[Senate Report 106-167]
[From the U.S. Government Publishing Office]
Calendar No. 295
106th Congress Report
SENATE
1st Session 106-167
_______________________________________________________________________
DISTRICT OF COLUMBIA COURT EMPLOYEES ACT OF 1999
__________
R E P O R T
of the
COMMITTEE ON GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
H.R. 858
TO AMEND CHAPTER 17 OF TITLE 11, DISTRICT OF COLUMBIA CODE, TO PROVIDE
FOR PERSONNEL PROTECTION FOR DISTRICT OF COLUMBIA COURT EMPLOYEES
September 30, 1999.--Ordered to be printed
__________
U.S. GOVERNMENT PRINTING OFFICE
69-010 WASHINGTON : 1999
COMMITTEE ON GOVERNMENTAL AFFAIRS
FRED THOMPSON, Tennessee, Chairman
WILLIAM V. ROTH, Jr., Delaware JOSEPH I. LIEBERMAN, Connecticut
TED STEVENS, Alaska CARL LEVIN, Michigan
SUSAN M. COLLINS, Maine DANIEL K. AKAKA, Hawaii
GEORGE V. VOINOVICH, Ohio RICHARD J. DURBIN, Illinois
PETE V. DOMENICI, New Mexico ROBERT G. TORRICELLI, New Jersey
THAD COCHRAN, Mississippi MAX CLELAND, Georgia
ARLEN SPECTER, Pennsylvania JOHN EDWARDS, North Carolina
JUDD GREGG, New Hampshire
Hannah S. Sistare, Staff Director and Counsel
Johanna L. Hardy, Counsel
Ash Jain, Counsel
Kristine I. Simmons, Staff Director, Oversight of Government
Management, Restructuring and the District of Columbia Subcommittee
John Shumake, Professional Staff Member, Oversight of Government
Management, Restructuring and the District of Columbia Subcommittee
Joyce A. Rechtschaffen, Minority Staff Director and Counsel
Peter A. Ludgin, Minority Professional Staff Member
Marianne Clifford Upton, Minority Staff Director, Oversight of
Government Management, Restructuring and the District of Columbia
Subcommittee
Darla D. Cassell, Administrative Clerk
Calendar No. 295
106th Congress Report
SENATE
1st Session 106-167
======================================================================
DISTRICT OF COLUMBIA COURT EMPLOYEES ACT OF 1999
_______
September 30, 1999.--Ordered to be printed
_______
Mr. Thompson, from the Committee on Governmental Affairs, submitted the
following
R E P O R T
[To accompany H.R. 858]
The Committee on Governmental Affairs, to which was
referred the bill (H.R. 858) to provide personnel protection
for nonjudicial employees of the District of Columbia Court
System who cooperate with a Congressional investigation, having
considered the same, reports favorably thereon with an
amendment and recommends by voice vote that the bill as amended
do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background.......................................................1
III. Legislative History..............................................6
IV. Section-by-Section Analysis......................................6
V. Estimated Cost of Legislation....................................7
VI. Evaluation of Regulatory Impact..................................8
VII. Changes in Existing Law..........................................8
I. Purpose and Summary
The purpose of H.R. 858, the District of Columbia Court
Employees Act of 1999, is to amend Chapter 17 of Title 11,
District of Columbia Code, to provide for personnel protection
for District of Columbia court employees.
II. Background
Recent History Of District of Columbia Court System
The early 1970s was a time of restructuring for the
District of Columbia. In 1970, the District of Columbia Court
Reform and Criminal Procedure Act was passed. That Act created
the District of Columbia court system that exists today. The
Act vests judicial power over the District of Columbia in two
separate court systems--three Article III courts for federal
claims (the Supreme Court of the United States, the United
States Court of Appeals for the District of Columbia Circuit,
and the United States District Court for the District of
Columbia) and two Article I courts for local claims (the
District of Columbia Court of Appeals and the District of
Columbia Superior Court). The D.C. Superior Court became the
court of general jurisdiction and the D.C. Court of Appeals
became the highest court of D.C., whose decisions are
appealable only to the United States Supreme Court.
Over time the local D.C. court system experienced other
changes through the D.C. Self-Government and Governmental
Reorganization Act of 1973 (Home Rule Act), the District of
Columbia Prosecutorial and Judicial Efficiency Act of 1985, and
the National Capital Revitalization and Self-Government Act of
1997 (1997 Revitalization Act). Local D.C. Courts are
considered Article I courts; however, unlike other Article I
courts which are established under Article I, section 8, clause
9, the D.C. Courts are established under section 8, clause 17,
the clause giving Congress exclusive legislative jurisdiction
over D.C.
