a party enters a belated 
appearance.\43\ Such occurrences are fairly common, 
particularly in complex trials, and can easily be manipulated 
by a party desirous of acquiring a new judge after the party 
has lost important substantive rulings in a case.
---------------------------------------------------------------------------
    \43\ Sec. 6, Proposed 28 U.S.C. Sec. 464(b)(2).
---------------------------------------------------------------------------
    The fact that the peremptory challenge provision was 
modified by amendment to only apply to the 21 largest judicial 
districts also does not mitigate section 6's infirmities. The 
Department of Justice has noted that ``two-thirds of the 21 
largest districts have small divisions which may have only a 
few judges, thus there still exists a real potential for judge 
shopping and significant forum shopping, as well as increased 
costs and delay due to relocation.'' \44\ Paradoxically, the 21 
district limitation could create greater forum shopping 
opportunities, because parties will have an incentive to file 
suits in these districts in order to take advantage of the 
peremptory challenge procedures. Again, such manipulative 
practices would be most affordable for wealthy litigants.\45\
---------------------------------------------------------------------------
    \44\ Letter from Andrews Fois, Assistant Attorney General, U.S. 
Department of Justice, to Henry Hyde, Chairman, Committee on the 
Judiciary, U.S. House of Representatives 3 (March 10, 1998).
    \45\ Arguing the principle that if the provision is the right thing 
to do, it should be available to litigants everywhere. Mr. Watt offered 
an amendment extending the project to all judicial districts. Mr. Watt 
pointed out that allowing a judicial peremptory challenge in only 21 
districts might even be unconstitutional, creating an inequality among 
litigants nationwide. The amendment was defeated by a 6-12 vote. Markup 
H.R. 1252 by the House Comm. on the Judiciary 30-35 (March 24, 1998).
---------------------------------------------------------------------------

ii. limiting judicial discretion concerning tax revenues is unnecessary 
                          and unconstitutional

