[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.

                                  
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