Congress, through the 1997 Revitalization Act separated the
D.C. court system from the rest of the D.C. government, leaving
oversight purely with Congress. The Court's budget is set by
Congress and is no longer included as part of the D.C. budget.
In addition, court employees are considered federal employees
for various civil service benefits, such as retirement,
lifeinsurance, and health insurance.
The Current District of Columbia Court System
The local D.C. Courts include the D.C. Superior Court,
which is the court of general jurisdiction, and the D.C. Court
of Appeals. When there is a vacancy on either court, a seven
member commission, the D.C. Judicial Nominations Commission,
selects three names from a pool of applicants. The President
has 60 days to select a nominee from the list of three
candidates supplied by the Commission. The nomination is then
sent to the Senate for confirmation. D.C. Judges are appointed
for 15-year terms.
The administration of the D.C. Courts is overseen by the
Joint Committee on Judicial Administration. The Joint Committee
is responsible for personnel practices, accounts and auditing,
procurement and disbursement, development and coordination of
statistical and management information systems and reports,
submission of the annual budget requests, and other
administrative matters. The Joint Committee is made up of the
Chief Judges of both the Court of Appeals and the Superior
Court, one associate judge of the appellate court, and two
associate judges of the Superior Court. The Executive Officer
of the courts is appointed by the Joint Committee to be
responsible for the administration of the Courts subject to the
supervision of the Joint Committee.
In addition, the D.C. Commission on Judicial Disabilities
and Tenure has the power to suspend, retire, or remove a judge
from the D.C. Courts for various reasons.
The D.C. Courts have over 1,000 employees and an annual
budget of approximately $128 million. There were approximately
2,000 cases filed in the D.C. Court of Appeals and
approximately 157,000 cases filed in the D.C. Superior Court in
1998. Over the years, the D.C. court system has been recognized
as a model by other local jurisdictions and States. Further,
the D.C. Courts have various community-oriented programs that
allow the judges and court officials to do more than adjudge
and process cases.
Financial management issues
In fiscal year 1998, the D.C. court system began to run low
on funds. It decided to withhold payments to attorneys who were
paid by the court to represent indigents in criminal cases. The
House authorizing and appropriations committees on the District
began an investigation of this matter. The Court contends that
in 1997, when various court functions, including adult
probation, were transferred from the D.C. Courts to the federal
government, Congress diminished the Court's budget by an amount
greater than that necessary for such functions. However, some
Members of Congress have maintained that the Court had been put
on notice that it had a budget shortfall and, therefore, should
have managed its spending accordingly.
On September 22, 1998, the Chairman Charles Taylor (R-NC)
and Ranking Member Jim Moran (D-VA) of the House D.C.
Appropriations Subcommittee on the District of Columbia
requested the General Accounting Office (GAO) to study the
financial operations of the D.C. Courts. Later, the Chairman of
the D.C. authorizing committee, Rep. Tom Davis (R-VA),
requested to be added as a requestor to the report. The
investigation was later expanded to include an investigation of
the personnel practices of the D.C. Courts.
During this process, Chief Judge Eugene Hamilton of the
D.C. Superior Court issued an administrative order encouraging
employees to comply with the GAO audit. Despite the assurances
made by Chief Judge Hamilton and the fact that GAO did not
indicate any problems collecting information from court
employees, H.R. 858 was introduced to ensure there was no
retaliation for cooperating with the GAO investigation.
Summary of H.R. 858 as passed by the House
H.R. 858 originally was cited as the ``District of Columbia
Court Employees Whistleblower Protection Act of 1999.'' It
created a new section in Chapter 17 of Title 11 of the D.C.
Code entitled ``11-1733. Whistleblower protection for court
personnel.'' The bill would have made D.C. Court personnel
subject to Section 1503 of the District of Columbia
Comprehensive Merit Personnel Act of 1978 (D.C. Code, sec. 1-
616.3) and allow the employees to initiate a law suit in the
United States District Court for the District of Columbia. The
bill was also retroactive to the passage of Public Law 105-33,
the 1997 Revitalization Act.
Problems with H.R. 858 as passed by the House
There were a number of problems with H.R. 858 as passed by
the House. First, the House bill makes court personnel subject
to D.C. Code sec. 1-616.3, entitled ``Complaints of criminal
harassment for appearances and testimony before the Council.''
This section of the Code, which covers testimony before the
Council and Congress, was repealed in 1998. In enacting D.C.
Law 12-160, the Whistleblower Reinforcement Act of 1998, the
D.C. Council replaced this section of the Code with another.