    Section 5 prohibits district courts from entering any order 
or approving any settlement that ``requires'' any ``state or 
political subdivision to impose, increase, levy or assess any 
tax'' unless the court finds by clear and convincing evidence 
that six enumerated conditions exist.\46\ Taxes that meet the 
six conditions automatically end within one year, and no tax 
can be imposed if it contravenes state or federal law.
---------------------------------------------------------------------------
    \46\ When granting any relief against a government entity, a court 
would be required to find by clear and convincing evidence that; a) 
there are no other means available to remedy a violation of a 
Constitutional right; b) the proposed remedy is narrowly tailored to 
remedy a specific deprivation; c) the tax will not exacerbate the 
deprivation intended to be remedied; d) plans submitted by the state 
and local authorities are insufficient; e) the interests of State and 
local authorities in managing its own affairs is not usurped by the 
levy; and f) the levy will not result in the loss of depreciation of 
affected taxpayers. Sec. 5(a), Proposed 28 U.S.C. Sec. 1369(a)(1).
    In the unlikely event that the six conditions can be met and the 
court order is permitted, the automatic annual termination of the court 
order would create an undue and costly burden for the parties and the 
court. This would require parties to appear repeatedly before the court 
to provide information on the court order, despite the fact that there 
may be no change in circumstances necessitating any new court review.
---------------------------------------------------------------------------
    This provision is highly problematic for a number of 
reasons. First it is unnecessary. There is simply no outbreak 
of judicial taxation cases in this country. Outside the context 
of a few nineteenth-century municipal bond cases, the federal 
courts have not directly imposed a tax except for a single 
school desegregation case--Missouri v. Jenkins.\47\ And even 
this isolated case was overturned by the Supreme Court in 1995, 
when the Justices unanimously rejected the concept of direct 
federal court imposition of taxes.\48\
---------------------------------------------------------------------------
    \47\ 672 F. Supp. 400 (W.D. Mo. 1987) (ordering that Kansas City, 
Missouri school district increase property tax levies for one year in 
order to comply with court's desegregation order.) See also Memorandum 
from the Alliance for Justice, supra note 35, 1 (March 26, 1998).
    \48\ Missouri v. Jenkins, 515 U.S. 70 (1995).
---------------------------------------------------------------------------
    Even more importantly, as section 5 is currently written, 
it could apply to virtually any order or settlement requiring 
governmental monetary expenditures to conform their 
institutions to constitutional or federal legal requirements, 
even if the order or settlement does not explicitly impose such 
a tax.\49\ It is for this reason that the Judicial Conference 
has written that section 5 ``may undermine the very foundation 
of judicial power.'' \50\ For example, under section 5 Brown v. 
Board of Education \51\ could have been vitiated because it 
necessitated expenditures by local governments to desegregate 
their local schools. The language could also apply to preempt 
suits under the Americans with Disabilities Act seeking access 
to government facilities which require funds for renovation, or 
an environmental action requiring clean-up of a toxic waste 
dump. Moreover, since section 5 applies to pending cases, 
orders, and settlements, it could easily undermine numerous 
long standing desegregation and environmental orders. It is for 
this reason that a broad range of civil rights, environmental, 
and disabilities groups oppose section 5.
---------------------------------------------------------------------------
    \49\ At committee, Mr. Delahunt offered an amendment which would 
have narrowed the bill to court orders which ``expressly direct'' a tax 
increase, rather than orders which may indirectly necessitate a revenue 
increase (as the subcommittee-reported bill had provided). His 
amendment was rejected by a 10 to 12 vote. Markup H.R. 1252 by the 
House Comm. on the Judiciary 16-20 (March 10, 1998).
    \50\ 1997 Subcommittee Hearings, supra note 3 (written statement of 
Chief Circuit Judge Politz and Judge Williams 19).
    \51\ 347 U.S. 483 (1954). In the wake of Brown, a number of school 
districts refused to levy taxes to fund their school systems, and court 
intervention was necessary to uphold the Constitution. See Griffin v. 
Prince Edward's County School Bd., 377 U.S. 218 (1964). In the wake of 
Brown, 81 Members of the House signed a resolution condemning as part 
of a supposed ``trend in the federal judiciary to legislate, in 
derogation of the authority of Congress, and to encroach upon the 
reserved rights of the people.'' 1997 Subcommittee Hearings, supra note 
3 (written statement of Wade Henderson, Executive Director, Leadership 
Conference on Civil Rights, 4).
---------------------------------------------------------------------------
    Another serious flaw in section five is that it grants 
standing to challenge a court order to ``aggrieved 
corporations'' as well as individuals. This grant is written so 
broadly that foreign corporations who are not present in the 
jurisdiction, but whose tax liability would be ``directly 
affected'' \52\ by the imposition are given standing to sue. It 
is one thing to give standing to a company that has a real 
stake in the life of a community and must live with the social 
and political consequences if a court order is overturned, but 
it is quite another to confer standing on a foreign entity that 
happens to do business here and whose sole interest in American 
society is in maximizing its profits. Unfortunately, an 
amendment offered by Mr. Delahunt to exclude such foreign 
corporations from the scope of the section were rejected by the 
Committee by a 10 to 12 vote.
---------------------------------------------------------------------------
    \52\ Sec. 5(a), Proposed 28 U.S.C. Sec. 1369(a)(5)(A).
---------------------------------------------------------------------------

   iii. three-judge panels will diminish courts ability to make well 
                 reasoned and efficient legal judgments

    Section 2 provides for a three-judge district court 
procedure in cases challenging the constitutionality of state 
laws, with a direct appeal to the Supreme Court. We oppose this 
section because of the new and unnecessary costs and delays it 
will impose on the federal judiciary. At every step of the 
process, the three-judge court requirement is burdensome on the 
federal judiciary, and the burden is substantial even if the 
number of cases falling within the ambit of the requirement is 
small. We do not have to surmise that this is so; when a 
substantially similar statute was repealed in 1976,\53\ the 
repeal received universal support, and the three-judge panel 
provision was described as ``the single worst feature in the 
Federal judicial system as we have it today.'' \54\
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    \53\ Former 28 U.S.C. Sec. 2281, repealed by Pub L. No. 94-381, 
Sec. 1, 90 Stat. 1119. The primary difference between H.R. 1252 and 
Sec. 2281 is that the former applies only to State law adopted by 
referendum.
    \54\ S. Rep. No. 204, 94th Cong., 1st Sess. 2.
---------------------------------------------------------------------------
    It is also spurious to point to district court decisions 
holding portions of California have to travel great distances 
to convene the three-judge panel, to the substantial detriment 
of their existing caseloads. This Committee knows all too well 
that the federal judiciary has limited resources and an 
overburdened docket; we should not blithely require the 
judiciary to triple the time it must devote to a single case 
without evidence that an improvement worthy of that added 
investment would be forthcoming.
    Proponents of the three-judge panel provision argue that 
very few cases would be implicated by its provisions, and the 
burden would therefore be minimal. This argument is wrong for 
several reasons. First, no reliable evidence was introduced 
into the record to demonstrate that the number of cases would 
be small.\55\ Even if the number is small, the burden is high. 
As Chief Judge Harry T. Edwards of the D.C. Circuit Court of 
Appeals testified in 1995, even ``a relatively insignificant 
number [of three-judge panel cases constitutes] a terribly 
burdensome process when we're asked to engage in it.'' \56\ 
Finally, because the referendum process does not exist in 
numerous states, and its use is more heavily concentrated in 
others (e.g., California), the burden imposed by H.R. 1252 
would not be evenly distributed among the circuits.
---------------------------------------------------------------------------
    \55\ Proponents of the legislation argued that only ten cases in 
the last decade would have come within the ambit of the three-judge 
panel provision. The source of this information, apparently, was a 
quick keyword computer search performed by a Library of Congress 
employee and reported by telephone. No truly reliable research was 
conducted. Our own records easily contradict this conclusion as ten 
referenda from California alone have been challenged in federal courts 
since 1988. The referenda are Propositions 65 (consumer protection/
warning labels), 73 (campaign finance reform), 103 (insurance reform), 
115 (reciprocal discovery in criminal cases), 140 (term limits), 187 
(curtailing benefits to immigrants), 198 (open primary), 208 (campaign 
finance reform), and 209 (banning affirmative action by state 
agencies).
    \56\ Hearing on H.R. 1170 Before the Subcomm. on Courts and 
Intellectual Property Comm. on Judiciary, 104th, Cong. (April 6, 1995) 
(statement of Harry T. Edwards, Chief Circult Judge, U.S. Court of 
Appeals for D.C.).
    Judge J. Skelly Wright, testifying in 1975, emphasized ``the 
problem of ruling on evidence as the swift-moving events of the trial 
take place. Three judges cannot act with the same incisiveness as the 
single judge in making trial rulings as necessary.'' Hearings before 
the Subcommittee on Courts, Civil Liberties, and the Administration of 
Justice 94th Cong. (June 20, and July 19, 1975) (statement of Judge J. 
Skelly Wright).
---------------------------------------------------------------------------
    Fact-finding is a trial court function particularly 
difficult for a three-judge panel, and it is clear that many 
proceedings under section 2 will involve substantial fact-
finding. As Judge Edwards noted, ``determining the likelihood 
of irreparable harm in the weighing of probable evidence in 
support of parties' arguments on the merits are fact-finding 
matters ill-suited for initial decision by multi-judge 
panels.'' \57\ A burden is also imposed on the Supreme Court 
since it would be required to dispose of a case on the bare-
bones record developed in an injunctive suit in the district 
court, without intermediate consideration by a court of 
appeals.\58\
---------------------------------------------------------------------------
    \57\ Hearing on H.R. 1170, id. (statement of Harry T. Edwards, 
Chief Circult Judge, U.S. Court of Appeals for D.C.)
    \58\ The Alliance for Justice explained, ``[u]nder H.R. 1252, 
three-judge court cases would come to the Supreme Court without the 
filtering of facts and contentions normally applied by the courts of 
appeals. Those courts winnow the record, narrow the issues, and sharpen 