Like D.C. Code sec. 1-616.3, D.C. Law 12-160 would also
provide protection for court employees in their communications
with the D.C. Council and Congress. However, it also includes
other entities, including all federal, District, state, or
local executives agencies. The Committee was concerned that
this provision was too broad.
A second issue of concern to the Committee related to
whether it is appropriate to subject D.C. court employees to a
provision intended primarily for D.C. government employees. As
noted above, D.C. Court employees are considered federal
employees, not D.C. employees for various employment benefits.
Providing protection under a local D.C. merit systems law meant
primarily for testimony before the D.C. Council, seemed
contrary to Congress' intent of separating the D.C. court
system from the rest of the D.C. government.
The third issue was whether extending ``whistleblower''
protections to D.C. Court employees was appropriate and
consistent with the previous decisions made by Congress
regarding whistleblower protections. Other Article I courts
have no whistleblower protection, although the employees of
those courts have other civil service benefits. The other
Article I courts include the United States Tax Court (employees
are selected competitively), United States Bankruptcy Court (no
protections), Federal Court of Claims (no protections),
Veterans Appeals Court (no protections), and United States
Magistrates (considered federal employees for health benefits
and other benefits). In addition, according to the
Administrative Office of the U.S. Courts which conducts the
nonjudicial administrative business of the federal courts, none
of the non-Article I federal courts have whistleblower
protections. These courts include Article III and Article IV
(Guam, Virgin Islands, and the Northern Mariana Islands)
courts.
There may be various reasons why whistleblower protections
have not been extended to the federal courts; however, the
focus of the Committee was to resolve a simple issue--ensuring
that D.C. Court employees have open communication with
Congress. To start down a road which might have lasting and
enormous repercussions for the judicial system seemed
inappropriate and unnecessary.
Finally, the Committee considered the fact that H.R. 858
applied to court ``personnel'' in general. Court personnel,
however, are characterized as either judicial or nonjudicial.
The potential implications of including judicial personnel
raised questions regarding the integrity of judicial decisions
and confidential communications between judges and their law
clerks and secretaries, who are not directly involved with
Court administration.
Solutions
To resolve the concerns outlined above, and accomplish H.R.
858's intended purposes, this Committee brought D.C. court
nonjudicial employees under the protection of 5 U.S.C. Section
7211 rather than D.C. Code sec. 1-616.3. 5 U.S.C. Section 7211
was enacted to ensure open communication between federal
workers and Congress for oversight purposes. The Committee felt
that this section was more appropriate to ensure effective
oversight by Congress over the D.C. Courts.
Title 5, Section 7211 of the U.S. Code is a non-
whistleblower federal statute that is intended to ensure open
communication between Congress and federal employees. The
origin of this section of the U.S. Code, also known as the
``Lloyd-Lafollette Act,'' dates back to 1912. In response to
``gag orders'' issued first by President Theodore Roosevelt
(1902) and then President William Taft (1909), Congress added
language in a 1912 appropriations bill nullifying the gag
orders. The ``gag orders'' were restrictions the President
placed on executive branch employees regarding their
communications with Congress. This language was later placed in
the Civil Service Reform Act of 1978 and codified in 5 U.S.C.
Section 7211. The purpose of this Act is to allow Congress to
obtain uncensored, essential information from federal
employees. Congress intended to allow the federal workers
direct access to Congress in order to register complaints about
conduct by their supervisors and to report corruption or
incompetence.
H.R. 858 as amended uses the standard for filing a suit
outlined in D.C. Code sec. 1-616.3. This makes it clear when a
court employee may file a suit and to which court such employee
may file (United States District Court for the District of
Columbia).
H.R. 858 as amended also requires administrative exhaustion
prior to the employee initiating a lawsuit in federal court.
The Joint Committee, which oversees the administration of the
Court, including personnel decisions, will have a 60-day period
to address any grievances arising from the alleged violation of
an employee's rights under the bill. After the 60 days, the
employee may then file a law suit in the United States District
Court.
H.R. 858 as amended makes clear that the bill applies only
to nonjudicial court employees. Nonjudicial court employees are
those employees the Executive Officer has day-to-day control
over as described in D.C. Code 11-1725 (relating to the
appointment of nonjudicial personnel). These do not include the
judges or personal law clerks and secretaries of the judges on
the Courts. The communications and relationships between such
individuals relate so closely to the disposition of specific
cases that to interfere with that relationship may produce
unintended repercussions for the administration of justice and
the integrity of the court system.