arguments: without the layer of review, the Supreme Court will be 
forced to decide cases on records that are diffuse and imprecise. 
Moreover, for laws passed by the legislature, a legislative record has 
been developed. This is not true for those laws adopted by referendum, 
thus there would be even less material for the Supreme Court to rely on 
these situations.'' Alliance for Justice, supra note 35, 2. See also, 
Fois, supra, note 44, 2 (the three-judge panel would provide ``for a 
process that is cumbersome, confusing, and inefficient. * * *'').
    An additional complication under the legislation is that in cases 
where preliminary injunctive relief is denied, which include claims for 
a permanent injunction and damages, the latter two claims could be 
tried before a different set of judges with different procedures for 
appeal, since section 2 does not apply to temporary restraining orders. 
This is an inefficient and non-sensical result.
---------------------------------------------------------------------------
    One of the principal arguments advanced by the proponents 
of section 2 is that it will prevent forum-shopping by 
plaintiffs who, it is said, may currently file their cases in 
the court most likely to favor their position. This argument 
ignores the fact that all federal districts have rules that 
require the random assignment of cases. Indeed, in the 
successful legal challenge to California proposition 187 that 
originally motivated this proposal, the case was filed in the 
Central District of California, where it was randomly assigned 
to one of 25 district court and 7 senior judges.\59\ It is also 
spurious to point to district court decisions holding portions 
of California Proposition 187 and 209 as unconstitutional as 
justifying this intrusive and expensive proposal. The drafters 
of proposition 187 recognized that state efforts to deny alien 
children public education was constitutionally problematic, and 
drafted the initiative in a specific attempt to provoke a 
constitutional challenge and overturn Plyler v. Doe.\60\ As for 
proposition 209, while this initiative banning state 
affirmative action was struck down by the district court, the 
decision was quickly overturned by the Ninth Circuit.\61\ A 
three-judge panel would have likely only delayed a decision on 
the merits.
---------------------------------------------------------------------------
    \59\ If anything, H.R. 1252 itself provides an opportunity for 
forum shopping that does not now exist. If the legislation is enacted, 
plaintiffs seeking to challenge the constitutionality of a state law 
can elect to file a case seeking a declaratory judgment; if they like 
the judge randomly assigned to the case, they can seek the declaratory 
judgment alone, and when that judgment is final, it will be res 
judicata and an injunction will have to issue. An end run, in effect, 
can occur around the three-judge rule. If, on the other hand, the 
plaintiffs perceive the randomly assigned judge to be unfavorable, they 
can then file an application for an injunction, which will 
automatically give them two more judges, in the hope that the original 
judge will be out-voted by the two additional judges. In short, 
plaintiffs would have two bites at the apple in terms of getting the 
best court possible.
    \60\ 457 U.S. 202 (1982) (holding a Texas statute which withholds 
from local school districts any state funds for the education of 
children who were not ``legally admitted'' into the United States, and 
which authorizes local school districts to deny enrollment to such 
children, violates the Equal Protection Clause of the Fourteenth 
Amendment). See also League of United Latin Americans Citizens v. 
Wilson, 908 F.Supp 755 (C.D. CA, 1995), remanded 131 F.3d 1297 (1997), 
aff'd 1998 U.S. Dist. Lexis 3418 (March 13, 1997).
    \61\ Coalition for Economic Equity v. Wilson, 946 F. Supp. 1480 
(N.D.Cal.), rev'd, 122 F.3d 692 (9th Cir. 1997).
---------------------------------------------------------------------------
    Finally, we would note that Members of the Majority have 
repeatedly attempted to argue that section 2 is justified 
because of the continuing applicability of three judge panels 
to voting rights cases. We respectfully disagree for two 
reasons. First, the original rationale for retaining three-
judge panels in voting rights cases stemmed from legislative 
concern regarding the problem of racist judges in the 
South.\62\ There has been no comparable suggestion of judicial 
bias with respect to state voter initiatives. Secondly, Mr. 
Watt stated he believes that the justification for three-judge 
panels in voting rights cases does not currently exist to the 
same extent it did historically, and that based on his 
experience with three-judge panels in his own redistricting 
dispute he believes three-judge panels are extremely 
inefficient.\63\
---------------------------------------------------------------------------
    \62\ See H.R. Rep. No. 94-1379, at 13 (1976) (noting that the civil 
rights community argued ``three-judge courts were needed to protect 
racial minorities from the local bias and parochialism of some federal 
judges'').
    \63\ Markup of H.R. 1252 by the House Comm. on the Judiciary, 105th 
Cong. 41-42 (March 10, 1998) (statement of Mr. Watt).
---------------------------------------------------------------------------

 iv. removal of judicial conduct complaints will harm a system that is 
                              working well

    Section 4 of H.R. 1252 alters the current procedure for 
handling complaints of misconduct against federal trial judges 
to provide for consideration of judicial complaints outside the 
relevant circuit.\64\ The proposed changes are unnecessary and 
would ultimately be counter-productive. The current system, 
which allows for resolution of complaints in the first instance 
by the circuit in which the complained against judge resides, 
is set forth in the Judicial Conduct and Disability Act.\65\ 
This law has stood the test of time and was the result of years 
of discussion and compromise concerning the constitutionality 
and appropriateness of establishing a statutory disciplinary 
mechanism for the federal judiciary. The efficacy of the 
Judicial Conduct and Disability Act was reiterated as recently 
as 1993 by the congressionally created National Commission on 
Judicial Discipline, which concluded:
---------------------------------------------------------------------------
    \64\ Under the proposed system, a complaint is initially referred 
to the chief judge of the circuit where the court in sits. The chief 
judge may dismiss the case if she finds that the complaint a) relates 
to the merits of the case, b) the complaint was improperly filed, or c) 
the complaint is frivolous. If the chief judge finds that the complaint 
cannot be disposed of on any of these three grounds, then she shall 
forward the complaint to a chief judge of another circuit for his 
consideration. That chief judge may dispose of the complaint by written 
order if he finds that the problem has been remedied or is now moot, or 
conduct proceedings on the merits. Sec. 4(a), Proposed 28 U.S.C. 
Sec. 372(c).
    \65\ 28 U.S.C. Sec. 1 note.

          One of the most important findings of this Commission 
        concerns the continuing importance of informal 
        approaches to judicial misconduct and disability even 
        after the 1980 Act * * * Informal approaches remain 
        central to a system of self-regulation within the 
        judiciary * * * [A] major benefit of the Act's formal 
        process has been to enhance the attractiveness of 
        informal resolution.\66\
---------------------------------------------------------------------------
    \66\ 1997 Subcommittee Hearings, supra note 3 (written statement of 
Chief Circuit Judge Politz and Judge Williams 10, citing Report of the 
National Commission on Judicial Discipline and Removal, at 113 (August 
1993)).