Finally, H.R. 858 as amended includes a provision that
allows the D.C. Courts, if sued, to file a motion for
reasonable attorneys fees and costs. This provision was
intended to guard against frivolous lawsuits and as such was
not intended to allow such costs to be awarded if the judge
finds that the plaintiff had a reasonable and good faith belief
that the case was meritorious. However, after H.R. 858 was
ordered reported, concerns regarding the effect of this
provision were raised by advocates and others, including
District of Columbia Councilmember Carol Schwartz, sponsor of
the D.C. Whistleblower Reinforcement Act of 1998.
The main concern raised is that this provision will
discourage employees from communicating openly with Congress
because they could be saddled with large court costs and
attorneys fees if they lose their claim of retaliation.
Moreover, it has been pointed out that removing this provision
will not encourage frivolous lawsuits for two reasons. First,
it is difficult to find attorneys for even the strongest cases
because the absence of punitive damages means there is no
potential for cases to be financially lucrative through
contingency fees. Second, a Federal civil procedure rule
already permits sanctions against lawyers who file frivolous
suits. Because it appears there would be no adverse effect to
removing this ``loser-pays'' provision and removing it will
serve to advance the objectives of H.R. 858, Committee members
have indicated their support for an amendment to remove this
section from H.R. 858 when it is taken up by the full Senate.
III. Legislative History
H.R. 858 was introduced in the House of Representatives by
Rep. Davis (R-VA) on February 25, 1999 for himself and
Representatives Moran (D-VA), Morella (R-MD), and Delegate
Norton (D-DC). It was referred to the House Committee on
Government Reform and then on March 1, 1999 to the House
Subcommittee on the District of Columbia. On March 10, 1999,
the House Committee on Government Reform ordered reported H.R.
858 by voice vote. The bill was passed by voice vote under
suspension of the rules in the House on March 16, 1999.
On March 17, 1999, the bill was referred to the Senate
Committee on Governmental Affairs. On April 12, 1999, H.R. 858
was referred to the Subcommittee on Oversight of Government
Management, Restructuring and the District of Columbia. The
Subcommittee agreed unanimously to the amendment proposed by
Chairman Voinovich (R-OH) of the Subcommittee on May 19, 1999.
The full Senate Committee on Governmental Affairs
considered H.R. 858 with Senator Voinovich's amendment on May
20, 1999. The Committee voted to order the bill reported as
amended by voice vote.
IV. Section-by-Section Analysis (as amended)
Section 1 entitles the Act as the ``District of Columbia
Court Employees Act of 1999.''
Section 2 creates a new section to Subchapter II of Chapter
17 of Title 11 of the District of Columbia Code. The new
section is entitled ``Sec. 11-1733. Court personnel
communications with Congress.'' It includes definitions for
``Congress'' and ``District of Columbia court'' and makes
nonjudicial employees of the court federal employees for the
purpose of Section 7211 of Title 5 of the U.S. Code. It allows
an employee or former employee to file a civil action in the
United States District Court for the District of Columbia if
(1) he/she reasonably believes his/her rights under Section
7211 of Title 5 of the U.S. Code has been violated, (2) he/she
files a grievance with the Joint Committee not later than 270
days after the violation, (3) the Joint Committee makes a final
decision or no decision within 60 days after the filing of the
grievance, and (4) the civil action is filed not later than one
year after the violation. This section also lists the type of
relief allowed to the employee or former employee, allows the
court reasonable attorneys fees and court costs in certain
circumstances, makes the filing of a civil action the employee
or former employee's exclusive remedy, and requires the D.C.
Courts to display notices of the employee's rights.
Section 3 makes the bill retroactive to the enactment of
the Balanced Budget Act of 1997, Public Law 105-33 (1997
Revitalization Act).
The title is amended so as to read: ``An Act to amend
Chapter 17 of Title 11, District of Columbia Code, to provide
for personnel protection for District of Columbia court
employees.''.
V. Estimated Cost of Legislation
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 27, 1999.
Hon. Fred Thompson,
Chairman, Committee on Governmental Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 858, the District
of Columbia Court Employees' Act of 1999.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are John R.
Righter (for federal costs) and Susan Sieg (for the state and
local impact).
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
H.R. 858--District of Columbia Court Employees' Act of 1999
H.R. 858 would amend District of Columbia statutes to
provide for personnel protection for employees of the District
of Columbia court who cooperate with a Congressional
investigation. Under the legislation, employees or former
employees could seek relief from violations by first filing
grievances with the Joint Committee on Judicial Administration
of the District of Columbia and then, if necessary, filing
civil claims in the U.S. District Court for the District of
Columbia. If the U.S. District Court were to find that an
employee's claim was unwarranted, the legislation would
authorize it, upon request, to award the payment of reasonable
fees and court costs to the court of the District of Columbia.