    The Commission also recognized the cost effectiveness of 
peer review of judges, noting that the benefits of timely 
resolution of complaints, the proximity of the chief judge to 
insure implementation of discipline, the lack of travel cost, 
and retaining an administrative instead of adversarial 
discipline process would all be lost if internal circuit review 
was abandoned.\67\ This view is shared by the American Bar 
Association,\68\ and the Department of Justice,\69\ the latter 
having written ``federal judges must be trusted to police their 
colleagues with respect to allegations of misconduct, and that 
judges in one circuit are equally--if not better--able to 
discipline their colleagues on that circuit as they are to 
discipline judges in other circuits.'' \70\
---------------------------------------------------------------------------
    \67\ 1997 Subcommittee Hearings, supra note 3 (written statement of 
Chief Circuit Judge Politz and Judge Williams 12-13).
    \68\ 1997 Subcommittee Hearing, supra note 3 (statement of Mr. N. 
Lee Cooper, President, American Bar Association, 14). Citing the Report 
of the National Commission on Judicial Discipline and Removal, supra 
note 66, 89-90, the ABA wrote ``[I]n assessing the impact of the 1980 
Act, `it would be a mistake to attend only to complaints that resulted 
in council action following the appointment and report of a special 
committee. * * * [T]he opportunity to resolve complaints and conclude a 
proceeding on the basis of corrective action is a central feature of 
the Act. Indeed 73 complaints * * * were resolved on that basis'.'' Id.
    \69\ Letter from Andrew Fois, Assistant Attorney General, United 
States Department of Justice, Hon. Howard Coble, Chairman, Subcommittee 
on Courts and Intellectual Property, U.S. House of Representatives 
(June 10, 1997).
    \70\ Id., 2.
---------------------------------------------------------------------------
    Notwithstanding the widespread and non-partisan support for 
the current legal regime, Republicans would have us completely 
overhaul the law as an apparent result of a single matter in 
which the Chief Judge and the Judicial Council of the Sixth 
Circuit considered and ultimately dismissed--12 complaints 
arising out of the handling of eight death penalty habeas 
corpus petitions by a district court judge from that 
circuit.\71\ After reviewing the details of this case, the 
Judicial Conference noted that ``it is likely that 16 judges 
from any region of the country would have decided the same as 
did the 16 judges from the Sixth Circuit.'' \72\ Moreover, the 
core complaint in that dispute is already being dealt with by 
another provision in this bill--section 7 providing for the 
random reassignment of habeas corpus cases.
---------------------------------------------------------------------------
    \71\ Letter from Leonidas Ralph Mecham, Secretary, Judicial 
Conference for the United States, to John Conyers, Jr., Ranking Member, 
Committee on the Judiciary, U.S. House of Representatives (March 3, 
1998).
    \72\ Id., 3.
---------------------------------------------------------------------------

                               conclusion

    We would warn the Members of the many dangers that occurs 
when elected representatives seek to score easy political 
points by criticizing judges and circumscribing court powers 
and jurisdiction as H.R. 1252 does.\73\ In his farewell address 
to the Nation, then President George Washington warned:
---------------------------------------------------------------------------
    \73\ H.R. 1252 is only the most recent effort in a long line of 
Republican legislative efforts to substitute their political judgment 
for the well-reasoned legal judgment of an independent judiciary. Among 
other things, since Republicans took control of Congress, they have: 
(1) passed laws which allowed for summary exclusion of aliens seeking 
asylum without legal due process and eliminated judicial review of 
other administrative decisions effecting aliens [[Illegal Immigration 
Reform and Immigrant Responsibility Act of 1995, Pub. L. No. 104-208 
(1996)]; (2) directed a variety of intimidating questions and surveys 
towards the judiciary; and (3) initiated an unprecedented number of GAO 
reviews of the judiciary. At the same time, Republicans have also 
unsuccessfully sought legislation to establish a non-judicial authority 
to review the courts [S. 1446, 104th Cong. (1995)]; abrogate the Fourth 
Amendment exclusionary rule [H.R. 666, 104th Cong. (1995)]; and 
circumscribe federal court authority with regard to real property 
taking cases [H.R. 1534; H.R. 992, 105th Cong. (1997)].

          Let there be no change [in court powers] by 
        usurpation; for it is through this, in one instance, 
        may be the instrument of good, it is the customary 
        weapon by which free governments are destroyed. The 
        precedent must always greatly overbalance in permanent 
        evil, any partial or transient benefit which the use 
        can at any time yield.\74\
---------------------------------------------------------------------------
    \74\ 1997 Subcommittee Hearings, supra note 3 (written statement of 
N. Lee Cooper 17).

    Until Congress can devise a better system of checks and 
balances than James Madison and the founding fathers, we would 
advise the Majority to stop criticizing and micro managing our 
judiciary and return to the legislative work the voters sent us 
---------------------------------------------------------------------------
to Congress to accomplish.

                                   John Conyers,  Jr.
                                   Charles E. Schumer.
                                   Rick Boucher.
                                   Bobby Scott.
                                   Zoe Lofgren.
                                   Maxine Waters.
                                   William D. Delahunt.
                                   Steven R. Rothman.
                                   Barney Frank.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Melvin L. Watt.
                                   Sheila Jackson Lee.
                                   Marty Meehan.
                                   Robert Wexler.

                                