CBO estimates that enacting H.R. 858 would have little or no
effect on the federal budget. The legislation would not affect
direct spending or receipts; therefore, pay-as-you-go
procedures would not apply.
H.R. 858, as ordered reported by the Senate Committee on
Governmental Affairs, contains an intergovernmental mandate as
defined in the Unfunded Mandates Reform Act (UMRA) because it
would impose enforceable duties on the District of Columbia
with regard to the treatment of court personnel. CBO estimates
that the costs of complying with the mandate would be minimal,
and thus would not exceed the threshold established in UMRA
($50 million in 1996, adjusted annually for inflation). H.R.
858 contains no private-sector mandates as defined in UMRA.
The CBO staff contacts are John R. Righter (for federal
costs) and Susan Sieg (for the state and local impact). This
estimate was approved by Paul N. Van de Water, Assistant
Director for Budget Analysis.
VI. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill. The enactment of
this legislation will impose enforceable duties on the District
of Columbia with regard to the treatment of court personnel.
CBO estimates that complying with the mandate will be minimal
and would not exceed the threshold established in the Unfunded
Mandates Reform Act. The legislation contains no other
regulatory impact.
VII. Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, 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 and existing law, in which no
change is proposed, is shown in roman):
District of Columbia Code
Title 11, Organization and Jurisdictional of Courts
Chapter 17. Administration of District of Columbia Courts
Subchapter I. Court Administration
Sec.
11-1701. Administration of District of Columbia court system.
11-1702. Responsibilities of chief judges in the respective courts.
* * * * * * *
Subchapter II. Court Personnel
11-1721. Clerks of courts.
* * * * * * *
11-1733. Court personnel communications with Congress.
* * * * * * *
SEC. 11-1732. HEARING COMMISSIONERS.
(a) With the approval of a majority of the judges of the
Superior Court of the District of Columbia in active service
and subject to standards and procedures established by the
rules of theSuperior Court, the chief judge of the Superior
Court may appoint hearing commissioners, who shall serve in the
Superior Court and perform the duties enumerated in subsection (j) of
this section and such other functions incidental to these duties as are
consistent with the rules of the Superior Court and the Constitution
and laws of the United States and of the District of Columbia.
* * * * * * *
SEC. 11-1733. COURT PERSONNEL COMMUNICATIONS WITH CONGRESS.
(a) In this section the term--
(1) ``Congress'' means the United States Congress and
includes any member, employee, or agent of Congress;
and
(2) ``District of Columbia court'' means the Superior
Court of the District of Columbia and the District of
Columbia Court of Appeals.
(b) Nonjudicial employees of the District of Columbia court
shall be treated as employees of the Federal Government solely
for purposes of section 7211 of title 5, United States Code
(relating to employees' right to petition Congress).
(c)(1) An employee or former employee may file a civil
action in the United States District Court for the District of
Columbia for relief of a violation of subsection (b), if--
(A) the employee or former employee reasonably
believes that such a violation occurred;
(B) the employee or former employee files a grievance
relating to such violation with the Joint Committee on
Judicial Administration of the District of Columbia not
later than 270 days after the violation occurred;
(C) the Joint Committee--
(i) makes a final decision; or
(ii) makes no decision within 60 days after
the filing of the grievance; and
(D) the employee or former employee files such civil
action not later than 1 year after the date of the
violation.
(2) Relief in an action filed under paragraph (1) may
include--
(A) an injunction to restrain continued violation of
this section;
(B) rescission of a retaliatory action;
(C) the reinstatement of the employee or former
employee to the same position held before the
retaliatory action, or to an equivalent position;
(D) the reinstatement of the employee's or former
employee's full fringe benefits and seniority rights;
(E) compensation for lost wages and benefits; and
(F) the payment by the District of Columbia court of
the employee's or former employee's reasonable costs
and attorney fees. If the employee or former employee
is the prevailing party.
(d) In any civil action filed under subsection (c), the
District of Columbia court may file a motion for an award of
reasonable attorney fees and court costs. The presiding judge
may order such fees and costs to be awarded to the District of
Columbia court, if the judge determines that an action brought
by an employee or former employee under this section was not
well grounded in fact and not warranted by law.
(e) The filing of a civil action in accordance with this
section shall constitute the employee's or former employee's
exclusive remedy under the laws of the United States or the
District of Columbia for violation of this section.
(f) The District of Columbia court shall conspicuously
display notices of an employee's protections and obligations
under this section, and shall use other appropriate means to
keep all employees informed of such protections and
obligations.